Federal Court of Australia

DQZ19 v Minister for Immigration and Citizenship [2026] FCA 1226

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration and Citizenship.

2.    Leave be given to the appellant to rely on ground 1 of the Notice of Appeal.

3.    The appeal be allowed.

4.    The orders made by the primary judge in the Federal Circuit and Family Court of Australia (Division 2) on 19 January 2024 be set aside and replaced with orders that:

(a)    A writ of certiorari issue quashing the decision of the second respondent dated 22 August 2019 in relation to the appellant.

(b)    The matter be remitted to the Administrative Review Tribunal for determination according to law.

5.    The first respondent pay the appellant’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

1    This is an appeal from the judgment of the primary judge in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)) given on 19 January 2024 in DQZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 23.

2    The primary judge dismissed DQZ19’s application for judicial review of a decision of the second respondent, the then Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent, the Minister, to refuse to grant DQZ19 a Protection (Class XA) (Subclass 866) visa (protection visa).

3    DQZ19 was unrepresented before the primary judge. On appeal, DQZ19, through his legal representatives, sought leave to rely upon a ground of appeal that was not put to the primary judge. Leave was not opposed by the Minister and should be granted.

4    For the following reasons, the appeal should be allowed.

background

5    DQZ19 is a Pakistani citizen. He arrived in Australia on 6 December 2014 on a student visa. He applied for a protection visa on 7 May 2015, claiming to fear persecution in Pakistan from members of a Taliban organisation known as Tehrik-i-Taliban (TTP) due to his membership of the Awami National Party (ANP) and because he was the brother of a soldier who had been fighting the Taliban. On 23 August 2016, a delegate of the Minister refused his application for a protection visa.

6    On 3 September 2016, DQZ19 applied to the Tribunal for review of the delegate’s refusal decision. On 22 August 2019, the Tribunal affirmed the refusal decision. The Tribunal accepted that DQZ19 was a member of the ANP, at least at the student level, but did not accept that DQZ19 faced a genuine threat to his safety and security for reasons of supporting the ANP (Tribunal Reasons (TR) [52]).

7    On 24 September 2019, DQZ19 applied for judicial review of the Tribunal’s decision. On 19 January 2024, the primary judge dismissed DQZ19’s judicial review application.

the tribunal’s reasons

8    The application to the Tribunal sought to review the delegate’s decision to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth). The criteria of which the Tribunal was to be satisfied under s 65(1)(a)(ii) are set out in s 36(1A), including that DQZ19 had to satisfy a criterion in s 36(2). Relevantly, DQZ19 had to show that he was:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

9    For the purposes of s 36(2)(a), a person is a “refugee” if, in the case of a person who has a nationality (s 5H(1)(a), emphasis added), that person:

(1)    Is outside that country of nationality; and

(2)    “[O]wing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”.

10    A “well-founded fear of persecution” is defined in s 5J in inclusive (s 5J(1)) and exclusive ways (s 5J(2), (3)). Relevantly, that provision provides (emphasis added):

5J  Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

…

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

…

11    DQZ19’s claims for a protection visa that were before the Tribunal included that:

(1)    He had joined the ANP when living away from home in a student hostel whilst completing his senior secondary school education. He used to meet with fellow students to discuss how to support the ANP and how to invite others to join and, when at home during summer holidays, would try to persuade others in the village to join. That course of study was completed in July 2012 (TR [12], [33]);

(2)    Sometime in 2013 (although there were conflicting dates provided), whilst completing a bachelor's degree, he persuaded the campus imam to allow him to speak either before or during the Friday Khutba sermon. In that speech, he was critical of the Taliban (TR [21], [30]–[32]);

(3)    His speech gave rise to death threats over the telephone (TR [22], [34]);

(4)    Four of his brothers had fled to [Country 1] because they feared being persecuted by reason of their ANP membership (TR [18]–[19]). Their roles as members involved supporting the ANP during election campaigns (TR [44]);

(5)    A fifth brother had joined the army in its campaign against the Taliban (TR [18]);

(6)    His youngest brother had been kidnapped, and presumed murdered, as a means to force the fifth brother, who is a soldier, to divulge DQZ19’s whereabouts (as the person who gave the speech in the campus mosque (TR [19], [39], [42]);

(7)    His maternal uncle, an ANP member, was killed by the Taliban on his way home from prayers (TR [23]); and

(8)    His cousin was shot dead in DQZ19’s home village by a local youth who later confessed to being paid by the Taliban (TR [41], [43]).

12    The Tribunal expressed the view that there were inconsistencies in DQZ19’s various accounts across his application, the information provided to the Minister’s Department, and the information provided to the Tribunal. The Tribunal found various aspects of DQZ19’s claims to be “far-fetched” or “implausible”.

13    Relevant to the analysis to come below, the Tribunal “put to [DQZ19] that in the years since he left Pakistan, there appeared to have been significant socio-political change there, and in [his home province] in particular”. It was put to him that “according to independent sources”, as a result of that change, the threat from the TTP in his home province had abated (at [46]). The Tribunal then said (at [46]):

DFAT reports: “Local observers, including officials, in [DQZ19’s home province] also reported a trend of increased security, a reduction in reported killings, and a reduced fear within the community in 2018. Residents of [a city in DQZ19’s home province] reported an increased sense of security in the evenings due to the enhanced military presence. Whereas it assesses that “sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo)” DFAT nevertheless reports: “Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations.”

14    While the Tribunal provided no citation for this statement, it is clear that this passage was taken from the DFAT Country Information Report Pakistan, 20 February 2019 (DFAT Report) (at [2.79], [2.81] and [2.82]). It is notable that the Tribunal did not include the concluding sentence to the passage at [2.81] which stated:

Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services).

15    In addressing s 36(2)(a) of the Migration Act, the Tribunal made the following findings (emphasis added):

[52] Whereas I accept that [DQZ19] and his family supports and votes for the ANP, and whereas I accept that he joined the ANP, at least at the student wing level, whilst studying at the [secondary education college], I do not accept on the evidence before me that he or anyone else in his family ever faced a genuine threat to their safety and security for reasons of supporting that party.

[53] I do not accept on the contradictory and sometimes illogical claims [DQZ19] has made that he was ever invited, even with the imam’s reservations, to give an anti-Taliban speech in the college mosque. Whereas [DQZ19] gave disparate accounts as to when he gave the speech, and whereas this kind of lapse can sometimes be due to an understandable lapse in memory, there were many other inconsistencies and implausible elements in his story as discussed above. Overall I give more weight to the claim about the imam of the mosque in question having evidently been unaffected to any relevant degree, and to [DQZ19] suffering no censure from the college, as if the event never took place. I also give weight to the inconsistencies in the evidence about the harassing telephone calls. It follows that I do not accept that the TTP or Taliban followers or anyone else kidnapped [DQZ19]’s brother in 2015 in retaliation for the alleged speech. In addition, I am not satisfied on the evidence before me that the TTP or any other extremist group ever threatened or targeted [DQZ19] or his family over his brother[]’s army activities and affiliations. I am also not satisfied on the evidence before me that [DQZ19]’s brothers left Pakistan for [Country 1] out of fear of being persecuted; according to him, their activities in what he described as a predominantly ANP-supporting village were low-level and more or less isolated to getting involved during election campaigns. Even though the Taliban has been known to attack ANP activists, I do not accept that anyone in [DQZ19]’s family would have been regarded by the Taliban as a target. In light of the many problems I have found in [DQZ19]’s evidence overall, I give no weight to the claim about the cousin who was allegedly shot earlier this year; [DQZ19]’s suggestion about the Taliban having commissioned the murder, on closer examination, turned out to be speculative at best.

…

[56] To recap, I am not satisfied on the evidence before me that [DQZ19] faces a real chance of being persecuted in Pakistan for reasons of ANP support, even active support, notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years.

…

[57] Having considered all of the evidence in this matter in its entirety, I am not satisfied that [DQZ19] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.

ground of appeal

16    In written submissions and at the hearing, DQZ19 only pressed ground 1 of the notice of appeal, which alleges jurisdictional error by the Tribunal in failing to consider material before it, contained within the DFAT Report, which it was required to consider by virtue of s 499 of the Migration Act. In full, ground 1 reads:

1. The respondent Tribunal made a jurisdictional error in that it failed to consider a claim or an integer of a claim, that was expressly made, or alternatively clearly arose, from the material before the Tribunal; alternatively the Tribunal failed to consider significant evidence that was relevant to a claim or failed to consider material that it was bound to consider by reason of s 499 of the Migration Act 1958 (Cth) (Act).

Particulars

a.     The applicant claimed to fear persecution in Pakistan by reason of his membership and support of the Awami National Party (ANP). He claimed to fear persecution from members of a terrorist organisation known as Tehrik-i-Taliban (TTP).

b.     The Tribunal accepted that the applicant was a member of the ANP and was a member of a family that supports and votes for the ANP: [Tribunal reasons (TR)] at [52].

c.     There was material before the Tribunal which indicated that members of the ANP in Pakistan face a “moderate” risk of terrorist related violence based on ANP’s opposition to TTP: see “DFAT Country Information Report – Pakistan” dated 20 February 2019 at [3.174] (DFAT Report).

d.     If accepted, the material in the DFAT Report referred to in (c) would support a finding that the applicant faced a real chance of persecution within the meaning of s 5J of the Act.

e.     The Tribunal did not refer to or consider the material referred to in (c). By that failure, the Tribunal constructively failed to consider the applicant’s claims, or an integer of those claims, or failed to have regard to or properly consider the material before it.

f.     Further and alternatively, the Tribunal was bound to have regard to the DFAT Report by reason of s 499 of the Act and Ministerial Direction 56 made under that Act. By failing to do so, the Tribunal failed to consider a matter that it was bound to consider.

17    The appellant sought leave to rely on the affidavit of Justin Moyes affirmed on 14 February 2024, which annexed the DFAT Report, and to which there was no objection.

the issue to be determined

18    The issue presented is a discrete one. In short, DQZ19 contends that the Tribunal failed to consider [3.174] of the DFAT Report when assessing his claim of a fear of persecution as a member of the ANP. Senior counsel for DQZ19 accepted at the hearing that the appellant has the burden to persuade the Court on the balance of probabilities that the Tribunal did not consider [3.174].

19    DQZ19 submitted that, having accepted that he was a member of the ANP and was a member of a family that supported and voted for the ANP, the Tribunal nonetheless found that DQZ19 did not face “a real chance of being persecuted in Pakistan for reasons of ANP support, even active support” (TR [56]). That was the case “[e]ven though the Taliban has been known to attack ANP activists” (TR [53]) and “notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years” (TR [56]).

20    DQZ19 submitted that, in so concluding, the Tribunal appeared to refer to its earlier statement at [15] that “[t]he TTP violently disrupted the 2008 general elections…targeting ANP candidates and staff in particular”. The reference provided by the Tribunal for that statement was an independent source containing country information published in 2016 (TR [15] fn 8). By contrast, the more recent DFAT Report (dated 20 February 2019), which was before the Tribunal, stated that members of the ANP in Pakistan face a “moderate” risk of “terrorist related violence” (at [3.174]). It was submitted that the Tribunal failed to consider more up-to-date material that was supportive of the appellant’s claim and, consequently, that failure constituted (a) a constructive failure to exercise jurisdiction to review the appellant’s claims or (b) a failure to consider a consideration mandated by s 499 of the Migration Act and Direction No 84 – Consideration of Protection visa applications (Direction 84) (its predecessor being Direction No 56 – Consideration of Protection visa applications (Direction 56)).

21    The Minister submitted that the Court can infer that the Tribunal considered the DFAT Report to the relevant extent, including the assessment made by DFAT at [3.174] that ANP members faced a moderate risk. As developed, the submission was, first, that the Tribunal’s express reference to its obligation under Direction 56 (which the parties accepted ought to have been a reference to Direction 84) should, on a fair reading of its decision, be persuasive that the Tribunal has complied with that obligation and, secondly, on a fair reading of the reasons, the Tribunal did not refer to [3.174] of the DFAT Report because it did not consider it necessary in circumstances where the Tribunal was already satisfied that there was a risk of harm to ANP members in Pakistan.

22    In relation to the second submission, it was contended that the Tribunal’s acceptance that the Taliban was known to attack ANP activists at TR [53] captured the essence of [3.174] of the DFAT Report. It was submitted that that passage in the DFAT Report did not contain sufficient additional or different relevant information that would warrant a conclusion that the Tribunal’s omission to directly refer to it reveals an actual or constructive failure to consider it. In short, as advanced in oral submissions, the Tribunal did not consider that it was relevant enough to refer expressly to what was included at [3.174] of the DFAT Report.

23    Further, in the event that the Court were to find that the Tribunal failed to consider the relevant passage in the DFAT Report, the Minister submitted that that failure was not material.

Consideration

Relevant principles

24    In RDYQ v Minister for Immigration and Citizenship [2026] FCA 645, Lenehan J summarised a number of core propositions regarding the Tribunal’s statutory task (at [22]):

(1) The Tribunal was here under an obligation to conduct a “review” (s 348(1) of the [Migration] Act). Implicit in the scheme providing for that “review” is an obligation to reconsider the merits of the decision under review in light of the information, evidence and arguments that are relevant to the application and are either provided to it or obtained by it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [44] (French, Sackville and Hely JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435-436 [13] (Bell, Gageler and Keane JJ), 463 [104]-[105] (Nettle and Gordon JJ).

(2) Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Tribunal will fail to perform its duty of review if it fails to take account of cogent evidence providing substantial support to the appellant’s case: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, 130-131 [111]-[112] (Robertson J); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 444-445 [38]-[39] (Kenny, Griffiths and Mortimer JJ); SZMTA, 435-436 [13] (Bell, Gageler and Keane JJ).

(3) Statements of a formulaic kind or sweeping statements that all the information, evidence and arguments that are relevant to the application have been considered “will not shield from scrutiny whether in substance they have”: Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, 638 [38] (Allsop CJ with whom Markovic and Steward JJ agreed).

25    In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99, Robertson J said (at [112]), citing VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77] (Hill, Sundberg and Stone JJ):

[W]hether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

26    In Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287, Feutrill J said the following about the consequence of a failure to consider such cogent and material information (at [68]), citing BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; 268 FCR 114 at [54]–[64] (Griffiths, Gleeson and Colvin JJ):

[T]he Tribunal may make a jurisdictional error if it correctly understands the applicant’s case, but fails to consider or evaluate material evidence directed to that case. In such circumstances there may be a failure to conduct the “review” of the decision that is required under the Act because the Tribunal has not engaged with the submission or “case” of the applicant.

27    I accept that these statements of the principles are applicable to the assessment of whether the Tribunal fell into jurisdictional error in the way alleged in ground 1.

28    At the outset of the analysis, I make four preliminary points.

29    First, as the Minister submitted, “[i]t is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”: Applicant WAEE at [46] (French CJ, Sackville and Hely JJ). As the Court further said in Applicant WAEE, “[i]t may be that some evidence is irrelevant to the criteria and some contentions misconceived”. However, those observations have little resonance where the relevant information is cogent and provides substantial support for DQZ19’s case.

30    Secondly, the Tribunal (a) stated that it had taken account of “relevant country information assessments prepared by [DFAT] expressly for protection status determination purposes” (TR [9]), and also (b) prefaced its finding that there was no real chance that DQZ19 would be persecuted in Pakistan with the statement that “[h]aving considered all of the evidence in this matter in its entirety” (TR [57]). However, those statements are not sufficient to support a finding that the Tribunal considered [3.174] of the DFAT Report. As Lenehan J said in RDYQ at [22] (citing Allsop CJ’s decision in Hands at [38], with whom Markovic and Steward JJ agreed), such sweeping statements do not shield the reasons from further scrutiny.

31    Thirdly, the Minister submitted that the Tribunal’s reference to its obligations under s 499 of the Migration Act to consider Direction 56 (understood to be a reference to Direction 84) should, on a fair reading of its decision, be persuasive that the Tribunal had complied with its obligations, citing AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 at [46] (Barker J). However, whether that is the case will depend on a fair reading of the reasons as a whole: see DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586 at [63], [68] (Mortimer J, as her Honour then was). Furthermore, as DQZ19 submitted, there is also authority to support the proposition that the failure by the Tribunal to mention [3.174] of the DFAT Report allows the drawing of an inference that the Tribunal did not consider that information to be material, which may give rise to error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [35], [37] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [49]–[50] (Kenny, Griffiths and Mortimer JJ).

32    Fourthly, in determining whether there has been error, it is important to recognise that the Tribunal’s reasons “are not to be scrutinised ‘with an eye keenly attuned to error’”: Applicant WAEE at [46] (French CJ, Sackville and Hely JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). How these cautionary words will apply will depend on the coherence of the reasons.

Was the Tribunal required to consider [3.174] of the DFAT Report?

33    At [3.174] of the DFAT Report, the following passage appears (emphasis added):

DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP.

34    The glossary to the DFAT Report defines three categories of risk:

high risk     DFAT is aware of a strong pattern of incidents

moderate risk     DFAT is aware of sufficient incidents to suggest a pattern of behaviour

low risk     DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern

35    When [3.174] of the DFAT Report is read with the defined terms, it can be seen that the relevant level of DFAT-assessed risk is defined by reference to DFAT’s awareness of incidents, whether they are sufficient in number to constitute a pattern, and the strength of any such pattern. Relevantly, at 20 February 2019 (the date of the Report), DFAT was aware of sufficient incidents to suggest a pattern of behaviour giving rise to the risk that ANP members would face terrorist related violence based on ANP’s opposition to the TTP.

36    It was not in dispute that, by operation of s 499(1) and (2A) of the Migration Act and cl 3 of Direction 84, the Tribunal was required to consider the DFAT Report. Clause 3 of Direction 84 relevantly states that “[w]here [DFAT] has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the [Tribunal], the [Tribunal] must take into account that assessment, where relevant, in making their decision”. Paragraph [1.1] of the DFAT Report states that “[t]he Department of Foreign Affairs and Trade (DFAT) has prepared this Country Information Report for protection status determination purposes only”. While the Tribunal was not precluded from considering other relevant information about a country (see the concluding sentence of cl 3 of Direction 84), it was required by the mandatory use of the word “must” to take into account the assessment in the DFAT Report where relevant in making its decision: Direction 84, cl 3.

37    Given the source of that information, it cannot be disputed that it is cogent evidence. There is also little doubt that the way in which “moderate risk” is identified in the DFAT Report was relevant to the question of whether DQZ19 satisfied the criteria for a protection visa. That is so because it is central to the question of whether there is a real chance of persecution for the reason of his ANP membership: Migration Act s 5J(1)(b); see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 571–2 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), 585–6 (Kirby J); BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [115]–[118] (Murphy J, with O’Callaghan and Snaden JJ agreeing). While, as the Minister submitted, such information did not dictate the outcome of the Tribunal’s enquiry under s 5J(1)(b) (see BJO18 at [125]–[130]), it was probative of an answer to that question that was favourable to DQZ19.

38    Accordingly, having found DQZ19 was an ANP member, the Tribunal was required to consider DFAT’s risk assessment in [3.174].

Did the Tribunal consider [3.174] of the DFAT Report?

39    By express reference to passages from the DFAT Report in the Tribunal’s reasons at [46], it is clear that the Tribunal had that report before it. The question is whether it considered DFAT’s risk assessment recorded at [3.174].

40    The Tribunal’s finding on the risk of persecution based on ANP membership is set out at [15] above, but it is convenient to repeat the central findings (emphasis added):

[52] Whereas I accept that [DQZ19] and his family supports and votes for the ANP, and whereas I accept that he joined the ANP, at least at the student wing level, whilst studying at the [secondary education college], I do not accept on the evidence before me that he or anyone else in his family ever faced a genuine threat to their safety and security for reasons of supporting that party.

[53] … I am also not satisfied on the evidence before me that [DQZ19]’s brothers left Pakistan for [Country 1] out of fear of being persecuted; according to him, their activities in what he described as a predominantly ANP-supporting village were low-level and more or less isolated to getting involved during election campaigns. Even though the Taliban has been known to attack ANP activists, I do not accept that anyone in [DQZ19]’s family would have been regarded by the Taliban as a target.

…

[56] To recap, I am not satisfied on the evidence before me that [DQZ19] faces a real chance of being persecuted in Pakistan for reasons of ANP support, even active support, notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years.

41    There is no express reliance on the DFAT Report in this respect. The question is whether, nonetheless, it can be inferred that the Tribunal considered [3.174], as defined in the glossary, in its identification of the risk of persecution. That must turn on an analysis of the way that the Tribunal expressed its reasons, which involves an assessment of the reasons as a whole.

42    The Minister submitted that the use by the Tribunal of the word “activist”, rather than ANP member, was understandable given that DQZ19’s claims had included that he had spoken in a mosque. However, as DQZ19 submitted, the Tribunal had not accepted that claim and, accordingly, the finding at [56] must be assessed in accordance with the Tribunal’s finding that DQZ19 had joined the ANP, at least at the student wing level.

43    There is more strength in the proposition that, without an overly critical eye for error, the Tribunal might be understood to have used the word “activist” to refer to either an ANP member or an ANP leader both of whom are captured by [3.174]. One obstacle to that interpretation is that the immediately preceding context of the reference to “activist” was a finding made about DQZ19’s brothers who, DQZ19 claimed, had been involved with the ANP during election campaigns.

44    However, there is more difficulty reconciling [3.174] with the phrase at TR [53], “the Taliban has been known to attack”. All categories of risk identified in the DFAT Report glossary could meet that description, whether (a) DFAT was aware of a strong pattern of incidents (“high risk”), (b) DFAT was aware of sufficient incidents to suggest a pattern of behaviour (“moderate risk”), or (c) DFAT was aware of incidents but had insufficient evidence to conclude they form a pattern (“low risk”). The imprecision with which the Tribunal expressed itself about the knowledge of attacks (or, indeed, the source of that knowledge), without specific reference to the category of risk that arose on the Tribunal’s findings, or the substance of what constitutes the categories of risk in the glossary, tends to suggest that [3.174] was not the basis for the statement at TR [53]. The more subtle risk analysis reflected in the glossary and deployed in [3.174] also makes it difficult to accept the submission that the statement at TR [53] captures the essence of [3.174] of the DFAT Report or the submission that [3.174] did not contain sufficient additional or different relevant information. To the contrary, the statement at TR [53] fails to grapple with the way in which risk is assessed in [3.174].

45    The incoherence becomes clearer when TR [56] is considered. That paragraph commences with the words “[t]o recap”, thus it is by way of repetition of what has already appeared in the Tribunal’s reasons. The phrase “notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years” is inapt to describe the subject matter of [3.174]. While the expression “ANP political figures and their associates” might embrace the reference to “ANP leaders” in [3.174], it would be to strain ordinary language to suggest that such a reference also includes ANP members, particularly those at the student wing level (as the Tribunal stated DQZ19’s position to be).

46    Nor do the words “from time to time” at TR [56] easily sit alongside the definition of “moderate risk” as “sufficient incidents to suggest a pattern of behaviour”. The expression “from time to time” would find a more comfortable fit with the expression “insufficient evidence to conclude [the incidents] form a pattern” (that is, “low risk”). That disconnect further suggests that TR [53], when read with TR [56], did not capture the essence of what appeared at [3.174] of the DFAT Report.

47    Moreover, given the centrality of risk assessment to the Tribunal’s task, and the fact that it referred expressly to the DFAT Report elsewhere in the reasons, one might have expected the Tribunal to engage in a closer and more precise analysis of [3.174], and the categorisation of risk in the glossary, if the Tribunal indeed used that material as a basis for its findings. To adapt what was said in BJO18 at [129], this is a case where “[a] failure by a decision-maker to refer to particular events set out in country information … indicate[s] that he or she overlooked critical matters capable of affecting the outcome of a decision”.

What was the basis for the conclusions at TR [53]?

48    If [53] of the Tribunal’s reasons is not informed by [3.174] of the DFAT Report, what is the basis for that statement? The Tribunal had earlier referred at [15] to “independent country reporting” that included an account of the formation of the TTP “and the associated escalation in violence” connected, in part, with the government’s decision in July 2007 to raid a mosque in Islamabad. The Tribunal said that in response to that raid (TR [15]):

Taliban groups and al-Qaeda announced a policy of revenge against the Pakistani State. The TTP violently disrupt[ed] the 2008 general elections [], targeting ANP candidates and staff in particular.

49    The Tribunal then referred to two major counter-offensives undertaken by the Pakistani government against Taliban militants (TR [16]).

50    The use of the words “ANP candidates and staff” at TR [15] is an accurate functional equivalent of the words “ANP political figures and their associates” used at TR [56] and, indeed, a more precise equivalent of the words “ANP activists” in TR [53]. The use of the language “from time to time” at TR [56] is more consistent with the identification of the targeted attack on 2008 elections and the associated violence during that period at TR [15] than it is with the expression used in the glossary of the DFAT Report to identify moderate risk (ie, DFAT is aware of sufficient incidents to suggest a pattern of behaviour).

51    In short, while the Tribunal’s language should not be scrutinised with an eye to error, the relevant passages at TR [53] and [56] appear to be informed by the independent country information set out at TR [15], rather than [3.174] of the DFAT Report. Indeed, the Minister appeared to accept that position, instead submitting that TR [53] captured the essence of [3.174] and that an express reference to [3.174] added nothing of probative value. For the reasons already set out, I do not accept those submissions.

52    In oral submissions the Minister focused on the closing words “in particular” in TR [15] and submitted that, by using those words, the Tribunal was alive to the fact that all ANP supporters, not just activists, were at risk of harm from the Taliban. That may be so, but it does not provide additional explanatory force for the Minister’s submissions that (a) the Tribunal considered [3.174], (b) TR [53] (or TR [56]) captures the essence of [3.174], or (c) [3.174] added nothing of probative value. The crux of [3.174] is not simply that a particular group of people was at a risk of harm from the Taliban: it is the degree of the risk of harm as assessed by DFAT that is of relevance. The words “in particular” may well indicate that the Tribunal had a broader group of people in mind, but that does not grapple with the distinct categorisation of risk embedded in [3.174]: DFAT’s knowledge of the extent of relevant incidents and to whom the risk attaches.

Summary

53    Accordingly, I cannot accept the Minister’s submission that an inference can be drawn that the Tribunal considered [3.174] of the DFAT Report. Nor can I accept the Minister’s submission that the statement at TR [53] captures the essence of [3.174] of the DFAT Report or that [3.174] did not contain sufficient additional or different relevant information, to support the Minister’s position that it was not necessary for the Tribunal to refer to it. It follows that the Tribunal failed to perform its duty.

Materiality

54    It remains to consider whether the Tribunal’s failure to consider [3.174] of the DFAT Report was material to the outcome.

55    The Minister submitted that the error would lack materiality and, accordingly, would not be jurisdictional in character. The steps in that argument were set out as follows:

(1)    The Tribunal accepted that DQZ19 joined the ANP only at the student level;

(2)    The Tribunal found DQZ19 and his family had never faced a genuine threat to their safety and security in the past;

(3)    To the extent that DQZ19 was at risk, he would have effective protection available from the State; and

(4)    Even if [3.174] of the DFAT Report was not considered, DFAT’s assessment went no higher than the Tribunal’s accepted finding that the Taliban was known to attack ANP activists, such that express consideration would not have impacted the Tribunal’s finding.

56    There are difficulties with these propositions. In relation to proposition (1), the finding was that DQZ19 had joined the ANP “at least at the student wing level”. There was no further finding about the precise extent and character of that membership. As DQZ19 submitted, the Tribunal’s analysis did not proceed on a premise that DQZ19’s student membership status, and consequent risk, were somehow diminished.

57    In relation to proposition (3), the Tribunal stated that there was independent evidence before it that showed “both willingness and capacity on the part of the authorities in [DQZ19’s home city], at least, to protect the population from Taliban and other extremist violence” (TR [55]). It was submitted for the Minister at the hearing that the existence of state protection was an independent and separate basis for the Tribunal to have found that the appellant did not face risk from the Taliban on return to Pakistan.

58    The difficulty with that submission is that the DFAT Report itself had considered “State Protection”, including the observation that “[d]espite measures introduced to curb violence across the country under the [National Action Plan (NAP)]—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare”: at [5.2]. It continued:

This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.

59    As senior counsel for DQZ19 submitted, the risk assessment undertaken by DFAT in relation to ANP members must have been informed by, or must be understood in the context of, its consideration of available state protection.

60    While it is not necessary to take this point further, it is notable that the Tribunal does not refer to the DFAT Report in relation to state protection (at TR [55]), and it omitted from its reliance on the DFAT Report at TR [46] the concluding sentence of [2.81] of the DFAT Report that “[n]onetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces” (see above at [14]). It is enough to say that these matters underscore the point that the Tribunal’s conclusions on state protection do not stand in the way of a finding that the Tribunal’s error was material.

61    It is also not necessary to consider DQZ19’s submission that the Tribunal misunderstood the decision of the High Court in Minister for Immigration and Multicultural Affairs v S152/2003 [2004] HCA 18; 222 CLR 1.

62    Finally, as to propositions (2) and (4), it is implicit in my conclusion that the Tribunal did not consider the DFAT Report on risk assessment that the Tribunal did not focus attention on the categorisation of risk as “moderate risk”. That would have required a more nuanced assessment than the one implicit in the bare conclusion that the Taliban “was known to attack ANP activists”. Having found that DQZ19 was an ANP member, the Tribunal would have been required to consider the DFAT assessment that it was aware of sufficient incidents of attacks to suggest a pattern of behaviour and to assess DQZ19’s claims for protection on that basis.

63    It would have become apparent that there were different categories of risk identified in the glossary, and that the fact that incidents were “known” to occur would have equally applied to the category of “low risk” which was not applicable to DQZ19. In short, the Tribunal would have been required to engage more closely with the way in which the DFAT Report identified and characterised risk: see, by analogy, BIL17 at [62]–[64] (Griffiths, Gleeson and Colvin JJ). DFAT’s generalised assessment of future risk would then have been considered alongside the Tribunal’s findings that DQZ19 and his family had never faced a genuine threat to their safety and security in the past.

64    With those observations in mind, the materiality question can be addressed. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) [2024] HCA 12; 280 CLR 321, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said the following about the test to be applied (at [6]–[7] (footnotes omitted)):

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance.

65    Ultimately, the materiality question is whether there was a realistic possibility that the decision that was made could, not would, have been different if the error had not occurred: LPDT at [14]. I am satisfied that, had the Tribunal considered the relevant passages of the DFAT Report on risk, it would have been required to undertake a qualitatively different assessment which could have produced a more favourable outcome for DQZ19. It might not have made a difference when assessed against the Tribunal’s findings that DQZ19 and his family had never faced a genuine threat to their safety and security in the past. However, the question of whether there is a real chance that something will occur in the future is not, necessarily, dictated by findings about past events: see Guo at 574–5 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Accordingly, it cannot be said that there was no realistic possibility that the outcome could have been different. As the High Court said in LPDT, the “threshold is not demanding or onerous” (at [14]).

Disposition

66    For the foregoing reasons:

(1)    The appeal must be allowed with costs to be agreed or assessed;

(2)    The orders made by FCFCOA (Div 2) must be set aside; and

(3)    In lieu of FCFCOA (Div 2)’s orders, the Tribunal’s decision is to be set aside and remitted for determination according to law.

67    As the Tribunal has now been replaced by the Administrative Review Tribunal (ART), the matter must be remitted to the ART: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), sch 16 item 25(2).

Associate:

Dated:    28 August 2026