DWP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1852

1. The applicant seeks judicial review of a decision of the then Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse the grant of a Temporary Protection (subclass 785) Visa (the visa). For the applicant to succeed in this Court, he must establish that the IAA's decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found jurisdictional error in the IAA's decision. On that basis, the application has succeeded.

1. On 21 March 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival (Court Book (CB) 51, 55). The applicant is a citizen of Pakistan who hails from Parachinar in the Kurram District in the Khyber Pakhtunkhwa province. He belongs to the Turi tribe and is a Shia Muslim of Pashtun ethnicity (CB 1, 108-109).
2. On 2 May 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 7-26). In that interview, he claimed he left Pakistan for fear of persecution by the Taliban. He also claimed to have tragically suffered the loss of an unborn child as a result of the Taliban preventing him and his wife from obtaining medical treatment in Islamabad (CB 20).
3. On 12 April 2016, the applicant was invited to apply for a Temporary Protection Visa or a Safe Haven Enterprise (subclass 790) visa (CB 27-28).
4. On 24 May 2016, the applicant lodged an application for a Temporary Protection Visa with the assistance of a registered migration agent (CB 31-70). The application annexed supporting documents, including a statutory declaration disclosing his fear of persecution by the Taliban on account of sectarian violence and false blasphemy charges (CB 71-80).
5. On 23 January 2019, the applicant was invited to attend an interview with the Department of Home Affairs scheduled for 15 February 2019 (CB 101-103).
6. On 16 August 2019, a delegate of the Minister refused to grant the applicant the visa (CB 104-120).
7. On 21 August 2019, the delegate's decision was referred to the second respondent, the IAA, for review (CB 122-123).
8. On 4 September 2019, the applicant appointed a migration agent as his authorised representative (CB 129).
9. On 11 September 2019, the applicant's migration agent provided further information to the IAA in support of the review application, including submissions, a statutory declaration and other supporting documents (CB 130-169).
10. On 23 September 2019, the IAA affirmed the delegate's decision not to grant the applicant the visa (CB 172-188).
11. The applicant filed an application with this Court for judicial review of that decision, which was subsequently remitted by consent in accordance with the orders of Judge Lucev on 28 July 2023. The Minister accepted that the IAA had erred in not considering an integer of the applicant's claim, namely, that Turis in his home region of Kurram District faced a moderate risk of sectarian violence from militant groups (CB 189-190).
12. On 24 August 2023, the IAA granted approval to the applicant's migration agent to provide additional information and submissions (CB 205).
13. On 14 September 2023, the applicant's migration agent provided the IAA with further submissions in respect of new information and the applicant's mental health, as well as supporting material including country information, social media posts, photographs, a statutory declaration, and other supporting documents (CB 207-903).
14. On 16 October 2023, the IAA again affirmed the delegate's decision not to grant the applicant the visa (CB 905-961).

1. On 5 November 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
2. The applicant was unrepresented at the time of filing his application with the Court. His application contained two broad grounds for review:

(1) The decision of the IAA failed to consider or engage with the applicant's evidence.

(2) The decision of the IAA is affected by legal unreasonableness.

1. On 9 July 2025, the applicant (now represented) filed an amended application containing three particularised grounds for review as follows (without alteration):
   1. The second respondent's (Authority's) decision is affected by jurisdictional error due to:
      1. failing to consider harm by reference to the reasonably foreseeable future; and/or
      2. adopting a relative, rather than objective, assessment of whether the applicant faced a real chance of serious harm.

(a) The applicant referred to the "renewed capacity of the radical anti-Shia and anti-Turi militant TTP in Khyber-Pakhtunkhwa" and submitted he "is at risk of harm [in] the reasonably foreseeable future given the threat of the resurgent TTP and IS-K" as "the evidence reveals an increasing trend in both the incidence and severity of terrorist attacks, and that the security situation has deteriorated beyond control. Given the ongoing presence of the Afghan Taliban, and increasing trends of violent terrorist attacks, the applicant's risk profile for all of the above reasons rises to the level of a real chance of harm": CB 209 - 210.

(b) The country information provided by the applicant documented a recent increase in sectarian violence: see e.g. 2023 report by the Pakistan Institute of Peace Studies (PIPS) of "sectarian attacks across Pakistan rising for a second consecutive year" (CB 210) and DFAT reporting "TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021": DFAT Country Information Report Pakistan dated 25 January 2022 CB 240 at [2.40].

(c) The Authority purported to assess whether the applicant faced a real chance of serious harm due to sectarian violence at CB 940 - 946 [125] - [143].

d) Despite acknowledging "a spike in recent sectarian violence attributed to the Taliban", the Authority fixated on the present situation without any real assessment of risk of harm in the future, reasoning that "Pakistan was much safer now than when the applicant lived there" but failing to address the risk of harm with reference to the reasonably foreseeable future, or consider whether the spike in attacks may be a trend that continues to escalate in the foreseeable future, and how might that impact on the applicant's risk of persecution: see CB 944 [135] and 946 [143].

(e) Further and in the alternative, the Authority assessed the security situation by adopting a relative rather than objective assessment of the level of sectarian violence (see CB 944 [135]), which infected its conclusion that the applicant's risk of harm from the present security situation is "not more than remote": at CB 946 [143].

1. The Authority's decision is affected by jurisdictional error due to irrational reasoning, findings lacking a proper evidentiary basis and/or a misunderstanding of the review material.

(a) The applicant referred to DFAT's report of a "heightened risk of falsified blasphemy accusations '70% of which are against Shia due to anti-Shia sentiment in politics" and claimed to be at risk of being imprisoned for blasphemy: see CB 209, CB 216.

(b) In purporting to consider this issue, the Authority referred to country information (viz. the UK Home Office's July 2021 'Country Policy and Information Note Pakistan: Shia Muslims' report (UK Home Office report) which it considered:

"indicates that while false blasphemy charges are a real problem in Pakistan for members of the for Shia community [sic] (and other minorities) this tends to occur in areas where they do not form a local majority. I have found this applicant would be returning to a locality where 80% of the Population are Shia Turis like himself. In the absence of other evidence about this issue, I consider that he has only a remote, and therefore not a real chance of being falsely accused of blasphemy in Pakistan": CB 944 at [137].

(c) Neither the UK Home Office Report (CB 639 ff), the DFAT report (CB 236 ff) nor any other country information indicates that the risk minority groups face of false blasphemy charges "tends to occur in areas where they do not form a local majority" or varies geographically throughout Pakistan.

d) In the premises, the Authority's process of reasoning and fact-finding lacked a proper evidentiary basis, was irrational, and/or misunderstood the review material.

1. The Authority's decision is affected by jurisdictional error due to a failure to give genuine consideration to submissions and country information which impacted upon the applicant's claims.

(a) The applicant claimed to be at risk from militants as a Turi Shia in Kurram Agency, referring to DFAT's assessment from its 2022 report that Turis in Kurram District face a moderate risk of sectarian violence" and PIPS' report of increasing sectarian attacks of which "64% of terrorist attacks in Pakistan occurred in the applicant's home region": CB 209 - 210.

(b) The Authority 'noted' the applicant's claims (see CB 941 [128], 944 [137]) and considered other integers of his risk profile (at CB 944 - 946 [136] - [142]) but these findings did not resolve the issues raised by the submissions and country information regarding the risk to Turi Shias generally.

(c) The applicant was 'left to guess' why, despite DFAT's assessment that Turis generally faced moderate risk of sectarian violence, and the subsequent PIPS report confirming there had been a "27 percent increase in the incidence of terrorist violence in 2022" (CB 690) the majority of which were in his home region (CB 210) he did not face a real chance of harm as a Turi Shia from Parachinar.

1. The materials before the Court at the hearing on 30 July 2025 include:
   • the amended application for judicial review filed on 9 July 2025;
   • the affidavit of the applicant affirmed and filed on 5 November 2023 (taken as read and in evidence at the hearing);
   • a Court Book numbering 966 pages (marked as Exhibit 1);
   • written submissions filed on behalf of the applicant on 9 July 2025; and
   • written submissions filed on behalf of the Minister on 22 July 2025.

1. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. The applicant's grounds challenge two key aspects of the IAA's decision: namely, its application of the real chance test and its findings in respect of identified country information. The applicant's challenges all relate to the IAA's consideration of the security situation in Pakistan as a Shia Turi Pashtun from Kurram District.
2. Since the applicant's grounds are confined to this aspect of the IAA's reasoning, it is helpful to set out the IAA's findings in that respect in full (at [125]-[143]) (citations and footnotes omitted):

[125] I have accepted that this applicant is a person of Pashtun ethnicity and a member of the Turi Tribe who adheres to the Shia faith. I have concluded that if returned to Pakistan, he would return and reside in Parachinar, and live with his family as he did in the past. The applicant has argued that his Shia faith, his Pashtun ethnicity, and his membership of the Turi tribe would all lead to him facing harm in Pakistan. He says Turis are considered to be supporters of the West due to their past conflict with the Sunni Taliban. The applicant says can be identified by his National Identity Card, and his strong accent, which identifies his region of origin. He also says that the security situation in Pakistan has deteriorated, and he would not be safe in Pakistan for that reason.

[126] Parachinar is the principal city and capital of Kurram District. The district is located in the Northwest of Pakistan, adjacent to the Afghanistan border. Kurram District is part of the Khyber Pakhtunkhwa Province. It is divided into three administrative units, Upper Kurram, Lower Kurram and Central Kurram.

[127] The Pashtuns are an ethnic group native to Afghanistan and north-western Pakistan. They primarily live in and around the border between the two countries. In Pakistan, the Pashtun community is concentrated in the Khyber Pakhtunkhwa Province. There are around 20-25 million Pashtuns living in Pakistan according to DFAT. Pashtuns make up roughly 15% of the Pakistani population and they are the second largest ethnic group in Pakistan.

[128] The Turi tribe is a Shia Pashtun Tribe of around 500,000 people. Most Turis live in and around Parachinar in the Kurram District. Turis are not generally distinguishable from other Pashtuns by their appearance, but Turi family names do distinguish them. Turis tend to live in areas where other Turis reside, such as Parachinar. Turis in Pakistan have faced significant violence in the past due to their sectarian affiliation and their historic opposition to the Pakistani Taliban and other Sunni extremist groups. Most of the Shia in Kurram District are members of the Turi Tribe. The applicant claims his membership of the Turi tribe would lead to a moderate risk of harm.

[129] According to the 2017 census, the Pakistani population was 207 million while more recent reporting suggests that the population is around 230 million. Pakistan is 96% Muslim. Shia Muslims represent somewhere between 10% to 15% of the population. There is estimated to be around estimated 20-40 million Shia living in Pakistan and it is the second largest Shia country in the world. The Shia are well represented in parliament and regularly contest elections for mainstream political parties. Shi'a are generally able to establish places of worship and practise their religion without overt state interference. Shia can legally intermarry with members of the Sunni faith. Most Shia in Pakistan adhere to the Twelver school of Shia Islam, as does the applicant. Shia populations can be found throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha, but Shia do not constitute a majority in any of Pakistan's four provinces, though they are a majority in the Parachinar area. Kurram District has a significant Shia population and Parachinar has been described as a Shia stronghold. Shia are said comprise around 40 per cent of the population of Kurram District, but the administrative unit of Upper Kurram, where Parachinar is located, is estimated to be around 80% Shia.

[130] The Shia and Sunni communities are generally well integrated in Pakistan and most Pakistani Shia are not physically or linguistically distinguishable from Pakistani Sunnis. Shia are mostly identifiable during religious events or at places of worship. Historically relations between the Sunni and Shia populations of Pakistan were cordial, with ethnic, tribal and linguistic differences being more problematic. However, the so called 'Islamisation' of Pakistan, during the Presidency of Zia-ul-Haq, a Sunni, led to an increase in tensions between the two communities. The Shia faith in Pakistan is not confined to specific ethnic, linguistic and tribal groups. DFAT assesses that there are no barriers preventing Shia from actively participating in democratic processes in Pakistan due to their sectarian affiliation.

[131] I accept that this applicant could be identified as a Shia Turi due to his National Identity Card and his accent. However, I have found that this applicant would return and reside in Parachinar. In the circumstances, he would be returning to an area (Upper Kurram) where he would be a member of the majority ethnicity (Pashtun), the majority religion (Shia) and in which the majority of his coreligionists are members of his tribe (Turi). There are some 500,000 Shia Turis in the Parachinar region, including members of his own family. Moreover, he would also be returning to an area he knows well, having spent the first 27 years of his life living in Parachinar, and where his mother, his wife, his child and most of his siblings continue to reside and where the applicant has found employment in the past. I have found that the applicant would return and reside with his family in Parachinar as he did before he travelled to Australia. All of these factors would mitigate many of the challenges the applicant might otherwise face in returning to his home country now, over a decade after his departure. In light of these factors, I conclude that in Parachinar the applicant would be able to secure shelter and assistance.

[132] Despite these mitigating factors, there are problems in Pakistan. Country information before me, including the country information provided by the applicant does indicate that Pakistan is plagued by a range of security problems. Armed Sunni extremist groups operate in Pakistan including the Pakistani Taliban, the Islamic State Movement, Sipah-e Sahaba and Lashkar-e Jhangvi (LeJ), all of whom the applicant claims to fear harm from. He describes these groups as anti-Shia and says that they would target him. Country information indicates that these groups do have an anti-Shia agenda.

[133] Parachinar is not free of violence. There is a history of community tensions in the Parachinar area leading to sectarian violence in the past. Around 2008 and for several years thereafter, there was a conflict between the Pakistani Taliban, and the largely Shia population in Northwest Kurram District. The Pakistani Taliban was seeking to secure access to a land route from Pakistan to Afghanistan via the Kurram Valley. During this period there was significant sectarian violence as the local Shia population, including Turi tribesmen, opposed the Pakistani Taliban. In his protection visa application, the applicant cited this period of violence as a significant factor in his decision to leave Pakistan.

[134] For more than a decade, the Government of Pakistan has intervened throughout the Khyber Pakhtunkhwa Province to combat Sunni extremism and violence. The Pakistani military have a strong presence throughout the province and have maintained a long-term security presence in Parachinar. The Pakistani security forces implemented a 20-30 square kilometre security zone around the Parachinar area, and a smaller, tighter security zone in Parachinar city. The intervention of security forces reduced the number of security threats faced by the Turi population. Government attempts to neutralise the threat posed by the Taliban and other extremist groups are ongoing. The applicant's own account of his life acknowledges the presence of Pakistani military units in Parachinar and indicates he interacted with the security forces before he travelled to Australia. The applicant's protection visa application indicates that in Parachinar, he and his family resided in Parachinar city, and in his protection visa interview he said they resided close to the main bazar. From these explanations, it is clear that the applicant and his family lived inside the security zone provided by Pakistani military. The applicant's family still reside in this area.

[135] In the years that the applicant has lived in Australia, the level of sectarian violence perpetrated by extremist groups in Pakistan has fallen considerably. The applicant has pointed to two attacks which occurred in Kurram in 2022. However, sectarian violence from militant groups does still occur in the Khyber Pakhtunkhwa Province. Since August 2021, when the Afghani Taliban seized control of Afghanistan, there has been a resurgence in Pakistani Taliban activity. This has led to a spike in recent sectarian violence attributed to the Taliban. However, the level of sectarian violence is still well below previous highs, and significantly lower that it was when the applicant departed Pakistan. There are fewer security incidents, fewer deaths and fewer people injured by sectarian violence. Pakistan is much safer now that it was when the applicant lived there.

[136] Though the applicant has identified the Pakistani Taliban as the principal group he fears since he arrived in Australia, during his protection visa interview the applicant indicated that he personally has never hand any interactions with the Taliban. He has never claimed to have had any direct interactions with the Islamic State Movement, Sipah-e Sahaba, Lashkar-e Jhangvi, or any other Sunni extremist group in Pakistan. Though I have accepted that his brother B1 received a threat letter from the Taliban in 2012, this happened after the applicant departed his home country and so that event cannot have prompted his departure, and in any case, B1 has lived in Pakistan for at least four years. This suggests that whatever the threat against B1 was in 2012, that threat has faded. Though the applicant says he would be targeted by these groups due to his ethnicity, his religion and his tribal affiliation, he has not indicated that any other member of his family has ever been targeted for these reasons (B1 was targeted due to his previous employment) by any Sunni extremist group. In the circumstances, the applicant's claim to fear harm for these reasons is unpersuasive.

[137] The applicant argues that Shia in Kurram face a moderate risk of harm due to their faith and has provided a range of country information which discusses the lives of Shia in Pakistan. I have considered this material. He says that he could easily be identified as a Shia and I accept that this is the case. He cites the 2022 DFAT report to argue that as a Shia, he would face a risk of a falsified blasphemy accusation in Pakistan, but this has never happened to the applicant in the past, and he has not indicated that it has happened to anybody he knows. Country information provided by the applicant indicates that while false blasphemy charges are a real problem in Pakistan for members of the for Shia community (and other minorities) this tends to occur in areas where they do not form a local majority. I have found this applicant would be returning to a locality where 80% of the Population are Shia Turis like himself. In the absence of other evidence about this issue, I consider that he has only a remote, and therefore not a real chance of being falsely accused of blasphemy in Pakistan.

[138] In addition to his claims to fear harm from extremist groups in Pakistan, in his 2023 Submission, the applicant also cited DFAT to argue that due to anti-Pashtun sentiment in Khyber Pakhtunkhwa Province Pashtuns face a moderate risk of violence by state security forces. The applicant asserts that the Government of Pakistan does not protect the Shia community and that the Government instead supports the Taliban. He also claims to fear harm from Government security forces.

[139] I find these claims to be extremely unpersuasive. Many of the country information reports before me, including those provided by the applicant, refer directly to the presence of Government security forces in the Parachinar area and to the Government's long-term commitment to combating the Taliban and other Sunni extremist groups. Country information cited by the delegate also indicates that the Government of Pakistan has made a long-term security commitment in Khyber Pakhtunkhwa Province including in the Parachinar area. While the Government of Pakistan has adopted various policy positions towards Sunni extremists, these positions have all aimed at ending extremist violence. Many Pakistani troops have been killed fighting the Taliban and other Sunni extremist groups and in my view the applicant's assertions that the Government of Pakistan has supported the Pakistani Taliban or other Sunni extremist groups against the Shia community is a misrepresentation of the true situation. Furthermore, as I have noted earlier, the applicant's own account of his life in Pakistan makes clear that in the past, he personally had sought protection from the security forces of Pakistan. While they were unable to escort him from Parachinar in 2010 while his wife was pregnant, they did escort him from Parachinar when he departed Pakistan in 2012 and travelled to Australia.

[140] The applicant's account of his life in Pakistan acknowledges there was a government security presence in the Parachinar area and acknowledges that he personally was able and willing to seek protection from Government forces. At his protection visa interview, he disclosed that in 2012, when he departed Parachinar, he did so with assistance from the security forces, and that the Government's protection was effective. While I do not wish to overstate these events, to my mind, all of these factors cast doubt on genuineness of the applicant's claims that the Government supports the Taliban.

[141] I simply do not accept the applicant's assertions that the Government supported the Taliban or that there was no security presence in Parachinar. Furthermore, the applicant has indicated his family has lived in Parachinar throughout the decade he has been in Australia. He has not indicated that any member of his family, or any Pashtun person he knows has faced problems with the security forces in Parachinar, or anywhere else.

[142] At the time he departed Pakistan, the applicant was a citizen in good standing. His police clearance certificate indicates he had no problems with the law in Pakistan and was not wanted for any crime. He has identity documents in his possession which confirm his Pakistan citizenship and his former residence in the Parachinar area, and he had previously sought and obtained a genuine Pakistani Passport. Given these factors, it would seem that if returned to Pakistan the applicant wood be able to resume his life there without unwanted interference or interest from the Pakistani Government. Taking all these factors into account, I am not satisfied that the applicant would face a real chance of harm from the security forces of Pakistan.

[143] Overall, even taking into account the present security situation in Pakistan, I am not satisfied that this applicant would face a real chance of any harm arising from his Pashtun ethnicity, his Shia faith, or his membership of the Turi Tribe. I am not satisfied that this applicant was ever of interest to the Pakistani Taliban or the Islamic State Movement, or Sipah-e Sahaba, or Lashkar-e-Jhangvi, or any other Sunni extremist group in the past, or that he would be of interest in the future. I am not satisfied that he would be targeted by these groups, or any other group in Pakistan. I am also satisfied that the applicant would not face anything more than a remote, and therefore not a real chance of harm arising from the present security situation in Pakistan.

Ground one - misapplication of the real chance test

1. A fear of persecution will be well-founded if there is a "real chance" that a person will be persecuted if returned to their country of origin (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). That does not require a person to positively prove that they will be persecuted or even that it is probable they will be persecuted (SZMKK v Minister for Immigration and Citizenship [2010] FCA 436; (2010) 114 ALD 634 at [25]). It has been observed that the chance may still be a real chance even if there is less than a 50% chance of the persecution occurring (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572). The real chance test is also not a relative one and does not depend on determining whether the risk in one place is less severe than the risk in another place (SZVJE v Minister for Immigration and Border Protection [2016] FCCA 594 at [20]).
2. In this matter, the IAA concluded that the applicant did not face a real chance of any harm on the basis of his ethnicity or religion. The IAA found that there was no more than a remote chance of harm arising from the "present security situation in Pakistan". The applicant argued that the IAA's conclusion that the applicant was not at risk of harm was based on an assessment of the immediate situation in Pakistan. In confining itself in this way, the applicant argued that the IAA failed to engage in a forward-looking assessment.
3. It is well established that the assessment of the risk faced by an applicant in the returning country is not confined to the present circumstances or immediate future, but by reference to the reasonably foreseeable future (AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [26]; SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2]; Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 at [41]; AMM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 159 at [21]). Further, as Judge Riley aptly observed in AXI21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 379 FLR 289 at [14], "while it may be difficult, the Authority's job was to 'peer into the future', as best it was able". In written submissions, the Minister sought to distinguish such authorities from the present case. The underlying rationale, however, is unassailable and the Minister did not dispute that principle.
4. The Court further accepts the Minister's contention that:

Whether the Authority erred in the manner contended for by the applicant must ultimately depend on the Court properly and fairly construing the Authority's reasons and findings, such that the case law cited by either party is only of limited assistance.

That is clearly so. The critical issue is whether the conclusions reached by the IAA demonstrate that it engaged with the applicant's claim to risk harm if returned to Pakistan. That process requires evidence that the IAA considered that risk with a focus which extended forward into the reasonably foreseeable future beyond the immediacy of the current situation in that country.

1. As can be seen from the IAA's reasons set out above, the IAA accepted the following matters about the situation in Pakistan:

(a) Pakistan is "plagued by a range of security problems".

(b) Armed Sunni extremist groups operated in Pakistan, all of which held an anti-Shia agenda.

(c) There is a history of community and sectarian violence in the Parachinar area.

(d) The Pakistan government had for over a decade intervened to try and combat Sunni extremism throughout the Khyber Pakhtunkhwa Province and has maintained a strong security presence including a security zone within Parachinar city.

(e) The intervention of security forces has reduced the number of security threats faced by the population.

(f) Government attempts to neutralise the threat posed by the Taliban and other extremist groups are ongoing.

(g) The applicant's evidence establishes that he was aware of the security presence in Parachinar and that his family lives in the security zone.

(h) The level of sectarian violence in Pakistan has fallen considerably.

(i) The applicant pointed to two attacks which occurred in Kurram in 2022.

(j) Sectarian violence still occurs in the Khyber Pakhtunkhawa Province.

(k) Since the Taliban took control of neighbouring Afghanistan in August 2021, there was a resurgence in Pakistani Taliban activity which has led to a spike in recent sectarian violence. Nevertheless, the level of sectarian violence is well below previous highs and lower than when the applicant departed Pakistan.

(l) There are now fewer security incidents, fewer deaths and fewer people injured by sectarian violence. Pakistan is much safer now than it was when the applicant lived there.

(m) The Government of Pakistan has made a long-term security commitment in the Khyber Pakhtunkhawa Province.

(n) Taking into account the present security situation in Pakistan, the IAA was not satisfied that the applicant would face any real chance of harm.

1. The applicant argues that the IAA was only focused on the immediate security situation in Pakistan and failed to consider, in particular, whether the spike in sectarian violence adverted to in the country information carried implications for the security situation in the reasonably foreseeable future.
2. The Minister correctly submitted that it would have been an error if the IAA had not considered the present security situation in Pakistan. That, of course, must be accepted. Furthermore, the Minister argued that, whilst the IAA's reasons frequently use the present tense in its description of security issues in Pakistan, the following matters suggest that a fair reading of those reasons indicate that the IAA was considering "not only the existing situation in Pakistan, but the likely state of affairs in the future":

(a) The IAA referred to country information indicating that the government had engaged in "long running and ongoing military operations" to provide security to the Shia community.

(b) The government had intervened to combat Sunni extremist violence "for more than a decade".

(c) Similarly, the IAA referred to the government's "long-term security commitment".

(d) The IAA found that the applicant was not of interest to Sunni extremist groups and would not risk any harm in the foreseeable future because of his inability to speak Urdu.

(e) The IAA's conclusion expressly stated (at [195]) (emphasis added):

Overall, taking into account my findings in relation to this applicant's ethnicity, his tribe, his religion, his engagement with political issues, his family profile, his health and the security situation in Pakistan, I am not satisfied that if returned to Pakistan that the applicant would face a real chance of any harm due to his attempt to gain asylum in Australia, or his long period of residence in a western country, or any other factor now, or in the foreseeable future.

1. Although the Minister's submission has some force, the difficulty is that the matters which the Minister draws attention to, for the most part, address a longstanding historical effort by the Pakistan government. Whilst that may have a modicum of bearing on the question of what may occur in the future, it does not involve the kind of analytical approach the authorities require. The Court is conscious of adhering to the longstanding prohibition in respect of overzealous parsing of reasons. Nevertheless, the passages relied upon by the Minister do no more than say that there have been efforts by the government to curb sectarian violence in the past and that those efforts have led to a reduction in that violence. The IAA's assessment of those government efforts is expressly connected to the present security situation. Nowhere is there any considered analysis as to whether that reduction has resulted in there being a risk of harm situated below a real chance. Nowhere is there any considered analysis as to whether the IAA connects those historical efforts to the reasonably foreseeable future. To suggest that the reference to efforts being "ongoing" is demonstrative of such a considered assessment asks too much to be read into the use of that word.
2. Furthermore, the applicant is correct to say that the IAA made no attempt to reconcile the accepted recent spike in sectarian violence with the current government efforts to curb such violence. This is important in the context of a galvanised Taliban in neighbouring Afghanistan.
3. In DXM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 765 (DXM19), Judge Lucev made the following findings which are apposite to this matter (at [20]-[21]):

The Authority Decision does not engage in any objective determination as to what it considers might happen in the future in the Kurram to which DXM19 might return. There is a specific failure, for example, to engage with and assess:

(a) whether there might be a recurrence of the long-standing history of cyclical violence in Kurram, resulting in further major incidents such as those that occurred in 2007-2011 resulting in an estimated 1500 deaths in Kurram, and in Parachinar as recently as the first half of 2017 (that is less than three years before the Authority Decision) resulting in 120 deaths;

(b) the possible future threat of violence towards Shia tribes, and in particular Turis, described in the 2019 DFAT Report as "remain[ing] significant in Kurram" and associated with the greater presence in Kurram of the Taliban and Al Qaeda;

(c) whether the fact that there had been no deterioration in the security situation in Kurram in 2018 reduced the risk of harm from 2019 onwards; and

(d) whether or not, in any event, any significant reduction, or downward trend, in the risk of harm meant that there was not a real chance of suffering harm later in 2019 or in the early to mid 2020s.

The Authority did not engage in the process of actual assessment of the real chance of harm by reference to the reasonably foreseeable future. Rather it did so by reference only to the present situation, and possibly, at best, the immediate future. In that regard it fell into error.

1. Similarly in this matter, the IAA failed to engage in any analysis of the security situation which extended beyond the immediate future. Given the country information which was before it and the specific submissions made by the applicant, that constituted a failure to apply the real chance test.
2. The applicant also challenged the IAA's decision on the basis of applying an impermissible relative application of the real chance test. This was based on the IAA considering that the security situation in Pakistan had improved since the applicant had been in that country. This, the applicant submitted, was not the correct question and the IAA should have determined what the actual level of risk was.
3. There was, in fact, no actual dispute between the parties on the legal position in this respect. Indeed, the Minister expressly acknowledged that it would be an error if the IAA had concluded that there was not a real chance of harm simply because the chance of harm to the applicant is lower than it once was.
4. The applicant relied specifically on the following observation by Anderson J in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663; (2019) 167 ALD 89 at [33]:

The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk is less severe at the relevant point in time than it was previously. It is plain that the mere fact that a person might be safer at the relevant point in time (B) than at an earlier point in time (A) does not entail that the person does not face a real chance of persecution at point in time B. For example, if point in time A was very unsafe and point in time B is relatively safer it might still be the case that a person faces a real chance of serious harm at point in time B.

1. The Court is satisfied that the IAA did indeed misdirect itself in the way contended for by the applicant. The reasons are replete with references to the improving situation in Pakistan. In particular, the IAA finds at [135]:

In the years that the applicant has lived in Australia, the level of sectarian violence perpetrated by extremist groups in Pakistan has fallen considerably. The applicant has pointed to two attacks which occurred in Kurram in 2022. However, sectarian violence from militant groups does still occur in the Khyber Pakhtunkhwa Province. Since August 2021, when the Afghani Taliban seized control of Afghanistan, there has been a resurgence in Pakistani Taliban activity. This has led to a spike in recent sectarian violence attributed to the Taliban. However, the level of sectarian violence is still well below previous highs, and significantly lower that it was when the applicant departed Pakistan. There are fewer security incidents, fewer deaths and fewer people injured by sectarian violence. Pakistan is much safer now that it was when the applicant lived there.

1. Nowhere does the IAA take the further analytical step required to consider whether or not the risk had diminished to a point where the risk of harm faced by the applicant might be viewed as remote. There is a temptation to surmise that that may have been what the IAA meant by reasoning that Pakistan is much safer. However, this is against the background of finding that there are fewer security incidents, fewer deaths and fewer incidents of sectarian violence without appearing to reach a conclusion that this meant the risk was now remote. It is true that the IAA's conclusion states that the risk is remote. However, that is no more than an expression of the correct test without evidencing it was properly undertaken. The IAA's finding, taken literally, accepts that there are security incidents, sectarian violence and related deaths. There is no explanation as to whether, or how, a reduction in such harms could be said to be remote. The Court accepts it should not be overzealous in parsing the language used by the IAA. Nevertheless, that does not mean it should infer an analytical step was taken where there is no basis in the decision to find that it was.
2. In the Court's view, the IAA did not approach its task correctly in both of the ways contended for by the applicant.
3. The Court is also very clearly of the view that the error made by the IAA in this respect was material. There is no question in the Court's mind that there is a realistic possibility that a proper assessment of the potential future security situation in Pakistan could have led to a different outcome. That is equally the case for an assessment of the reality of the present security situation as opposed to the comparative or relative assessment which the IAA actually undertook.
4. Ground one is made out.

Ground two - the IAA's finding on the risk of false blasphemy charges

1. Ground two challenged the IAA's assessment of the applicant's claim to be at risk due to the prevalence of falsified blasphemy accusations against Shias. The critical part of the IAA's reasons is set out above and repeated below for convenience (at [137]) (emphasis added):

The applicant argues that Shia in Kurram face a moderate risk of harm due to their faith and has provided a range of country information which discusses the lives of Shia in Pakistan. I have considered this material. He says that he could easily be identified as a Shia and I accept that this is the case. He cites the 2022 DFAT report to argue that as a Shia, he would face a risk of a falsified blasphemy accusation in Pakistan, but this has never happened to the applicant in the past, and he has not indicated that it has happened to anybody he knows. Country information provided by the applicant indicates that while false blasphemy charges are a real problem in Pakistan for members of the for Shia community (and other minorities) this tends to occur in areas where they do not form a local majority. I have found this applicant would be returning to a locality where 80% of the Population are Shia Turis like himself. In the absence of other evidence about this issue, I consider that he has only a remote, and therefore not a real chance of being falsely accused of blasphemy in Pakistan.

1. In support of its finding that false blasphemy charges tended to occur in areas where Shias do not form a local majority, the IAA expressly cited and relied upon the United Kingdom Home Office 'Country Policy and Information Note - Pakistan: Shia Muslims' dated July 2021 (the UKHO report). The UKHO report was before the Court. The applicant contended that the IAA erroneously relied on that report in circumstances where the report did not state that the risk varied geographically or that it was more pronounced in areas where Shias formed a minority.
2. The UKHO report considered Pakistan's blasphemy laws and their application in some detail. It is useful to set them out in full (at CB 654-655, 657-659) (footnotes omitted):

4.2 Blasphemy laws

4.2.1 Section 295 of the Pakistan Penal Code (PPC) prescribes the blasphemy laws. Section 295c notes that: 'Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.'

4.2.2 Tabulated summary of the blasphemy laws and penalties for breaching them, as prescribed in the Pakistan Penal Code:

Injuring or defiling place of worship, with intent to insult the religion of any class

Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs

Use of derogatory remarks, etc., in respect of the Holy Prophet

Uttering words, etc., with deliberate intent to wound religious feelings

Use of derogatory remarks, etc., in respect of holy personages

Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places

Person of Quadiana [Ahmadi] group, calling himself a Muslim or preaching or propagating his faith

4.2.3 Referring to the blasphemy laws, Christian Solidarity Worldwide (CSW) stated in its December 2019 report on religious freedom in Pakistan that:

'The law itself is poorly defined and has low standards for evidence, as it does not require specific proof of intent to commit blasphemy; as a result spurious accusations are commonplace. It is clear that the blasphemy laws are not a deterrent - they are indiscriminately used as a weapon of revenge against both Muslims and non-Muslims to settle personal scores or to resolve disputes over money, property or business, under the guise of insults to religion.'

4.2.4 An October 2019 Policy Brief by the US Commission for International Religious Freedom (USCIRF) noted 'While the Supreme Court and other Pakistani officials have recognized the growing problem of false blasphemy accusations being used to target religious minorities, political leaders - under pressure from certain religious groups - have made no serious steps to repeal the blasphemy law.'

4.2.5 Amnesty International reported in August 2020, with regard to Pakistan, that 'The broad, vague and coercive nature of the blasphemy laws violate the rights to freedom of religion and belief and of opinion and expression. They have been used to target some of the most marginalized people in society, including children, individuals with mental disabilities, members of religious minorities, and poorer people.'

...

5.3 Application of the blasphemy laws

5.3.1 Freedom House reported in its 2021 Country Report for Pakistan that 'Members of the Shia sect, Christians, and other religious minorities remain at risk of blasphemy accusations that can arise from trivial disputes and escalate to criminal prosecution and mob violence.'

5.3.2 The USSD IRF Report 2020 noted 'Human rights groups reported an increase in blasphemy cases and allegations against members of the Shia Muslim community.' The same source noted there were 82 persons imprisoned on blasphemy charges as at 2019, adding that NGOs reported an increase in blasphemy charges in 2020 - at least 199 persons were charged, the highest number of cases seen in a single year, according to the Center for Social Justice (CSJ). Of those, 70% of cases were against Shia Muslims.

5.3.3 The USSD IRF Report 2020 noted that:

'On January 30, police arrested two Shia men in Tando Mohammed Khan, southern Sindh, and charged them with blasphemy. According to police, the content they posted on Facebook insulted the companions of Mohammed, which, they said, infuriated Sunni Muslims.

'... On August 30, police charged Shia cleric Taqqi Jaffar with blasphemy for criticizing Mohammed's companions during a Karachi Muharram procession. Jaffar made his remarks in Arabic, which were then aired on a popular Karachi news station, 24 News HD. Following complaints by some Sunni groups, the Pakistan Electronic Media Regulatory Authority temporarily suspended 24 News from broadcasting, citing Jaffar's comments as "hate- inciting content."

'The blasphemy charges against Jaffar were followed by anti-Shia rallies throughout the country and at least three rallies in Karachi by Sunni groups on September 11 and 13 attended by thousands of individuals. Speakers at these rallies warned Shia of dire consequences, including beheadings, if they continued to blaspheme against the Prophet Mohammed's companions.'

5.3.4 On 5 September 2020, the Human Rights Commission of Pakistan (HRCP) expressed concern at a surge in blasphemy cases against religious minorities, particularly the Shia community and the potential for ensuing sectarian violence. According to the report, anecdotal evidence indicated that over 40 blasphemy cases were registered against Shias in August 2020.

5.3.5 On 16 November 2020, USCIRF released a press statement on the rise in blasphemy cases leading to mob violence in Pakistan, stating that:

'The U.S. Commission on International Religious Freedom (USCIRF) is troubled by the sharp rise in blasphemy cases and mob violence in recent months targeting Shi'a Muslims in Pakistan, particularly in Khyber Pukhtunkhwa Province.

'... Last week, vigilante students at Kohat University of Science and Technology, in Kohat district, attempted to lynch an unnamed Shi'a student for allegedly posting blasphemous remarks on Facebook. The angry mob beat the student and charged the vice-chancellors office, demanding that the student be expelled from the university or they would kill him. The accused student was expelled, taken into police custody, and charged with blasphemy under Pakistan's Penal Code.'

5.3.6 The media platform Naya Daur, affiliated with the Islamabad-based non- profit organisation Peace and Justice Network, reported in September 2020 that, according to data compiled by a social media user, 42 blasphemy cases were registered over a single month, including one against a 3 year-old child, and that nearly 80% of those cases were against Shia activists and eulogists. According to Naya Daur, reporting in the same month, 'Authorities have arrested at least a dozen Shia zakirs and clerics across the country for allegedly making blasphemous statements against some companions of Prophet Muhammad (PBUH).'

See Discrimination, harassment and hate speech.

5.3.7 The Guardian reported in October 2020 that over 50 Shia Muslims were booked under blasphemy and anti-terrorism charges over the last month.

5.3.8 According to a 2015 report by the International Commission of Jurists (ICJ), over 80% of blasphemy cases were overturned on appeal, '... with judges expressly stating in a large majority of such cases that the complaint was fabricated and spurred on by personal vendettas.' The DFAT report indicated that around 95% of blasphemy cases ended in acquittal, though often only after lengthy periods of detention. The USSD IRF Reports for 2019 and 2020 reported some blasphemy convictions were overturned during those years, with others acquitted after the accused had spent years in prison.

5.3.9 Although death sentences continued to be passed for blasphemy, the authorities have never executed anyone for this offence.

1. It is clear to the Court that the UKHO report relied upon by the IAA did not support its finding that false blasphemy charges occurred only in areas where the Shia community did not form a local majority. The Court put to counsel for the applicant that that may not be an error going to jurisdiction if in fact there was such evidence before the IAA and it had simply referenced the incorrect country information. The applicant accepted that would be the case if there was any such evidence but there was nothing to suggest any alternative evidence was before the IAA.
2. Indeed, the applicant submitted that not only did the UKHO report not support the particular finding of the IAA, it in fact undermined that proposition. In that respect, the applicant pointed to the reference in the UKHO report to a statement by the U.S. Commission on International Religious Freedom which noted a sharp rise in blasphemy cases targeting Shias in the applicant's province of Khyber Pukhtunkhwa Province.
3. The Minister argued that, whilst the UKHO report was expressly relied upon by the IAA, that did not mean it was the sole basis for its finding. With respect, that submission might be accepted if there was a skerrick of evidence that there was other such material before the IAA. However, the Court was referred to no such evidence and was asked instead to draw an inference.
4. It can be accepted that the IAA was not required to set out every piece of country information it had regard to. However, in circumstances where the country information it cites does not support the finding, and in fact may even contradict the proposition underpinning the finding, then it is difficult to accept that there may have been some other undisclosed country information which may have supported the finding.
5. The Minister asked the Court to have regard to the following matters which were said to arise from the country information before the IAA:

(a) "Relative to the overall number of Shias in Pakistan, the risk of being accused and charged with blasphemy is, in general, very small": CB 645, [2.4.4].

(b) "It is clear that the blasphemy laws are not a deterrent - they are indiscriminately used as a weapon of revenge against both Muslims and non- Muslims to settle personal scores or to resolve disputes over money, property or business, under the guise of insults to religion.": CB 655, [4.2.3].

(c) "While the Supreme Court and other Pakistani officials have recognized the growing problem of false blasphemy accusations being used to target religious minorities, political leaders - under pressure from certain religious groups - have made no serious steps to repeal the blasphemy law": CB 655, [4.2.4].

(d) "They have been used to target some of the most marginalized people in society, including children, individuals with mental disabilities, members of religious minorities, and poorer people": CB 655, [4.2.5].

(e) "For further information on the Tahaffuz-e-Bunyad-e-Islam bill, see the Institute of South Asian Studies (ISAS) October 2020 report: 'Sectarianism and Censorship in Pakistan: The Punjab Tahaffuz‐e‐Bunyad-e‐Islam Bill 2020', which also noted 'Although the Bill was passed in the legislature, it has yet to acquire the Governor of Punjab's seal to become law": CB 657, [5.2.5].

(f) "Members of the Shia sect, Christians, and other religious minorities remain at risk of blasphemy accusations that can arise from trivial disputes and escalate to criminal prosecution and mob violence": CB 657, [5.3.1].

(g) "On January 30, police arrested two Shia men in Tando Mohammed Khan, southern Sindh, and charged them with blasphemy. According to police, the content they posted on Facebook insulted the companions of Mohammed, which, they said, infuriated Sunni Muslims": CB 657, [5.3.3].

(h) "The blasphemy charges against Jaffar were followed by anti-Shia rallies throughout the country and at least three rallies in Karachi by Sunni groups on September 11 and 13 attended by thousands of individuals. Speakers at these rallies warned Shia of dire consequences, including beheadings, if they continued to blaspheme against the Prophet Mohammed's companions": CB 658, [5.3.3].

(i) "According to a 2015 report by the International Commission of Jurists (ICJ), over 80% of blasphemy cases were overturned on appeal, '... with judges expressly stating in a large majority of such cases that the complaint was fabricated and spurred on by personal vendettas": CB 659, [5.3.8].

(j) "Reporting on the surge in blasphemy cases, The Guardian reported in October 2020 noted that, 'Bakhtawar Jaffri, a Shia rights activist in Punjab, said she had recently filed a police report for anti-Shia hate speech but it had been ignored. "In contrast, even the baseless and fake cases from the other side are being entertained by police," she said": CB 663-664, [5.5.10].

The overall picture emerging from the [UK Home Office] report therefore can be summarised as follows:

(a) False blasphemy charges are made against religious minorities, which are really disguises of personal vendettas or property or money disputes against said minorities. That being the case, it is reasonably open to the Authority to find that in Parachinar where the Shia community forms 80% of the community, Shias are not a minority and therefore the chance of a false blasphemy charge was remote. It can also reasonably be interpreted that in a geographical area where Shias form the majority, any chance of mob violence against Shias (arising from anti-Shia sentiment) because of any false blasphemy charge was also limited.

(b) The case studies involving false blasphemy charges were in Tando Mohammed Khan, Karachi and Punjabi and not in Parachinar. So far as the Minister can tell, there was no case study of a false blasphemy charge made against a Shia individual in Parachinar.

(c) Similarly, the protests and anti-Shia rallies were not in Parachinar but in other areas in Pakistan. The Shia activists who were persecuted were also not in Parachinar.

1. The Court does not accept that it is reasonable or rational for the IAA to have drawn those conclusions. The Minister asked the Court to infer that the IAA's reasons should be read to indicate that there was no evidence that any false blasphemy charges had been laid specifically in the applicant's home town of Parachinar. But that is not at all what the IAA said. Neither is it an open interpretation of what the IAA said. It did not refuse to accept the claim because there was no evidence that false blasphemy charges had been laid against Shias in the applicant's hometown. It did so because it found that they were only laid in places where the Shia were not a majority. It reached this conclusion on the basis of evidence it said was before it, but in fact was not. The finding cannot now be re-branded as something it was not.
2. The IAA made an error in finding that the UKHO report provided an evidentiary basis for a finding in respect of where false blasphemy charges against Shia were likely to be made. There was no such support in the UKHO report. This was used to completely discount the applicant's claim in respect of his risk of being falsely accused of blasphemy. It was an error going to jurisdiction and it was material. Had the IAA not made that error, there is a realistic possibility that it may have accepted there was a risk that the applicant might be falsely accused of blasphemy.
3. Ground two is also made out.

Ground three - the IAA's consideration of the applicant's submissions and country information

1. Ground three argues that the IAA failed to meaningfully engage with the assessment by DFAT that Turis face a moderate risk of sectarian violence from militant groups arising from their Shia faith. In support of this contention, the applicant relied upon BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 (BSU20). In BSU20, Greenwood J found that, whilst the IAA in that matter had regard to country information, it had failed to take into account an important aspect contained within that country information. A critical aspect of the reasoning in BSU20 is that the IAA in that matter had failed to address the specific and particular submissions put to it by the applicant. Greenwood J found (at [47]) (emphasis in original):

Whilst it is true that the IAA had regard to aspects of the document of 20 November 2019 and country information, it did not specifically take into account in its reasoning an important assessment made as at 20 February 2019 that "Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith" [emphasis added]. It is difficult to see how the IAA could reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing two things. First, the express submissions put to the contrary to the IAA by the appellant as described in these submissions. Second, the assessment as at 20 February 2019 recited in bold above.

1. However, as conceded by the applicant, there is a critical difference between the circumstances of this matter and BSU20. In BSU20, there was no indication that the IAA in that matter had given any consideration to the assessment of risk made by DFAT. Neither did the IAA in BSU20 consider express submissions made by the applicant in respect of that country information. That is evidently not the case in this matter where the IAA referred to both the DFAT assessment and the applicant's submissions in that respect.
2. The Court accepts that the IAA considered the DFAT report and the submissions advanced by the applicant in that respect. The applicant's submission that the IAA failed to rationally challenge the country information is essentially an invitation to the Court to substitute its own assessment of the country information. The Court accepts the Minister's submission that it was open to the IAA to reach its own conclusion in respect of the risk of harm faced by the applicant, provided it did so having regard to the submissions and evidence before it. The Court does not draw an inference that the IAA failed to consider that material, or to properly engage with it.
3. Ground three is not made out.

1. The applicant has succeeded in establishing jurisdictional error.
2. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.