Emm19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2023] FedCFamC2G 1214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214

File number: MLG 3947 of 2019

Judgment of: JUDGE FORBES

Date of judgment: 21 December 2023

Catchwords: MIGRATION – protection – application for judicial review of decision of Immigration Assessment Authority to affirm decision of delegate not to grant SHEV – whether Authority considered applicants claims for protection – whether claim of fear of bombings clearly asserted or clearly arises – distinction between evidence and integer – real chance of persecution – whether Authority failed to listen to or properly consider audio recording of delegate interview – whether Authority properly engaged with submissions about cyclical violence – whether departure from country information rational – whether risk to be assessed absolutely or relatively – test for assessment of foreseeable risk – whether moderate risk is necessarily a real risk

Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB, 473DB

Cases cited:
AIE15 v Minister for Immigration and Border Protection [2018] FCA 610

AYY17 v Minister for Immigration and Border Action (2018) 261 FCR 503

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189

CGA15 v Minister for Home Affairs (2019) 268 FCR 362

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663

DQU16 v Minister for Home Affairs (2021) 273 CLR 1

DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858

ELA18 v Minister for Home Affairs [2019] FCA 1482

ETA067 v The Republic of Nauru [2018] HCA 46

MIAC v SZQKB [2012] FCA 1189

Minister for Home Affairs v Buadromo (2018) 267 FCR 320

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

MZYXR v MIAC [2013] FCA 252

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121

Division: Division 2 General Federal Law

Number of paragraphs: 142

Date of hearing: 4 December 2023

Place: Melbourne

Counsel for the Applicant: Dr McBeth

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Barrington

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

MLG 3947 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EMM19

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS THAT:
1.A writ in the nature of certiorari be issued quashing the decision of the Second Respondent (the Authority) made on 23 October 2019.
2.A writ of mandamus be issued directing the Authority to hear and determine the Applicant’s application according to law.
3.The First Respondent (the Minister) pay the Applicant’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.

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 FORBES
INTRODUCTION

In this matter, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA or the Authority) made on 23 October 2019 to affirm the decision made by a delegate of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise Visa (the visa).
For the reasons set out below, I have determined that the Authority’s decision was affected by error.
BACKGROUND
The following is derived from the detailed outlines of submissions filed by the parties and the materials contained in the court book. Unless otherwise stated the background is uncontroversial.
The applicant is a citizen of Pakistan from the Kurram District bordering Afghanistan. He arrived in Australia at Christmas Island on 11 June 2013 as an unauthorised maritime arrival.
On 13 May 2017 the applicant applied for a Safe Haven Enterprise Visa with the assistance of a registered migration agent. His claims were set out in a statutory declaration attached to the application, and in a further statutory declaration made on 13 August 2019.
The applicant's claims can be summarised as follows, as set out in Part 4 of the delegate’s decision[1]:
[1] Court Book (CB) 227 - 228
·He left Pakistan because he was in danger as a Shia and a member of the Bangash tribe.
·He feared being harmed by the Taliban and being killed in a bomb blast, road attack or target killing.
·In 2012, he witnessed a bomb blast in Parachinar city, which occurred about 200 metres from where he was working. He saw black smoke and shrapnel and many bodies which were very confronting to look at.
·After this, he did not return to work for about a week, and due to the many attacks in Parachinar he felt his life was in danger and decided to leave.
·If he returns to Parachinar he fears being killed, there have been two large explosions at the bazaar recently which may have killed him if he had not fled Pakistan when he did.
·He cannot avoid being harmed as he is easily identified as a Shia by his and his father's name on his identity card, and also by the way that he prays.
·He fears harm by the Taliban as he has spent time in a western country.
·It is true that many killings are against high profile Shia people but not all incidents are reported.
·He cannot safely relocate to any part of Pakistan including to Islamabad, Karachi, Peshawar or Lahore because as a Shia and a member of the Bangash tribe, he is not safe.
·The local Sunni from Parachinar can identify him anywhere in Pakistan as his identity card would betray his religion and ethnicity.
·He cannot speak any other language other than Pashto and his Pashto accent is different.
·He cannot understand Urdu and can hardly read the sign posts on the streets. He is uneducated and therefore could not find work in one of the larger cities like Islamabad.
·The Government of Pakistan is unwilling or unable to protect him as they do not have the resources to stop the continuing attacks against Shias. Also, they have links to the terrorists in Pakistan and are not serious about protecting Shias.
An updated statutory declaration was provided on 13 August 2019. The following additional claims were submitted:
·That the applicant's son had passed away on 27th October 2013.
·He has been suffering from depression for some time and unable to sleep.
·He was involved in a serious car accident in December 2018, since then he has been supported by the TAC and is having medical treatment for back pain.
·He has not been able to work or sit in a car for prolonged periods of time, and he can no longer perform any labour intensive tasks.
On 15 August 2019 the applicant and his representative attended an interview with a delegate of the Minister.
On 4 September 2019 the applicant's representative provided various documents to the delegate including post-interview written submissions, medical documents and a decision of the Administrative Appeals Tribunal in another matter.
On 20 September 2019 the delegate refused to grant the applicant a visa. The visa was refused on the basis that, while the applicant faces a real chance of persecution in his hometown in the Kurram District pursuant to s 5J(1)(b) of the Migration Act 1958 (Cth) (the Act) on account of his profile as a Shia Muslim, the applicant would be able to safely return and reside in Lahore or Islamabad. Therefore the delegate was not satisfied that the applicant was a refugee under s 5H(1) of the Act, nor did he meet the criteria in s 36(2)(a).
The delegate was also not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(aa) of the Act.
The matter was referred to the IAA for fast-track review under Part 7AA of the Act.
Immigration Assessment Authority
On 23 October 2019 the applicant's representative provided submissions to the IAA.
That same day, after 4pm, the IAA affirmed the delegate's decision to refuse the grant of the visa.
In its reasons, the IAA summarised the applicant's claims as follows[2]:
·He is a Pashtun from the Bangash tribe and a Shia Muslim from Shaheed Abad village, College Colony, Parachinar, Kurram District, Pakistan.
·He left Pakistan because he was in danger as a Shia and a member of the Bangash tribe and feared harm from the Taliban and other extremist Sunni militants.
·He is easily identifiable as a Shia by his name, his address on his identity card and the way he prays, his appearance and Pashto accent. The local Sunni from Parachinar can identify him anywhere in Pakistan.
·He also fears harm from the Taliban as he has spent time in a western country.
·The government of Pakistan is unwilling or unable to protect him and they do not have the resources to stop the continuing attacks against the Shia. He also fears they have links to the terrorists and they are not serious about protecting Shias.
·He is illiterate and is currently receiving medical treatment for depression and lower back pain sustained after a car accident in December 2018. He can no longer do labour-intensive tasks.
[2] CB 280
Relevant sections from the IAA's reasons will be referenced below where they relate to the six grounds of review.
Judicial review
On 14 November 2019 the applicant made an application for judicial review in this Court. An amended application identifying six grounds of review was filed on 29 May 2023.
The grounds of review are set out as follows:
1.The Authority failed to give proper consideration to the applicant's central claim, namely his claim to have narrowly escaped a bombing at his workplace and his claim that he would have been killed in the subsequent attacks in 2017 if he had not fled for Australia, or alternatively, the Authority misconstrued the applicant's claim and considered a claim different to the claim he actually made.
2.The Authority failed to consider the recording of the applicant's interview with the delegate, in breach of s 473DB[3] of the Migration Act 1958.
[3] The amended application, filed on 29 May 2023, erroneously referred to s 473CB but this was corrected at trial without objection.
Particulars
a.   The Authority in its decision record refers only to the applicant’s written statements and submissions and the delegate’s decision record. It makes no reference whatsoever to evidence given by the applicant in his interview with the delegate.
b.   The Authority's assumption at [11] that the reference in a written submission "to the applicant being Turi is likely an error" makes clear that the Authority did not listen to the interview, where the anomaly of the applicant identifying as both Bangash and Turi was explained in detail.
c.   The applicant's interview with the delegate included substantive submissions about the nature of the harm the applicant feared on return to Pakistan and the assessment of sectarian and generalised violence into the foreseeable future.
d.   The failure of the Authority to consider the applicant's evidence before the delegate constituted a failure to have regard to a material part of the review material and therefore jurisdictional error.
3.The Authority failed to consider or engage with the applicant's submissions regarding the nature of sectarian violence and the cyclical nature of violence in his home area into the foreseeable future.
4.The Authority's finding that there was not a real risk of significant harm was irrational in that it could not rationally be reconciled with country information that the Authority accepted.
Particulars
a.   The Authority accepted the assessment of DFAT that there was a moderate risk of sectarian violence in the applicant's home area.
b.   The Authority made no finding rejecting the DFAT report or distinguishing it from the applicant's circumstances.
c.   The Authority's finding that there was not a real chance of harm from sectarian violence cannot be reconciled with the DFAT assessment, accepted by the Authority, of a moderate risk of sectarian violence.
5.The Authority asked itself the wrong question by imposing a relative test for levels of violence rather than asking whether the levels of violence in the reasonably foreseeable future constituted a risk of significant harm that was more than remote.
6.The Authority failed to consider whether there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to his home area, regardless of whether that harm was suffered because of a Refugee Convention reason.
HEARING
On 4 December 2023 the application for judicial review was heard.
Dr McBeth appeared on behalf of the applicant and Mr Barrington on behalf of the Minister. Each of the parties relied upon their written submissions and developed them orally.
Dr McBeth relied upon the amended application filed on 29 May 2023. He also sought to rely upon an affidavit of his instructing solicitor, Ms Tessa Maybery, sworn on 6 November 2023, which annexed the transcript of the delegate interview held on 15 August 2019 and the “DFAT Country Information Report Pakistan” dated 20 February 2019 (the 2019 DFAT report). Counsel for the Minister raised no objection to the affidavit and annexures being read.
Ground one
Applicant’s submissions
The applicant contends that one of his central claims for protection, namely the fear of being killed or injured in a bomb blast, was completely overlooked by the Authority.
The applicant filed a statutory declaration in support of his application[4]. Under the heading “Why I left Pakistan”, the applicant deposes as follows:
10.I left Pakistan because I was in danger as a Shia and a member of the Bangash tribe. I feared being harmed by the Taliban and feared being killed in a bomb blast, road attack or target killing. Everywhere I went was dangerous for me.
11.For example, sometime in about 2012, I witnessed a bomb blast in Parachinar city. This happened at Kasmir Chowk Parachinar and believe the Taliban took responsibility for this.
12.I was pushing the trolley and unloading and loading goods as part of my casual job at the Parachinar market. I suddenly heard a bomb blast. This happened roughly about 200 metres from where I was working. There was black smoke in the sky and I saw shrapnel flying out of the smoke. I ran back to see if I could help some of the injured.
13.I saw a lot of bodies and there was one body, in particular that I found very confronting to look at. This body was completely torn into pieces. It had no head. I could not control myself and I felt afraid and stopped suddenly on the side of the road. I tried to control myself and sat down.
14. I went home after this and didn't go back to work for about a week or so. Even when I returned to work, I felt my life was in danger. There have been attacks like this in Parachinar that have killed many Shias.
15. I was not able to leave Pakistan straight away after this blast and despite the risk to me because our family could not initially afford the costs. In addition, my mother heard that the boat journey was very dangerous and would not let me leave. Eventually, my family realized that I needed to get out.
[4] CB 89-95
Under the heading “What I fear will happen to me”, the applicant continued:
22.If I were to return to Pakistan I fear I would be killed. I have previously witnessed a bomb blast in Parachinar market where I used to work.
23.More recently this year there have been two large explosions at the Bazaar which killed many Shias. I fear that I may have been killed if I had not fled Pakistan when I did as I would have been working near the explosions when they occurred. This was a possibility in all the explosions that have occurred since I left.
The applicant contends that when read as a whole, his statutory declaration can leave no doubt that his fear is attached to the bomb blast he witnessed at Parachinar market in 2012 and his knowledge of subsequent similar incidents. The applicant contends that it is clear from that narrative that he fears being killed or injured in a similar incident.
The applicant describes this claim as his core factual claim and the catalyst for him fleeing Pakistan in 2012. The applicant submits that he has a direct personal connection with these events.
The Authority summarised the applicant’s claims at [4] of its reasons (above). The applicant submits that nowhere in that paragraph is the applicant’s fear of being killed in a bomb blast mentioned. There is mention of the 2017 bombings at the bottom of [10]. There is a mention of the 2012 bombing at [18] but only insofar as it recognises that the applicant was traumatised. But the applicant submits that that these observations fail to connect the incidents with the applicant’s objective fear of harm or identify fear of bombing as a claim for protection.
The applicant submits that the Authority’s failure to deal with this claim and its integers constitutes jurisdictional error.
In SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 (SZTQP) the Full Court (Nicholas, Robertson and Griffiths JJ) dealt with a circumstance where it was alleged that the Tribunal had failed to consider an applicant’s claims in their totality, including whether the receipt of threatening phone calls by an applicant formed part of his claims for protection. In considering the scope of the decision-maker’s obligation to deal with elements of the applicant’s claim, the Full Court cited the relevant principles summarised in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [55] and [63] where it was stated:
Failure to Deal with a Claim - Express and Implied Claims
[55]Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
“… the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.”
[…]
[63]It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome […]

In SZTQP the Full Court held that in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In that case, the applicant’s primary claim was that he feared serious harm and/or significant harm if he were returned to Rwanda because of his close relationship with a General and the harm which he had experienced while he was in Rwanda as a result of that association. The Court found that an integer or element of that claim was that he had received threatening phone calls in which express reference had been made to his association with the General. The Full Court found that the claims relating to the threatening phone calls were an element of the appellant’s claim to fear serious or significant harm if he were returned to Rwanda and that the Tribunal had fallen into error by not properly turning its mind to the issue.
Similarly, in the present case, the applicant contends that his claim to fear death or injury by bombing on account of what he observed in 2012 and subsequently learned about 2017 was a claim which was expressly made and one which clearly arose on the materials before the Authority (see NABE at [61]-[62]). The applicant submits that the bombings plainly form an integer of the claim for protection, giving rise to an obligation on the part of the Authority to engage and properly consider the claim. However, the applicant submits, there is no proper analysis or reasoning in the Authority’s reasons which engage with that claim.
Minister’s submissions
The Minister submitted that there was no obligation on the part of the Authority to consider the material regarding the 2012 bombings as it did not constitute a claim. The Minister submits that the applicant cannot discharge the onus of demonstrating that such a claim for protection was clearly asserted or clearly arose on the materials before the Authority.
Citing ETA067 v The Republic of Nauru [2018] HCA 46 at [11], the Minister contends that the applicant’s submissions fail to acknowledge the distinction between “evidence” on the one hand and “an integer of a claim” on the other. The Minister submits that the Authority is under no obligation to refer to all evidence before it or to give reasons for any alleged absence of reference to a matter.
The Minister’s case is that properly understood the applicant only ever expressed a claim of fearing death or injury from being caught up in sectarian violence targeted at Shia from his ethnic Bangash tribe. The Minister says that the applicant’s evidence of bombings in the market are self-evidently raised as “examples” of that kind of sectarian violence. It is submitted that a broader or generalised fear of bombings was not substantial or clearly articulated. It is further submitted that the applicant was at all material times represented by a firm of solicitors and that if such claim was being advanced it would been clearly articulated[5].
[5] See ELA18 v Ministerfor Home Affairs [2019] FCA 1482 at [28]-[32] and the various cases cited at footnote 44 of the Minister’s submissions
The Minister also attacked ground one on the basis that the 2012 bombings were mentioned in the applicant’s initial statutory declaration, but not thereafter.
The Minister submits that, in any event, the applicant’s claim was considered. The Minister submits that when [10] and [17] of the Authority’s reasons are properly read, it is evident that the Authority was clearly cognisant of the claim. That, the Minister contends, should be sufficient to dispose of ground one.
Reply
The applicant contends that the Minister’s description of the bombings as no more than “evidence” must be rejected. Indeed, in reply, counsel for the applicant submitted that if paragraphs [10]-[15] of the applicant’s statutory declaration are cast aside as immaterial “evidence”, then there is in effect nothing left of the applicant’s claim for protection. The applicant submits, and I agree, that the substance of his claim is to be found in the reading of those parts of his affidavit under the headings “why I left Pakistan” and “what I fear will happen to me”.
As to the Minister’s submission that the fear of bombings claim did not feature in the applicant’s submissions after it first appeared in his statutory declaration, the applicant points to the following matters.
First, it is submitted, correctly in my view, that the second statutory declaration[6] did not deal with the applicant’s claims for protection. This statutory declaration was filed to contextualise medical evidence on which the applicant sought to rely. It was filed only for the purposes of updating some of his personal circumstances, including his involvement in a serious car accident and the psychological consequences of his son’s death some years earlier.
[6] CB 151
Secondly, the applicant submits that it is abundantly clear from the transcript of the delegate interview that the delegate understood the broader basis on which the relevant claim was being advanced. Most of the interview dealt with matters relating to the applicant’s identity, not his claims, until the following exchange:
Q207.Mohammad, thank you for answering all those questions about your identity and your life in Pakistan. Now we can talk about your claims for protection and the reasons that you fear returning to Pakistan. Now, just to confirm I've read your witness statements, both of them. So I have a good understanding about what your fears are. But I'm only going to ask you about things that I need more clarification or details on. So I'm not necessarily going to ask you about everything you've written, but just rest assured that it will all be taken into account. Okay. So can you just tell me firstly in your own words what it is that you fear right now about returning to Parachinar.
A. My fear is explosion, what happened, firing, possibility of firing.
Q208.Okay. Now, is there anywhere else in Pakistan that you believe you could live without that fear of harm?
A. No.
(emphasis added)
It is also submitted that the transcript confirms the delegate’s understanding of the applicant’s claims and the delegate’s reasons record that understanding. The applicant submits that the IAA practice directions only required the applicant to address submissions to those parts of the delegate’s findings with which he disagreed. For that reason, it is submitted that it was not incumbent on the applicant to simply repeat more of the same to the Authority.
Consideration
I am satisfied that ground one has been made out.
In my view, the first statutory declaration provided by the applicant properly articulates a claim for protection based on his fear of being killed or injured in a bombing carried out by sectarian actors. I agree with the applicant that the matters raised in the statutory declaration are integers of that claim (as in SZTQP) and cannot be dismissed as mere evidence. The claim appears to have been recognised by the delegate but not the Authority and for some reason the Authority failed to engage in any analysis or consideration of this material.
Furthermore, the Authority had an obligation to consider the claim and its integers against both the refugee and the complementary protection criteria. It did not do so and therefore fell into error, as I have found in relation to ground six.
I am satisfied that the error is material[7] because, had the claim been properly considered against the relevant criteria (in particular the complementary protection criteria), there is a possibility that the applicant’s claim for protection might have resulted in a different outcome.
[7] For the requirement of materiality in a jurisdictional error, see: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [29]–[31] per Kiefel CJ, Gageler and Keane JJ; also
Ground two
The Authority was obliged by s 473DB(1) of the Act to consider the material provided by the Secretary under s 473CB, which comprises the “review material”. The Secretary is obliged to provide as part of the review material “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review”[8].
[8] Migration Act 1958 (Cth) s 473DB(1)(c) (Migration Act)
It was common ground between the parties that the material provided to the Authority included the audio recording of the delegate’s interview with the applicant.
By ground two, the applicant contends that the Authority did not listen to the audio and thereby failed in its statutory task to consider the material provided under s 473CB.
According to the applicant, there are a number of bases which give rise to the inference that the Authority did not listen to the audio recording.
Firstly, the applicant contends that the Authority’s reasons contain almost no reference to the delegate interview. At [7] of the reasons the Authority acknowledges that the applicant spoke fluent Pashto, but the applicant says this information could easily have been derived from the delegate’s reasons.
Secondly, at [11] of its reasons, the Authority criticises the post-interview submissions provided to the delegate by the applicant’s representative which refer to the applicant’s fear of harm as a “Turi Pashtun Shia”. The Authority finds that “the applicant has claimed to be from the Bangash Tribe and not the Turi tribe”, and concludes that the reference to the applicant identifying as Turi is likely an error.
The applicant contends that the finding at [11] could not have been made if the Authority had listened to the audio of the delegate interview. The applicant submits that the issue of his ethnicity was the subject of some discussion during the course of the interview. For example, the transcript of the audio reveals the following exchange between the delegate and the applicant:
Q182.Yeah, okay. Okay. Now, you’ve told me that you’re a Pashtun and you’re from the Bangash tribe, is that right?
A. Yeah.
Q183. Are you from a particular sub- tribe of Bangash?
A. Just Bangash Turi.
Q184. Bangash Turi? So usually it’s Bangash or Turi.
A.Yes, my tribe is Bangash, but when I said Bangash Turi that I am living Parachinar, because I am Shia and we look like brother to each other. That’s why its called Bangash Turi in Parachinar.
Q185. Okay, no problem. All right. Now….
The applicant submits that in light of that exchange the Authority could not reasonably have concluded that the reference to Turi in the post-interview submissions was an error.
The applicant submits that the failure by the Authority to listen to or properly consider the delegate interview must be a material error. Under the Part 7AA FastTrack review process, the applicant has no automatic right to be heard and therefore the transcript of the delegate interview is an essential resource for the Authority to assess the applicant’s core claims, his responses to questions and his credibility. If the audio was not considered, the applicant was left in a position of material disadvantage.
The Minister, on the other hand, contends that no inference should be drawn that the Authority failed to listen to the recording. The Authority’s acknowledgement at [7] of its reasons that “[t]he applicant also spoke fluent Pashto and was able to describe his home area in detail during his protection visa interview held on 15 August 2019”, amounts to a clear indication that the Authority listened to the interview. The fact that the delegate also gave a similar description in their reasons should not diminish the Authority’s own observation at [7].
The Minister acknowledges that the Authority’s reasons do not reveal any express reference to the delegate interview. However, the Minister says that should not be regarded as surprising as the interview contained almost nothing of substance regarding the applicant’s core claims for protection. The Minister submits that on a fair reading of the interview transcript as a whole, it is apparent that most of the interview involved questioning about the applicant’s identity, his current work and health, and the issue of relocation.
As to the applicant’s submission that the finding at [11] could not have been made if the Authority had listened to the audio, the Minister says there is a simple answer. Nowhere in any of the materials before the Authority, save for the applicant’s post-interview submission, does the applicant describe himself as other than Bangash. Yet, in the applicant’s post-interview submission, he is described as Turi and there is not a single reference to his membership of the Bangash Tribe. On that basis, it was entirely unsurprising and perfectly open to the Authority to conclude that the reference to Turi was likely to have been a mistake.
Consideration
On balance, but not without some reservations, I am inclined to the view that the Authority did listen to the audio recording of the delegate interview. The Authority’s finding at [11] was open to it. The repeated references to the applicant’s Turi ethnicity in the post-interview submissions prepared by his solicitors does strike one as inexplicable having regard to all other material that was before the Authority, including the audio.
However, if the Authority did listen to the audio recording of the delegate interview, the Authority should have been aware of the important exchange I refer to at [40] of these reasons.
If, as I have found, the Authority did listen to the delegate interview, I am inclined to the view that this important exchange was not taken into account in relation to the Authority’s consideration of the applicant’s claims for protection. The exchange to which I refer above reinforces my view that ground one is made out and that the Authority failed to properly consider the applicant’s claim of fearing harm on account of bombings and the integers of that claim.
It follows that ground two is also made out.
Ground three
The applicant’s representative provided detailed submissions to the delegate at the post-interview stage regarding the risk of harm in the applicant’s home area of Kurram. In written submissions to this Court, counsel for the applicant submitted that the following information was before the Authority:
·a clear and repeated focus on the cyclical nature of sectarian violence in the region, together with a graph drawn from country information;
·the finding in the 2019 DFAT report that there was a moderate risk of sectarian violence for Turi (and by extension Bangash) Shias in Kurram;
·a submission that the delegate (and the Authority on review) should take a similar approach to the country information that had been taken by the Administrative Appeals Tribunal in a similar case; and
·detailed submissions about global factors, such as the impending US withdrawal from Afghanistan, that was likely to lead to a deterioration in sectarian violence into the foreseeable future.
The delegate accepted many aspects of the applicant’s post-interview submissions. The delegate accepted that the security situation was volatile and subject to change and that there was a possibility of further sectarian attacks in the future, such that the chance of harm to the applicant was more than remote[9]. In making that finding, the delegate accepted the applicant’s submission that the 2019 DFAT assessment of “moderate” risk was inconsistent with the cumulative risk to the applicant, given his status as Bangash, Pashtun and Shia in the Kurram District. In his submissions to the Authority, the applicant adopted the delegate’s risk analysis.
[9] CB 234
However, by ground three, the applicant submits that the Authority failed to consider and engage with his representative’s submissions about the cyclical nature of violence in the Kurram District. It is contended that the Authority failed to engage with the post-interview submissions in a meaningful way resulting in a failure by the Authority to conduct the review in the manner required by statute.
The applicant says that the Authority’s reasons contain no response to a squarely-raised issue, namely that violence in the relevant area is cyclical in nature. The applicant’s case is that there was clear and overwhelming evidence of a risk of resurgence of sectarian violence in the reasonably foreseeable future. Whereas the Authority made observations at [12]-[17] about targeted efforts to reduce the number of incidents of violence over time, the applicant submits that the Authority did not engage with the cyclical nature of violence.
At [20] the Authority found, inter alia:
“[…] [t]he improvements in security in the applicant’s area of Upper Kurram have been significant as a result of the ongoing security measures that have been adopted by the Pakistani government and particularly the measures they have undertaken since 2017 to secure Kurram.”
“In February 2019, DFAT provided an assessment of moderate risk of sectarian violence from militant groups to Turi’s in Kurram. However, I further note that there is no credible evidence before me that there have been further targeted sectarian or other attacks by militant groups against the Bangash/Turi Shia community in Kurram since that report was published eight months ago.”
The applicant submits that 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.
In particular, the applicant submits that the Authority failed to have regard to the very clear evidence which predicted a resurgence in violence following the US withdrawal from Afghanistan.
The Minister submits on the other hand that there is overwhelming evidence to support the conclusion that the Authority did consider and grapple with the applicant’s post-interview submissions. There are references to those submissions in the Authority’s reasons at [11], [15], [17], [22] and [26]. That is, at five points in the reasons the Authority refers to the applicant’s post-interview submissions and the Minister says there can be no substance to the submission that they were not considered. Moreover, information footnoted in the applicant’s submissions regarding the trendline for violence is similarly footnoted at [14] of the Authority’s reasons, suggesting an engagement between the two.
The Minister properly reminded the Court that the Authority was under no obligation to set out written reasons for why it accepted or rejected individual items of evidence[10]. The Court should therefore treat with caution any argument that the Authority failed to engage with submissions “in a meaningful way”[11].
[10] Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48]
[11] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ)
The Minister submits that 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. It is submitted that 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. The Minister submits that the choice and weight to be given to country information is a matter for the Authority.[12]
[12] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]
Consideration
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [24]-[27] (omitting footnotes):
“[24]Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive authority is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26]Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.”

The relevant question in issue here is not whether the Authority read the applicant’s post-interview submissions. It plainly did. The issue raised by this ground is whether the Authority sufficiently engaged with the representations and brought its mind to bear on the facts stated in them and the arguments and opinions put forward.
The applicant’s submission is that even if the Authority did read the post-interview submissions, it failed to appreciate the gravamen of those submissions, namely that the nature of violence in the Kurram area is cyclical and that a downward trend does not extinguish the possibility of a resurgence. Indeed, it is the very essence of a cycle that trends are temporary - there will be ebbs and flows and any prediction about risk in the reasonably foreseeable future must take those into account. Reliance on trends misses the point.
No issue can be taken with the Minister’s submission that the weight to be afforded to the applicant’s representations and submissions is a matter for the Authority. The Authority is not required to give reasons for rejecting or accepting individual items of evidence. I also accept the Minister’s submission that the Authority should be taken to have read and considered the information contained in the applicant’s post-interview submissions in some detail, unless the applicant can persuade otherwise. I also accept that the Court must be careful not to too readily find a lack of intellectual engagement or failure to properly consider the information which was before it.
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.
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.
Ground three is also made out.
Ground four
By ground four the applicant contends that the Authority’s finding that there was not a real risk of significant harm was irrational in that it could not rationally be reconciled with country information that the Authority accepted.
The 2019 DFAT report at [3.26] states as follows:
“DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups because of their Shia faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shia groups.”
It is common ground that this information was before the Authority. The Authority noted and accepted that assessment at [20] of its reasons. At [23] and [24], the Authority also accepted DFAT assessments that “discrimination and violence toward Shia tribes, particularly Turis, remains significant in Kurram agency”, and that “Kyber Pakhtunkhwa and districts in the former FATA are at greater risk of criminal or militant violence”.
The applicant submits that the Authority’s ultimate finding that the risk of harm was “remote” cannot rationally be reconciled with the Authority’s acceptance of country information which assessed “moderate risk”, “significant violence” and “great risk of violence”. The applicant submits that if the Authority was to conclude that the risk to the applicant was only remote, it was incumbent on the Authority to expressly reject the DFAT assessments and to explain why they did not apply to the applicant’s situation.
The applicant contends that the notion of “moderate risk” on any rational view exceeds the threshold for a “real chance” or “real risk” as would satisfy the refugee criterion or the complementary protection criterion under s 36(2)(a) and (aa). Where country information identifies the existence of a “moderate risk”, given the significance of that assessment to a claim for protection, it ought not be rejected without a rational and comprehensible explanation. In the absence of such an explanation, any conclusion that the risk of harm was remote could not rationally be drawn from the information that the Authority considered and apparently accepted.
At [20] of its reasons the Authority notes that there was no credible evidence before it of further sectarian attacks by militant groups against the Bangash/Turi community in Kurram in the eight months following publication of the 2019 DFAT report. This finding is a factor in the Authority’s conclusion that the applicant faced only a remote risk of harm.
The applicant submitted that the Authority was required to apply a predictive test but failed to do so. The applicant submits that a finding based on an eight-month downward trend immediately prior to the Authority’s decision cannot displace the DFAT assessment that the situation for sectarian violence in the region remained volatile. In circumstances where the Authority’s central task is to assess the risk of harm into the reasonably foreseeable future, the applicant argues that its assessment was misdirected.
In BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 (BJO18), the Full Court considered a not dissimilar situation where the Authority departed from country information, on that occasion the 2017 DFAT report into Pakistan. In that report DFAT noted that there had been three large-scale attacks targeting Turis in Parachinar in the first six months of 2017. The Full Court accepted that that was a matter pointing away from concluding that the frequency of sectarian attacks had reduced significantly. However, the Authority in that matter, while acknowledging the country information and reports of serious incidents, found that the relevant applicant had never been harmed or targeted in Pakistan for being a Turi, a Pashtun or Shia and that there was not a real chance that he would face serious harm for those reasons, now or in the reasonably foreseeable future.
The Minister relies upon the decision in BJO18 where the Full Court said at [125]:
“[125]Third, it is correct that the IAA said that “DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shia faith”. However, contrary to the appellant’s submissions, this does not show that the IAA fell into jurisdictional error in finding (at [52]) that there is not a real chance that he will suffer serious harm in the reasonably foreseeable future because he is a Pashtun Turi of Shia faith from the FATA Agency. Nor does it show that the IAA misapplied the required predictive test.”
The applicant in this case distinguishes his circumstances from the applicant in BJO18 on two bases. First, unlike the 2017 DFAT report, the 2019 DFAT report specifically predicts a downturn in violence but still finds that there is a moderate risk of violence into the future. Secondly, whereas the Authority in BJO18 was found to have engaged in a predictive assessment of the risk of harm in the reasonably foreseeable future, here it is submitted that the Authority failed to do so or based its assessment only on evidence that the applicant himself had not suffered harm in the past.
The Minister submits that the Court must reject the applicant’s assertion of irrationality in the Authority’s reasoning. The Minister impresses that the threshold for irrationality is high, that reasonable minds may differ as to the merits of the Authority’s conclusion, but it was not a decision which no rational decision-maker could have made.
The Minister argues that an assessment in a DFAT report of a “moderate” risk of harm “did not necessitate a finding by the [Authority] that the real chance test was satisfied”[13]. The Minister acknowledges that the 2019 DFAT report was taken into account by the Authority, as can be seen in its reasons at [17] and [20]. However, the Authority did not and was not required to uncritically accept the 2019 DFAT report.
[13] DVD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 858 at [37] (Judge Laing)
The Minister submits that there is nothing irrational about the Authority taking into account recent trends as part of its overall risk assessment. The Authority was entitled to and did take into account that there was no credible evidence of any further targeted sectarian or other attacks by militant groups in the eight month period between publication of the report and publication of its decision. The Minister rejects the suggestion that such a course of reasoning is inherently illogical or irrational or that it cannot form the proper basis for a predictive assessment of risk into the reasonably foreseeable future.
Consideration
The relevant statutory task requires the Authority to have regard to the chance of harm in the reasonably foreseeable future. A failure to do so by, for example, considering only the present or immediate future may amount to legal error[14].
[14] MZYXR v MIAC [2013] FCA 252 at [22]; MIAC v SZQKB [2012] FCA 1189 at [42]
In most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past. In the well-known passage in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo), the High Court observed at [574]:
“[574]Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”
It is accepted that findings regarding past events can provide a rational basis from which to assess whether an applicant’s fear of harm is well-founded.
But assessing what is likely to happen in the future on the basis of past events involves questions of degree. As the High Court explained in Guo at [574]-[575]:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a personal Tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of enquiry, that person or Tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
The essence of the real chance test is that it is forward-looking, it is predictive. Assessment of the chance of harm in the reasonably foreseeable future should be made on the basis of probative material, without extending into guesswork. In some cases, past events alone will provide a reliable means of predicting future persecution. In other cases, where an environment is highly volatile or fluid, a limited past period may not be a reliable guide. Although it is an inexact science, there should be a logical pathway of reasoning which illuminates the decision-maker’s prediction.
The real nub of the applicant’s complaint under this ground is that the Authority has in effect irrationally discounted, downgraded or departed from the 2019 country information by relying upon evidence of a downward trend in violence, including the absence of reports of violence since the country information was published eight months earlier. The applicant’s case is that it was irrational for the Authority to rely upon such recent information to override DFAT’s authoritative view that a “moderate” risk of sectarian violence would continue in the relevant region.
For a fear of persecution to be well founded, there must be a “real chance” that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched[15]. Counsel for the applicant submitted that rationally a “moderate risk” (as found in the 2019 DFAT report) will always, by definition, be a risk which is greater than one that is “remote” and therefore will necessarily be one which carries a “real chance”. This proposition was contested by the Minister.
[15] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
In DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858 (DVD18), the Administrative Appeals Tribunal relied upon country information indicating that there were “sporadic attacks” and a “moderate risk” of harm to Hindus in Bangladesh, but concluded that the applicant did not face a real chance of harm. Judge Laing of this Court was required to consider whether the Tribunal misapplied the “real chance” test as considered in cases such as Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Guo.
In DVD18 at [37] Judge Laing (citing BJO18) held that the reference in country information to terms such as “moderate risk” did not necessitate a finding that the real chance test was satisfied. The Minister relied upon her Honour’s judgment to make good the proposition that the 2019 DFAT report should not be taken in and of itself to require a finding of risk into the reasonably foreseeable future.
I do not dispute the correctness of her Honours finding as a matter of principle. But, as the applicant argued in reply, it is important to understand why the country information assessment of “moderate” risk gave way to an ultimate finding that the real risk of harm to the applicant was only remote.
The answer to that question in DVD18 can be found at paragraphs [38] to [41] of the judgment. In DVD18 the Tribunal acknowledged that the relevant country information which identified a moderate risk was referrable to the “general situation” but found that it was not specific to the applicant or his family. The Tribunal had regard to the particular situation faced by the applicant’s family in Bangladesh which involved consideration of a range of issues relating to the applicant’s education, living arrangements, employment and his father’s prominence in the community. The Tribunal found, all things considered, that the applicant did not face a real chance of serious harm or a real risk of significant harm. As to the Tribunal’s decision-making process, Judge Laing observed:
“[40]The Tribunal considered that the evidence did not suggest that the applicant’s family faced a higher risk than others of sectarian or terrorist violence on account of their religion. It found that the family were not politically active. Whilst the applicant had referred to land historically being taken, this did not appear to involve any ongoing difficulties or dispute. Considering the “family’s personal situation” together with the country information before it (indicating “moderate risk” and “sporadic attacks”), the Tribunal did “not accept that the applicant or his family face a real chance of serious harm or real risk of significant harm” on account of being Hindu in Bangladesh (at [76]).
[41]This was the correct statutory test. I do not accept that the Tribunal’s reference to country information referring to “moderate risk” or “sporadic attacks” in the general situation demonstrates that this test was misapplied. It was open to the Tribunal to consider this information together with the specific situation faced by the applicant’s family and to conclude that the applicant did not face a real chance of relevant harm. That the Tribunal appreciated and applied the correct test is also evidenced by its setting out of the test, consistently with Guo and Chan, at [79]-[80] and page 25 of its decision.”
Relevantly, in DVD18 there was a logical pathway of reasoning to explain the Tribunal’s departure from the country information. Specific evidence about the applicant’s personal circumstances and situation were taken into account and ameliorated the gravity of risk for the applicant relative to the “general situation”.
In the present case, the logic for departing from the country information is not so evident. As mentioned earlier, the 2019 DFAT report specifically factored-in a predicted downturn in violence as part of its assessment that there remained a moderate risk into the future. The Authority’s observation that there had been no violence in an eight-month period after the publication of the report is simply consistent with the report - it is not evidence which departs from the DFAT prediction, it reinforces it.
Unlike DVD18, the Authority in the present case did not identify anything about the applicant’s personal situation or circumstances which warranted a departure from the country information. In circumstances where the Authority found exactly what the 2019 DFAT report predicted, it is difficult to see any rational basis for the Authority to depart from the country information finding that Turis in Kurram Agency would continue to face a moderate risk of sectarian violence from militant groups because of their Shia faith. When looking to the future, the Authority’s finding that there had been an overall decline in sectarian violence over time and no evidence of attacks in the most recent eight months, does not in my view rationally challenge the country information which predicts an ongoing moderate risk of sectarian violence or explain why the Authority found the risk to be remote.
I am satisfied that ground four is made out.
Ground five
The applicant also seeks to impugn the Authority’s decision on the basis that it failed to conduct the enquiry required of it when assessing whether there was a real chance that the applicant would face serious harm in the reasonably foreseeable future on return to his home area of Pakistan.
It is submitted that in determining the level of risk faced by the applicant, the Authority embarked on an analysis of the relative decline in levels of violence compared to pre-2017 levels. In other words, the Authority’s conclusion that levels of violence were lower now (or were assessed as likely to be lower into the future) than they had been at some point in the past, reveals that the Authority did not engage in the proper statutory task which required an absolute finding as to whether there did or did not exist a “real chance”.
The applicant submits that a “relative assessment” which is couched in the language of “decline” [13] or “improvement” [12], [20] in levels of violence over time does not address the correct formulation which requires an assessment of whether, as an objective fact, the chance of harm in the future was more than remote. It is submitted that the Authority’s analysis was misdirected because a real risk may remain even though it is less grave than previously assessed.
The applicant submits that the Authority’s conclusion at [27] which does place the “real chance” statement in context is little more than a formulaic conclusion. The mere assertion by the Authority that it understood its statutory task, does not immunise the Authority’s reasons from critical assessment or a conclusion that it failed to apply the correct approach[16].
[16] AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [33] per Perry J

The Minister concedes that it would be erroneous for the Authority to apply a relative, rather than absolute test when assessing whether there was a real chance of harm. However, the Minister says that is not what occurred here and that the Authority’s reasons do not reveal error.
The Minister submits that by using the 2019 DFAT report as a reference point, it was open to the Authority to determine the absolute level of risk by considering whether the risk level had improved or deteriorated from that assessment. It is submitted that the DFAT assessment is objective and absolute, not relative. It is an objective peg in the ground from which a further assessment can be made.
Furthermore, it is submitted that the Authority ultimately stated its conclusion in terms of the correct test, revealing its understanding of the relevant statutory task. The Minister submits that the Court should infer that the Authority applied the test correctly and that its focus on the history of conflict was both permissible and orthodox.
Consideration
As has been stated, a fear of persecution will be “well-founded” if there is a “real chance” that the applicant will suffer the claimed persecution in the reasonably foreseeable future: s 5J(1) of the Act. A “real chance” is a prospect that is not “remote” or “far-fetched”[17].
[17] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 ; 87 ALR 412 at 418 per Mason CJ, CLR 398; ALR 424 per Dawson J, CLR 407; ALR 432 per Toohey J and CLR 429; ALR 448 per McHugh J
The Full Court in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (CGA15), referring to the decision of Moshinksy J in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (CID15), expressed the following at [23] about the “real chance” test:
“[23]The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.”
The issue of relative as opposed to absolute assessment of risk was more recently discussed by Anderson J in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663 (CJE16). In that decision the Court surveyed a number of relevant authorities (including CID15 and CGA15) which touched upon this issue. Relevantly at [29] his Honour said:
“[29]I wish to make a brief observation in passing. The relevant distinction drawn in CID15 and CGA15 was between a “relative” assessment and an “objective” assessment. However, in my view, it is more correct to characterise the relevant distinction as between a “relative” assessment (i.e. an assessment of the chance of harm considered in relation, or in proportion to, something else (e.g. a previous point in time)) and an “absolute” assessment (i.e. an assessment of the chance of harm considered independently of anything else). The balance of these reasons adopt this latter nomenclature.”
As mentioned, the Minister properly conceded that the Authority will have fallen into error if the applicant establishes that it applied a relative rather than an absolute test when assessing whether there was a real chance of harm. As stated in CGA15, “[w]hat matters is the actual level of risk in any particular place”.
The reasons of the Authority are to be read fairly and as a whole and without an eye unduly attuned to error. The issue here is whether the reasons when read in that manner reveal a misunderstanding of or misapplication of the relevant statutory task such as to amount to jurisdictional error.
In CJE16, Anderson J spoke to this issue. At [34] and following his Honour observed:
“[34]Caution should be exercised, however, in the application of this principle in construing the reasons for the decision under judicial review. The mere reference in the reasons of a decision-maker to a risk existing at a point in time previous to the time at which the decision is made does not, by itself, warrant the conclusion that the decision-maker has misapplied the “real chance” test. Neither does a mere reference to the degree of risk having improved over a period of time. There are two key reasons for this.
[35]The first reason relates to the nature of the country information before the decision-maker. The decision-maker in this case - the Tribunal - was required to undertake the “real chance” test as at the date of its decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; [2008] HCA 31 at [101] per Hayne and Heydon JJ. But a decision-maker such as the Tribunal will not have access to up-to-the minute country information. In considering and relying upon relevant country information, there will naturally be a gap in time between the date on which any relevant events influencing an assessment of risk occur and the date on which that events are reported in the country information. There will be a further gap in time between the reporting of the country information and the date at which the decision-maker is to assess any risks of harm to the applicant. As such, although decision-makers should ordinarily give precedence to the most current relevant information, it cannot be expected that decision-makers must only rely on country information published at, or immediately prior to, a decision being made. It is therefore to be expected that the reasons of the decision-maker, in assessing any relevant country information, will contain references to risks expressed to prevail at a point in time previous to the publication of those reasons.
[36]Second, the decision-maker will naturally assess the application for protection by reference to the particular claims for protection advanced by the applicant, and the particular events which are said to support those claims. As such, where, for example, the applicant raises a particular event in the past as supporting his or her fear of persecution, the decision-maker will be required to consider the risk of that event occurring again if the applicant is to return to his or her receiving country. In doing so, it would be unsurprising for the reasons of the decision-maker to express a view as to any change in the assessment of risk over that period. This, of course, does not excuse the decision-maker, for the purposes of determining the application, from having to form a view, as at the date of decision, as to the absolute chances that the applicant will suffer the claimed persecution in the reasonably foreseeable future if returned. Ultimately, whether the relevant decision-maker has engaged in a misapplication of the “real chance” test depends on the construction of the decision-maker’s reasons as a whole and, in particular, the substantive part of those reasons, rather than recitations in the introduction or conclusions.”
When the reasons are read as a whole, I am persuaded that the Authority did engage in an impermissible relative assessment of risk and did not discharge its statutory task of forming a view, as at the date of decision, as to the absolute chance that the applicant will suffer the claimed persecution in the reasonably foreseeable future if returned. While the Authority’s conclusion at [27] might give the impression that it did so, I am mindful of the instruction given in CGA15 that a statement of conclusion in a decision-maker’s reasons are not always a reliable guide as to whether the decision-maker applied the correct test. I agree with the applicant that the language adopted throughout the reasons points to an assessment which focuses on trends rather than a concrete objective determination.
In my view, ground five is also made out.
In any event, even if I am wrong and the Authority did adopt the type of approach explained by Anderson J at [35] of CJE16 - by using the DFAT country report as a reference point and giving consideration to evidence of risk to fill the gap between the publication of the report and the date of decision - that approach resulted in what I have found to be an illogical or irrational finding, as discussed in relation to ground four. The relative improvements and decline in sectarian violence over time only reinforces the DFAT prediction but does not undermine its assessment that there remains a moderate risk of such violence. In the face of the 2019 DFAT report, the observed downward trend in violence does not in and of itself rationally support a finding that the risk is objectively remote.
Ground six
By reason of my earlier findings, it is not strictly necessary to proceed to determine this ground. However, I am again satisfied that judicial error has been revealed.
It is common ground that the Authority was required to consider two separate and distinct questions in terms of whether the applicant satisfied the criteria for a protection visa, namely:
(a)whether the applicant satisfied s 36(2)(a) of the Act because he was a refugee as defined in s 5H of the Act (the refugee assessment); and
(b)whether the applicant satisfied s 36(2)(aa) of the Act because there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his home area in Pakistan, there was a real risk that the applicant will suffer significant harm (the complementary protection assessment).
In DQU16 v Minister for Home Affairs (2021) 273 CLR 1 the High Court reinforced that the two separate assessments give rise to different enquiries and are for different purposes. At [18] the Court stated:
“[18]As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different (37). Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen’s removal to a particular State.”
The enquiry for the purpose of the refugee assessment is directed at determining whether the applicant has a well-founded fear of persecution for one of the Convention reasons. That necessarily requires the decision-maker to ascertain whether the applicant’s circumstances engage one or more of the Convention grounds and then to determine whether his or her claims establish a well-founded fear of persecution for one of those reasons.
The Convention reasons do not form part of the enquiry for the purposes of the complementary protection assessment under s 36(2)(aa). Reasons are irrelevant. The only issue is whether the applicant faces a risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to the receiving country - here, Pakistan. That is, the complementary protection assessment focuses entirely on the consequences of removal and there is no requirement that the harm be inflicted for a particular reason or that it be personally targeted toward the applicant.
As there is often factual overlap in the two assessments, it is permissible for a decision-maker to refer to the previous findings under the refugee assessment when carrying out the complementary protection assessment. Such an approach has long been recognised[18] and has become orthodox in protection visa decision-making.
[18] DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [27]
However, the decision-maker will fall into jurisdictional error if they conflate the two tasks and fail to contemplate the separate question posed by the complementary protection assessment.
By ground six the applicant contends that the Authority erred by failing to undertake a separate complementary protection assessment in the present case. The applicant submits that the Authority at [29]-[32] of its reasons did no more than recite the statutory test and adopt its own previous findings under the refugee assessment. Because those earlier findings were limited to findings of harm for Convention reasons only, it is submitted that the Authority failed to consider harm as a necessary and foreseeable consequence of a return to the Kurram District of Pakistan. That is, the Authority conflated the issues and impermissibly conducted the complementary protection assessment through the refugee assessment lens.
The consequence of the asserted error is that the Authority disregarded reports of attacks or violence which it considered were not motivated by a Convention reason. Accordingly, risks of harm such as reports of roadside bombings in Kurram in 2018 were not taken into account as part of the complementary protection assessment. Based on reports the Authority found at [14] that victims of these bombings were not deliberately attacked by a Sunni militant group “because they were Shia Turi/Bangash”. The applicant submits that the Authority fell into error because it was required to consider such incidents as part of the analysis of the necessary and foreseeable consequences of removal to Pakistan, regardless of whether the violence is motivated by sectarian tensions.
In a nutshell, the applicant identifies the Authority’s error at [65] of its written outline of submissions:
“[65]For the IAA to complete the Complementary Protection Assessment required by the Act, it needed to revisit all such incidents that it dismissed on the basis that there was no specific targeting of individuals for a Refugee Convention reason and ask the separate question of whether those incidents nevertheless pointed to a real risk of significant harm as a consequence of removal from Australia to Pakistan, regardless of the reason for the harm.”
The Minister’s response to this ground is simple. The Minister concedes that the Authority did not undertake a complementary protection assessment, but says that it was under no obligation to do so. The Minister’s case is that the applicant never made a claim to fear harm from “generalised violence” and “never made any separate or distinct claim under the complementary protection criterion”[19].
[19] Minister’s Written Outline of Submissions 9 at [39]
The Minister submits that each time the applicant claimed to fear harm from bombings, attacks or other violence in his home area, he did so in the context of a Convention reason, principally his faith as a Shia Muslim of the Bangash tribe. The Minister submits that all of the applicant’s claims engage Convention grounds and that nowhere in any of the documents or materials does he claim to fear harm from generalised violence or make a claim for complementary protection.
Consideration
I find that the Authority was required to undertake an assessment of the applicant’s claims for the purposes of complementary protection and that it failed to do so. The Authority in my view impermissibly conflated the two distinct tasks and failed to properly consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm.
I do not accept the Minister’s submission that the Authority was under no obligation to undertake the assessment.
In my view, for the reasons expressed in relation to ground one, a material error revealed by the Authority’s reasons was its failure to engage with the core of the applicant’s claims. The very essence of the applicant’s fears are articulated in his statutory declaration dated 10 April 2017, particularly at paragraphs [1], [10]-[15] and [21]-[23]. In that statutory declaration under relevant headings the applicant describes why he left Pakistan, who he feels will harm him and what he fears will happen to him. As I have mentioned elsewhere in these reasons, the applicant also reiterated his fear of harm from generalised bombings at the delegate interview.
I do not accept the Minister’s submission that the applicant never claimed to fear harm from generalised violence and that he never made a claim for complementary protection. But even if he did not expressly make a distinct claim of that type, in my view such a claim clearly emerged from the materials and was clearly articulated[20]. Whether a claim clearly emerges is not a finding to be made lightly[21], but in my view the applicant’s claim to fear harm from randomised bombings undertaken by sectarian actors was a claim that should have been assessed under the complementary protection criterion.
[20] NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [61]-[62]
[21] AYY17 v Minister for Immigration and Border Action (2018) 261 FCR 503 at [18]
The Authority’s failure to discharge its statutory task constituted jurisdictional error. Accordingly, ground six is also made out.
DISPOSITION
For the reasons set out above, I have found that the decision of the Immigration Assessment Authority dated 23 October 2019 is affected by jurisdictional error.
Accordingly, the applicant is entitled to the relief sought in the amended application. The decision will be quashed and the application should be remitted to the Authority to be re-heard and determined according to law. Orders will be made accordingly.
The Minister should pay the applicant’s costs to be agreed or in default of agreement to be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 21 December 2023

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44]–[45] per Bell, Gageler and Keane JJ; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 at [4] per Kiefel CJ and Gageler J.

File number:	MLG 3947 of 2019
Judgment of:	JUDGE FORBES
Date of judgment:	21 December 2023
Catchwords:	MIGRATION – protection – application for judicial review of decision of Immigration Assessment Authority to affirm decision of delegate not to grant SHEV – whether Authority considered applicants claims for protection – whether claim of fear of bombings clearly asserted or clearly arises – distinction between evidence and integer – real chance of persecution – whether Authority failed to listen to or properly consider audio recording of delegate interview – whether Authority properly engaged with submissions about cyclical violence – whether departure from country information rational – whether risk to be assessed absolutely or relatively – test for assessment of foreseeable risk – whether moderate risk is necessarily a real risk
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB, 473DB
Cases cited:	AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 AYY17 v Minister for Immigration and Border Action (2018) 261 FCR 503 BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 CGA15 v Minister for Home Affairs (2019) 268 FCR 362 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663 DQU16 v Minister for Home Affairs (2021) 273 CLR 1 DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858 ELA18 v Minister for Home Affairs [2019] FCA 1482 ETA067 v The Republic of Nauru [2018] HCA 46 MIAC v SZQKB [2012] FCA 1189 Minister for Home Affairs v Buadromo (2018) 267 FCR 320 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 MZYXR v MIAC [2013] FCA 252 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121
Division:	Division 2 General Federal Law
Number of paragraphs:	142
Date of hearing:	4 December 2023
Place:	Melbourne
Counsel for the Applicant:	Dr McBeth
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondents:	Mr Barrington
Solicitor for the Respondents:	Australian Government Solicitor

MLG 3947 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EMM19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	21 DECEMBER 2023