EGY19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 240
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 240
File number(s): ADG 410 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 21 February 2025 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether Authority asked the wrong question – whether Authority failed to complete statutory task – whether risk of harm in reasonably foreseeable future considered – whether failure to consider claim that security situation in home area might decline – whether material jurisdictional error – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) rr 11, 12
Migration Act 1958 (Cth) ss 5H, 5J, 36, 474, 473CB, 473DD, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases cited: AFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 491
AIE15 v Minister for Immigration and Border Protection [2018] FCA 610
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412
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
DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529
EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152
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 Wei Rong 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, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
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
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
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 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
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
The Concise Oxford Dictionary of Current English (7th ed, Oxford: Clarendon Press, 1982)
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 29 August 2023 Date of hearing: 29 August 2023 Place: Perth Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr P D’Assumpcao Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 410 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 10 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 2 September 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
The originating application for judicial review (“Judicial Review Application”) was filed in the Adelaide Registry of this Court (then the Federal Circuit Court) on 30 October 2019 under s 476 of the Migration Act 1958 (Cth) (“Migration Act”).
In October 2022 the matter was allocated to the docket of the now presiding Judge in the Perth Registry of the Court, and the matter was then listed for a directions hearing on 22 November 2022. At the directions hearing on 22 November 2022 orders were made permitting, amongst other things, EGY19 to file and serve any amended originating application, further affidavits and an outline of submissions by 30 June 2023.
On 1 June 2023 EGY19, who had previously been self-represented, filed a Notice of Address for Service appointing lawyers to represent him.
On 13 June 2023 the Court made consent orders permitting, amongst other things, EGY19 to file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 14 July 2023.
On 13 July 2023 EGY19 filed an amended Judicial Review Application (“Amended Judicial Review Application”), an outline of submissions (styled as “Contentions of Fact and Law”) and the affidavit of a lawyer Jesheka Jeyaneshan sworn the same day, annexing a copy of the “DFAT Country Information Report Pakistan, 20 February 2019” (“2019 DFAT Report”).
On 2 August 2023 the Minister filed an outline of submissions.
The Amended Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 10 October 2019. In the Authority Decision the Authority 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 2 September 2019 not to grant EGY19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1.
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.
BACKGROUND
EGY19’s background and the She Visa application process can be summarised as follows:
(a)EGY19:
(i)is a national of Pakistan: CB 47;
(ii)arrived in Australia on 17 July 2013 as an unauthorised maritime arrival: CB 54 and 201; and
(iii)lodged the application for the SHE Visa on 12 December 2016: CB 201;
(b)on 11 June 2019 EGY19 attended an interview with the Delegate (“Delegate Interview”): CB 131;
(c)on 24 June 2019 EGY19 forwarded a written submission to the Delegate (“EGY19’s Delegate Submissions”): CB 163-185;
(d)on 2 September 2019 the Delegate’s Decision was to refuse to grant the SHE Visa to EGY19: CB 198 and 219;
(e)on 6 September 2019 the matter was referred to the Authority: CB 226;
(f)on 30 September 2019 EGY19 forwarded a written submission to the Authority: CB 246-251; and
(g)on 10 October 2019 the Authority affirmed the Delegate’s Decision: CB 255.
EGY19’S CLAIMS
EGY19 claimed to fear serious harm from Sunni militants as a Shia Turi from Kurram Agency (“Kurram”): Statutory Declaration, 22 November 2016 at CB 71-74.
In EGY19’s Delegate Submissions at CB 168 EGY19 submitted that (emphasis added):
We note that it was contended that the Pakistani Army are providing protection to the applicant's community and therefore the situation in the Kurram Agency has improved. With respect, we submit that many extremist groups continue to exist in Pakistan and have the capacity to subject minority groups including the applicant's community to serious harm. The fact the applicant's home area borders Afghanistan, where sectarian violence is currently rife, suggests it is plausible there is still a strong extremist presence in the area. We submit that given the extremist groups continue to perpetrate attacks in Pakistan suggests state protection is not effective. The fact Shia Turis continue to face at least a moderate risk of harm in the Kurram Agency is supported by DFAT, we submit that this information suggests the applicant would be at a real risk of serious harm upon return to his home area. Furthermore, we submit that given the ongoing nature of the attacks perpetrated against the applicant's community in the last ten years, it cannot be considered meaningful or sustained change has occurred in the Kurram Agency.
At CB 170-171 EGY19 expanded upon the above submission (emphasis added, footnotes omitted):
Information within the most recent DFAT Country Information Report for Pakistan signifies there is a strong extremist presence in the FATA. The report specifically notes that in Khyber Pakhtunkhwa, including the former FATA, there was the highest number of terrorist attacks in Pakistan in 2018. The report further notes that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.
With respect, we submit that given the infrastructure in the FATA has been ravished by the conflict and tribal set-up in the region, this information is very applicable to the situation in the FATA and therefore it is unlikely durable change will occur. Moreover, the report notes that the TTP [Pakistani Taliban] and its affiliated networks remained the greatest security threat to Pakistan, given it is the TTP the applicant fears, we submit that it is apparent that they pose an ongoing threat to the applicant.
…
Further, we submit that the situation in the Kurram Agency and FATA is influenced by surrounding areas, including due to sectarian violence in Afghanistan. The extremist presence in neighboring Afghan Province is high and is likely to increase given the deteriorating security situation in Afghanistan, hence placing further pressure on Shias in Kurram.
The above submissions relied on and referred to the 2019 DFAT Report.
In summary, EGY19 submitted that security in Pakistan, and in Kurram in particular, was not durable because:
(a)the conditions for militancy and sectarian violence persisted including weak law enforcement institutions, limited economic opportunity, poor infrastructure, and extreme religious ideologues continued to be present;
(b)sectarian tensions persisted in Kurram between Sunni and Shia groups;
(c)the Pakistani Taliban remained a security threat;
(d)violence has been cyclical in Kurram; and
(e)a decline in security in Afghanistan could increase Sunni militancy in Kurram.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)having first addressed itself to the question of whether certain information which post-dated the Delegate’s Decision was “new information” (as those words take their meaning from s 473DD of the Migration Act), the Authority summarised EGY19’s protection claims as follows at CB 257-258 at [10]:
(i)in 1994 EGY19 was born near Parachinar, in Kurram. He is from a Shia village but there are Sunni villages in the vicinity and sectarian tensions are high;
(ii)extremist groups would attack his village with grenades and guns from a vantage point in the nearby mountains. Many of his friends were killed and his family were too scared to leave their home. It was dangerous to attend school, to go out to get medical treatment or other supplies;
(iii)in 2010 he finished high school and moved to Rawalpindi to undertake a “pre-engineering” course. He was treated with suspicion and threatened by his fellow Sunni students;
(iv)in June 2012 he returned to his village, where the security situation remained poor;
(v)in July 2013 he departed Pakistan legally from Islamabad using his own passport;
(vi)he fears if he returns to Pakistan the Sunni community, the Taliban and other Sunni militant groups will target him because he is a Shia Pashtun and member of the Turi tribe from Kurram and because of his real and imputed anti-Taliban political opinion arising from these factors;
(vii)his fear of serious harm or death makes it difficult to subsist; and
(viii)he cannot relocate to another part of Pakistan as he would be easily identified as Shia and be killed;
(b)accepted that:
(i)EGY19 was a citizen of Pakistan and also accepted the other basic biographical details he gave: CB 259 at [14];
(ii)the country information supported the claim that from 2007 the security situation in EGY19’s district deteriorated, and that the district was geographically located within a certain proximity from Parachinar and near the Afghan border: CB 259 at [15]; and
(iii)there are at times tensions between Shias and Sunnis in that region, and that EGY19 knows people who have been killed by Sunni militants, and that his family felt unsafe to leave their village to access services such as schools and hospitals: CB 259 at [15];
(c)accepted specific aspects of EGY19’s claims about events whilst he was studying away from home, and while his claims were “vague” in some respects, it accepted that EGY19 felt unsafe around Sunni students: CB 259 at [16];
(d)referred to the submission provided to it – that is, after the Delegate’s Decision – at CB 259 at [17], and considered the claim that there was an escalation of threats against EGY19, which precipitated his departure from Kurram to Rawalpindi, but found that EGY19 left because he graduated from his studies, and not for the reasons claimed;
(e)considered an issue raised in the Delegate’s Decision, namely that EGY19 had a sister living in Islamabad. The Authority found that that fact undermined his evidence to the Delegate that his siblings never travel outside their home village for safety reasons: CB 259 at [18]. A similar finding was made in relation to EGY19’s parents’ travel: CB 260 at [19];
(f)made factual findings about the claims that are central to the grounds of the application. Its essential conclusions were set out at CB 263 at [35]-[36] as follows (footnotes omitted):
35.I accept the security situation in much of Pakistan remains fragile, and I also accept that the applicant will likely attend Shia mosques, publicly participate in Shia religious ceremonies and attend the market and other public places upon return to Pakistan. However, looking at all the information before me as discussed above, overall I am satisfied the situation in Parachinar, Kurram Agency, and KPP more widely, has improved markedly since the applicant was last there. DFAT notes, “Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings and reduced fear within the community in 2018.”
36.Based on the applicant’s personal circumstances and recent country information, I am not satisfied he faces a real chance of harm in Kurram Agency because of his profile as a Shia Pashtun member of the Turi tribe from Kurram Agency, because of any real or imputed anti-Taliban political opinion arising from these factors, because of the general security situation in the KPP, or at all.
(g)analysed EGY19’s claims against the country information as follows:
(i)considered that the country information before it indicated that the Pakistani government had introduced various measures targeting terrorist and criminal networks. These included Operation Zarb-e-Azb and the National Action Plan which commenced in 2014, other military operations in 2015 and 2016, and the introduction of Operation Raad-ul-Fasaad as the successor to Operation Zarb-e-Azb, in response to major attacks in 2017: CB 260 at [20];
(ii)noted that observers credit Operation Zarb-e-Azb, its successor Operation Raad-ul-Fasaad, and the National Action Plan with a significant reduction in the number of violent and terrorism related attacks in Pakistan, with these measures significantly decreasing the number and severity of attacks against Turis: CB 260 at [21] and 261 at [27];
(iii)took into account the 2019 DFAT Report which referred to the improved security situation in Kurram as a result of military operations, with the erection of fencing and other border control measures: CB 260-261 at [23];
(iv)said that although EGY19 claimed to fear serious harm from the Sunni community, he had indicated in the Delegate Interview that he was free to practise his religion, and he had not claimed that he or his family had ever been specifically threatened or harmed by the Taliban, other Sunni militants, the general Sunni community, or anyone else: CB 262 at [29];
(v)did not accept EGY19’s claims that the Pakistani authorities are unwilling and unable to protect him, in light of country information regarding security enhancements made by the Pakistani government in 2017 and 2018 in Pakistan generally and in Parachinar city: CB 262-263 at [30]-[32]; and
(vi)rejected the claim that EGY19’s religion, race and ethnicity would make it difficult for him to subsist in Pakistan, based on the evidence that EGY19’s family continue to reside on their family farm and grow a variety of crops, that EGY19’s father was able to fund his studies in Rawalpindi, and that EGY19 was able to fund his travel to Australia: CB 263 at [33];
(h)noted that the Delegate considered a claim of harm in Pakistan due to EGY19 being a failed asylum seeker but did not accept this claim on the basis of country information indicating that returnees are able to integrate into the community without issues: CB 263-264 at [37]-[38];
(i)ultimately, was not satisfied that EGY19 had a well-founded fear of persecution for any of the reasons claimed in Kurram: CB 264 at [39]. That finding rendered it unnecessary to consider whether EGY19 could relocate to another area of Pakistan: CB 264 at [39]; and
(j)the Authority considered the alternative criteria for the grant of the SHE Visa but found, for the same reasons as above, that EGY19 did not satisfy that criteria: CB 265 at [45]-[46].
CONSIDERATION
General observations
The Court is cognisant that on judicial review:
(a)the Authority’s fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; 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 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant's claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)it ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: 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 at [35] per Gummow ACJ and Kiefel J; and
(c)it must read the Authority Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J.
For present purposes it otherwise suffices to observe that the Court may set aside a decision of the Authority 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; 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 see now LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
Relevant statutory provisions
Section 5H(1) of the Migration Act states:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Section 5J(1) of the Migration Act states:
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Section 36(2)(a) and (aa) of the Migration Act states:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
Grounds
There are two grounds in the Amended Judicial Review Application which are set out below: ground 1 at [23] and ground 2 at [40].
Ground 1
Ground 1 is as follows:
1.The IAA asked itself the wrong question or failed to complete its statutory task by failing to assess the applicant’s risk of harm as a Shia Turi in Pakistan in the reasonably foreseeable future.
PARTICULARS
a. The IAA was required to consider the risk of serious or significant harm to the applicant as a Shi Turi from sectarian violence on return to Pakistan in the reasonably foreseeable future pursuant to s 5J(1) and s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
b. The IAA at [35] considered whether the applicant faced a real chance of harm as a Shia Turi in Kurram Agency, Pakistan based on the country circumstances at the time of decision.
c. The IAA found at [45] that the applicant did not face a real risk of significant harm in Kurram Agency for the same reasons as he did not face a real chance of serious harm.
d. The IAA failed to engage in the necessary exercise required by s 5J(1) and s 36(2)(aa) of the Act to consider the applicant’s risk of harm in Kurram Agency in the reasonably foreseeable future.
e. The error was material to the outcome of the review, and therefore a jurisdictional error.
Submissions
EGY19’s submissions
In relation to ground 1 EGY19 submitted that the Authority, having expressly accepted at CB 263 at [35] that the security situation in Pakistan was fragile, needed to consider if there was a sufficient risk of decline in that fragile security to give rise to a real chance of serious harm or significant harm to EGY19 in the foreseeable future. The Authority Decision does not reveal any such consideration because:
(a)the Authority did not correctly set out the law. The Authority did not correctly set out the requirement to consider the risk of harm in the reasonably foreseeable future anywhere in its reasons (see in particular CB 258 at [12]). The Authority made no conclusions that EGY19 did not face a real risk or real chance of harm in the reasonably foreseeable future;
(b)the Authority’s analysis does not address the foreseeable future. The Authority did not:
(i)express any conclusions as to the durability of the improvements in security;
(ii)refer to or address any of the relevant submissions; and
(iii)address the Delegate’s finding that security in Pakistan was not durable; and
(c)rather, the Authority’s consideration at CB 263 at [35] focused on the “improvement” in the security situation, without any consideration of a possible decline to security. In doing so, the Authority failed to complete its statutory task, or asked itself the wrong question.
Minister’s submissions
In relation to ground 1 the Minister submitted as follows:
(a)the starting point in analysing the content of this ground is to understand the findings of fact which the Authority made;
(b)the crucial findings appear at CB 263 at [35]-[36] of the Authority Decision (which are reproduced at [16(f)] above);
(c)the Authority’s statement that the situation in “much of Pakistan remains fragile” should be understood in the light of the later “overall” finding that the situation in EGY19’s area had improved “markedly” since he left. It was in this particular setting, and against the backdrop of up-to-date country information, that the Authority said that it was not satisfied that EGY19 faces a “real chance of harm”: at CB 263 at [36];
(d)the reference to “real chance” takes its meaning from the statutory prescription in s 5J of the Migration Act:
(i)this follows because a person only has a well‐founded fear of persecution if, among other things, “there is a real chance that, if the person returned to the receiving country, the person would be persecuted” for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion: Migration Act, s 5J(1)(b) read with s 5J(1)(a) of the Migration Act; and
(ii)this requirement of a “real chance” of persecution is a statutory implementation of the approach to refugee claims laid down in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”) at 389 per Mason CJ (see also the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at p 10);
(e)in relation to EGY19’s assertion that the Authority did not correctly set out the requirement to consider the risk of harm in the reasonably foreseeable future anywhere in its reasons, and that the Authority’s analysis does not address the foreseeable future:
(i)the notion of looking into the “reasonably foreseeable future” was endorsed by the High Court in Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
(ii)this requirement has been held to be a mandatory relevant consideration: DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529 at [22] per Perram J;
(f)it is true that the reasons do not include an express reference to the “reasonably foreseeable future”. But that is not the end of the matter. When read fairly, the Authority Decision should not be construed as having failed to pose and to answer the question because:
(i)in embarking upon the correct approach: see CB 258 at [12], the particular finding made by the Authority was that EGY19 would not face a real chance of harm, which is well-understood to involve a prospective assessment of future harm;
(ii)as such, the Authority’s determination that EGY19 would not face a real chance of harm for the reasons claimed necessarily entailed (and is well-understood to involve) what is to occur in the reasonably foreseeable future. It was neither relevant nor necessary for the Authority to make any specific finding as EGY19 would have it, for it was subsumed (and taken to be) addressed in the conclusionary finding at CB 263 at [36]; and
(iii)that is so regardless of the reference to the situation being “fragile”. The Authority’s position on the security situation embraced, according to its assessment of the country information, a situation that had “improved markedly” since EGY19 was last there, namely in 2013. In short, all the Authority was saying was that the country information that it assessed did not match EGY19’s claims. This sounded in a finding that EGY19 would not face a real chance of persecution; and
(g)thus, once the Authority found that EGY19 would not face a real chance of persecution, it became logically unnecessary to take the additional step of expressly considering what would happen in the reasonably foreseeable future. Such a question and answer were necessarily implicit in the Authority’s determination. It was one of those cases where the arbiter of fact rejected EGY19’s claims of a “foreseeable change in circumstances”: SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495 at [9] per Flick J, and that would mean that EGY19 did not face a real chance of harm in the future.
Consideration
Under s 5J(1)(b) of the Migration Act the real chance of persecution occurring is to be considered as “if the person returned to the receiving country”. This requires the decision maker to consider what may take place in the future, rather than what occurred in the past: Chan.
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 Wei Rong 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.
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: 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 at CLR at 282; Guo at ALR at 422.
In the context of a requirement to be satisfied with respect to the real chance that something may or may not occur, questions of weight and the assessment of the material before the Authority, and whether, for example, material is contradictory, are matters for the Authority: Wu Shan Liang, CLR at 281–282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The want of use of the phrase “reasonably foreseeable future” in the Authority Decision is not an error. As has been observed the question is not whether those words were employed in the Authority Decision but, rather, whether the Authority made the required forward looking assessment: AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 (“AIE15”) at [33] per Perry J; AFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 491 at [66] per Judge Driver.
Ultimately, the Authority was required to assess EGY19’s claims by reference to the reasonably foreseeable future, not just the immediate future or the present situation: AIE15 at [26] per Perry J; SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (“SZGHS”) at [2] per Allsop J; EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148 (“EMM19”) at [92] per Judge Forbes.
There is no doubt that the Authority canvassed some of the history of incidents of violence in and near Parachinar in recent decades, and particularly since 2007. The Authority (writing in 2019) at CB 259-263 referred to, for example:
(a)the security situation in Kurram deteriorating from 2007 when sectarian conflict broke out between Sunni and Shia tribes: at [15];
(b)accepting that Sunni militants travelled through EGY19’s home village to reach Afghanistan (which is less than 10 kilometres from the village): at [15];
(c)that Operation Zarb-e-Azb commenced in several Pakistan cities in 2014 targeting criminal and terrorist networks, and later that year a National Action Plan was established which targeted (in 2015 and 2016) a wide array of militant groups in the former Federally Administered Tribal Areas (“FATA”), including the Kurram: at [20];
(d)in response to “some major attacks in early 2017” Operation Raad-ul-Fasaad was introduced by the Pakistani Government as the successor to Operation Zarb-e-Azb: at [20];
(e)Operation Zarb-e-Azb and its successor Operation Raad-ul-Fasaad being credited with significantly reducing terrorism related attacks from 2015-2018, and that most casualties in the first half of 2015 were militants or security forces: at [21];
(f)that “[a]midst the trend of declining sectarian violence” there had been “no more significant attacks in Parachinar” since the three significant attacks in 2017: at [22];
(g)that DFAT had reported that recent military operations have adopted border control measures, such as fencing which had reduced the permeability of the Pakistan- Afghanistan border, and that a 20 to 30 square kilometre “red zone” had been established around Parachinar: at [23] and [31];
(h)that Shia Turis had historically not allowed the Taliban to access Afghanistan through their territory, and that they are accordingly imputed to hold anti-Taliban political opinions, and are targeted by the Taliban because of their ethnic, religious and tribal profile: at [25];
(i)that most Turis live in and around Parachinar and the Kurram in small geographic areas which “renders these communities vulnerable to attack”, and that between 2008 and 2014 they had faced “significant violence” at [25];
(j)for Shias in the Kurram, particularly in Parachinar, the risk of sectarian violence whilst “low” is higher than other parts of the FATA, but that Turis in Kurram “face a moderate risk of sectarian violence from militant groups, because of their Shia faith, which DFAT defines as meaning it is aware of sufficient incidents to suggest a pattern of behaviour”: at [26];
(k)Operation Zarb-e-Azb and its successor Operation Raad-ul-Fasaad and associated counter-terrorism activities have significantly decreased the number and severity of attacks on Turis (on the basis of 2017-2018 country information) and the community has sufficient confidence to travel on the Thall-Parachinar road (but only between dawn and dusk): at [27]; and
(l)that despite the three attacks in Parachinar in 2017 the country information indicates that there have been further enhancements to security in and around Parachinar, and that the Pakistani authorities are willing and able to provide protection: at [32].
The Authority’s conclusions on the above matters appear at CB 263 at [35]-[36] and are set out at [16(f)] above.
The difficulty with the Authority Decision is that it canvasses the history of the violence against Shias in Pakistan generally, and in Parachinar, Kurram and in the former FATA more specifically, to 2018, and then the lack of significant violence in and around Parachinar until the time of the Authority Decision in October 2019, but no more. There is a setting out of a history of such violence in and around Parachinar to a point in time where significant attacks occurred in the first half of 2017, and a finding that no violence of that significance occurred from June 2017 to October 2019, and a conclusion that therefore EGY19 does not face a real chance of relevant harm if he returns to Parachinar.
The Authority Decision did not engage in any objective determination as to what it considers might happen in the future in the Parachinar to which EGY19 might return. The Authority’s assessment is limited to what has occurred in the past, not what might occur in the future. The Minister’s submission that because the Authority has used the words “real chance of harm” necessarily entails future assessment is unhelpful. A security situation which has “markedly improved” so as to be “fragile” is hardly not indicative of a real chance of harm. 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. What was required of the Authority was an assessment of EGY19’s claims by reference to the reasonably foreseeable future, not just the immediate future or the present situation: AIE15 at [26] per Perry J; SZGHS at [2] per Allsop J; EMM19 at [92] per Judge Forbes. It is also noteworthy that the Authority’s obligation was to “consider” the review material, that is to “read, identify, understand and evaluate” it: 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.
That the Authority did not make the required forward looking or future facing assessment can be seen from its specific failure, for example, to engage with and assess EGY19’s specific claim that 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 Parachinar as recently as the first half of 2017 (that is less than two and a half years before the Authority Decision), where the history of cyclical violence is noted in the 2019 DFAT Report and goes back several decades. That background required the Authority to “evaluate” that claim and the cyclical nature of the violence in Kurram, rather than just observing that because of certain measures taken by the Pakistani authorities there had been no “significant” attacks since the last “significant” attack in 2017. The necessarily forward-looking evaluation of whether the fact that there had been no deterioration in the security situation since mid-2017 reduced the risk of harm from October 2019 onwards was especially required in circumstances where the security situation was described in the 2019 DFAT Report as “fragile”. Something is fragile if it is “weak” or “easily … shattered”: The Concise Oxford Dictionary of Current English (7th ed, Oxford: Clarendon Press, 1982), p 389, and the Authority needed to evaluate the real chance of harm to EGY19 in this context. It did not do so.
The failure to use the phrase “reasonably foreseeable future”, or some variant thereof, in the Authority Decision is not ordinarily an error, and certainly not where the relevant forward-looking assessment has been undertaken. But here, in the face of clearly articulated claims, the failure to use the phrase “reasonably foreseeable future”, or some variant thereof, gives rise to the inference that the Authority’s failed to undertake the relevant forward-looking assessment: WAEE at [47] per French, Sackville and Hely JJ.
In the above circumstances the Court has concluded that the Authority did not engage in the process of assessment by reference to the reasonably foreseeable future. Rather it did so by reference only to the present situation, and possibly the immediate future. In that regard it fell into error.
Ground 2
Ground 2 is as follows:
2.The IAA failed to consider the applicant’s submissions and/or claims and/or integers of his claim that the security situation in Kurram Agency could decline, and the applicant faced a real chance of serious harm or a real risk of significant harm as a Shia Turi in Kurram Agency, Pakistan as a result.
PARTICULARS
a. The applicant provided written submissions to the Primary decision maker that security in Kurram Agency was not durable.
b. The applicant specifically argued that a real risk of sectarian violence persisted in Kurram Agency in the reasonably foreseeable future because:
i. the conditions for militancy and sectarian violence persisted including weak institutions, limited economic opportunity, poor infrastructure, and extreme religious ideologues being present;
ii. sectarian divisions persisted;
iii. the Pakistani Taliban (TTP) remained a security threat;
iv. violence has been cyclical in Kurram Agency; and
v. a decline in security in Afghanistan could increase Sunni militancy and insecurity in Kurram.
c. A delegate of the Minister accepted the applicant’s submissions that security was not durable in Kurram Agency.
d. The IAA was required to consider the submission at particular (a) and/or at particular (b), either because they were:
i. substantial submissions;
ii. clearly articulated claims based on established facts or integers of the applicant’s claim to fear harm as a Shia Turi; or
iii. accepted by the delegate and referred to in the delegate’s reasons for decision.
e. The IAA failed to consider the applicant’s submission a particular (a), or the matters at particular (b).
f. The failure was material to the outcome of the review, and therefore a jurisdictional error.
Submissions
EGY19’s submissions
In relation to ground 2 EGY19 submitted as follows:
(a)the Authority was required to and failed to consider EGY19s clearly articulated submissions outlined above that the security situation in Pakistan would decline;
(b)the Authority must be inferred to have overlooked the submissions because it:
(i)did not expressly refer to EGY19’s post-Delegate Interview submission that the security submission was not durable. Nor did the Authority refer to, or consider, the underlying reasons for that submission;
(ii)made no specific findings directed towards the submissions. The Authority did not make any findings as to the likelihood the security would or would not deteriorate. The Authority made no findings as to:
(A)whether sectarian tensions persisted;
(B)whether the conditions for militancy persisted;
(C)whether Pakistani Taliban remained a security threat;
(D)the cyclical nature of violence in Kurram Agency; or
(E)the likely impact of instability in Afghanistan on Kurram Agency;
(iii)made no reference to the Delegate’s conclusions or analysis in relation to EGY19’s risk of harm in Kurram;
(iv)did refer to the post-Delegate Interview written submissions, in which the relevant arguments were made, but only in relation to other matters:
(A)whether EGY19’s sister resided in Rawalpindi: CB 259 at[18]);
(B)that his family lives outside the Parachinar red-zone: CB 262 at [31]; and
(C)that he works as a truck driver in Australia: CB 263 at [34];
(v)the failure to specifically identify the submission that the security situation would decline in circumstances where other parts of the post-Delegate Interview submissions were expressly identified and considered supports the inference that the submissions regarding decline in the security situation were overlooked; and
(vi)made a finding that the security situation was “fragile” at CB 263 at [35]. This was only the starting premise of EGY19’s submission. EGY19’s submission was that the degree of fragility was such that he faced a real chance of harm in the future. The Authority’s mere reference to the fragility of the security situation, without more, indicates it failed to consider the substance of the submission; and
(c)even if the Authority considered the submission that the security situation would decline in assessing the risk of harm generally, it failed to consider the specific aspects of the written submissions that:
(i)sectarian tensions persisted;
(ii)the Pakistan Taliban remain active;
(iii)the socio-economic conditions for militancy and sectarian violence persisted;
(iv)violence in Kurram has been cyclical;
(v)that events in Afghanistan could lead to a deterioration in security in Kurram,
and the failure to consider each submission was material.
Minister’s submissions
The Minister’s submissions in relation to ground 2 are as follows:
(a)this ground proceeds on the premise that the Authority did not engage with two submissions, both of which reduce to the assessment of country information;
(b)the contention in ground 2 arises in this way. EGY19 contended that the security situation was not durable, and sectarian violence persisted in Kurram. Then it is said that because the Delegate accepted these points, the Authority was required to expressly deal with them;
(c)this submission should fail for two reasons:
(i)first, as noted, the Authority was not bound by the Delegate’s Decision. It was required to make a determination on the merits for itself; and
(ii)second, the core of the submission fails to have regard to the established proposition that it is not obligatory on the part of the Authority to refer to each of the pieces of information, evidence or submissions which EGY19 has referred it to: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 (“Durairajasingham”) at [64]-[65] per McHugh J; WAEE. The fact that the Authority had not referred to particular pieces of information in the course of expressing its findings and reasons does not mean that it has taken no notice of that information;
(d)here, the Authority said at CB 263 at [35] that it “look[ed] at all of the information before [it]”, which must be taken to include the material provided by the Secretary. After all, the Authority said at CB 256 at [2] that it: “had regard to the material given by the Secretary under s 473CB of the Migration Act”;
(e)EGY19’s submissions assume that, merely because the particular submission was not expressly mentioned, it must have been overlooked. Cleary enough, EGY19 must do more than assert that a failure to mention a particular matter leads to an inescapable inference that it overlooked it: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ; RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [30] per Nicholas, Yates and Burley JJ;
(f)what happened in this case is self-evident: the Authority correctly captured, understood and dealt with EGY19’s claims. In so proceeding, it assessed those claims against country information. Then, in the result, it made a determination which was adverse to EGY19’s assessment of the security risk. A fair reading of the Authority Decision discloses no other conclusion: that is, the Authority was taken to have impliedly rejected EGY19’s submissions and underlying material relating to the security situation in Pakistan; and
(g)in support of that proposition, regard should be had to:
(i)the finding at CB 260-261 at [23], where the Authority found that there were significantly fewer road attacks as “militants have been forced into the mountains”; and
(ii)the further finding at CB 262 at [31] that there were tighter border controls and military fencing which had “decreased the permeability of the Pakistan – Afghanistan border” and that EGY19’s family were not confined to his village for security reasons as EGY19 had suggested.
Consideration
Ground 2 must be upheld in some respects for reasons not dissimilar to those set out at [35]-[37] above in relation to ground 1. The Authority did not consider issues in relation to the claims that the security situation in Pakistan would decline (that is, would decline in the future), based on the fragility or non-durability of the security situation in Pakistan, and in particular the security situation in and around Parachinar and Kurram. This was a core claim that the Authority was required to consider: the Authority’s function was to respond to the claims that EGY19 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 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ to “consider” the review material, that is to “read, identify, understand and evaluate” it. Here there is no evidence in the Authority Decision of an evaluation in respect of the claim that the security situation would decline, even in the broad sense required by Plaintiff M1/2021: Plaintiff M1/2021 at [23]-[24] per Kiefel CJ, Keane, Gordon and Steward JJ. That is sufficient in the circumstances to find error in the Authority Decision in relation to ground 2.
MATERIALITY
Had the Authority engaged in a process of assessment of whether there was a real chance of harm if EGY19 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; LPDT at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. Likewise, had it considered and evaluated the claims actually made that the security situation in Pakistan, and in particular in Parachinar and Kurram, would decline, there was a realistic possibility that a different outcome might have eventuated. The error made by the Authority was material, and therefore jurisdictional. It follows that the Authority Decision is affected by jurisdictional error.
CONCLUSIONS AND ORDERS
The Court has concluded that the grounds of the Amended Judicial Review Application have been made out, and that the errors thereby disclosed are material. 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 2 September 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 forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 21 February 2025
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