DDK17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2083

1. In oral submissions, the applicant appeared to raise a ground not previously advanced concerning the applicant's early onset dementia. It was submitted that the Tribunal had noted the applicant was suffering early-stage dementia which would have impacted his ability to give cogent explanations of the risks he might face. It was contended that while the applicant may have had a reasonable recollection of events prior to leaving Pakistan, he was in a disadvantageous position when he appeared before the Tribunal due to his medical condition and his lack of representation. The Minister did not appear to object to the applicant raising this further ground and addressed it in oral submissions at the hearing.

1. Given the overlap, grounds one and two have been considered together.
2. The applicants submitted that while the Tribunal acknowledged the 'Yates J integer' by referencing DDK17, regarding the claim the applicant was a Shi'a sympathiser, it was submitted the Tribunal again failed to properly deal with that integer of the claim. The applicants submitted that by simply dismissing the Shi'a sympathiser claim, without considering the most recent country information, the Tribunal committed a jurisdictional error.
3. The applicants submitted that the Tribunal, after setting out the background information, went on to consider the independent country information: at CB 736. It was submitted that the information considered by the Tribunal noted the 'escalating religious risks in Pakistan since the Taliban takeover in Afghanistan in August 2021' and the discriminatory treatment of Shi'a Muslims: at CB 738.
4. The applicants submitted that the Tribunal erred by its failure to deal with the 'Yates J integer' by relying on the 'DFAT 2016 Thematic report on Shi'a in Pakistan' (the 2016 report) to support the finding that the applicant would not be at risk due to his alleged sympathy for Shi'a Muslims: at [85]. The applicants noted that the Tribunal had relied on the 2016 report in its reasons but had not footnoted, nor directly quoted from it.
5. The applicants submitted that the Tribunal committed a jurisdictional error by not mentioning the plethora of recent reports detailing the worsening conditions for Shi'a Muslims in Pakistan after 2016 and since the takeover of Afghanistan by the Taliban in August 2021.
6. The applicants relied upon BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114 (BIL17), which found that jurisdictional error may be established where a decision-maker relies upon out-of-date country information, when up-to-date country information had been provided.
7. The applicants submitted that the Tribunal failed to consider the risk to the applicants in Pakistan concerning the alleged kidnapping of the son (at [84]-[85]) by continuing to rely on the 2016 report.
8. The Minister contends there was no failure on the part of the Tribunal to consider the 'Yates J integer' identified in DDK17. It was contended that the Tribunal completed its statutory obligations by considering, and making findings, in respect of the applicant's claim to be at risk of harm on account of his claimed conversion to Shi'a Islam and his claimed sympathy or solidary with Shi'a in Pakistan.
9. In respect of the Tribunal's reference to the 2016 report, the Minister submitted that it was not relied upon by the Tribunal to assess the general risk that may be faced by the applicants upon return to Pakistan, but it was used as part of the Tribunal's assessment of the applicant's claim that he was a Shi'a sympathiser.

Did the reconstituted Tribunal, like the first Tribunal, also fail to consider the Shi'a sympathiser claim identified by the Federal Court in DDK17?

1. The Tribunal's reasons disclose that it understood the error identified by the Federal Court in respect of the first Tribunal's decision. At [53]-[56], the Tribunal expressly referred to the decision of Yates J and relevantly extracted DDK17 at [19]:

Although the delegate did not accept that the first appellant had converted from the Sunni faith to the Shi'a faith, she did accept that he had been targeted because of his "pro-Shi'a" views and associations. The delegate accepted that the first appellant was sympathetic to Shi'a Muslims and that he had previously engaged with Shi'a Muslims, despite threats and violence from anti-Shi'a groups.

1. The Federal Court identified that one of the claims (or integer of a claim) made by the applicant, and accepted by the delegate, was that he was sympathetic to Shi'a Muslims. Whilst the first Tribunal considered the applicant's claim to have converted from Sunni to Shi'a Islam, the Federal Court found that it had failed to engage with the claim about being perceived as a Shi'a sympathiser.
2. At [56], the Tribunal summarised the Federal Court's findings:

The Federal Court found the appellants' claims included a claim to fear persecution in Pakistan on the basis that Mr Hussain is perceived to be a Sunni who is sympathetic to Shi'a Muslims, and that the previously-constituted Tribunal failed to engage with that claim. The Court found that the Tribunal either misunderstood or misconstrued Mr Hussain's claims and, in doing so, effectively treated this particular claim as nothing more than incidental to his claim to have converted to the Shi'a faith, rather than as a separate, independent, and substantively different claim. The Court found that the fact that Mr Hussain might be motivated by health and family factors to remain in Australia did not belie the possibility that he also had a real and genuine fear of persecution, on the basis of his perceived Shi'a sympathies.

1. Having understood the error made by the previously constituted Tribunal, the Tribunal sought to explore the applicant's claim of being at risk of harm because he was or would be perceived a Shi'a sympathiser if he returned to Pakistan. This can be observed from its record of its discussion with the applicant at [69]-[70]:

69. Later in the hearing, I devoted attention to the claim the Federal Court found to have been overlooked by the previously-constituted Tribunal: the claimed fear of being persecuted for reasons of being a Sunni who sympathised with Shi'a. I was interested in finding out from Mr Hussain how his sympathy with Shi'a might be discernible in Pakistani society. In reply, he said he does not know how to be sympathetic with Shi'a because he is already, in fact, a Shi'a. I asked him to tell me what would happen to him in Pakistan if he told people, for example, that "Shi'a are OK." In reply, he said that if a Sunni in Pakistan says, "Shi'a are OK, [then] that is fine." He indicated that if he ever said this to an extremist, however, he would be harmed.

70. I asked Mr Hussain to give me any details he could about any support of any kind that he might have given Shi'a in Pakistan in the past. In response, he said, "We used to attend their gatherings ... and Ashura ... and whatever [was] needed." I asked him if ii had been a risk for him to been seen in public participating in Ashura processions in Pakistan and he said the processions always had a lot of security.

1. The evidence given by the applicant claiming to have already converted to Shi'a and what would happen to a Sunni in Pakistan if they expressed support for a Shi'a was considered by the Tribunal at [84] and [85] of its reasons.
2. In considering the evidence before it, the Tribunal was not satisfied that the applicant had ever genuinely embraced or held Shi'a beliefs or had any interest in doing so. Nor was the Tribunal satisfied that the applicant ever converted from Sunni to Shi'a Islam, even informally.
3. At [85], the Tribunal relevantly considered the evidence before it in respect of the claim that the applicant, a Sunni, was or would be perceived as sympathiser with Shi'a Muslims. For the reasons it gave, the Tribunal found that the applicant had not demonstrated any potentially significant Shi'a sympathy or solidarity with Shi'a Muslims in Pakistan or Australia. While the Tribunal accepted that the applicant knew Mr Z and attended Ashura, it was not satisfied that this substantiated the applicant's claimed Shi'a affiliation, noting the applicant's own evidence that Ashura processions were public events and open to all. The Tribunal also considered the applicant's evidence about affiliating with Shi'a and therefore appearing to be a Shi'a sympathiser to be unsatisfactory. The Tribunal also had regard to contextual evidence (namely, the 2016 report) that indicated relations between Sunnis and Shi'a in Karachi, at the time of the claimed events, were such that they 'generally [got] along with each other'.
4. The Tribunal also considered the applicant's claims of harm, including that he and his family were attacked, and that he received death threats and warnings, demanding he reconvert to Sunni Islam, but for the reasons it gave, the Tribunal rejected those claims: at [85]. Nor was the Tribunal satisfied that the kidnapping of AR was in any way related to the applicant being a Shi'a sympathiser: at [85].
5. At [88], having considered the evidence before it, the Tribunal concluded that the applicant's claimed fear of being harmed due to the perception of being a Sunni Muslim who sympathises with Shi'a was groundless.
6. The Tribunal did not make the same error (identified by Yates J) as the first Tribunal. The Tribunal's reasons plainly disclose that it properly considered (and engaged with) the applicant's claim to fear harm in Pakistan on account of his claimed affiliations with Shi'a, being a Shi'a sympathiser and/or a Sunni perceived to be a Shi'a sympathiser.

Did the Tribunal's erroneously rely on information in the 2016 DFAT Report and did it fail to complete the statutory review by not considering recent country information?

1. One of the reasons given by the Tribunal for rejecting the applicant's claims relating to being (or being perceived to be) a Shi'a sympathiser was its reliance on information in the 2016 report.
2. It should be emphasised that the 2016 report was only one of several factors considered by the Tribunal for rejecting the applicant's claims concerning his sympathy (or perceived sympathy) with Shi'a Muslims.
3. It should also be emphasised that the Tribunal's reference to the 2016 report was in the context of considering relations between Sunnis and Shi'a in Karachi when the applicants were in Pakistan. Understood in context, the Tribunal observed that the information in the 2016 report indicated the generally amicable Sunni-Shi'a relations in Karachi at the time the applicants were there. In reinforcing its assessment of the contextual country information, the Tribunal referred to the applicant's own evidence that Ashura processions were open for observation to all members of the public and were managed as mass events.
4. This is not a case where the Tribunal had unreasonably relied on outdated country information to reject the applicant's claims of being at risk of harm on account of his Shi'a affiliations or sympathy (actual or perceived) with Shi'a Muslims. The Tribunal's reliance on the information in the 2016 report was for a specific purpose in the context of assessing the applicant's claims in respect of events and experiences when he was in Pakistan. No error is discerned in the Tribunal's approach or its reliance on the 2016 report in that regard.
5. The Tribunal reasons also disclose that it had regard to recent country information relevant to the claims made by the applicant.
6. At [26]-[33] of its reasons, the Tribunal sets out the recent country information before it, including extracts from the 2022 DFAT country information report. The information indicated that the TTP and other armed groups target religious minorities, including Shi'a Muslims. It also indicated that Shi'a face rising religious intolerance and official discrimination in the form of blasphemy accusations. DFAT assessed that Shi'a in Pakistan faced a moderate risk of sectarian violence, although the situation had improved in recent years. The Tribunal also set out country information relating to the security situation in Pakistan, including the presence of armed groups, domestic jihadist groups, global jihadist groups, and nationalist and ethnonationalist groups, who have targeted and carried out deadly attacks on religious minorities, including Shi'a.
7. At [29], the Tribunal also set out country information relevant to perceived blasphemy and apostacy in Pakistan, and discussed the rise of blasphemy cases against minorities, noting that 70% of those accused were Shi'a. The Tribunal also had regard to country information regarding kidnappings (for ransom) in Pakistan, including in Karachi by the TTP to raise funds.
8. In making its assessment of the applicant's claims and evidence, however, the Tribunal rejected, for the reasons it gave, the applicant's claim to have converted to Shi'a, to be affiliated with Shi'a, to be a Shi'a sympathiser or perceived to be a Sunni who sympathised with Shi'a. Had the Tribunal accepted any of these claims, then it would have been required to consider the current country information before it for the purposes of assessing whether the applicant had a well-founded fear (real chance) of persecution or real risk of significant harm in Pakistan. However, this was not a case where the Tribunal had accepted any of those claims, as such it was not required to actively engage with the recent country information before it regarding the real chance/real risk of harm faced by Shi'a in Pakistan, which would have also informed its assessment of the risk faced by Shi'a sympathisers or Sunnis perceived to be Shi'a sympathisers.
9. By contrast, the Tribunal engaged with the country information before it regarding kidnappings: at [80]-[81], [83] and [86]. While the Tribunal did not accept that the applicant's son (AR) was kidnapped because of religion or an extremist socio-politics by the TTP or other armed and/or extremist group, it concluded, based on the country information before it, that any kidnapping of AR was 'low-level' by a 'local mercenary criminal enterprise such as is perpetrated from time to time in cities like Karachi': at [86].
10. As to the applicant's reliance on BIL17, I note the error in that case arose because the Tribunal failed to actively and intellectually engage with updated country information concerning the political situation in Fiji and the risk faced by persons involved in Christian separatist movements. In BIL17, the Tribunal did not reject the applicant's claims for protection. In fact, it accepted that the applicants were members of Christian separatist organisations in Fiji and that they had expressed support for a breakaway separatist state and were involved in related separatist activities. The Tribunal, however, did not accept that they would be at risk of harm in Fiji because they were not prominent separatist figures, and there was insufficient evidence that ordinary separatist members or supporters faced persecution. While this reasoning was consistent with earlier country information, it was contrary to the more recent country information before the Tribunal. It was in this context that the Tribunal in BIL17 was found to have erred by failing to engage with updated country information relevant to the actual claims advanced by the applicants in that case. Neither the facts or reasoning in BIL17 were analogous to the facts or reasoning in the present case.
11. This was not a case where the Tribunal erroneously relied on outdated information. It was also not a case where the Tribunal preferred information in the 2016 report over the more recent information in the 2022 DFAT report. Nor was it a case where the Tribunal rejected the information in the 2022 DFAT report. The applicants' submission in that regard, with respect, is misconceived.
12. The information in the 2016 report was relied upon by the Tribunal for a contextual purpose, whereas the information in the 2022 DFAT report, relevant to the claims the Tribunal had accepted (as opposed to those it had rejected), was relied upon to assess whether the applicants faced a real chance of persecution for any reason in s 5J(1)(a) or there was a real risk of significant harm as defined in s 5(1) of the Act.
13. The applicants have not demonstrated any failure on the part of the Tribunal to complete the statutory review.
14. For these reasons, grounds one and two must be dismissed.

1. At the hearing before me, the applicants raised an issue about the applicant being unrepresented before the Tribunal and having early onset dementia. It was submitted that the Tribunal had erred in relying on a 'dearth of information from the applicant in predicting what might happen on his return' to Pakistan when it had 'undisputed evidence', that being, the current country information concerning the change of circumstances in Pakistan.
2. The issue pertaining to the applicant's capacity to give evidence and present arguments before the Tribunal was not one that had been raised as a separate (or even related) ground of review. The Minister, while noting that the issue had not previously been raised by the applicants, nevertheless proceeded to respond to this issue in oral submissions.
3. The Minister submitted that while the Tribunal accepted the applicant may have early onset dementia, the Tribunal did not find he had any particular deficit, which would prevent the Tribunal from relying on the evidence he provided to it or the previously constituted Tribunal. It was also submitted that there was nothing untoward in the Tribunal's observation that certain evidence provided by the applicant was vague or unsupported: at [46], [68], and [85].
4. As submitted by the Minister, the Tribunal did not just have regard to the applicant's oral evidence at the hearing (at [57]-[72]) before it, it also had regard to the evidence given by the applicant to the previously constituted Tribunal (at [34]-[52]) and to the written materials (at [68]) before it.
5. The issue raised by the applicants appears to allege that the applicant may not have been given a meaningful opportunity to give evidence and present arguments at the hearing before the Tribunal, as required by s 425 of the Act, either because he was unrepresented and/or because of his early onset dementia.
6. In respect of the applicant being unrepresented, it has not been demonstrated that the applicant's lack of representation before the Tribunal, impacted his ability to appear before it to give evidence and present arguments in support of his application, such that the applicant was not afforded a fair hearing. The Tribunal's reasons at [5] disclose that the applicant was accompanied by one of his sons for support and that he was assisted by an interpreter in the Urdu and English languages.
7. At [45], the Tribunal referred to medical reports which indicated the applicant was suffering 'to some extent' from dementia. At [75], the Tribunal expressly acknowledged that the applicant had been diagnosed with dementia, which likely affected his capacity to 'find words, remember dates and communicate some details'. The Tribunal nevertheless observed that the applicant tended to generally answer the Tribunal's questions on their respective points and, on that basis, it was satisfied that the applicant had not been prevented by any circumstances, from giving meaningful evidence in support of his application for review.
8. The reasons disclose that the Tribunal asked the applicant questions regarding his claims for protection and discussed with him its concerns regarding some of those claims and the country information before it. The Tribunal noted that the applicant appropriately responded to its questions and concerns. There is no evidence before the Court which suggests the applicant's medical condition adversely affected his capacity to meaningfully participate in the hearing.
9. The applicant has not demonstrated any failure on the part of the Tribunal to afford the applicant a fair and meaningful hearing. Nor has the applicant demonstrated any relevant error on the part of the Tribunal in relying on its observations that the applicant's evidence, in respect of some claims, was 'unsupported and vague': at [85].
10. The further issue raised does not disclose jurisdictional error on the part of the Tribunal.

1. As none of the grounds or matters raised by the applicants establish jurisdictional error, the application for judicial review must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.