EBB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 469

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90

BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CXS18 v Minister for Home Affairs [2020] FCAFC 18

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1114

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514

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

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

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398

Navoto v Minister for Home Affairs [2019] FCAFC 135

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

1. A writ of certiorari issue quashing the decision of the Second Respondent made on 1 October 2019.
2. A writ of mandamus issue requiring the matter be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 22 August 2019, and to determine it according to law.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an amended application for judicial review ("Amended Judicial Review Application") filed by the applicant, EBB19, under s 476 of the Migration Act 1958 (Cth) ("Migration Act"). The Amended Judicial Review Application seeks review of a decision of the Immigration Assessment Authority ("Authority Decision" and "Authority" respectively) handed down on 1 October 2019. The Authority Decision affirmed a decision of a delegate ("Delegate's Decision" and "Delegate" respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts ("Minister") of 22 August 2019 not to grant EBB19 a Subclass 790 Safe Haven Enterprise visa ("SHE Visa").
2. References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
3. The Authority Decision appears in the Court Book ("CB") at CB 231-246. The CB was marked as Exhibit 1 at hearing. Also at hearing the affidavit of Mei Guo affirmed 26 July 2023 ("Guo Affidavit") was tendered and read into evidence.

1. The history of EBB19's SHE Visa application, including the relevant background, is as follows:

(a) at the time of his arrival in Australia on 21 August 2013 EBB19, a national of Pakistan, was 29 years old: CB 64 and 71;

(b) an entry interview was conducted with EBB19 on 3 December 2014: CB 28;

(c) on 22 September 2016 the Minister invited EBB19 to apply for a temporary protection visa or a SHE Visa: CB 46;

(d) EBB19 made a valid application for a SHE Visa on 9 December 2016 indicating therein that he had previously worked as a driver in a town ("Town") in the Kurram District (formerly the Kurram Agency, and which is in north-west Pakistan): CB 79, and said that he left Pakistan because, at CB 89:

1. ...I was working as a driver. Given the very poor security situation, I was only able to drive within a very small area. Many attacks occurred and I felt it was only a matter of time until I was killed. Accordingly, I felt I had no option except to flee Pakistan.

(e) EBB19 was interviewed by the Delegate on 27 June 2019: CB 145, and in summary, relevant to his claim, told the Delegate:

(i) he was born and raised in a village ("Village") near the Town in the Kurram District: CB 160;

(ii) he is readily identifiable as a Shia Turi and practising Muslim: CB 161; and

(iii) his home area borders Afghanistan where sectarian violence is rife: CB 162;

(f) on 22 August 2019 the Delegate's Decision was to refuse to grant EBB19 a SHE Visa: CB 183;

(g) the Delegate's Decision was referred to the Authority for review on 27 August 2019: CB 200; and

(h) on 18 September 2019 EBB19 provided new information to the Authority in support of his claims: CB 215, and in particular he provided:

(i) an account of the recent deaths of his two cousins aged 15 and 20 who were travelling together on the roads between the Village and another village, when they were stopped, kidnapped and poisoned: CB 215;

(ii) documents signed by senior medical officers at a hospital in the Town certifying the deaths of his cousins: CB 221-222; and

(iii) an explanation that he could not have provided the new information to the Delegate because he was unaware of it prior to the Delegate's Decision.

1. On 1 October 2019 the Authority Decision was to affirm the Delegate's Decision.
2. In the Authority Decision the Authority:

(a) relevantly commenced its reasons by referring to a submission dated 17 September 2019 ("EBB19's Authority Submission") received on behalf of EBB19: CB 215-220. EBB19's Authority Submission attached two certificates, which were styled as death certificates ("Death Certificates"): CB 221-222. In relation to the Death Certificates the Authority:

(i) explained at CB 232 at [4] the claim underlying the Death Certificates as relating to EBB19's two cousins who were involved in an incident on 19 November 2018. The two cousins were said to be travelling from one village to another when they were stopped on the road, kidnapped, poisoned and died. Sunni militants were thought to be the perpetrators. This was said to be relevant to EBB19's claim of ongoing attacks on the roads between villages. The Authority recorded the claim that EBB19 had not been told earlier of this incident because his family "knew he had been feeling depressed";

(ii) expressed itself as not being "satisfied" that there were exceptional circumstances to consider the new "claim" and the Death Certificates: CB 232-233 at [5], for the following reasons:

• (A) it had concerns with the explanation for the delay (that is, because the family were concerned EBB19 was "depressed"). In this specific context, it said that "[i]t is obvious on the face of it that this information is highly relevant to his application for protection and I find it difficult to believe that they did not provide him with this information because he was feeling depressed";
• (B) relatedly, it referred to EBB19's suspicion of the involvement of Sunni militants being "based on their previous history of attacking [EBB19's] community and [EBB19 had] not provided any other supporting evidence of who allegedly committed the attack or why"; and
• (C) it had "significant concerns" about the authenticity of the Death Certificates (being the "evidence ... provided in support of the new claim"). It offered a number of reasons for effectively saying that the Death Certificates were not capable of being believed. First, they were typed on a blank piece of paper, which made it difficult to verify them as official documents. Second, one was issued nine months after the event, without there being any explanation for this. Third, the other bore no date. Fourth, apart from the reference to "poisoning", there was no other information about the causes of death. Fifth, there was no other supporting evidence that the deceased persons were EBB19's cousins;

(b) set out EBB19's protection claims as follows:

(i) he was born and resided in the Village, near the Town, in the Kurram District and is a citizen of Pakistan;

(ii) he is of Pashtun race and is a Shia Muslim belonging to the Turi Tribe;

(iii) his life was difficult in Pakistan due to his race, religion, tribal affiliation and his area of origin;

(iv) since 2007 there has been a high level of tension between the Sunni Muslims, Shia Muslims and extremist groups in his home area (the Kurram District). The Taliban wish to have power in his area to allow them access to Afghanistan and ongoing attacks were perpetrated against his religious community;

(v) he was scared to obtain supplies as attacks were perpetrated against marketplaces. He was also scared to practise his faith given many Shia places of worship were attacked;

(vi) in late 2009 he witnessed an explosion in the Town and two of his good friends were killed in the attack. This made him very scared and he travelled to the United Arab Emirates ("UAE") but the authorities in that country started mistreating Shia Muslims and he had no choice but to return to Pakistan. On his return to Pakistan he was working as a driver but due to the poor security situation he was only able to drive within a very small area and felt it was only a matter of time until he will be killed so he felt he had no option but to flee Pakistan;

(vii) he fears harm from the Taliban, associated extremists, the Islamic State and the Sunni Muslim community in Pakistan. He will be harmed due to his religion, his area of origin, tribe affiliation, race, as a Shia Pashtu from the Kurram District and his imputed political opinion which emanates from these characteristics. Extremists target them given they believe their community has worked against them and prevented their access to Afghanistan. He can be easily recognised as a Shia Muslim given his name, facial features, area of origin, identity documents and religious practice. He will be harmed in all areas of Pakistan; and

(viii) he claims the Pakistani authorities are corrupt and unable to uphold the rule of law in Pakistan and do not have the ability to prevent terrorist groups from committing atrocities and the authorities aid extremist groups to commit acts of violence. The Taliban and the other extremist groups are very powerful and cannot be stopped by the authorities;

(c) accepted:

(i) EBB19 is of the Shia faith, a member of the Turi Tribe, of the Pashtun race, and that he previously resided in the Village, near the Town, in the Kurram District: CB 235 at [12];

(ii) based on supporting country information, that there have been tensions between Sunni and Shia Muslims in EBB19's home area in the past and that various militant groups have targeted Turi Shias in the Kurram District: CB 235-236 at [14]-[15];

(iii) as plausible that EBB19 may have witnessed an explosion that killed his friends in 2008 or 2009: CB 236 at [18]. This finding must be read against the earlier findings where it noted EBB19's evidence that none of his family had been physically harmed as a result of conflict around his home area: CB 236 at [16], alongside an evaluation of EBB19's evidence before the Delegate. As to the latter point, the Authority found that nothing of significance happened in EBB19's village, but that residents lived in fear of militant activity: CB 236 at [17];

(d) essentially found that EBB19 did not satisfy the criteria for the grant of the SHE Visa on the basis of country information, which indicated that there have been significant improvements to the security situation in the Kurram District due to improved infrastructure and counter-terrorism operations by the Pakistani authorities: CB 237 at [22] and CB 239 at [32];

(e) considered that the country information indicated that there had been a declining trend in sectarian violence in Pakistan since 2014: CB 237 at [23] and there had been no attacks in the Town since early 2017: CB 239 at [32], and noted the following:

(i) in 2017 the Pakistani authorities announced nationwide military operations which included counter-terrorism operations, the installation of closed circuit television throughout the Town, and the construction of new forts and border posts to improve surveillance: CB 237 at [24];

(ii) in a report by the Department of Foreign Affairs and Trade ("DFAT") in 2019 ("2019 DFAT Report") DFAT acknowledged a trend of decreased reports of attacks against Turis in 2018. Although DFAT assessed that Turis in the Kurram District still faced a moderate risk of sectarian violence, the Authority apportioned weight to the country information that government operations and associated counter-terrorism activities have significantly decreased the number and severity of attacks on Turis: CB 237-238 at [25]-[26]; and

(iii) country information indicated that the security situation in the area of the Village is located had improved substantially in 2018, arising from legislative changes introduced by the Pakistani government, the construction of military fencing, and the establishment of roads, bridges and telecommunication networks, schools, health facilities and markets: CB 237-238 at [26];

(f) noted that EBB19's family continue to reside in the Village and that nothing had happened to them. Consequently, the Authority did not accept that EBB19's family cannot move freely due to fear of militant attacks, since the security situation has improved in the Town since 2017: CB 238 at [28]. The Authority had regard to EBB19's request for it to consider findings of the then Administrative Appeals Tribunal ("AAT") in two decisions in September 2018 which found that it would be unreasonable for Turi Shias to relocate in Pakistan. The Authority gave little weight to the two AAT decisions, noting that it was not bound by them: CB 239 at [31];

(g) considered the practice of EBB19's religion in Pakistan and found that he would not be prevented from practising his Shia Muslim faith, bearing in mind that EBB19 comes from a majority Shia area, and that, contrary to his claim that Shias have been targeted by the Pakistani authorities, he had not claimed to have received adverse attention from the Pakistani authorities on the basis of his religion, or that he would be of adverse interest to the authorities: CB 239-240 at [33];

(h) considered EBB19's journey back to the Town, accepting that he would have to travel through the Sunni dominated lower Kurram District, along the main road to the Town ("Main Road"). In that regard, the Authority noted country information relating to the decrease in road attacks reported in the 2019 DFAT Report which had instilled confidence within the community to travel on the Main Road. Against that backdrop, it said that it was not satisfied on the basis of country information before it that the roads can only be used during daylight: CB 240-241 at [36];

(i) within that framework of findings, the Authority then said at CB 240-241 at [36] (emphasis added):

...I also find that if the applicant were to continue to work as a taxi driver in Pakistan the country information above does not indicate that this will exacerbate his risk of harm.

(j) noted that the Delegate considered a claim of harm in Pakistan due to EBB19 being a failed asylum seeker, but that the Delegate had not appeared to accept this claim on the basis of country information indicating that returnees are able to integrate into the community: CB 241 at [37]-[38];

(k) in the result, said that it was not satisfied, on the basis of EBB19's claims and profile, that he will face a real chance of any harm in Pakistan in the reasonably foreseeable future: CB 241 at [39]; and

(l) for similar reasons, the Authority found that the complementary protection criteria were not made out: CB 242 at [43].

1. The Amended Judicial Review Application contains three grounds which are set out below: ground 1 at [10]; ground 2 at [26] and ground 3 at [37].
2. For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 ("MZAPC") at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. Ground 1 is as follows:
   1. The Authority made a jurisdictional error insofar as the Authority materially erred in law in considering or applying s 473DD of the Act to new information provided by the applicant relating to the murder of two family members while they were travelling on the roads to a neighbouring village.

Particulars

1. The Authority found that the new information is "highly relevant" to the applicant's claims (at CB232 [5]).
2. Contrary to AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [12], the Authority did not assess the new information against the criterion specified in s 473DD(b)(ii) and did not make any finding about whether the new information is "credible".
3. Alternatively, contrary to CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]- [42], the Authority erred in construing or applying the term "credible" in s 473DD(b)(ii) as meaning "is true", or something more than "information which is open to be or capable of being accepted as truthful (or accurate, or genuine)", prior to the deliberative stage.
4. By reason of paragraphs (b) and (c), the Authority materially erred in law in concluding there were not "exceptional circumstances" to justify considering the new information.

1. EBB19's submissions in relation to ground 1 were as follows:

(a) the Authority made a jurisdictional error insofar as the Authority materially erred in law in considering and applying s 473DD to "new information" provided by EBB19 relating to the murder of two family members while they were travelling on the roads from the Village to a neighbouring village. In particular, the Authority failed to construe and apply s 473DD in accordance with the relevant legal principles developed in cases including AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 ("AUS17"); CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 ("CSR16"); AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 ("AZT22"); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477 ("BTW17");

(b) the new information submitted by EBB19 comprised:

(i) an account of the recent deaths of EBB19's two cousins aged 15 years old and 20 years old, who were travelling together on the roads between the Village and another village when they were stopped, kidnapped, and poisoned: CB 215;

(ii) the Death Certificates, signed by senior medical officers at a local hospital certifying the deaths of his cousins: CB 221-222; and

(iii) EBB19's Authority Submissions;

(c) EBB19 explained that:

(i) he could not have provided the new information to the Delegate as he was unaware of the new information prior to the Delegate's Decision: CB 215; and

(ii) his family "did not tell him [about the new information] earlier as they knew he had been feeling depressed and thought this information would make him feel worse": CB 215;

(d) the Authority said that it was "obvious" that the new information was "highly relevant" to EBB19's SHE Visa application: CB 232 at [5];

(e) the Authority erred in the way it construed and applied s 473DD: it did not purport to assess either of the criteria in s 473DD(b), because it did not find as a fact whether either criterion was met or not met, and it cannot be inferred that the Authority assessed either of the criteria in s 473DD(b); and even if such an inference were to be drawn, any inferred assessment was legally flawed;

(f) the Authority never expressly referred to s 473DD, nor to either of the criteria in ss 473DD(b)(i) or (ii), nor did the Authority use any of the statutory language (such as "could not have been provided to the Minister before the Minister made the decision", or "credible", or "personal information") other than the phrase "exceptional circumstances". The simplest and fairest explanation for why the Authority only used the language of the latter criterion and not the language of the former is that the Authority only assessed the latter and did not separately turn its mind to (and make findings in respect of) the former. That was contrary to AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ. This error alone is a sufficient basis to grant the relief sought by EBB19;

(g) the Authority's consideration of material relevant to the criterion in s 473DD(b)(i) ("was not, and could not have been, been provided to the Minister before the Minister made the decision") does not permit the inference that the Authority assessed that criterion. At CB 232-233 at [5] the Authority said only as follows:

I have concerns with the explanation provided as to why the applicant's family did not divulge this information until after his protection visa had been refused. It is obvious on the face of it that this information is highly relevant to his application for protection and I find it difficult to believe that they did not provide him with this information because he was feeling depressed. ... Overall, I am not satisfied there are exceptional circumstances to consider this new claim and the death certificates provided.

(h) no amount of 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") can permissibly rewrite the Authority's comments of "difficult to believe" and "[o]verall ... there are [no] exceptional circumstances" into a finding of fact that EBB19 could have provided, but for some reason did not provide, the information to the Minister before the Minister made the decision (being a finding that the criterion in s 473DD(b)(i) was not met). If the Authority had intended to make that finding, the Authority would have had no occasion to consider exceptional circumstances at all, because on that view, neither of the criteria in s 473DD(b)(i) or (b)(ii) were met, and the Authority was prohibited from taking the new information into account whatever its view about exceptional circumstances: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ. The Authority's unequivocal finding about "exceptional circumstances" precludes an inference that the Authority found that neither (b)(i) nor (b)(ii) were met;

(i) similarly, even if it is supposed that the Authority considered material relevant to the criterion in s 473DD(b)(ii) ("is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims"), the Authority did not assess that criterion. Although the Authority expressed "concerns" about the Death Certificates, the Authority did not find as a fact whether that or any other part of the new information was or was not "credible personal information", and the Authority did not express any concerns at all about EBB19's account of the deaths as relayed to him by his family. The Authority found that "[o]verall" it was "not satisfied there are exceptional circumstances". The circumstance that the Authority had concerns about the Death Certificates cannot take the place of a finding of fact that EBB19's account was or was not "credible" within the meaning of s 473DD(b)(ii), and that remains so notwithstanding that the Authority subsequently took into account its concerns about the documentary evidence in considering "exceptional circumstances". In AUS17, the High Court, at [18] per Kiefel CJ, Gageler, Keane and Gordon JJ, stated that:

...[W]hat the Authority should have done, but evidently did not do, was assess the [new information] against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the ... [new information] against the criterion specified in s 473DD(a)

That is because the assessment of each criterion in s 473DD(b) is "a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)" which must be done first: AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ;

(j) the level of detail given by the Authority in expressing "concerns" about the two certificates shows that it "went too far" in the sense discussed in AZT22. In particular, at CB 232-233 at [5] the Authority made all of the following observations (without making any findings of fact):

(i) the certificates are "typed up in a blank piece of paper so it is difficult to verify whether they are official documents";

(ii) it "appears that one death certificate was issued nearly nine months after the death and no reason has been given for this and there is no date of issue for the other";

(iii) although the certificates indicate that "they died of poisoning", they "do not indicate any other information about the circumstances of their deaths"; and

(iv) there is no other evidence that "the people referred to in the certificates are his cousins";

(k) those observations show that the Authority asked itself the wrong question, namely, whether the certificates were "true", thereby committing error: CSR16 at [41] per Bromberg J, and that the Authority failed to ask itself the right question, namely, whether the new information (comprising EBB19's account as well as the Death Certificates) was "credible" in the sense of "capable of" informing the review: CSR16, BTW17, and AZT22;

(l) "Expressed generally, in a case where materiality is in issue, an applicant will succeed if the outcome could have been different as a matter of reasonable conjecture": AZT22 at [76] per Banks-Smith and Jackson JJ. "There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration": Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398 ("Nathanson") at [33] per Kiefel CJ, Keane and Gleeson JJ, and [47] per Gageler J. The standard of reasonable conjecture is "undemanding" and "not onerous": Nathanson at [33] per Kiefel CJ, Keane and Gleeson JJ and [47] per Gageler J;

(m) the Authority itself recognised that the new information was "highly relevant" to the review: CB 232-233 at [5], that being one of the "historical facts" which sets the parameters of reasonable conjecture on this application: MZAPC at [38]-[39] per Kiefel CJ, Gageler, Keane and Gleeson JJ. It is evident that, if the Authority had been permitted to take into account information that it described as "highly relevant", its decision might have been different. It is also reasonable to conjecture that such information, or any concerns that the Authority might have had about such information, might have informed the Authority's consideration of whether to interview EBB19 under s 473DC, which EBB19 had expressly requested if the Authority had such concerns: CB 233 at [8]; and

(n) for the above reasons the Authority made material errors of law constituting jurisdictional error.

(a) this ground is specious. A close inspection of the Authority Decision makes it plain that the Authority's reasons did not breach s 473DD, let alone in a way that materially affected the outcome;

(b) in order to meet s 473DD(b)(i) the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Delegate's Decision was made. To meet the requirement in s 473DD(b)(ii), the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant:

(i) is credible information about an identified individual, or an individual who is reasonably identifiable;

(ii) was not previously known by either the Minister or the referred applicant; and

(iii) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's claims: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 ("Plaintiff M174") at [34] per Gageler, Keane, Nettle JJ;

(c) in embarking upon the deliberative process the notion of "credible" is to be understood as "capable of being believed": CSR16 at [42] per Bromberg J;

(d) contrary to EBB19's argument, the Authority was not required to expressly refer to each provision in s 473DD(b) in order to comply with the holding in AUS17. It is enough that the Authority dealt with the matters prescribed by s 473DD in substance. Nor is there anything in AUS17 which detracts from the ordinary principle that the reasons must be read fairly and as a whole and without an eye keenly attuned to the perception of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;

(e) formulaic consideration of the criteria is not required: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 ("APH17") at [79] per Markovic J:

(f) four things can be noted about the Authority's reasons in the present matter:

(i) first, and importantly, unlike the situation in BTW17, this is not a case where the Authority made some "relatively definitive findings about the credibility of the visa applicant": BTW17 at [76] per Mortimer and Jackson JJ. Apart from expressing some concerns about whether the Death Certificates were capable of being believed, and thus whether in the absence of corroborative material the claim itself was capable of being believed, the Authority made no adverse credibility finding of any kind against EBB19 in its substantive consideration of the protection claims. True it is that it used language such as "credible" in the context of country information, but it cannot be said that this was a case which depended on an adverse credibility assessment;

(ii) second, a fair reading of the Authority Decision at CB 232-233 at [5]-[6] in context reveals that the Authority in fact assessed the claim (comprised, as it was, of EBB19's Authority Submissions and said to be buttressed by the Death Certificates) in the following order:

• (A) it rejected the assertion that the family declined to provide the Death Certificates earlier because of the concern that EBB19 was depressed. In that way, the Authority dealt with s 473DD(b)(i), that is, it "was not, and could not have been, provided to the Minister before the Minister made the decision under section 65"; and
• (B) it then offered a brief deliberation (confined to one paragraph) as to its "significant concerns" with the Death Certificates themselves. This was tantamount to a finding, which requires no particular formulary, that the Death Certificates and the claim were "evidently not believable": s 473DD(b)(ii). In that respect, it is to be recalled that the claim of the cousins' deaths was necessarily bound up, and fundamentally said to be corroborated by the Death Certificates;

(iii) third, having complied with the order of analysis required by AUS17, the Authority said that it was not satisfied that there were exceptional circumstances to "consider this new claim and the death certificates provided": CB 232-233 at [5]; and

(iv) fourth, even if, contrary to the Minister's submission, the Court concludes that the Authority did not comply with s 473DD, it is clear that it would not change the result. As noted, the Authority made no adverse credibility finding anywhere in its reasons, and the case for the SHE Visa was determined essentially on the weight of the country information, which, on the Authority's review, was overwhelmingly against EBB19's specific claims;

(g) there can be no suggestion that any breach was material: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1 at [25] and [30]-[31] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 ("SZMTA") at [45]-[46] per Bell, Gageler and Keane JJ. Expressed generally, EBB19 could only succeed if the outcome could have been different as a matter of reasonable conjecture: MZAPC at [38] per Kiefel CJ, Gageler, Keane and Gleeson JJ. That standard is undemanding: Nathanson at [33] per Kiefel CJ, Keane and Gleeson JJ. As a matter of reasonable conjecture, the new claim was obviously inherently unbelievable, insofar as it depended for its acceptance (as it did) on the Death Certificates being official. That is, were they capable of being believed? For the reasons given by the Authority, they were not;

(h) as such, there is no prospect that the new information would have been accepted by the Authority as "credible" for the purpose of s 473DD, if it had been assessed as EBB19 asserts (in this proceeding) as free from infection; and

(i) the Court should reject ground 1.

1. EBB19 complains that in the Authority Decision at CB 232-233 at [5] the Authority failed to consider either of the two placitas in s 473DD(b) before considering the "exceptional circumstances" requirement in s 473DD(a), contrary to the proper approach outlined in AUS17. At CB 232-233 at [5] the Authority said that:

I have concerns with the explanation provided as to why the applicant's family did not divulge this information until after his protection visa had been refused. It is obvious on the face of it that this information is highly relevant to his application for protection and I find it difficult to believe that they did not provide him with this information because he was feeling depressed. It also appears that the applicant's suspicion that Sunni militants killed his cousins is merely based on their previous history of attacking his community and he has not provided any other supporting evidence of who allegedly committed the attack or why. Furthermore, I have significant concerns with the evidence that has been provided in support of this new claim. The death certificates appeared to be typed up in a blank piece of paper so it is difficult to verify whether they are official documents. It also appears that one death certificate was issued nearly nine months after the death and no reason has been given for this and there is no date of issue for the other death certificate. The certificates do not indicate any other information about the circumstances of their deaths other than they died of poisoning. The applicant has also not provided any other supporting evidence to support his claim that the people referred to in the certificates are his cousins. Overall, I am not satisfied there are exceptional circumstances to consider this new claim and the death certificates provided.

1. The High Court considered the nature of the procedural duties under s 473DD in AUS17 and held that performance of the procedural duty in s 473DD of the Migration Act requires:

(a) the Authority:

(i) first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii); and

(ii) if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a): AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and

(b) that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a): AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.

1. The Authority Decision pre-dated the judgment in AUS17 by more than a year. Unsurprisingly therefore the Authority did not express its findings precisely in accordance with AUS17. The Court notes, however, that no "formulaic consideration" of s 473DD was required: APH17 at [79] per Markovic J; ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 ("ARO17") at [64] per Wigney J.
2. In CSR16 at [41]-[42] per Bromberg J the Federal Court observed as follows:
   1. In my view all that the "credible" element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the "new information" is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the "new information" is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether "new information" should be received by the Authority so that it may be considered at the deliberative stage.
   2. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word "credible" is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is "evidently not credible" (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
3. Albeit in the context of whether an applicant had been afforded procedural fairness when the then Refugee Review Tribunal failed to inform the applicant of allegations contained in an unsolicited letter to which that Tribunal had access, but which it explicitly said it placed no weight upon, a unanimous High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said as follows:

..."Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

1. In BTW17 the plurality in the Full Court of the Federal Court said as follows at [72]-[77] per Mortimer and Jackson JJ (emphasis added):
   1. Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to "get" new information of its own motion, or whether to accept "new information" proffered to it by a visa applicant - in all these circumstances the Authority is entitled to reflect on and assess the review material already before it - both for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions - in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
   2. However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority's reasoning on its own - fresh - consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
   3. As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
   4. That is why, in our opinion, Parliament has used the word "credible" in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, "credible" means capable of being believed: it is the decision whether the information has that character, as well as the character of being "personal" to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
   5. Particularly in a scheme premised on a review "on the papers", there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were "true"). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what "new information" is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
   6. Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to "new information" proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are "exceptional circumstances" justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18, there is some overlap, and the factors in (b) may well inform the factors in (a).
2. In AZT22 at [63]-[64] per Banks-Smith and Jackson JJ the plurality in the Full Court of the Federal Court observed that the "level of detail" given by the Authority in that matter in considering the new information showed that it "went too far":
   1. ...This level of detail, which, taken with the location in the reasons of that assessment, suggests that as a matter of substance the Authority in fact went too far, venturing down the path of undertaking a consideration of the new information that is for all intents and purposes indistinguishable from its fresh review, a course warned against in BTW17 at [73]. Mere use of the language of s 473DD in this part of the reasons does not define the nature of the task undertaken.
   2. In fairness to the Authority, its reasons were published before the guidance provided by CSR16 and BTW17. ... This approach may have been well-intentioned, with a view to efficiency, but in the end it has highlighted the need to properly distinguish the distinct conceptual tasks the Authority was required to undertake on its review of the visa refusal decision.
3. In relation to the Death Certificates the Authority had before it documents purporting to be signed by a senior medical officer at a local hospital attesting to the deaths of two people said by EBB19 to be his cousins and to have been killed by a form of organic phosphorous poisoning: CB 221-222. At no stage was it put by EBB19 that these were "official" death certificates or that they were "official documents", and even if they were not "official documents" some regard must have to be had to the fact that they were purportedly signed by a senior medical officer at a local hospital, a fact not mentioned in the Authority Decision at CB 232-233 at [5]. Further, the fact that they were, as the Authority observed, prepared on plain paper might admit of many explanations at a hospital in remote north-west Pakistan, and might not necessarily, as the Authority seemed to suggest, indicate that they were not genuine documents.
4. The point of all this is that it highlights the difficulty with the Authority's approach to the Death Certificates: at no stage did the Authority look at them with a view to determining if they were information open to or capable of being accepted or being believed, that is whether they might be "credible": s 473DD(b)(ii). That was an error.
5. There is a further difficulty with the Authority's approach to the new information issue. And that is that it not apparent whether it considered whether the requirements of one or other, or both, of the two placitas of s 473DD(b) were met, or not, before determining whether there were "exceptional circumstances" to warrant the consideration of new information under s 473DD(a). Accepting that formulaic consideration of the requirements in s 473DD(b) was not something required of the Authority: APH17 at [79] per Markovic J; ARO17 at [64] per Wigney J, it nevertheless appears that the Authority did not consider the requirements of s 473DD(b) in the Authority Decision, but rather dealt with, and determined, the question of new information solely on the basis of whether there were exceptional circumstances under s 473DD(a) for consideration of the new information. That too was an error.
6. The issue then becomes whether the errors were material, and therefore jurisdictional: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; SZMTA. The Court notes that the standard for establishing materiality is undemanding: Nathanson at [33] per Kiefel CJ, Keane and Gleeson JJ.
7. The short answer to the materiality question is in the affirmative in that the new information could (not would) have made a difference to the outcome of the review by the Authority. The Authority itself recognised this, describing the new information, and, in particular, the Death Certificates, as "highly relevant" to EBB19's SHE Visa application. That could hardly be otherwise in circumstances where the new information related to the alleged death of EBB19's cousins from the Village who were of the same race, religion, and tribal origin as EBB19, and where it was asserted that they were killed by Sunni militants. In those circumstances the undemanding Nathanson test is obviously met.
8. It follows that ground 1 establishes jurisdictional error in the Authority Decision.

1. Ground 2 is as follows:
   1. The Authority made a jurisdictional error insofar as the Authority materially erred in law in applying the 'real chance' and 'real risk' tests under ss 5J(1)(b) and 36(2)(aa) of the Act or otherwise failed to respond to the applicant's claim to fear serious and significant harm in his work.

Particulars

1. The applicant claimed to fear harm in Pakistan due to his work "as a driver": "Given the very poor security situation, I was only able to drive within a very small area. Many attacks occurred and I felt it was only a matter of time until I was killed." (CB89 [9], CB161)
2. The Authority accepted that claim: "I accept the applicant's claim that he worked as a taxi driver...The applicant claims that, given the very poor security situation at the time, he was in danger as a taxi driver as there were attacks on the roads and he was only able to drive within a very small area. I accept this claim ..." [emphasis added] (CB237 [20]).
3. The Authority considered the risk of harm on "the ... [Main] Road", but not any other roads on which the applicant would need to travel for work or otherwise. (CB241 [36]).
4. The Authority found: "I also find that if the applicant were to continue to work as a taxi driver in Pakistan the country information above does not indicate that this will exacerbate his risk of harm." [emphasis added] (CB241 [36])
5. In circumstances where the Authority accepted the applicant's claim to have been in danger due to attacks on the roads, and the Authority found that working as a taxi driver would not "exacerbate" his risk of harm, the Authority materially erred in law in its application of the 'real chance' and 'real risk' tests and otherwise failed to respond to the applicant's claims pleaded above.

1. EBB19's submissions in relation to ground 2 were as follows:

(a) the Authority made a jurisdictional error insofar as the Authority materially erred in law in applying the "real chance" and "real risk" tests under ss 5J(1)(b) and 36(2)(aa), and otherwise failed to respond to EBB19's claim to fear serious and significant harm in his work as a driver in the Kurram District. The essential problem is that the Authority appears to have forgotten about or overlooked material parts of EBB19's claims;

(b) EBB19's employment history involved working as a driver in Pakistan from when he was about 22 years old, apart from three months in Abu Dhabi: CB 79. In his SHE Visa application, EBB19 expressly claimed to fear a real chance of serious harm and a real risk of significant harm in the course of his work as a driver in the Town: CB 89 at [9] and CB 161:

...I was working as a driver. Given the very poor security situation, I was only able to drive within a very small area. Many attacks occurred and I felt it was only a matter of time until I was killed. Accordingly, I felt I had no option except to flee Pakistan.

(c) the Authority noted that claim in its summary of EBB19's claims: CB 234 at [9];

(d) later in its reasons, the Authority expressly accepted the claim: CB 236 at [19]-[20]:

1. ... I accept the applicant's claim that he travelled to Abu Dhabi at the end of 2009 where he worked as a taxi driver for a short time but subsequently returned to Pakistan in mid-2011.
2. I accept the applicant's claim that he worked as a taxi driver on return to Pakistan. The applicant claims that, given the very poor security situation at the time, he was in danger as a taxi driver as there were attacks on the roads and he was only able to drive within a very small area. I accept this claim as country information before me confirms that militants frequently stopped and killed Turis travelling on roads and a significant spike in profiling and targeted killings occurred between 2009 and 2014 along the ... [Main] road, which links Kurram and Peshawar.

(e) the only response given by the Authority to that accepted claim is the following sentence near the conclusion of its reasons: CB 241 at [36]:

...I also find that if the applicant were to continue to work as a taxi driver in Pakistan the country information above does not indicate that this will exacerbate his risk of harm.

(f) the passage must be read fairly to the Authority, in context, having regard to the Authority's reasons as a whole. It is fair to read the Authority's reference to "the country information above" as referring to the information directly preceding the paragraph about dangers on the Main Road outside the Kurram District. It is also fair to read the words "if the applicant were to continue to work as a taxi driver in Pakistan" as referring to EBB19's claim that he had previously worked, and would continue to work, as a taxi driver inside the Kurram District. That geographical distinction is important, as explained below;

(g) significantly, "the country information above" with respect to the Main Road assigned distinctly different risk profiles to drivers who drive alone as "individuals" compared to drivers who drive other people or "large groups" of people: CB 240 at [36]:

...In its 2019 report, [DFAT] stated that Turis reported significantly fewer road attacks in 2018, as military operations have forced militants into the mountains. This has restored confidence within the community for individuals (although not large groups) to travel on the ... [Main] road, although only between dawn and dusk...

(h) two critical points must be made about the Main Road information:

(i) it was addressed to the risk faced by drivers on that particular road outside the Kurram District, not to the risk faced by drivers on other roads inside the Kurram District (which is where EBB19 will be if he continues to work as a driver); and

(ii) it found restored confidence within the community only "for individuals" driving by themselves between dawn and dusk, not for those who drive other people or groups of people (which is what EBB19 will be doing if he continues to work as a driver);

(i) there is nothing in the Authority Decision that responds to the risk faced by drivers on roads inside the Kurram District, nor is there anything responsive to the dangers for drivers who earn an income by driving other people, despite the Authority's earlier clear acceptance that EBB19 "was in danger as a taxi driver as there were attacks on the roads": CB 236 at [20]);

(j) returning to the Authority's concluding words that the Main Road information does "not indicate that this will exacerbate his risk of harm": CB 240-241 at [36] (emphasis added), it is evident that the Authority failed to respond to EBB19's claim: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 ("Dranichnikov") at [24]-[25] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]), or to engage in an "active intellectual process" with respect to that claim: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 ("Carrascalao") at [43]-[46] per Griffiths, White and Bromwich JJ, or that the Authority has misapplied the "real chance" and "real risk" tests such that its review has miscarried. Information that did not apply to EBB19's circumstances was found not to exacerbate his risk of harm. The words "his risk of harm" can only mean the risk of harm earlier accepted by the Authority: CB 236 at [20]. EBB19 "should not be left to guess what role" (if any) his claims and submissions, or that risk of harm, played in the Authority's review: the reasons in the Authority Decision "fall on the wrong side of the line": Navoto v Minister for Home Affairs [2019] FCAFC 135 at [87] and [89] per Middleton, Moshinsky and Anderson JJ; Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [49] per Lindgren, Rares and Foster JJ. There has been a constructive failure to conduct the review;

(k) for completeness, it would not have been sufficient for the Authority to find that EBB19 could avoid the risk of harm by staying inside the Kurram District and never driving outside the Kurram District. That would have engaged the principles described in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514 ("SZSCA"), in which an Afghani national who worked as a truck driver in Kabul claimed to fear harm driving on the roads around his home area. The Tribunal found that "the risk of persecution would only arise in the area constituted by the roads on which he had been driving outside of Kabul, and he could avoid this area ..." "... if he remained in Kabul and did not travel on the roads between Kabul and Jaghori": SZSCA at [12] and [18] per French CJ, Hayne, Kiefel and Keane JJ. The High Court held that the Tribunal materially erred in law in failing to ask itself "whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him": SZSCA at [33] per French CJ, Hayne, Kiefel and Keane JJ; and

(l) had the Authority responded to and engaged with EBB19's claims according to law, the Authority Decision might have been different. Accordingly, the errors were jurisdictional.

(a) the Authority correctly referred to the "real chance" test at several points in its reasons: CB 235 at [11], 241 at [39] and 242 at [43]. This is not one of those cases where the decision-maker begins and ends with the correct test, but goes awry in between: Wu Shan Liang, CLR at 271 per Brennan CJ, Toohey, McHugh and Gummow JJ;

(b) the Authority considered EBB19's claim to work as a taxi driver at CB 236 at [20]-[21], and especially the country information at CB 237-239 at [22]-[29]. Crucially, the Authority found at CB 238-239 at [29] that "no credible evidence has been provided that such attacks in surrounding villages [where EBB19 claimed to be travelling] have occurred since 2017 and there is no country information before [me] to corroborate this claim". This finding, being a finding of higher generality, necessarily rejected EBB19's claim and the country information he relied on: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [91] per McHugh, Gummow and Hayne JJ ("Yusuf"); and

(c) the Authority found that EBB19 would not face a "real chance" of harm as a taxi driver. This was made clear in the Authority's numerous findings about the state of the security situation and culminated in the statement at CB 240-241 at [36] that the "security operations have succeeded in preventing attacks on ... [the Main] road in recent years and there are no reports before me of recent attacks against Turis on this road". Accordingly, the impugned sentence that EBB19 continuing to work as a taxi driver would not "exacerbate his risk of harm" can only mean the "exacerbate his risk of a real chance of harm", of which the Authority was not satisfied EBB19 would face.

1. In the Authority Decision the Authority found at:

I accept the applicant's claim that he worked as a taxi driver on return to Pakistan. The applicant claims that, given the very poor security situation at the time, he was in danger as a taxi driver as there were attacks on the roads and he was only able to drive within a very small area. I accept this claim as country information before me confirms that militants frequently stopped and killed Turis travelling on roads and a significant spike in profiling and targeted killings occurred between 2009 and 2014 along the ... [Main Road], which links Kurram and Peshawar.

It has been submitted that, while there is an army presence in ... [the Town] it does not prevent extremists from perpetrating attacks in the surrounding villages, including in the applicant's village. However, no credible evidence has been provided that such attacks in surrounding villages have occurred since 2017 and there is no country information before to corroborate this claim.

I have also considered the applicant's journey back to ... [the Town]. Country information before me also indicates that Shia Turis from Upper Kurram can only access Peshawar (the closest major Pakistani city) via ... [the Main Road] that passes through Sunni-dominated Lower Kurram. I accept that the applicant will likely return to his home village via the ...[Main] Road to get to [the Town]. In 2016, DFAT indicated that the...[Main] 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. This has restored confidence within the community for individuals (although not large groups) to travel on the ... [Main Road], although only between dawn and dusk. It has been submitted that the fact that the applicant's community can only use the roads during daylight suggests there remains a strong threat of attack against his community. I am not satisfied the country information suggests they can only use this road during daylight but that they are more confident to do so and, regardless, the country information indicates that security operations have succeeded in preventing attacks on this road in recent years and there are no reports before me of recent attacks against Turis on this road. I also find that if the applicant were to continue to work as a taxi driver in Pakistan the country information above does not indicate that this will exacerbate his risk of harm.

1. EBB19 must do more than assert that a failure to mention a particular matter leads to an inescapable inference that the Authority overlooked it: Carrascalao at [48] per Griffiths, White and Bromwich JJ. Nevertheless, it is the Authority's function to respond to the claims that EBB19 advanced: Dranichnikov at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J, or as the High Court put it in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304 ("Plaintiff M1/2021") at [24] per Kiefel CJ, Keane, Gordon and Steward JJ to "consider" the review material, that is to "read, identify, understand and evaluate" it. In 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 the Full Court of the Federal Court observed that:

...Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. It can be seen from the passages in the Authority Decision quoted at [29] above that the Authority accepted that EBB19 faced danger working as a taxi driver "on the roads" and that "he was only able to drive within a very small area", and that it did so based on country information:

(a) confirming "militants frequently stopped and killed Turis travelling on roads": CB 236 at [20]; and

(b) indicating a significant spike in killings between 2009 and 2014 on the Main Road: CB 236 at [20].

1. The distinction made by the Authority between Turis travelling "on roads" being stopped and killed and a spike in killings on the Main Road from 2009 to 2014 is important. It shows that Turis were being killed on roads other than the Main Road, and it does so on the basis of current, that is 2019, country information, specifically the 2019 DFAT Report: CB 236 at [20] at fn 5. The distinction is important because whilst the Main Road might have been made safe: CB 240-241 at [36], and whilst there may have been no reports of attacks in villages since 2017 to 2019: CB 238-239 at [29], the Authority's reasoning does not address the danger on other roads between villages in the Kurram District on which EBB19 would be seeking to ply his occupation as a taxi driver, and upon which the Authority accepted that in 2019 country information confirmed "militants frequently stopped and killed Turis": CB 236 at [20].
2. It was a central integer of EBB19's claim that he would be exposed to a real chance of serious harm if he returned to plying his occupation as a taxi driver on the roads between villages in the Kurram District (and even if that area was small). In the circumstances, that central integer was not considered or taken into account in the Authority Decision. It ought to have been considered: Dranichnikov at [24]-[25] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]) and at [78] per Kirby J, and evaluated: Plaintiff M1/2021 at [24] per Kiefel CJ, Keane, Gordon and Steward; WAEE at [47] per French, Sackville and Hely JJ; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 ("MZYTS") at [52] and [54] per Kenny, Griffiths and Mortimer JJ, even if it were then to be rejected: MZYTS at [54] per Kenny, Griffiths and Mortimer JJ. In the circumstances the Authority Decision is therefore affected by error.
3. There was a possibility that a different outcome of the Authority Decision could (not would) have resulted had the Authority considered and evaluated the claim as it related to EBB19 driving between villages in the Kurram District. That much is evident from the Authority's seeming acceptance of the danger posed by working as a taxi driver on roads upon which there were attacks by militants: CB 236 at [20]. The error is therefore material and, consequently, jurisdictional.

Whether error in applying the "real chance" and "real risk" tests

1. It also follows from the failure to consider the claim as made that there was a failure to properly apply the "real chance" and "real risk" tests under ss 5J(1)(b) and 36(2)(aa): MZYTS at [35]-[36] per Kenny, Griffiths and Mortimer JJ.
2. It follows that ground 2 establishes jurisdictional error in the Authority Decision.

1. Ground 3 is as follows:
   1. The Authority failed to consider an integer of the applicant's claim that he was at risk of harm upon return to Pakistan on account of an increase in the number of people killed by suicide attacks in 2018 as compared to 2017, and/or failed to consider country information in support of this integer of the applicant's claim.

Particulars

1. In a submission to the Authority dated 17 September 2019, the applicant claimed to be at risk of harm on return to Pakistan on account of an increase in the number of people killed in suicide attacks in 2018, as compared to 2019 (CB218).
2. The Authority gave no consideration to this claim and/or failed to consider country information in support of it, being the Department of Foreign Affairs and Trade's 20 February 2019 publication titled DFAT Country Information Report Pakistan.

1. EBB19's submissions in relation to ground 3 were as follows:

(a) in a submission to the Authority dated 17 September 2019, EBB19 claimed to be at risk of harm on return to Pakistan on account of an increase in the number of people killed in suicide attacks in 2018, as compared to 2017: CB 217;

(b) this claim was made based on information contained in the 2019 DFAT Report, including that:

2.68 .... while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

(c) the Authority considered the 2019 DFAT Report at CB 237-238 at [25]-[26] but failed to give consideration to the above information contained in it which indicated that even though the number of attacks had fallen, the number of people killed had increased. Had the Authority considered this information the Authority would not have found at [26] that the evidence before the Authority shows a decrease in "the number and severity of attacks";

(d) in so doing, the Authority also failed to consider EBB19's claim to be at risk of harm on return to Pakistan owing to increase in the number of people killed, and thereby failed to consider an integer of EBB19's claims: Yusuf at [69] per McHugh, Gummow and Hayne JJ; and

(e) to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55]- [63] per Black CJ, French and Selway JJ; Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1114 at [26]- [30] per Hespe J. The Authority has committed a material jurisdictional error in failing to do so: Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287 at [69] per Feutrill J, referring to Nathanson.

(a) the Authority considered EBB19's submissions, but preferred the country information it relied on. This is shown by the Authority's:

(i) express reference to EBB19's submissions: CB 232-233 at [4]-[8]; and

(ii) rejection of EBB19's submissions at CB 238-239 at [29]:

However, no credible evidence has been provided that such attacks in surrounding villages have occurred since 2017 and there is no country information before [me] to corroborate this claim.

(b) this is plainly one of those cases that fits within the oft-cited passage in WAEE at [46]-[47] per French, Sackville and Hely JJ as to the standard required of an administrative decision-maker when referring to evidence and material, and inferences which cannot easily be drawn where the claim (or material) has otherwise been referred to and the reasons are comprehensive; and

(c) what happened in this matter is clear: the Authority considered EBB19's claims, but preferred the country information it relied on. There was no failure to consider an integer of the claims in this case, or a failure to consider material.

1. As is often observed in relation to country information the weight to be placed upon it 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 JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
2. The Court must bear in mind that:

(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 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 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;

(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; 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 at [35] per Gummow ACJ and Kiefel J; and

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

1. At CB 237-238 at [24]-[26] the Authority observed as follows:
   1. In a post-interview written submission to the delegate, it has been submitted that many attacks have been perpetrated in the applicant's home area in recent years and cites reports about several militant attacks that occurred targeting Turi Shias in ... [the Town] in 2017. Other sources before me also refer to these attacks. That year, the government of Pakistan announced another countrywide military operation and initiated a project whereby they installed closed-circuit television cameras throughout ... [the Town]. Further, a total 164 counter terrorism operations were carried out in all agencies of FATA in 2017 where security forces claimed to have killed 268 terrorist and destroyed hideouts of terrorist belonging to Islamic State of Khorasan (IS-K), Lashkar-e-Islam, TTP and TTP-Jamat-ul-Ahrar. To combat the growing threat of terrorist groups based in Afghanistan, the fencing of 2,611 km long and porous border was started at the end of April 2017 and will be completed by 2020. The Pakistan Army and Frontier Corps are also reportedly constructing new forts and border posts to improve surveillance and defensibility which are being constructed along the border with some 230 already completed. In 2018, the Pakistani Government announced its second National Security Policy.
   2. In its recent report, the Australian Department of Foreign Affairs and Trade (DFAT) acknowledges a trend of decreased reports of attacks against Turis in 2018 and states that while this trend is likely to continue in 2019, nonetheless, attacks and violence against Turis can, and may still occur. DFAT ultimately assessed that Turis in Kurram still face a moderate risk (sufficient incidents to suggest a pattern of behaviour) of sectarian violence from militant groups, because of their Shia faith. It also noted that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. It has also been submitted that, given the infrastructure in the FATA has been ravished by the conflict and tribal set up in the region, this information is applicable to the situation in the FATA and therefore it is unlikely that durable change will occur.
   3. However, I give weight to the evidence before me that the above government operations and associated counter-terrorism activities significantly decreased the number and severity of attacks on Turis strongly indicating their overall effectiveness. Sources also indicate the security situation in the FATA region improved substantially in 2018 and there was a reported decrease in terrorism and counter terrorism incidents in all agencies of the FATA. In 2018, major Pakistani militant groups suffered huge losses both in terms of damage to their operational capacities as well as elimination of their leaders, including in Afghanistan. It has been submitted that the applicant originates from tribal areas where there are not functioning authorities. However, in 2018 the Pakistani government passed the 25th constitutional amendment, which merged the erstwhile FATA with adjacent Khyber Pakhtunkhwa province which commentators have claimed will pave way for installing a proper law and order mechanism, which in the long run will be able to forestall any incipient militant group. By February 2018, the Turi community estimated 40% of military fencing in Kurram was complete, decreasing border permeability. The Pakistan Institute for Conflict and Security Studies noted in April 2019 that despite on-and-off militant attacks in various parts of FATA, normal life is returning to the region. An article from July 2019 also notes that reconstruction effort in the area has established roads, bridges and telecommunication networks, schools, health facilities and markets and the government organised its first ever provincial elections in FATA in mid- 2019 and courts have been established in Kurram District
2. In making those observations the Authority considered the 2019 DFAT Report at CB 237-238 at [24]-[26] at fnn 8, 9, 10, 11, 13 and 14, and plainly much of the material related to the number and severity of attacks particularly upon Turis, both in the Kurram District and the former Federally Administered Tribal Areas ("FATA") (of which the Kurram District was part). But in that regard the Authority did not consider just the 2019 DFAT Report, but also a much wider range of country information, including:

(a) the EASO (the former European Asylum Support Office) 2018 country report for Pakistan;

(b) international press reports and articles from Reuters, BBC News, Radio Free Europe/Radio Liberty, Eurasia Review, and the Voice of America;

(c) Pakistani press reports from Dawn, the Express Tribune, The News International, and the Tribal News Network;

(d) the 2017 FATA Annual Security Report;

(e) a 2018 International Crisis Group report entitled "Shaping a New Peace in Pakistan's Tribal Areas";

(f) a 2019 Pakistan Institute for Conflict and Security Studies report entitled "Pakistan's Annual Security Assessment 2018"; and

(g) a 2019 Pakistani Institute for Peace Studies report entitled "Pakistan Security Report 2018";

1. The combination of factual material and country information considered by the Authority provided a proper basis for the Authority to draw the conclusions that it did, even if those conclusions were at odds with some information in the 2019 DFAT Report in relation to the security of Turis in the Kurram District. In the circumstances there was an adequate evidentiary basis for the Authority's observations, and those observations were not observations (or findings) which no reasonable decision-maker could make, and were not therefore illogical or irrational (or lacking in an intelligible justification): SZMDS at [130]-[135] per Crennan and Bell JJ. In essence, what EBB19 seeks to have the Court do in relation to ground 3 is to remake the factual findings made in the Authority Decision, and to thereby undertake impermissible merits review: Wu Shan Liang.
2. It follows from the above that ground 3 is not made out and does not establish jurisdictional error in the Authority Decision.

(a) grounds 1 and 2 of the Amended Judicial Review Application have been made out, and that the errors thereby disclosed are material and constitute jurisdictional error in the Authority Decision; and

(b) ground 3 of the Amended Judicial Review Application has not been made out and does not establish jurisdictional error in the Authority Decision.

1. It follows, therefore, that the Authority Decision is affected by jurisdictional error. Writs of certiorari and mandamus will accordingly issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 22 August 2019, and determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
2. The Court will hear the parties as to costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.