DXC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 512

DXC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 512 | Case summary | Zoe

[61]

(a) had regard to material given to it under s 473CB;

(b) did not consider new information provided by DXC19 which did not meet s 473DD, namely country information which did not comply with the Authority's Practice Direction, new claims relating to passports, and a decision of the Administrative Appeals Tribunal dated a year before the Delegate's Decision: CB 300-301 at [5]-[10];

(c) accepted DXC19's ethnicity and much of his background: CB 303-304 at [18]-[20];

(d) found that DXC19 had embellished the circumstances he faced during his time in Peshawar and was not satisfied that DXC19 "would face harassment or resentment or that which would be directed individually towards him, or as a Shia Turi, in Kurram in the reasonably foreseeable future": CB 306 at [26];

(e) did not accept that DXC19 was of adverse interest to the Taliban, any other militant group, or had an individual profile with such groups or anyone else: CB 305 at [24] and 307 at [30];

(f) considered whether DXC19 would face harm as a Pashtun and a Turi upon return to Parachinar and considered relevant DFAT reports and found that there was a trend of decreased reports of and attacks against Turis in 2018 and due to the improved security situation in Parachinar and Kurram that trend was likely to continue in 2019: CB 308 at [32];

(g) taking relevant country information into account, concluded that the material pointed against DXC19 facing a real chance of any harm in the reasonably foreseeable future by reason of his being a Turi: CB 308-309 at [32]-[33];

(h) while not raised as a claim or on the material, was not satisfied that DXC19 would face harm from Pakistani authorities in connection with his seeking asylum or returning from a western country: CB 310 at [35];

(i) concluded that DXC19 did not face a real chance of persecution in Pakistan and did not satisfy s 36(2)(a), and for similar reasons found that DXC19 did not satisfy the alternative criteria in s 36(2)(aa): CB 310-311 at [36]-[41]; and

(j) affirmed the Delegate's Decision to refuse to grant DXC19 a SHE Visa: CB 299 and 311.

[79]

(a) by grounds 2 and 3 DXC19 alleges that the Authority erred by failing to accept his claim to have received a number of threats from extremists while he was in Peshawar, living in a flat which had been occupied by Shia Muslims;

(b) the Authority's reasons at CB 305-306 at [23]-[26] for rejecting DXC19's claims concerning the threats in Peshawar while he was undergoing tertiary education were reasonable and devoid of unwarranted assumptions. To elaborate, the Authority:

(i) accepted that, as a Shia Turi in Peshawar, DXC19 may have faced some community harassment: CB 305 at [24];

(ii) did not accept that DXC19 had been targeted as an individual or had an individual profile: CB 305 at [24];

(iii) did not accept that DXC19 would have been identified and threatened for an extended period without any of those threats coming to fruition, in light of evidence that the extremist groups active in the area carried out extremely violent activities during that period: CB 305 at [25];

(iv) accepted that his residence may have been identifiable as a Shia-only residence and that attitudes such as general harassment may have been directed to his residence: CB 306 at [26];

(v) accepted that DXC19 may have heard of or been aware of general harassment or resentment towards Shias (or Shia students): CB 306 at [26]; and

(vi) did not accept that he either currently faced adverse interest from extremist groups or faced a real chance of such interests in the reasonably foreseeable future, particularly as he has not claimed that he would resume studies in Pakistan: CB 306 at [26];

(c) DXC19 submits that "it was erroneous of the ... [Authority] to base his finding that no threats were made based on no evidence of any of the threats being carried out". Read in the context of the Authority's extensive reasoning about DXC19's claims to have been threatened by extremists while living in Peshawar, and acceptance of the country information that there had been extreme violence in the region during that period, the Authority's reasoning process was reasonably open to it;

(d) further, neither the Delegate nor the Authority accepted DXC19's claim that any extremists made threats to DXC19 while he was in Peshawar. The Delegate accepted that the threats were made, but not by extremists, whereas the Authority was not satisfied that the threats were made at all;

(e) even if DXC19 could demonstrate that reasonable minds could differ in respect of DXC19's claims to have received threats from extremists while in Peshawar (for example the Delegate and Authority, who reasoned differently to reject this claim), this is insufficient to establish irrationality or illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 ("SZMDS") at [78] per Heydon J and [130]-[131] per Crennan and Bell JJ; and

(f) DXC19 concedes that it was open to the Authority to not accept this evidence based on credit or reliability findings.

[80]

At CB 305-306 at [23]-[26] the Authority said as follows:
1. The delegate accepted as credible that the applicant received written threats to his apartment and to threats to his own phone, but concluded that these had not come from extremist groups. On the evidence, I have come to a different conclusion.
2. The MEI in 2014 reported that the sectarian war in Kurram had magnified the sectarian conflict in neighbouring areas, where Sunni and Shia Internally Displaced Persons (IDPs) had moved. It stated that Shia Turis in Peshawar had engaged in targeted killings of Sunni Deobandis and that these areas had had sizable Shia populations and a history of sectarian tensions going back decades. Given the heightened sectarian tensions between Sunnis and Shias from 2007 until 2014, I accept that Shia persons (including Shia students) coming from Kurram, generally, may have faced some community harassment, resentment or were made to feel unwelcome, during their stay in Peshawar. While I accept on the basis of earlier outlined evidence, that as a Turi Shia from Parachinar, and due to the history of denial of passage by his Turi community to the Taliban, the applicant may be seen to be against extremist groups such as the Taliban, for the following reasons, I do not accept he has been targeted as an individual or has an individual profile with such groups or anybody else.
3. I do not consider it plausible that sectarian and/or extremist groups would have identified the applicant by name and religion, and sent him ongoing threat letters to his address, and phone and text messages, without any of the threats coming to fruition for an extended period. Even taking into account the applicant's claims that he remained mostly at home, there is no plausible explanation for why such groups, that the country information indicates carried out extremely violent activities during that period and were at that time, capable of doing so, could not have carried out their threats, with all the information they apparently had about him. While I accept he lived in a Shia occupied flat and perhaps even that the flat was a recognised Shia household, in the circumstances, I do not accept as plausible that the authors of the claimed threats were able to identify him personally and obtain his mobile phone number. He said his mobile number could have been retained during his interactions with shop keepers as recharging required that he provide the number and that there were not many Shia shops in that area but there appears to be little basis for this. He did not suggest he faced issues doing business with these shop owners or sought to recharge his phone at Shia shops, even if there were not many in the area as claimed. I also note that he has not provided any copy of any of the alleged multiple threat letters or other supporting evidence.
4. I am not satisfied that the applicant came to any individual adverse interest to extremist groups or anybody else. I am satisfied he has embellished the circumstances he faced at that time. I accept he may have heard of or been aware of general harassment or resentment towards Shias (or Shia students) from Kurram in Peshawar, during this time period. I also accept that such attitudes may at one point, have been directed towards his Shia-only residence, given the evidence that it had been Shia occupied over an extended period of time, and that he would have heard about this. I consider there is no credible evidence, that the applicant did have or currently has any individual profile of adverse interest to extremist groups or even anybody else, in Pakistan. Nor do I consider he would face a real chance of such interest in the reasonably foreseeable future. I note that the circumstances in the area to which he would return also differ to those that some members of his community may have faced in Peshawar during 2011. He has not claimed he would resume any studies in Pakistan in the reasonably foreseeable future. The weight of the evidence before me and as explained further below, does not support that he would face harassment or resentment or that which would be directed individually towards him, or as a Shia Turi, in Kurram in the reasonably foreseeable future.
Ground 2 is, as DXC19 submits, a traditional no evidence ground.
In order to succeed on a no evidence ground, DXC19 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 ("SGLB") 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 findings as follows:

[83]

(a) the Authority was not required to uncritically accept all or any of the claims made by DXC19, or have rebutting evidence before it could decide not to accept DXC19's claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 ("Guo"), CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 ("Randhawa"), FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 ("EGU17") at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 ("Selvadurai") at 348 per Heerey J);

(b) the Authority's findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 ("NADR") at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 ("Wu Shan Liang"), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;

(c) the weight to be given to DXC19's claims and evidence was 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;

(d) the choice of, and weight to be given to, country information is, generally speaking, a matter for the Authority to determine: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 ("NAHI") at [11]-[14] per Gray, Tamberlin and Lander; CXS18 v Minister for Home Affairs [2020] FCAFC 18 ("CXS18") at [37] per McKerracher, White and Colvin JJ; and

(e) a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: SZMDS at [131]-[132] and [135] per Crennan and Bell JJ,

it follows that there was nothing illogical in the Authority determining that the alleged threats were not made, and nor was there an unwarrantable assumption made, because on the evidence there was an evident or intelligible justification for the Authority's conclusion: SZMDS at [135] per Crennan and Bell JJ; BOH17 at [8] per Perram J.

[99]

(a) the attack in March 2011 by the Taliban on a "government/paramilitary escorted convoy" of minibuses which was travelling from Peshawar to Parachinar, and in one of which DXC19 was travelling, and in which "most passengers were said to be Shia": CB 304 at [20];

(b) country information that "extremist groups directly targeted Shias" at the time DXC19 was in Peshawar, and the fact that if these groups had DXC19's details the failure of the alleged threats to "come to any fruition for an extensive time" was "particularly at odds" with the direct targeting of Shias: CB 305 at [22] and 305-306 at [25];

(c) country information which indicated that in Peshawar there had been large scale attacks on Shias by militant groups, and that the Taliban did carry out individual targeted attacks, but only on persons with a particularly prominent profile: CB 305 at [22];

(d) the history of sectarian violence in Kurram between Sunnis and Shia, and the heightened sectarian tensions between 2007 and 2014, which it considered may have led to community harassment of Shia students in Peshawar: CB 305 at [24];

(e) DXC19 being seen as being "against extremist groups such as the Taliban" because of the history of denial of passage to the Taliban by the Turis in Kurram: CB 305 at [24];

(f) noted the three large scale attacks on Shias in Parachinar in the first half of 2017, but that there had "been no further attacks on Shias reported in Parachinar or further major attacks in Kurram, for over two years": CB 307-308 at [31];

(g) noted recent measures taken to "foolproof" the safeguarding of Shias involved in religious processions: CB 307-308 at [31];

(h) at CB 308 at [32] noted DFAT information concerning:

(i) a trend of decreased reports of attacks against Turis in 2018; and

(ii) "a low risk of sectarian violence" against Shias in the former Federally Administered Tribal Areas ("FATA"); and

(i) noted information concerning attacks against Shias on the roads in and around Kurram from 2008 until 2014 and in 2015, and the subsequent decline in such attacks, and that there were significantly fewer attacks on the roads against Turis in 2018: CB 309 at [33].

[110]

(a) grounds 5 and 6 repeat a claim that the Authority erred by finding that DXC19 would not face a real risk of serious harm, if he were returned to Kurram in the Khyber Pakhtunkhwa province;

(b) the Authority, contrary to the Delegate, found that DXC19 would not face a real risk of serious harm if he returned to the same part of Pakistan, namely Kurram, where he was originally from;

(c) the mere fact that the Authority made factual findings, including findings based on independent country information that differed from the Delegate, does not mean that the Authority fell into jurisdictional error: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 ("DBE16") at [59] per Barker J. As the Full Court of the Federal Court observed in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [70]- [72] per Reeves, Robertson and Rangiah JJ, the Authority is not required "to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate";

(d) this is not a case where the Authority made factual findings about an issue which was not in issue before the Delegate: Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 where the possibility of relocation was not in issue before the Delegate, but the Authority made findings about the possibility of relocation. The Authority simply disagreed with the Delegate on some limited issues, and this was a course open to it. Further, DXC19 was represented and made submissions to the Authority, which were taken into account: CB 274-282 and CB 300 at [4] (and see particularly DXC19's submissions to the Authority on the threat of harm in Kurram and then on relocation at CB 278-281); and

(e) grounds 5 and 6 fail to reveal any jurisdictional error in the Authority's finding that DXC19 would not face a real risk of serious harm if he were returned to Kurram in the Khyber Pakhtunkhwa province.

[115]

DXC19 therefore had to advance whatever evidence or argument he wished to advance in support of his SHE Visa application, and the Authority had to decide whether the claim was made out, but the Authority was not required to uncritically accept all or any of the claims made by DXC19, or have rebutting evidence before it could decide not to accept DXC19'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.
In relation to failing to take into account a relevant consideration the Authority must consider each necessary and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 ("Peko-Wallsend"). A failure to take into account a "relevant consideration" can only arise if that consideration was a "mandatory consideration" in the sense discussed in Peko-Wallsend: Peko-Wallsend, CLR at 39 per Mason J. In order for a matter to amount to a mandatory consideration it must be expressly stated to be required to be taken into account by the relevant legislation or, otherwise, must arise by implication from the subject matter, scope and purpose of the relevant legislation.
Both grounds 5 and 6 take issue with the Authority's finding that DXC19 would not face a real risk of serious harm if he were returned to Kurram, which is in the Khyber Pakhtunkhwa province, and also that the Authority reached a finding different to that of the Delegate in this regard, and different to that expressed in the 2019 DFAT Report.
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: WAEE at [46] per French, Sackville and Hely JJ. While the Court can infer a failure to consider a claim if the Authority did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Authority Decision as a whole_: WAEE_ at [47] per French, Sackville and Hely JJ; BYX17 at [49] per Rangiah, White and O'Callaghan JJ; WZAVQ at [55] per Barker J, and such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ, and see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ. Thus, the allegation that the Authority failed to take into account a single paragraph, [3.23], in the 2019 DFAT Report which suggested that Turis could not return to Khyber Pakhtunkhwa must be assessed against the Authority Decision as a whole.
The Authority referred extensively to country information from DFAT, including in relation to:

[125]

DFAT also indicates a trend of decreased reports of attacks against Turis in 2018. In 2019 DFAT assesses that overall most Shia in Pakistan face a low risk of sectarian violence though the risk varies depending on geographic location and for specific groups. Similar to its 2016 reporting, in 2019 DFAT assesses that Shias in former FATA face a low risk of sectarian violence, but within the context of a moderate level of militant and criminal violence across the region. However, despite the reported broader criminal and other violence across KP, the evidence does not suggest that these broader conditions, have affected the significant improvements consistently seen in recent years and around Parachinar. The evidence also indicates ongoing military efforts to maintain the security conditions in this area. DFAT also assesses that attacks and violence against Turis could and may still occur and that Turis in Kurram in particular still face a moderate risk of sectarian violence. 'Moderate risk' is defined as DFAT being aware of sufficient incidents to suggest a pattern of behaviour although since 2017, DFAT has not reported specific incidences targeting Shia Turis in Parachinar. The trends outlined by DFAT in its most recent report and the other material before me, do not point to, any pattern of incidences since 2017, or to a real chance of harm in the reasonably foreseeable future. As outlined, various news articles also indicate that during 2017 and 2018, Shia Ashura processions were observed peacefully country wide, including in Parachinar. There is very little detail on the circumstances surrounding the two incidences reported by Turis to DFAT as having occurred in the first quarter of 2018. It has also now been over six months since DFAT's assessment, with no indication in the material before me, that in the interim, these overall peaceful conditions in Parachinar and Kurram have deteriorated. DFAT also indicates that the trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram is likely to continue in 2019. This, along with the very few reported incidences in 2018, taken together with the lack of evidence to indicate those incidences were targeted or sectarian in nature, and the overall evidence as outlined, points against the applicant facing a real chance of any harm in the reasonably foreseeable future.

[129]

Consistent with its task under Pt 7AA the Authority analysed the evidence (including the country information) and on an assessment of the evidence "overall": CB 310 at [36], concluded that there was not a real chance of any harm to DXC19 if he were to return to Kurram, or when undertaking any necessary travel.
What is evident from the Authority's referral to DFAT material, and the Court's referencing of the paragraphs of the 2019 DFAT Report relevant to the DFAT material referred to, is that the Authority obviously had extensive regard to the 2019 DFAT Report. Further, given the proximity of some of the paragraphs, for example [3.15], [3.16], [3.17], [3.18] on page 26 and [3.26] on page 27, from which some of that that material was drawn, and the paragraph, [3.23] also on page 27, which DXC19 complains was not considered, it cannot readily be inferred that the Authority did not consider [3.23] of the 2019 DFAT Report.
In any event, it is clear that the Authority identified the issue and considered the claim made that DXC19 could not return to his home area, and in particular Parachinar and Kurram: it plainly identified, set out and understood DXC19's claims to that effect. The Authority Decision is otherwise comprehensive and drew conclusions concerning the claims made by DXC19 in relation to returning to his home area, both for refugee and complementary protection purposes. Those conclusions were open to be made on the evidence, and it cannot be said that no other rational or logical decision-maker could not have arrived at, or drawn, the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ.
The fact that the Authority took a different view to that of the Delegate with respect to the risk of harm in Kurram does not establish error in the Authority Decision, because the Delegate's findings do not control the reasons or findings of the Authority: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 ("BMB16") at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J. As Besanko J observed in BMB16 at [38] subject to the other provisions in Pt 7AA, "a review under that Part involves a fresh consideration by the Authority of the decision" of the Delegate. Thus, there is no denial of natural justice in circumstances such as these where the issue was one which was live before the Delegate, for as the Federal Court observed in DBE16 at [59] per Barker J:

[154]

(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) 115 ALD 303 ("Jia Legeng") per 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] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Even so, as was explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128; (2001) 75 ALJR 848; (2001) 179 ALR 296; (2001) 65 ALD 321 at [90] per Kirby J, the test (citations omitted):

[160]

(a) contrary to the DXC19'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) DXC19 was of Pashtun ethnicity, a member of the Turi tribe, a Shia Muslim, and had lived most of his life in Kurram: CB 244-245 and 303 at [14];

(ii) DXC19 witnessed bombing incidents in 2007 and 2008 while he was attending school and living in Parachinar: CB 245 and 303-304 at [18];

(iii) while living in Peshawar and engaging in tertiary study, DXC19 lived with other Shia Muslims in a flat which had been inhabited by Shias for some time: CB 245-246 and 304 at [19]; and

(iv) while travelling back to Parachinar in March 2011 DXC19 was in a convoy which was attacked by extremists, although DXC19 himself was not personally targeted: CB 246 and 304 at [20];

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

(d) relevantly, the Delegate and Authority had different bases for finding that DXC19 did not receive threats from extremist groups while he was undertaking tertiary education in Peshawar, while living with other Shia Muslims in a flat which had long been inhabited by Shia Muslims;

(e) the Delegate found that while DXC19 may have received some threats, they were not from extremist groups such as the Taliban because DXC19 had no greater profile than as a student, and the Delegate could not find "credible sources to support claims that Shia students in Peshawar at this time were being specifically targeted for kidnapping or harm": CB 246;

(f) on the other hand, the Authority did not accept that DXC19 had received the threats in Peshawar at all: CB 305-306 at [24]-[26], because:

(i) DXC19 had no profile beyond that of a Turi Shia student from Parachinar to draw him to the attention of the authorities (noting particularly that the last alleged warning specifically named he and his cousin, and the threats were also sent to his personal mobile phone);

(ii) DXC19 would not have been identified and threatened for an extended period without any of those threats coming to fruition, in light of evidence that the extremist groups active in the area carried out extremely violent activities during that period; and

(iii) DXC19 neither currently faced adverse interest from extremist groups, nor faced a real chance of such interests in the reasonably foreseeable future, particularly as he has not claimed that he would resume studies in Pakistan: CB 306 at [26];

(g) further, whereas the Delegate accepted that DXC19 would face a real risk of harm if he relocated to Kurram, the Authority found that DXC19 would not face a real risk of harm in Kurram: CB 306 at [37]. This was because:

(i) seven years had passed since DXC19 had left Pakistan and even when he was in Pakistan he had no significant profile: CB 306 at [27]; and

(ii) on the country information before it, which the Authority considered in great detail: CB 306-310 at [28]-[35], the Authority found that from 2007-2014 Turi Shias in Kurram had faced a period of significant violence, but the situation has changed and continues to improve: CB 306 at [27]; and

(h) on a fair reading of the Delegate's Decision and the Authority Decision, their factual findings were not "significantly" different.

[166]

Ground 1, as particularised, relies, in large part, upon what was said by the Authority in the Authority Decision as the basis for the alleged apprehended bias.
Particular 1.1 pleads the Latin brocard "nemo judex in causa sua". There is, however, no allegation that the Authority was determining their own cause, or that the Authority had a personal interest or involvement in some aspect of the matter, unlike, for example, Lord Hoffman in the extradition proceedings involving Chile's General Pinochet: R v Bow Street Metropolitan Stipendiary Magistrate Ex Parte Pinochet Ugarte (No 1) [2001] 1AC 61; [1998] UKHL 41; [1998] 4 All ER 897; [1998] 3 WLR 1456.
Particular 1.2 comprising a sentence specifically naming the Authority member is immaterial to anything in the remainder of ground 1, or in grounds 2 to 6.
In relation to particular 1.3, for the reasons set out in the Minister's Submissions, the factual findings as between the Delegate and the Authority are not significantly different. To the extent that they are different, that is simply a function of the Authority performing its proper task and considering the matter afresh.
The fact that the Authority took a different view to that of the Delegate with respect to the risk of harm in Kurram does not establish error in the Authority Decision, because, as set out at [51] above, the Delegate's findings do not control the reasons or findings of the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J, and there is no denial of natural justice in circumstances such as these where the issue was one which was live before the Delegate: DBE16 at [59] per Barker J (and the cases which have followed it).
There is nothing in the different outcomes which is indicative of apprehended bias on the part of the Authority. The evidence establishes that the Authority undertook a detailed analysis of the evidence (including the country information), and on a fresh assessment of the evidence "overall": CB 310 at [36] concluded that there was not a real chance of harm to DXC19 in Parachinar in Kurram or when undertaking any necessary travel. That was the Authority's task, and a fair minded lay observer, understanding the Authority's function under Pt 7AA, would not consider the Authority Decision to be affected by apprehended bias merely because of the differing outcomes as between the Delegate and the Authority. Particular 1.3 of ground 1 is therefore not made out.
In relation to particular 1.4 it does not point to any particular aspects of the Authority Decision in relation to the assertions there made, and the matter is better dealt with by dealing with the other, and remaining, particulars of ground 1 which particularise, at some length, the assertions of apprehended bias.
At particular 1.5 DXC19 submits that the Authority's finding at CB 303 at [14] that it was "satisfied that this is the area [Kurram] to which he [DXC19] would return" is somehow, in a manner not expressly stated, apprehended bias on the part of the Authority.
The Authority made the finding as part of its dealing with claims made by DXC19 as to his identity, nationality, ethnicity and religion, in the course of which it was necessary to identify where DXC19 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 DXC19 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, DXC19's birth place (in Kurram), and that he had resided in a village some seven kilometres from Parachinar "for most of his life prior to his travels to Australia", and that his fiancée remained in Parachinar: CB 303 at [14]. So not only was there a reason for the Authority to make the findings, 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 DXC19's protection claims.
In arriving at its conclusion at CB 310 at [36] that "I am not satisfied that he [DXC19] would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District", the Authority observed that it had regard to "the overall evidence including the improving broader security situation and declining levels of sectarian violence across Pakistan taken together with the applicant's history, profile, and experiences". In that regard it is evident that the Authority dealt with:

[167]

(a) the security situation and levels of sectarian violence, particularly in Kurram, observing, against a background of "levels of violence and sectarian violence in Pakistan" which "have been consistently declining": CB 307 at [21], that the Authority

(i) at CB 307-308 at [31]:

(A) regarding the former FATA and Kurram, found the country information indicates that overall, the security conditions have also significantly improved in recent years, that DFAT and information it referred to from the FATA Annual Security Report 2016 indicated relatively few sectarian or other militant attacks in Kurram in 2014 or the first half of 2015, and that in 2016, DFAT assessed that there was a low level of sectarian violence overall in the FATA, and a low level of generalised violence in Kurram; and

(B) there had been three large scale attacks on Shias in Parachinar in the first half of 2017, but that there had "been no further attacks on Shias reported in Parachinar or further major attacks in Kurram, for over two years";

(ii) at CB 308 at [32] noted DFAT information concerning:

(A) a trend of decreased reports of attacks against Turis in 2018; and

(B) "a low risk of sectarian violence" against Shias in the former FATA; and

(b) information concerning attacks against Shias on the roads in and around Kurram from 2008 until 2014 and in 2015, and the subsequent decline in such attacks, and that there were significantly fewer attacks on the roads against Turis in 2018: CB 309 at [33];

(c) DXC19's history, profile, and experiences, including:

(i) his nationality, ethnicity, religion and places of residence: CB 303 at [14] and [16];

(ii) his proximity to, and witnessing of, a suicide explosion in 2007, and proximity to a bomb explosion in 2008, seemingly in Parachinar: CB 303-304 at [18];

(iii) the attack in March 2011 by the Taliban on a "government/paramilitary escorted convoy" of minibuses which was travelling from Peshawar to Parachinar, and in one of which DXC19 was travelling, and in which "most passengers were said to be Shia": CB 304 at [20];

(iv) DXC19's period as a student in Peshawar, and his return to the Kurram thereafter: CB 303-304 at [18], 304 at [19] and 304-306 at [21]-[26]; and

(v) that he would be returning to Pakistan as a returnee from a Western country: CB 310 at [35].

[168]

The matters to which the Authority had regard in relation to its finding that "I am not satisfied that he [DXC19] would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District" as set out in the two preceding paragraphs were all matters to which it was appropriate to have regard in determining that issue and are not indicative of any apprehended bias on the part of the Authority. It follows that there is no basis for an allegation of apprehended bias on the basis set out in particular 1.5.
Particular 1.6 does not raise an issue of apprehended basis, but rather an assertion that the Authority erred by not accepting as credible DXC19's assertions about threats when he was a student in Peshawar, and particularly so when the Authority had accepted as credible DXC19's account of the attack on the minibus convoy travelling between Peshawar and Parachinar. For reasons set out at [16]-[17] and [20] above there was nothing illogical in the Authority determining that the alleged threats when he was a student were not made, and nor was there an unwarrantable assumption made, because on the evidence there was an evident or intelligible justification for the Authority's conclusion that the threats were not made. Further, there is no logical nexus between the two incidents which would require that DXC19 being credible on one incident must mean that DXC19 was credible on the other, or vice versa. The matter was one for the Authority, as the finder of fact, to, as it did, assess having regard to the evidence. Also, for reasons set out at [51] above, the fact that the Delegate came to a different factual finding as to the making and source of the threats is immaterial, and, in any event the different factual findings are not evidence of apprehended bias. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.6.
Particular 1.7 does not raise an issue of apprehended basis. Rather, particular 1.7 appears to assert that both the Delegate and the Authority erred in finding that Shia students were not targets for kidnapping, and that the Authority erred when it found that it was only certain types of persons (and not students such as DXC19) who were targets for kidnapping. Essentially, under the guise of apprehended bias, particular 1.7 thus seeks impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, for reasons set out at [16]-[17] and [20] above. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.7.
Particular 1.8 also does not raise an issue of apprehended bias. It criticises the Delegate's finding that the attack on the minibus convoy was generalised violence, and the Authority for failing to recognise that the attack on the minibus convoy was "a direct act of violence targeting Turi Shia's" (particular 1.8.2). This is no more than vehement disagreement with the Authority's factual findings, and once again the seeking of impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, under the guise of apprehended bias. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.8.
Particulars 1.9 and 1.10 take issue with the assessment by the Authority that there was not a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa. They set out the Delegate's finding that there was such a risk, the Authority's finding to the contrary, and then juxtapose material from the 2019 DFAT Report seemingly in contradiction to the Authority's findings. These particulars both re-runs and expands upon ground 5. But for the same reasons as are set out at [44]-[50] and [53] above the contention underlying the particulars, that the Authority erred in failing to find that DXC19 would suffer a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa, is not made out. Once again the particulars evince vehement disagreement with the Authority's factual findings, and under the guise of apprehended bias, once again seek impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As set out above: see [51] above, the fact that the Authority differed in its ultimate finding from the Delegate as to the risk of harm in Kurram and in Khyber Pakhtunkhwa is not indicative of error by the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J; DBE16 at [59] per Barker J (and the cases following DBE16). Nor is it indicative of apprehended bias. The Authority undertook a detailed and fresh analysis of the evidence (including the country information) and an assessment of the evidence "overall": CB 310 at [36], and concluded that there was not a risk of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa. That was the Authority's task, and a fair-minded lay observer, understanding the Authority's function under Pt 7AA, would not consider the Authority Decision to be affected by apprehended bias in relation to its findings as to whether there was a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa.
It follows that particulars 1.9 and 1.10 provide no basis for an allegation of apprehended bias.
For the sake of completeness the Court notes that insofar as ground 1 challenges or asserts error on the part of the Delegate that challenges to the Delegate's findings are not matters within the jurisdiction of this Court on an application for judicial review: ss 474 and 476.
The Court has also considered ground 1 as a cumulative whole, and not just in relation to its individual particulars. Considered cumulatively there is nothing further which suggest that the Authority Decision is affected by apprehended bias in that it failed to bring an impartial and unprejudiced mind to the resolution of the questions at hand. The Authority undertook its task, making a fresh assessment of the evidence and material before it, in an orthodox and unbiased manner.
It follows that ground 1 of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.

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