DXM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 765

DXM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 765 | Case summary | Zoe

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(b) was not satisfied there were exceptional circumstances to justify considering the new information it identified in DXM19's Authority Submissions as outlined below;

(c) noted that DXM19's Authority Submissions cite an article titled "Shia Pakistani Fighters in Syria" ("Shia Fighters Article") which it considered to be new as it was not before the Delegate and that (according to DXM19's Authority Submissions) refers to a brigade known to be made up of Turis and other Shia tribesman from Parachinar recruited by the Iranian government and who were active in the conflict in Syria in support of the Assad regime;

(d) noted that DXM19's Authority Submissions:

(i) cited the Shia Fighters Article in support of its claim that Turis are perceived to be politically pro-Iranian because of their Shia faith and their willingness to fight in the Syrian conflict and that some sectarian militant groups have publicised an ongoing intention to target them for this reason;

(ii) argued that the Australian Department of Foreign Affairs and Trade ("DFAT") 2019 report ("2019 DFAT Report") (which is annexed to the Bakhtiar Affidavit) that was relied upon by the Delegate does not adequately assess the risk to this group given their perception as pro-Iranian; and

(iii) did not make clear from the information in the Shia Fighters Article when it was published.

(e) noted that DXM19's lawyer:

(i) prepared DXM19's Authority Submissions, and made oral submissions at the end of the SHE Visa Interview in relation to Turi Shias being imputed as being pro-Iranian;

(ii) prepared the detailed Post-SHE Visa Interview Submissions citing country information in support of DXM19's claims; and

(iii) included in DXM19's Authority Submissions another report that refers to the targeting of Turis in Parachinar in 2017 for their alleged support of the Bashar al-Assad regime in Syria;

(f) noted that the Delegate's Decision acknowledged other country information sources which indicated that sectarian militant groups have publicised an ongoing intention to target Turi/Bangash tribesmen owing to their Shia faith and the fact that some tribesman are fighting in Iranian-backed militias in Syria, and that the Shia Fighters Article does not reflect anything new in this regard and nor did it refer to credible personal information;

(g) noted that DXM19's Authority Submissions:

(i) referred to an undated article about Lashkar-e-Jhangvi ("LeJ Article" and "LeJ" respectively) which it considered to be new information and that the LeJ Article cited a new 2018 article by South Asian Voices ("South Asian Voices Article") in support of its claim that "numerous reports" detail the significant presence of the LeJ network and the Tehrik-e-Taliban ("TTP") in Punjab Province and Islamabad;

(ii) included information about LeJ and TTP and was therefore not satisfied that the LeJ Article and the South Asian Voices Article could not have been provided to the Delegate and that it was also not apparent that they added anything further to the country information that was before the Delegate about these groups;

(iii) claimed that Turis are at risk of state-based persecution due to perceived links to Iran with reports that officials are "disappearing" Shia with purported links to Iran. The Authority noted this claim and the South Asian Voices Article to be new information but that it was not evident why this claim or the South Asian Voices Article could not have been raised before the Delegate. The Authority noted:

(A) DXM19 was given the opportunity to raise any further claims during his SHE Visa Interview before the Delegate and that DXM19 was legally represented before the Delegate and that DXM19's Authority Submissions were prepared by his lawyer;

(B) that DXM19 had provided little supporting evidence in relation to this alleged new fear as no extract or copy of the report which DXM19 seeks to rely on had been provided; and

(C) the Shia Fighters Article refers to Shias being questioned about providing financial support to Iran or as to whether they had been involved in the Syrian conflict but DXM19 had not claimed to have been involved in these activities and had not made any further specific claims as to why he, in particular, would be suspected of being involved in such activities;

(h) acknowledged there is a complex history that has affected the Turi community living in Kurram and accepted that Shia Turis in the area have been targeted by terrorist groups for various reasons in the past, but found that the improvements in security in DXM19's home area have been significant as a result of ongoing security measures that have been adopted by the Pakistani Government;

(i) noted the 2019 DFAT Report provided an assessment of a moderate risk of sectarian violence from militant groups to Turis in Kurram in February 2019 and further noted that there have been no further attacks against Turis in Kurram since the 2019 DFAT Report had been published (seven months prior to the Authority Decision) and that DFAT also reports there have been no attacks in Parachinar since early 2017;

(j) took into account DXM19's evidence that he has not been associated with any Shia or Turi militant groups nor been involved in any political activities, and that he claimed his family still resides in his village and he had not claimed that his family came to any harm since DXM19 left Pakistan;

(k) noted DXM19 had not claimed he would work as a taxi driver on return to Pakistan or that he feared harm for this reason but even if he did the country information does not support that he will face a real chance of harm;

(l) having considered the evidence regarding the generally improved security situation in Pakistan, and in Kurram specifically, and declining levels of sectarian violence, and DXM19's profile and experiences, was not satisfied DXM19 faced a real chance of any harm in Pakistan in the reasonably foreseeable future;

(m) found DXM19 did not meet the requirements of the definition of "refugee" in s 5H(1);

(n) did not accept DXM19's claims of being targeted by the Taliban in 2011 and was not satisfied that he would face a real risk of significant harm in Pakistan; and

(o) found there were not substantial grounds for believing that there is a real risk that DXM19 will suffer significant harm.

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Particulars

a) In reasoning to the conclusion that the applicant would not face a real chance of harm, the IAA:

referred to DFAT's comments that counter-terrorism activities had significantly decreased the number and severity of attacks on Turis and other sources that indicated the security situation improved substantially in 2018 and there was a reported decrease in terrorism incidents: CB p 284 at [22].

referred to DFAT's most recent report acknowledging a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation and the overall declining trend in sectarian violence since 2014: CB p 285 at [25].

found the improvements in security in the applicant's area of Upper Kurram have been significant: CB p 285 at [26].

acknowledged DFAT's assessment of a moderate risk of sectarian violence from militant groups to Turis in Kurram but noted there having been no further attacks against Turis in Kurram since that report in February 2019 and no attacks in Parachinar since early 2017: CB p 285 at [26].

accepted the applicant would continue to attend religious celebrations such as Ashura in Parachinar but noted "recent reports" indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017: CB p 285 at [27].

accepted the applicant will likely return to his home via the Thal-Parachinar road but noted DFAT stated "Turis reported significantly fewer road attacks in 2018" and that there were "no recent reports of attacks against Turis on this road"; and further noted the applicant claimed to have travelled to Peshawar in 2010 and again in 2012 and did not claim to have come to any harm during those trips: CB p 285 at [29].

found for reasons including "the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence" the applicant would not face a real chance of any harm: CB p 286 at [33].

b) The IAA's assessment of whether the applicant faced a real chance of harm involved a temporally relative analysis, with findings predicated upon 'improved' security and 'decreasing levels' of violence.

c) The test of whether there is a real chance of harm is an objective rather than relative test, and is not determined by whether the risk is less severe at the relevant point in time than it was previously.

d) A "real chance" of harm is a prospect that is not "remote or far-fetched" and decreasing attacks against Turis, improved security, and the fact the applicant avoided harm previously, are not determinative of whether the applicant faced a real chance of harm in the foreseeable future.

e) At no stage did the IAA make an objective finding as to the actual level of risk the applicant faced being remote or far-fetched.

f) The IAA's misapplication of the real chance test materially affected its decision, and deprived the applicant of a potentially different outcome.

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(e) in reasoning to its conclusion that DXM19 would not face a real chance of harm at CB 286 at [33], the Authority:

(i) referred to comments in the 2019 DFAT Report that counter-terrorism activities had significantly decreased the number and severity of attacks on Turis and other sources that indicated the security situation improved substantially in 2018 and there was a reported decrease in terrorism incidents: CB 283-284 at [22];

(ii) referred to the 2019 DFAT Report acknowledging a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in and the overall declining trend in sectarian violence since 2014: CB 285 at [25];

(iii) found that improvements in security in DXM19's area of Upper Kurram have been significant: CB 285 at [26];

(iv) acknowledged the 2019 DFAT Report's assessment in February 2019 of a moderate risk of sectarian violence from militant groups to Turis in Kurram but noted there having been no further attacks against Turis in Kurram since the 2019 DFAT Report and no attacks in Parachinar since early 2017: CB 285 at [26];

(v) accepted that DXM19 would continue to attend religious celebrations but noted "recent reports" indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017: CB 285 at [27]; and

(vi) accepted that DXM19 will likely return to his home via the Thal-Parachinar road but noted that the 2019 DFAT Report stated "Turis reported significantly fewer road attacks in 2018" and that there were "no recent reports of attacks against Turis on this road"; and further noted DXM19 claimed to have travelled to Peshawar in 2010 and again in 2012 and did not claim to have come to any harm during those trips at CB 285-286 at [29];

(f) the Authority found, for reasons including "the general improved security situation in Pakistan and in Kurram specifically, and declining levels of sectarian violence" that DXM19 would not face a real chance of any harm: CB 286 at [33];

(g) the Authority's recitation of the correct test: CB 286 at [33] was not a substitute for its proper application: CGA15 at [26] per Murphy, Mortimer and O'Callaghan JJ. A decision maker's substantive reasoning processes are more indicative of their actual reasoning processes than the expression of their conclusion: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723 at [30] per Mansfield J ;

(h) the Authority's reasoning in this case displays more than a mere "loos[e]ness of language": 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 per Brennan CJ, Toohey, McHugh and Gummow JJ, rather, it evinces an erroneous methodology whereby the Authority failed to undertake the requisite objective assessment of whether DXM19 would face a real chance of harm;

(i) whether there is a real chance of harm is not determined by whether the risk has improved over time;

(j) decreasing attacks against Turis and security improvements in DXM19's home area, or the fact DXM19 avoided harm previously, are not determinative of whether he faced a prospect of harm that is not remote or far-fetched;

(k) what matters is the actual level of risk in the particular place: CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35] per Moshinsky J;

(l) in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663; (2019) 167 ALD 89 ("CJE16") at [32]-[33] per Anderson J the Federal Court said:

... the warning in CID15 and CGA15 about assessing a "real chance" on a relative basis is applicable to a temporally relative analysis of that chance.

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.

(m) in this case, in contrast to CJE16, the Authority did not make a finding that DXM19's chance of harm was remote: CJE16 at [44] per Anderson J, and thereby failed to correctly perform its statutory task;

(n) the Authority's erroneous relative application of the test did not dispose of whether DXM19 faced a real chance of harm, as "an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted": Chan, CLR at 398 per Dawson J;

(o) while it might have been open for the Authority to find that DXM19 did not face a real chance of harm after correctly applying the real chance test, it is not for a reviewing court to be satisfied that there was evidence before an administrative decision-maker that was capable of supporting the conclusion in fact reached and to ignore the reasons actually given: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 229 FCR 290; (2013) 61 AAR 531; (2013) 140 ALD 1 ("Salahuddin") at [21] per Flick J;

(p) for the purposes of materiality, it is sufficient if the review material was capable of supporting an objective finding that DXM19 faced a real chance of harm; and

(q) in the premises, there was a realistic possibility that had the Authority correctly applied the real chance test, there might have been a different outcome, noting the materiality test "poses a very low threshold, lest courts engage in impermissible merits review.": Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 864; (2021) 364 FLR 5 at [100] per Judge Driver.

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(a) the Authority considered the history of the conflict affecting Turi Shias in Parachinar over time: the Authority recognised that there has been a "complex history" affecting Turi Shias in that area. That was an orthodox approach. Indeed, it was an approach which DXM19 urged the Authority to take. DXM19 submitted: "We urge the [Authority] to take into account the cyclical nature of the violence in Pakistan when making an assessment as to the future risk of harm to the applicant or someone of his profile": CB 264, see also CB 285 at [26]. But consideration of this history of conflict, and recent improvements, did not result in the Authority failing to correctly apply the "real chance" test: CJE16 at [34] per Anderson J. Rather, the Authority correctly applied the "real chance" test, in an "absolute" sense: see the terminology used in CJE16 at [29] per Anderson J, throughout the Authority Decision in that the Authority:

(i) had regard to country information to the effect that "normal life" was returning to the region: CB 284 at [22];

(ii) had regard to the 2019 DFAT Report assessment that Turis in Kurram "still face a moderate risk of sectarian violence from militant groups because of their Shia faith": CB 285 at [25]. An assessment by DFAT that there is a "moderate risk" of some form of violence does not necessitate a finding that there is a real chance of harm: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594 at [125] per Murphy J; DVD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 858 at [37] per Judge Laing;

(iii) in reliance on DFAT's assessment, further noted that there had been "no further attacks against Turis in Kurram" since the 2019 DFAT Report was published and "no attacks in Parachinar since early 2017": CB 285 at [26]; and

(iv) expressed a conclusion that it was "not satisfied ... [DXM19] would face a real chance of any harm in Pakistan in the reasonably foreseeable future", which is a formulation that, in terms, correctly states the test: CB 286 at [33]; and

(b) in those circumstances, the Court should not infer that the Authority failed to assess whether DXM19 faced a real chance of harm upon return to Parachinar in an absolute sense. It was not necessary for the Authority to make a finding that the risk of harm was "remote". Indeed, the Full Court of the Federal Court has recognised that "[r]eaching too readily for the label 'remote' as a descriptor of risk may lead to error": AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 at [46] per Middleton and Mortimer JJ.

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In the Authority Decision at CB 285-286 at [25]-[30] the Authority found that:
1. DFAT's most recent report published in February 2019 acknowledges a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram and the overall declining trend in sectarian violence since 2014 in Pakistan. It further states that while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur and Shias continue to face a threat from anti-Shia militant groups. DFAT ultimately assessed that Turis in Kurram still face a moderate risk of sectarian violence from militant groups because of their Shia faith.
2. There is a complex history that has affected the Kurram and the Turi community living there and I accept that the Shia Turis in the area have been targeted by terrorist groups for various reasons in the past. It has been argued that the situation remains fluid and the nature of violence in Pakistan is cyclical, however, I find the improvements in security in the applicant's area of Upper Kurram have been significant as a result of the ongoing security measures that have been adopted by the Pakistani government. DFAT provided an assessment of moderate risk of sectarian violence from militant groups to Turis in Kurram in February 2019. However, I note that there have been no further attacks against Turis in Kurram since that report was published seven months ago and DFAT also reports that there have been no attacks in Parachinar since early 2017. I have also taken into account the applicant's evidence that he has not been associated with any Shia or Turi militant groups nor been involved in any political activities. He has claimed that his family still reside in his village and has not claimed they have come to any harm since he left Pakistan.
3. The applicant provided evidence that he practised his Shia faith in Pakistan and in Australia by attending religious celebrations such as Muharram and Ashura in Parachinar, attending Friday prayer and fasting during Ramadan. I accept he will continue to do so, on return to Pakistan. He comes from a majority Shia area and has not claimed that he will be prevented from practising his religion. DFAT has stated that Shia are most vulnerable during large gatherings, such as Ashura processions but recent reports indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017.
4. DFAT further noted Turis ... face [a] similar risk of official discrimination as other Pashtuns based on ethnicity and no additional risk of official discrimination based on their religion. It assessed that Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination. It also states, according to the media, discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda. It does not provide any further detail about the source of this information nor the form of the alleged discrimination and the agents of this harm. I note the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis.
5. I have also considered the applicant's journey back to Parachinar in assessing whether he has a well-founded fear of persecution. Country information before me indicates that Shia Turis from Upper Kurram can only access Peshawar (the closest major Pakistan city) via the Thal-Parachinar road which passes through Sunni-dominated Lower Kurram. In 2016, DFAT indicated that the Thal-Parachinar Road remained open and there had been no major security incidents on the road in 2015. Federal security forces maintained armed checkpoints along the road, which is used by both civilian and military vehicles. In its 2019 report, it stated that Turis reported significantly fewer road attacks in 2018, as military operations have forced militants into the mountains. I accept that the applicant will likely return to his home village via the Thal-Parachinar Road to get to Parachinar but there are no recent reports of attacks against Turis on this road. Further, the applicant claimed to have travelled to Peshawar in 2010 to obtain his passport and claims he took the main road through Thal as the road "was a little bit better". He then travelled to Peshawar again when he last departed Pakistan in 2012 and then travelled onwards to Islamabad in order to fly from the airport there. He did not claim to have come to any harm during those trips.
6. The applicant has not claimed that he would work as a taxi driver on return to Pakistan or feared harm for this reason, but even if he did, the above country information does not support that he will face a real chance of harm.
At CB 286 at [33] the Authority concluded that:

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a. The practice of his faith by attending religious celebrations;

All risk factors associated with being a member of the Turi tribe; and

c. his return to his home village via the Thal-Parachinar Road.

a) The IAA accepted the applicant would attend religious celebrations such as Ashura in Parachinar, and referred to DFAT's statement that Shias are most vulnerable during large gatherings, but noted "recent reports indicate Shias had been able to commemorate these occasions without incident since October 2017": CB p 285 at [27].

b) The IAA acknowledged DFAT states "discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda" but noted "the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis": CB p 285 at [28].

c) The IAA accepted that the applicant will likely return to his home village via the Thal-Parachinar road but noted "there are no recent reports of attacks against Turis on this road" and the fact applicant had not been harmed on previous trips on the road in 2010 and 2012: CB p 285 at [29].

d) Each of these issues was left unresolved, and was not the subject of any finding, prior to the IAA's general conclusion that "having considered" factors including "the applicant's profile and experiences" he did not face a real chance of any harm: CB p 286 at [33].

e) To the extent [27] - [29] of the IAA's decision purports to consider these integers, the IAA's reasoning failed to properly consider the applicant's risk of harm because:

reports of Shias commemorating religious celebrations without incident since October 2017, in a report published in February 2019, are not determinative of the applicant not facing a real chance of harm in the foreseeable future, noting DFAT advised the risk Shias face risk can vary "for members of specific groups (see Hazaras and Turis)": DFAT Report at [3.104].

the applicant not claiming to have faced discrimination did not address DFAT reporting "discrimination and violence towards Shia Tribes, particularly Turis, remaining significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda," which were separate factors impacting his risk profile: DFAT Report at [3.19].

the applicant not being harmed on previous trips on the Thal-Parachinar road in 2010 and 2012 was not logically probative of his risk of harm from travelling on the road in the future, as DFAT reported a possible risk from doing so: DFAT Report at [3.16]

g) The IAA's failure to engage in an active intellectual process in relation to key facets of the applicant's risk profile materially affected its assessment of whether he satisfied the criteria for the grant of the SHEV.

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(b) DXM19's risk profile included factors:

(i) stemming from his Shia faith and attendance at religious celebrations;

(ii) his membership of the Turi tribe; and

(iii) the fact he would travel on the Thal-Parachinar Road to return to his home village;

(c) after surveying country information the Authority purported to consider the above factors at CB 285-286 at [27]-[29];

(d) in respect of DXM19's religion the Authority noted that the 2019 DFAT Report had "stated that Shia are most vulnerable during large gatherings, such as Ashura processions but recent reports indicate that Shias in Parachinar have been able to commemorate these occasions without incident since October 2017": CB 285 at [27];

(e) in respect of DXM19 being a Turi the Authority acknowledged the 2019 DFAT Report stated that: "discrimination and violence towards Shia Tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of Taliban and Al Qaeda": see 2019 DFAT Report at [3.19], and the Authority noted "the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis": CB 285 at [28];

(f) the Authority then accepted that DXM19 "will likely return to his home village via the Thal-Parachinar Road to get to Parachinar but there are no recent reports of attacks against Turis on this road": CB 285-286 at [29];

(g) the Authority did not engage further with integers of risk prior to concluding that DXM19 would not face a real chance of any harm in Pakistan in the reasonably foreseeable future: CB 286 at [33];

(h) the Authority did not properly address why DXM19 was not at risk of harm from practising his faith. To the extent CB 285 at [27] might be interpreted as reasoning DXM19 was not at risk due to an absence of recent violence at religious festivals, reports of Shias commemorating religious celebrations without incident since October 2017 (in the 2019 DFAT Report published in 2019) are not logically determinative of DXM19 not facing a real chance of harm for this reason in the foreseeable future, noting DFAT had advised the risk Shias face can vary "for members of specific groups (see Hazaras and Turis)": 2019 DFAT Report at [3.104];

(i) the same fallacy undermines the Authority's references to DXM19 avoiding harm on two occasions he travelled on the Thal-Parachinar Road in 2010 and 2012, and the lack of recent reports of attacks on Turis on this road;

(j) DXM19's risk as a member of the Turi tribe was based upon multiple factors, including being imputed as being pro-Iranian, as DXM19's representative submitted to the Delegate: CB 278 at [6]. The enhanced risk to Turis from being imputed as pro-Iranian, which was adverted to by the 2019 DFAT Report, was not properly considered;

(k) in accordance with Ministerial Direction 84: Direction no. 84 - Consideration of Protection visa applications, issued under s 499 of the Migration Act the Authority was required to take into account DFAT's assessment, where relevant, in making its decision. Violence towards Turis remaining significant in DXM19's majority Turi home area was plainly relevant to the assessment of DXM19's risk of harm;

(l) the Authority failed to meaningfully address why DXM19 would not be at risk of violence. The Authority merely noted "the applicant is from a majority Turi Shia (Pashtun) area and did not claim to have faced discrimination in the past on this basis": CB 285 at [28]. The reporting of violence towards Turis remaining significant was bypassed. This issue was a discrete facet of DXM19's risk profile as a Turi in addition to the risk of Turis being targeted by terrorist groups traversed at CB 285 at [26];

(m) having acknowledged the reports of significant violence, the Authority could not arrive at a contrary conclusion without explaining how and why this risk of violence did not apply to DXM19: CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1472 at [54] per Judge Driver. The Authority did not meaningfully consider or resolve this issue: BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 at [45] per Greenwood J ; and

(n) the Authority's failure to engage in an active and intellectual process in relation to key facets of DXM19's risk profile was plainly relevant to whether DXM19 satisfied the criteria for the grant of the SHE Visa. The Authority's errors in this respect were therefore material: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 at [33] Kiefel CJ, Keane and Gleeson JJ.

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(d) contrary to DXM19's submissions, there is no logical fallacy in the Authority's reasoning. A lack of past incidents is logically probative of future risk: Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Nor is the rationality of the Authority's reasoning undercut by [3.104] the 2019 DFAT Report - not referred to by the Authority - which noted that the risk for Shias can vary depending on location and membership;

(e) the Authority's consideration of the risk was specific to Shias in Parachinar, and the Authority was clearly referring to information cited by the Delegate: see CB 235 fn 39, as to the membership of the Turi tribe, and the Authority considered that claim in significant detail from CB 283-285 at [20]-[26] of its reasons. Again, this was express and direct consideration of the claim. And the Authority did not "bypass" any statement about the risk of violence to Turi Shias. The Authority directly confronted the information, but found that he did not face a real risk of harm on that basis upon return to Parachinar;

(f) no inference should be drawn that the Authority overlooked that Turis are imputed as pro-Iranian. The Authority referred to the claim at CB 278-279 at [6] in the context of the exercise of its powers under s 473DD. The Authority Decision discloses that the Authority was aware of the information. The failure to refer to the information in its substantive reasoning only leads to an inference that the Authority did not consider it material: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48 at [48]- [49] per Besanko, Barker and Bromwich JJ, and the authorities cited therein. So much is explicable because the information concerning an imputed pro-Iranian political opinion was contextual information - namely, to explain why Pashtun Turi Shias are attacked: CB 263;

(g) at CB 285 at [28] the Authority expressly considered [3.19] of the 2019 DFAT Report cited in DXM19's submissions. It was for the Authority alone to consider what weight to give to the 2019 DFAT Report. The Authority evidently gave it little weight because there was no detail about the source, the form of the alleged discrimination, or the agents of the harm, and DXM19 is from a majority Turi Shia area and had never claimed to face discrimination in the past. Those reasons were open to the Authority. It is apparent that the Authority, at CB 285 at [28], was concerned with any risk of "official discrimination", which is, broadly speaking, discrimination by the State itself: see 2019 DFAT Report at p 6; and

(h) the Authority clearly considered DXM19's risk on the Thal-Parachinar road: CB 285-286 at [29]. The Authority considered DXM19's personal experiences on the road in 2010 and 2012, as well as more recent information concerning travelling on the road in 2016 and 2019. This was a conventional approach to determining future risk.

[91]

The caution thus expressed by the majority in Plaintiff M1/2021 is even more apt to apply to a ground of review premised upon a failure to consider "in a meaningful way", that being a phrase so pregnant with possible permutations when sought to be applied to the outcomes of administrative decision-making as to almost inevitably invite the possibility of merits review and the possibility of crossing the rigorously policed line between judicial review and merits review which lies at the heart of Australian administrative law: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at [127] per Spigelman CJ; Zentai v O'Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J .
Ground 2 does not allege that the Authority actually failed to consider the integers of DXM19's claim of risk of harm. To do so would of course constitute jurisdictional error as it is a well-established principle that the Authority must consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 ("Htun") at [42] per Allsop J; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. An applicant's claims to meet the criteria for a protection visa are mandatory considerations under the Migration Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [63] per Black CJ, French and Selway JJ; Htun at [42] per Allsop J.
Without derogating from the fact that matters alleged to constitute jurisdictional error may overlap, a stand-alone allegation that the Authority failed to give any consideration to the integers of DXM19's claims of risk of harm would, at least on the face of it, fail because the Authority gave consideration to:

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