DXB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 493

DXB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 493 | Case summary | Zoe

[64]

(a) was satisfied that the DXB19's Authority Submissions did not contain new information and had regard to it: CB 294 at [4]. In DXB19's Authority Submissions, DXB19 requested an interview with the Authority. Although the Authority acknowledged it had discretion to obtain new information from DXB19, it was satisfied that DXB19 had been given ample opportunity to present his claims and did not consider that an interview was warranted: CB 294 at [5];

(b) accepted:

(i) DXB19's ethnicity and much of his background: CB 296-297 at [10]-[12]; and

(ii) that DXB19's father held the title and role of Malik and that he passed away in 2016: CB 298 at [18];

(c) did not accept that:

(i) DXB19's father died "due to any targeted killing": CB 297-299 at [15]-[18]; and

(ii) DXB19 was of adverse interest to Taliban, any other militant group, had an individual profile with such groups or anyone else, or would suffer any harm due to his commitment to further education: CB 299-301 at [18]-[27];

(d) having regard to the evidence before it and relevant country information the Authority was not satisfied that DXB19 or his family were known to or targeted by the Taliban during his father's extensive period of being a Malik or after his death or that there was a real chance they would be, even if DXB19 was to assume the role of Malik: CB 302 at [29];

(e) considered:

(i) whether DXB19 would face harm as a Pashtun and a Turi and because of his Shia Muslim faith upon return to Parachinar, and taking relevant country information into account, concluded that the material pointed against DXB19 facing a real chance of any harm in the reasonably foreseeable future for reason of his being a Turi: CB 304 at [35]; and

(ii) relevant DFAT reports and noted that the information did not support any "recent trend of discrimination or other issues faced by Pashtuns or Shia Turi Pashtuns in [DXB19's] area": CB 305 at [38];

(f) further noted that Shias comprised about 40 per cent of the Kurram District population and there was no credible evidence that DXB19 or his family members faced or would face any harm there because of their faith: CB 305-306 at [39];

(g) was not satisfied that DXB19 would face harm in Pakistan for any of the reasons claimed, nor would he face harm as a returnee from the west: CB 306 at [40]-[41]; and

(h) concluded that DXB19 did not face a real chance of persecution in Pakistan and did not satisfy s 36(2)(a) for the grant of the SHE Visa: CB 306 at [42], and that for the same reasons, found that DXB19 did not satisfy the alternative criteria at s 36(2)(aa): CB 307 at [45]-[46].

[84]

Following the English translation is what DXB19 alleges is a copy of the original of the FIR in Urdu, and bearing what appears to be a thumb imprint: SCB 314.
The relevant passages of the Authority Decision are at CB 297-299 at [14]-[18] as follows:
1. The applicant has repeatedly referred to his father with the title 'Malik' as part of his name, though the applicant made no claims of fear of harm regarding this in his 2013 statutory declaration. He first raised substantive claims pertaining to his father in his (July) 2016 declaration, when he claimed his father had been killed in Peshawar in March 2016. He referred to the title of Malik as indicative of his father being a prominent person in the Shia community with important administrative duties. He stated his father was well known to everyone in their community, including to Sunnis who had previously lived in Parachinar but had been displaced during the fighting. He first provided documentation in support of these claims at his 2019 PV interview. He provided a copy and English translation of his father's CNIC issued in 2015 indicating his father's title as Malik as well as his grandfather's same title. He also provided a First Information Report (FIR) and its English translation. It is said to have been issued by police in Peshawar and is dated 13 March 2016. The report seems to indicate the presence of a police officer in the emergency room of the hospital where the corpse of the applicant's father was brought, after he was allegedly killed by a firearm. It includes a statement by the applicant's mother about the events, including that she and her husband had commuted to Peshawar for her to attend a doctor's check-up and while she waited at the hospital and her husband had gone to obtain the medication prescribed for her, she heard gunfire and found him covered in blood and wounded. She states, as a Shia leader and tribal elder, he had previously been threatened by terrorists on many occasions and that she was certain he had been target killed by unidentified terrorists.
2. According to DFAT, FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred. Country information before me, including by Mariam Abou Zahab and DFAT, indicates that Peshawar belongs to Khyber Pakhtunkhwa (KP) province and that the name of the North West Frontier Province (NWFP) was changed into KP in April 2010. Yet, the FIR submitted by the applicant and dated in 2016, allegedly issued by a police station in Peshawar, refers to 'Inspector General Police of NWFP Province' in the header. While the table at the beginning of the document indicates the incident took place at Degree Garden, the body of the report instead refers to Dabgari Garden. Despite the existence of this FIR, and the applicant's apparent ability to obtain it, he was unable to give any convincing reason for his inability to provide his father's death certificate. Although he stated that his mother was uneducated and by herself and had only obtained the FIR with support from people from a Shia run hotel in Peshawar, this does not convince me she could not similarly obtain community support to retrieve a copy of her husband's death certificate or lodge registration of his death. Similarly, as put to the applicant by the delegate, the FIR itself refers to the paperwork of the deceased being handed over to the doctor for the postmortem. However, the applicant has not provided any evidence of a post-mortem.
3. I have had regard to the recent arguments that the applicant only provided the FIR as it was the only document his mother was able to legitimately obtain and that the applicant being upset when speaking about his father's death at the PV interview suggests this claim is genuine. Given however the country information and that there are some anomalies in the FIR; I do not consider this document, in isolation, or the applicant's sorrow over his father's death to be persuasive evidence of the claim that he died in this particular manner. I also note it has been over three years since the alleged event and consider even less plausible that within such an extended period, no further documents were obtained or able to be. Asked by the delegate about whether there would be a newspaper report or similar of the incident, the applicant said his father was not famous, just around his village he was (famous), that Peshawar was a very big area and that more than 6000 Shias had been killed since that time to present and just a few reports existed about them. I have also had regard to the arguments about DFAT information on limitations for the media covering stories including in the border areas of KP and that it was not commonplace for formal documentation to be issued in the applicant's area. However, the incident took place outside of the applicant's area and in KP more broadly, with no suggestion it was in a border area of KP. While I do not consider the absence of a news report determinative, I do consider it very doubtful that an incident of this nature, having allegedly taken place within proximity to a hospital/public space (where the sounds of the gunshots were said to have been heard from and where the FIR indicates the applicant's mother was able to run to the scene of the crime from), would not have attracted great attention and been reported in some form in the media or otherwise. I also consider the timing of the applicant's provision of documents in support of these claims, in 2019, a delay of some three years since he introduced the claims in 2016, to be telling, particularly in the context of his legal assistance at the time of and provision of other documents in providing his 2016 PV application as well as his further correspondence with the Department after this. I also note the evidence that indicates his father received threats prior to the alleged incident has been vague and lacking in any meaningful detail.
4. Nonetheless, in addition to the copy of his father's CNIC card and his consistent written and oral evidence from an early time, that his father was a Malik who participated in Jirgas, during the PV interview, the applicant was able to discuss the leadership role of Malik within his family and its introduction by the English, which is consistent to country information from a journal paper dated in 2013 and authored by members of the Department of Anthropology of Quaid-i-Azam University in Islamabad. The same paper states that tribal leaders are known as Maliks and Maliks have a range of important roles including a central role in both intertribal and intra-tribal dispute resolution and through Jirga (Council of Elders).
5. On the evidence, I am prepared to accept that the applicant's father held the title and role of Malik. However, I am not persuaded that the FIR is a genuine document or contains truthful information. I am prepared to accept that the applicant's father may have passed away in recent times, but I do not accept that his father died due to any targeted killing. I accept, consistent to country information including from the MEI and Mariam Abou Zahab and the applicant's claims, that his father, as a Malik among Maliks/Elders generally who are known to have resisted the Taliban's passage through Kurram to and from Afghanistan, would have generally been seen to be against the Taliban, but I am not satisfied that this extended to any individual attention or knowledge of the applicant's father by the Taliban.
Ground 2 is, as DXB19 submits, a traditional no evidence ground.
In order to succeed on a no evidence ground, DXB19 must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137 ("Bond"), CLR at 356 per Mason CJ. Even "a skerrick of evidence" will mean that an allegation of jurisdictional error premised on a no evidence basis will fail: MZZUG at [59] per Murphy J, and if the Court holds that the evidence in support of a relevant finding was "slight", that will be sufficient to defeat a "no evidence" challenge to the finding: "VAS" v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]- [19] per Gray, Moore and Weinberg JJ. It is not required that evidence to support a finding be direct, and it may be found in material that permitted the Authority to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]- [41] per Gummow and Hayne JJ; Bond, CLR at 367 per Deane J.
In this case there was some evidence that supported the Authority's finding that the FIR was not a genuine document: CB 298-299 at [18]. That evidence included:

[101]

(a) to understand what grounds 4 and 5 allege, it is important to understand the Authority's reasoning with respect to DXB19's claims to fear harm in Peshawar in context;

(b) the Authority accepted that, due to security concerns in Parachinar, in about 2009, DXB19 moved to Peshawar to attend secondary school where he studied at a multi-faith school with a British principal as a headmaster: CB 299 at [19];

(c) DXB19 claimed that while in Peshawar, he was threatened via a phone call and a letter, and that he was followed while purchasing school books at a bazaar. The Authority did not accept these claims because the weight of the evidence did not support that an individual in his circumstances would have been singled out and targeted as he claimed: CB 299 at [20]. Relevantly, the Authority:

(i) had regard to country information which said that while the security situation in Peshawar was poor at the time, only higher profile individuals and Shias were targeted or abducted/kidnapped for ransom. The Authority reasoned that the "evidence does not support that [DXB19], a mere student at the time, had a profile or circumstance akin to that reported, to attract the level of interest or any individual interest from extremist groups that he claims": CB 299 at [21];

(ii) accepted that while the multi-faith school DXB19 attended might have been subjected to threats, it seriously doubted that DXB19, who had no profile, would be singled out: CB 300 at [22];

(iii) did not accept:

(A) as plausible that after DXB19 received the threatening letter which he took seriously, that he would destroy the letter and not tell anyone about the threat: CB 300 at [23]; and

(B) that DXB19 was actually followed in the bazaar by three men while buying school books, because DXB19's observation that someone he thought was following him also came into a stationery shop did not reasonably support that conclusion, particularly in the context of DXB19's other concerns: CB 301 at [24];

(d) in light of all of the above factors, the Authority rejected DXB19's claim to have been threatened and harassed by terrorists in Peshawar;

(e) in relation directly to ground 5, this finding was open to the Authority in light of the factors identified by it and which are set out above;

(f) returning to ground 4, DXB19 appears to cavil with the Authority's reasoning at CB 300 at [23]. Contrary to DXB19's submissions, the Minister submits that the Authority did not assume that the school would assist DXB19 if he disclosed the threats. Rather, the Authority drew inferences about what DXB19, then a teenage secondary school student living away from his family, would have done in light of receiving a letter that he believed contained a credible threat. The Minister submits that it was open to the Authority to find that DXB19's explanation was implausible; and

(g) for completeness, the Minister observes that the Delegate found that DXB19 was not threatened by extremists in Peshawar, so DXB19, who was legally represented before the Authority: SCB 315-316, was on notice that this was in issue. In fact, DXB19's representative's submissions to the Authority addressed the threats in Peshawar: SCB 318-320 and the Authority had regard to those submissions: CB 294 at [4].

[106]

(d) at CB 300-301 at [23]-[24]:

While the applicant claimed that he did not take the phone call seriously and he thought many people were receiving these calls, he said he did take the threats in the letter seriously and was so frightened that he destroyed the letter. At the PV interview, he said that because of this fear, he could not tell anyone else about the letter. He did not report the incident to his school or to the police. He said that only his college principal was from the UK and he suggested that the teachers and other staff were not trustworthy. Asked whether he thought the school would be concerned that their students were being threatened by the Taliban, he said that nobody wanted to become involved in that kind of problem as the Taliban was a very powerful network in Pakistan. I do not consider it plausible or at all convincing that he would have destroyed evidence of a threat to his life, or that thereafter, he could not or did not tell anybody else about it, if he did indeed take the threat seriously and was frightened by it. I also do not consider plausible that he would not at the least have informed his school or principal or even his hostel staff. I do not accept that he believed his school/staff would not wish to become involved or at least aware of an apparently life threatening matter that allegedly had a direct bearing on their students and thus the college and they themselves. He stated that his phone number may have been easily found as the perpetrators had links everywhere and could have located it through his credit top ups to his phone or through his college. If he did believe his number may have been located through his college, I have further doubts as to why he did not report these events to the college principal at a minimum. Even more so given his claim that it was not long after the threat letter that his friend from his village who was studying in Peshawar disappeared and that this concerned him further. He has not provided any corroborative independent evidence to support this incident and argues that many kidnappings of students go unreported. He claimed that to assist each other to remain safe, he and his school friends only went out as a group and ensured that those who lived off campus were always accompanied on their commutes to and from school. I am not convinced that if his friend, a fellow student, had gone missing, and having received a direct threat letter and call himself from the Taliban, the applicant, as a young person, away from his family, would not have taken more significant steps to secure his safety at this time. I consider his seeming inaction towards the threats instead reflect that his life was not in any imminent danger and that he was not targeted as claimed.

The applicant also claimed that one day, after buying school books at the bazaar in Peshawar he felt he was being followed closely by three men. At the PV interview, he said if someone is following you, you have that feeling because you are going everywhere, and they are already there and it was when he entered a stationary shop and one of these individuals also came inside that he decided they were definitely following him. He then ran away and sought refuge in a hotel run by Shias in Peshawar. I do not consider his conclusion that he was being followed to be plausible or convincing, particularly in the context of my concerns with his evidence on his alleged targeting that preceded this incident.

[109]

(a) the Authority's fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant's claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 at [37] per McKerracher, White and Colvin JJ;

(b) it ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS at [35] per Gummow ACJ and Kiefel J;

(c) it must read the Authority Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 ("WAEE") at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 ("BYX17") at [49] per Rangiah, White and O'Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 ("WZAVQ") at [55] per Barker J;

(d) a decision may be unreasonable if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 ("Li") at [76] Hayne, Kiefel and Bell JJ. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 ("Stretton") at [21] per Allsop CJ. The decision as a whole must be illogical or unreasonable to constitute jurisdictional error: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465 at [84]- [85] per Besanko, Banks-Smith and Colvin JJ; and

(e) the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 ("SZVFW") at [11] per Kiefel CJ, "extremely confined": SZVFW at [52] per Gageler J, or requires something in "the realm of the extraordinary": SZVFW at [70] per Gageler J.

[115]

(a) the weight of evidence, primarily country information, did not support the fact that an individual in DXB19's circumstances, a young student with no apparent profile or public role towards education or other issues of interest to the Taliban, would have been of individual interest, singled out, or targeted by the Taliban: CB 299 at [20]-[21]; and

(b) it did not consider DXB19's evidence on how he responded to the alleged threats to be satisfactory for a number of reasons, as set out particularly at CB 300 at [22]-[23] (the latter paragraph being set out in full at [34(b)] above), including:

(i) that the Authority did not consider it plausible or convincing that DXB19 would have destroyed the letter which was evidence of a threat to his life, or that he could not or did not tell anybody else about the threat or the letter, if he was in fact frightened by it and took the threat seriously;

(ii) that the Authority did not consider it plausible that he would not at the least have informed his school or principal or even his hostel staff of the threat;

(iii) that if DXB19 did believe his telephone number may have been located through his college, that it had doubts as to why he did not, at a minimum, report these events to the college principal, particularly as it was not long after the threat letter that he alleged his friend from his village who was also studying in Peshawar disappeared;

(iv) the failure to provide any corroborative independent evidence to support the alleged kidnapping of his friend;

(v) that having allegedly personally received direct threats by letter and telephone from the Taliban, that DXB19, as a young person, away from his family, would not have taken more significant steps to secure his safety at that time, that is other than his claim that to assist each other to remain safe he and his school friends only went out as a group and ensured that those who lived off campus were always accompanied on their commutes to and from school; and

(vi) that DXB19's seeming inaction towards the threats reflected that his life was not in any imminent danger and that he was not targeted as claimed.

[158]

1.6.1 The delegate accepts that the applicant's father was a Malik, stating that "the applicant has consistently claimed that his father was a Malik." [Court Book- p.242 - Decision of the dele gate dated 16 August 2019]

1.6.2 The reviewer accepts that the applicant's father was a Malik.

1.6.3 The reviewer lays criticism on the applicant for not being able to obtain a postmortem certificate, a death certificate or other documents to corroborate the means of death of the applicants' father in 2016. [Court Book - p.296 - Decision of the reviewer dated 30 September 2019]

1.6.4 The reviewer extraordinary makes the finding that the First Information Report (FIR) produced by the applicant is not genuine. [Court Book- p.296- Decision of the reviewer dated 30 September 2019]

1.6.5 This finding by the reviewer is said to be made based on availability of fraudulent documents in Pakistan.

1.6.6 The applicant is criticized for producing an FIR, which is deemed as not genuine, while also criticized for not producing other documents, whilst the reviewer holds the view that fraudulent documents are easily obtained in Pakistan.

1.6.7 The reviewer uses two opposite circumstances against the applicant unfairly, while failing to turn his mind to the possibility that if fraudulent documents are as easy to procure in Pakistan as the reviewer states, why has the applicant not produced other relevant documents to establish his claim that his father was assassinated for being a Malik?

1.6.8 The applicant provides a valid explanation that his mother is uneducated and by herself, and had obtained assistance from staff at a Shia hotel in Peshawar to obtain the FIR. There is no evidence of whether this staff were content to provide further assistance to the mother, or if such assistance was requested and refused.

l.6.9 It is the case that wherever there is a gap in the information in the mind of the reviewer, that gap is filled with an adverse inference against the applicant, without any evidentiary basis to draw such an inference.

[175]

(d) in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 ("Jia Legeng") Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:

(i) the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

(ii) specialised administrative tribunals can be expected to bring to the task of decision-making "a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications". Such a decision-maker could be expected to build up "expertise" in matters such as country information; and "[o]ften information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment": at [180];

(iii) saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:

(A) they have an opinion on the relevant aspect of a matter in issue;

(B) they will apply that opinion to the matter in the case; and

(C) they "will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case": at [185]; and

(iv) having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

(e) the question as to a reasonable apprehension of bias is "one of possibility (real and not remote), not probability": Ebner at [7]. Even so, as explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128; (2001) 75 ALJR 848; (2001) 179 ALR 296; (2001) 65 ALD 321 at [90] per Kirby J the test (citations omitted):

[181]

(a) contrary to DXB19's submission, the Delegate and Authority's factual findings were, on the whole, similar;

(b) both the Delegate and the Authority found, for example, that:

(i) DXB19 was of Pashtun ethnicity, a member of the Turi tribe, a Shia Muslim, and had lived most of his life in Kurram Agency, Pakistan: CB 238-239 and CB 296 at [10]-[12];

(ii) DXB19's father was a Malik, or a Shia village leader with administrative responsibilities, and that his father passed away around March 2016: CB 242, 245-246 and CB 297-299 at [14]-[18];

(iii) DXB19's life was generally affected, and that people he knew were injured, by sectarian violence in the region in Parachinar from 2007 until the middle of 2008 when he moved to Peshawar: CB 242-243 and CB 297 at [13];

(iv) DXB19's father was not killed by extremists. Relevantly, the Delegate cast doubt over the genuineness of the FIR filed by DXB19's mother, but rejected the claim that DXB19's father was killed by extremists due to the lack of corroborative evidence such as media reports (which might be expected for the assassination of a public official/leader in a public place) or a death certificate. The Authority:

(A) referred to country information that FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit: CB 297 at [15];

(B) noted anomalies in the FIR relied upon DXB19 finding that it was not a genuine document: CB 297-298 at [15]-[16];

(C) was concerned by the lack of corroborating evidence for the cause of DXB19's father's death and noted that DXB19 had opportunities since being legally represented to provide such evidence: CB 298 at [16]; and

(D) found that the evidence of threats made to DXC19's father were "vague and lacking in any meaningful detail": CB 245-246 and CB 298 at [16];

(v) DXB19 was not, contrary to his claims, targeted in Peshawar as a secondary school student by extremists, including being followed by three men in a bazaar. Both the Delegate and the Authority noted country information that there was evidence of high profile persons being targeted by extremists, but that in contrast DXB19 only had a profile as a Shia Turi student: CB 243-244 and CB 299 at [19]-[21] and CB 301 at [24]; and

(vi) DXB19 would not have a profile as a Malik, which is a hereditary title, if he returned to Pakistan: CB 244 and Authority Decision at CB 302 at [29];

(c) this is not to say that the Delegate and Authority made identical factual findings;

(d) relevantly, the Delegate and Authority had different bases for finding that DXB19 would not have a profile as a Malik on return to Pakistan. Whereas the Delegate found that DXB19 would not assume the role of Malik: CB 244, because of his older half-brothers and long absence from Pakistan, the Authority found that DXB19's family did not have a profile in Pakistan when his father was a Malik and also that country information suggested that Maliks had not been targeted in recent years: CB 302 at [29];

(e) for these reasons, contrary to DXB19's submissions at [12], on a fair reading of the Delegate's Decision and Authority Decision, their factual findings were not "significantly" different; and

(f) for completeness, it is noted that DXB19 submits that the particulars to ground 1 in the Amended Judicial Review Application support the claim of bias. The particulars to ground 1 run for over 5 pages and DXB19's submissions does not explain how these particulars support ground 1.

[187]

Ground 1, as particularised, relies upon what was said by the Authority in the Authority Decision as the basis for the alleged apprehended bias.
DXB19 submits that the Authority's finding at CB 296 at [11] that it was "satisfied that Kurram ... is the area to which he [DXB19] would return" is indicative of bias because it precedes any consideration of DXB19's actual claims, and indicates that the Authority "may not have approached his task with an open mind": particular 1.5.4 (where DXB19 erroneously refers to the "delegate" not having an open mind).
The Authority made the finding that DXB19 would return to Kurram as part of identifying the claims made by DXB19 as to his identity, nationality, ethnicity and religion, in the course of which it was necessary to identify where DXB19 had lived. The Authority also had to determine, in order to consider the remaining claims of risk of serious and significant harm, where it would be that DXB19 might return to in Pakistan, noting that the Delegate had determined that because of the risk of harm there he could not return to Kurram. The Authority in determining this question had regard to relevant factors, and in particular, DXB19's birthplace (in Kurram) and that he "resided for most of his life" in Kurram, prior to travelling to Australia: CB 296 at [11]. So not only was there a reason for the Authority to make the finding, there was an evident and intelligible basis for that finding. Further, and in any event, there is nothing in this finding, which the fair-minded lay observer might think to be self-evident, which would indicate that the Authority was not otherwise open to persuasion as to DXB19's protection claims.
The particulars as to ground 1 dealing with the death of DXB19's father, a Malik, and the authenticity of documents challenge the Authority's finding that the FIR is not genuine, describing it as "extraordinary". For reasons set out at [22]-[24] above (and see too [26]-[28] above) there was a basis on the evidence and in the country information for a finding that the FIR was not genuine (and did not contain truthful information). It follows that this is not a basis for a claim of apprehended bias.
The particulars to ground 1 also take issue with the Authority for criticizing DXB19 for not producing other documents as to the cause of death of his father, a Malik, "whilst the reviewer holds the view that fraudulent documents are easily obtained in Pakistan". It is apt to repeat the Court's finding at [26] above:

[189]

In this respect, the claim of apprehended bias here therefore proceeds upon a false premise, and is not made out.
DXB19 also suggests that bias arises because he provided a "valid explanation" for his inability to obtain other documents in relation to the manner or cause of his father's death in that "his mother is uneducated and by herself". In that regard it is relevant to note that the Authority specifically set out DXB19's submission to this effect and found that "this does not convince me she could not similarly obtain community support to retrieve a copy of her husband's death certificate": CB 297-298 at [15]. Community support from the proprietors of a Shia run hotel in Peshawar had been obtained to provide the FIR: CB 297-298 at [15]. Moreover, the Authority was not required to uncritically accept all or any of the claims made by DXB19 or have rebutting evidence before it could decide not to accept DXB19's's claims: Guo, CLR at 596 per Kirby J; Randhawa, FCR at 451 per Beaumont J; Selvadurai at 348 per Heerey J; EGU17 at [36]-[37] per Judge Given. There is nothing in these facts which is indicative of apprehended bias on the part of the Authority.
In relation to the period in which DXB19 was a student in Peshawar and threats were allegedly made against him bias is alleged on the basis of particulars which allege that the Authority rejected DXB19's account of certain events (Particulars 1.71, 1.7.2 and 1.7.4), did "not put sufficient weight" on certain evidence (Particular 1.7.3) or "fails to account" for certain matters whilst drawing adverse inferences against DXB19. This aspect of ground 1 is little more than a rerun of grounds 4 and 5 and are to be rejected for the same reasons as set out at [34]-[44] and [49]-[54] above. Further, under the guise of bias, this aspect of ground 1 essentially seeks impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no basis for a finding of apprehended bias in relation to the Authority's assessment of the alleged threats made against DXB19 whilst he was in Peshawar.
In relation to the targeting of Maliks, such as DXB19's father and DXB19 if he were to return to Pakistan, it is alleged that bias is apprehended because the Authority made a finding, that DXB19's father and his family were not, and there was not a real chance that they would be, targeted by the Taliban. The Authority's finding was based on the evidence, including country information, the Authority finding at CB 302 at [29] that:

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