DXM19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 765
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 765
File number(s): ADG 363 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 27 May 2025 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – whether misapplication of real chance test – whether constructive failure to exercise jurisdiction by failure to consider relevant integers of applicant’s claimed risk of harm – whether country information misconstrued and reasoning illogical or irrational – whether jurisdictional error – writs issued. Legislation: Migration Act 1958 (Cth) ss 5H, 473DC, 473DD, 473FB, 474, 476, 499 Cases cited: AIE15 v Minister for Immigration and Border Protection [2018] FCA 610
AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168
AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594
BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642
CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472
CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1998) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663; (2019) 167 ALD 89
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 18 AAR 9; (1993) 115 ALR 1
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
DGB18 v Minister for Home Affairs [2019] FCA 1034
Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 864; (2021) 364 FLR 5
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858
EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43
Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40FCR 493; (1993) 112 ALR 198
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 229 FCR 290; (2013) 61 AAR 531; (2013) 140 ALD 1
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 21 August 2023 Date of hearing: 21 August 2023 Place: Perth Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Bakhtiar Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 363 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 1 October 2019.
2.A writ of mandamus issue requiring the matter to be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 19 August 2019, and to determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) filed on 29 June 2023 by the applicant, DXM19. The Amended Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 1 October 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration and Citizenship (“Minister”) of 19 August 2019 not to grant DXM19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
The grounds of the Amended Judicial Review Application appear below at [8] (ground 1), [23] (ground 2) and [32] (ground 3).
At hearing:
(a)the Court Book (“CB”) was marked as Exhibit 1; and
(b)the affidavit of a solicitor for DXM19, Faisal Bakhtiar, affirmed 29 June 2023 (“Bakhtiar Affidavit”) was tendered and read.
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
BACKGROUND
The background to the making of the Authority Decision is as follows:
(a)DXM19 is a citizen of Pakistan: CB 12;
(b)on 30 August 2016 DXM19 completed an application for the SHE Visa which was received by the Department of Immigration and Border Protection (“Department”) (now the Department of Home Affairs) on 14 October 2016 : CB 46-123;
(c)on 18 October 2016 the wrote to DXM19 acknowledging his SHE Visa application: CB 124-133;
(d)on 16 May 2019 the Department invited DXM19 to attend an interview before it on 30 May 2019 (“SHE Visa Interview”): CB 143-157;
(e)on 6 June 2019 DXM19’s lawyer wrote to the Department attaching legal submissions (“Post SHE Visa Interview Submissions”): CB 178-223;
(f)on 19 August 2019 the Delegate’s Decision was to refuse the SHE Visa: CB 224-243;
(g)on 22 August 2019 the Authority wrote to DXM19 to advise that the Delegate’s Decision had been fast tracked for review by the Authority: CB 244;
(h)on 12 September 2019 DXM19’s lawyers sent submissions to the Authority (“DXM19’s Authority Submissions”): CB 261-267;
(i)on 26 September 2019 DXM19’s lawyers wrote to the Authority attaching a letter from a person in Parachinar, Kurram Agency, in support of DXM19’s review of the Delegate’s Decision: CB 268-271; and
(j)on 1 October 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 272-291.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)noted as to DXM19’s Authority Submissions that:
(i)in a number of respects, they did not comply with the Authority’s Practice Direction, despite DXM19 being provided a copy of that Practice Direction by the Authority and despite DXM19’s lawyer preparing DXM19’s Authority Submissions;
(ii)the font size was less than 10 point and the margins were less than 2.54 centimetres;
(iii)despite the above concerns, it had regard to the legal argument and other aspects of DXM19’s Authority Submissions that it did not consider to be new information;
(iv)they did not identify which parts of DXM19’s Authority Submissions were new information as required by the Practice Direction although it was clear to the Authority that information was included which it considered to be new;
(v)they did not explain why the new information could not have been given to the Department prior to the Delegate’s Decision being made or why it was credible personal information which was not previously known and may have affected consideration of DXM19’s claims, had it been known; and
(vi)it cited new county information but did not provide a copy or extract of any of the information, despite this clearly and specifically being required by the Practice Direction, and that hyperlinks had been provided but this was a practice specifically identified in the Practice Direction as not acceptable,
and on these bases decided not to accept the new information in DXM19’s Authority Submissions pursuant to ss 473DC(2) and 473FB(5);
(b)was not satisfied there were exceptional circumstances to justify considering the new information it identified in DXM19’s Authority Submissions as outlined below;
(c)noted that DXM19’s Authority Submissions cite an article titled “Shia Pakistani Fighters in Syria” (“Shia Fighters Article”) which it considered to be new as it was not before the Delegate and that (according to DXM19’s Authority Submissions) refers to a brigade known to be made up of Turis and other Shia tribesman from Parachinar recruited by the Iranian government and who were active in the conflict in Syria in support of the Assad regime;
(d)noted that DXM19’s Authority Submissions:
(i)cited the Shia Fighters Article in support of its claim that Turis are perceived to be politically pro-Iranian because of their Shia faith and their willingness to fight in the Syrian conflict and that some sectarian militant groups have publicised an ongoing intention to target them for this reason;
(ii)argued that the Australian Department of Foreign Affairs and Trade (“DFAT”) 2019 report (“2019 DFAT Report”) (which is annexed to the Bakhtiar Affidavit) that was relied upon by the Delegate does not adequately assess the risk to this group given their perception as pro-Iranian; and
(iii)did not make clear from the information in the Shia Fighters Article when it was published.
(e)noted that DXM19’s lawyer:
(i)prepared DXM19’s Authority Submissions, and made oral submissions at the end of the SHE Visa Interview in relation to Turi Shias being imputed as being pro-Iranian;
(ii)prepared the detailed Post-SHE Visa Interview Submissions citing country information in support of DXM19’s claims; and
(iii)included in DXM19’s Authority Submissions another report that refers to the targeting of Turis in Parachinar in 2017 for their alleged support of the Bashar al-Assad regime in Syria;
(f)noted that the Delegate’s Decision acknowledged other country information sources which indicated that sectarian militant groups have publicised an ongoing intention to target Turi/Bangash tribesmen owing to their Shia faith and the fact that some tribesman are fighting in Iranian-backed militias in Syria, and that the Shia Fighters Article does not reflect anything new in this regard and nor did it refer to credible personal information;
(g)noted that DXM19’s Authority Submissions:
(i)referred to an undated article about Lashkar-e-Jhangvi (“LeJ Article” and “LeJ” respectively) which it considered to be new information and that the LeJ Article cited a new 2018 article by South Asian Voices (“South Asian Voices Article”) in support of its claim that “numerous reports” detail the significant presence of the LeJ network and the Tehrik-e-Taliban (“TTP”) in Punjab Province and Islamabad;
(ii)included information about LeJ and TTP and was therefore not satisfied that the LeJ Article and the South Asian Voices Article could not have been provided to the Delegate and that it was also not apparent that they added anything further to the country information that was before the Delegate about these groups;
(iii)claimed that Turis are at risk of state-based persecution due to perceived links to Iran with reports that officials are “disappearing” Shia with purported links to Iran. The Authority noted this claim and the South Asian Voices Article to be new information but that it was not evident why this claim or the South Asian Voices Article could not have been raised before the Delegate. The Authority noted:
(A)DXM19 was given the opportunity to raise any further claims during his SHE Visa Interview before the Delegate and that DXM19 was legally represented before the Delegate and that DXM19’s Authority Submissions were prepared by his lawyer;
(B)that DXM19 had provided little supporting evidence in relation to this alleged new fear as no extract or copy of the report which DXM19 seeks to rely on had been provided; and
(C)the Shia Fighters Article refers to Shias being questioned about providing financial support to Iran or as to whether they had been involved in the Syrian conflict but DXM19 had not claimed to have been involved in these activities and had not made any further specific claims as to why he, in particular, would be suspected of being involved in such activities;
(h)acknowledged there is a complex history that has affected the Turi community living in Kurram and accepted that Shia Turis in the area have been targeted by terrorist groups for various reasons in the past, but found that the improvements in security in DXM19’s home area have been significant as a result of ongoing security measures that have been adopted by the Pakistani Government;
(i)noted the 2019 DFAT Report provided an assessment of a moderate risk of sectarian violence from militant groups to Turis in Kurram in February 2019 and further noted that there have been no further attacks against Turis in Kurram since the 2019 DFAT Report had been published (seven months prior to the Authority Decision) and that DFAT also reports there have been no attacks in Parachinar since early 2017;
(j)took into account DXM19’s evidence that he has not been associated with any Shia or Turi militant groups nor been involved in any political activities, and that he claimed his family still resides in his village and he had not claimed that his family came to any harm since DXM19 left Pakistan;
(k)noted DXM19 had not claimed he would work as a taxi driver on return to Pakistan or that he feared harm for this reason but even if he did the country information does not support that he will face a real chance of harm;
(l)having considered the evidence regarding the generally improved security situation in Pakistan, and in Kurram specifically, and declining levels of sectarian violence, and DXM19’s profile and experiences, was not satisfied DXM19 faced a real chance of any harm in Pakistan in the reasonably foreseeable future;
(m)found DXM19 did not meet the requirements of the definition of “refugee” in s 5H(1);
(n)did not accept DXM19’s claims of being targeted by the Taliban in 2011 and was not satisfied that he would face a real risk of significant harm in Pakistan; and
(o)found there were not substantial grounds for believing that there is a real risk that DXM19 will suffer significant harm.
JURISDICTIONAL ERROR
For present purposes it suffices to observe that:
(a)this Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and
(b)it is well established that an applicant for judicial review under s 476 bears the onus of establishing jurisdictional error in the administrative decision sought to be reviewed: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [24] per French CJ, Bell, Keane, and Gordon JJ.
GROUND 1
Ground 1 of the Amended Judicial Review Application is as follows:
1. The IAA misapplied the real chance test under 5J of the Migration Act 1958 (Cth) by applying a relative, rather than objective, methodology for determining whether the applicant faced a real chance of harm.
Particulars
a) In reasoning to the conclusion that the applicant would not face a real chance of harm, the IAA:
i.referred to DFAT’s comments that counter-terrorism activities had significantly decreased the number and severity of attacks on Turis and other sources that indicated the security situation improved substantially in 2018 and there was a reported decrease in terrorism incidents: CB p 284 at [22].
ii. referred to DFAT’s most recent report acknowledging a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation and the overall declining trend in sectarian violence since 2014: CB p 285 at [25].
iii. found the improvements in security in the applicant’s area of Upper Kurram have been significant: CB p 285 at [26].
iv. acknowledged DFAT’s assessment of a moderate risk of sectarian violence from militant groups to Turis in Kurram but noted there having been no further attacks against Turis in Kurram since that report in February 2019 and no attacks in Parachinar since early 2017: CB p 285 at [26].
v.accepted the applicant would continue to attend religious celebrations such as Ashura in Parachinar but noted “recent reports” indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017: CB p 285 at [27].
vi. accepted the applicant will likely return to his home via the Thal-Parachinar road but noted DFAT stated “Turis reported significantly fewer road attacks in 2018” and that there were “no recent reports of attacks against Turis on this road”; and further noted the applicant claimed to have travelled to Peshawar in 2010 and again in 2012 and did not claim to have come to any harm during those trips: CB p 285 at [29].
vii. found for reasons including “the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence” the applicant would not face a real chance of any harm: CB p 286 at [33].
b)The IAA’s assessment of whether the applicant faced a real chance of harm involved a temporally relative analysis, with findings predicated upon ‘improved’ security and ‘decreasing levels’ of violence.
c) The test of whether there is a real chance of harm is an objective rather than relative test, and is not determined by whether the risk is less severe at the relevant point in time than it was previously.
d) A “real chance” of harm is a prospect that is not “remote or far-fetched” and decreasing attacks against Turis, improved security, and the fact the applicant avoided harm previously, are not determinative of whether the applicant faced a real chance of harm in the foreseeable future.
e) At no stage did the IAA make an objective finding as to the actual level of risk the applicant faced being remote or far-fetched.
f) The IAA’s misapplication of the real chance test materially affected its decision, and deprived the applicant of a potentially different outcome.
DXM19’s submissions
As to ground 1 DMX19 submitted that:
(a)the Authority incorrectly assessed whether DXM19 faced a real chance of serious harm based upon relative temporal factors, rather than determining the test objectively;
(b)the requirement of a “real chance” of persecution is a statutory implementation of the approach to refugee claims under the Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137 (entered into force 22 April 1954) laid down in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1998) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”); AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912 (“AXD21”) at [30] per Jackson J;
(c)a “real chance” is a prospect that is not “remote” or “far-fetched”: it does not require a likelihood of persecution on the balance of probabilities: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 at [10] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ: the meaning of the words “remote” and “real” was explained in detail in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493; (1993) 112 ALR 198, FCR at 500-501 per Spender, Foster and Cooper JJ;
(d)the Full Court of the Federal Court confirmed in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 (“CGA15”) at [23] per Murphy, Mortimer and O’Callaghan JJ that:
The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place…
(e)in reasoning to its conclusion that DXM19 would not face a real chance of harm at CB 286 at [33], the Authority:
(i)referred to comments in the 2019 DFAT Report that counter-terrorism activities had significantly decreased the number and severity of attacks on Turis and other sources that indicated the security situation improved substantially in 2018 and there was a reported decrease in terrorism incidents: CB 283-284 at [22];
(ii)referred to the 2019 DFAT Report acknowledging a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in and the overall declining trend in sectarian violence since 2014: CB 285 at [25];
(iii)found that improvements in security in DXM19’s area of Upper Kurram have been significant: CB 285 at [26];
(iv)acknowledged the 2019 DFAT Report’s assessment in February 2019 of a moderate risk of sectarian violence from militant groups to Turis in Kurram but noted there having been no further attacks against Turis in Kurram since the 2019 DFAT Report and no attacks in Parachinar since early 2017: CB 285 at [26];
(v)accepted that DXM19 would continue to attend religious celebrations but noted “recent reports” indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017: CB 285 at [27]; and
(vi)accepted that DXM19 will likely return to his home via the Thal-Parachinar road but noted that the 2019 DFAT Report stated “Turis reported significantly fewer road attacks in 2018” and that there were “no recent reports of attacks against Turis on this road”; and further noted DXM19 claimed to have travelled to Peshawar in 2010 and again in 2012 and did not claim to have come to any harm during those trips at CB 285-286 at [29];
(f)the Authority found, for reasons including “the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence” that DXM19 would not face a real chance of any harm: CB 286 at [33];
(g)the Authority’s recitation of the correct test: CB 286 at [33] was not a substitute for its proper application: CGA15 at [26] per Murphy, Mortimer and O’Callaghan JJ. A decision maker’s substantive reasoning processes are more indicative of their actual reasoning processes than the expression of their conclusion: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723 at [30] per Mansfield J ;
(h)the Authority’s reasoning in this case displays more than a mere “loos[e]ness of language”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, rather, it evinces an erroneous methodology whereby the Authority failed to undertake the requisite objective assessment of whether DXM19 would face a real chance of harm;
(i)whether there is a real chance of harm is not determined by whether the risk has improved over time;
(j)decreasing attacks against Turis and security improvements in DXM19’s home area, or the fact DXM19 avoided harm previously, are not determinative of whether he faced a prospect of harm that is not remote or far-fetched;
(k)what matters is the actual level of risk in the particular place: CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35] per Moshinsky J;
(l)in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663; (2019) 167 ALD 89 (“CJE16”) at [32]-[33] per Anderson J the Federal Court said:
32.… the warning in CID15 and CGA15 about assessing a “real chance” on a relative basis is applicable to a temporally relative analysis of that chance.
33.The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk is less severe at the relevant point in time than it was previously. It is plain that the mere fact that a person might be safer at the relevant point in time (B) than at an earlier point in time (A) does not entail that the person does not face a real chance of persecution at point in time B. For example, if point in time A was very unsafe and point in time B is relatively safer it might still be the case that a person faces a real chance of serious harm at point in time B.
(m)in this case, in contrast to CJE16, the Authority did not make a finding that DXM19’s chance of harm was remote: CJE16 at [44] per Anderson J, and thereby failed to correctly perform its statutory task;
(n)the Authority’s erroneous relative application of the test did not dispose of whether DXM19 faced a real chance of harm, as “an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted”: Chan, CLR at 398 per Dawson J;
(o)while it might have been open for the Authority to find that DXM19 did not face a real chance of harm after correctly applying the real chance test, it is not for a reviewing court to be satisfied that there was evidence before an administrative decision-maker that was capable of supporting the conclusion in fact reached and to ignore the reasons actually given: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 229 FCR 290; (2013) 61 AAR 531; (2013) 140 ALD 1 (“Salahuddin”) at [21] per Flick J;
(p)for the purposes of materiality, it is sufficient if the review material was capable of supporting an objective finding that DXM19 faced a real chance of harm; and
(q)in the premises, there was a realistic possibility that had the Authority correctly applied the real chance test, there might have been a different outcome, noting the materiality test “poses a very low threshold, lest courts engage in impermissible merits review.”: Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 864; (2021) 364 FLR 5 at [100] per Judge Driver.
Minister’s submissions
As to ground 1 the Minister submitted that:
(a)the Authority considered the history of the conflict affecting Turi Shias in Parachinar over time: the Authority recognised that there has been a “complex history” affecting Turi Shias in that area. That was an orthodox approach. Indeed, it was an approach which DXM19 urged the Authority to take. DXM19 submitted: “We urge the [Authority] to take into account the cyclical nature of the violence in Pakistan when making an assessment as to the future risk of harm to the applicant or someone of his profile”: CB 264, see also CB 285 at [26]. But consideration of this history of conflict, and recent improvements, did not result in the Authority failing to correctly apply the “real chance” test: CJE16 at [34] per Anderson J. Rather, the Authority correctly applied the “real chance” test, in an “absolute” sense: see the terminology used in CJE16 at [29] per Anderson J, throughout the Authority Decision in that the Authority:
(i)had regard to country information to the effect that “normal life” was returning to the region: CB 284 at [22];
(ii)had regard to the 2019 DFAT Report assessment that Turis in Kurram “still face a moderate risk of sectarian violence from militant groups because of their Shia faith”: CB 285 at [25]. An assessment by DFAT that there is a “moderate risk” of some form of violence does not necessitate a finding that there is a real chance of harm: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594 at [125] per Murphy J; DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858 at [37] per Judge Laing;
(iii)in reliance on DFAT’s assessment, further noted that there had been “no further attacks against Turis in Kurram” since the 2019 DFAT Report was published and “no attacks in Parachinar since early 2017”: CB 285 at [26]; and
(iv)expressed a conclusion that it was “not satisfied … [DXM19] would face a real chance of any harm in Pakistan in the reasonably foreseeable future”, which is a formulation that, in terms, correctly states the test: CB 286 at [33]; and
(b)in those circumstances, the Court should not infer that the Authority failed to assess whether DXM19 faced a real chance of harm upon return to Parachinar in an absolute sense. It was not necessary for the Authority to make a finding that the risk of harm was “remote”. Indeed, the Full Court of the Federal Court has recognised that “[r]eaching too readily for the label ‘remote’ as a descriptor of risk may lead to error”: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 at [46] per Middleton and Mortimer JJ.
Consideration – ground 1
In the Authority Decision at CB 285-286 at [25]-[30] the Authority found that:
25.DFAT’s most recent report published in February 2019 acknowledges a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram and the overall declining trend in sectarian violence since 2014 in Pakistan. It further states that while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur and Shias continue to face a threat from anti-Shia militant groups. DFAT ultimately assessed that Turis in Kurram still face a moderate risk of sectarian violence from militant groups because of their Shia faith.
26.There is a complex history that has affected the Kurram and the Turi community living there and I accept that the Shia Turis in the area have been targeted by terrorist groups for various reasons in the past. It has been argued that the situation remains fluid and the nature of violence in Pakistan is cyclical, however, I find the improvements in security in the applicant’s area of Upper Kurram have been significant as a result of the ongoing security measures that have been adopted by the Pakistani government. DFAT provided an assessment of moderate risk of sectarian violence from militant groups to Turis in Kurram in February 2019. However, I note that there have been no further attacks against Turis in Kurram since that report was published seven months ago and DFAT also reports that there have been no attacks in Parachinar since early 2017. I have also taken into account the applicant’s evidence that he has not been associated with any Shia or Turi militant groups nor been involved in any political activities. He has claimed that his family still reside in his village and has not claimed they have come to any harm since he left Pakistan.
27.The applicant provided evidence that he practised his Shia faith in Pakistan and in Australia by attending religious celebrations such as Muharram and Ashura in Parachinar, attending Friday prayer and fasting during Ramadan. I accept he will continue to do so, on return to Pakistan. He comes from a majority Shia area and has not claimed that he will be prevented from practising his religion. DFAT has stated that Shia are most vulnerable during large gatherings, such as Ashura processions but recent reports indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017.
28.DFAT further noted Turis … face [a] similar risk of official discrimination as other Pashtuns based on ethnicity and no additional risk of official discrimination based on their religion. It assessed that Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination. It also states, according to the media, discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda. It does not provide any further detail about the source of this information nor the form of the alleged discrimination and the agents of this harm. I note the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis.
29.I have also considered the applicant’s journey back to Parachinar in assessing whether he has a well-founded fear of persecution. Country information before me indicates that Shia Turis from Upper Kurram can only access Peshawar (the closest major Pakistan city) via the Thal-Parachinar road which passes through Sunni-dominated Lower Kurram. In 2016, DFAT indicated that the Thal-Parachinar Road remained open and there had been no major security incidents on the road in 2015. Federal security forces maintained armed checkpoints along the road, which is used by both civilian and military vehicles. In its 2019 report, it stated that Turis reported significantly fewer road attacks in 2018, as military operations have forced militants into the mountains. I accept that the applicant will likely return to his home village via the Thal-Parachinar Road to get to Parachinar but there are no recent reports of attacks against Turis on this road. Further, the applicant claimed to have travelled to Peshawar in 2010 to obtain his passport and claims he took the main road through Thal as the road “was a little bit better”. He then travelled to Peshawar again when he last departed Pakistan in 2012 and then travelled onwards to Islamabad in order to fly from the airport there. He did not claim to have come to any harm during those trips.
30.The applicant has not claimed that he would work as a taxi driver on return to Pakistan or feared harm for this reason, but even if he did, the above country information does not support that he will face a real chance of harm.
At CB 286 at [33] the Authority concluded that:
I have considered all the reasons the applicant has claimed to fear harm in Pakistan and that he will be considered a returnee from the west. Having considered the evidence before me including the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence, and the applicant’s profile and experiences, I am not satisfied he would face a real chance of any harm in Pakistan in the reasonably foreseeable future.
In Wu Shan Liang the High Court observed with respect to:
(a)the “real chance” test, that the correct test was whether there was a real chance that an applicant would be persecuted for a Convention reason were the applicant to return to the receiving country at the time of the administrative decision or within the reasonably foreseeable future: CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
(b)the assessment of the chance of the occurrence of a future event, at CLR at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ, as follows:
…As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court observed that:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In any, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 (“Rajalingam”) at [60] and [67] per Sackville said as follows:
60.It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…
67.…Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred…
In assessing whether an applicant has a well-founded fear of persecution for one of the Convention reasons the Authority is entitled to weigh the material before it and make findings prior to considering if an applicant’s fear of persecution is well-founded: Wu Shan Liang, CLR at 281–282 per Brennan CJ, Toohey, McHugh and Gummow JJ, Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In circumstances where the Authority’s findings are not made with sufficient confidence then the Authority may need to consider whether their findings are incorrect in determining the applicant’s well-founded fear: Wu Shan Liang; Guo; Rajalingam.
Ultimately, the question is whether the Authority made the required forward looking assessment. The Authority was required to assess DXM19’s claims by reference to the reasonably foreseeable future, not just the immediate future or the present situation: AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [26] and [33] per Perry J; SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2] per Allsop J; EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148 at [92] per Judge Forbes.
There is no doubt that the Authority canvassed the history of incidents of violence in Kurram and in and near Parachinar in recent decades, and particularly since 2007. For example, the Authority referred to:
(a)a “complex history” affecting the Kurram and the Turi community living there: CB 285 at [26];
(b)the targeting of Shia Turis in the past by terrorist groups: CB 285 at [26], including the targeting of Turis of the Shia faith in Parachinar resulting in “heavy civilian casualties” and an “estimated 1500 deaths” in Kurram from 2007 to 2011: CB 283 at [20];
(c)country information which indicated that the security situation in the former Federally Administered Tribal Areas (“FATA”) (including Kurram) has improved significantly as a result of the Pakistan Army and Frontier Corps counter-terrorism operations that have resulted in a decrease in terrorism in the FATA: CB 283-284 at [22];
(d)militant groups attacking Turis in Parachinar in 2017 for reasons associated with their Shia faith and their support of the Syrian Assad regime resulting in more than 120 deaths, and as a consequence of which the Pakistani Government announced countrywide military operations and installed closed circuit television throughout Parachinar city and began the fencing of the 2,611 kilometre long Pakistan-Afghanistan border: CB 283-284 at [22], but that there had been no further attacks in Parachinar since early 2017: CB 285 at [26]; and
(e)country information which indicated that, since October 2017, Shias in Parachinar had been able to commemorate religious occasions without incident: CB 285 at [27].
The difficulty with the reasoning in the Authority Decision is that whilst it canvasses the history of the violence against Shias in Parachinar, in Kurram, and in the former FATA more generally to June 2017, and then the lack of significant violent attacks or incidents until the time of the Authority Decision in October 2019, that is all it does. It is a narrative setting out that there has been a history of such violence in and around Parachinar to a point in time (early 2017), that nothing like that has happened since then (to October 2019), and a conclusion that therefore DXM19 does not face a real chance of relevant harm if he returns to Kurram. It cannot simply be assumed that the Authority’s reasoning is “based on circumstances that would continue into the future”: that “is essentially question-begging”: Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 at [42] per Yates J.
The Authority Decision does not engage in any objective determination as to what it considers might happen in the future in the Kurram to which DXM19 might return. There is a specific failure, for example, to engage with and assess:
(a)whether there might be a recurrence of the long-standing history of cyclical violence in Kurram, resulting in further major incidents such as those that occurred in 2007-2011 resulting in an estimated 1500 deaths in Kurram, and in Parachinar as recently as the first half of 2017 (that is less than three years before the Authority Decision) resulting in 120 deaths;
(b)the possible future threat of violence towards Shia tribes, and in particular Turis, described in the 2019 DFAT Report as “remain[ing] significant in Kurram” and associated with the greater presence in Kurram of the Taliban and Al Qaeda: CB 285 at [28];
(c)whether the fact that there had been no deterioration in the security situation in Kurram in 2018 reduced the risk of harm from 2019 onwards; and
(d)whether or not, in any event, any significant reduction, or downward trend, in the risk of harm meant that there was not a real chance of suffering harm later in 2019 or in the early to mid 2020s.
The Authority did not engage in the process of actual assessment of the real chance of harm by reference to the reasonably foreseeable future. Rather it did so by reference only to the present situation, and possibly, at best, the immediate future. In that regard it fell into error.
The error made by the Authority was material, and therefore jurisdictional, because had the Authority engaged in a process of assessment of whether there was a real chance of harm if DXM19 returned to Pakistan by reference to the reasonably foreseeable future, rather than the present situation, and possibly the immediate future, then there was a realistic possibility that a different outcome might have eventuated: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
GROUND 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The IAA constructively failed to exercise jurisdiction by failing to consider in a meaningful way, relevant integers of the applicant’s risk of harm; namely
a. The practice of his faith by attending religious celebrations;
b.All risk factors associated with being a member of the Turi tribe; and
c. his return to his home village via the Thal-Parachinar Road.
a) The IAA accepted the applicant would attend religious celebrations such as Ashura in Parachinar, and referred to DFAT’s statement that Shias are most vulnerable during large gatherings, but noted “recent reports indicate Shias had been able to commemorate these occasions without incident since October 2017”: CB p 285 at [27].
b) The IAA acknowledged DFAT states “discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda” but noted “the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis”: CB p 285 at [28].
c) The IAA accepted that the applicant will likely return to his home village via the Thal-Parachinar road but noted “there are no recent reports of attacks against Turis on this road” and the fact applicant had not been harmed on previous trips on the road in 2010 and 2012: CB p 285 at [29].
d) Each of these issues was left unresolved, and was not the subject of any finding, prior to the IAA’s general conclusion that “having considered” factors including “the applicant’s profile and experiences” he did not face a real chance of any harm: CB p 286 at [33].
e) To the extent [27] – [29] of the IAA’s decision purports to consider these integers, the IAA’s reasoning failed to properly consider the applicant’s risk of harm because:
i.reports of Shias commemorating religious celebrations without incident since October 2017, in a report published in February 2019, are not determinative of the applicant not facing a real chance of harm in the foreseeable future, noting DFAT advised the risk Shias face risk can vary “for members of specific groups (see Hazaras and Turis)”: DFAT Report at [3.104].
ii.the applicant not claiming to have faced discrimination did not address DFAT reporting “discrimination and violence towards Shia Tribes, particularly Turis, remaining significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda,” which were separate factors impacting his risk profile: DFAT Report at [3.19].
iii. the applicant not being harmed on previous trips on the Thal-Parachinar road in 2010 and 2012 was not logically probative of his risk of harm from travelling on the road in the future, as DFAT reported a possible risk from doing so: DFAT Report at [3.16]
g)The IAA’s failure to engage in an active intellectual process in relation to key facets of the applicant’s risk profile materially affected its assessment of whether he satisfied the criteria for the grant of the SHEV.
DXM19’s submissions
As to ground 2 DXM19 submitted that:
(a)the Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 observed at [34] per Reeves, O’Callaghan and Thawley JJ that a decision maker:
…may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
…
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review”.
(b)DXM19’s risk profile included factors:
(i)stemming from his Shia faith and attendance at religious celebrations;
(ii)his membership of the Turi tribe; and
(iii)the fact he would travel on the Thal-Parachinar Road to return to his home village;
(c)after surveying country information the Authority purported to consider the above factors at CB 285-286 at [27]-[29];
(d)in respect of DXM19’s religion the Authority noted that the 2019 DFAT Report had “stated that Shia are most vulnerable during large gatherings, such as Ashura processions but recent reports indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017”: CB 285 at [27];
(e)in respect of DXM19 being a Turi the Authority acknowledged the 2019 DFAT Report stated that: “discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda”: see 2019 DFAT Report at [3.19], and the Authority noted “the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis”: CB 285 at [28];
(f)the Authority then accepted that DXM19 “will likely return to his home village via the Thal-Parachinar Road to get to Parachinar but there are no recent reports of attacks against Turis on this road”: CB 285-286 at [29];
(g)the Authority did not engage further with integers of risk prior to concluding that DXM19 would not face a real chance of any harm in Pakistan in the reasonably foreseeable future: CB 286 at [33];
(h)the Authority did not properly address why DXM19 was not at risk of harm from practising his faith. To the extent CB 285 at [27] might be interpreted as reasoning DXM19 was not at risk due to an absence of recent violence at religious festivals, reports of Shias commemorating religious celebrations without incident since October 2017 (in the 2019 DFAT Report published in 2019) are not logically determinative of DXM19 not facing a real chance of harm for this reason in the foreseeable future, noting DFAT had advised the risk Shias face can vary “for members of specific groups (see Hazaras and Turis)”: 2019 DFAT Report at [3.104];
(i)the same fallacy undermines the Authority’s references to DXM19 avoiding harm on two occasions he travelled on the Thal-Parachinar Road in 2010 and 2012, and the lack of recent reports of attacks on Turis on this road;
(j)DXM19’s risk as a member of the Turi tribe was based upon multiple factors, including being imputed as being pro-Iranian, as DXM19’s representative submitted to the Delegate: CB 278 at [6]. The enhanced risk to Turis from being imputed as pro-Iranian, which was adverted to by the 2019 DFAT Report, was not properly considered;
(k)in accordance with Ministerial Direction 84: Direction no. 84 – Consideration of Protection visa applications, issued under s 499 of the Migration Act the Authority was required to take into account DFAT’s assessment, where relevant, in making its decision. Violence towards Turis remaining significant in DXM19’s majority Turi home area was plainly relevant to the assessment of DXM19’s risk of harm;
(l)the Authority failed to meaningfully address why DXM19 would not be at risk of violence. The Authority merely noted “the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis”: CB 285 at [28]. The reporting of violence towards Turis remaining significant was bypassed. This issue was a discrete facet of DXM19’s risk profile as a Turi in addition to the risk of Turis being targeted by terrorist groups traversed at CB 285 at [26];
(m)having acknowledged the reports of significant violence, the Authority could not arrive at a contrary conclusion without explaining how and why this risk of violence did not apply to DXM19: CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472 at [54] per Judge Driver. The Authority did not meaningfully consider or resolve this issue: BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 at [45] per Greenwood J ; and
(n)the Authority’s failure to engage in an active and intellectual process in relation to key facets of DXM19’s risk profile was plainly relevant to whether DXM19 satisfied the criteria for the grant of the SHE Visa. The Authority’s errors in this respect were therefore material: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 at [33] Kiefel CJ, Keane and Gleeson JJ.
Minister’s submissions
As to ground 2 the Minister submitted that:
(a)each of the claims or integers were considered by the Authority;
(b)it is well to recall the High Court’s recent caution with respect to phrases like “active intellectual” consideration. Phrases of that kind have the danger of creating a general warrant of indefinite and subjective application to scrutinise the substantive merits of a decision: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304 (“Plaintiff M1/2021”) at [26] per Kiefel CJ, Keane, Gordon and Steward JJ;
(c)the Authority expressly considered the risk DXM19 might face by attending religious celebrations. The Authority said at CB 285 at [27]:
…DFAT has stated that Shia are most vulnerable during large gatherings, such as Ashura processions but recent reports indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017…
and that amounts to express and direct consideration of the claim;
(d)contrary to DXM19’s submissions, there is no logical fallacy in the Authority’s reasoning. A lack of past incidents is logically probative of future risk: Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Nor is the rationality of the Authority’s reasoning undercut by [3.104] the 2019 DFAT Report – not referred to by the Authority – which noted that the risk for Shias can vary depending on location and membership;
(e)the Authority’s consideration of the risk was specific to Shias in Parachinar, and the Authority was clearly referring to information cited by the Delegate: see CB 235 fn 39, as to the membership of the Turi tribe, and the Authority considered that claim in significant detail from CB 283-285 at [20]-[26] of its reasons. Again, this was express and direct consideration of the claim. And the Authority did not “bypass” any statement about the risk of violence to Turi Shias. The Authority directly confronted the information, but found that he did not face a real risk of harm on that basis upon return to Parachinar;
(f)no inference should be drawn that the Authority overlooked that Turis are imputed as pro-Iranian. The Authority referred to the claim at CB 278-279 at [6] in the context of the exercise of its powers under s 473DD. The Authority Decision discloses that the Authority was aware of the information. The failure to refer to the information in its substantive reasoning only leads to an inference that the Authority did not consider it material: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48 at [48]-[49] per Besanko, Barker and Bromwich JJ, and the authorities cited therein. So much is explicable because the information concerning an imputed pro-Iranian political opinion was contextual information – namely, to explain why Pashtun Turi Shias are attacked: CB 263;
(g)at CB 285 at [28] the Authority expressly considered [3.19] of the 2019 DFAT Report cited in DXM19’s submissions. It was for the Authority alone to consider what weight to give to the 2019 DFAT Report. The Authority evidently gave it little weight because there was no detail about the source, the form of the alleged discrimination, or the agents of the harm, and DXM19 is from a majority Turi Shia area and had never claimed to face discrimination in the past. Those reasons were open to the Authority. It is apparent that the Authority, at CB 285 at [28], was concerned with any risk of “official discrimination”, which is, broadly speaking, discrimination by the State itself: see 2019 DFAT Report at p 6; and
(h)the Authority clearly considered DXM19’s risk on the Thal-Parachinar road: CB 285-286 at [29]. The Authority considered DXM19’s personal experiences on the road in 2010 and 2012, as well as more recent information concerning travelling on the road in 2016 and 2019. This was a conventional approach to determining future risk.
Consideration – ground 2
Ground 2 asserts that the Authority:
(a)“constructively failed to exercise jurisdiction by failing to consider in a meaningful way” integers of DXM19’s claim with respect to risk of harm; and
(b)failed “to engage in an active intellectual process in relation to key facets of … [DXM19’s] risk profile”
In Plaintiff M1/2021 at [26] per Kiefel CJ, Keane, Gordon and Steward JJ the High Court observed that (footnotes omitted):
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [[1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
The caution thus expressed by the majority in Plaintiff M1/2021 is even more apt to apply to a ground of review premised upon a failure to consider “in a meaningful way”, that being a phrase so pregnant with possible permutations when sought to be applied to the outcomes of administrative decision-making as to almost inevitably invite the possibility of merits review and the possibility of crossing the rigorously policed line between judicial review and merits review which lies at the heart of Australian administrative law: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J .
Ground 2 does not allege that the Authority actually failed to consider the integers of DXM19’s claim of risk of harm. To do so would of course constitute jurisdictional error as it is a well-established principle that the Authority must consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. An applicant’s claims to meet the criteria for a protection visa are mandatory considerations under the Migration Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [63] per Black CJ, French and Selway JJ; Htun at [42] per Allsop J.
Without derogating from the fact that matters alleged to constitute jurisdictional error may overlap, a stand-alone allegation that the Authority failed to give any consideration to the integers of DXM19’s claims of risk of harm would, at least on the face of it, fail because the Authority gave consideration to:
(a)the practice of DXM19’s faith by the attending of religious celebrations at CB 285 at [27];
(b)risk factors associated with being a member of the Turi tribe at CB 285 at [28]; and
(c)his return to his home village via the Thal-Parachinar Road at CB 285-286 at [29].
Ground 2 does not, however, restrict itself to a “failure to consider” claim and in particulars (e)(i) and (iii) reverts to the misapplication of the real chance test under ground 1, and to that extent ground 2 establishes jurisdictional error in the Authority Decision for the same reasons as are set out above in relation to ground 1. Insofar as the remainder of ground 2 is concerned it does not establish jurisdictional error in the Authority Decision because consideration was given generally to the matters otherwise the subject of ground 2. That is, however, probably of little moment because the matters in ground 2 in respect of which there has been a failure to establish jurisdictional error are subsumed by the jurisdictional error established in respect of ground 1 the grounds of which are wider than ground 2.
GROUND 3
Ground 3 of the Amended Judicial Review Application is as follows:
3. The IAA misconstrued country information and engaged in reasoning that was not open on the material, illogical or irrational.
a)In considering DFAT’s assessment that Turis in Kurram face a moderate risk of sectarian violence, the IAA noted, “there have been no further attacks against Turis in Kurram since that report was published seven months ago and DFAT also reports that there have been no attacks in Parachinar since early 2017”: CB p 285 at [26].
b) This is plainly incorrect, as the DFAT report states:
i. “Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017 [that]…killed more than 120 people”: DFAT Report at [3.26].
ii. “In the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. This compares to community estimates that 200 Turis were killed and 1000 injured in 2017”: DFAT Report at [3.26].
iii. “discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda”: DFAT Report at [3.26].
iv.“DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur”: DFAT Report at [3.26].
c) While the country information indicated a generally improved security situation in some respects, the IAA misunderstood and illogically overstated the degree of improvement in the security situation due to misconstruing the DFAT report.
d) The IAA’s misconstruction of the DFAT report materially affected its assessment of “the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence,” and tainted its dispositive conclusion that the applicant did not face a real chance of serious harm: at [33].
DXM19’s submissions
As to ground 3 DXM19 submitted that:
(a)in reasoning to the conclusion that DXM19 did not face a real chance of serious harm: CB 286 at [33], the Authority noted that while the 2019 DFAT Report assessed Turis in Kurram as facing a moderate risk of sectarian violence from militant groups, “there have been no further attacks against Turis in Kurram since that report was published seven months ago and DFAT also reports that there have been no attacks in Parachinar since early 2017”: at CB 285 at [26];
(b)the Authority’s statement that “DFAT also reports that there have been no attacks in Parachinar since early 2017” is clearly incorrect and resulted in findings that were not open on the material, illogical or irrational.
(c)the 2019 DFAT Report stated at [3.15]-[3.16]:
3.15Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of their Shi’a faith (see Shi’a):
•on 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar;
•on 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and
•on 24 June 2017 two devices detonated in a market in Parachinar.
The three attacks killed more than 120 people.
3.16… In the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. This compares to community estimates that 200 Turis were killed and 1000 injured in 2017. DFAT is unable to verify these claims. Turis reported significantly fewer road attacks in 2018, …
(d)the 2019 DFAT Report also noted “discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence…and greater presence of the Taliban and Al Qaeda”: at [3.19], and acknowledged “decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency”: at [3.26];
(e)it is plain that DFAT reported significant attacks against Turis in Parachinar throughout 2017 that continued into 2018 and assessed discrimination and violence towards Shia Tribes, particularly Turis, as remaining significant in Kurram (of which Parachinar is the capital) as at February 2019;
(f)the Federal Court explained in DGB18 v Minister for Home Affairs [2019] FCA 1034 at [83] per Wigney J:
The Tribunal's selection of country information and the weight that is given to it is undoubtedly a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. That, however, does not mean that the Tribunal's findings based on the country information are completely shielded from judicial review. Like other findings of fact, findings based on country information can be challenged on the basis that they were not open on the material, or were illogical or irrational. In some circumstances, albeit fairly extreme ones, a Tribunal's unreasonable selection or assessment of country information may provide the basis for findings of apprehended bias or legal unreasonableness. It was accordingly incumbent on the primary judge to engage with and consider the arguments that were apparently raised on the appellants' behalf in relation to the country information.
(g)the 2019 DFAT Report cannot logically be interpreted as stating that there have been no attacks in Parachinar since early 2017;
(h)while the Authority adverted to country information that indicated a generally improved security situation in some respects, it misunderstood and illogically overstated the degree of improvement in the security situation due to misconstruing the 2019 DFAT Report; and
(i)the Authority’s misunderstanding of the 2019 DFAT Report materially affected its assessment of “the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence,” which informed its finding that DXM19 did not face a real chance of serious harm: at CB 286 at [33].
Minister’s submissions
As to ground 3 the Minister submitted that:
(a)in ground 3 DXM19 contends that the Authority misconstrued country information, or engaged in reasoning that was not open on the material. DXM19 impugns the Authority’s statement, at CB 285 at [26], that “there have been no further attacks against Turis in Kurram since that … [2019 DFAT Report] was published seven months ago and DFAT also reports that there have been no attacks in Parachinar since early 2017”. DXM19 submits that this was clearly incorrect, having regard to the information contained at [3.15]-[3.16] of the 2019 DFAT Report;
(b)this ground must be rejected. Although the Authority’s use of the word “early” is somewhat inelegant, it does not lead to a conclusion of jurisdictional error. It is clear the Authority was aware of the attacks in Parachinar listed at [3.15] of the 2019 DFAT Report, because the Authority referred to those attacks at CB 283-284 at [22], fn 6 (listing the country information relied upon by the Authority). Given the Authority’s awareness of the dates of the attacks, the use of the phrase “early 2017” to describe events occurring as late as 24 June 2017 cannot lead to error. The Court should adopt a beneficial construction of the Authority’s reasons – not one concerned with “looseness in the language … nor with unhappy phrasing” Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 18 AAR 9; (1993) 115 ALR 1, FCR at 287 per Neaves, French and Cooper JJ; and
(c)further, nothing in the impugned statement is undermined by information from Kurram more generally. The Authority was concerned with whether there were attacks in Parachinar specifically, not in the wider Kurram.
Consideration – ground 3
The DFAT Report 2019 at [3.15]-[3.16] is set out, in part, at [33(c)] above, with the omitted part indicated by the ellipses. In full, the 2019 DFAT Report at [3.16] is as follows:
However, operations Zarb-e-Azb, Radd ul Fasaad and associated counter-terrorism activities (see Security Operations) significantly decreased the number and severity of attacks on Turis. In the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. This compares to community estimates that 200 Turis were killed and 1000 injured in 2017. DFAT is unable to verify these claims. Turis reported significantly fewer road attacks in 2018, as military operations have forced militants into the mountains. This has restored confidence within the community for individuals (although not large groups) to travel on the Tall-Parachinar road, although only between dawn and dusk.
Ground 3 proceeds upon an assumption that the 2019 DFAT Report at [3.16] refers to attacks on Turis in Parachinar. It does not, but rather refers to attacks on Turis generally, or at least in the broader Kurram. This is evident from a reading of the 2019 DFAT Report at [3.16] in its entirety, and a reading of other parts of the 2019 DFAT Report, which show that:
(a)the 2019 DFAT Report at [3.16] appears in a part of the 2019 DFAT Report headed “Turis” which refers to Turis living not just in Parachinar, but also in the “lower and upper Kurram” as well as at other locations in Pakistan: 2019 DFAT Report at [3.13];
(b)the 2019 DFAT Report at [3.15] is concerned with “[d]eaths from terrorist attacks in Kurram” and goes on to specifically refer to incidents in Parachinar in “early 2017”; and
(c)the 2019 DFAT Report at [3.16] refers to certain counter-terrorism operations and activities which:
(i)significantly decreased the number of attacks “on Turis”, and not as appears in the specific reference in the 2019 DFAT Report at [3.15] to “Turis in Parachinar”; and
(ii)included Operation Zarb-e-Azb which commenced in a different part of the former FATA (North Waziristan) and then spread to other parts of the former FATA: 2019 DFAT Report at [2.76], including the Kurram: 2019 DFAT Report at [3.16],
and is thus not referring specifically or singularly to Parachinar.
In the above circumstances it is evident that the assumption upon which ground 3 proceeds is misconceived and that ground 3 therefore cannot be made out and does not establish jurisdictional error in the Authority Decision.
To the extent that ground 3 alleges error in the Authority referring to “early 2017” as a period of time in which there had been “no attacks in Parachinar”: CB 285 at [26], it appears that the Authority might have been adopting what was said in the 2019 DFAT Report at [3.15] (see (b) above), but in any event, that alleged error fails as it constitutes an over-zealous seeking of error in the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [35] per Gummow ACJ and Kiefel J.
Otherwise, and in any event, the Court observes that:
(a)for the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: SZMDS at [130], [131] and [135] per Crennan and Bell JJ;
(b)SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ, and that for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 at [4] and [30] per Kenny, Kerr and Perry JJ;
(c)the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [40]-[55] per McKerracher, Griffiths and Rangiah JJ; and
(d)as is often observed in relation to country information the weight to be placed upon it is, generally speaking, a matter for the Authority to determine: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
Having regard to the principles set out immediately above it cannot be said that the narrow conclusion attacked in ground 3 was not one that might have been made on the available material or that it was illogical or irrational, and therefore ground 3 would not have been made out in any event (and noting that, as with ground 2, ground 3 is in any event subsumed by the wider ground 1 and the finding of jurisdictional error made in respect of ground 1).
CONCLUSION AND ORDERS
The Court has concluded that the Authority Decision is affected by jurisdictional error. Writs of certiorari and mandamus will accordingly issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 19 August 2019, and determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
The Court will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 27 May 2025
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