EBA19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 346
•12 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBA19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 346
File number(s): ADG 378 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 12 March 2025 Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – citizen of Pakistan – Pashtun Shi’a Muslim of the Turi tribe – whether failure to take into account relevant and cogent country information – whether findings legally unreasonable – whether unreasonable failure to consider matters raised – whether finding concerning applicant’s ability and willingness to travel and associated conclusion regarding risk of harm was made without evidence or was legally unreasonable – whether failure to consider claim concerning fear of harm whilst travelling and whether fear of harm was well – founded – whether material jurisdictional error Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) rr 11, 12
Evidence Act 1995 (Cth) s 56
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 473DC, 474, 476, 499
Law Society of South Australia, South Australian Legal Practitioners’ Conduct Rules (at 1 January 2022) r 19.6
Cases cited: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446; (2005) 228 ALR 28
AWG18 v Minister for Home Affairs [2020] FCA 744
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420
BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291
BOR15 v Minister for Immigration and Anor [2017] FCCA 152
BYH19 v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FCA 157
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
COA16 v Minister for Immigration and Border Protection [2018] FCA 475
CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
DZT18 v Minister for Home Affairs [2019] FCA 1639; (2019) 166 ALD 478
Gjonej v Minister for Immigration and Border Protection [2015] FCA 159
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
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 Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398; (2021) 96 ALJR 13; (2021) 395 ALR 403; (2021) 178 ALD 279
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
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 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
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 24 August 2023 Date of hearing: 24 August 2023 Place: Perth Counsel for the Applicant: Ms A Sibree Solicitor for the Applicant: Dentons Lawyers Counsel for the First Respondent: Mr P H D’Assumpcao Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 378 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBA19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 MARCH 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 11 October 2019.
2.A writ of mandamus issue requiring the matter 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 27 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”) filed on 27 July 2023 by the applicant, EBA19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Amended Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 11 October 2019. The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 27 August 2019 not to grant EBA19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
The Authority Decision appears in the Court Book (“CB”) at CB 234-249. The CB was marked as exhibit 1 at hearing.
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
HISTORY RELATED TO EBA19’S SHE VISA APPLICATION
The history relevant to EBA19’s SHE Visa application is as follows:
(a)EBA19 was born in 1990 in a village (“Village”) in the Kurram District in Pakistan, and is a Pashtun Shi’a Muslim and a member of the Turi tribe, who arrived in Australia on 21 August 2013 as an unauthorised maritime arrival: CB 82;
(b)on 1 December 2016 EBA19 made an application for a Protection Visa on the basis that he fears persecution if he returns to Pakistan due to his race, religion and tribal affiliation as a Pashtun Shi’a Muslim from the Village in a town (“Town”) in the Kurram District and as a member of the Turi tribe: CB 177; and
(c)EBA19 was interviewed by the Delegate (“Delegate Interview”) on 25 June 2019, and EBA19 made written submissions to the Delegate through his then lawyers: CB 145-171 (“EBA19’s Delegate Submissions”).
DELEGATE’S DECISION
In relation to EBA19’s claims the following findings of fact were made in the Delegate’s Decision at CB 179-181:
(a)EBA19 is a Pashtun Turi Shi’a Muslim from the Village in the Town;
(b)EBA19 is identifiable as a Shi’a Muslim from the Town from his name, identification documents and accent;
(c)in March 2007 EBA19 travelled from the Town to another place in Pakistan with his friend (“Friend”), but had to travel through Afghanistan as the road between the Town and the other place was closed due to ongoing conflict, and during this journey EBA19’s Friend was kidnapped and killed by the Taliban;
(d)EBA19 did not have a raised personal profile or political profile in Pakistan with the Taliban or any other Sunni militant group;
(e)from September 2009 to February 2013 EBA19 worked as a transport driver in the United Arab Emirates (“UAE”);
(f)EBA19 returned to Pakistan but left in 2013 due to the deteriorating and dangerous security situation for Shi’a Muslims in the Town area;
(g)EBA19’s wife, children, parents and siblings remain in the Village; and
(h)if EBA19 returned to Pakistan he would do so as a returnee from a Western country.
In relation to the situation concerning EBA19 as a Pashtun Turi Shi’a from the Town the following country information was considered in the Delegate’s Decision at CB 182-183:
(a)country information reports which confirmed a long history of sectarian attacks on Shi’a Muslims in the Town area, and noting that EBA19 was in the vicinity of these attacks;
(b)after a period of relative calm, several terrorist incidents in the first half of 2017 saw a spike in civilian deaths, and a roadside bomb attack in January 2018 in the Upper Kurram killed six members of the same family;
(c)in 2017 the Australia Department of Foreign Affairs and Trade (“DFAT”) assessed the risk of sectarian violence for civilians in the Kurram District, particularly in the Town, as being still higher than in other parts of Pakistan’s Federally Administrated Tribal Areas (“FATA”); and
(d)in the DFAT report dated 20 February 2019 entitled “Country Information Report – Pakistan” (“2019 DFAT Report”) Report assessed that Turi Pashtuns in the Kurram District still faced a moderate risk of sectarian violence from militant groups because of their Shi’a faith.
In the Delegate’s Decision it was found at CB 182-183 that:
(a)the underlying causes of violence in the Kurram District continue to exist;
(b)there was no evidence to suggest reconciliation between Sunni and Shi’a tribal leaders; and
(c)“there remains a moderate risk of sporadic sectarian attacks/conflict in the foreseeable future”,
and as such EBA19 faced a real chance of harm in the Kurram District because of the ongoing threat of sectarian attacks and the high number of casualties in recent attacks.
EBA19’s application for the SHE Visa was rejected in the Delegate’s Decision by reason of the fact that it was found that EBA19 did not face a real chance of persecution in all areas of Pakistan: CB 183-185.
The Delegate’s Decision was referred to the Authority for review on 30 August 2019: CB 195.
EBA19’S SUBMISSION TO THE AUTHORITY
Through his then lawyers EBA19 provided, in response to an invitation from the Authority: CB 198, a written submission on 20 September 2019 (“EBA19’s Authority Submission”): CB 210-218, in which EBA19:
(a)provided new information in respect to the death of his cousins and their death certificates;
(b)referred to various aspects of the country information in support of the Delegate’s Decision that EBA19 would be at real risk of serious harm upon return to the Town or Village; and
(c)referred to the particular risk to Turis which DFAT had assessed as “moderate”, the particular risks associated with his Town and Village, and the inability of the Pakistan government to provide protection to EBA19: CB 211-213, citing the 2019 DFAT Report at [2.72], [2.84], [3.17], [3.19], [5.2], [5.11] and [5.15].
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)affirmed the Delegate’s Decision not to grant EBA19 the SHE Visa, but did so for different reasons to those contained in the Delegate’s Decision;
(b)unlike the Delegate’s Decision, it was found in the Authority Decision that EBA19 could return to the Village, and that it was therefore unnecessary to consider whether EBA19 had a well-founded fear of persecution should he return to other parts of Pakistan;
(c)reached the same factual findings as were contained in the Delegate’s Decision, and in particular accepted that in March 2007, the Friend was kidnapped and killed on route to the other place: CB 240 at [21] and 241 at [26];
(d)accepted country information supporting the assertion that EBA19’s “area” was marred by extremist and sectarian conflict in the past, and that “in his country” EBA19 “felt unsafe”: CB 239 at [20];
(e)in relation to whether EBA19 held a well-founded fear of persecution:
(i)referred to the fact that religious intolerance is said to be growing in Pakistan, and that minorities, including Shi’a, faced societal discrimination and attacks from extremist groups;
(ii)that there are a number of armed Sunni extremists operating in Pakistan, including the Pakistani Taliban whom EBA19 claims to fear: CB 242 at [31], relying on, amongst other things, the 2019 DFAT Report; and
(iii)that armed groups in Pakistan have claimed several attacks on Shi’a in recent years, including in the former FATA areas, which include the Kurram District: CB 242-243 at [32], relying again on the 2019 DFAT Report;
(f)having referred to and accepted that context, accepted that EBA19 was identifiable as a Shi’a due to his accent and documentation, found that EBA19 would not face a real chance of harm as a Turi Pashtun Shi’a from Kurram District if he was returned to Pakistan for the reasons given at CB 243 at [33]-[34]; as follows:
33.Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the South Asian Terrorism Portal, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province. In 2017, deaths from terrorist attacks in Kurram District spiked. DFAT reported three attacks targeting in … [the Town] during the first six months of 2017, targeting Shia Turi’s due to their faith. The Pakistani military has sought to combat terrorism and extremist and sectarian violence by conducting a series of large scale, long-term security operations. These operations targeted terrorist groups, including the Pakistani Taliban (TTP) throughout the former FATA areas of Khyber Pakhtunkhwa, including in Kurram District. These operations have resulted in a significant reduction in the number of violent and terrorism related attacks in Pakistan. As part of these operations, the Pakistani military has implemented a 20 - 30 square kilometre security zone around … [the Town]. According to a 2018 report by the European Asylum Seeker Office, the security situation in Pakistan in improving and there has been a steady decline in the number of deaths. DFAT assesses that Shia in the former FATA areas of Khyber Pakhtunkhwa face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region.
34.I have accepted the applicant faced some difficulties and was exposed to widespread sectarian violence in the past including the death of a close friend. I accept that there are historic communal grievances at work in the Upper Kurram area, and that were a spike in attacks on Shia during 2017. I accept he would be identifiable as a Shia due to his accent and documentation. However, the weight of evidence before me indicates that while there were security problems like those the applicant described in the past, the Government of Pakistan has taken serious steps to reduce and prevent extremist violence throughout Pakistan, and especially in the former areas of the FATA, like Kurram District. Overall, the security situation in Kurram is said to have markedly improved in recent years due to this government intervention. A security zone around Kurram extends for 20 – 30 kilometres; this area includes the applicant’s village which is located very close to … [the Town]. I note that in his Submission, the applicant asserts that the security zone has restricted movement and access in his home area, and cites this as a reason he could not live there. This is somewhat puzzling; it is essentially an argument that there is too much security in his area. I observe that this line of argument is contrary to the central thrust of the remainder of his claims. I find this line of argument very unpersuasive. I conclude that the applicant would return to this area as a member of the majority tribe (Turi Pashtun) and the majority religion (Shia). He would be returning to reside on property his family owns, where members of his family including his parents, wife and children continue to reside, and where he lived previously in an area with markedly improved security. His family would be able to support his return and assist him with reintegration. I have not accepted that the applicant’s was of any interest to extremists at the time of his departure. In the circumstances I am not satisfied that the applicant would face a real chance of harm as a Turi Pashtun Shia from Kurram if returned to Pakistan.
(g)further found that during the time that EBA19 had previously lived in Pakistan, that he was “able and willing to travel to and from Kurram” and “[g]iven the widespread improvement in security in the Upper Kurram area, I am satisfied he would be able to return safely to his village”: CB 244 at [35]; and
(h)for the same reasons found that he did not have a well-founded fear of persecution in relation to the refugee provisions and was not satisfied that there was a real risk that EBA19 would suffer significant harm such as to trigger the complementary protection provisions of the Migration Act: CB 244-245 at [40]-[42].
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
The grounds of the Amended Judicial Review Application are set out below at [21] (ground 1), [40] (ground 2) and [46] (ground 3).
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, 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 (“Plaintiff S157”); 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.
It is well established that an applicant for judicial review under s 476 of the Migration Act 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 (“SZGUR”) 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 (“Plaintiff M64/2015”) at [24] per French CJ, Bell, Keane, and Gordon JJ.
Affidavit
EBA19 filed an affidavit of Debrah Maria Mercurio sworn on 27 July 2023 (“Mercurio Affidavit”), annexing copies of:
(a)the 2019 DFAT Report;
(b)“Direction No. 84 – Consideration of Protection Visa Applications” (“Direction 84”) given by the Minister on 24 June 2019 pursuant to s 499(2A) of the Migration Act; and
(c)a portion of the transcript of the recording of EBA19’s Delegate Interview.
The Minister objected to the admission of the portion of the transcript of the recording of EBA19’s Delegate Interview. The Minister submitted that:
(a)the evidence before the Delegate had to be considered in context;
(b)the context could not properly be considered where only a portion of the transcript of the Delegate’s Interview was being tendered, and that a careful review of the entire transcript was called for, citing Gjonej v Minister for Immigration and Border Protection [2015] FCA 159 at [21] per Allsop CJ (“Gjonej”); and
(c)EBA19 bore the evidentiary onus to prove his case, citing SZGUR at [67] per Gummow J.
EBA19 submitted that:
(a)the excerpts relied on were relevant to a confined issue, that is the Authority’s finding about EBA19’s readiness and willingness to travel within Pakistan;
(b)the recording of the Delegate Interview was available to the Authority (and to the parties to the Amended Judicial Review Application), and a portion only of the transcript of the Delegate Interview was being tendered to obviate the need to play the entire Delegate Interview, including irrelevant parts, to the Court;
(c)the Minister had access to the recording and was at liberty to draw the Court’s attention to any passages required to place the excerpts in context; and
(d)Gjonej dealt with a very different factual context involving an assertion that an applicant was not afforded the opportunity to properly put their case, and where therefore the entire transcript of the hearing would have been relevant.
At hearing the Court dismissed the Minister’s objection.
The Court notes that the portion of the transcript of the Delegate Interview sought to be relied upon by EBA19 is relevant only to ground 3 of the Amended Judicial Review Application.
The Court dismissed the Minister’s objection because:
(a)the evidence in the portion of the transcript of the Delegate Interview sought to be relied upon is relevant to ground 3 of the Amended Judicial Review Application and therefore admissible: Evidence Act 1995 (Cth), s 56(1);
(b)the evidence in the portion of the transcript of the Delegate Interview sought to be relied upon is relevant to a very narrow issue raised by ground 3 of the Amended Judicial Review Application about EBA19’s readiness and willingness to travel within Pakistan;
(c)the Minister led no evidence to establish that other parts of the transcript of the Delegate Interview were relevant, or established a context at odds with that part of the transcript of the Delegate Interview sought to be relied upon by EBA19, and it is notable that the Minister’s submissions did not point to any particular part of the transcript of the Delegate Interview which might possibly do so;
(d)where, as here, it is not established or seriously in contention that other parts of the transcript are relevant, tendering a portion of transcript of the Delegate Interview is consistent with the legislative fiats in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to:
(i)facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: s 190(1)(b);
(ii)make efficient use of judicial resources: s 190(2)(b); and
(iii)resolve disputes at a cost proportionate to the importance and complexity of the matters in dispute: s 190(2)(e); and
(e)Gjonej is distinguishable because in that case the entirety of the transcript was relevant: Gjonej at [21] per Allsop CJ (and also at [18] revealing that the Federal Court was taken through the “totality of the transcript” by Counsel for Mr Gjonej) because the challenge was to the opportunity afforded to an applicant to properly put their case before the then Migration Review Tribunal. Indeed in Gjonej there was no requirement for the Federal Court to make any ruling with respect to whether part or all of the transcript was admissible because the applicant seemingly accepted that, in the circumstances of the challenge made in that case, it was necessary for the entirety of the transcript to be referred to. That is a far cry from the very narrow purposes for which only a portion of the Delegate Interview is seemingly relevant to EBA19’s ground 3 in this case.
Ground 1
The ground
Ground 1 is as follows:
1.The Immigration Assessment Authority (IAA) failed to take into account relevant and cogent country information which impacted the Applicant’s claims for protection, and in particular:
1.1.the specific and higher risk presented to him as a member of the Turi Tribe;
1.2. the higher risk relating to the … [Town] area; and
1.3. failing to have regard to relevant information about the Government’s ability to protect the Applicant
EBA19’s submissions
EBA19 submits that the Authority was obliged to take into account certain relevant and cogent country information which impacted upon his claims.
In relation to the risk relevant to Turis EBA19 submitted that:
(a)the Authority failed to take into account the following relevant information from the 2019 DFAT Report in relation to refugee convention claims relating specifically to Turis, addressed at [3.13]-[3.26] of the 2019 DFAT Report, and in particular:
(i)at [3.14]:
The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’ a – especially in … [Town], rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan.
(ii)at [3.26]:
DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in …[Town] and Kurram agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith…
(b)there is no indication that the Authority referred or had regard at all to the specific risks presented to Turis in that section of the 2019 DFAT report (as distinct from the risk against Shi’as generally contained at [3.90] – [3.112] of the 2019 DFAT Report); and
(c)the significance of the difference between “low” and “moderate” risk is specifically defined in the 2019 DFAT Report at p 6, with low risk meaning “DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern” and “moderate” meaning “DFAT is aware of sufficient incidents to suggest a pattern of behaviour”: 2019 DFAT Report, p 6.
In relation to the increased risk in the Town EBA19 submitted that:
(a)whilst the Authority referred to the fact that Shi’a in the former FATA face a low risk of sectarian violence within the context of a moderate level of militant and criminal violence across the region (at CB 243 at [33]), the Authority failed to refer to the complete statement of that finding in the 2019 DFAT Report which contained the following qualifiers of greater risk in the Town at [3.111]:
DFAT assess that Shi’a in the former FATA face a low risk of sectarian violence within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram agency, particularly in …[the Town], is higher than in other parts of the former FATA.
and at [3.110]:
Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal…
In relation to the ability of the Pakistan Government to protect him, EBA19 submitted that:
(a)in making findings that the security situation relevant to EBA19 in the Town had improved, the Authority failed to have regard to the context of that security situation, and to take into account the Pakistani Government’s ability to control and protect its civilians from sectarian and generalised violence, as contained in the following passages of the 2019 DFAT Report:
(i)at [2.72] (emphasis added):
The underlying conditions for militancy…continued in 2018 and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.
(ii)at [5.1]:
DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.
(iii)at [5.2]:
Despite measures introduced to curb violence across the country under the NAP… successful prosecution for politically motivated or sectarian violence is rare…Significant reforms to the justice system have not yet occurred.
In relation to how ground 1 manifests jurisdictional error in the Authority Decision EBA19 submitted that:
(a)the Authority’s conclusion at CB 243 at [34] that EBA19 would not face a real chance of harm as a Turi Pashtun Shi’a from Kurram if returned to Pakistan was based on the following reasoning process:
(i)DFAT assesses that Shi’a in the former FATA areas face a low risk of sectarian violence (in the context of a moderate level of militant and criminal violence): at CB 243 at [33]; and
(ii)the security situation in Kurram had “markedly improved” in recent years due to government intervention: at CB 243 at [34];
(b)those findings constituted jurisdictional error because the Authority failed to take into account relevant and cogent information from the 2019 DFAT Report that:
(i)the “low” risk to Shi’a in the former FATA is qualified by the information that Shi’as face a higher risk of sectarian violence in the Town, close to EBA19’s Village: 2019 DFAT Report at [3.111];
(ii)Turis, in addition to being at risk because of their Shi’a religion, face increased risks assessed by DFAT as “moderate”, and especially in the Town being rendered “amongst the most vulnerable across Pakistan” due to the Taliban and Al Qaeda gaining significant ground in the former FATA: 2019 DFAT Report at [3.14] and [3.26]; and
(iii)the limitations disclosed in the report about the Pakistani Government’s ability to protect citizens such as EBA19 from violence and harm, which was relevant to the Authority’s finding that the security situation in EBA19’s home area had improved, and that EBA19 was not at risk of harm because of that improvement;
(c)errors of this kind may be categorised as a failure to consider relevant information: in this case relevant aspects of the 2019 DFAT Report; a failure to consider an integer of EBA19’s claim (being a Turi Pashtun Shi’a from Kurram District, and specifically the Village close to the Town), or making a finding that was legally unreasonable, being the finding that EBA19 faced a low risk of harm when such finding lacked an evident or intelligible justification in light of the country information which assessed the risk to Turis as moderate: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”)at [76] per Hayne, Kiefel and Bell JJ;
(d)as explained by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [35]-[36] per Kenny, Griffiths and Mortimer JJ:
35.The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there…
36.In that sense, to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptors or explanations of the manner in which the tribunal’s task has miscarried, but it is a miscarriage of the task which constitutes the jurisdictional error.
(e)this principle is given legislative expression by Direction 84 which relevantly provided:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
(f)even where the relevant report has been referred to elsewhere in the Authority Decision, a failure to consider relevant and cogent country information which impacted upon EBA19’s claims may constitute jurisdictional error: BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [33]-[38] per O’Callaghan J; DZT18 v Minister for Home Affairs [2019] FCA 1639; (2019) 166 ALD 478; BYH19 v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FCA 157;
(g)whilst it is clear that it is not necessary for a decision-maker to refer to every piece of evidence and every contention made by an applicant, that is not so where the evidence or contention which, if accepted, might have led the decision-maker to make a different finding of fact and ultimately find that EBA19 had a well-founded fear of persecution for a convention reason: ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46]; BOR15 v Minister for Immigration and Anor [2017] FCCA 152, (“BOR15”) at [41] per Judge Jones;
(h)in these circumstances, the Authority was required to have regard to and engage in a real and active way with the specific situation confronting not only Shi’a Muslims in the Kurram area, but specifically Turi Shi’as, and the increased risk of violence faced by them in the Town, rather than the FATA region more broadly;
(i)it also required the Authority to assess the information available as to the Government’s ability to protect its citizens and prevent violent attacks in Kurram District when making findings about whether “improvements” in the situation negated a well-founded fear on behalf of EBA19;
(j)in situations where the reasons disclose no process of weighing evidence and preferring some over the other, the absence from the recitation of country information of the material referred to is likely to be indicative of an omission and ignoring, not weighting and preference: MZYTS at [50] per Kenny, Griffiths and Mortimer JJ; BOR15 at [23]-[26] per Judge Jones;
(k)the Authority Decision here falls into that class of case where an inference arises that, if the emphasised passages from the 2019 DFAT Report had been considered, one could expect that would have been referred to in the Authority Decision even if it were then rejected: MZYTS at [52] per Kenny, Griffiths and Mortimer JJ; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33] per Katzmann, Griffiths and Wigney JJ; AWG18 v Minister for Home Affairs [2020] FCA 744 at [138] per Greenwood J;
(l)the following elements support such an inference:
(i)first, the Authority Decision failed to make express reference to those relevant parts of the 2019 DFAT Report identified above;
(ii)second, the Authority Decision referred to related country information, not qualified by reference to those relevant parts of the 2019 DFAT Report;
(iii)third, the Authority drew conclusions on country information which was, as a whole, inconsistent with the relevant parts of the 2019 DFAT Report which were not considered; and
(iv)fourth, to the extent the Authority’s conclusion was inconsistent with those relevant parts of the country information in the 2019 DFAT Report, there is no explanation or attempt to resolve that inconsistency or explain why relevant aspects were disregarded;
(m)those matters support a conclusion that even where the 2019 DFAT Report was referred to in a general sense and on other matters, the Authority failed to take into account these particular relevant matters;
(n)the specific risks relating to EBA19, not only as a Shi’a but as a Turi tribe member in the area of the Town, were at the heart of his claims for protection. There was a realistic possibility that the evidence contained in the country information report may have formed the basis for the Authority to conclude that the fear faced by EBA19 was well-founded, and was information which the Authority was obliged to expressly consider in its reasoning: BOR15 at [42] per Judge Jones; and
(o)as a result, the Authority miscarried in its task to determine EBA19’s claims.
Minister’s submissions
The Minister submitted that:
(a)reduced to its core, ground 1 takes issue with the weight and assessment given by the Authority to country information. That is patently merits review;
(b)it is accepted, that a failure to engage with cogent country information relevant to an applicant’s claim for protection can, depending on the facts, result in jurisdictional error;
(c)EBA19’s attempt to establish that kind of error in this matter does not fit within that very limited principle;
(d)all EBA19 has done is to cite a proposition and then complain about what the Authority did not do, rather than focussing on the findings it made by reference to the country information it expressly considered;
(e)those findings were predicated on an assessment of a range of country information. It referred to the following matters relevant to the security situation:
(i)“the overall security situation for all Pakistanis, including Pashtuns, has improved”: CB 241-242 at [29];
(ii)“religious intolerance is said to be growing in Pakistan, and minorities, including Shi’a, face societal discrimination and attacks from extremist groups”: CB 242 at [31];
(iii)it referred to terrorist attacks on religious minorities in 2017: CB 242-243 at [32]; and
(iv)“[o]verall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province”: CB 243 at [33];
(f)contrary to EBA19’s unspoken submission, the Authority’s assessment of the security situation was not limited to the 2019 DFAT Report. It included a reference to the European Asylum Seeker Office (“EASO”), at CB 243 at [33], which was said to reveal that the “security situation in Pakistan [was] improving and there [had] been a steady decline in the number of deaths”;
(g)earlier, too, the Authority said that it had “regard to the material given by the Secretary” CB 235 at [3], which necessarily included the Delegate’s Decision. The Delegate’s Decision recorded the following statement at CB 182 (citing the 2019 DFAT Report): “In 2019, DFAT assessed that Pashtuns (Turis) in Kurram District still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith”;
(h)accordingly, it is incorrect to say, as EBA19, that “[t]here is no indication that the [Authority] referred or had regard at all to the specific risks presented by Turis”: EBA19’s outline of submissions at [26]. The Authority was plainly alert to EBA19’s claim, and the country information relevant to it: see also the summary relating to Turis at CB 242 at [30] and the reference at CB 243 at [33] to the 2019 DFAT Report at [3.15] concerning terrorist attacks targeting Turis;
(i)in SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 (“SZQAU”) at [17] per Flick J the Federal Court, in the context of documents that were said to have been overlooked, which is relevantly apposite and applicable for present purposes, said:
Considerable care must thus be exercised before any conclusion should be reached that a particular document which is expressly referred to has not been properly taken into account or not been given such weight as the Tribunal considers appropriate…
(j)other aspects of EBA19’s complaint engage in an attempt to pick out specific aspects of country information which would support EBA19’s case, and it is said that the Authority overlooked them. Yet, in circumstances where the Authority extensively (and accurately) quoted and assessed a substantial amount of country information, which was not all one way, such an approach pressed by EBA19 invites merits review. The invitation urged by EBA19 includes the complaint about the alleged failure to deal with the Pakistani Government’s efforts to protect its citizens. However, that complaint is answered at CB 243 at [34], where the Authority said: “the Government of Pakistan has taken serious steps to reduce and prevent extremist violence throughout Pakistan, and especially in the former areas of the FATA, like Kurram District”;
(k)moreover, the four “elements” that are driven to support the inference that the Authority overlooked the information, do not advance EBA19’s ground at all. That is so for two basic reasons;
(i)first, while EBA19 correctly acknowledges that the Authority was not required to set “every piece of information”: WAEE, he then asserts that there was no “active” engagement with the risk presented to Turi Shi’as. This submission elides the attention given to this claim at CB 243-243 at [30]-[34], where the Authority acknowledged and evaluated the security situation – including Turis (at CB 243 at [33]) – but concluded that the situation had “markedly improved”;
(ii)second, it referred in some detail and, indeed in the context of EBA19’s specific claims, quoted the country information referred to above. There can be no doubt that the Authority engaged with the country information. Nor can there be any doubt that the Authority substantially quoted the effect of the country information. It is not as though the Authority’s reliance on information was so inadequate that the only inference was that it applied the wrong test. As a Full Court of the Federal Court emphasised in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [20] per Mansfield, Selway and Bennett JJ:
On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
(l)in this context, it follows that the inference that EBA19 invites the Court to make should not be lightly drawn: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [48] per Griffiths, White and Bromwich JJ; RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 (“RRFM”) at [30] per Nicholas, Yates and Burley JJ; and
(m)recalling the strict limits on the Court’s role on judicial review, particularly in relation to findings of fact: Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1, [5] and [9] per Gleeson CJ, [36] per McHugh and Gummow JJ, and [114]-[115] and [148] per Kirby J, ground 1 should be dismissed.
Consideration of ground 1
A consideration of ground 1 resolves itself to a question of whether the Authority considered a specific claim made by EBA19, and the specific situation in relation to that claim, of which it had specific evidence (in the form of country information).
It is trite to observe that:
(a)the choice of, and weight to be given to, country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[14] per Gray, Tamberlin and Lander;
(b)it is not too readily to be inferred that where the Authority has referred, sometimes in detail, to a particular country information report, such as the 2019 DFAT Report, that it overlooked or failed to consider other parts of that country information report: WAEE at [47] per French, Sackville and Hely JJ; SZQAU at [17] per Flick J.
EBA19 must do more than assert that a failure to mention a particular matter leads to an inescapable inference that it overlooked it: Carrascalao at [48] per Griffiths, White and Bromwich JJ; RRFM at [30] per Nicholas, Yates and Burley JJ.
It is the Authority’s function to respond to the claims that EBA19 advanced: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J, or as the High Court put it in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) ALD 304 (“Plaintiff M1/2021”) at [24] per Kiefel CJ, Keane, Gordon and Steward JJ to “consider” the review material, that is to “read, identify, understand and evaluate” it. In WAEE at [47] per French, Sackville and Hely JJ the Full Court of the Federal Court observed that:
…Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In EBA19’s Delegate Submissions EBA19 referred to:
(a)the ongoing difficulties he had in attending school each day when he returned to the Town from Peshawar: CB 148;
(b)the Taliban having an ongoing vendetta against Shi’as, including in EBA19’s home area: CB 148;
(c)the 2019 DFAT Report at [3.13] noting that Turis were concentrated in small geographic areas, particularly in and around the Town and the Kurram agency which rendered their “communities vulnerable to attack”: CB 151;
(d)referred to an earlier decision of the Administrative Appeals Tribunal (“AAT”) finding that Shi’as in the Kurram Agency, and “particularly in” the Town, face a real chance of persecution due to their religious beliefs: CB 152; and
(e)referred to another earlier decision of the AAT in which it was found that an applicant might return to the Town, and that if he did so there was a real chance he would be targeted because of his Shi’a religion and an imputed anti-Taliban political opinion because he was of Turi tribal ethnicity: CB 153.
In the Delegate’s Decision at CB 183 the Delegate found that there was a real chance of serious harm to EBA19 in the Kurram District, and although the Town or the Village were not specifically singled out, they are within the Kurram District, and so the real chance of serious harm must have applied to EBA19 if he were in the Town or Village.
In EBA19’s Authority Submission EBA19:
(a)expressly relied on EBA19’s Delegate Submission: CB 210;
(b)referred to the sustained violence against EBA19’s “community” over the last decade: CB 212; and
(c)submitted that country information suggested that EBA19 “would not be afforded state protection upon return to Pakistan including within his home area”: CB 213.
The 2019 DFAT Report was referred to in EBA19’s Delegate Submissions (which were expressly relied upon for the purposes of EBA19’s Authority Submissions) and by the Authority in the Authority Decision. The 2019 DFAT Report contained express material:
(a)at [3.14] referring to Shi’a and Turis being killed “especially in” the Town by Taliban and Al Qaeda, and hence being “amongst the most vulnerable across Pakistan” (emphasis added); and
(b)at [3.26] referring to Turis in the Kurram Agency, they “still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith” (emphasis added).
The Authority was obliged by reason of Direction 84 to consider the 2019 DFAT Report in its assessment of EBA19’s claims in making the Authority Decision.
The Authority Decision does refer to material from the 2019 DFAT Report, and from other sources, about the Kurram Agency, but it deals with EBA19’s claims by reference to that country information about the Kurram Agency generally. Even the footnotes refer to the 2019 DFAT Report by date and title only, without reference to any supporting paragraph therefrom. There is certainly no specific reference to the country information cited at [35] above which is of direct relevance to EBA19 and his claims, and in particular no consideration to the especial threat to Shi’as and Turis (and EBA19 is a Shi’a Turi) of being killed in the Town. It was a central integer of EBA19’s claim that he would be exposed to a real chance of serious harm if he returned to the Town or the Village. In the circumstances, that central integer was not considered or taken account into account in the Authority Decision. It ought to have been evaluated: Plaintiff M1/2021 at [24] per Kiefel CJ, Keane, Gordon and Steward; MZYTS at [52] and [54] per Kenny, Griffiths and Mortimer JJ, even if it were then to be rejected: MZYTS at [54] per Kenny, Griffiths and Mortimer JJ. In the circumstances the Authority Decision is therefore affected by error.
The error is material and therefore jurisdictional because there was a possibility that a different outcome could (not would) have ensued had the Authority considered and evaluated the country information cited at [35] above. That much is evident on the face of the materials in this case, but also from the fact that the AAT has evidently decided in similar circumstances that there was a real chance of serious harm to an applicant: see [32] above. It follows that ground 1 establishes jurisdictional error in the Authority Decision in relation to particulars 1.1 and 1.2.
In relation to particular 1.3 it is evident the Authority did consider the issue of the Pakistani Government’s ability to protect EBA19 generally: see, for example, CB 243 at [33]-[34], but again it did so without considering the specific integers of EBA19’s claims. Those integers were relevant to a consideration of the Government’s ability to protect EBA19 because, as with particulars 1.1 and 1.2, there was a possibility that a different outcome could (not would) have ensued had the Authority considered and evaluated the country information cited at [35] above, and in particular the especial threat to Shi’as and Turis (and EBA19 is a Shi’a Turi) of being killed in the Town. In the context of the Pakistani Government’s ability to protect EBA19 that threat is not addressed by referral to the establishment of a security zone around the Town or general information about the improvement in the security situation in the broader Kurram District. It follows that ground 1 establishes jurisdictional error in the Authority Decision in relation to particular 1.3.
Ground 2
Ground 2 is as follows:
2.The IAA made findings with respect to the Applicant’s submissions to it that were legally unreasonable, resulting in an unreasonable failure to consider the matters raised in the Applicant’s submissions.
EBA19’s submissions
In relation to ground 2 EBA19 submitted that:
(a)in addressing the weight and significance of EBA19’s Authority Submissions, the Authority observed that whilst they “had regard to the various arguments advanced on behalf of [EBA19] in the submission”: CB 235 at [4] they found at CB 236 at [8]:
…I note that to my mind there is a dichotomy at the heart of the submission. The submission purports to provide a fair and balanced assessment of the security situation in Pakistan in the Applicant’s home area and other parts of the country where the Applicant might be relocated. …Given that the submission only presents arguments against findings which are adverse, and supports findings that are favourable, it suggests to me that the submission is not the fair, balanced and objective summary of relevant country information that it purports to be.
(b)EBA19’s Authority Submissions did not purport to provide a fair and balanced assessment of the security situation in Pakistan. It was a submission prepared on behalf of EBA19 by his lawyers and at the Authority’s invitation;
(c)although the Authority was not required to afford EBA19 an opportunity to provide new information or put submissions to it: COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37] per Rares J; CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 at [50]-[51] per Banks-Smith J, it was required to exercise its statutory power to obtain further information from EBA19 pursuant to s 473DC of the Migration Act reasonably: Li at [29] per French CJ, [63] per Hayne Kiefel and Bell JJ, and [88] per Gageler J; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [82] per Robertson, Murphy and Kerr JJ;
(d)EBA19’s Authority Submissions in this case emphasised the importance of the very material (being EBA19’s membership of the Turi tribe, his heightened risk due to his location, and the inability of the Pakistani authorities to protect him: CB 211-212) which appears not to have been taken into account as addressed in Ground 1. An inference can be drawn from the dismissive comments regarding EBA19’s Authority Submissions and the absence of any reference to those matters, that the Authority dismissed its weight; and
(e)in dismissing the weight to be given to EBA19’s Authority Submissions on the basis that they were not something that they never purported to be (and, by its very nature as a “submission”, could not be expected to be), the Authority’s exercise of its discretion was legally unreasonable in the sense discussed in Li in that it lacked any evident or intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ, [28] per French CJ, and [105] per Gageler J.
Minister’s submissions
In relation to ground 2 the Minister submitted that:
(a)the relevant principles in relation to legal unreasonableness were conveniently summarised in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 (“BHL19”) at [131]-[138] per Wigney J (albeit in dissent, but not as to the statement of principles). One thing is clear: the Court’s role in determining whether a particular decision was legally unreasonable is strictly supervisory. It does not entail the Court embarking upon an assessment of the merits “under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness”: BHL19, at [132] per Wigney J;
(b)ground 2 is vastly underdeveloped in EBA19’s Authority Submissions. There has been no attempt to particularise which aspect of the Authority’s assessment is vitiated by legal unreasonableness, let alone to tie the alleged error to one of the two contexts in which legal unreasonableness has been held to apply: that is, a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, or an outcome focussed error;
(c)all EBA19 has done is to attack the Authority’s thought processes and evaluation of EBA19’s Authority Submissions at a global level;
(d)while the Authority was undoubtedly required to “consider and understand” EBA19’s Authority Submissions (see, in a different context, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398; (2021) 96 ALJR 13; (2021) 395 ALR 403; (2021) 178 ALD 279 (“Viane”) at [13] Keane, Gordon, Edelman, Steward and Gleeson JJ), where reasonable minds might differ on that issue, no error will be made out;
(e)in any event, the Authority’s reasoning in that regard so obviously contained an intelligible justification. It did not consider that EBA19’s Authority Submissions presented a balanced assessment of the country information, for the reasons it gave. Although no express finding was made as to the weight it ascribed to EBA19’s Authority Submissions, the Authority’s analysis at CB 236 at [8] suggests that it apportioned little weight to them. However, it cannot be said that it placed “no weight” or otherwise disregarded EBA19’s Authority Submissions; and
(f)as such, there is no basis for a conclusion that the Authority’s evaluation of EBA19’s Authority Submissions was infected by jurisdictional error in the manner alleged.
Consideration of ground 2
Typically, an administrative decision is only liable to be set aside upon judicial review if it involves jurisdictional error which affects the Authority’s exercise or purported exercise of power resulting in a decision exceeding or failing to exercise the Authority’s powers given under the relevant statute: Plaintiff S157/2002 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
EBA19’s submission on ground 2, and Authority Decision at CB 236 at [8], raises an important point. Lawyers have a duty when making submissions to a court to draw to the attention of the court any authority of which they are aware which is contrary to the case they are putting: Law Society of South Australia, South Australian Legal Practitioners Conduct Rules (at 1 January 2022) r 19.6. There is no reason why the same duty ought not to apply when making submissions to an administrative tribunal or body. Indeed, it may be more important in such circumstances where there is often no contradictor and where members of the administrative tribunal or body are sometimes not legally qualified. In this respect, what is said in the Authority Decision at CB 236 at [8] about this issue is, as matter of underlying principle, correct.
Ground 2 does not specifically identify what matters it alleges the Authority unreasonably failed to consider. The Authority asserts at CB 235 at [4] that it had regard to the various arguments advanced in EBA19’s Authority Submissions. There is no reason to doubt this, save for the errors identified in relation to ground 1. Ground 2 therefore does not add anything to ground 1, and ground 2 is not made out, save to the extent it duplicates ground 1.
Ground 3
Ground 3 is as follows:
3.The IAA erred in finding at [35] of the lAA’s decision that during the time that he formerly lived in Pakistan, he was able and willing to travel to and from Kurram, as a reason justifying the conclusion that the Applicant was not at risk of harm, in circumstance where there was:
3.1. no evidence to support that finding; and/or in the alternative,
3.2. the finding was legally unreasonable; and
3.3. the IAA failed to consider the Applicant’s actual claim as to being in fear of harm while travelling to and from Kurram, and whether that fear was well-founded.
EBA19’s submissions
In relation to ground 3 EBA19 submitted that:
(a)the only details of travel “to and from Kurram” addressed in the Authority Decision is that after completing the tenth grade, EBA19 attempted to study in Peshawar but after staying for seven days formed the view that the security situation was poor, and EBA19 returned home and enrolled in an institution in the Town: CB 239 at [18];
(b)in March 2007 EBA19 tried to travel to Peshawar with several friends in a convoy and the car in front of him containing his Friend was stopped by the Taliban and his Friend was kidnapped and killed: CB 239 at [18]. The Authority accepted that this incident occurred: CB 240 at [21]. Both of these incidents occurred before EBA19 left for the UAE and not during the period that he returned to Pakistan prior to fleeing to Australia. There was no evidence that EBA19 was “able and willing to travel” during this later period;
(c)the Delegate Interview and EBA19’s Delegate Submissions provide that, on the second occasion, the road to Peshawar was closed and EBA19 was required to travel through Afghanistan: CB 148 and 178; Mercurio Affidavit pp 80-83, Annexure DMM-3;
(d)EBA19 stated in the Delegate Interview that no one in his family travels outside of the Town for work or visits: “No, just at home”: Mercurio Affidavit p 82, Annexure DMM-3; his family remaining in Pakistan’s movement is “very limited” to their family home, and “[t]heir life is like they live in a detention centre”: Mercurio Affidavit p 83, Annexure DMM-3; see also EBA19’s Delegate Submission at CB 152;
(e)EBA19’s Delegate Submissions also referred to the fact that the Town has become a red zone, “does not preclude them from being attacked while travelling in the Kurram agency”: CB 152;
(f)EBA19’s Authority Submissions further provide that:
(i)“[t]he Applicant further instructs that most members of his religious, tribal and ethnic community are too scared to travel outside the Khyber Pakhtunkhwa, therefore either remain in their home area and limit their movements to try and avoid harm or flee abroad”: CB 213; and
(ii)“[w]hile the Applicant acknowledges that individuals from his home area are required to travel for work, given the instability in Kurram makes it difficult for them to work without facing harm. He instructs however they travel abroad, given it is not safe for them to travel to another area of Pakistan”: CB 216;
(g)the 2019 DFAT Report provided, relevantly to this issue, that “[t]ravel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions….Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile”: at [3.101]. This information was not referred to or taken into account by the Authority;
(h)there was simply no evidence to support a finding that EBA19 was “able and willing to travel to and from Kurram” in the sense used by the Authority, as a basis for the conclusion that he did not fear harm. On the two occasions he had travelled from the Town on the first he returned due to security concerns and on the second he was forced to travel through Afghanistan where his Friend was kidnapped and killed by the Taliban. These occasions were over a decade ago, in 2007 and earlier; and
(i)in the alternative, the finding was legally unreasonable in that it lacked an evident and intelligible justification as to how it was arrived at cannot be identified, or because the and outcome is arbitrary, capricious or plainly unjust: Li, at [28] per French CJ, [76] per Hayne Keifel and Bell JJ, and [105] per Gageler J. That is particularly so when considered in light of information that was before the Authority about EBA19’s fear of travel, the confinement of his family to their home, and relevant material in the country information reports about the dangers of travel to and from Kurram District.
Each of the above errors were material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as giving rise to a realistic possibility that the decision made in fact could have been different had the error not occurred.
Minister’s submissions
The Minister’s submissions in relation to ground 3 were as follows:
(a)this ground takes issue with a limited point at CB 244 at [35] in the Authority Decision. EBA19 contends that there was “no evidence” to support the finding that “even during the time he formerly lived in Pakistan, the applicant was able and willing to travel to and from Kurram”;
(b)a “no evidence” ground of review is traditionally understood as meaning “not a skerrick of evidence”: Viane at [17] per Keane, Gordon, Edelman, Steward and Gleeson JJ, citing Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446; (2005) 228 ALR 28;
(c)where there is some evidence or supporting material, and that evidence or material is probative of a finding of fact, a ground of review of this nature will not succeed. Such is the case here;
(d)putting to one side the emphasis which EBA19 places on the “two occasions” where he travelled, and the circumstances in which that occurred, it is clear that EBA19 travelled to Pakistan between March and July 2012 to get married: CB 30, 41, 46, 77 and 87; and
(e)there was some information upon which the Authority could base its finding of fact at CB 244 at [35]. It comprised EBA19’s own evidence: see also CB 240 at [24], the material relating to the marriage in 2012, and also his return to Pakistan in 2013 when he considered studying again. The Authority’s finding was both confined and open. This ground cannot succeed.
Consideration of ground 3
In order to succeed on a no evidence ground, EBA19 must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137, CLR at 356 per Mason CJ. Even “a skerrick of evidence” will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J, and that if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It is not required that evidence to support a finding be direct, and it may be found in material that permitted the Authority to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ.
In this case there was evidence that EBA19 travelled within and into and out of Pakistan prior to leaving for Australia in July 2013, including to:
(a)Peshawar in 2007 to study;
(b)the UAE to work between 2009 and 2012, from which he “continued to return to Pakistan”: CB 240 at [24]; see also CB 46 and 87; and
(c)the Kurram District (from the UAE) to get married in March 2012: CB 30, 41, 77 and 87.
In the above circumstances there was sufficient evidence for the Authority to conclude, as it did: CB 244 at [35], that EBA19 was able and willing to travel to and from the Kurram District. Having regard to the law as set out at [50] above, the no evidence particular (3.1) in ground 3 is not made out. Likewise, there is sufficient evidence to preclude a finding of legal unreasonableness on the basis that if probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in response to the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: 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 at [131] per Crennan and Bell JJ. In this case the evidence is sufficient to sustain the Authority’s finding that EBA19 was able and willing to travel to and from the Kurram District. The legal unreasonableness particular (3.2) in ground 3 is not made out.
The Authority did not fail to consider the claim made by EBA19 that he had a fear of harm while travelling to and from Kurram District. In the Authority decision the Authority says that it has had regard to the “various arguments” put by EBA19: CB 235 at [4], that it has “reviewed the range of evidence before me” CB 236 at [7], and has noted that EBA19’s Delegate and Authority Submissions “squarely address” the possibility that EBA19 could return to the Village: CB 236 at [7]. Having considered travel undertaken by EBA19: CB 240 at [24] and 244 at [35], and the security situation in the Kurram District: CB 243 at [33]-[34], the Authority concluded that EBA19 was able and willing to travel to and from the Kurram District: CB 244 at [35]. In the circumstances, the claim of a failure to consider in particular 3.3 of ground 3 is not made out.
It follows from [50]-[53] above that ground 3 is not made out.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)ground 1 of the Amended Judicial Review Application has been made out, and establishes material jurisdictional error in the Authority Decision;
(b)ground 2 of the Amended Judicial Review Application has not been made out, save to the extent that it duplicates ground 1; and
(c)ground 3 of the Amended Judicial Review Application has not been made out.
It follows, therefore, 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 27 August 2019, and to 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 fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 March 2025
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