EUI19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 594

EUI19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 594 | Case summary | Zoe

[72]

(a) had regard to the review material given by the Secretary under s 473CB: CB 309 at [3], and the November 2019 Submissions insofar as they contained arguments against the findings of the Delegate: CB 309 at [5];

(b) did not consider:

(i) the new information provided in the Statutory Declaration and the November 2019 Submissions. It was not satisfied that there were exceptional circumstances to justify considering that new information: CB 309-311 at [6]-[12]. In making that finding, the Authority found that EUI19 had had "ample opportunity" to present his claims: CB 310 at [9], and that aspects of the narrative presented in the new information were "highly unlikely": CB 311 at [10], "speculative": CB 311 at [10], and unsupported by "any evidence": CB 311 at [11]; and

(ii) two news articles EUI19 provided to the Authority. The Authority expressly noted that the articles predated the Delegate's Decision: CB 311 at [13], and was otherwise not satisfied that there were exceptional circumstances to justify considering them: CB 311-312 at [13]-[15];

(c) EUI19 asked for an opportunity to explain the content of the November 2019 Statutory Declaration in an interview. Having regard to the statutory scheme, the fact that EUI19 had already advanced claims and evidence with the assistance of a migration agent, and the lack of particularity about what further evidence he was intending to submit, the Authority declined to exercise its power under s 473DC(3) to interview EUI19: CB 312 at [16]-[18];

(d) the Authority made the following findings in relation to EUI19's claims:

(i) EUI19 is a practising Shia Muslim from the Turi tribe and of Pashtun ethnicity: CB 314 at [24];

(ii) on return to Pakistan EUI19 will very likely resume living with his family in Parachinar in the Kurram District: CB 314 at [24];

(iii) EUI19 got into a fight with Sunni students and was subsequently dismissed from his college for non-attendance. EUI19 was not of any adverse interest to any person by reason of this incident: CB 314-315 at [26];

(iv) EUI19's father was a village elder and may have been the subject of threats by the Taliban in 2007. EUI19's uncle's shop was partially destroyed due to a bomb blast. However, despite the threats from the Taliban and the bomb blast, the family farm continues to operate and is successful enough that it can meet the living expenses of multiple people including EUI19, his wife, and his daughter: CB 315 at [28];

(v) EUI19 was the subject of an incident where he was shot at and which required one of his toes to be amputated. The Authority was not satisfied that EUI19 was identified and targeted by the Taliban, but instead found that he was the subject of a random opportunistic attack. It also did not accept that EUI19's family remained at home and barely worked on the farm after the attack: CB 316 at [30];

(vi) was not satisfied that EUI19 was known or targeted by the Taliban, nor was it satisfied that he had an adverse profile with the Taliban or with any other group while in Pakistan: CB 316 at [31];

(vii) did not accept that EUI19 is at risk of harm because of his family's profile. It considered the chances of EUI19 facing any harm or being the subject of any interest to the Taliban or other extremists groups for reasons of his father or family's profile or as a result of the past incidents to be no more than remote: CB 316 at [31];

(viii) accepted that Shias living in the Kurram District encountered sectarian violence and attacks at the hands of militants whilst EUI19 was living in Parachinar, but a review of country information led it to conclude that the security situation in EUI19's home area had significantly improved since EUI19's departure: CB 316-318 at [32]-[38];

(ix) was not satisfied that EUI19 will be perceived as pro-Iran or pro-United States of America or that he would be targeted on return by militant groups such as the Taliban: CB 319 at [39];

(x) found that the chance of EUI19 facing any harm due to his Pashtun ethnicity, Shia religion, or the fact that he was a Shia Pashtun from Parachinar, to be no more than remote: CB 321 at [45];

(xi) found the chances of EUI19 facing any harm by reason of his residence in Australia, as a returned asylum seeker, or encountering any violence while travelling to his village in Parachinar to be remote: CB 321 at [49];

(xii) was not satisfied that there was a real chance EUI19's foot injury would threaten his capacity to subsist now or in the foreseeable future: CB 322 at [52];

(xiii) found that the chance of EUI19 being targeted or killed in bombings or shootings to be remote: CB 323 at [55]; and

(xiv) there are healthcare facilities in Parachinar for EUI19 to access should he require them, such that he does not have a well-founded fear of persecution by reason of his mental or physical health conditions: CB 323-324 at [57]-[58]; and

(e) the Authority concluded, on the basis of those findings, that EUI19 did not meet:

(i) section 36(2)(a): CB 324 at [60]; or

(ii) section 36(2)(aa): CB 325 at [65].

[76]

This information was not new information because it was implicit in the Applicant's information that his father was an elder and that the Applicant was the eldest son, and that he might also be involved in community and religious affairs.

(b) Further or in the alternative to Particular (a) to this Ground, the Authority did not consider whether the information there set out met the requirements of section 473DD(b) of the Act before finding that there were not exceptional circumstances to consider it pursuant to section 473DD(a). Had it considered the information against section 473DD(b), it must have found that the information was "credible personal information" which may have affected the decision, such as to meet section 473DD(b)(ii) of the Act, which would have informed the assessment of exceptional circumstances under section 473DD(a).

(CB 310-311, Decision and reasons [6]-[12])

(c) Further or in the alternative to Particulars (a) and (b) to this Ground, it was not reasonably open to the Authority not to find "exceptional circumstances" to consider:

(i) the information set out in Particular (a); (CB 309-311, [6], [10]-[12])

(ii) the information about an attack on people travelling from Sadda; (CB 293-294; CB 309-311, [6], [11], [13]) including the Applicant's evidence (CB 299, [8]) and an article titled "Double murder sparks violent protests in Kurram" published on 16 October 2019. (CB 293-294)

(iii) the information that the official reports do not reflect the severity of the situation in the Parachinar area and in Pakistan; (CB 309-311, [6], [11], [13])

(d) The Authority erred in interpreting or applying section 473DC of the Act in not seeking new information at interview about the Applicant's role as eldest son of an elder in his community, when this issue was not one considered by the delegate.

(CB 312, Decision and reasons [16]-[18])

(e) The Authority erred in interpreting or applying the terms "real chance" and well-founded fear" of persecution in section 5H(1), 5J(1) and 36(2)(a) and "real risk" of significant harm in section 36(2)(aa) of the Act, shown by its finding that the Applicant did not have a real chance of suffering relevant harm as a Turi Shia from Parachinar in his home area of Kurram, despite:

(i) its acceptance of his personal and family background as a Turi and practising Shia from Parachinar (CB 314, [22]-[24]);

(ii) its acceptance that he ceased his tertiary education because Sunni students abused him and he got into a physical fight with them. (CB 77, [34]-[35]; CB 314, [25]-[26]))

(iii) its acceptance of his father's role as an elder, and having been threatened by the Taliban; (CB 315, [28])

(iv) its acceptance of the attack on his uncle's shop; (CB 315, [28])

(v) its acceptance of the Applicant having been shot and injured; (CB 316, [30])

(vi) the volume of information before it relating to the situation of Shias in Pakistan, including material submitted to the Minister's department (CB 170-181) and to the Authority (CB 286-289), as well as other material, which it apparently accepted and relied on, including the material it cited explicitly in its Reasons, at CB 320-321, [42]-[45]; CB 323-324, [63]-[66])

[96]

(a) it is now well-settled that before making a finding on whether there are exceptional circumstances to consider new information, the Authority must first consider s 473DD(b): AUS17. It should be borne in mind however that to comply with s 473DD, the Authority is not required to engage in "any particular formulaic consideration of s 473DD(b)": APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 ("APH17") at [79] per Markovic J. Rather, what is important is whether the substance of s 473DD(b) has been considered: APH17;

(b) the Authority did consider s 473DD(b) before finding that there were no exceptional circumstances to justify considering EUI19's further integers about assuming his father's role as a village elder and being expected or encouraged to be involved in community and religious affairs. This is because the substance of s 473DD(b) was considered in the Authority Decision at CB 310-311 at [9]-[10], as follows:

(i) at CB 310 at [9] the Authority rejected EUI19's submission that he could not have presented that new information to the Delegate because of English language limitations, poor health or lack of capacity to engage with the visa process. It took into account the fact that he was represented by a migration agent and solicitor and assisted by an interpreter. The Authority noted that EUI19 had made extensive submissions after the Delegate Interview. The Authority also recorded that it listened to the Delegate Interview recording and could not discern EUI19 experiencing any difficulty presenting his case. These findings were all directed at s 473DD(b)(i) as to whether EUI19 could have provided the new information before the Delegate's Decision was made; and

(ii) at CB 310-311 at [10] the Authority found that prior to the referral of the matter to it EUI19 did not give any evidence about him being expected to engage in community or religious affairs upon his return. It then expressly contrasted his evidence to the Delegate that his father had decided it was not safe for him to remain in Pakistan, and therefore decided that EUI19 should leave the country, which meant that it was "highly unlikely that his family would expect him or encourage him to undertake any role that would compromise his safety". It then also found that the submission was "speculative in nature" and "made without any evidence of the applicant's family expectation". These findings were all directed at s 473DD(b)(ii) as to whether the information was credible personal information which may have affected the consideration of EUI19's claims. The tenor of the Authority's finding was that the information was not credible because it was speculative and inconsistent with his previous claims. It was obvious that the Authority knew that that information was personal information in the sense that it was specific to EUI19. However, it simply was not satisfied of its credibility.

[97]

In the Authority Decision at CB 310-311 at [9]-[10] the Authority said as follows:
1. While I acknowledge that factors such as English language limitations, poor health, and lack of capacity to engage in the process has the potential to hinder a person's ability to present evidence, I am not convinced that the applicant, in this case, was adversely impacted by these factors. I note that the applicant had the assistance of a registered migration agent and solicitor and an interpreter in making his application and throughout the process before the delegate. The applicant's representative was present at the SHEV interview, made oral submissions to the delegate and provided the delegate with extensive post-interview submissions and medical evidence. Further, having listened to the interview, the applicant was given ample opportunity to discuss his claims, provide further information and was given a break to talk to his representative and provide additional information and comments. It is not at all apparent that the applicant lacked capacity or that his ability to present his case was in any way impacted due to his lack of English language abilities or any mental or physical health conditions. Further, I do not accept that the applicant in this case has been adversely impacted by the nature of the IAA's review process, in that he has had the opportunity to present arguments and further information to the IAA with the assistance of a Solicitor and registered migration agent.
2. While it is submitted that as the eldest son, the applicant is likely to be expected and encouraged to get involved with community and religious affairs and take over his father's role as an elder at some time in the future, I note that the applicant did not give any evidence to this effect at the SHEV interview. Nor does his evidence in his SHEV statement or statutory declaration to the IAA suggest that he would or is expected to engage in community or religious affairs on return to his village. To the contrary, the applicant gave evidence that his father decided that it was not safe for him to remain in Pakistan and they made the decision for him to leave the country, which suggests that it is highly unlikely that his family would expect him or encourage him to undertake any role that would compromise his safety. Further, the submission is speculative in nature and is made without any evidence of the applicant's family's expectation.
At CB 310 at [9] the Authority plainly considered whether or not the new information could have been provided prior to the Delegate's Decision. It specifically noted EUI19's submissions as to language limitations, health and lack of capacity as having "the potential to hinder a person's ability to present evidence" before going on to consider why that was not the case in this case, setting out the various and numerous opportunities that EUI19 had to provide the new information prior to the Delegate's Decision. In the circumstances, the Authority considered whether or not the new information met s 473DD(b)(i), and determined that it did not.
Consideration of whether s 473DD(b)(ii) has been met involves different considerations.
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.
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 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said as follows:

[99]

In BTW17 at [72]-[77] per Mortimer and Jackson JJ the plurality in the Full Court of the Federal Court said as follows:
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 - but 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 [v Minister for Immigration and Border Protection [2018] FCA 474] 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 [v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24] at [23]-[26]], there is some overlap, and the factors in (b) may well inform the factors in (a).
In AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 ("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.
The new information was information which needed to be assessed against the requirements in s 473DD(b)(ii), and if that had been properly considered the Authority ought to have found that the new information:

[103]

(a) further or in the alternative to particulars (a) and (b) to this ground, it was not reasonably open to the Authority not to find "exceptional circumstances" to consider a number of pieces of information which it declined to do;

(b) first, it should have found exceptional circumstances to consider the information that EUI19 may be at greater danger of suffering relevant harm if he returned and was pressed to take a greater role in community and religious affairs: CB 309-311 at [6] and [10]-[12];

(c) the Authority had accepted a number of factors which in combination aggravated the risk of harm to EUI19: that EUI19's father had been threatened by the Taliban; that his uncle's shop had been bombed: CB 315 at [28], and the Authority implicitly accepted EUI19's claim "that this blast was in response to his father's denial of the Taliban's request to use their land and tractor": CB 315 at [27]. The Authority had also accepted that EUI19's father was well respected, an elder: CB 315 at [27], and the family composition and background: CB 314 at [24], implicitly accepting that EUI19 was his eldest son;

(d) with this background, the Authority, acting reasonably, ought to have found exceptional circumstances to consider information which may have assisted it to decide if EUI19 had a real chance of suffering relevant harm;

(e) to have found exceptional circumstances would not have obliged the Authority to have accepted the information - simply to have thought about it. Instead, by not finding "exceptional circumstances", it disabled itself from considering potentially decisive information about EUI19;

(f) second, the Authority ought to have found exceptional circumstances to consider the information about an attack on people travelling from Sadda: CB 293-294 and 309-311 at [6], [11] and [13]. This was EUI19's own evidence: CB 299 at [8], and a recent report dated 16 October 2019, about an attack just 13 kilometres from Parachinar. It was very important as evidence of recent murderous instability in the region of EUI19's home, and was therefore particularly relevant when the reason the Authority affirmed the Delegate's Decision was that the Authority thought there was no real chance of relevant harm in EUI19's area of his country; and

(g) third, the Authority ought to have found exceptional circumstances to consider the information that the official reports do not reflect the severity of the situation in the Parachinar area and in Pakistan: CB 309-311 at [6], [11] and [13]). Had it done so, it may have been more cautious in assessing (contrary to the Delegate, just a month earlier) that there was no real chance of harm to EUI19 in his home area.

[107]

(c) the lack of a definition means that whether there are exceptional circumstances in a given matter will inevitably involve the Authority weighing up the facts of a given case and an applicant's submission as to why their circumstances are exceptional in the sense that they are not regular, routine or normally encountered. That kind of decision-making is one in which reasonable minds may very will differ: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 ("SZMDS") at [131] per Heydon, Crennan, Kiefel and Bell JJ;

(d) the Authority gave intelligible reasons: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 ("Li") at [28] per French CJ and at [76] per Hayne, Kiefel and Bell JJ, for concluding that there were no exceptional circumstances to justify considering EUI19's new information. For instance:

(i) the Authority found that EUI19 did not experience any difficulties presenting his case to the Delegate. Rather, he made extensive submissions and was legally represented, and supported by an interpreter: CB 310 at [9];

(ii) the Authority found EUI19's new assertions that he would be expected to engage in community or religious affairs to be inconsistent with his prior claims, speculative and unsupported by any evidence: CB 310-311 at [10];

(iii) the Authority found that EUI19's evidence about an incident in Sadda to be lacking in detail and unsupported by evidence: CB 311 at [11]; and

(iv) in relation to country information articles, at CB 311 at [13], the Authority noted the dates of the articles and the substantive content in each article. It then found at CB 311-312 at [14] that there were no exceptional circumstances having regard to EUI19's background (including claimed history as a victim of trauma), the relevance of the material and the limited form of review contemplated under Pt 7AA; and

(e) that it must be emphasised that the test for unreasonableness is "necessarily stringent": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 ("SZVFW") at 11 per Kiefel CJ, "extremely confined": SZVFW at [52] per Gageler J, or requires something in "the realm of the extraordinary": SZVFW at [70] per Gageler J. There was nothing unorthodox about the Authority's reasoning. Quite the contrary, the Authority's reasoning was reasonable, rational and open to it.

[112]

EUI19 therefore had to advance whatever evidence or argument he wished to advance in support of his SHE Visa application, and the Authority had to decide whether the claim was made out, but the Authority was not required to uncritically accept all or any of the claims made by EUI19, or have rebutting evidence before it could decide not to accept EUI19's claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481_,_ CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1, FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]- [37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Generally speaking the assessment of the information allegedly not considered by the Authority in relation to EUI19 was a matter for the Authority: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Save for one exception, the circumstances considered by the Authority here fell within its remit to make findings of fact, and it did so on the basis of intelligible reasons based on the material before it. The exception to that is the new information with respect to the risk of harm posed to EUI19 if he were to return to Pakistan as the eldest son of a village elder, which was evidence or information which was material to a consideration of the risk of assessment of harm upon EUI19's return to Pakistan, that it was unreasonable not to have considered and which was not properly considered for the purposes of s 473DD(b)(ii).
In the circumstances, there was therefore no error in relation to the Authority's consideration of exceptional circumstances in relation to the information the Authority did consider because the Authority made a decision which had an evident and intelligible justification: Li at [28] per French CJ and [76] per Hayne, Kiefel and Bell JJ, but the Authority did fall into error in unreasonably failing to consider whether the new information in relation to EUI19 being the eldest son of an elder of the village who might later assume his father's role as an elder constituted exceptional circumstances under s 473DD(a). In this regard, there was therefore an error. The error was material and therefore jurisdictional in relation to particular (c) of ground 1 on essentially the same basis as particular (b) of ground 1.

[117]

In the Authority Decision at CB 312 at [16]-[18] the Authority explained its rationale in refusing to interview EUI19, as follows:
1. The applicant's statutory declaration indicates that he wishes to explain what he has said in his statutory declaration in person to the reviewer. The submission to the IAA also requests the IAA exercise its discretionary power under s.473DC(3) of the Act to invite the applicant to give oral evidence at an interview, if the IAA affirms the delegate's decision or makes findings against the applicant's credibility or different factual findings to the delegate.
2. As noted above, legislative framework governing the IAA provides for an exhaustive statement of the natural justice hearing rule. There is no obligation on the IAA to obtain new information or invite the applicant to provide new information, even if the IAA affirms the delegate's decision or arrives at different factual findings to the delegate. Although I have reached a different finding about the applicant's real chance of harm in Kurram agency, I have arrived to that conclusion on the material before the delegate which the applicant was aware of. Further, the applicant has provided the delegate and the IAA with submission about his claimed fear of harm and security situation in his home area and I am satisfied that he has had a real opportunity to address this issue.
3. In stating that he wishes to explain what he has said in his statutory declaration, the applicant has not specified what further explanation he wishes or is able to provide. As indicated earlier, the applicant, with the assistance of a migration agent, presented evidence to the delegate at the interview and provided lengthy post-interview submissions. The applicant has been assisted by Refugee Legal, a specialist refugee migration firm, in presenting further evidence and submission to the IAA which I have considered. It is not apparent as to what further information the applicant wishes to adduce or what aspects of his statutory declaration he wishes to explain further. In light of these matters, while I have considered whether to exercise my discretion to invite the applicant to give oral evidence or otherwise provide further information, I have decided in the circumstances that it is not warranted.
There is no dispute that the Authority is entitled to reach its own conclusion on the same information as was before the Authority, and indeed to arrive at a different conclusion on that same material: that much is evident from the judgment of the Full Court of the Federal Court in BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 at [71] per Kenny, McKerracher and White JJ where it was said that:

[119]

In DGZ16 at [74]-[76] per Reeves, Roberston and Rangiah JJ the Full Court of the Federal Court of Australia found as follows:
1. We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond.
2. There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
3. It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond.
To the extent that EUI19 contends a denial of procedural fairness because he asserts he missed out on an opportunity to engage with or provide submissions to the Authority in an interview, the Authority's procedural fairness obligations are set out in Pt 7AA, Div 3, and s 473DA provides that Pt 7AA, Div 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Authority reviews. The combined effect of these provisions, read together with ss 473DA(1), 473DB(1) and 473DC(2) is that the Authority is required to conduct a review of the Delegate's Decision on the papers and the common law rules of procedural fairness do not govern the way in which reviews are to be conducted under Pt 7AA.
In this case, unlike in CRY16 where the Authority did not consider whether to interview CRY16, in this case the Authority did consider whether to interview EUI19 and arrived at a decision not to, based on factors which give rise to an evident and intelligible justification for not doing so: SZMDS at [131]-[135] per Crennan and Bell JJ; Li at [28] per French CJ and [76] per Hayne, Kiefel and Bell JJ. It is noteworthy, for example, that EUI19 was represented by migration agents who were solicitors, had that specialist assistance, and provided lengthy post-Delegate Interview submissions in relation to EUI19's real chance of harm in Kurram District, in circumstances where the Authority was aware that EUI19 was the eldest son of an elder in the village. Furthermore, it is difficult to understand what it was that EUI19 would have sought to explain to the Authority. The November 2019 Statutory Declaration speaks for itself, and the Authority was entitled to consider its content without having to interview EUI19 about its content. In all the circumstances, there was a reasonable basis for the decision by the Authority not to interview EUI19, and no error was made by the Authority in that regard.

[121]

(a) EUI19 met the requirements for protection under s 36(2)(a) (as interpreted by ss 5H and 5J) if he had "a real chance" of suffering persecution, or under s 36(2)(aa) if he had a real risk (which means the same as a "real chance") of suffering significant harm. This was the critical substantive test the Authority was required to apply to the review;

(b) following Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 ("Chan"), a "real chance is one that is not remote, regardless of whether it is less or more than fifty per cent." Chan, CLR at 398 per Dawson J. A "real chance" thus may be small. It is because the intention of s 36(2)(a) and (aa) is to give protection against serious or significant harm that, even if the Authority has great doubt about whether a person is at risk, Parliament required the Authority to find that EUI19 met the requirements for protection if there was a small but real chance of suffering such harm;

(c) the Authority erred in interpreting or applying the terms "real chance" and "well-founded fear" of persecution in ss 5H(1), 5J(1) and 36(2)(a) and "real risk" of significant harm in s 36(2)(aa), shown by its finding that EUI19 did not have a real chance of suffering relevant harm as a Turi Shia from Parachinar in EUI19's home area of Kurram District, despite:

(i) its acceptance of his personal and family background as a Turi and practising Shia from Parachinar: CB 314 at [22]-[24];

(ii) its acceptance that he ceased his tertiary education because Sunni students abused him and he got into a physical fight with them: CB 77 at [34]-[35] and 314 at [25]-[26];

(iii) its acceptance of EUI19's father's role as an elder, and having been threatened by the Taliban: CB 315 at [28];

(iv) its acceptance of the attack on EUI19's uncle's shop: CB 315 at [28];

(v) its acceptance of EUI19 having been shot and injured: CB 316 at [30]; and

(vi) the volume of information before it relating to the situation of Shias in Pakistan, including material submitted to the Minister's department: CB 170-181, and to the Authority: CB 286-289, as well as other material, which it apparently accepted and relied on, including the material it cited explicitly in the Authority Decision, at CB 320-321 at [42]-[45] and 324-325 at [63]-[66];

(d) the material before the Authority, included the 2019 DFAT Report, and a recent (May 2019) decision by the Administrative Appeals Tribunal ("AAT Decision" and "AAT" respectively): CB 144-161. The AAT Decision included a detailed analysis of various sources of information about the risk to Turi Shias, and the security situation more generally: CB 152-154;

(e) the 2019 DFAT Report said in part:

[131]

(a) that the security situation in Pakistan had "recorded significant improvements" in recent years: CB 317-318 at [35];

(b) the improvement in the security situation was attributable to security measures taken by the Pakistani Government since 2014, including:

(i) Operation Zarb-e-Azb targeting terrorist groups in 2014;

(ii) the introduction of a National Action Plan in December 2014, which was a civil-military effort to combat terrorism; and

(iii) the launching of further military operations (Radd-ul-Fassad and Operation Khyber-IV) in 2017: CB 317-318 at [35];

(c) it being reported that the National Action Plan and military operations had "led to significant reductions in the number of criminal and sectarian violence and terrorism relate attacks": CB 317-318 at [35];

(d) the construction of military fencing between Afghanistan and Pakistan which, together with the other initiatives "appear[ed] to have decreased cross-border attacks from Pakistani militant groups sheltering in Afghanistan and curbed the flow of insurgents passing between the two countries": CB 317-318 at [35];

(e) that the merger of the former Federally Administered Tribal Areas into the Khyber Pakhtunkhwa province "has had a positive impact on the security in the area and that the ... [Pakistani Government's] armed forces can claim that the entire tribal conflict zone is now under their control" CB 317-318 at [35];

(f) the implementation of security measures in Parachinar, including "a 20 to 30 square kilometre red zone around Parachinar secured by the military forcing militants into the mountains": CB 317-318 at [35];

(g) fewer road attacks on Shia Muslims, and the restoration of travel on the "main route the T[h]all-Parachinar road": CB 317-318 at [35];

(h) the European Asylum Support Office noting a "marked decrease in incidents in Kurram since 2017" and it not referring to any sectarian attacks in Kurram District in the first half of 2018: CB 318 at [36]; and

(i) the Pakistan Institute for Peace Studies Pakistan Security Report 2018 noting one terrorist incident in Kurram District in 2018 involving Turi Shia being killed when their vehicle hit a landmine near the border with Afghanistan, and categorising this incident "not ... as a sectarian attack but rather a terrorist attack": CB 318 at [36].

[139]

In relation to ground 2 generally EUI19 submitted that: the Authority must consider each necessary and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 ("Peko-Wallsend"), CLR at 39 per Mason J, and integer of a claim: SZSZW v Minister for Immigration and Border Protection [2015] FCA 562; (2015) 150 ALD 465 at [13]- [18] per Perry J. It must consider a material question of fact squarely raised by the material before the Tribunal: SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 at [29] per Madgwick and Conti JJ and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58] per Black CJ, French and Selway JJ. Failure to do so is a jurisdictional error. An error about important information and a failure to have regard to it, can be an error of law and is a sign of jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 1317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41; Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 per Finkelstein J. The Authority must grasp and consider seriously the material before it: 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 at [20]- [28] per Kiefel CJ, Keane, Gorden and Steward JJ; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569 at [37]- [38] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ, but not material which does not meet the requirements of Pt 7AA. The omission of a question or finding from the reasons under s 473EA may show jurisdictional error: 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 ("Yusuf") at [5] per Gleeson CJ, and [69], [75], and [82]- [84] per McHugh, Gummow and Hayne JJ. If an error may as a real possibility have affected the decision, it is material, and a jurisdictional error: 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 [29]- [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75 at [44]- [45] per Bell, Gageler and Keane JJ; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897; (2020) 383 ALR 194 at [4] per Kiefel CJ and Gageler J.
In relation to particular (a) of ground 2 EUI19 submitted that:

[142]

(c) on a fair reading the Authority did not engage with the AAT Decision at all. While the Authority was not bound by a decision of the AAT in a different matter, it was obliged to consider the referred material, and the Tribunal Decision was part of the referred material. It was also relevant to the review, as it was made just six months earlier than the Authority Decision, and was about a Turi applicant from Parachinar, whose father was influential. More importantly, the AAT conducted a careful review of the situation in Kurram District, based on a review of many sources: CB 152-154, including DFAT to which the Authority in this matter also paid regard. It said at CB 514 at [47]-[48]:

... DFAT reports 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.

... However, despite these relatively recent developments, the Tribunal is satisfied the situation remains fluid and that unpredictable and sectarian attacks do and may still occur in the former FATA, including in Parachinar. The Tribunal accepts that the Taliban and associated extremists have waged a long campaign of violence against Shias, and Turi Shia's including in Parachinar. While it is acknowledged that the last significant attacks on Shia's in Parachinar occurred in 2017 the Tribunal's assessment of the country information is that despite security improvements and an ongoing military presence there nevertheless remains a militant presence in the former FATA which even if currently reduced has the ability to reassert itself given the prevailing conditions reported by DFAT and others.

(d) while the Authority was free to assess the situation for itself, it was not entitled to do so without considering the material before it. The assessment in the AAT Decision did not bind the Authority, but it was not free to ignore it, both because it was important relevant material, and because of the positive duty of the Authority under s 473DB to "review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under section 473CB". Notably, the Authority made no reference to the opinion of DFAT, cited in the AAT Decision, that "DFAT assesses cycles of violence are likely to continue until these conditions change": DFAT 2.72; CB 154 at [47].

[152]

In relation to the AAT Decision, whilst uniformity and consistency in decision-making are desirable attributes in the course of administrative decision-making: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639 ("Nevistic"), ALR 647 per Deane J; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 ("Plaintiff M64/2015") at [54] per French CJ, Bell, Keane and Gordon JJ, they are not required in all circumstances and the Authority was not bound by the AAT Decision: Nestivic, ALR 647 per Deane J; SZMIP at [27] per Flick J (from which an application for special leave to appeal to the High Court was dismissed: SZMIP v Minister for Immigration and Citizenship [2009] HCASL 185 at [5] per Heydon and Bell JJ), and the only circumstances that the Authority needed to actually consider were those of EUI19: Syed v Minister for Immigration and Border Protection [2017] FCA 887 at [26] per Derrington J. Each case must be considered on its own circumstances: Ibrahim v Minister for Immigration and Ethnic Affairs [2000] FCA 1309; (2000) 63 ALD 37 ("Ibrahim") at [15] per Burchett, Goldberg and Finkelstein JJ.
There are a number of reasons why particular (a) of ground 2 cannot succeed in establishing jurisdictional error in the Authority Decision.
First, the AAT Decision is not a "relevant consideration" in the sense referred to in Peko-Wallsend. An individual AAT Decision is not something that the Authority was "bound" to take into account, and is not something that either expressly or by implication arises from the subject-matter, scope or purpose of the relevant provisions of the Migration Act: Peko-Wallsend, CLR at 39-40 per Mason J. Moreover, the AAT Decision could not, of itself be a relevant consideration, claim or an integer of a claim, because it is no more than a separately considered decision on another applicant's claims.
Second, the Authority was not bound to refer to every item of material relied upon by EUI19: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] per McHugh J; Applicant WAEE at [46] per French, Sackville and Hely JJ, and a failure to take into account a particular piece of evidence does not necessarily give rise to error: Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed). Moreover, as the Full Court of the Federal Court has observed an inference that the Authority has failed to consider an issue may be drawn from a failure to expressly deal with that issue in the Authority Decision, but is not an inference readily to be drawn where the reasons are otherwise comprehensive and the issue is at least identified at some point: Applicant WAEE at [47] per French, Sackville and Hely JJ. In this case the Authority's reasons are otherwise comprehensive and the issue of the AAT Decision is identified and the fact that the Authority is not bound by the AAT Decision is observed (an observation consistent with the law set out at [62] above): CB 320 at [41], resulting in it being given "no weight". That is not a failure to consider but rather a failure to attribute weight to something which has been considered. Thus, the AAT Decision was sufficiently engaged with or considered by the Authority.
Third, the Authority had regard to the "particular circumstances of" EUI19 in preference to the AAT Decision: CB 320 at [41], again consistent with the law that each case must be considered on its own circumstances: Syed at [26] per Derrington J; Ibrahim at at [15] per Burchett, Goldberg and Finkelstein JJ, those particular circumstances including that the Authority:

[157]

The Psychologist's Report appears (with pages out of order) at CB 244-250. As with the AAT Decision it is not evident that the Psychologist's Report is a relevant consideration in a Peko-Wallsend sense.
At CB 323-324 at [53]-[57] the Authority observed as follows:
1. The Psychologist report provides that the applicant has "a range of psychological conditions due to the fear and threat to life experienced in Pakistan", and diagnoses the applicant with anxiety, depression and Post Traumatic Stress Disorder (PTSD).The report also indicates that the applicant believes that if he is returned to Pakistan he would be targeted, kidnapped and killed by the bomb blasts and shootings and that the Psychologist believes that the applicant would not cope at all if returned to Pakistan and his mental health will continue to plummet placing him at continued risk of heightened anxiety, depression and PTSD.
2. Prior to this recent Psychologist's report, there was no evidence that the applicant had ever been diagnosed or sought/received any treatment or support regarding his mental health. Although the recent report indicates that the applicant has been diagnosed with anxiety, depression and PTSD, the report does not outline the applicant's prognoses or any treatment plan or medication that the applicant needs for his mental health conditions. It is not apparent what mental health services the applicant requires, if any or for how long. In any event, The 2019 DFAT report indicates that basic healthcare in Pakistan is free, but limited capacity, lack of funding, corruption and slow economic growth impact the quality and accessibility to healthcare. Private healthcare is available to those who have the means to access it and many religious and secular charities also provide emergency relief, education and health services to the needs of their community or sect. The 2018 UK Home Office report also indicates that there are five mental hospitals in Pakistan and that there are 654 psychiatric units in general hospitals, with mental health being the most neglected field in Pakistan. However, it is also noted that Psychiatrists and Psychologists can be contacted in tertiary care and private healthcare and that medication can easily be bought.
3. The Psychologist's conclusion that the applicant's mental health conditions would deteriorate on return to Pakistan appears to be based on the applicant's belief that he will be targeted, kidnapped and killed by bomb blasts and shootings. While I accept that the applicant lived in Pakistan during a time of conflict, that his community was the subject of attacks, and that he fears returning to that environment, as indicated above the security situation in Pakistan, including in the applicant's home area, has changed significantly since the applicant's departure. Further, as outlined above, in the current environment the applicant does not have the profile that would place him at risk of being targeted or kidnapped. While I accept that the applicant may have a subjective fear of returning to Pakistan based on his past experiences and understanding of the security situation, I consider the chances of him being targeted or killed in bombings and shootings to be remote.
4. It is submitted that if the applicant is relocated to another part of Pakistan he will be left without the support of his family which will likely cause a further decline in his mental health. However, I am satisfied that the applicant is able to return to his village in Parachinar where his entire family reside. The applicant has not claimed that he will not have the support of his family on return there.
5. While the evidence before me does not specify the applicant's need for ongoing treatment, I am satisfied that there are healthcare facilities for the applicant to access should he require ongoing treatment. The information does not indicate that the applicant will be prevented from accessing or otherwise denied mental or other health care services in Pakistan for reasons of his religion, race, tribal affiliation or any other reason mentioned in s.5J(1) of the Act. I am not satisfied that the applicant has well-founded fear of persecution for reasons of his mental or physical health conditions.
It is important to observe that the Authority commences its consideration of the Psychologist's Report at CB 323 at [53] by quoting an extract therefrom describing the source of EUI19's psychological conditions: "a range of psychological conditions due to the fear and threat to life experienced in Pakistan" (emphasis added) (the quote is from the Psychologist's Report at CB 250). It is therefore evident from the outset of the Authority's consideration of EUI19's claims concerning his psychological conditions that it had in mind EUI19's past experiences in Pakistan.
EUI19 attacks the conclusion in the first sentence of the Authority Decision at CB 323 at [55] on the basis that the Authority considered only the psychologist's prognosis based on EUI19's fears for the future and not on his past experiences. This is a very narrow attack which fails to read the Authority Decision, and in particular CB 323-324 at [53]-[57], as a whole: Applicant WAEE at [47] per French, Sackville and Hely JJ; BYX17 at [49] per Rangiah, White and O'Callaghan JJ; WZAVQ at [55] per Barker J. The remainder of the paragraph deals, initially, with EUI19's concerns based on his past experiences in Pakistan and in his community, and then with how EUI19's concerns are not objectively based because of, first, the changed security situation in Pakistan, including in EUI19's home area since he left Pakistan, and, second, his lack of a profile that would place him at risk of being targeted or kidnapped. Thus, at CB 323 at [55] the Authority expressly (or at the very least impliedly: Applicant WAEE at [47] per French, Sackville and Hely JJ) considered the impact of past experiences on EUI19's mental health condition if he were to return to Pakistan.
Finally, when one considers the matters referred to in the previous two paragraphs, and the paragraphs in the Authority Decision at CB 323-324 at [53]-[57] as a whole, it is apparent that the Authority was aware of, identified, and gave consideration to, EUI19's psychological condition based on, amongst other considerations, EUI19's concerns about his past experiences prior to leaving Pakistan.
It follows that particular (b) of ground 2 is not made out and does not establish jurisdictional error in the Authority Decision.

[168]

(b) the importance of the Authority acting reasonably is reinforced, given the Authority's obligation under s 473EA to give a written statement which sets out its reasons. The obligation of the Authority to act reasonably extends not only to its final decision, but to its exercise of discretion, including determinations under ss 473DC and 473DD;

(c) unreasonableness is a failure by the Authority to discharge its statutory task, and therefore jurisdictional error. In determining whether the Authority was unreasonable, the statutory context is important: Li at [67]-[72] per Hayne, Kiefel and Bell JJ, not only the procedural prescription in Pt 7AA, but the substantive provision that an applicant meet the requirements for protection under s 36(2)(a) (as interpreted by ss 5H and 5J) if he had "a real chance" of suffering persecution, or under s 36(2)(aa) if he had a real risk (which means the same as a "real chance") of suffering significant harm;

(d) in relation to particular (a), further or in the alternative to particular (c) to ground 1, and for the reasons there set out, the Authority was legally unreasonable not to find exceptional circumstances to consider the information set out in that particular;

(e) in relation to particular (b), further or in the alternative to particular (d) to ground 1, and for the reasons there set out, the Authority was unreasonable not to seek new information pursuant to s 473DC, whether at interview or otherwise, about EUI19's role as eldest son of an elder in his community, when this issue was not one considered by the Delegate: CB 312 at [16]-[18];

(f) in relation to particular (c), the Authority, having accepted EUI19's claims about the actions of his father against the Taliban and the bombing of his uncle's shop in reprisals, was legally unreasonable to exclude the possibility that EUI19, the son of the village elder, was personally targeted when he was shot by the Taliban: CB 316-317 at [30] and [34]. EUI19's evidence was not "vague", except that he could only say what he directly knew: Delegate Interview Transcript pp 24-25. Nevertheless, the Authority accepted he was shot, by militants, and his father was an elder with a history of opposition to the Taliban, and the uncle's shop had been bombed. There was no logically probative basis to exclude the possibility of EUI19 having been a deliberate target for his individual identity, as much as for being a Turi Shia;

(g) in relation to particular (d), further or in the alternative to particular (e) to ground 1, and for the reasons there set out, the Authority was legally unreasonable not to find that EUI19 had a real chance of suffering relevant harm in the reasonably foreseeable future: CB 320-321 at [35]-[45] and 324-325 at [63]-[66]; and

(h) in relation to particular (e), further or in the alternative to particular (c) to ground 2, and for the reasons there set out, the Authority was legally unreasonable to exclude a real chance that EUI19 might suffer relevant harm because he may be unable to get necessary psychological treatment if he returned to Pakistan: CB 323-324 at [57] and 324-325 at [63]-[66].

[171]

(a) it is unnecessary to consider particular (a) to ground 3 in the alternative to particular (c) of ground 1 because particular (a) of ground 3 is duplicitous in circumstances where jurisdictional error has already been found on the basis of unreasonableness in relation to part of particular (c) of ground 1 (which was material for the same reasons as in particular (b) of ground 1): see [35]-[36] above, and insofar as jurisdictional error was found in particular (c) of ground 1 there is an equivalent jurisdictional error in particular (a) to ground 3;

(b) it is unnecessary to consider particular (b) to ground 3 in the alternative to particular (d) of ground 1 in circumstances where the Court has found, at [43] above, that there was an evident and intelligible basis for the Authority not interviewing EUI19;

(c) particular (c) to ground 3 simply seeks to revisit the relevant factual finding by the Authority as to the alleged personal targeting of EUI19 by the Taliban and as such seeks to engage in impermissible merits review of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;

(d) it is unnecessary to consider particular (d) to ground 3 in the alternative to particular (e) of ground 1 in circumstances where the Court has found at [52] above that there was an evident and intelligible basis for the Authority to make the findings that it did with respect to whether there was a real chance that EUI19 would suffer relevant harm in the reasonably foreseeable future, and that its findings were not findings which no reasonable decision-maker could make and were not therefore illogical or irrational or lacking in an intelligible justification; and in the circumstances what is sought both in particular (e) to ground 1 and in particular (d) to ground 3 is impermissible merits review of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and

(e) it is unnecessary to consider particular (e) to ground 3 in the alternative to particular (c) of ground 2 in circumstances where the Court has found at [75]-[76] above that:

(i) the factual premise underpinning particular (c) of ground 2 was not made out, and

(ii) where in any event the Psychologist's Report does not:

(A) specify EUI19's need for ongoing treatment;

(B) outline EUI19's prognosis or any treatment plan or medication that he needs for his mental health conditions; and

(C) make apparent what mental health services EUI19 would require in the future, and if so, for how long.

At a glance

Court

Decision date

Source

Judgment (176 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (75)