EMD19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 78
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 78
File number(s): ADG 445 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 29 January 2025 Catchwords: MIGRATION – Judicial review application – Immigration Assessment Authority decision – citizen of Pakistan – whether constructive failure to exercise jurisdiction by failing to engage with claims of cyclical violence in the Kurram District – whether material jurisdictional error – writs issued Legislation: Migration Act1958 (Cth) ss 5H, 36, 474, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BSU20 v Minister for Immigration [2020] FCCA 2718
BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
Dranichnikovv Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 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 & 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 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 v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
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 & Multicultural & Indigenous Affairs [2003] FCAFC 167
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 8 April 2024 Date of hearing: 8 April 2024 Place: Perth Counsel for the Applicant: Dr D Gang Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms J Battiste Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 445 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 16 October 2019.
2.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the Delegate of the First Respondent made on 23 August 2019, and to determine it according to law.
3.The First Respondent have leave to uplift the written outline of submissions filed on 2 April 2024, and that written outline of submissions be removed from the Court’s records.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) filed by the applicant, EMD19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 16 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”) not to grant EMD19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
The Court has before it the following materials:
(a)the Amended Judicial Review Application filed on 14 March 2024;
(b)EMD19’s affidavit filed on 12 November 2019 annexing a copy of the Authority Decision;
(c)the Court Book (“CB”) filed on 4 March 2020 which was marked as Exhibit 1 at hearing;
(d)EMD19’s outline of submissions filed on 19 March 2024 (“EMD19’s Submissions”);
(e)the Minister's outline of submissions filed on 5 April 2024 (“Minister's Submissions"); and
(f)the transcript of the hearing before the Court on 8 April 2024 (“Transcript”).
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
The background to the Amended Judicial Review Application is as follows:
(a)EMD19 is a 31-year-old male who is a practising Shia Muslim of Pashtun ethnicity from the Bangash Tribe, formerly residing in a village in the Kurram District (formerly the Kurram Agency) in Pakistan: CB 13 and 69;
(b)EMD19 arrived in Australia on 20 August 2013 as an unauthorised maritime arrival: CB 52;
(c)on 9 December 2016 EMD19 applied for the SHE Visa under the Migration Act: CB 32;
(d)EMD19 attended an interview with the Delegate on 9 July 2019 (“Delegate Interview”) and provided written submissions to the Delegate after the Delegate Interview: CB 117-139;
(e)on 23 August 2019 the Delegate’s Decision was to refuse to grant EMD19 a SHE Visa: CB 145-161;
(f)the matter was referred to the Authority on 27 August 2019: CB 163;
(g)on 16 September 2019 and 14 October 2019 EMD19’s representative provided written submissions to the Authority: CB 184-188 and 238-241;
(h)on 16 October 2019 the Authority affirmed the Delegate’s Decision to refuse to grant EMD19 a SHE Visa: CB 251-267;
(i)on 12 November 2019 EMD19 filed an application for judicial review: CB 1. The sole, unparticularised, ground of review was that: “The [Authority] made a jurisdictional error in my case”: CB 4;
(j)the matter was docketed to the docket of the presently presiding Judge in early November 2022, and on 22 November 2022 the Court made orders (“November 2022 Orders”) including the following:
3.Orders 2-7 and 9 of Registrar Parkyn’s orders of 22 January 2020 be set aside and in lieu thereof orders that:
(a)the Applicant file and serve any amended originating application, further affidavits and an outline of submissions by 25 August 2023;
(b)the First Respondent file and serve any amended response, affidavits in reply and an outline of submissions by 15 September 2023; and
(c)the matter be listed for final hearing by video link on 10 October 2023 at 1.00pm AEDT/12.30pm ACDT/10.00am AWST before Judge Lucev.
(k)in September 2023 EMD19 emailed Chambers seeking an adjournment of the hearing on 10 October 2023, and on 11 September 2023 the parties were advised by the Court that, due to reasons associated with judicial hearing workloads and case management, the hearing on 10 October 2023 was to be relisted to 8 April 2024 (on which date the hearing did proceed);
(l)on 12 March 2024 orders were made amending the November 2022 Orders, and granting EMD19 leave to file the Amended Judicial Review Application by 14 March 2024 and an outline of submissions and any further affidavits by 19 March 2024; and
(m)EMD19’s Amended Judicial Review Application dated 14 March 2024 contains the following ground of review:
The Immigration Assessment Authority constructively failed in its jurisdiction by failing to engage with the Applicant’s claim that violence in Kurram is cyclical (BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs [2020] FCCA 2718).
PROTECTION CLAIMS
The protection claims made by EMD19 were as follows:
(a)EMD19’s claims for protection arise from him being a Shia Muslim of Pashtun ethnicity from the Bangash tribe with a home area near Parachinar in the Kurram District: CB 118-139. EMD19’s claims also relied on:
(i)his education;
(ii)his father being a person who was a well-known and wealthy business owner and who did government and development contracts; and
(iii)his being a returnee from the West;
(b)by reason of the above matters EMD19 said that:
(i)he feared the Taliban and associated extremist groups in Pakistan and the Sunni community as he would be considered their enemy and be imputed with an opposing political opinion: CB 123;
(ii)he was easily identifiable as a Shia from Parachinar and Kurram District given his prayer rituals, name, accent and identification documents: CB 72;
(iii)in 2008 he had been near a bomb blast near Eidgah Market in Parachinar where 60 people had died and he had seen the corpses: CB 70;
(iv)in 2009-2012 he had to travel to study (to Islamabad) because educational opportunities in his home area were limited due to Taliban attacks. During his studies, he and his friends were harassed and threatened by teachers and classmates due to their religion and area of origin: CB 70;
(v)in 2009 whilst travelling between Parachinar and Peshawar (on return to Islamabad), when he crossed over the Afghanistan border he was shot at, he believed by the Taliban: CB 70;
(vi)in 2010 his father was shot at when travelling from the Lower Kurram to home and was grazed by a bullet: CB 70;
(vii)in 2011 he was riding his motorbike in Islamabad when he was run into by another motorcycle and was hospitalised for two days. He believed it was a targeted attack due to the ridicule he had been receiving: CB 71;
(viii)in 2011 he was at the Sandi Bazaar in Rawalpindi with Shia friends from Parachinar. Three men tried to kidnap them but they ran away. A friend of EMD19 had previously been kidnapped in Peshawar. This resulted in his limiting his movements: CB 71;
(ix)in Islamabad, despite practising his faith being important to him, he feared he would be killed when he went to the Imambargah as community members had died when places of worship had been attacked or Shias had been kidnapped or shot on their way to prayer. As a result, he returned to Parachinar: CB 71;
(x)in late 2012 he was at the Turi Market when an explosion occurred. He was not injured but he witnessed others who were killed and injured: CB 71; and
(xi)his brother was on the Kashimi Highway in Islamabad when a group attempted to kidnap him but he escaped when others assisted him: CB 71; and
(c)EMD19 further claimed that in 2012 in Parachinar his motorbike was hit by a car and he was seriously injured and he received 45 stitches but he was unsure if he was specifically targeted: CB 71.
AUTHORITY DECISION
In the Authority Decision the Authority, based on EMD19’s profile and country information, was not satisfied that for the foreseeable future EMD19 had a real chance of facing harm of any kind if he returned to Pakistan to reside in the Upper Kurram he and did not meet the requirements of a refugee under ss 5H(1) and 36(2)(a) of the Migration Act and, for similar reasons, he did not meet the requirements for complementary protection under s 36(2)(aa) of the Migration Act: CB 262-267 at [31]-[46].
THE AMENDED JUDICIAL REVIEW APPLICATION
Sole ground
The sole ground of the Amended Judicial Review Application is that:
The Immigration Assessment Authority constructively failed in its jurisdiction by failing to engage with the Applicant’s claim that violence in Kurram is cyclical (BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2718).
Requirement for material jurisdictional error
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 & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; 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”), 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 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 also 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 delivered two days after the hearing of this matter).
Submissions
EMD19’s submissions
EMD19 submitted that:
(a)the Authority constructively failed in its jurisdiction by failing to engage with EMD19’s claim that violence in Kurram is cyclical. This is consistent with the error in BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 (“BSU20 - FCA”), where it was contended that the “IAA failed to engage with and come to grips with the way the claims were put by a submission of substance and the failure to do so is material”: BSU20 - FCA at [35] per Greenwood J;
(b)the Authority Decision does not address at all EMD19’s submission that the violence is cyclical: CB 262-263 at [31]-[32]. EMD19 relied on his submission of 16 September 2019 concerning the existence of sustained violence over the last ten years in the Kurram District and serious episodes of sectarian violence therein since 1980 and DFAT’s risk assessment that cycles of violence are likely to continue until these conditions change: CB 185 second paragraph and 186 second paragraph (extracting the DFAT Country Report dated February 2019 (“2019 DFAT Report”) at [2.72]), and submitted that the ongoing and sustained nature of the conflict in the Kurram District strongly suggests that it cannot be found that the area is safe for the foreseeable future and there exists a real chance of being harmed given the history of the area;
(c)the Authority sets out relevant country information from 2016 and 2017 with several attacks in Parachinar and the broader Kurram District region claimed by different sectarian groups, to which the Pakistan government responded with safety and counterterrorism measures: CB 263-264 at [34]-[36], and addressed EMD19’s submission and DFAT assessment that the security measures had “restricted freedom of movement and limited the community’s access to essential services and trade opportunities”: CB 264-265 at [37]. The Authority addresses the submission and risk assessment by pointing out the opening of the Thall-Parachinar Road and the availability of some medical resources: CB 264-265 at [37];
(d)the Authority adopts the position that violence has stably decreased over time: CB 265 at [39]. There is no engagement with EMD19’s claim, corroborated by the risk assessment in the 2019 DFAT Report, that cycles of violence are likely to continue. Seven months since DFAT's 2017 assessment and just over a year since the January 2018 roadside bomb incident is not a reliable indicator that regional peace has reached a point of ongoing stability;
(e)although the Authority did take DFAT’s “moderate” risk assessment for Turis into account: CB 265 at [39], the remainder of that paragraph minimises ongoing risks with language like “I consider that the evidence now indicates much more significantly that an improvement in the security in Kurram for Shia Muslims (and more broadly) has been achieved”. In particular, the words “has been achieved” suggests a terminal point at which a location is permanently safer, which is directly at odds with EMD19’s submission. So, while the Tribunal did turn its mind to the security situation it considered likely in the future, it did not address EMD19’s submission that, given ongoing violence since 1980 and sustained violence for the past ten years, “a small decrease in attacks does not necessarily suggest that meaningful change in the country situation has occurred”: CB 185;
(f)in the phrasing of BSU20 - FCA at [47] per Greenwood J, the Authority could not “reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing... the express submissions put to the contrary to the IAA by the appellant”. EMD19’s claim was that the Kurram District was not safe for him in the reasonably foreseeable future because the cyclical nature of the violence meant that the current period of relative peace could not guarantee a future of relative peace: the Authority did not address the distinction; and
(g)the error is material as it goes to the core of EMD19’s claim and, if the claim about cyclical violence had been considered, the Authority may have come to a different conclusion on the risk of serious harm to him. The Authority’s failure to complete its jurisdiction thereby deprived the appellant of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 at [1].
Minister’s submissions
The Minister submitted that:
(a)in BSU20 - FCA the Federal Court considered an appeal against the judgment of this Court in BSU20 v Minister for Immigration [2020] FCCA 2718, essentially contending there was a failure by this Court to find that the Authority committed a jurisdictional error in failing to have regard to submissions of substance, including submissions relating to particulars aspects of the 2019 DFAT Report;
(b)in BSU20 - FCA the Federal Court effectively found that the Authority committed jurisdictional error in failing to address express submissions put to it by the appellant or particularly significant evidence advanced by the appellant;
(c)EMD19 in this case appears to contend there was a jurisdictional error, similar to the first one found on appeal in BSU20 - FCA, in that the Authority failed to consider submissions put by him;
(d)EMD19 essentially claims that the Authority had “no engagement with the Applicant’s claim, corroborated by the DFAT risk assessment, that cycles of violence are likely to continue”: EMD19’s Submissions at [14]. EMD19 describes his submission as being that the Kurram District was not safe for him in the reasonable future because the cyclical nature of the violence meant that the current period of relative peace could not guarantee future relative peace, and that the Authority did not address this distinction;
(e)in particular, EMD19 criticises the Authority’s position that violence had decreased over time and its finding that regional peace had reached a point of ongoing stability: EMD19’s Submissions at [14];
(f)it is not in issue that a failure to address an express submission by an applicant may, in the right circumstances, amount to jurisdictional error by the Authority. Here, however, there was no such failure and EMD19’s Submissions are merely an attack on the merits of the Authority Decision;
(g)the Authority spent considerable time in the Authority Decision, particularly at CB 262-266 at [31]-[41], in analysing the country information and justifying its conclusion as to whether EMD19 would face harm were he to return to his home region for the foreseeable future. Far from ignoring past history or cycles of violence, the Authority clearly addressed whether it considered, at last, a position of stability had been reached in the region, and what that position meant for a person with EMD19’s profile;
(h)EMD19’s main criticism is really that the Authority did not accept his submissions regarding what conclusion could be drawn from the more recent decrease in violence, rather than that the Authority failed to consider its submission at all. The ground should fail on that basis alone;
(i)further or alternatively, EMD19’s Submissions at [15] misunderstands the Authority Decision at CB 265 at [39]. The Authority did not simply reason that the lack of recent attacks alone was a reliable indicator that regional peace had reached a point of ongoing stability. The Authority had previously considered and referred to multiple factors, that it considered were relevant to its assessment as to the situation in EMD19’s home region in the foreseeable future. It was plainly not the lack of recent attacks, but the lack of recent attacks following the steps taken for ongoing systemic change and their effects, that formed the basis of the Authority’s conclusion; and
(j)while it is contended this is the plain reading of the Authority Decision, should it be argued that the Authority Decision is open to different interpretation, it is further noted that the Authority is not a court and this Court should not be "concerned with looseness in the language ... nor with unhappy phrasing" in the Authority Decision, and nor should it construe the Authority Decision "minutely and finely with an eye keenly attuned to the perception of error" or in an over-zealous manner: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
CONSIDERATION
Cases concerning cyclical violence in the Kurram District
The issue of consideration of claims of cyclical violence in the Kurram District has arisen in other cases, including BSU20 - FCA and EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) FLR 148 (“EMM19”) which are considered below.
BSU20 - FCA
In BSU20 - FCA the Federal Court considered the question of whether the Authority constructively failed to exercise and discharge its statutory duty to review the decision of the Minister’s delegate referred to it, by failing to consider a contended “submission of substance” made in support of the appellant’s claims, and by failing to have regard to evidence put to it in support of the appellant’s claims for a protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act.
The appellant’s submissions in BSU20 - FCA included the following:
(a)that the security situation in the Kurram District was “volatile” and at “risk of deteriorating in the reasonably foreseeable future” exposing the appellant to a real risk of serious harm: at [11] per Greenwood J;
(b)although the Authority was provided with documents and submissions about the appellant’s claims, the Authority made no determination of whether it was “too early to regard the Kurrum area as generally safe”; or whether sectarian violence was exhibiting “peaks and lows of activity”; or whether the security situation was, as described in the DFAT 2019 Report, “complex’ and “volatile”: at [20] Greenwood J;
(c)the appellant contended that the conclusion (that there was no real chance of the appellant suffering any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future should he return to the Kurram District) was reached without assessment of the forward-looking risk of deterioration or volatility in the security situation in the Kurram District, especially having regard to the 2019 DFAT Report: at [23] Greenwood J; and
(d)the critical matter said not to have been addressed was the contention that while the security and sectarian situation might have improved in the recent past, the security situation remained “fragile” and “volatile” and at “risk of worsening in the reasonably foreseeable future”, and if it did, the appellant would face a real chance of serious harm as a Shia Turi Pashtun in the Kurram District: at [25] Greenwood J.
As to the primary contention of the appellant in BSU20 - FCA, the Minister said that:
(a)the appellant did not expressly claim, and there was nothing in the evidence to suggest, that the security position in Pakistan would decline in the future;
(b)it was clear from the Authority’s reasoning that it had adopted a “forward-looking” approach in its assessment of whether the appellant faced a real chance of suffering serious harm and the Authority had turned its mind to the risk of harm in Pakistan, and in particular the Kurram District, in the future; and
(c)in assessing a future risk of harm, a relevant field of enquiry was whether an applicant had suffered persecution in the past and accordingly the Authority’s consideration of what had occurred in the past was “an orthodox approach to the assessment of harm in the future”: at [44] per Greenwood J.
The Federal Court stated at [45] per Greenwood J that:
The difficulty with this submission is that although the IAA turned its mind to the risk of harm in Pakistan and turned its mind to the risks in Kurrum Agency, the appellant's contention is that in doing so it failed to address the specific and particular submissions put to it by the appellant. The appellant says that the submissions were not addressed and no findings or conclusions about the contentions contained within the submissions was reached. The appellant says that these matters were central to the claims of a well-founded fear of persecution and a fear of significant harm. Thus, although the IAA turned its mind to the risk of harm in Kurrum Agency, it did not expressly turn its mind to the submissions made by the appellant in reasoning to a conclusion about the risk of harm.
The Minister also contended that the Authority was “clearly cognisant” of the appellant’s relevant submissions and the references to the contrary information contained in those submissions. The Federal Court, at [47] per Greenwood J, was, however, of the view that (emphasis in original):
Whilst it is true that the IAA had regard to aspects of the document of 20 November 2019 and country information, it did not specifically take into account in its reasoning an important assessment made as at 20 February 2019 that “Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith” [emphasis added]. It is difficult to see how the IAA could reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing two things. First, the express submissions put to the contrary to the IAA by the appellant as described in these submissions. Second, the assessment as at 20 February 2019 recited in bold above.
The Federal Court thus held that by failing to address the express submissions put to the contrary to the Authority by the appellant and the DFAT assessment in the 2019 DFAT Report, the Authority fell into jurisdictional error and the primary judge erred by failing to so find: at [48] per Greenwood J.
EMM19
In EMM19 the applicant relied on six grounds of review, and relevant to this case is ground 3 which was as follows:
3.The Authority failed to consider or engage with the applicant’s submission regarding the nature of sectarian violence and the cyclical nature of violence in his home area into the foreseeable future.
In relation to ground 3 the applicant submitted that:
(a)the Authority Decision contained no response to a squarely-raised issue, namely that violence in the Kurram District is cyclical in nature. The applicant's case was that there was clear and overwhelming evidence of a risk of resurgence of sectarian violence in the reasonably foreseeable future. Whereas the Authority Decision made observations about targeted efforts to reduce the number of incidents of violence over time, the applicant submitted that the Authority did not engage with the cyclical nature of violence: at [65] per Judge Forbes;
(b)the Authority erred by engaging in a narrow point-in-time assessment of the current risk and failed to turn its mind to the possibility of a resurgence in the future. Alternatively, if the Authority did engage in an assessment of risk into the reasonably foreseeable future, that assessment focused only on a downward trend in incidents over recent years, and failed to have regard to significant evidence which pointed to violence being cyclical over time: at [67] per Judge Forbes; and
(c)in particular, the Authority failed to have regard to the very clear evidence which predicted a resurgence in violence following the withdrawal of the United States forces from Afghanistan: at [68] per Judge Forbes.
The Minister submitted, at [71] per Judge Forbes, that:
(a)although the Authority did not use the word “cyclical”, it did consider the history of sectarian violence in Kurram over a long arc, commencing from the 1980s. It noted the changes in that conflict over time, including developments which occurred in 2001, 2007, 2008, 2011 and 2017;
(b)the Authority did not ignore that there had been peaks and troughs, but it was entitled to rely on country information which suggested that there had overall been a declining trend; and
(c)the choice and weight to be given to country information is a matter for the Authority.
At [76]-[77] per Judge Forbes the Court held that ground 3 was made out:
[76] Here, a key thesis of the applicant's submissions was that by reason of the cyclical nature of violence in the applicant's home area the risk of a resurgence must be taken into account in the assessment of risk in the reasonably foreseeable future. This argument was central to the submissions advanced by the applicant and in my view the Authority's reasons do not expose any proper consideration or response to it.
[77]It is not enough for the Authority to read and rehearse the applicant's submissions. The Authority must also understand and bring its mind to bear upon the clearly articulated arguments advanced in those submissions – cyclicality of violence being one of them. In my view it failed to do so.
Analysis
EMD19 relied on his submission of 16 September 2019 to the Authority concerning the existence of sustained violence over the last ten years in the Kurram District and serious episodes of sectarian violence therein since 1980 and DFAT’s risk assessment that cycles of violence are likely to continue until these conditions change, which was in the following terms: CB 185 second paragraph and 186 second paragraph (extracting the 2019 DFAT Report at [2.72]):
Moreover, we submit that given the sustained violence against the applicant’s community in Kurram over the last ten years, a small decrease in attacks does not necessarily suggest that meaningful change in the country situation has occurred. As noted by the primary decision maker serious episodes of sectarian violence in Kurram has been ongoing since 1980. We submit that the ongoing and sustained nature of the conflict in the Kurram strongly suggests that it cannot be found the area is safe for the foreseeable future and there exists a real chance of being harmed given the history of the area.
…
DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.
Various passages from the Authority Decision were cited and referred to by the parties in both their written and oral submissions, and although lengthy it is convenient to set out the paragraphs at CB 262-266 at [31]-[41] from the Authority Decision, which are as follows:
[31]The applicant would face a level of risk as a Shia Bangash in returning to live in Upper Kurram but for reasons that will be explained below for the foreseeable future I am not satisfied that the level of risk which the applicant would face in this regard rises to the level of a real chance. This is, first of all, because of the manner in which the situation has stabilised in Kurram in a number of regards. The country information before me indicates that the Haqqani Network (the Afghan Taliban) may still have a presence in the Kurram region but for some years now the Afghan Taliban would not appear to have engaged in any hostilities towards the Shia of Upper Kurram. Reporting as to why this is remains conflicting (with some sources reporting that the Shia of Upper Kurram have reached a secret accommodation with the Afghan Taliban while other sources assert that the Afghan Taliban simply gave up on their aspiration of being granted access through Upper Kurram after being fought off by Upper Kurram's fighters). Whatever the reason, and although the presence of the Haqqani Network reportedly remains a concern to the Shia of Upper Kurram, for the foreseeable future the possibility of the applicant suffering harm of any kind for any of the reasons he has raised from the Afghan Taliban seems remote.
[32]The country information before me also indicates that Kurram's local Sunni tribesmen have moved towards a lasting peace with local Shias. In the years which immediately followed 2008 efforts to reach a peace settlement had failed to prove lasting but in more recent years it would seem that a turning point has been reached. Significant numbers of the Shia displaced from Central and Lower Kurram, and significant numbers of the Sunnis displaced from Upper Kurram, have likewise begun to return to their homes (many of which have been renovated after having been destroyed during the conflict years) with what seem substantive displays of welcome from the respective majority communities such that there would appear to be a genuine and lasting reconciliation at work in this regard. Although some displaced families who were residing in Peshawar have complained about being compelled by the Pakistan authorities to return to their villages in Kurram (even though their particular homes have not yet been rebuilt) it would not appear from recent news reports that this was the broader experience of most returnees, and significantly for the applicant it would not appear that there have been any tensions between the respective Shia and Sunni communities. Nor would it seem that Shia Bangash are at any particular additional risk from Sunni Bangash tribesman notwithstanding what years ago was once described as the deep bitterness between these tribesmen.
[33]In February 2019 DFAT related that some media sources had reported of Kurram that while minorities feel more protected it was also the case that discrimination and violence toward Shia tribes, particularly Turis, remained significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of the Taliban and Al Qaeda. This would seem to be a reference to attacks which were perpetrated by groups associated with the sectarian Pakistani Taliban in 2017 and which I will discuss below. This would also seem to be a reference to concerns within Pakistan's security force about the influence of Iran in the region (according to other country information sources before me Iran played a significant role in arming Upper Kurram's Shia fighters) and the efforts of the Pakistan government to disarm Kurram's Shias will be discussed below also. It would also seem that notwithstanding the broader favourable reporting on the circumstances of Kurram's communities that Shia Muslims in Central and Lower Kurram do see themselves at a disadvantage in terms of governance but given that Shia Muslims predominate in Upper Kurram and exercise such influence there it would not seem that the applicant would face a real chance of experiencing any discrimination or any kind of mistreatment of this kind from either the Pakistan authorities or from local Sunni Muslims if he were to return to Upper Kurram.
[34]The country information before me indicates that sectarian groups like those aligned with or split from the Pakistani Taliban did continue to perpetrate attacks in Lower and Central Kurram along the Thall-Parachinar Road, and also bomb attacks upon Parachinar (including the notable Parachinar attack of 13 December 2015) notwithstanding the moves by other actors toward peace. In 2016 a spate of infighting broke out between some of these sectarian groups and perhaps because of this 2016 was largely uneventful. Three Parachinar bomb attacks then occurred in succession on 21 January 2017 (in Eidgah Bazaar vegetable market), on 31 March 2017 (targeting an imambargah in a market place), and on 24 June 2017 (at the Turi Market where people preparing for Eid celebrations). These killed more 120 persons and caused injury to over twice as many more. These incidents reportedly led to greater reluctance among local Shias to respond to a government call to hand in their weapons and to trust in the Pakistan security forces to defend them, and matters were not helped when leaflets were discovered in Kurram which threatened harm to Shia Muslims and which purported to have been printed by the Sunni sectarian group Islamic State. April 2017 also saw rockets fired from the Afghan side of the border which struck two Upper Kurram villages situated on the border area; and some weeks later an IED attack targeted a bus in an area of Central Kurram which killed 14 people and injured nine. Responsibility for these various 2017 attacks was claimed on each occasion by one or more of the various sectarian groups of the kind associated with or split from the Pakistan Taliban, and in the case of the June 2017 attack the sectarian Islamic State movement also made a claim of responsibility.
[35]The Pakistan government and its security forces have subsequently invested considerable resources in the Kurram region to provide residents with protection and to restore security. In July 2017 the Pakistan Army announced that it would be establishing a "Safe City" in the Parachinar area of Kurram agency in order to combat the growing threat of Islamic State and other such groups, and that the project would include the installation of closed-circuit television cameras throughout the city which are linked to a command and control centre. The Pakistan military also set about fencing Kurram's borders and in February 2019 DFAT reported that the Turi community had estimated that 40 per cent of military fencing in Kurram was complete, decreasing border permeability. DFAT also reported that the Turi community had advised that the Pakistan military implements a 20 to 30 square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. Security forces have issued cards to access the red zones, which can be obtained by residents on presentation of identity documents (CNICs or passports). Alongside such measures Pakistan's military continued to pursue counterterrorism activities in Kurram, and in this regard drone strikes have also been conducted by the United States. DFAT also reported that the Turi community had claimed that in the first quarter of 2018 it had suffered two attacks, including one involving an improvised explosive device that targeted women and children. But from the country information before me it would seem that there was only one such security incident in 2018 in Kurram which caused any civilian casualties. This occurred in January 2018 when several members of a family were killed or injured after their vehicle struck a roadside bomb in the Maqbal area of Upper Kurram. The Turi community in Parachinar reportedly staged a protest and reacted to the matter as a deliberate sectarian attack upon them by the Pakistani Taliban but it was reportedly unclear whether the blast was caused by a landmine or a roadside bomb, or whether the victims were Shia or Sunni Muslims, and it would not appear that any groups ever claimed responsibility (as is usually the case where deliberate attacks have occurred). In any event, this would appear to be the only event to have caused any civilian casualties in Kurram since the events of the first half of 2017 and the implementation of the new security measures.
[36]In February 2019 DFAT also related that the Turi community had reported that there was confidence within the community for individuals (although not large groups) to travel on the Thall-Parachinar road although only between dawn and dusk. This confidence would appear to be well-founded given that since mid-2017 it is not apparent that there have been any attacks upon any Shia Muslims (whether as individuals or in large groups, or by day or by night) when travelling along the Thall-Parachinar Road to reach Upper Kurram. The extent of the commitment to restoring such confidence has also been manifested in the Pakistan Army's establishment of newly-constructed Army Public Schools in Kurram with one in Upper Kurram's Parachinar and another in Central Kurram's Doger. Although advocates for the cause of Upper Kurram's Shia population sometimes seek to argue that Upper Kurram is affected by a dire situation in terms of its economy and development, and that it suffers from government apathy, it would in fact seem that the Pakistan government is investing considerably in the future growth of the region. The evidence would also seem to indicate that among local communities in Kurram there is a commitment to working with Pakistan's security forces in keeping sectarian insurgents (like the Pakistani Taliban and the Afghanistan based Islamic State movement) out of the region; and in April 2018 it was reported that when a cross-border attack from Afghanistan was perpetrated against a security personnel post in the Laka Tigga area of Lower Kurram Agency that scores of armed tribesmen from Bangash and other tribes rushed to the border to support the Pakistani security personnel.
[37]In February 2019 DFAT also related that while military operations had improved the security situation in Parachinar and Kurram Agency, they had also restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Relevantly DFAT related the claim that a Turi child had died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital. The country information before me indicates that the Pakistan military's security operations in North Waziristan against insurgents over recent years have been such that they have restricted movement into and out of North Waziristan broadly (not just for Shias from Kurram). In any event, the opening of the Thall-Parachinar road means that it would not be necessary for the applicant to travel through North Waziristan and I also not that the country information before me indicates that Parachinar has its own hospital and that in emergencies the Pakistan authorities have flown Upper Kurram resident by helicopter to medical facilities in Peshawar and elsewhere. It is plain from the available reporting that travel into Parachinar and its surrounds now involves passing through a number of layers of security but beyond such problems and loss of opportunities as might result from being delayed by such measures it is not apparent that these measures are causing any harm. The applicant has submitted, referring to the February DFAT report in this regard, that his family feel like prisoners with limited movement and restricted access to services but he has provided no details as to what specific services his family have had limited access to and I am not satisfied that this claim is credible.
[38]In a submission to the delegate it was also tendered that despite the applicant's best efforts he had been unable to subsist in Pakistan. This is plainly false. The applicant was able to subsist in Pakistan. Moreover, and although I accept that he witnessed the attacks of February 2008 and September 2012 and that these have sometimes caused him flashbacks, it is also the case that even after the September 2012 he remained in Upper Kurram for the next seven months and went about organising his travel. I am not satisfied that there is a real chance that the applicant would, within the foreseeable future, be denied the capacity to subsist in Upper Kurram or that he would be denied access to essential services for any reason if he were to return to Upper Kurram.
[39]In February 2019 DFAT assessed that that notwithstanding recent improvements in security and the likelihood that this would continue that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, remained higher than in other parts of the former FATA, and that Turis (that is Turi and Shia Bangash) in Kurram Agency still faced a moderate risk of sectarian violence from militant groups because of their Shia faith. In submissions to the IAA it has been argued that DFAT's February 2019 assessment equates to a real risk of serious harm for the applicant in his home area. I note, however, that seven months on since DFAT's assessment of 2017 there would not appear to have been any further attacks upon Shia Muslims in Kurram whatsoever such that it is now more than a year since the roadside bomb incident of January 2018 and more than two years since the more significant attacks of 2017. Given this I consider that the evidence now indicates much more significantly that an improvement in the security in Kurram for Shia Muslims (and more broadly) has been achieved. This is not to say that there is not risk whatsoever of any further attacks upon the Shia Muslims of Kurram by sectarian groups like those associated or split from the Pakistan Taliban (LeJ, SSP and similar), and also from Islamic State, but the situation is such that I am not satisfied that the applicant would, for the foreseeable future, face a real chance of harm from such an attack or of harm of some other kind from such groups in Pakistan if he were to return to his life in Upper Kurram, including practising his Shia faith by way of saying prayers at his village imambargah and by visiting Parachinar for significant events and for shopping and other needs. I am, moreover, not satisfied that his fears relating to the broader Sunni Muslim population (and also the matter of the Afghan Taliban and the Pakistan authorities) would raise this level of risk to that of a real chance given what broader country information reports about such matters (as already outlined above).
[40]Nor am I satisfied that the risk of harm would rise to that of a real chance when the matter of the applicant's return to Kurram is considered alongside the concerns already discussed above. I can accept that matters like the applicant's accent and name would make him identifiable as a Pashtun Shia Bangash even outside of Kurram but the country information before me does not support a finding that he would, for the foreseeable future, face a real chance of such harm in undertaking such travel. Some attacks upon Shia Muslims have occurred in recent years in places like Islamabad and in the regions of the Punjab and in the areas of the Khyber Pakhtunkhwa Province through which the applicant would travel to reach Kurram. However, such attacks have become rare in recent years even in Khyber Pakhtunkhwa Province. Attacks upon two different Shia imambargahs in Islamabad and the Orakzai District did occur in November 2017 and November 2018 (with the perpetrators of the Orakzai attack being subsequently killed in January 2019 by Pakistan security forces) but broadly speaking the security situation along this route would appear to be such that the possibility of the applicant's suffering any harm while transiting these areas on the basis of his religion, or specifically because of his being a Bangash Shia from Kurram, or indeed for reasons relating to more generalised insecurity or criminality, is remote. I note also that the applicant has claimed to fear harm on the basis of his Pashtun ethnicity and that in recent years there have been some reports that Pashtuns (owing to perceptions about the support given by Pashtuns from Khyber-Pakhtunkhwa Province to Sunni extremist groups like the Taliban) Pashtuns, including Turi (Shia Turi/Bangash) can face some discrimination in certain circumstances in the Punjab Province and also in Islamabad if they attempt to migrate internally in order to settle in such areas. Given that the applicant would only be transiting such areas, and given the overall security situation in these areas, the possibility of his suffering harm of any kind for this or any other reason in the course of his returning to Upper Kurram seems remote.
[41]Having considered the applicant's circumstances in their totality I am not satisfied that there is, for the foreseeable future, a real chance that he would face harm of any kind for any reason if he were to return to Pakistan to reside in Upper Kurram. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Pakistan.
The Authority did turn its mind to the risk of harm in the Kurram District and found some recent improvement and stabilisation in the levels of violence, including sectarian and ethnically motivated violence. But what the Authority did not turn its mind to in reasoning to a conclusion about the risk of harm, and did not expressly make findings upon, were the submissions made by EMD19 regarding the nature of sectarian violence and, in particular, the cyclical nature of violence in the Kurram District into the foreseeable future. To say that the levels of violence have improved and stabilised in the last two years is not to address, or engage with, the likelihood of the recurrence of cyclical violence within the foreseeable future, and particularly so where there was reputable country information (in the form of the 2019 DFAT Report) which expressed concern about the cyclical nature of the violence in the Kurram District.
The Authority’s function was to respond to the clearly articulated case relying upon country information from a reputable source (DFAT) that EMD19 advanced: Dranichnikovv Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] and [32]-[34] per Gummow and Callinan JJ and [78] per Kirby J; SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J. The Authority had to evaluate all of the pertinent information put forward in support of the cyclical violence claim: Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [38] per Kenny, Griffiths and Mortimer JJ. EMD19 made express submissions on, and it was a core claim made by EMD19, that violence in the Kurram District is cyclical in nature. This argument was central to the submissions advanced by EMD19. The Authority needed to address that core claim specifically but did not do so.
By failing to address the express submissions put to it by EMD19 in relation to a core claim that violence in the Kurram District is cyclical in nature the Authority fell into error. That conclusion does not rest upon construing over-zealously the text of the Authority Decision, as the Minister suggested it might (referring to Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) but rather a failure to deal with a matter that ought to have been dealt with by the Authority in the Authority Decision. In any event, it is hard to see how the Court might over-zealously, or otherwise, construe a matter not actually considered by the Authority.
The error made by the Authority is material, and therefore jurisdictional, because had the Authority considered the issue that violence in the Kurram District is cyclical in nature 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.
CONCLUSION AND ORDERS
The Court has concluded that the single ground of the Amended Judicial Review Application has been made out, and that the error thereby disclosed is material. It follows, therefore, that the Authority Decision is affected by jurisdictional error. Writs of certiorari and mandamus will accordingly issue.
As discussed at hearing: Transcript, p 6, there will also be an order that the Minister have leave to uplift the written outline of submissions filed on 2 April 2024, and that written outline of submissions be removed from the Court’s records.
The Court will hear the parties as to cost.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 January 2025
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