BPY20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 487

1. The applicant also provided a statutory declaration dated 9 October 2014 and supporting documents with respect to his involvement with an association called Shia Safety and its activities in Pakistan (CB 46-283).
2. The applicant was interviewed by the department on 6 December 2016.
3. On 16 December 2016, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under either s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act") ("delegate's decision") (CB 292-304).

Application for review to the Administrative Appeals Tribunal

1. On 10 January 2017, the applicant applied to the Tribunal for a review of the delegate's decision (CB 305-306). The applicant appointed a registered migration agent to act as his representative.
2. On 24 July 2018, the Tribunal invited the applicant to attend a hearing on 21 August 2018 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone. The Tribunal requested the applicant to provide written submissions by 14 August 2018 setting out the claims made and maintained by the applicant, and if the applicant was proposing that a witness give evidence at the hearing, a witness statement setting out the witness's evidence be provided by 14 August 2018 (CB 315-318).
3. On 15 August 2018, the applicant provided written submissions, supporting documents and new country information for Pakistan (CB 319-564). The written submission, after setting out the applicant's background and claims, responded to the delegate's decision and attached various documents as follows (in summary):

(a) A document profile summarising the objectives and structure of Shia Safety (CB 330-334);

(b) The delegate had not considered the evidence detailing the widespread activities of projects of Shia Safety or given proper weight to the organisation's media coverage and public notoriety and attached documents detailing Shia Safety's current and past projects described as - numerous security systems including the facilitation of installation of CCTV cameras; other security and humanitarian projects such as providing food rations to families of the Shia community; the donation of an ambulance to improve local medical response to terrorist attacks; conferences organised in the United Kingdon and protests organised in Australia and attached documents about Shia Safety projects for 2017 to 2018 being photographs of various activities (CB 335-360; 408-413);

(c) Receipts for payments sent from the applicant to members of Shia Safety in Pakistan said to represent donations the applicant received in Australia totalling more than $30,000.00 (CB 361-407);

(d) Details of a recent project called 'Cure Pakistan' to help Shia families recover from attacks and terrorist events, and that at a session to raise awareness of the project the Deputy Inspector General of Police mentioned the applicant by name and praised his efforts and the 'widespread service' he is providing and attached documents being photographs and commentary about the project (CB 414-419);

(e) Salary vouchers from 2016 to 2018 for two members of the organisation and a salary record sheet (CB 420-444);

(f) Copies of the annual general meeting minutes of Shia Safety for the 1 July 2014, 1 July 2015, 29 February 2016, 1 July 2016, 26 June 2017, 14 August 2017, 16 September 2017 and 22 December 2017 (CB 445-460);

(g) A document recording the expenses of each project (CB 461-463);

(h) Bank statements for Shia Safety in Australia for the period 3 February 2017 to 30 June 2018 detailing the donations credited to the account and explaining that the Treasurer then withdrew the money and sent it to Pakistan where the money was used to purchase various goods and services for the Shia community such as security cameras and food and attached associated receipts (CB 464-511);

(i) That the applicant is represented as the face of Shia Safety and attached the text of a number of interviews including an SBS interview with the applicant and that the TV reports specifically mention the applicant (CB 512-516);

(j) That the applicant has received a number of death threats, evidencing the dangerous reputation and attached 'a few of these threats' (CB 517-522);

(k) Letters of appreciation addressed to the applicant and requests for security measures to be installed (CB 527-543);

(l) A 'comprehensive' database of the donors to Shia Safety for the period 5 April 2017 to 1 February 2018 (CB 544);

(m) Documents about protests for Shia missing persons being commentary and photographs and two signed petitions (CB 546-552);

(n) Documents detailing the applicant's 'public outcry' towards Pakistani authorities relevant to the applicant's claim that he was at risk of persecution at the hands of the Pakistani authorities, being commentary about the social media campaign of Shia Safety; photographs; links to newspaper reports and links to messages and videos on the Facebook page of Shia Safety (CB 553-564).

1. The submission then referred to country information in the DFAT report regarding sectarian violence and that Shia Muslims have historically suffered the highest number of casualties and that whilst the report states that most Shia Muslims face a low risk of violence, the report notes that high-profile Shia continue to face a "moderate risk of violence as they are more likely to be targeted". The submission went on to note that whilst it may be argued that relocation to the safer cities of Shia in Lahore and Islamabad might be a viable option for the applicant, this was not the case given the applicant's "notoriety extends beyond Karachi and across Pakistan, even attaining international recognition" (CB 327).
2. On 21 August 2018, the applicant attended the hearing. He was assisted by his migration agent (CB 566-568). The Tribunal gave the applicant to 31 August 2018 to provide further information (CB 568).
3. On 28 August 2018, the applicant's migration agent provided the Tribunal with a further submission and supporting documents (CB 569-612). The submission addressed the applicant's profile as the figurehead of Shia Safety both nationally and internationally; his political opinions and his prospects of relocation in Pakistan including by:

(a) Attaching a table setting out information on the various media channels the applicant had appeared on whilst being interviewed in relation to Shia Safey, and identifying the associated Facebook pages and YouTube channels from which it was submitted it could be assessed that the applicant has a profile that could gain adverse interest from groups opposed to his views, and that as the majority of the channels are Pakistani channels, this reinforced that the applicant's profile had spread throughout Pakistan;

(b) That the applicant had received threatening and abusive comments on each of the videos posted and attached a number of screenshots depicting a segment of threats translated from Urdu on certain videos;

(c) The applicant's political opinion and what he has done in the active pursuit of justice for Shias in Pakistan: that he had arranged a protest in Melbourne outside of Parliament house and a protest at the Pakastani High Commission in Canberra to demonstrate solidarity with the families of Shia missing people and demand the release of Shia Muslim activists and that the videos show the applicant speaking out against Wahabi ideologies;

(d) Shia Safety had started a social media campaign raising awareness for the consequences of a government decision permitting extremist groups running for election in Pakistan noting that the applicant was heavily involved in the campaign posting a video of Shia Safety's Facebook page expressing his views about this;

(e) Shia Safety had raised concerns on social media against organisations such as the Lal Masjid and the applicant discussed the terrorist activities run by these organisations;

(f) Shia Safety has introduced portable virtual security systems in an attempt to protect the Shiite community;

(g) Media coverage demonstrates that the applicant will remain a target regardless of where he resides in Pakistan because of his profile and that attacks on Shia activists have been carried out by 'outfits' prevalent throughout various areas of Pakistan.

1. On 24 March 2020, the Tribunal affirmed the delegate's decision and gave written reasons for its decision ("reasons for Decision") (CB 622-651).

1. The Tribunal identified that the issue on review was whether the applicant meets the criteria set out in either of s 36(2)(a) or s 36(2)(aa) ([18]), summarised the relevant law ([5]-[16]) and noted the requirements of Ministerial Direction No. 84 with respect to the relevant guidelines and country information prepared by the Department of Foreign Affairs and Trade ("DFAT") ([17]). The Tribunal found the applicant to be a citizen of Pakistan for the purpose of assessing his protection claims ([19]-[20]).
2. At [21]-[23], the Tribunal set out the applicant's migration history.
3. The Tribunal then said (at [24]) that it had considered the documentation provided by the applicant in support of his application 'including' and then set out a list of documents.
4. At [25] under the heading 'The applicant's claims', the Tribunal summarised the applicant's claims.
5. The Tribunal then summarised the applicant's evidence ([26]-[35]). The Tribunal concluded by stating that "as a result the applicant claims that ... there is a real chance that he will be seriously harmed by unknown members of Sunni terrorist groups" ([36]).
6. The Tribunal then stated that "in assessing this decision", it has considered the available country information, in particular, an earlier DFAT country information report for Pakistan dated 1 September 2017 together with the most recent DFAT country information report dated 20 February 2019 and noted that so far as the applicant's claims are concerned there is no material difference between the two reports ([37]). The Tribunal then set out extracts from the later report under the headings Security Situation; Shi'a; Anti-Shi'a violence; and Prevalence of Fraud ([37]). The DFAT country information report dated 20 February 2019 was annexed to the applicant's solicitor's affidavit filed in these proceedings.
7. The Tribunal then considered the applicant's claims and evidence.
8. As to the applicant's claim that as a Shia Muslim he has a well-founded fear of being harmed by Sunni Muslim extremists as a result of his efforts to assist the Shia Muslim community to protect themselves against Sunni Muslim extremists, and his claim that as a result of his association with Shia Safety and his advocacy in support of the Shia community there is a real risk he will be seriously harmed in the event he returns to Pakistan, the Tribunal accepted that the applicant's claims fell within [then] s 91R(1)(a) of the Act by reason of religion ([47]). As to the applicant's claim that by reason of his membership of a particular social group, that is as a person the authorities may detain as a result of having spoken out against the Pakistan authorities inability to protect Shia's in Pakistan, the Tribunal accepted that the applicant is a member of a particular social group pursuant to s 5L of the Act.
9. The Tribunal then considered whether pursuant to s 5H of the Act the applicant has a well-founded fear of persecution within the meaning of s 5J for the reason of religion or membership of a particular social group ([50]-[98]). The Tribunal accepted that the applicant has a subjective fear of being harmed or being persecuted in the event he returns to Pakistan ([51]). As to whether the applicant holds a well-founded fear of persecution on an objective basis, the Tribunal said that the applicant's claim must be more than merely plausible or credible ([52]-[53]). The Tribunal concluded (at [54]; [99]-[100]) that it was not satisfied that the applicant by reason of his association with Shia Safety and his advocacy in support of the Shia community had a well-founded fear of persecution on an objective basis. In reaching that conclusion, the Tribunal gave the following reasons:

(a) As to the applicant's claim that his brother-in-law is a Hazara and has relatives in Pakistan who have been affected by sectarian violence: the Tribunal accepted that the applicant's brother-in-law is Hazara and noted the applicant's claim that his brother-in-law is an ethnic Shia Asna Ashari. The Tribunal found that there was no evidence to suggest that the applicant's brother-in-law's ethnicity or any claims of violence against his relatives in Pakistan are related to the applicant's protection claims of being associated with Shia Safety or as an advocate for the Shia community. Accordingly, the Tribunal found there was no real chance the applicant would be seriously harmed by reason of his brother-in-law's ethnicity ([55]-[56]);

(b) As to lectures and information sessions to the Shia community: the Tribunal referred to the applicant's claim to fear of harm from extremist groups as a result of his profile of raising awareness about Shia Safety in Pakistan by being the mouthpiece of the Shia community in Pakistan, providing lectures and information sessions to the Shia community on how to watch out for would be terrorists and what to do during a terrorist attack. The Tribunal said that based on the applicant's evidence to the Tribunal and the applicant's statement of interview with the department it does not accept that the information provided by the applicant would be something new or useful to the Shia community facing sectarian violent in Pakistan and that the applicant's information session would not have provided any value in preventing sectarian attacks against the Shia community in Pakistan ([57]);

(c) As to donations to Shia Safety: the Tribunal summarised the applicant's explanation as to how Shia Safety facilitates the installation of security equipment at Shia Mosques and other sites in Pakistan through donations and his evidence that there are many overseas donors. The Tribunal said that "whilst this may be the case", the applicant had not provided any evidence of donations having been received by Shia Safety from overseas donors. The Tribunal referred to the copies of donations receipts provided by the applicant to the Tribunal for amounts ranging from approximately $400 to $6,000 (which are at CB 130-142; 153-155) and observed that the applicant had not explained how he and Farahan Ali (who the applicant said was employed in Pakistan) were both able to sign the receipts. The Tribunal also observed that there was no evidence of the receipted amounts being deposited in to the Shia Safety bank account ([58]). As to the Shia Safety bank statements for the period 3 February 2017 to 31 June 2018 provided by the applicant, the Tribunal observed that during that period the account only had a modest balance with only relatively small amounts deposited and withdrawn at any point in time. The Tribunal observed that, nevertheless, the applicant claimed that donations of over $30,000 had been received and provided a list of donors. The Tribunal said that these donations are reflected in the bank statements ([59]);

(d) As to the purchase of equipment from various suppliers: the Tribunal referred to the invoices made out to Shia Safety which the applicant had provided (which are at CB 121-132; 485-511) and said that it was unable to locate the payment of these invoices in the bank statements ([60]);

(e) As to the purchase of the ambulance: the Tribunal referred to the sales receipt dated 28 August 2017 (which is at CB 409-413) and noted an amount which had been deposited to the Shia Safety's bank account, transferred on the same day by the applicant and transferred to Abid Ali Jaffi in Pakistan. The Tribunal said that the applicant had explained that it was easier for him to transfer money from his own bank account to Pakistan rather than from the association's account. The Tribunal said it was not made clear why this was the case but nevertheless accepted that the funds had been used to facilitate the purchase of an ambulance ([61]);

(f) As to the payment of staff in Karachi: the Tribunal referred to the salary vouchers (which are at CB 420-441) and the salary record sheet (which is at CB 442-444) and noted that the amounts paid were not recorded in the association's bank statements. The Tribunal said that the applicant explained that he paid the salaries personally. The Tribunal said that the transfer of money receipts do not reflect the salary payments claimed to have been paid by the applicant. The Tribunal said that it therefore concluded that in light of the fact that the financial statements of the association do not correspond to the documentation provide in relation to the payment of salaries by the association, it did not accept the applicant's evidence that Shia Safety has two permanent employees in Pakistan ([63]);

(g) As to the association's meetings: the Tribunal referred to the applicant's evidence that the board only met annually at the annual general meeting and that he provided copies of the minutes of the annual general meeting for the years 2014 to 2017 (which are at CB 445-460). The Tribunal also referred to the minutes of meetings provided by the applicant in respect of project meetings for the months June, August and September 2017 (which are at CB 452-457) and referred to donations for the ambulance, ladies Majalis and a campaign to protest missing Shia in Pakistan. The Tribunal observed that the minutes were not signed and only provided a brief description of matters discussed and action to be taken despite the wide range of matters claimed to have been undertaken by the association. The Tribunal also observed that there appeared to be no sharing of responsibilities between members of the association and that whilst the minutes record the other members attending, they were not otherwise involved in any of the association's claimed action plans ([64]);

(h) The Tribunal then stated that from the minutes of the meetings and the financial records, the association's business appeared to be conducted on an ad hoc basis with the applicant being the sole contributor to the association's activities. The Tribunal stated that given the association's limited financial and personal resources it was difficult to believe that its operations are as widespread as claimed by the applicant ([65]);

(i) The Tribunal said that it accepted that the applicant's evidence that as an office holder of Shia Safety he is engaged in the business of providing security equipment to Shia Mosques and other community groups as claimed. However, the Tribunal said it did not accept the applicant's claim that Shia Safety has a widespread reputation and recognition in Pakistan and referred to the following matters: the activities of the association are dependent on donations received in response to requests from Shia Mosques and other community groups; there appears to be no formal governance or financial controls but rather the applicant appears to conduct the association according to his own agenda without proper reporting or recourse to the association's board; on his on evidence the applicant has freely received and transferred money between the association's bank account and his own, making it difficult to reconcile the association's accounts with donations claimed to have been received with claimed payments including salaries ([66]);

(j) The Tribunal did not accept, having regard to the size of the Shia population in Pakistan, that donations of $30,000 is a significant amount and is not indicative of "widespread reputation and recognition". As a result, and having regard to the manner in which the association's finances and governance are managed and that it primarily acts as an agent matching requests for security equipment with donations, the Tribunal did not accept the applicant's submission that that the "Shia Safety team" have continued to develop and evolve as an organisation ([67]);

(k) As to the threats the applicant claimed to have received as a result of Shia Safety having distributed safety equipment to the Shia community, that he is known to the government and extremists and is a direct threat to the terrorists, the Tribunal said it was extremely unlikely that any terrorist organisation would be intimidated by the fact that security equipment has been placed on a site the subject of their attack, and it was highly unlikely that any terrorist group would be concerned by an organisation such as Shia Safety or the applicant who merely facilitates the installation of such equipment ([68]);

(l) The Tribunal referred to the undated report made to the Police by the Shia Safety Coordinator (CB 526). The Tribunal said that in circumstances where Shia Safety had little money in its bank account and relied upon donations for security equipment requested by Shia Mosques and other community sites, it does not accept that the association was in the position to offer the security services as claimed. The Tribunal had regard to country information about fraudulent First Information Reports and concluded that it did not accept that the offer had been made ([69]);

(m) The Tribunal found that there is no real chance the applicant will be seriously harmed in the event he returns to Pakistan by reason of having facilitated the supply and installation of security equipment into Shia Mosques and other Shia community sites in Pakistan ([70]);

(n) As to the applicant's claim that Shia Safety had undertaken a project called Cure Pakistan and had hosted three events: the Tribunal said that the photographs on the website indicate that the seminar was organised by an association known as Cure Pakistan Welfare and not Shia Safety. The Tribunal said that there was no indication in the photographs provided on the website or any other document that Cure Pakistan was a sub-project of Shia Safety as claimed, or it having arranged and conducted the event claimed. The Tribunal considered the applicant's submission that the Deputy Inspector of Police attended one of the sessions but said that when it searched the Facebook page at which it was said the Inspector's speech was recorded, the content was not available ([71]). The Tribunal considered TV reports which the applicant had referred to. The Tribunal said that it referred to campus conduct by Cure Pakistan in which first aid and self-defence training against terrorist attacks was provided for community groups across Pakistan generally and not just for the Shia community. A representative of Cure Pakistan interviewed during the report stated that the camps were for all Pakistan citizens and did not refer to the applicant or to Shia Safety. As to a TV report of an event arranged in Karachi regarding first aid and self-defence: the Tribunal said there was no reference in the report of the event having been arranged by Shia Safety. The Tribunal said that it appears other organisations are also conducting first aid and self-defence events in Pakistan without any reported retaliation from terrorist groups. As such, the Tribunal said it did not accept that the applicant will be harmed if he returns to Pakistan ([72]). The Tribunal went on to say that even if the applicant and/or Shia Safety did arrange the Cure Pakistan events as claimed, there was no evidence that the applicant or any other member of Shia Safety had been threatened as a result of their involvement in the seminars and did not accept that if in conducting the seminars as claimed, the applicant had developed a profile within the general population in Pakistan which had attracted the attention of terrorist groups and that having been mentioned in a speech by the Deputy Inspector, as claimed, has not heightened the applicant's profile to the extent that he would be harmed by terrorist groups in the event he returned to Pakistan ([73]), and found there is no real chance the applicant will be seriously harmed by reason of his involvement with Shia Safety in conducting the Cure Pakistan seminars as claimed ([74]);

(o) As to the applicant's claim that Shia Safety had provided emergency monitoring cells to ladies Majalis on an as needed basis and that Shia Safety has become proactive in providing security measures to ladies Majalis: the Tribunal said there was no evidence that Shia Safety had provided any security equipment or emergency monitoring cells to the ladies Majalis as claimed. The Tribunal referred to the Shia Safety website stating that the provision of security and monitoring equipment was planned but did not refer to any case in which equipment had been installed and there was no evidence of any money having been donated specifically for a ladies Majalis or installing such equipment ([76]). Accordingly, the Tribunal found that there is no real chance the applicant will be harmed if he returned to Pakistan as a result of his involvement with Shia Safety having installed security and monitoring equipment for ladies Majalis as claimed ([77]);

(p) As to the Mall of Smiles Project: the Tribunal referred to the report on the Shia Safety website describing this project and an event on 24 March 2018 and the applicant's claim that in an interview he explained how Cure Pakistan [the Tribunal must have intended to refer to Mall of Smiles] was helping families. The Tribunal said that the report was not translated to English and so the Tribunal was not able to determine the context in which the applicant was referred to and concluded it did not accept that Shia Safety was involved in arranging the event as claimed ([78]). The Tribunal said that if the applicant and Shia Safety were involved as claimed, there was no evidence that the applicant was threatened or attacked as a result of the Mall of Smiles Project and that the event was a one-off event with no further action taken since. The Tribunal said there was no evidence that because of the applicant's involvement in the event he has developed a profile within the general population of Pakistan or the Shia community that would make him a particular target for terrorist groups and did not accept that the applicant's profile within Pakistan would be raised to the level that he would be a specific target of terrorist groups in circumstance where he has not been threatened or harassed as a result of is involvement in the event ([79]). The Tribunal found there is no real chance the applicant will be seriously harmed by reason of his involvement with Shia Safety in conducting the Mall of Smiles Project as claimed ([80]);

(q) As to the applicant's claim that he is the face or spokesperson of Shia Safety: the Tribunal considered copies of social media posts and interviews the applicant had conducted and accepted that he had been involved in the interviews and TV reports as claimed ([82]). The Tribunal referred to an interview with the applicant in the Islam Times which had not been translated into English. The Tribunal said it was unable to determine if the articles were detrimental to the applicant's safety and did not accept that given the age of the articles and the fact that they appeared to merely report on the activities of Shia Safety providing security equipment to Shia Mosques it did not accept that there is any real chance the applicant will be seriously harmed as a result of having provided the interview ([82]);

(r) As to the applicant presenting a petition to a member of the Australian Parliament against ISIS activities in Iraq: the Tribunal said that it did not accept that there is a real chance that the applicant will be seriously harmed in the event he returns to Pakistan by reason of his protest against ISIS activities in Iraq and his presentation of a petition to an Australian Member of Parliament ([83]);

(s) As to the applicant having attended protests in Canberra and Melbourne against missing persons in Pakistan: the Tribunal referred to the video footage of those protests and said that they appeared to be relatively modest with only a small number of protesters attending the rallies ([84]);

(t) The Tribunal then referred to the applicant having provided "Facebook photos of the protests together with three threats that were alleged to have been made on Facebook in our about 2014 in response to the photos". The Tribunal said that in its view these threats were general in nature amounting to no more than hate mail rather than a specific threat to harm the applicant. The Tribunal said that, in any event, the threats were made in 2014 and there was no evidence that any further threats have been made since that time. The Tribunal said that given the passing of time, it had significant doubts about the extent and the substance of the threats made and that there is no real chance the applicant will be harmed as a result of attending the protest in Canberra and Melbourne in the event he returns to Pakistan ([84]);

(u) The Tribunal then referred to the television and radio interviews the applicant had conducted on behalf of Shia Safety and the list and description the applicant had provided of these interviews. The Tribunal said that it viewed the interviews on the USB stick provided by the applicant. The interviews were in Urdu with no translation provided. The Tribunal said that from the commentary provided by the applicant on those interviews it appeared that most involved a discussion of the services provided by Shia Safety in supplying security equipment ([85]);

(v) The Tribunal accepted that Shia Safety has been in the business of providing security equipment to the Shia community by receiving requests and matching those requests with possible donors. The Tribunal found that as a result of the poor governance and financial position of the association, it conducts its business in an ad hoc fashion at the will of the applicant. The Tribunal said that save for the threats referred to, there was no evidence that the applicant had received specific threats to his safety as a result of him appearing in news reports and conducting interviews as claimed. The Tribunal said that it therefore concluded that it did not accept that by doing so the applicant had raised his profile in Pakistan to the extent that he would be targeted by terrorist groups in the event he returns to Pakistan ([86]);

(w) The Tribunal then considered the applicants claim that he has come to the attention of the Pakastani authorities and that as a result there is a real chance he will be seriously harmed by Pakistani authorities if he returns to Pakistan. The Tribunal said that it accepted that the applicant acted as an advocate for improved Shia safety in Pakistan but said that given that Shia Safety is conducted on an ad hoc basis with poor governance and limited resources, it was of the view that only a modest impact on the Shia community could have been made. The Tribunal said that, in any event, the applicant's evidence was the Deputy Inspector General of Police attended one of the sessions praising the work of the association and the applicant. The Tribunal said that if that is correct then it appears the authorities are in favour of his work and as such is not at risk of any harm from the authorities as claimed ([89]);

(x) The Tribunal then considered the applicant's claims that as a Shia Muslim there is a real chance he will suffer serious harm if he is returned to Pakistan. The Tribunal referred to the country information which reported that Shia live throughout the country in urban areas including Karachi and that they are well integrated with the Sunni community. The Tribunal considered that the DFAT report (20 February 2019) notes that Shia continue to face a threat from anti-Shia militant groups. Nevertheless, the Tribunal observed that the DFAT report notes that overall, most Shia in Pakistan face a low risk of sectarian violence but that this risk can depend on a person's geographic location and on membership of specific groups and that high profile Shia face a moderate risk of violence. The Tribunal referred to its finding that the applicant does not have a high profile that would attract the attention of terrorist attack. The Tribunal said that even if the applicant did have a high profile as claimed, the country information is that there is only a moderate risk of harm. Accordingly, based on the country information and the applicant's own evidence, the Tribunal found that there is no real chance the applicant will be seriously harmed by reason of being a Shia Muslim if he returns to Pakistan ([91]-[94]);

(y) The Tribunal then considered the applicant's claim that he is at risk as a result of threats he had received and the general threat of general violence against him as a result of his association with Shia Safety and as an advocate to Shia Safety more generally. The Tribunal accepted that the security situation in Pakistan is complex and volatile. It noted that the country information reports that Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. However, it is reported that the NAP and the presence of the Rangers has led to a significant decrease in violence including sectarian violence and noted that DFAT assessed that a low level of sectarian motivated violence in Karachi exists within the context of a moderate level of overall violence ([95]). The Tribunal said that whilst it accepted that there is a level of general violence in Karachi, it found that the applicant does not have a profile that would attract the specific attention of terrorist groups and there is no real chance he will be seriously harmed by reason of association with Shia Safety and referred to the definition of persecution in s 91R(1)(c) of the Act ([96]). Accordingly, the Tribunal found that in the event the applicant was attacked as claimed, it would be as a result of the general violence in Karachi rather than by any systematic or discriminatory conduct against the applicant and so found that there is no real chance the applicant will be seriously harmed by reason of such general violence in the event he returns to Karachi or Pakistan more generally ([98]);

(z) The Tribunal concluded that it accepted the applicant has been involved in providing security equipment for the benefit of Shia Mosques and other community organisations, it did not accept that his involvement in the association and his advocacy for Shia Safety means there is a real chance he will be seriously harmed in the event that he returns to Pakistan and that accordingly it was not satisfied that he has a well-founded fear of persecution for a Convention reason and so was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act ([99]).

1. The Tribunal then went on to consider complementary protection. The Tribunal said that in doing so it considered whether it has substantial grounds for believing that, as necessary and foreseeable consequence of the applicant returning to Pakistan there is a real risk that the applicant will suffer significant harm ([102]).
2. The Tribunal said that for the reasons set out in the body of its decision, it is not satisfied that as a result of his association with Shia Safety or as an advocate for Shia Safety in Pakistan there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm ([103]).
3. The Tribunal then went on to say that it had also considered the issue of generalised violence in Karachi under the complementary protection criterion in s 36(2)(aa) and if there are substantial grounds for believing that, as necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm of general violence in Pakistan ([104]).
4. At [105] the Tribunal considered country information and threats claimed to have been received by the applicant and concluded that there is no evidence of a causal link between the applicant's return to Pakistan and his risk of harm from any generalised violence.
5. The Tribunal then went on to consider s 36(2B) of the Act. The Tribunal said that as the applicant had not received threats for his involvement with Shia Safety, other than those referred to above, then the risk of general violence faced by the applicant is the same as for the rest of the population ([106]). Accordingly, the Tribunal found that there was no real risk of the applicant being significantly harmed as a result of the general violence in the event he returns to Pakistan ([107]). The Tribunal concluded by saying that having regard to all of the circumstances and findings above, considered individually and cumulatively, it found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm as required by s 36(2)(aa) ([109]).
6. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 21 April 2020. The applicant filed an affidavit affirmed by him (on 21 February 2020) annexing a copy of the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he sought to rely, and required the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. On 5 February 2025, the applicant filed an amended application. The applicant also filed an affidavit (on 5 February 2025) affirmed by the applicant's solicitor Larisa-Georgiana Stoian annexing a copy of the DFAT Thematic Report dated 15 January 2016 and a copy of the DFAT Country Information Report for Pakistan dated 20 February 2019.
4. The material before the Court was the amended application, the applicant's affidavit, the affidavit of Larisa-Georgiana Stoian, the first respondent's response, the applicant's written submissions, the first respondent's written submissions and the Court Book. The Court Book was made an exhibit in the proceedings.

1. For the applicant to be successful, the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The grounds of review set out in the amended application (without alteration but excluding the paragraphs that were struck through and the underlining and bold type):
   1. The Tribunal failed to discharge its statutory task to review the delegate's decision, because substantial portions of the Tribunal's reasons were copied from the delegate's reasons.
   2. The Tribunal's delay between the hearing and its decision was a denial of procedural fairness.

Particulars

1. The Tribunal held on hearing in the matter, on 21 August 2018.

2. The Tribunal did not decide the matter until more than 19 months later, on 27 March 2020.

3. The Tribunal stated that its decision involved a credit assessment of the applicant. However, there was a real and substantial risk that the assessment of credit was compromised by the delay.

4. The Tribunal failed to consider evidence central to the Applicant's claim of a specific email threat from the terrorist group Lashkar-e-Jhangvi, and abusive and threatening social media comments, all of which specifically directed at the Applicant.

5. The Tribunal misconstrued the requirement of "necessary and foreseeable" in s 36(2)(aa), and the test in s 36(2B)(c), when considering the claim of fear of harm due to generalised violence in Karachi.

Particulars

1. In respect of "necessary and foreseeable" in s 36(2)(aa), the Tribunal wrongly interpreted that requirement as requiring a "casual link" between the Applicant returning to Pakistan and the risk of harm from generalised violence in Karachi.
2. In respect of s 36(2B)(c), the Tribunal wrongly concluded that the provision was met by examining the risk as it applied to people in Karachi, rather than the whole of Pakistan.

Ground one: failure to discharge statutory task of review because of copying

1. In ground one the applicant contends that the Tribunal failed to discharge its statutory task to review the delegate's decision because substantial portions of the Tribunal's reasons are copied from the delegate's decision. The delegate's decision is in the Court Book at 292-304.
2. In the applicant's written submissions, the applicant contends that "there are slabs in the Tribunal's decision which appear to have been copied from the delegate's decision without attribution" (Applicant's Submissions ("AS") [5]). Annexed to the applicant's submissions was a table said to be "a selection" of passages from the Tribunal's reasons with mark-up showing how little variance there is between them and the delegate's reasons (AS [5]). In oral submissions, the applicant's counsel told the Court that the passages in the annexure are the extent of the passages in the Tribunal's Decision that the applicant relies upon with respect to the complaint of copying.
3. The Court accepts that the authorities suggest that where copying of findings about an individual claim occurs, such a decision must be subject to close scrutiny (MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 ("MZZZW") at [27] per Tracey, Murphy and Mortimer JJ).
4. The jurisdictional error said to arise from copying has been variously characterised as a denial of procedural fairness, a constructive failure to exercise the jurisdiction conferred on the Tribunal Member by the (as it was relevant then) Administrative Appeals Tribunal Act 1975 (Cth), bias or a failure to discharge the statutory function. The applicant agreed with the Court that nothing, in this matter, turns on how the alleged error is to be characterised. The applicant put the ground as a failure to discharge the statutory task. The overarching question is whether the Tribunal Member brought their own independent mind to bear on what was the correct or preferrable decision on the review. This is because the task of the Tribunal is to consider the matter afresh by bringing their own perspectives, approach and reasoning to the claims made by an applicant (MZZZW at [60]).
5. The relevant principles to be drawn from MZZZW and the authorities discussed there can be summarised (adopting the language used by the Full Court) as follows:

(a) There is no material distinction between word-for-word copying, moving words around into a different order, changing syntax or a word here or there ([28]);

(b) In each case it is the use of the opinions of another statutory officer as the Member's own without attribution or disclosure that what appears in the reasons is not the work of that Member ([28]);

(c) In each case it will be necessary to examine not only the extent of the copying, but its nature, context and degree and that, having conducted such an examination, deciding whether the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review ([32]);

(d) As to the extent of the copying, it is not appropriate to conduct a percentage analysis of the copying undertaken by the Member ([32(10)]);

(e) Each case turns on its own circumstances which is as it must be where the subject matter of the inference is whether a decision-maker has brought an independent mind to the determination of the review ([43] referring to the decision of French J in WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209);

(f) Where new material is considered by the Member, there could still be a breach of procedural fairness if a decision-maker adopted the reasoning of another without applying an independent mind to the matter ([36] citing Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 763; (1995) 59 FCR 518 at 530 ("Huluba") in which the error was characterised as a denial of procedural fairness);

(g) As to the use of standard paragraphs about the applicable law and country information, the question of whether the decision maker applied an independent mind will depend on whether the material was specific to the applicant, such as whether the applicant's fear of persecution is well-founded and the applicant's credibility ([37] referring to Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 411; (1993) 43 FCR 100 as distinguished in Huluba at 530);

(h) Copying of credibility passages is an abdication of the Tribunal's task ([43]);

(i) Whilst high volume decision-making might justify the use of some standard paragraphs, that does not justify anything other than active and full consideration of the merits of the matter ([69] referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang ([1996] HCA 6; (1996) 185 CLR 259 at 266);

(j) It is permissible for the Tribunal, in pursuit of the objectives of s 420 of the Act, to use standard paragraphs to set out the applicable law for the decision on review although if those standard paragraphs are deficient in a material respect that could affect the validity of the Tribunal's decision ([71]).

1. The Court observes that there does not appear to be any divergence between the parties as to the relevant principles. The question is as to how those principles apply to the circumstances of this particular matter.
2. With the above principles in mind, the Court has examined the passages the applicant relies upon and makes the following observations and findings about the extent, nature, context and degree of the copying by the Member of the delegate's decision. Mindful of the caveat that it is not appropriate to conduct a percentage analysis of the copying undertaken by the Member it is necessary to consider the overall extent of the copying. As may be evident from the Court's summary above, the Tribunal's reasons for Decision contained 113 paragraphs. It was just over 30 pages long. The applicant's complaint is about copying in ten paragraphs.
3. The Court has used the table annexed to the applicant's submissions which shows the passages from the Tribunal's reasons with the mark-up and strike out showing the variance between the Tribunal's reasons and the passages from the delegate's reasons.

1. Under the heading "Migration history" which contained three short paragraphs, the Tribunal states:
   1. The applicant arrived in Australia on 11 May 2009 on a TU572 Vocational Education Sector Visa 'student visa'). visa. He has not departed Australia since his arrival. On 16 February 2011**, the applicant he** was granted a further student visa'. On 18 May 2012 theanother TU572 visa. On 18 May 2012, the applicant was included as a a member of the family member unit in his parent's a protection visa application**, which he** lodged by his parents. He withdrew from the application on 20 July 2012.
   2. The applicant was granted two further student visas on On 1 February 2013 and , the applicant was granted another TU572 visa. On 30 September 2013.
   3. 2013, he was granted a TU573 Higher Education Sector visa. The applicant lodged an the current application for a protection Protection (Class XA) visa on 24 October 2014.

1. As can be seen, the Tribunal's reasons whilst not identical to the delegate's reasons are substantially similar. The Member has changed some words here and there and made some syntactical changes.
2. The paragraphs appear after two paragraphs concerning the applicant's identity and country reference. They are paragraphs that are introductory to a consideration and assessment of the applicant's claims to protection and the evidence supporting those claims. The Member in reciting the applicant's migration history was not engaging in a consideration of any factual matters that were controversial or determinative of the issues before it. It is fair to say that there would be only so many ways of reciting the applicant's migration history.
3. In what might appear to be copying of a passage from the delegate's decision, the Court is not prepared to infer that this demonstrates that the Member did not bring an independent mind to the determination of the review.
4. The Court is satisfied that no jurisdictional error arises in respect of paragraphs 21 to 23 of the Tribunal's reasons for Decision by reason of copying.

1. Under the heading "The applicant's claims" there is one paragraph with several subparagraphs setting out the applicant's claims as follows:

1. The applicant's He attended an interview before me on 6 December 2016. The particulars of his claims are contained in the applicant's application for a protection visa dated 24 October 201433 and his statutory declaration dated 9 October 2014.34 The applicant's claims for protection are summarised in the delegate's decision35 as follows:

(a) The applicant He grew up in Karachi, Pakistan and came to Australia in May 2009 on a student visa. He has a sister in Melbourne who is an Australian citizen. His parents are also in Australia. His parents sought protection in 2012. That application was refused. He was initially included in his parent's' application as a member of the same family unit but subsequently withdrew because he wanted to focus on his studies. > > (b) In April 2013, his father established Shia Safety Inc ('the association') which is a not-for-profit organisation. The objective the association of Shia Safety is to protect the Shia community in Pakistan by providing them with security equipment such as CCTV cameras, hand-held metal detectors and other communication mediums. > > (c) Shia Safety Inc has a total of five members. The P president of the organisation is a member of the Panjtan Society of Victoria. His father is the Vice President and the applicant vice president. He is the General Secretary. The remaining two members are his friends**. of the applicant.** > > (d) Shia Safety Inc employs a co-ordinator and an IT specialist in Pakistan whose. The salaries for them are mostly paid from donations received from various donors around the world. In addition the organisation has There are also about three or four other volunteers in for the organisation inPakistan. One of the volunteers was killed in December 2013. > > (e) As the General Secretary for Shia Safety Inc, the applicant volunteers, he has volunteered his time to raise awareness through press-releases, interviews via Skype, and lectures regarding basic knowledge of security awareness. The applicant has He also visited the Hon an Australian MP Antony Byrne MP, Member of the Australian Parliament to discuss his concerns about the security situation in Iraq and Syria. > > (f) The applicant claims that Shias are attacked almost every day. There is a long history of violence against the Shias in Pakistan. The applicant He participated in peaceful protests in Melbourne organised by the Shia community to raise awareness about the violence against Shias in Pakistan. The applicant claims that his His brother-in-law belongs to the Hazeara community and has relatives in Pakistan who have been affected by sectarian violence. > > (g) The applicant claims that as a result Because of his role with in Shia Safety Inc, , he has received many threats against his life. He fears that he will be harmed byharm from Sunni terrorist groups such as the Taliban, Lashkar-e- Jhangvi (LEeJ), Sipah-e-Sahaba (SSP) and the Sunni Wahabis due to the fact that. Because he has placed CCTV cameras in most Shia Mosques and is able to obtain footages which can be lawfully used as evidence in the court of law**. He claims** that, this puts him in a dangerous position as he acts as a barrier to their terrorist activities. The applicant claims that ifIf he returns to Pakistan, he will be tortured and killed by the Sunni extremist groups. He may also be detained by the Pakistani authorities because he has spoken out against their inability to protect the Shia community in Pakistan.

2. This is clearly a lengthy passage.
3. It is a recitation of the applicant's claims taken directly from the delegate's decision with, as can be seen above, some changes to the wording to perhaps more clearly reflect the matters as being the applicant's claims rather than statements of fact. However, the Member expressly attributes the summary of the applicant's claims to the delegate's decision. In those circumstances, the Court is not prepared to accept that the Member did not turn his own mind to the applicant's claims in providing, at the outset of the decision, a summary of those claims as set out in the delegate's decision with attribution. The Member later in the reasons for Decision engages extensively with the applicant's claims.
4. The Court is satisfied that no jurisdictional error arises in respect of paragraph 25 of the Tribunal's reasons for Decision by reason of copying.

1. Under the heading "Credibility", the Member sets out in paragraphs 38 to 41 what might be regarded as standard paragraphs as to the approach to be taken by the Tribunal when making findings of fact in refugee claims and states that this is the approach the Tribunal has taken in this matter. These are paragraphs which routinely appear in Tribunal decisions. The paragraphs do not make any assessment about the applicant's credibility in these proceedings but describe the approach that the Tribunal has taken in assessing credibility when making findings of fact.
2. The applicant contends that in this section of the reasons the Member has copied part of the delegate's decision in what is said in paragraph 39.
   1. Findings and reasons and material evidence put to the applicant for comment: The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well founded' or that it is for the reason claimed.
3. The above extract is not the entirety of paragraph 39. The balance of paragraph 39, in respect of which no complaint of copying is made is as follows:
   1. [...] Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.
4. The Court considers that these are the types of paragraphs to which Nicholson J was referring in Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1997] FCA 99; (1997) 47 ALD 538 at 533 in saying that a decision-maker should not need to engage in "unnecessary re-wording" merely to avoid an inference that they did not apply an independent mind to the decision-making process. The Court in MZZZW accepted that proposition as confined to standard paragraphs setting out the applicable law for a decision on review. Whilst the Member in the paragraphs on credibility is not setting out the applicable law as such, the Member is nevertheless setting out what he understands to be the standard or accepted approach to making credibility findings and identifying that this is the approach that he has taken. There was no submission that the paragraph or paragraphs about credibility were deficient in a material respect which, as noted above, the Court in MZZZW said at [71] could affect the validity of the Tribunal's decision.
5. Accordingly, the Court is not prepared to infer that the copying complained of here demonstrates that the Member did not bring an independent mind to bear in reviewing the matter.
6. The Court is satisfied that no jurisdictional error arises in respect of paragraph 39 of the Tribunal's reasons for Decision by reason of copying.

1. Under the heading "Relevant Grounds" which appeared directly under the heading "Applicant's Refugee Claim" there are seven paragraphs. The applicant points to copying by the Member of the delegate's decision in the first paragraph of that section.
   1. The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of that he claim he will be tortured and killed by Sunni terrorists groups because he is a barrier to their terrorist activities as a result of his association with and involvement with Shia Safety Inc. He claims that he has installed CCTV cameras in Shia MMosques and provided lectures and interviews on how to maintain safety within the Shia community.
2. This paragraph is about the basis for the applicant's claim to have a well-founded fear of persecution. It is the introductory paragraph to the Member's consideration of whether the applicant's fear of harm is for the convention reason of religion. After setting out the basis for the applicant's fear in paragraph 43, the Member goes on in the six paragraphs that follow to reason as to why the applicant's claims fall within s 91R(1)(a) by reason of religion and then as to why the Member also accepted that the applicant is a member of a particular social group (as a person authorities may detain as a result of having spoken out against Pakistan authorities) The delegate did not consider that convention reason.
3. Whilst the Court accepts that paragraph 43 is in substantially similar terms to the paragraph in the delegate's reasons as to why the applicant feared harm for a convention reason, the reasoning of the Member which then follows dispels an inference that the Member did not bring his own independent mind to bear in deciding that the applicant feared harm for a convention reason.
4. The Court is satisfied that no jurisdictional error arises in respect of paragraph 43 of the Tribunal's reasons for Decision by reason of copying.

1. Under the heading "Applicant's Brother-in-Law as a Hazara", the applicant points to copying by the Member of a sentence from the delegate's decision which appears in the delegate's decision under the heading "Findings of Fact (Credibility)".
   1. The applicant claims that his brother-in-law is a Hazara and has relatives in Pakistan who have been affected by sectarian violence.
2. The above extract is not the entirety of paragraph 55. The balance of paragraph 55 which follows on from that sentence, in respect of which no complaint of copying is made is as follows:
   1. [...] The applicant did not provide any independent evidence of the fact that his brother-in-law is a Hazara or that his relatives in Pakistan have been threatened and harassed as claimed. Nevertheless, the Tribunal is prepared to accept the applicant's claim in relation to his brother-in-law is a Hazara as claimed.
3. The first sentence when taken in the context of the entire paragraph does not lead the Court to infer that the Member did not bring an independent mind to bear in considering whether there was a real chance that the applicant would be harmed by reason of his brother-in-law's ethnicity.
4. The Court is satisfied that no jurisdictional error arises in respect to paragraph 55 of the Tribunal's reasons for Decision by reason of copying.

1. The section in the reasons under the heading "Donations to Shia Safety Inc" (which was one of several headings appearing under the heading "Applicant's Refugee Claim") comprises fourteen paragraphs. The applicant points to copying by the Member in two paragraphs in that section being paragraph 57 and a section in paragraph 58. Paragraph 57 is as follows:
   1. The applicant claims to fear harm forom extremist groups as a resultgroup because of his profile in raising awareness about the Shia Safety Inc in Pakistan. The applicant claims that heWhen questioned about his role, is the mouthpiece of the Shia community in Pakistan by providing lecture and he said that he provides lectures and information sessions to the Shia community in Pakistan via Sskype and video links. The When questioned about the contents of his applicantlectures, he explained that he advises the community on about how to watch out for would-be terrorists and how to protect themselves against, such attacks. In addition he claimed as someone who is bulky or who looked out of place. He that he reminds also tells the community to stay vigilant at all times and what do during ato lay on the ground in case terroristof an attack**, including staying low** to avoid being hit by bullets or fragments. Based on the applicant's evidence to the Tribunal and the applicant's statement at his interview with the department, the Tribunal does , I do not accept that the information provided by the applicant he provides would be something new or useful to that the Shia community facing sectarian violence in Pakistan. As such the Tribunal finds was not already aware of. Accordingly, I find that the applicant's information sessions would not have provided anyadded much value in preventing sectarian attacks against the Shia Community in Pakistan.
2. Paragraph 57 is substantially the same as the delegate's decision in relation to the applicant's claim that he is the mouthpiece of the Shia community in Pakistan by providing lectures and information sessions to the Shia community in Pakistan via Skype and video links. As can be seen, the Member has changed a word or phrase here and there. The similarity in the wording tends to suggest that the Member has simply adopted the delegate's reasoning on this aspect of the applicant's claim as his own. That is of concern. The Member does, however, refer to the applicant's statement at his interview with the department suggesting that the Member has considered what the applicant said at the interview. The Member also refers to the applicant's evidence to the Tribunal, although does so without identifying what that evidence was and how it was taken into consideration in the Member's reasoning. Although the Court is troubled by this paragraph, overall it is not prepared to infer that it indicates that the Member did not bring his own independent mind to bear in considering this part of the applicant's claim.
3. The extract from paragraph 58 which the applicant contends has been copied from the delegate's decision is as follows:
   1. The applicant When questioned further, he explained that Mosquesthe Mosques in Pakistan would contact him through the Shia Safety Inc website with details on what they required, including athe quote from a supplier suppliers in Pakistan. The applicantHe will then postsput up a request for donors to fund the equipment on the internet**, principally through the association's website. for donors.** Once a response is received**, he will put** the applicant causes the donor to be put in contact with equipment the suppliers and/or the representatives from the MMosque. The donors will then deal directly with the MMosque and the suppliers. The applicant's evidence wasapplicant stated that he has always received a response from a would-be donor is generally received donors within one week of putting up the request on the internet and has never had any problem in finding a donor. It can be inferred from it being posted on the organisations website. The Tribunal notes that the Shia Safety Inc website75 lists five projects in which it is involved. In relation in the installation of security equipment (Shia Safety), Ladies Majalis and Ambulance, the website a [sic] calls for donations. The applicant's evidence was his claims that there are many overseas donors (particularly from the United States of America and Canada) who were prepared to provide financial assistance to the Shia communityMosques in Pakistan. Pakistan.
4. The above extract of paragraph 58 is not the entirety of paragraph 58. The entirety of the paragraph (maintaining the mark up as above) reads as follows:
   1. The applicant claims that he is the General Sectary of Shia Safety Inc. The applicant evidence was that Shia Safety Inc advocates for the safety of Shia Muslims in Pakistan and facilitates the installation of CCTV cameras and metal detectors at various Shia Mosques and other important sites in Pakistan to protect the community against violence. The applicant When questioned further, he explained that Mosquesthe Mosques in Pakistan would contact him through the Shia Safety Inc website with details on what they required, including athe quote from a supplier suppliers in Pakistan. The applicantHe will then postsput up a request for donors to fund the equipment on the internet**, principally through the association's website. for donors.** Once a response is received**, he will put** the applicant causes the donor to be put in contact with equipment the suppliers and/or the representatives from the MMosque. The donors will then deal directly with the MMosque and the suppliers. The applicant's evidence wasapplicant stated that he has always received a response from a would-be donor is generally received donors within one week of putting up the request on the internet and has never had any problem in finding a donor. It can be inferred from it being posted on the organisations website. The Tribunal notes that the Shia Safety Inc website75 lists five projects in which it is involved. In relation in the installation of security equipment (Shia Safety), Ladies Majalis and Ambulance, the website a [sic] calls for donations. The applicant's evidence was his claims that there are many overseas donors (particularly from the United States of America and Canada) who were prepared to provide financial assistance to the Shia communityMosques in Pakistan. Pakistan. While this may be the case the applicant did not provide any evidence of donations having been received by Shia Safety Inc from overseas donors_._ The applicant provided the Tribunal with copies of a total of 13 donation receipts dated between 18 August 2015 and 19 November 2016. The applicant claimed that they were for donations received by . The receipts are signed by the applicant and the Farhan Ali. It was not explained how and when the applicant and Mr Ali, who the applicant claims is employed by the association in Pakistan, were both able to sign the receipts. The donations are listed as being for CCTV cameras, the security van the security action plan.76 The amounts donated ranged from 40,000PKR (approximately $AUD400.00) to 600,000PKR (approximately $AUD6,000.00). There was no evidence of the receipted amounts which were claimed to have been donated to were deposited into the bank account.
5. When taken in the context of the paragraph as a whole, it can be seen that the Member considered new evidence from the applicant about the extent of donations and what documentary evidence the applicant was able to provide about the donations and how they were treated in the financial records of Shia Safety. Although the Member has set out almost word for word the explanation that the delegate's reasons set out as the applicant's explanation as to how donations were sought, the Member's consideration of additional material suggests that the Member considered the explanation given to the delegate and the new material in considering the applicant's evidence about donations. The Court is not satisfied that the copying in paragraph 58 leads to the inference that the Member did not bring an independent mind to bear in considering the applicant's evidence about donations.
6. The Court is satisfied that no jurisdictional error arises in respect of paragraph 57 or 58 of the Tribunal's reasons for Decision by reason of copying.

1. Under the heading "Risk of Generalised Violence" which contains four paragraphs the applicant points to copying in part of paragraph 95 as follows:
   1. It is noted that the country information reports that Security situation in Karachi Ethnicity has been a source of communal tension throughout Pakistan's history. Karachi has historically experienced high levels of generalised violence due to because of rival ethnic, sectarian, political, business and criminal interests (CIS38A801265).
2. The above extract of paragraph 95 is not the entirety of paragraph 95. The entirety of the paragraph reads as follows (maintaining the mark up as above):
   1. The applicant may claim that he is at risk as a result of threats he has received and the general threat of general violence against him as a result of his association with Shia safety and as an advocate for Shia safety more generally. As a result, applicant claims that he no longer feels safe in Pakistan and states that he can no longer live there. The Tribunal accepts that the security situation in Pakistan is complex and volatile. It is noted that the country information reports that Security situation in Karachi Ethnicity has been a source of communal tension throughout Pakistan's history. Karachi has historically experienced high levels of generalised violence due to because of rival ethnic, sectarian, political, business and criminal interests (CIS38A801265). However, it is reported that the NAP and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. According to the SATP, at least two sectarian attacks targeted Shi'a in Sindh province in 2017, resulting in at least 90 deaths, while one attack causing one death occurred between 1 January and 6 May 2018. Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. While the Tribunal accepts that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, it notes that DFAT has assessed that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence.
3. The Member has gone on to consider other detail in the country information regarding sectarian violence within the context of a moderate level of overall violence. This indicates to the Court that the Member has turned his own mind to the applicant's claim that he is at risk because of the threat of general violence. Accordingly, the Court is not satisfied that the copying in paragraph 95 leads to the inference that the Member did not bring an independent mind to bear in considering the applicant's claim with respect to generalised violence.
4. The Court is satisfied that no jurisdictional error arises in respect of paragraph 95 of the Tribunal's reasons for Decision by reason of copying.
5. The Court has taken the same approach as that taken by Kendall J in DZH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1041 of considering the question by reference to each paragraph or section of the Tribunal's Decision said to involve copying. The Court has also considered whether from the extent of the copying, its nature, context and degree having regard to the reasons as a whole it should be inferred that the Member did not bring an independent mind to bear in determining the review. The Court is not left with the overall impression that the copying considered as a whole supports that inference. In this regard, the Court agrees with the first respondent's submission (First Respondent's submissions ("FRS") [16]) that the Tribunal's reasons which are extensive, comprehensive and go beyond matters considered by the delegate demonstrate that it did itself engage with and evaluate the applicant's claims and evidence.
6. No jurisdictional error is established on ground one.

Ground two: denial of procedural fairness because of delay in decision

1. In ground two, the applicant contends that the Tribunal's delay between the hearing and its decision gives rise to a denial of procedural fairness.
2. The hearing before the Tribunal was on 21 August 2018. The Tribunal handed down its decision on 24 March 2020 which was some 19 months after receipt of the applicant's post hearing material. This is a lengthy delay.
3. It is said that the circumstances in which delay, of itself, will vitiate a decision are rare (Nais v Minister for immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 ("Nais") at [5]. It depends upon the context. Here, the context is alleged jurisdictional error and the contention that the delay gives rise to a denial of procedural fairness. The applicant says that this is so because the Tribunal's decision was affected by credit (AS [12]). The applicant submitted that he need only establish a "real and substantial risk" that the assessment of credit was compromised by the delay, not that the assessment was in fact so compromised (AS [14] referring to Nais at [9]-[10] per Gleeson CJ and Kirby J agreeing at [106]). The Court agrees with that proposition.
4. In Nais, Gleeson CJ at [9] put the matter in this way:

A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.

If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired.

1. In considering those passages, it is relevant to observe that they were said in the context of a statement by his Honour that there were a number of examples of findings by the Tribunal that turned on an assessment of credibility in circumstances that must have been influenced by the Tribunal's observations of the appellants' demeanour, and where evidence that was not inherently improbable, or contradicted by objective facts, was rejected as "implausible" ([8]). A similar observation was made by Callinan and Heydon JJ at [161] and [169].
2. The applicant's counsel said in oral submissions that what was said by Gleeson CJ in Nais should not convey the impression that his Honour said that it is necessary for there to be, in fact, demeanour-based findings for delay to give rise to procedural unfairness. The Court agrees with that proposition. However, the point is that in the circumstance of demeanour-based findings delay is likely to affect the Tribunal's capacity to make a proper assessment of a person's sincerity and reliability ([10]).
3. The applicant's counsel pointed to the fact that at [38]-[41] of the reasons, the Member set out under the heading "Credibility", the approach to be taken in assessing credibility. At the conclusion of [38], dealing with the difficulties faced by refugee applicants in answering questions, the Member says "All of this is taken into account in these findings". These paragraphs did not relate to this applicant in particular. They are standard paragraphs which appear frequently in many Tribunal decisions dealing with protection visas. Nevertheless, the applicant submitted that these paragraphs must mean that the Tribunal in fact took into account the applicant's credibility in making findings of fact. Be that as it may, the Court considers it remains necessary to address the central issue which is whether the passage of time means that there was a "real and substantial risk" that the Tribunal's ability to assess or make findings of fact on the basis of the applicant's evidence was compromised. Delay might compromise a decision maker's ability to accurately recall the evidence an applicant gave; lead to the decision maker ignoring or overlooking evidence the applicant gave; or compromise the decision maker's ability to accurately make findings based upon the applicant's demeanour when giving evidence. Demeanour based findings are, generally speaking, more likely to be affected by the passage of time as they are findings which might not be assisted by notes or a transcript because they are based upon impressions the fact finder formed at the time the evidence was given.
4. The first respondent's position was that this was a decision largely based upon the documents and not upon the applicant's oral evidence at the hearing (FRS [18] and in oral submissions).
5. The duration of the hearing was one hour and twenty-one minutes (CB 566-568). In addition to the documents that were before the delegate (CB 46-283), the applicant provided the Tribunal, prior to the hearing, written submissions and supporting documents totalling 245 pages (CB 319-564) and after the hearing, written submissions and supporting documents totalling 95 pages (CB 517-612).
6. In those circumstances, the Court considers that it is necessary for the applicant to demonstrate with some particularity how it is said that the passage of time might have degraded the Tribunal's capacity to assess the applicant's credit and make findings of fact.
7. The applicant submitted that there are three paragraphs in which the Tribunal made credit findings: paragraphs [62]; [66] and [69] (AS [13]-[14]).

1. Paragraph [62] of the Tribunal's reasons were given in the context of the Tribunal's consideration of the system by which the applicant said he secured donations to Shia Safety [58]; a list provided by the applicant of people who had donated to the association and the amounts donated for the period from 5 April 2017 to 1 February 2018 (CB 544-545) and the bank statements of Shia Safety for that period (CB 464-484) which the Tribunal said reflected the deposit of those donations [59]; invoices issued by various suppliers to Shia Safety from 2013 to 2018 for the purchase of CCTV cameras and other equipment (CB 121-132; 485-511) [60]; and sales receipts and bank transaction details in respect of the purchase of an ambulance (CB 409-413) in respect of which the Tribunal accepted that Shia Safety had facilitated the funds for its purchase [61]. The Tribunal then went on to deal with the receipts the applicant provided for the transfer of money from the applicant's bank account to the bank accounts of various individuals in Pakistan from 2013 to 2017 (CB 361-407) and at [62] said:
   1. The applicant provided receipts for the transfer of money from the applicant's account to various individuals' bank accounts in Pakistan from 2013 to 2017. In response to the Tribunals question as to why the money had been transferred from the applicant's personal account, he explained that prior to the establishment of the association's bank account, the applicant used his own bank account for the activities of the association. However, save to say that it was easier to transfer money from his personal account; the applicant's explanation did not explain why he continued to make funds transfers to Pakistan from his personal account in 2017 and 2018 after the establishment of the association's bank account.
2. It is not readily apparent how the passage of time might have affected the Tribunal's assessment of the objective evidence before it that after Shia Safety opened its own bank account, the applicant continued to make transfers to Pakistan from his own personal bank account. As the Court understands it, the applicant's submission here is not that he gave another explanation as to why he continued to make transfers from his own personal bank account which explanation was forgotten or ignored or not believed. The Tribunal made the observation that the applicant's evidence - in response to the Tribunal's question - did not explain why the applicant transferred funds from his own bank account after Shia Safety had opened its own bank account other than to say that he found it easier. The applicant did not offer another explanation.

1. The Tribunal then went on to consider the salary vouchers provided by the applicant for the salaries said to have been paid to two Shia Safety employees in Karachi. The Tribunal said that the salary vouchers did not reconcile with the association's bank statements and that the transfer of money receipts provided by the applicant did not reflect the salary payments claimed to have been paid. This led the Tribunal to conclude that because the financial statements of the association did not correspond with the documentation provided in relation to the payment of salaries by the association, it did not accept that Shia Safety had two permanent employees in Pakistan as claimed ([63]). The salary vouchers and bank statements had been provided with the applicant's submission to the Tribunal prior to the hearing. The Tribunal then went on to consider the formal governance of Shia Safety and referred to the minutes of the association's annual general meeting for the years 2014 to 2017 and some project meeting minutes. The Tribunal made several observations about governance based upon its analysis of those minutes ([64]).
2. In the written submission by the applicant's migration agent - referring to the association's minutes, a document recording the expenses of each project, the salary vouchers and the salary record sheet - stated that "these documents demonstrate the efforts they have undertaken to organise their projects, and they have made a concerted effort to begin [sic] to more thoroughly keep records." (CB 324).
3. It can be seen that in this part of the reasons the Member was concerned with what governance and financial controls were in place to regulate the business of Shia Safety. The Tribunal observed that there appeared to be no formal governance or financial controls in place to regulate the business of the association and that the applicant appeared to conduct the business of Shia Safety according to his own agenda and without proper reporting or recourse to the association's board ([66]). The Tribunal went on to say at [66]:
   1. On his own evidence the applicant has freely received and transferred money between the association's bank account and his own private account to the extent that it was very difficult for the Tribunal to reconcile the association's accounts with the donations claimed to have been received by the association with its claimed payments, including salaries claimed to have been paid and purchases of equipment. In such circumstances, the Tribunal does not accept the applicant's claim that Shia Safety Inc has a widespread reputation and recognition in Pakistan.
4. The applicant's counsel, in oral submissions, submitted that here the Tribunal was transgressing into findings of demeanour. The submission is that what starts out as a consideration of documentary evidence becomes a finding as to whether the applicant is telling a coherent story, that is, whether the applicant is being honest despite what one might say is "objectively shambolic financial record keeping". The applicant submitted that this involves a degree of impression detectable only by demeanour. The Court does not agree. It is not the exercise the Tribunal was engaging in here. The Tribunal carefully considered the documentary evidence as to the activities of Shia Safety and was not convinced that it reflected an association that has the reputation and recognition claimed by the applicant. That is not an assessment that could fairly be said to establish a "real and substantial risk" that any assessment of credit was compromised by delay. The Tribunal was unable, having regard to the documents, to reconcile the irreconcilable. The Tribunal's assessment of the association's financial and governance records was not one which might have been affected by passage of time. The applicant has not demonstrated how any credit finding played a part in the Tribunal's assessment of what was apparent on an objective assessment of the documents. Rather, the Tribunal in making findings about what the financial and governance documents revealed about the operations of Shia Safety, appears to accept the applicant's evidence as to how it operated.

1. At [69] of the reasons, the Member referred to a copy of an undated report made to the Police by the Shia Safety Coordinator in Karachi. The report was provided to the Tribunal prior to the hearing as an attachment (with other documents) marked "Threats to Shia Safety" (CB 526). It was translated from Urdu into English. The Tribunal summarised the claims made in the report that Shia Safety and the applicant had received many threats because of offering its services to safeguard against Termism during the Muharram Period in the whole of the country and that as a response two police officers were killed when securing the association's monitoring office in Jamia Mosque Moore Iman. The Tribunal said that it did not accept that the association was in a financial position to offer the security services as claimed. The Tribunal then referred to country information that documentation fraud is prevalent in Pakistan: that First Information Reports are relatively simple to counterfeit and that DFAT does not consider the existence of a First Information Report to constitute evidence that the events described in the report occurred. The Tribunal said that it did not accept that any offer to safeguard against Termism during the Muharram Period was made and that accordingly it did not accept that the threats were made against Shia Safety, or the applicant as claimed in the report.
2. The Tribunal was considering the contents of a report which the applicant relied upon as evidence that he had received threats as result of Shia Safety offering to provide particular security services. The Tribunal made two findings about the First Information Report. First, the Tribunal said that it did not accept that the association was in a financial position to offer the security services as claimed in the report. It is not apparent that this finding was based upon the applicant's oral evidence to the Tribunal. The Tribunal had before it the financial records of Shia Safety and documentary evidence of the extent of the donations that had been made. It appears that it was upon that evidence that the Tribunal was making a finding that the association was not in a financial position to offer the security claimed in the report. It was not suggested that the applicant gave evidence contradicting the association's financial records which he had provided to the Tribunal. Secondly, based upon country information, the Tribunal did not accept the authenticity of that report. The applicant was not the author of the report. It was not suggested that the applicant gave any evidence to the Tribunal about its authenticity or the veracity of its contents.
3. For the reasons given above, the Court is not satisfied that the applicant has established that the delay gave rise to a real and substantial risk of a denial of procedural fairness.
4. No jurisdictional error is established on ground two.

Ground three: failure to consider documentary evidence about sectarian abuse

1. In the amended application, ground three is expressed as a failure to consider evidence central to the applicant's claim of a specific threat from the terrorist group Lashkar-e-Jhangvi, and abusive and threatening social media comments all of which were said to be specifically directed at the applicant.
2. The applicant claimed, relevantly to this ground of review, to have a well-founded fear of persecution from terrorist groups because of his involvement with Shia Safety in installing security cameras in Shia Mosques in Pakistan and other activities, and because of his role as the face or spokesperson of Shia Safety as a consequence of which he is well known by terrorist organisations.
3. The Court understands the ground of review not as a complaint that the Tribunal failed to consider a claim, but that the Tribunal failed to consider evidence which was said to be centrally relevant to that claim. In so saying, the Court appreciates that the distinction between claims and evidence might be a useful tool of analysis but that the fundamental question is the importance of the material to the analysis of the Tribunal's function and the seriousness of the error (Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 ("SZSRS") at [28] per Katzmann, Griffiths and Wigney JJ referring to the approach in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and Minster for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 ("MZYTS")).
4. The applicant points to the Tribunal's conclusion at [86] that it did not accept that what the applicant had done had raised his profile in Pakistan to the extent that he would be targeted by terrorist groups in the event he returns to Pakistan.
5. The Tribunal considered the applicant's claim to a have a well-founded fear of persecution should he return to Pakistan as a result of his involvement with Shia Safety at [55]-[87] by reference to the following matters: the applicant's brother in law as a Hazara [55]-[56]; his profile in raising awareness about Shia Safety in Pakistan through lectures and information sessions [57]; facilitating, through donations, the installation of security equipment in Shia Mosques and other sites in Pakistan to protect the community against violence [58]-[60] and the purchase of an ambulance [61]; the recognition of Shia Safety in Pakistan by reason of its activities [60]-[67]; threats the applicant claimed to have received as a result of having distributed safety equipment to the Shia community [68]-[69]; particular projects engaged in by Shia Safety [71]-[80]; and the applicant's role as the spokesperson of Shia Safety [81]-[87].
6. As can be seen, the Tribunal's conclusion at [86] appears in the section of the Tribunal's reasons dealing with the applicant's role as the spokesperson of Shia Safety. The applicant's complaint is that in coming to that conclusion the Tribunal referred to evidence in interviews and news reports but did not refer to 'substantial documentary evidence' of other sectarian abuse of the applicant (AS [18]).
7. The applicant submitted (AS [18]) that this evidence included the threat in an email from the terrorist group Lashkar-e-Jhangvi (CB 611; the translation of which is at CB 525 and duplicated at CB 612) and the evidence of approximately 200 abusive and threatening comments posted online (CB 580-600). The applicant submitted that the fact that the Tribunal (in [86]) did not refer to those pieces of evidence compels the inference that they were erroneously not considered (AS [19] referring to MZYTS).
8. It is worth setting out [86] in its entirety:
   1. The Tribunal accepts that Shia Safety has been in the business of providing security equipment to the Shia community by receiving requests for such equipment and matching such requests with possible donors for the equipment. The Tribunal has found that as a result of the poor governance and financial position of the association, it conducts its business in an ad hoc fashion according to the will of the applicant. Save for the threats referred to there is no evidence that that applicant has received specific threats to his safety as a result of him having appeared in news reports and conducting interviews (including SBS television) as claimed. Therefore, while the Tribunal accepts that the applicant made appearances in several news reports and provided interviews, it does not accept that by doing that applicant has raised his profile in Pakistan to the extent that he would be a targeted by terrorist groups in the event that he returns to Pakistan.
9. The applicant submitted that the two categories of evidence (the email and the social media posts) were central to the applicant's claimed fear of persecution. The Court considers that, if not central to the applicant's claim, they were material to his claimed fear of persecution because of his involvement with Shia Safety.
10. At [86], the Tribunal said that "save for the threats referred to there is no evidence that the applicant has received specific threats to his safety as a result of him having appeared in news reports and conducting interviews (including SBS television) as claimed." The Court considers that the Tribunal is plainly referring to the threats it had referred to in [84].

The specific threat from the terrorist group Lashkar-e-Jhangvi

1. At [84] (which also appears in the section of the reasons dealing with the applicant's role as the spokesperson of Shia Safety), the Tribunal said:
   1. In addition, the applicant attended protests against Shia missing person in Pakistan in both Canberra and Melbourne. The applicant provided video footage of the protests. From the video footage provided both protests appeared to be relatively modest with only a small number of protesters attending the rallies. The applicant provided Facebook photos of the protests together with three threats that were alleged to have been made on Facebook in or about 2014 in response to the photos. In the Tribunals view, the threats made to the applicant were general in nature and amounting to no more than hate mail rather than a specific threat to harm the applicant. In any event the threats were made in or about 2014. There is no evidence that any further threats have been made since that time. Therefore, given the passing of time, the Tribunal has significant doubts about the extent and substance of the threats made. As such the Tribunal finds that there is no real chance the applicant will be harmed as a result of attending the protests in Canberra and Melbourne in the event he returns to Pakistan.
2. Before turning to consider the Tribunal's consideration of those threats it is necessary to identify what threats the Tribunal was apparently referring to in [84] and whether this included the specific threat from the terrorist group Lashkar-e-Jhangvi the translation of which, as noted above, is at CB 525 and duplicated at CB 612.
3. As noted, in [84] the Tribunal referred to "three threats that were alleged to have been made on Facebook in or about 2014". In the applicant's migration agent's written submission to the Tribunal prior to the hearing, it was stated (at CB 324) that "The applicant has received a number of death threats evidencing this dangerous reputation. We attach a few of these threats for the Tribunal's consideration". Attached to the submission behind a page on which was written "Threats to Shia Safety [the applicant's name]" was a number of undated posts in a foreign script on what appears to be the Facebook page of Shia Safety (CB 513-522). Those pages are then followed by four pages of typewritten text in English translated from the Urdu language by a NAATI certified interpreter (CB 523-526). The translation at CB 526 is not a translation of any of the preceding pages. It is the First Information Report which, as noted above, the Tribunal considered at [69]. The translation at CB 523 is titled "message on Facebook" and the date given is 30 September 2014. It is a translation of the message that appears as an attachment to the applicant's migration agent's post hearing submission at CB 610 and which was first provided by the applicant to the department in his statutory declaration of 9 October 2014 (CB 76). The translation at CB 524 is titled "Alhaidri Media" and is undated. It is not clear what it is a translation of. The translation at CB 525 is titled "message to [a name that is not the applicant's name]" and under that "Lashkar-e-Jhangvi Pakistan" which it is accepted is a terrorist organisation. This is the threat which the applicant's submission (AS [18]) identifies as the specific threat to the applicant from the terrorist group Lashkar-e-Jhangvi. It is this message that the applicant submitted the Tribunal did not "grapple" with.
4. It seems to the Court that the "three threats" the Tribunal was referring to at [84] are the three threats at CB 523 (duplicated at CB 609), CB 524 and CB 525 (duplicated at CB 612). When one "joins the dots" with the written submission made by the applicant's migration agent after the hearing, the applicant's counsel submitted that the translation at CB 525 is a translation of a Gmail message in Urdu to the applicant. The Gmail message in Urdu did not appear as an attachment to the pre-hearing written submissions. It was attached to the applicant's migration agent's written submissions made after the hearing (CB 611). The translation that follows at CB 612 is identical to the translation at CB 525.
5. Accordingly, the Tribunal was in error in describing "the three threats" as threats made on Facebook and in ascribing to them a date of "not later than 2014". Nevertheless, the Court is satisfied that the Tribunal in [84] is referring to "the three threats" at CB 523-525. The question remains, however, whether the Tribunal considered the threat in the Gmail said to be a specific threat directed at the applicant from the terrorist group Lashkar-e-Jhangvi. The Tribunal said this about "the three threats":

84. In the Tribunals view, the threats made to the applicant were general in nature and amounting to no more than hate mail rather than a specific threat to harm the applicant. In any event the threats were made in or about 2014. There is no evidence that any further threats have been made since that time. Therefore, given the passing of time, the Tribunal has significant doubts about the extent and substance of the threats made. As such the Tribunal finds that there is no real chance the applicant will be harmed as a result of attending the protests in Canberra and Melbourne in the event he returns to Pakistan.

1. The applicant identified ground three as "a failure to consider evidence ground". In MZYTS, the Court (in considering a submission that the Tribunal had failed to consider most recent country information in assessing risk of significant harm) observed that whilst that description may explain the path leading to error, the error itself is a failure to perform the statutory task on review which is to form, for itself, the requisite state of satisfaction under s 65 of the Act in respect of the criterion (or criteria) for a visa in the issue before it (at [31]-[32]; [36]). The task requires a consciousness and consideration of the submissions, evidence and material advanced by the applicant (MZYTS [38]).
2. Whilst the Court is satisfied, for the reasons already given, that in referring to "the three threats" the Tribunal was referring to the documents that appear at CB 523-525, it is not satisfied that the Tribunal appreciated - in describing all three threats as "no more than hate mail rather than a specific threat to harm the applicant" - that the translated Gmail was an email said to be addressed to the applicant. This indicates that the Tribunal did not engage in a conscious consideration of the documentary evidence at CB 525, CB 611 and CB 612. The Court observes that it is not clear that the Gmail was in fact addressed to the applicant nor is it clear when it was sent. Those are matters for the Tribunal on review.
3. It follows that the Court is satisfied that the Tribunal made a jurisdictional error in not considering the specific threat from the terrorist group Lashkar-e-Jhangvi in forming the required state of satisfaction.

The approximately 200 abusive and threatening comments

1. The second category of evidence which the applicant submitted the Tribunal did not consider is the evidence of approximately 200 abusive and threatening comments posted online.
2. In the applicant's migration agent's written submission provided after the hearing, it was said (at CB 571) that "As a consequence of his high profile the applicant has received threatening and abusive comments on each of the videos posted. On one of his videos, he received approximately 200 abusive and threatening comments. In support of these assertion [sic] we attach a number of screenshots depicting a segment of the threats, translated from Urdu on certain videos". Attached was about forty messages on what appears to be the Facebook page of Shia Safety and their automatic translation into English (CB 580 to 600) ("the Facebook messages").
3. At [24] the Tribunal sets out a list of 26 documents that it states were provided by the applicant in support of his application and which it states it has considered. At [24](k) the Tribunal identifies "copies of various Facebook messages (with translation)". It is not in contest that the Tribunal did not refer to the Facebook messages elsewhere in its reasons.
4. The Court accepts the proposition that the fact that a matter is not referred to in a Tribunal's reasons, does not necessarily mean that the matter was not considered by the Tribunal at all or was overlooked. In such circumstances, a Tribunal may have considered the matter not to be material or relevant to its reasoning. The issue is whether the particular evidence that has been omitted from the reasons can be sensibly understood as a matter considered but not mentioned because it was not material (SZSRS at [34] per Katzmann, Griffiths and Wigney JJ).
5. The first respondent submitted that given the Facebook messages contained no "specific threat" and were more "general in nature" than the threats referred to in [84], that the Tribunal did not refer to them in a particular part of its reasons is readily explicable on the basis that it considered the evidence not to be material or relevant to its reasoning (FRS [25]).
6. The Court does not accept that submission. The Facebook messages, which the applicant submitted to the Tribunal were evidence of threats against him, could not be regarded as other than material to the applicant's claim to fear of harm were he to return to Pakistan. This was apparent from the applicant's migration agent's submission after the hearing. This is a case in which, having regard to the nature of the applicant's claims and the findings and evidence set out in the Tribunal's reasons including as to threats made to the applicant ([84] and [86]), it may be inferred that had the evidence of the Facebook messages been considered at all, it would have been referred to in the deliberative part of the reasons, even if rejected or given little or no weight (SZSRS at [34] referring to MZYTS at [52]). In those circumstances, the Court finds that the Tribunal did not consider the Facebook messages. Having said that the evidence was material to the applicant's claim it follows that the Tribunal's failure to consider the Facebook messages was a jurisdictional error.
7. Jurisdictional error has been established on ground three.

Ground four: error of law as to the proper construction of s 36(2)(aa) and the test in s 36(2B)(c)

1. In its reasons under the heading "Complementary protection", the Tribunal first states at [103] that for the reasons set out in the body of its decision, it is not satisfied that as a result of his association with Shia Safety there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm. The Tribunal then went on (at [104]), under the heading "Generalised Violence" to state that it had also considered the issue of generalised violence in Karachi under the complementary protection criterion under s 36(2)(aa).

The proper construction of section 36(2)(aa)

1. In considering the above claim, the applicant contends that the Tribunal misconstrued the requirement of "necessary and foreseeable" in s 36(2)(aa) because the Tribunal wrongly interpreted the requirement as requiring a "causal link" between the applicant returning to Pakistan and the risk of harm from generalised violence in Karachi.
2. It is common ground that what is called the complementary protection provision in s 36(2)(aa) is not concerned with the reason for the harm but only with whether the Minister (and the Tribunal) has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the receiving country, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A). The first respondent accepted that if the Tribunal's reasons were to be understood as looking for a causal link between the act of removing the applicant and the level of generalised violence in Pakistan (which the Tribunal accepted existed in Pakistan) then the Tribunal had not applied the right test.
3. The Tribunal set out at [104] the language of s 36(2)(aa). However, at [105], the Tribunal said:

105. Section 36(2)(aa) requires that the risk of harm to the applicant be a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan. The necessary and foreseeable consequence element of s.36(2)(aa) attaches to the risk of harm rather than the actual occurrence of harm. In this case, the country information reports that Pakistan continues to face security threats from terrorist, militant and sectarian groups, but states that since the commencement of the counter terrorism military operation Zarb-e-Azb in June 2014, Pakistani military operations against terrorists and militant groups have substantially reduced the level of generalised and sectarian violence throughout the country. Therefore, while the Tribunal accepts that there is a level generalised violence in Karachi, Pakistan that would not be acceptable to Australians it does not accept that the risk of harm to the applicant will be a necessary and foreseeable consequence of his return to Pakistan. The applicant claims to have received some threats via Facebook as referred to above, but otherwise has not received any threats as a result of his involvement with the association or as an advocate for Shia safety in Pakistan. As a result there appears to be no (as opposed to a speculative) causal link between his removal from Australia and his exposure to the real risk of significant harm. Section 36(2)(aa) of the Act requires that there be a 'necessary and foreseeable consequence' between the applicants return to Pakistan and the real risk of significant harm. In this case there is no evidence of such a causal link between the applicants return to Pakistan and his risk of significant harm from any generalised violence.

1. The Court understands that first respondent's submission is that the Court should nevertheless find that the Tribunal understood and applied the correct test because the Tribunal stated the correct test in [104] which the Tribunal said that it had considered (FRS [28]). The Court does not agree. The Court accepts the applicant's submission and analysis on this point (AS [27]-[28]). This is not a case in which, with an eye not finely attuned to error, it might be said that the Tribunal expressed itself poorly in [105] and that what was said at [104] made that clear. At [105], the Tribunal clearly and unambiguously misconstrued the test. This is a jurisdictional error.

Materiality and the construction of section 36(2B)(c)

1. The first respondent says that any error is not material because of the Tribunal's conclusion at [106] that, pursuant to s 36(2B)(c), the real risk is one faced by the population of the country generally and is not faced by the applicant personally. For that reason, the first respondent submitted that particular (b) to ground four should not be accepted (FRS [29]). The applicant's counsel accepted, in oral submissions, that if the Tribunal had correctly applied s 36(2B)(c) then the error with respect to causation would be immaterial.
2. Section 36(2B)(c), which provides for what is referred to as a carve-out to complementary protection, is as follows:

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

[...]

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

1. In particular (b) of ground four, the applicant contends that in respect of s 36(2B)(c) the Tribunal wrongly concluded that the provision was met by examining the risk as it applied to people in Karachi, rather than the whole of Pakistan.
2. The first respondent submitted that for the applicant to succeed in respect of particular (b), he must establish that he claimed to rely upon his place of residency in Karachi as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Pakistan generally (FRS [30]). The first respondent's case is that the applicant made no such claim and at no point did any claim that there was a higher risk of harm in Karachi than the rest of Pakistan clearly emerge from the material (FRS [31]-[36] referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) FCR 1 ("NABE")).
3. The applicant submitted that his claim to complementary protection was that he faced a differential risk as a resident of Karachi to that faced by the population of Pakistan generally and so the carve out in s 36(2B)(c) does not apply.
4. There are two issues here. The first is whether the applicant made this claim of differential risk and secondly, if he did, whether the Tribunal misapplied the test.
5. At [106], the Tribunal starts by setting out the language of s 36(2B)(c) and then says that the decision maker is required to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk. The applicant does not cavil with that. It is what is said by the Tribunal next which is said to reveal error:

106. [...] As the applicant has not received threats for his involvement with the association, other those referred to above, then the risk of general violence faced by the applicant is the same as for the rest of the population.

1. If the applicant's claim was one of differential risk as a resident of Karachi, the Tribunal's approach to s 36(2B)(c) is wrong (BCX16 v Minister for Immigration and Border Protection [2019] FCA 465; (2019) ALD 313 at [34]; [37] per Charlesworth J). The Court agrees with the applicant's submission on this point (AS [31]). The Tribunal did not reason, in considering the carve-out, the country information that Karachi had its own risk profile. In fact, the Tribunal at the conclusion of [106] returned to its finding that the applicant had not received threats because of his involvement with Shia Safety. Of course, whether there was any differential risk was a matter for the Tribunal to determine on the merits applying the correct legal test. It might then have been necessary for the Tribunal to consider the application of s 36(2B)(a) on the facts. But, the Tribunal did not get there.
2. The approach to be taken in determining whether an applicant has made a claim was considered in NABE. A claim "not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal" (NABE at [58]). As was said in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 75 ALD 411 (at [18] per Selway J) and cited with approval in NABE at [60], the question ultimately is whether the case put by the applicant before the Tribunal has sufficiently raised the relevant issue such that the Tribunal should have dealt with it. The applicant's counsel took the Court to a number of references in the material to support the submission that the "Karachi claim" was made by the applicant including by reference to the delegate's decision (CB 300-301) and country information about the level of sectarian violence in Karachi.
3. The first respondent submitted that the applicant did not claim to rely on his place of residency in Karachi as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Pakistan generally. The first respondent submitted that, on the contrary, the applicant relied on his widespread reputation and recognition and public notoriety of Shia Safety in support a claim that he would not be safe anywhere in Pakistan. For example, in the applicant's migration agent's written submission to the Tribunal it was said that "[the applicant] will likely attract attention wherever he lives in Pakistan. We submit that the Applicant's notoriety extends beyond Karachi and across Pakistan, even attaining international recognition."
4. The first respondent's analysis of the applicant's claim is compelling. However, in the end, the question is really to be answered in this case by reference to what claim the Tribunal did consider. The Court considers that it is apparent from [104] that the Tribunal was considering a claim to risk of significant harm were the applicant to return to Karachi. Accordingly, the Court is satisfied that even if it was not clear on the face of the material that the applicant was making the claim, it is apparent that the Tribunal considered the applicant had made the claim and considered, or at least endeavoured to consider, that claim.
5. The Tribunal incorrectly applied s 36(2B)(c) to the applicant's claim as considered by the Tribunal. As a consequence, the misconstruction of s 36(2)(aa) is a material jurisdictional error.
6. Accordingly, jurisdictional error is established on ground four

1. For the reasons given above, the amended application is allowed.

I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.