EJC19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 473
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 473
File number(s): ADG 429 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 3 April 2025 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan of Turi ethnicity and Shi’a religion – whether error in interpreting or applying s 473DD of the Migration Act 1958 (Cth) in failing to find exceptional circumstances to consider new information – whether error in interpreting or applying the real chance test or the real risk test – whether failure to consider relevant considerations – Smart Traveller advice – information in two news articles post-dating Delegate’s Decision – whether error by reason of legal unreasonableness – whether merits review – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 5H, 5J, 36, 430, 473CB, 473DB, 474DD, 473EA, 473FB, 474, 476 Cases cited: AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162
Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594
BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412
CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1329
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) FCR 589; (2019) 373 ALR 569
Minister for Immigration & 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 Border Protection v CLV16 (2018) FCAFC 80; (2018) 260 FCR 482
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 214 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446
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 SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
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, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58; (2011) 193 FCR 57; (2011) 277 ALR 282; [2011] ATPR 42-357
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 307
Plaintiff M174 of 2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625
SZSZW v Minister for Immigration and Border Protection [2015] FCA 562; (2015) 150 ALD 465
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 1 September 2023 Date of hearing: 1 September 2023 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: AUM Lawyers Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 429 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJC19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.The Originating Application filed on 5 November 2019, as amended by an Amended Originating Application filed on 13 July 2023, be dismissed.
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
AMENDED JUDICIAL REVIEW APPLICATION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) filed by the applicant, EJC19, on 13 July 2023 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 21 October 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 2 September 2019 not to grant EJC19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
The Authority Decision appears in the Court Book (“CB”) at CB 169-186.
BACKGROUND
The background of the matter is as follows:
(a)EJC19 arrived in Australia on 13 July 2013: CB 44;
(b)on 1 August 2016 EJC19 was invited to apply for a Protection Visa, and on 9 December 2016 he applied to the Minister for the SHE Visa: CB 22-76;
(c)on 2 September 2019 the Delegate’s Decision was to refuse to grant EJC19 the SHE Visa and the matter was referred to the Authority on 5 September 2019: CB 125-142 and 147;
(d)on 21 October 2019 the Authority Decision was to affirm the Delegate’s Decision (albeit for different reasons from the Delegate): CB 169-186; and
(e)on 5 November 2019 EJC19 made an application for judicial review of the Authority Decision.
CLAIMS FOR PROTECTION
EJC19 made the following protection claims:
(a)that he was a national of Pakistan, an ethnic Pashtun Turi, a Shia Muslim, from a village near Parachinar in the Kurram District (“Kurram”) of Pakistan, an area where notoriously the Turi population (unlike many nearby Pashtuns) is opposed to the Taliban and other Sunni militants;
(b)he was born in or about the end of 1989: CB 3;
(c)he is married with a daughter. His wife, daughter, parents and siblings resided in EJC19’s home village: CB 61 at [3];
(d)after he finished school, EJC19 went to Peshawar, hoping to study, but was approached and questioned about his faith. He became afraid, and returned to his home village without enrolling in further study: CB 62 at [9];
(e)he lived in his home village until the end of 2011, when he went to Iran on a pilgrimage to holy sites: CB 61 at [4]. He remained in Iran and worked there until about September 2012, when he returned to Pakistan and married;
(f)after his return from Iran, he decided that the increasing danger meant it was not safe for him to remain in Pakistan. The core of his reason for seeking protection is set out at CB 62 at [10] as follows:
After I returned from Iran in September 2012, I realised the situation in Parachinar was becoming increasingly dangerous. At the time, many serious attacks had occurred against our religious community resulting in many deaths and serious injuries. I decided that I could not longer continue to live in constant fear of being subjected to serious harm and decided to flee Pakistan.
(g)he fled Pakistan in the middle of 2013: CB 61 at [4] and 62 at [10];
(h)he did not believe that he could be safe anywhere in Pakistan, being recognisable as a Shia Turi, and therefore as an opponent of the Taliban, throughout the country: CB 63;
(i)he therefore feared harm on this account, whether regarded as harm for reason of religion, particular social group, or political opinion: CB 93-96;
(j)EJC19 said at the interview with the Delegate (“Delegate Interview”) that his brother had been missing for two years, and was then found to have been in gaol. His brother was mistreated by the Pakistani authorities while he was detained, and as a result had problems of mental health, and could not speak about his detention. EJC19 believed that his brother suffered this treatment because he was Shia: CB 95 and 129; and
(k)EJC19 himself feared similar harm by the Pakistani authorities: CB 114.
DELEGATE’S DECISION
In the Delegate’s Decision the Delegate accepted the family and ethnic background claimed by EJC19, and the detention of his brother (though not that the brother had been imprisoned because he was Shia: CB 129-130), and found that EJC19 had a well-founded fear of harm in his home area: CB 131-132, but found that he could safely relocate and live in a place such as Islamabad, Rawalpindi or Lahore: CB 132-137.
SUBMISSION TO THE AUTHORITY
EJC19’s representatives made a written submission in support of his case on review by the Authority, and submitted some further information in support of the application for protection (“EJC19’s Authority Submission”): CB 155-165.
EJC19’s Authority Submission:
(a)was in part (and was accepted by the Authority as being) responsive to various precise points in the Delegate’s Decision, rather than being “new information” within the meaning of s 473DC: CB 170-171 at [4]-[8];
(b)sought an opportunity to comment if the Authority were minded not to accept the Delegate’s finding about a real chance of harm in Kurram: CB 156; and
(c)included new information about the situation in Pakistan.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the material given by the Secretary under s 473CB: CB 170 at [3], EJC19’s Authority Submission: CB 170 at [4], and new information in the form of a news article and opinion piece relating to extremist presence in Kurram: CB 171 at [8]. Under s 473DD the Authority did not, however, have regard to the following new information:
(i)the Department of Foreign Affairs and Trade (“DFAT”) Smart Traveller advice on Pakistan of 27 September 2019 (“Smart Traveller Advice”) as, contrary to the Authority’s Practice Direction, no extract or copy was provided to the Authority and in any event, the Authority already had other detailed information on Pakistan before it such that the Smart Traveller Advice did not satisfy s 473DD: CB 170 at [5]; and
(ii)quotes from articles in the Shia Post, as copies of the articles were not provided, the articles were not accessible, and the content of the articles was brief and not relevant to the issues arising on the review: CB 170-171 at [6];
(b)accepted that EJC19’s receiving country was Pakistan and that he was a practising Shia Muslim of Pashtun ethnicity and Turi tribe: CB 173 at [13]-[15], and found that Kurram was the area to which he would likely return: CB 173 at [15];
(c)based on country information accepted EJC19’s description of the violence in Kurram in 2007 and that as a result of the violence, EJC19 and his family had limited freedom of movement and their communities were imputed with anti-Taliban opinion: CB 174 at [18];
(d)found that there was no evidence that EJC19 had been involved in any active fighting against the Taliban or in any groups or activities in Australia that would particularly raise his profile in Pakistan: CB 174 at [18];
(e)accepted that EJC19 travelled to Peshawar to seek college admission but, based on his inconsistent and unconvincing evidence, did not accept that he was questioned or threatened because of his Shia faith, or that he returned to Kurram for that reason: CB 174 at [20];
(f)accepted that EJC19 took a religious pilgrimage to Iran in 2011-2012 and that he was eventually arrested, detained and later deported back to Pakistan by the Iranian authorities: CB 174-175 at [21];
(g)accepted that EJC19 departed to Australia in mid-2013 in part because of the security conditions in Kurram, but found that the evidence suggested that he had an economic motive to depart Pakistan: CB 174 at [21];
(h)with respect to EJC19’s claim that his brother was arrested and detained which was raised for the first time at the Delegate Interview, found this claim to be implausible: CB 175-176 at [23]-[25];
(i)after summarising country information, found that the chance of EJC19 being caught up in cross-border attacks in the reasonably foreseeable future was remote: CB 176-177 at [28]-[32];
(j)found that the Pakistani authorities have taken action to secure the safety of Shias and Shia Turis in the past and could do so in the future: CB 178 at [33];
(k)found that the country information did not point to any pattern of attacks affecting Shias in Kurram: CB 178-179 at [34]-[37] and to the contrary, found that there was a trend of decreased attacks against Turis and that trend was likely to continue: CB 179 at [37];
(l)whilst accepting that Turis face a risk of violence when travelling by road to Iran and Iraq for religious pilgrimages, as EJC19 did not claim that he wished to undertake another pilgrimage, it was not satisfied that he would indeed do so: CB 180 at [39];
(m)did not accept that EJC19 or his family faced any threats from the Frontier Corps or that military operations or personnel have any significant impact on EJC19’s family: CB 180 at [40]-[41], or that EJC19 faced a real chance of any harm from security based operations or personnel: CB 180 at [41];
(n)with respect to EJC19’s claim to fear harm as a returning asylum seeker from the West, found that he would be questioned upon return: CB 180-181 at [42], however, as he was of no adverse interest to the Pakistani government and Western influence was pervasive in many parts of Pakistan, found that he would not be subject to any additional risk or discrimination, and would be able to reintegrate into the community: CB 180-181 at [42];
(o)in relation to the claim to fear harm from the Sunni community, did not accept that EJC19 or his family had faced any specific threats from the Sunni community: CB 181 at [43];
(p)based on country information, found that Pashtuns were the second largest ethnic group in Pakistan and were well-represented in society: CB 181 at [44], and as such, found that there was not a real chance of EJC19 facing official discrimination or violence: CB 181 at [44];
(q)concluded that EJC19 did not meet the definition of refugee in s 5H and did not meet s 36(2)(a): CB 181 at [46]; and
(r)relying on its anterior findings, found that there was not a real risk of EJC19 facing significant harm, and that he therefore also did not meet s 36(2)(aa): CB 181-182 at [47]-[50].
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
There are three particularised grounds in the Amended Judicial Review Application which are set out at [12] (ground 1), [46] (ground 2) and [50] (ground 3) below.
The requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error, any error having to be material to be jurisdictional: 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.
Ground 1
Ground 1 is as follows:
The Immigration Assessment Authority (“the Authority”) made a jurisdictional error in my case in that it erred in interpreting or applying the law.
Particulars
(a)The Authority erred in interpreting or applying section 473DD of the Migration Act 1958 (“the Act”) in not finding that there were exceptional circumstances to consider the information in the Smart Traveller advice of 27 September 2019 “that the situation in Pakistan is volatile, and that there is a high threat of terror activity, kidnapping and sectarian violence”, and in refusing to consider that information. (CB 158; CB 170, [5])
(b)The Authority erred in interpreting or applying section 473DD of the Act in not finding that there were exceptional circumstances to consider the information in two news articles dated after the delegate’s decision and relating to attacks on Shias. (CB 158; CB 170-171, [6])
(c)The Authority had much detailed information, the credibility of which it did not reject, relating to attacks, apparently against Shias, including attacks in or near Kurram District, and resulting injuries and deaths. (CB 98-114, 131-132, 156-160, 162-165, and DFAT Country Information Report – Pakistan, 20 February 2019) It noted and did not dispute the assessment by DFAT that:
“…..attacks and violence against Turis could and may still occur and that Turis in Kurram in particular still face a moderate risk of sectarian violence. 'Moderate risk' is defined as DFAT being aware of sufficient incidents to suggest a pattern of behaviour although since 2017, DFAT has not reported specific incidences targeting Shia Turis in Parachinar or even in Kurram.”
(CB 179, [37])
In these circumstances, the Authority erred in interpreting or applying the term “real chance” required by sections 5H, 5J, and 36(2)(a) of the Act, and the term “real risk” in section 36(2)(aa) of the Act, shown by the Authority’s findings that vit [sic] was “not satisfied that the applicant would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District” (CB 181, [45]), and its finding “that the applicant will not face a real risk of significant harm.” (CB 182, [49], and [50])
EJC19’s submissions
EJC19’s submissions in relation to ground 1 are set out hereunder:
Particular (a) – Smart Traveller Advice
In relation to particular (a) EJC19 submitted that:
(a)the Authority is obliged to exercise its powers reasonably, in the sense considered in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 214 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”): Plaintiff M174 of 2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [21] per Gageler, Keane and Nettle JJ, citing Li. In determining unreasonableness the statutory context is important: Li at [67]-[72] per Hayne, Kiefel and Bell JJ, especially the substantive provisions for protection under s 36(2)(a) and (aa), fixing a real chance of persecution: ss 5H and 5J, or a real risk of significant harm: s36(2)(aa): “A real chance is one that is not remote, regardless of whether it is less or more 50 fifty per cent”: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”), CLR at 398 per Dawson J;
(b)in the context of its task under the Migration Act, including s 36(2)(a) and (aa), the Authority was unreasonable and erred in interpreting or applying s 473DD(a), in not finding that there were exceptional circumstances to consider the information in the Smart Traveller Advice by the DFAT “that the situation in Pakistan is volatile, and that there is a high [threat] of terror activity, kidnapping and sectarian violence”, and in refusing to consider that information: CB 158 and 170 at [5]; and
(c)although the specific focus of the information in the Smart Traveller Advice was directed to travellers, rather than to the Authority, it was by the same authority as the DFAT Country Information Report – Pakistan, dated 20 February 2019 (“2019 DFAT Report”), to which the Authority referred and on which the Authority apparently relied for factual material, and it post-dated the 2019 DFAT Report, being less than a month before the Authority Decision. The gravity of the opinion in the 2019 DFAT Report, quoted by the Authority: CB 170 at [5], was such that it was legally unreasonable for the Authority to close its mind to the Smart Traveller Advice. Even if the reference was made without supplying a copy of the Smart Traveller Advice, and even if that was not compliance with a practice direction by the Authority, the Authority was still required to exercise its power under s 473DD reasonably.
Particular (b) – news articles
In relation to particular (b) EJC19 submitted that the Authority similarly erred in interpreting or applying s 473DD in not finding that there were exceptional circumstances to consider the information in two news articles dated after the Delegate’s Decision and relating to attacks on Shias: CB 158 and 170-171 at [6]. Although these were brief news articles, as noted by the Authority, and they related to Lahore and to Sindh (outside Kurram), they were potentially important as indicating a recent, bloody and wide-reaching action by anti-Shia militants, and a possible upsurge of militant anti-Shia action, after the Delegate “had contended that Ashura passed without incident…. in … 2017 and 2018.”: CB 170, at [6]. It was therefore unreasonable for the Authority to close its mind to these news articles.
Particular (c) – “real chance” of relevant harm
In relation to particular (c) EJC19 submitted that:
(a)the crux of the Authority’s findings is that the situation in Kurram no longer was such that there was a real chance of relevant harm. This is contrary to the assessment by the Delegate;
(b)the Authority had much detailed information, the credibility of which it did not reject, relating to attacks, apparently against Shias, including attacks in or near Kurram and resulting injuries and deaths: CB 98-114, 131-132, 156-160, 162-165, and the 2019 DFAT Report. The Authority noted and did not dispute the assessment by DFAT: CB 98 and 179 at [37] that:
…..attacks and violence against Turis could and may still occur and that Turis in Kurram in particular still face a moderate risk of sectarian violence. 'Moderate risk' is defined as DFAT being aware of sufficient incidents to suggest a pattern of behaviour although since 2017, DFAT has not reported specific incidences targeting Shia Turis in Parachinar or even in Kurram…
(c)a non-exhaustive list of the information before the Authority included, for example:
(i)the submission at CB 98 that:
…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. 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. Accordingly, we submit that the applicant would be at a real risk of serious harm if forced to return to his home area…
(ii)DFAT reporting of “a strong extremist presence in the FATA [the former Federally Administered Tribal Areas]. The report specifically notes that in Khyber Pakhtunkhwa, including the former FATA, there was the highest number of terrorist attacks in Pakistan in 2018.”: CB 100, fn 13, 2019 DFAT Report at 2.69;
(iii)“DFAT assesses cycles of violence are likely to continue until these conditions change”: CB 100, fn 14, 2019 DFAT Report at 2.72;
(iv)the vulnerability of Turis around Parachinar: CB 100, fn 16, 2019 DFAT Report at 3.13;
(v)“the deteriorating security situation in Afghanistan, hence placing further pressure on Shias in Kurram.”: CB 100, fn 19, 2019 DFAT Report at 3.19;
(vi)UNHCR Guidelines: “Shi’ites are reported to be subject to violent sectarian attacks by such militant groups, which are reportedly able to act with impunity”: CB 102;
(vii)US Commission on International Religious Freedom: “extremist groups and societal actors continued to discriminate against and attack religious minorities, including … Shi’a Muslims. The government of Pakistan failed to adequately protect these groups.”: CB 103;
(viii)various sources reporting on attacks against Shias: CB 104-108;
(ix)the presence of the Taliban throughout Pakistan: CB 114;
(x)reports of attacks and deaths in Kurram in January, March and April 2017 and in January 2018, cited by the Delegate: “The number of deaths in Kurram District jumped 607 per cent between 2016 and 2017, from 27 people killed to 191...”: CB 131, fnn 30-34;
(xi)the submission at CB 132, fnn 37, 39, 40, that:
DFAT assesses that the risk of sectarian violence for civilians in Kurram District, particularly [EJC19]'s home of Parachinar, is higher than in other parts of the former FATA. …. Whilst large scale conflict has decreased, Sectarian groups, such as LeJ and Islamic State, have moreover publicised an ongoing intention to target residents of Parachinar owing to their Shia faith. In 2019, DFAT assessed that Pashtuns (Turis) in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith.
(xii)“[t]he DFAT report notes “according to the media, discrimination and violence towards Shia Tribes, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda.”: CB 156, fn 5, 2019 DFAT Report at 3.19, and see the reports cited in the rest of that submission: CB 156-160;
(xiii)the submission at CB 156, fn 8, 2019 DFAT Report at 2.97, that:
…it is apparent from the DFAT report there is still a strong extremist presence in Pakistan groups who hold strong anti-Shia views including the Tekreh-e-Taliban, Islamic State, Lashkar-e-Islam which is based in the Khyber Agency…
(xiv)October 2019 news article by the Daily Jang said to support the ongoing extremist presence in EJC19’s home area in recent times. The article relates to the capture of 29 “extremists” handed over to the government by “local tribes”: CB 178 at [35]; and
(xv)the reports of October 2019, including the report of suicide bombing, and the continuing risk in and around Parachinar: CB 163-164, and of the apprehension of the 29 terrorists: CB 165;
(d)in these circumstances, the Authority erred in interpreting or applying the term “real chance” required by ss 5H, 5J, and 36(2)(a), and the term “real risk” in s 36(2)(aa), shown by the Authority’s findings that it was “not satisfied that the applicant would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District”: CB 181 at [45], and its finding “that the applicant will not face a real risk of significant harm.”: CB 182 at [49] and [50]; and
(e)with such a history of volatile and frequently changing violence, unchallenged by the Authority, it was not open to the Authority, acting lawfully and applying the term “real chance” correctly, to dismiss a real chance of persecution or significant harm to EJC19 in Kurram. The findings of the Authority reveal an incorrect grasp of the “real chance” test under ss 5H, 5J, 36(2)(a) and (aa).
Minister’s submissions
The Minister’s submissions in relation to ground 1 are set out hereunder:
Particular (a) – Smart Traveller Advice
In relation to particular (a) the Minister submitted that:
(a)any attack on the Authority’s new information findings against the Smart Traveller Advice is misconceived because the Authority had already declined to consider the Smart Traveller Advice on the basis that it did not meet the requirements in its Practice Direction (because EJC19’s representative did not provide a copy of it). In other words, the Authority exercised its s 473FB(5) discretion to decline to consider that information. The Authority’s 473DD finding against the Smart Traveller Advice was therefore in the alternative. In those circumstances, EJC19 cannot establish materiality because there is no realistic possibility of a different outcome: MZAPC at [2] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and
(b)there is no error in the Authority’s application of s 473DD or other unreasonableness in any event. Contrary to EJC19’s submission, the Authority plainly did have regard to the date of the Smart Traveller Advice given it expressly recorded that it was dated 27 September 2019: CB 170 at [5]. It then found that it already had more detailed country information about Pakistan before it, including the 2019 DFAT Report, and preferred that over DFAT’s advice for Australian travellers in the Smart Traveller Advice. The Authority’s reasoning was entirely logical and reasonable, and it gave evident and intelligible reasons: Li at [76] per Hayne, Kiefel and Bell JJ;
Particular (b) – news articles
In relation to the news articles EJC19 contended that it was unreasonable for the Authority to find that there were no exceptional circumstances justifying their consideration in circumstances where the articles were “potentially important as indicating a recent, bloody and wide reaching action by anti-Shia militants, and a possible upsurge of militant anti-Shia action”: EJC19’s outline of submissions at [31]. This complaint rises no higher than impermissible merits review. The Minister contends that the Authority’s reasoning was entirely rational and reasonable because:
(a)as EJC19’s submission concedes, and as noted by the Authority at CB 170-171 at [6], the news articles were brief and about Lahore and Sindh, which were outside Kurram, and therefore not where EJC19 would return to;
(b)the Authority expressly considered EJC19’s submission about these articles and observed that “neither extract gives the impression that the information or source of information has at all been verified”; and
(c)it expressly recorded the articles were dated 9 September 2019, after the Delegate’s Decision: CB 170 at [6].
Particilar (c) – ‘real chance” of relevant harm
In relation to particular (c) the Minister submitted that:
(a)EJC19’s argument is best summarised by EJC19’s contention, at [36] of EJC19’s outline of submissions, that:
With such a history of volatile and frequently changing violence, unchallenged by the Authority, it was not open to the Authority, acting lawfully and applying the term “real chance” correctly, to dismiss a real chance of persecution or significant harm to EJC19 in Kurram Agency. The findings of the Authority reveal an incorrect grasp of the “real chance” test under sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Act.
(b)in effect, based on the country information it considered, EJC19 contends that the Authority’s findings were not open to it; and
(c)EJC19’s arguments again amount to a request for impermissible merits review and fail to demonstrate any jurisdictional error. The Authority’s findings were open to it because:
(i)they were based on the Authority’s comprehensive analysis of the country information: CB 176-181 at [26]-[44];
(ii)it made specific reference to the “moderate risk” passage in the 2019 DFAT Report: CB 179 at [37], and explained how “moderate risk” was defined by DFAT, and why, notwithstanding DFAT’s assessment of risk, it was satisfied that the security situation in Kurram had significantly improved in recent years to such a degree that there was no real chance of harm to EJC19. This Court and the Full Court of the Federal Court have previously held, in relation to very similar arguments, that notwithstanding DFAT’s assessment, it “always remains open to the Tribunal to make its own assessment of risk”: CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354 at [52] per Judge Driver; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594 at [124]-[133] per Murphy J;
(iii)it is well-settled that the selection and weight to be given to country information is a factual matter for decision-makers: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ. The Authority cannot be criticised for the country information it chose to rely upon, nor the weight it gave to particular sources of country information;
(iv)to the extent that EJC19 asserts error because the Delegate made different findings, that is of no moment because the Delegate’s findings do not control the reasons or findings of the Authority: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 (“BMB16”) at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J; and
(v)it cannot be inferred that the Authority misunderstood the legal tests with respect to well-founded fear of persecution, real chance of harm or real risk of significant harm given it refers to the correct provisions in the Migration Act and the statutory language: see CB 172-173 at [11]-[12] and 181-182 at [45]-[50].
Consideration - ground 1
Particular (a) – Smart Traveller Advice
Particular (a) of ground 1 asserts that the Authority erred in interpreting or applying s 473DD in failing to find that there were exceptional circumstances to consider the information in the Smart Traveller Advice of 27 September 2019, and in refusing to consider that information. EJC19’s submissions assert that the Authority acted unreasonably in interpreting or applying s 473DD(a) in those circumstances.
The principles in relation to legal unreasonableness were expounded by the High Court in Li and summarised in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J. The Court notes the following:
(a)the legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67] per Hayne, Kiefel and Bell JJ; Pandey at [41(f)] per Wigney J;
(b)a decision which lacks an evident and intelligible justification is unreasonable: Li at [76] per Hayne, Kiefel and Bell JJ. Where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [28] per French CJ and [105] per Gageler J; Pandey at [41(d)] per Wigney J;
(c)a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious or without common sense or plainly unjust, is, or can be inferred to be, unreasonable: Li at [28] per French CJ and [110] per Gageler J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [135] per Crennan and Bell JJ;
(d)a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ and [65]-[66] per Hayne, Kiefel and Bell JJ, and thus unreasonableness is not established simply because a court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ and [107] per Gageler J. It follows that legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Pandey at [41(j)] per Wigney J;
(e)the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Pandey at [41(j)] per Wigney J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined” at [52] per Gageler J, or requires something in “the realm of the extraordinary” at [70] per Gageler J; and
(f)regard can be had to the outcome of the decision under review, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law: Li at [105] per Gageler J; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [45] per Allsop CJ, Robertson and Mortimer JJ.
The Court further notes that for the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ.
The issue of unreasonableness can be resolved by asking whether the Authority provided an intelligible justification for refusing to exercise its discretion under s 473DC to have regard to the Smart Traveller Advice as new information. An affirmative answer to such a question will generally mean that there is no unreasonableness in the relevant administrative decision.
In determining not to have regard to the Smart Traveller Advice as new information the Authority did so because:
(a)there had been non-compliance with the Authority’s Practice Direction in that no extract or copy of the material was attached to EJC19’s Authority Submission; and
(b)in any event, the Authority had before it “detailed and thorough reporting on the situation across Pakistan and including from DFAT prepared for the specific purpose of assisting decision-makers in protection status determinations”: CB 170 at [5].
In determining whether there was a risk of harm to EJC19 in Pakistan, or in returning to Pakistan, the Authority had regard, not only to the 2019 DFAT Report, but to a range of country information specifically referred to in the Authority Decision, including the following:
(a)the South Asia Terrorism Portal;
(b)the Pakistan Institute of Peace Studies;
(c)the 2019 United States Commission on International Religious Freedom Report;
(d)information from the FATA Research Centre (being information referred to in the 2019 DFAT Report); and
(e)news reports from Pakistani press outlets: Dawn, Express Tribune, and International News.
The country information to which the Authority had regard in applying s 473DD(a) was country information which related to EJC19’s specific circumstances as an ethnic Pashtun Turi and a Shia Muslim from the Kurram in north-west Pakistan, and in particular from in and around Parachinar where there was a long history of conflict between the Turi and the Taliban and other Sunni militants. The Authority, quite properly, had regard to this more specific and tailored country information rather than having regard to the general advice, directed to Australian travellers (and therefore not to EJC19), contained in the Smart Traveller Advice. In any event, the Smart Traveller Advice cannot have added anything of any value as new information having regard to the nature of the country information to which the Authority had access, and to which it ultimately had regard.
In the circumstances, there was an adequate evidentiary basis for the Authority not to have regard to the Smart Traveller Advice as new information, and that decision was not one which no reasonable decision-maker could make, and it was therefore not lacking in a reasonable or intelligible justification: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. It follows that the Authority’s decision to not have regard to the Smart Traveller Advice does not establish error in the Authority Decision on the basis of unreasonableness as alleged in particular (a) of ground 1 of the Amended Judicial Review Application.
Nothing in particular (a) of ground 1 of the Amended Judicial Review Application, or in EJC19’s submissions in support thereof, points to an error in the Authority interpreting s 473DD(a).
In all of the above circumstances, particular (a) of ground 1 of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
The Minister argued, in the alternative, that if there were an error the error was not material, and therefore not jurisdictional. This was because the Smart Traveller Advice had not been admitted as new information by the Authority because it had not been provided to the Authority by way of extract or copy as was required by the Practice Direction. The Practice Direction at [30] (at CB 152) provided that:
If you provide or refer to new information such as country information reports or media articles, you must:
•attach a copy of that information or an extract of the part(s) of the information on which you rely, and
•identify the source of the information.
Section 473FB(5) provides as follows:
The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
In Minister for Immigration and Border Protection v CLV16 (2018) FCAFC 80; (2018) 260 FCR 482 (“CLV16”) at [42] per Flick, Griffiths and Perry JJ the Full Court of the Federal Court held that non-compliance with a Practice Direction was not determinative, and that the Practice Direction did no more than provide relevant administrative guidance to a referred applicant and their advisors, and, otherwise, imposes no obligation on the Authority: EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1329 at [90] per Farrell J. In the circumstances, s 473FB(5) provides an alternative basis for the Authority’s rejection of the new information. and no jurisdictional error on the part of the Authority arises merely because the Authority has applied the terms of the Practice Direction.
Particular (b) – news articles
The Authority was plainly aware of the date of the two news articles concerned, noting, as it did, that both news articles “post-date the delegate’s decision”: CB 171 at [8].
The Authority’s failure to find exceptional circumstances under s 473DD(a) in relation to the two news articles is unexceptional in circumstances where:
(a)the two articles were not about the area to which EJC19 was to return, but to other areas in Pakistan; and
(b)were brief and seemingly unverified.
In the circumstances the non-acceptance of the two articles as new information cannot establish jurisdictional error in the Authority Decision, and EJC19’s submissions in this regard amount to no more than seeking impermissible merits review, contrary to long-standing principle: Minister for Immigration & 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”).
Particular (c) – “real chance” of relevant harm
In the Authority Decision the Authority set out at not insignificant length its assessment of country information in relation to the risk of harm to EJC19 if he were to return to Pakistan (and in particular to Kurram): CB 176-180 at [26]-[39]. In assessing the country information the Authority noted numerous matters including the following:
(a)that the security situation in Pakistan had changed “significantly” since EJC19 had departed Pakistan: CB 176 at [26];
(b)there was an abundance of detailed country information before the Authority from a variety of credible sources concerning the killing of Shias in Pakistan from 2001 until 2018, including from the South Asia Terrorism Portal, the Pakistan Institute of Peace Studies and the European Asylum Seekers Office, plus other local news reporting and sources “that provide a balance of differing opinions”: CB 176 at [26];
(c)that regard had been had not only to EJC19’s oral and written evidence, including country information, but more broadly to more recent reporting including the 2019 United States Commission on International Religious Freedom Report: CB 176 at [27];
(d)that DFAT had indicated that since 2014 the Pakistani government had taken significant measures to address sectarian and other violence across Pakistan with a significant reduction in the number of violent and terrorism related attacks in Pakistan: CB 177 at [29];
(e)that the number of sectarian and terrorist attacks in Pakistan has been continually declining, even prior to the Pakistani government’s security operations, and that information from DFAT and the Pakistan Institute for Peace Studies indicated a nine year downward trend in terrorist attacks which continued in 2018, but that in the Khyber Pakhtunkhwa Province (which included Parachinar and its surrounds in the Kurram) the highest number of terrorist attacks and lowest number of decreased attacks in Pakistan had been reported in 2018 (that is, for that year): CB 177 at [30];
(f)specifically in relation to FATA and the Kurram, DFAT had information which it referred to from the FATA Research Centre indicated that there had been a significant decrease in the number and severity of attacks on Turis in 2015 and 2016, three large scale attacks against Shias in Parachinar, the last of which was on 24 June 2017, and that since June 2017 “there have been no further attacks on Shias reported in Parachinar or further major incidences affecting Shias in Kurram for over two years now”: CB 177 at [31];
(g)that in relation to the impact of the situation in Afghanistan on the Kurram reporting by Pakistan’s International News indicated that elders of the Turi and Bangash tribes said that they were not frightened by threats from the Islamic State in Iraq and the Levant “due to the presence of strong contingents of the Pakistan Army in the area which in their opinion would deliver a severe blow to the hopes of terrorists to make inroads in Pakistan”, and noted other security measures and controls including two red zones in and around Parachinar, card access to the red zones being required, forty percent of military fencing in Kurram being completed, thereby decreasing border permeability, and that the former tribal areas were now “fully under control” of Pakistan’s armed forces, and therefore the chance of EJC19 being caught up in cross-border attacks in the reasonably foreseeable future was remote: CB 177-178 at [32];
(h)that in 2017 and 2018 Pakistani news outlets “all reported on the peaceful observation of Ashura day processions across Pakistan, including in Parachinar, and that “authorities took significant and fool proof security measures to safeguard Shias during the processions”: CB 178 at [33];
(i)referred to the article concerning the capture of 29 “extremists” by local tribes and indicated that it did not consider the article indicative of the risk of harm to Shias or of any significant change in security conditions in Kurram in recent times, indicating that the article was “quite vague on several central elements”: CB 178 at [35];
(j)notes DFAT’s “moderate risk” assessment in relation to sectarian violence against Turis in Kurram, but notes that since 2017 “DFAT has not reported specific incidences targeting Shia Turis in Parachinar or even in Kurram” and that “other material … does not point to any pattern of incidences since 2017” and that more recent material was not, in the Authority’s view “indicative of any recent targeting of Shias” in Kurram: CB 179 at [37]; and
(k)the weight of evidence, including from the South Asian Terrorism Portal, the Pakistan Institute for Peace Studies, and DFAT, “does not support a trend in recent years of attacks on Turi Shias on the roads in and around Parachinar, Kurram or beyond”: CB 180 at [39].
The matters set out in the preceding paragraph were part of the rationale of the Authority in reaching findings that EJC19 did not meet the requirements for protection or complementary protection in s 36(2)(a) and (aa) because there was, respectively, not a real chance of serious harm or a real risk of his suffering significant harm if EJC19 were to return to Pakistan.
As is often observed in relation to country information the weight to be placed upon it is, generally speaking, a matter for the Authority to determine: NAHI at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
The Court must bear in mind that:
(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 & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; 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; SZMDS 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 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.
It must also be borne in mind that the Authority was required to conduct a review on the papers, and in that regard was required to review the Delegate’s Decision by considering the review material provided to it by the Secretary of the Department: s 473CB, and save as provided by s 473DD, without accepting or requesting new information and without interviewing EJC19: s 473DB(1). The weight to be placed upon information before the Authority, and the conclusions to be drawn from it as to matters of fact, were matters for the Authority: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The combination of factual material and country information considered by the Authority provided a proper basis for the Authority to draw the conclusions that it did, even if those conclusions were at odds with some information in the 2019 DFAT Report in relation to the security of Turis in Kurram. In the circumstances there was an adequate evidentiary basis for the Authority’s observations, and those observations were not observations (or findings) which no reasonable decision-maker could make, and were not therefore illogical or irrational (or lacking in an intelligible justification): SZMDS at [130]-[135] per Crennan and Bell JJ. In essence, what EJC19 seeks to have the Court do in relation to ground 1 – particular (c) is to remake the factual findings made in the Authority Decision, and to thereby undertake impermissible merits review: Wu Shan Liang. Bearing in mind the country information set out at [37] above it is manifest that the totality of the country information is such that reasonable minds might differ as to the conclusions to be drawn therefrom: SZMDS at [130]-[131] per Crennan and Bell JJ.
In these circumstances, nothing is to be drawn from the fact that different findings were made in the Delegate’s Decision in which the Delegate found “that there is a real and not remote chance that the applicant may be harmed by sectarian violence in his home district”: CB 132. That is because, subject to the other provisions in Pt 7AA, “a review under that Part involves a fresh consideration by the Authority of the decision” of the Delegate: BMB16 at [38] per Besanko J.
It follows from the above that particular (c) of ground 1 is not made out and does not establish jurisdictional error in the Authority Decision.
Conclusion on ground 1
All of the particulars of ground 1 of the Amended Judicial Review Application have not been made out and have been found not to establish jurisdictional error in the Authority Decision.
Ground 2
Ground 2 is as follows:
The Authority fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
(a)Further to particular (a) to Ground 1, the Authority did not consider the information in the Smart Traveller advice of 27 September 2019 “that the situation in Pakistan is volatile, and that there is a high threat of terror activity, kidnapping and sectarian violence”, and in refusing to consider that information. (CB 158; CB 170, [5])
(b)Further to particular (b) to Ground 1, the Authority did not consider the information in two news articles dated after the delegate’s decision and relating to attacks on Shias. (CB 158; CB 170- 171, [6])
EJC19’s submissions
EJC19’s submissions in relation to ground 2 are as follows:
(a)the Authority must consider each necessary and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”), CLR at 40 per Mason J, and an integer of the claim: SZSZW v Minister for Immigration and Border Protection [2015] FCA 562; (2015) 150 ALD 465 at [13]-[18] per Perry J. It must consider a material question of fact, squarely raised by the material before the Authority: SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 at [29] per Madgwick and Conti JJ, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58] per Black CJ, French and Selway JJ. Failure to do so is a jurisdictional error. An error about important information before the Authority, and a failure to have regard to it, can be an error of law and is a sign of jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41; Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362. The Authority must grasp and consider seriously the material before 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) 178 ALD 307 at [20]-[28] per Kiefel CJ, Keane, Gordon and Steward JJ; compare Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) FCR 589; (2019) 373 ALR 569 at [37]-[38] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ. The omission of a question or finding from the reasons under s 430 may show jurisdictional error: 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 [5] per Gleeson CJ, and [69], [75] and [82]- [84] per McHugh, Gummow and Hayne JJ. If an error may as a real possibility have affected the decision, it will be material, and therefore a jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ;
(b)further to particular (a) to Ground 1, and for the reasons there explained, the Authority erred in determining not to consider the information in the Smart Traveller Advice “that the situation in Pakistan is volatile, and that there is a high threat of terror activity, kidnapping and sectarian violence”, and in refusing to consider that information: CB 158 and 170 at [5]; and
(c)further to particular (b) to Ground 1, and for the reasons there explained, the Authority erred in determining not to consider the information in two news articles dated after the Delegate’s Decision and relating to attacks on Shias: CB 158 and 170-171 at [6].
Minister’s submissions
The Minster’s submissions in relation to ground 2 are as follows:
(a)EJC19 contends that the Authority failed to consider relevant considerations in the form of new information that he provided to the Authority. In order to make out this kind of ground, one must prove that the decision-maker was bound to take a consideration into account, and yet failed to do so: Peko-Wallsend, CLR at 39 per Mason J. Whether a decision-maker is bound to take a particular consideration into account is a matter of statutory construction; and
(b)the insurmountable hurdle for EJC19 with respect to this ground is that, far from demonstrating that the Authority failed to consider a relevant consideration which it was bound to take into account, the effect of the Authority’s adverse findings is that the Authority was in fact barred from considering that new information: DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 (“DBX16”) at [82] per Kenny J; AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 (“AFE18”) at [5] per Katzmann J.
Consideration - ground 2
The Authority is limited to a consideration of the review material forwarded to it by the Secretary of the Department: s 473CB, unless otherwise prescribed or permitted by other provisions of Pt 7AA. Here, the Authority (rightly for reasons set out in relation to ground 1) did not consider the new information the subject of this ground (and also the subject of particulars (a) and (b) of ground 1) because the Authority did not consider that there were exceptional circumstances for the purposes of s 473DD(a) permitting it to do so. In those circumstances the new information the subject of ground 2 could not be considered because the statute proscribed its consideration: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 at [62] and [76] per Mortimer and Jackson JJ; AFE18 at [5] per Katzmann J; DBX16 at [82] per Kenny J. The new information was not therefore a relevant consideration for the purposes of the Peko-Wallsend test. Ground 2 does not therefore establish jurisdictional error in the Authority Decision.
Ground 3
Ground 3 is as follows:
The Authority fell into jurisdictional error in that it was legally unreasonable.
Particulars
(a)Further or in the alternative to Particular (a) to both Grounds 1 and 2, the Authority was unreasonable not to consider the information in the Smart Traveller advice of 27 September 2019. (CB 158; CB 170, [5])
(b)Further or in the alternative to Particular (b) to both Grounds 1 and 2, the Authority was unreasonable not to consider the information in two news articles dated after the delegate’s decision and relating to attacks on Shias. (CB 158; CB 170-171, [6])
(c)Further or in the alternative to Particular (c) to Ground 1, and in the light of the material before it relating to violence against Turi Shias in Kurram Agency over a period of years, and to the volatility of the situation there, the Authority was legally unreasonable to find that it was “not satisfied that the applicant would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District” (CB 181, [45]), and “that the applicant will not face a real risk of significant harm.” (CB 182, [49], and [50])
EJC19’s submissions
EJC19’s submissions in relation to ground 3 are as follows:
(a)the Authority must give written reasons: s 473EA, and must act reasonably, in a legal sense: Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ. It must not make findings so unreasonable that no reasonable decision maker could so have acted, or which are otherwise unreasonable: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, or lacking a logically probative foundation. The Authority must act reasonably in its exercise of discretion: Li at [67]-[68] per Hayne, Kiefel and Bell JJ, including its power under the Migration Act to get further information;
(b)in determining unreasonableness, the statutory context is important: Li at [67]-[72] per Hayne, Kiefel and Bell J, especially the substantive provisions for protection under s 36(2)(a) and (aa), fixing a real chance of persecution: ss 5H and 5J or a real risk of significant harm: s 36(2)(aa). “A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent”: Chan, CLR at 398 per Dawson J;
(c)in relation to particulars (a) and (b) of ground 1 the Authority refused to consider some “new information” about Pakistan. For the reasons set out above in relation to particulars (a) and (b) to Ground 1, this was legally unreasonable. The reference in the submissions to the Smart Traveller Advice, and the news articles, were important as possibly grounding a different assessment of risk than that made by the Authority, especially as they were more recent than the 2019 DFAT Report. It was unreasonable for the Authority not to find exceptional circumstances under s 473DD(a) to consider this new information: CB 170 at [5]; and
(d)in relation to particular (c) of ground 1, the Authority’s critical findings that the situation in Kurram no longer is such that there is a real chance of relevant harm, contrary to the Delegate’s findings was a legally unreasonable finding.
Minister’s submissions
The Minister’s submissions in relation to ground 3 are as follows:
(a)ground 3 is simply a reformulation of the arguments already advanced in grounds 1 and 2. The Minister therefore relies on its submissions on grounds 1 and 2 as to why the Authority Decision was reasonable; and
(b)to the extent that this ground cavils with the reasonableness of the Authority’s findings that has not already been addressed above, the Minister emphasises that this Court should be on guard against an impermissible “slide into merits review” Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [23]-[30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, or “attempts to shoehorn arguments about the merits of the Tribunal’s conclusions into categories of reviewable error”: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58; (2011) 193 FCR 57; (2011) 277 ALR 282; [2011] ATPR 42-357 at [17] per Keane CJ, Mansfield and Middleton JJ, such as unreasonableness. The Minister submits that the Court should bear in mind the High Court’s description of the test for unreasonableness as “necessarily stringent”: SZVFW at [11] per Kiefel J, “extremely confined” at [52] per Gageler J, or as requiring something in “the realm of the extraordinary” at [70] per Gageler J. There is nothing fitting any of those descriptions in the Authority Decision. Rather, the Authority made a decision based on the probative material before it. The conclusions it reached were conclusions that a reasonable decision-maker could have reached. Ground 3 therefore fails to demonstrate any jurisdictional error.
Consideration - ground 3
Ground 3 is no more than a repetition of arguments advanced in relation to grounds 1 and 2, and fails to establish jurisdictional error in the Authority Decision for the reasons already given above in relation to grounds 1 and 2.
CONCLUSION AND ORDERS
The Court has concluded that EJC19 has failed to establish any jurisdictional error in the Amended Judicial Review Application.
It follows that there will be an order dismissing the Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 3 April 2025
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