FEDERAL COURT OF AUSTRALIA

MZABA v Minister for Immigration and Border Protection [2015] FCA 711

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 1 made on 29 August 2014 by the Federal Circuit Court of Australia is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 31 January 2014 in case number 1216045.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellant for review of the decision of a delegate of the first respondent made on 21 September 2012 to refuse to grant the appellant a Protection (Class XA) visa.

4.    The first respondent pay the appellant’s costs of the appeal, and of the proceeding in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Pakistan, from Punjab Province. In 1994 the appellant was enrolled by the Punjab Bar Council as a lower-court advocate. He became a member of the local Bar Association and, in around 2000, he also became principal of a business that dealt in embroidery and other miscellaneous machinery.

2    On 23 February 2012 the appellant was granted a subclass 456 business visa, and he arrived in Australia on 1 May 2012. On 24 May 2012, he lodged an application for a Protection (Class XA) Visa (Visa). On 21 September 2012, the appellant’s application was rejected by a delegate (delegate) of the first respondent (Minister). On 31 January 2014 the Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision (Tribunal’s decision). The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The subject of this appeal is the primary judge’s dismissal of that application on 29 August 2014. The primary judge’s judgment is published as MZABA v Minister for Immigration and Border Protection [2014] FCCA 1928.

3    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (Migration Act) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

Background

The nature of the appellant’s application and claims

4    The appellant claimed to fear physical violence, extending to his killing, at the hands of religious extremists were he to be returned to Pakistan. The appellant claimed that the following matters caused extremists to wish to harm him: first, his Ahmadi religion; second, because he is a member of his family group; third, because he is a lawyer who assists minority groups including those hated by extremists; fourth, because he is an educated professional Ahmadi; fifth, because he has acted in cases against members of extremist organisations; and, sixth, because of his liberal views and beliefs in freedom of religion, freedom of speech, and democracy. The third and fifth claims can be conflated into one that the appellant feared harm arising out of his practice as a lawyer for minorities and against extremists. The fourth and sixth claims can be conflated into one that extremists would do him harm because he is an educated and professional Ahmadi who holds the liberal views he identified.

5    Those matters were set out in the appellant’s Visa application. Question 43 of the application asks, “why did you leave [Pakistan]?” He answered that he had received threatening calls, and that on a previous occasion after having received such calls he was attacked. On that occasion he was with his “teacher lawyer,” who was later killed. He claimed to be worried for his life, and stated that he was sure he was on a list of (as in, maintained by) extremists and would be targeted sooner or later. In answer to the question whether he had experienced harm in Pakistan, the appellant claimed that he was continuously under threat and had been fearful for the last few years during his practice of law and carrying on of business in Pakistan. He referred to an incident occurring on in 2009 in which he and his client (a Shia Muslim) were attacked and he was cut on the front and left side of his neck. He said he was present at the murder of his associate lawyer. He claimed that on 27 April 2012 persons attempted to kidnap him, which precipitated his journey to Australia.

6    The appellant claimed to fear being killed were he to be returned to Pakistan, and that he could be “easy prey for terrorists or extremist[s] with[in] [a] few weeks.” He named three organisations that he thought would harm him, being Laskar-e-Taiba, Laskar-e-Jhangvi, and Harkat-ul-Ansar, and thereafter wrote “etc.” Importantly, he was asked, “why do you think this will happen to you when you go back?” The opening words of his response are highly relevant:

This will happen due to some reasons, due to family background as grandfather … was Ahmadis (Qadaini). He became prominent figure after being elect[ed] as member of Punjab assembly … . He was well known all over Punjab and representative for Ahmadi community in Punjab. Due to this our family well known in society and family was enlisted as Ahmadis in the voter list of 1986/87 of Faisalabad.

7    The appellant made a handwritten statement of 14 pages, which apparently was annexed to his application. On page 1, he said the following:

I fear harm in Pakistan on the basis of my religion, my membership of my family group, because I am a lawyer who assists of minority groups in Pakistan and those hated by religious extremists such as other Ahmadis, members of the Shia Muslims religion and Christians, because I am educated and educated [sic] professional Ahmadi, and because I have acted in cases against members of religious extremist. In addition I fear the extremist Sunni organisations because of my liberal views and beliefs in freedom of religion, freedom of speech and in democracy.

8    On page 2, the appellant said this:

Our family … disputes over big land property around 1100 Acres. On disputes of land, high court decided in 1945, after death … grandfather, our family would inherit this forefathers property.

[My] grandfather … adhere to Muslim (sect) Ahmadis before 1970. Due to attachment and close association to Ahmadiya community, my grandfather’s … was burnt in 1977. There was severe movement against Ahmadis. Grandfather … was head of all family, so all family including my uncles and aunts adhered to Ahmadis (sect). Our grand fathers were religious ideal for all family. After movement against Ahmadis, there were much difficulties and threats of life … . … .

After 1985, Govt of Pakistan made the list of voters for next election. Here our family members and our grandfather … registered as Ahmadis (Qadianis) voters in govt. of Pakistan lists … . …

On the base of this list which were issued by election commission of Pakistan, our family was in minority group. Here my grandfather who was fully attached Ahmadis community. He elected as representative of Ahmadis community in the Punjab assembly … on the base of list of Ahmadis or Qadianies in [local] district.

After being elected as member of assembly of Punjab Ahmadis community heads and executive members of Ahmadis became annoyed and displeased on act of my grandfather … . To go for election was according to constitution of Pakistan. So, our family had to face a strong introduction of being Ahmadis and became prominent in all the Punjab as Ahmadis or Qadianis.

9    On page 4, the appellant said this:—

Many times, people raised bad slogans and defamed my grandfather … and insulted my family due to Ahmadis attachment.

10    The matters set out above are all referable to the appellant’s second claim, that he feared harm as a consequence of being a member of his family group.

11    To summarise, the appellant claimed to fear harm, extending to his murder, at the hands of extremist organisations who wished to harm him for these reasons:—

(a)    his Ahmadi religion (Ahmadi Claim);

(b)    his membership of his family group (Family Group Claim);

(c)    because of his practice as a lawyer acting both for minorities and against extremists (Minority Lawyer Claim);

(d)    because he is an educated professional Ahmadi holding liberal views in favour of freedom of religion, freedom of speech, and democracy (Educated Liberal Claim).

The delegate’s decision

12    All that is necessary to say about the delegate’s decision is that the delegate determined that the appellant did not satisfy the criteria in s 36(2) of the Migration Act and that—while at heading 8 of Part A of the decision the delegate accurately summarised the appellant’s claims (including the Family Group Claim)—thereafter the delegate failed to address the appellant’s fear of harm predicated on his membership of the social group comprising his family.

The Tribunal’s decision

13    At [9] of the Tribunal’s decision it said that the appellant claimed to fear harm in Pakistan as:

•    a member of the Ahmadi religion;

•    an Ahmadi lawyer or minority lawyer who has acted for minority groups such as Ahmadis, Shias and Christians and against religious extremists; and

•    an educated and professional Ahmadi who believes in freedom of religion and freedom of speech and other liberal values.

14    The Family Group Claim is not on that list. The Tribunal’s reasons are then structured as follows. Part A ([11]–[12]) deals with the appellant’s “Background and nationality.” Part B ([13]–[34]) is entitled “Ahmadi religion,” consistently with the first point of [9] of the Tribunal’s reasons. Part C ([35]–[52]) is entitled “Ahmadi lawyer/minority lawyer acting against extremists,” consistently with the second point of [9]. Part D ([53]–[68]) is entitled “Past harm.” At [68], in concluding that section, the Tribunal says this:

… the Tribunal does not accept that the [appellant] has been threatened or harmed in the past as a minority lawyer or Ahmadi lawyer or because he has acted for religious minorities or against extremists …

indicating that Part D deals with “Past harm” in the context of the Ahmadi Lawyer Claim. Part E ([69]–[70]) is entitled “Educated and professional Ahmadi who believes in liberal values,” consistently with the third point of [9]. Part F ([71]–[75]) is entitled “Future harm” and sets out the Tribunal’s basis for concluding that the appellant does not face a real risk of suffering serious harm. Paragraphs [76]–[78] are entitled “Conclusion.” At [79] the Tribunal affirmed the delegate’s decision to not grant the appellant the Visa.

The primary judge’s judgment

15    The grounds advanced by the appellant before the primary judge were as follows:—

(a)    The Tribunal failed to consider each integer of his claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm within the meaning of s 91R of the Migration Act.

(b)    He made a number of claims regarding his practice as an Ahmadi or minority lawyer and produced documents to support them. The Tribunal rejected these documents on mere speculation that it had doubts about the authenticity of the certificates. The Tribunal had access to facilities that assess the authenticity of documents and the Tribunal should have verified the documents, rather than speculating and making generalised statements that fraudulent documents are rife in Pakistan.

(c)    It would have been very easy for the Tribunal to verify whether he was a practicing lawyer until his departure to Australia and the Tribunal failed to do so.

(d)    The Tribunal failed to refer to country information/reports which contained information about the treatment of lawyers who act for minorities and the general situation in Pakistan, in regard to political violence and the influence of terrorism, where the Tribunal had found that he was a practicing lawyer until 2000.

(e)    The Tribunal erred when considering s 36(2)(aa) of the Migration Act.

16    The primary judge set out at [7] the same three claims that the Tribunal had identified at [9] of its decision. The primary judge identified (at [10]) that “[t]he Tribunal based its decision primarily on adverse credibility findings against the [appellant],” being in particular that the appellant “did not actively practice, if at all, as an Ahmadi, either before or after 1999,” and “did not actively practice, if at all, as a lawyer after 2000.”

17    At [30]–[33], the primary judge dealt with the appellant’s first ground. The primary judge referred to parts of the Tribunal’s decision where it had considered the claims identified at [9] of its decision, and was unable to see where it had failed to consider an integer of the claim. At [34]–[40], the primary judge dealt with the second and third grounds. The primary judge held, following Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, that it was not incumbent upon the Tribunal to conduct additional inquiries and that the Tribunal’s findings were open to it. At [41] the primary judge considered the fourth ground. The primary judge held that since the Tribunal had found that the appellant was not a minority lawyer, it was not necessary to consider country information on the treatment of such lawyers. At [42], the primary judge considered the fifth ground. The primary judge held that, though the Tribunal’s reasons were brief, those reasons disclosed that the Tribunal had based its determination on the same findings of fact that underpinned its earlier conclusion that the appellant did not face a real chance of serious harm for a Convention reason.

Grounds of appeal

18    Before me, the appellant advanced all of the grounds advanced before the primary judge. The appellant also sought to advance a ground that “[t]he tribunal has failed the [appellant’s] family land case on the basis of Ahmadi’s beliefs, and denied to accept any further proceeding of this case.” The Minister submits that the appellant requires leave to rely on that ground, and that leave should be refused.

19    The “family land case” was mentioned in the appellant’s Visa application, documents that related to the case were included in the application, and the question of the meaning and significance of the case is mentioned in the Tribunal’s reasons. The Tribunal treated the case as being relevant to the Ahmadi Claim and, as will be set out below, the appellant also advanced it in support of the Family Group Claim. In particular, in a written submission to the Tribunal, the appellant said that because of the court case, “my family well known as [A]hmadis due to this family land case in the Punjab.” It is apparent from that submission that the Family Group Claim included a submission that his family (and he personally) would be imputed to be Ahmadi because the court case identified members of his family as Ahmadi. Thus, the issue of the proper understanding of the family land case was before the Tribunal and the primary judge, and the appellant argued before the latter that the Tribunal’s understanding was not correct. The appellant’s repetition of that argument in this Court does not surprise or prejudice the Minister. If it were necessary for the appellant to have leave in order for the issue to be before me, I would be minded to grant it. But, I do not consider that leave is necessary: the substance of the additional ground is already contemplated by ground (a). That is a contention that the Family Group Claim had not been dealt with and, as identified above, the family land case was advanced in support of that claim. Accordingly, the family land case is already in issue through ground (a) and I will deal with it in addressing that ground.

The relevant legislation

20    Section 36 of the Migration Act provides (relevantly) as follows:

36 Protection visas—criteria provided for by this Act

(1A)     An applicant for a protection visa must satisfy:

(a)     the criterion in subsection (1B); and

(b)     at least one of the criteria in subsection (2).

…

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; 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; or

…

Ground A—failure to deal with each integer of the claim

21    I identified above that the appellant’s claims included the Family Group Claim. Indeed, as I read the Visa application, and particularly the passages extracted at [6] to [9] above, that was his central claim. Apart from matters relating to his practice as a lawyer, the answer that he gave to the question in his Visa application as to why he feared harm was based entirely on imputed identity as an Ahmadi arising out of his membership of his family group.

22    Before the Tribunal, the appellant advanced two submissions in support of that claim, being that his grandfather was a prominent Ahmadi politician and that his family was well-known to be Ahmadi, and that his family was well known as Ahmadi because members of his family were involved in a current and prominent court case (family land case) that identified them as Ahmadi. Establishment of the Family Group Claim did not require the appellant to self-identify or practice as an Ahmadi. Neither did establishment of the two submissions. The appellant did also claim that he self-identified as an Ahmadi and feared persecution on that basis (the Ahmadi Claim), but that was a separate claim.

The authorities in regard to a failure to consider claims

23    Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 concerned an allegation that the Tribunal had failed properly to address a key question in assessing whether MZYTS was owed protection obligations. That question was how volatile and dangerous it was in Zimbabwe for persons who were actual or perceived supporters of the Movement for Democratic Change, but not leaders or high-profile persons (at [15]). Kenny, Griffiths, and Mortimer JJ stated at [31] that while the description “failure to consider more recent information” may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the Act. That task involves (at [34]):

[F]irst, correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

That task could not be lawfully undertaken without “a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there” (at [38]). The Court said later as follows:

[68]    In SZJSS at [27]-[28] (a passage extracted by Robertson J in [Minister for Immigration and Citizenship v SZRKT [2013] FCA 317] at [96]) the joint judgment of the court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

…

[70]    With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

24    In SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, Griffiths J set out the Minister’s submissions as to the state of the authorities at [75]–[78] (which he accepted subject to provisos not here relevant), and at [81] set out additional principles relevant in determining whether the Tribunal committed jurisdictional error in failing to address a substantive and clearly-articulated submission. I will endeavour to summarise from Griffiths J’s judgment (and the authorities his Honour cited) the principles here relevant: first, the Tribunal’s duty is to review, which requires it to consider and deal with clearly-articulated submissions of substance (SZSSC at [81(a)]); second, a failure to consider a submission that was substantial and clearly articulated (SZSSC at [75], [78], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]) or an undertaking of the task of review “without a consciousness and consideration of the submissions, evidence and material,” (SZSSC at [76], citing MZYTS at [38]), could amount to jurisdictional error. Those may be different ways of expressing the same principle (SZSSC at [77], citing SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [23]–[24]); third, not every failure to deal with a submission, evidence, or other material, will constitute jurisdictional error (SZSSC at [81(b)], citing SZRKT at [97]). Some evidence may be irrelevant and some contentions misconceived, though there is a distinction between failure to advert to evidence that might have led to a different factual finding, and failure to address a contention which, if accepted, might establish well-founded fear for a convention reason (SZSSC at [81(c)], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]); fourth, it may be appropriate to have careful regard to the Tribunal’s statement of decision and reasons including its summary of submissions received (and how it dealt with them) and its structure (SZSSC at [81(e)]); fifth, the burden is on the appellant to persuade the Court that any failure to deal with a submission is a jurisdictional error (SZSSC at [81(g)], citing MZYTS at [53]), and the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error (SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [19]–[20])

The Tribunal’s consideration of the appellant’s claims

25    It is convenient to identify in brief my conclusion, that the Tribunal failed to deal with the Family Group Claim, in advance of the reasons for it. As stated above, the appellant made two submissions in support of the Family Group Claim: first, that his grandfather was a prominent Ahmadi politician and therefore that his family was a well-known Ahmadi family throughout the Punjab; second, that members of his family were involved in a current and prominent court case that identified them as Ahmadi. The Tribunal addressed and rejected the second submission in the context of the Ahmadi Claim: it held that members of the appellant’s family were not conducting any court case that identified them as Ahmadi. That finding would have been made in the context of consideration of the Family Group Claim as well (if it had been considered), and so the Tribunal’s failure to address the family land case specifically in the context of the Family Group Claim did not affect the outcome. But, the Tribunal did not deal with the submission that the appellant’s family was a well-known Ahmadi family throughout the Punjab as a consequence of the prominence of the appellant’s grandfather as an Ahmadi politician. That constituted a jurisdictional error.

26    As Griffiths J identified in SZSSC at [81(e)], the structure of the Tribunal’s reasons warrants careful attention. At [13]–[14] above, I set out that structure. It is significant that at [9] of the Tribunal’s reasons it identified the Ahmadi Claim, the Minority Lawyer Claim, and the Educated Liberal Claim, but did not identify the Family Group Claim, and that the Tribunal’s reasons include headings that accord with the three identified claims.

27    The Tribunal occasionally re-iterated what it perceived to be the appellant’s claims. At [70], it observed that the appellant had not made a claim of having been harmed as an educated professional, simpliciter: “[h]is claims are based on being an Ahmadi, an Ahmadi/minority lawyer or an educated, professional Ahmadi” (emphasis added). In stating its conclusions on the question of future harm, the Tribunal said at [74] that it, “[did] not accept that the [appellant] will suffer serious harm … as an Ahmadi, as a lawyer engaged in blasphemy and minority cases or as an educated professional Ahmadi with liberal views … ” (emphasis added). At [75], the Tribunal said that “… [it did] not accept that there are substantial grounds for believing that … [the appellant] faces a real risk of suffering significant harm if returned to Pakistan because he is an Ahmadi or an Ahmadi lawyer or a minority lawyer or an educated professional Ahmadi or because he has appeared in blasphemy cases or religious cases or acted for minorities or acted against extremists … ” (emphasis added).

28    The identification of the claims at [9], the headings thereafter used, and the summaries of the appellant’s claims are indicative that the Tribunal did not deal with the Family Group Claim. But, while structure is relevant, it is not determinative, and though those matters sit ill with the centrality of the Family Group Claim in the Visa application, it is wrong to approach the Tribunal’s reasons with an eye keenly attuned to error. If the Tribunal did address the Family Group Claim albeit with less prominence than I might have myself, for instance if it was addressed in consideration of another claim, jurisdictional error would be unlikely. Analysis of the Tribunal’s reasons in regard to other claims is thus required.

29    The Minority Lawyer Claim turned on whether the appellant was a practising lawyer, rather than anything related to imputed identity as an Ahmadi. The Tribunal’s consideration of the Educated Liberal Claim turned on its incorporation of reasons “set out above” (at [69]), being those in relation to the Ahmadi Claim. Thus, the question is really whether the Tribunal dealt with the Family Group Claim in considering the Ahmadi Claim. In order to answer that question it will be useful to identify the essential features of the two claims. The features of the Family Group Claim are these: (1) the appellant is a member of his family group; (2) people would consider members of the family group (and therefore the appellant) to be Ahmadi whether they are or not (because of his grandfather’s prominence and the family land case). The features of the Ahmadi Claim are these: (1) the appellant is Ahmadi; (2) because he is Ahmadi people will perceive him to be Ahmadi. In each case there are two common further steps, namely: (3) Ahmadis and those perceived to be Ahmadi are persecuted in Pakistan; (4) the appellant therefore has a well-founded fear of persecution. The Tribunal accepted the third step: at [15] it said, “Ahmadis are subjected to severe legal restriction and discrimination in Pakistan,” and identified certain matters relating to Ahmadi belief arising in the Pakistani Constitution and the Pakistan Penal Code.

30    Expressed thus, the difference between the claims is clear. Each involves assertion of actual identity and of imputed identity, and in each case the imputed identity is that the appellant would be seen to be Ahmadi. But, the Ahmadi Claim is one of actual identity as an Ahmadi leading to that imputed identity, whereas the Family Group Claim is one of actual identity as a member of the appellant’s family leading to that imputed identity. Unlike the Ahmadi Claim, the Family Group Claim does not first require the establishment of actual identity as an Ahmadi or evidence of practice.

31    This difference is necessary to identify because the Tribunal referred occasionally in its reasoning to whether the appellant would be perceived to be an Ahmadi. On its face, that nature of language is capable of addressing either or both of the Family Group Claim and the Ahmadi Claim. But if the Tribunal was there considering only imputed identity that is derivative of actual identity as an Ahmadi, then the Tribunal would only have considered the Ahmadi Claim. In simple terms, if a claimant said that if either of propositions A or B is established then conclusion C is true, and the finder of fact said that it disbelieved A, therefore it disbelieved C, without more that would be an error and a failure to consider whether B had been established and (if so) whether B’s establishment led to conclusion C. With respect, that was the Tribunal’s error: it dealt with one claim as to why people would consider the appellant to be an Ahmadi (because he was: the Ahmadi Claim), but did not deal with another (because he was a member of a well-known Ahmadi family: the Family Group Claim).

32    The Tribunal’s consideration of the Ahmadi Claim commenced at [13]. There, under the heading “Ahmadi religion,” the Tribunal stated (with emphasis added) that “the [appellant] claims that he will be harmed as an Ahmadi. In support of his claim to be Ahmadi, he [made certain statements].” Those statements, in summary, were as follows:

(a)    that the appellant’s grandfather became an Ahmadi between 1965 and 1970, noting also that his grandfather’s grandfather was also Ahmadi;

(b)    that he suffered discrimination as an Ahmadi as a student, in his legal career, and as a businessman;

(c)    that he ceased to practice as an Ahmadi in 1995 or 1996 after his “teacher lawyer” was killed;

(d)    that his family were listed as Ahmadi in the 1986/87 electoral roll

(e)    that his grandfather was an Ahmadi member of the Punjab Assembly;

(f)    that his family were fighting a court case that identified them as Ahmadi;

(g)    that his uncle had been kidnapped, tortured, and beaten and that his uncle had allegedly been told that it was because he was Ahmadi.

33    Contrary to the Tribunal’s statement that those matters were raised in support of a claim “to be Ahmadi,” (i.e., of actual identity as an Ahmadi) many can be seen to have been advanced not for that reason but instead in support of the claim that, since he was a member of his family, he would be seen to be Ahmadi. That applies particularly to items (e) and (f).

34    At [14]–[19], under the heading “Ahmadi practice,” the Tribunal considered whether the appellant was at any time a practicing Ahmadi and concluded (at [19]) that he and his family engaged in little, if any, practice of the Ahmadi faith prior to 1999. At [20]–[22], the Tribunal referred to the electoral roll records that purported to show the appellant’s family having registered in 1986/87 as Ahmadis. The Tribunal did not accept the lists as genuine ([21]). Nevertheless, it accepted that the appellant’s family members were listed as non-Muslim voters when his grandfather was elected to the Punjab Assembly as a non-Muslim member. It concluded (at [22]) that the appellant had not been listed as non-Muslim since 1999 when his passport was issued showing his religion as Islam. At [23], the Tribunal referred to declarations that were required to be signed by passport applicants denouncing Mirza Ghulam (the founder of the Ahmadi faith) as a false prophet. It concluded that the appellant had signed such declarations in 1999, 2002, and 2011. At [24], the Tribunal noted that separate registers were maintained for Muslim and Ahmadi marriages and that the appellant married in a Muslim marriage arrangement. At [25], the Tribunal noted that the birth certificates of the appellant’s children showed their religion as Muslim.

35    All of those matters may well have been relevant to negativing actual identity as an Ahmadi and imputed identity derivative thereof—i.e., the Ahmadi Claim. But, in my opinion, they do not address and are irrelevant to a claim of imputed identity that does not rely on actual identity as an Ahmadi, like the Family Group Claim.

36    At [26]–[29] the Tribunal considered the family land case. I will return to that later. At [30], the Tribunal considered the appellant’s uncle’s kidnapping. A First Information Report (FIR) stated that the “bone of contention” that led to the kidnapping was a dispute over property. The appellant claimed that “his uncle told him after he was released that he had been kidnapped because of religion. The [appellant] stated that everyone knows his uncle is Ahmadi as he presented the land case in the court” (at [30]). But, having concluded that the uncle had not presented a case that identified him as Ahmadi, the Tribunal held that the uncle had not been kidnapped because he was an Ahmadi. It concluded (at [31]), “the [appellant] has not claimed that he was harmed because his uncle was kidnapped in connection with a property dispute and the Tribunal … does not accept that he suffered any harm or will suffer any harm in the future because of his uncle’s property dispute.” That was a mischaracterisation of the appellant’s submission. He did not claim that he would be harmed because his uncle was kidnapped or because of the property dispute. Rather, the claim was that his family was thought to be Ahmadi, in part because of the court case, and because of that they were at risk. The uncle’s kidnapping was proffered as an instance of the actualisation of that risk—i.e., evidence in support of a claim—not as a claim in itself. It is doubtful that [31] deals with any of the appellant’s claims but if it does then for the same reasons as will shortly be given in regard to the Tribunal’s consideration of the court case the consideration is of the Ahmadi Claim, not the Family Group Claim.

37    At [32], the Tribunal held that the appellant had not been discriminated against or been the subject of prejudice as an Ahmadi, on two bases, being: first, that the Tribunal “[did] not accept that the [appellant] present[ed] himself as Ahmadi or that he would be identified as Ahmadi;” and, second, that the appellant had three degrees, graduated as a lawyer, and established his own business which was inconsistent with his having been discriminated against. The reasoning included that “the Tribunal does not accept that the [appellant] identifies as an Ahmadi or practices the Ahmadi faith and therefore does not accept that he has suffered discrimination … as an Ahmadi” (emphasis added). This exposes the Tribunal’s approach: it set up an essential causal relationship between actual identity as an Ahmadi and imputed identity as an Ahmadi. That is valid and appropriate for consideration of the Ahmadi Claim, but it is inconsistent with consideration of the Family Group Claim. I observe, in passing, that the fact of a person having achieved success does not require the finding that the person has not been discriminated against. Nor is success necessarily “inconsistent” with discrimination. The Tribunal’s reasoning in this regard is arguably problematic but it is not necessary to consider that further.

The family land case

38    The Tribunal found at [26] and [29] that neither the appellant nor members of his family were engaged in a court case that identified them as Ahmadi. The Tribunal summarised, at [26], a 1945 decision of the High Court of Lahore that determined that the appellant’s father and uncle maintained their reversionary right to certain land upon the death of the appellant’s grandfather. The Tribunal noted that there was no reference to Ahmadis in the judgment (at [26]). The Tribunal set out the appellant’s claims to the effect that the High Court’s declaration was rendered void with the passage of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance 1983 (1983 Act), which inserted s 2-A into the West Pakistan Muslim Personal Laws (Shariat) Act 1962 (1962 Act). The appellant claimed that his uncle commenced an action seeking the execution of the High Court’s declaration on the basis that he and his family were not covered by s 2-A, being non-Muslim. The Tribunal held that there was no inconsistency as between s 2-A and the High Court’s declaration, said that the appellant had not claimed that his father and uncle had not inherited the land or that a third party was challenging that inheritance, and did not accept that there was any basis for an action arguing that s 2-A did not apply to the appellant’s family. The Tribunal also held, at [29], that the documents provided by the appellant purporting to be records of the local Session Court were not genuine.

39    In its consideration, the Tribunal used expressions like “publicly identifies [the family] as Ahmadis” (at [26]), “which identifies [the family] as Ahmadis” (at [29]), “a case in court that identified [the uncle] as Ahmadi” (at [30]), and “does not accept that the [appellant’s] family have been identified as Ahmadi” (at [33]). It seems me that while those passages do deal with imputed identity as an Ahmadi, it is an imputed identity that is derivative of a claim of actual identity as an Ahmadi, as is apparent from [13] where the Tribunal said that, “in support of [the appellant’s] claim to be Ahmadi, he stated that … [h]is family are fighting a case.” Again, that does not deal with a claim of imputed identity not based on actual identity as an Ahmadi, like the Family Group Claim. But, the Tribunal’s finding that no court case existed would have been fatal to the appellant’s argument that the court case established his family as a prominent Ahmadi family and that he was imputed to be Ahmadi on that basis. Thus, even if the Tribunal had dealt with the Family Group Claim, it seems certain that the family land case submission would not have been accepted.

40    The appellant also argued before the primary judge (see, e.g., [12] of the primary judge’s reasons) and before me that the Tribunal misunderstood his submission and lacked a proper understanding of the materials he advanced in support thereof. By letter dated 4 September 2013 to the Tribunal the appellant provided a “further submission in relation to the family’s 1945 land case.” That included a written submission, a copy of s 2-A, an online legal commentary on sections of the 1962 Act including s 2-A, and the 1945 decision of the Lahore High Court. Without criticism of the appellant, comprehension of his explanation requires a careful and close reading. Essentially, however, I understand the appellant’s point to be as follows. In 1935 the appellant’s grandfather purported to alienate an area of customary land. His minor sons, including the appellant’s father and uncle, sought to impugn the alienation on the basis that it was an act of bad management. They sought declarations that their reversionary rights were unaffected. It is inherent in that, and is confirmed by the commentary, that customary land is subject to restrictions on alienation. In 1945, the Lahore High Court granted to the plaintiffs a decree for a declaration to the effect that the sale as such would not affect their reversionary rights after the death of the appellant’s grandfather. It is apparent from the judgment of the Lahore High Court that among the bases upon which a sale of customary land may be upheld are as an act of “good management,” or as a legal necessity.

41    At that time, the 1962 Act did not contain s 2-A. In 1983, when the Court’s declaration had not been executed because the appellant’s grandfather was still living, the 1983 Act added s 2-A, which provided as follows:—

2-A    Succession prior to Act IX of 1948—Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom on usage or decree, judgment or order of any court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim—

(a)    he shall be deemed to have become upon such acquisition, an absolute owner of such land, as such land had devolved on him under the Muslim Personal Law (Shariat);

(b)    any decree, judgment or order of any court affirming the right of any reversioner under custom or usage, to call into question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat);

(c)    all suits or other proceedings of such a nature pending in any court and all execution proceedings seeking possession of land under such decree shall abate forthwith.

Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees.

42    The commentary describes the purpose of the amendment. In broad terms, restrictions on alienation that applied pursuant to customary law were contrary to Islamic law, and the aim was to remove the restrictions (including retrospectively) and render the holder an “absolute owner.” Section 2-A applied to land acquired before around 1948 and had retrospective operation to the time of acquisition by the relevant male heir (ss 2-A, 2-A(a)). Any court decree affirming a reversioner’s right under customary law, calling into question any alienation, or directing delivery or possession of such land was retrospectively void and of no legal effect (s 2-A(b)). Suits seeking execution of such a decree were to abate (s 2-A(c)). Importantly, the section applied only where “a male heir had acquired any agricultural land under custom from [a] person who at the time of such acquisition was a Muslim.” So, if the land was acquired from a non-Muslim, s 2-A did not apply. Finally, it did not apply where possession had already been delivered pursuant to a court’s decree.

43    Having set out those matters, the significance of s 2-A is apparent. If the appellant’s grandfather was a “male heir” to whom s 2-A applied, then it retrospectively deemed him an “absolute owner” at the time of his disposition of the land in 1935. Accordingly, his ability to sell the land was not fettered by questions of “good management.” The 1935 sale would be retrospectively, and notwithstanding the decree of the Lahore High Court, effective. The decree would be void as a consequence of s 2-A(b). There are a number of cases set out in the commentary in which that was the outcome. But s 2-A did not apply if the appellant’s grandfather acquired the land from a person who was not a Muslim, and (as the Tribunal recognised at [15]) the Constitution of Pakistan declares that Ahmadis are non-Muslims. So, whether or not the appellant’s family are (or were) Ahmadis would be relevant to a claim seeking possession of land on the basis of the decree. If the appellant’s grandfather acquired land from a non-Muslim, then s 2-A would not apply, the appellant’s grandfather would not be a deemed absolute owner, and the decree of the Lahore High Court would not be void. That is likely why the appellant in his submission to the Tribunal noted that the appellant’s grandfather’s father was Ahmadi.

44    The commentary describes a case that turns on precisely the issue of whether a litigant was Ahmadi, to which the appellant referred in his submission:—

Provision of s.2.A [1962 Act] (as added by [1983 Act]), did not apply to non-Muslims. Person claiming to be Non-Muslim (Ahmadis) had got decree under custom, whereby sale made by their father was deemed not to affect their reversionary rights after the demise of their father. Such decree-holders whether affected by S.2.A [1962 Act]. Case was remanded to First Appellate Court for determining the true faith of plaintiff and his father who had sold land in question; whether they professed Ahmadi faith and if found to fall within that fold, next question arising for decision would be the law governing their rights in the suit. …

45    On the basis of the material the appellant put before the Tribunal, I can well understand why the appellant says that the Tribunal misunderstood his submission as to why, given the operation of s 2-A, it was necessary for his family to assert their identity as Ahmadis in the family land case. But it is not necessary to reach concluded views about the foregoing because, while the authorities contemplate that the failure to understand a substantial submission can constitute jurisdictional error, I do not think that this submission is in that category. To illustrate by way of distinction, in SZTVA v Minister for Immigration and Border Protection [2014] FCA 1334, the “substantial argument” that was overlooked was that SZVTA “faced a present risk because the political situation in West Bengal had recently heated up” (at [9]). Here, the appellant’s “substantial argument” was that there was a court case that identified his family as Ahmadi. The Tribunal understood that submission and dealt with it. If, in so doing, it made errors as to the content of foreign law, any such errors would have been errors of fact: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115] (Gummow and Hayne JJ). Any error was not jurisdictional.

The appellant’s grandfather

46    The Tribunal mentioned the appellant’s grandfather at [16]–[17] and at [33]. At [16], the Tribunal found that the appellant’s grandfather was an Ahmadi member of the Punjab assembly from 1988 to 1990. At [17], the Tribunal went on to say that it did not accept that the appellant “has suffered any harm as a result of his grandfather’s religion or political role. His grandfather served in the Punjab Assembly [more than 20] years ago. The [appellant] has not claimed that his grandfather suffered any harm as a result of that service and he has not claimed to have suffered any harm because of his grandfather’s past role.”

47    It might be strictly correct that the appellant has not precisely claimed that particular identified instances of past harm were caused by his grandfather’s past role. But, he did claim that he had been discriminated against in his education, in his practice as a lawyer, and in his conduct of his business on the basis that the alleged discriminators perceived him to be Ahmadi. He further stated in his application that “[t]he situation for all Ahmadis is going from bad to worse,” that “[r]eligious fundamentalism is increasing,” that “[t]he majority of people think that if you kill an Ahmadi, you will go to heaven,” and (including in the context of a claimed worsening situation for Ahmadis) he unequivocally claimed that he feared future harm on account of being imputed to be Ahmadi as a consequence of his grandfather’s prominence.

48    Further he claimed (and the Tribunal accepted) that his uncle had been kidnapped and held in relation to a property dispute, and he claimed (and the Tribunal accepted) that his brother and brother-and-law had been charged with an offence, detained and mistreated by police, and remanded in custody for a time. In the first case the Tribunal rejected that the appellant’s uncle had been kidnapped because “he [the uncle] is Ahmadi,” and in the second case the Tribunal rejected that the appellant’s brother and brother-in-law had been harmed “because … [the appellant] is Ahmadi.” But that does not address whether members of the appellant’s family (including his uncle and brother) were seen to be Ahmadi as a consequence of their relation with the appellant’s grandfather, whether they were or not.

49    In that light, I do not consider that the Tribunal’s references to the appellant’s grandfather indicate that the Tribunal gave genuine and realistic consideration to the Family Group Claim. Even if he did not explicitly claim past harm on account of his grandfather’s prominence, he impliedly did so, and he certainly claimed to fear future harm on that account. The Tribunal’s reasons do not disclose that it genuinely grappled with what (I consider) was an important claim made in support of a finding of a well-founded fear of persecution.

50    Further, in so far as the Tribunal did consider the significance of the appellant’s grandfather, it appeared to do so in the context of the Ahmadi Claim, that is, as going to whether or not the appellant was in fact an Ahmadi. That is apparent first from the fact that its discussion appears under the heading “Ahmadi practice.” At [33], the Tribunal said that it “accept[ed] that the [appellant’s] grandfather may have been Ahmadi and that the [appellant] may have had limited involvement with the Ahmadi faith growing up,” but that “for the reasons set out above the Tribunal does not accept that the [appellant] identifies as an Ahmadi or has actively practised the Ahmadi faith.” The Tribunal there linked the prominence of the appellant’s grandfather with whether the appellant self-identified or practised as an Ahmadi. That is appropriate only in the context of considering the Ahmadi Claim. If the Family Group Claim were also being considered, one would expect to see reference to the appellant’s submission that his grandfather having been a prominent Ahmadi member of parliament would lead to the appellant being imputed to be an Ahmadi. There is no such reference.

51    It seems to me that there is a cogent connection between the facts established in regard to the appellant’s grandfather and his submission that his family was a prominent Ahmadi family in the Punjab region, and therefore with his claim that he would be imputed to be an Ahmadi. That was not reliant on his actually being an Ahmadi: it required only that the appellant’s grandfather was an Ahmadi member of the Punjab assembly (which the Tribunal accepted) and that that membership led to the appellant’s family (including the appellant himself) being prominent as Ahmadis in the Punjab region. That claim was not considered.

The Tribunal’s conclusions

52    The Tribunal summarised its findings at [33]–[34]:—

… . Whilst the Tribunal accepts that the [appellant’s] grandfather may have been Ahmadi and that the [appellant] may have had limited involvement with the Ahmadi faith growing up, for the reasons set out above, the Tribunal does not accept that the [appellant] identifies as an Ahmadi or has actively practised the Ahmadi faith. His passport and his marriage identify him as Muslim and his children are registered as Muslim indicating that he has actively denounced the Ahmadi faith. The Tribunal does not accept that the [appellant’s] family have been identified as Ahmadi through a court case. The Tribunal therefore does not accept that the [appellant] has been identified in [his district] or in Punjab as an Ahmadi or that he has suffered discrimination ore prejudice or any other harm as an Ahmadi.

The Tribunal does not accept that the [appellant] will suffer any harm in Pakistan now or in the reasonably foreseeable future as an Ahmadi given he has actively denounced the Ahmadi faith and is identified in official documents as a Muslim. The Tribunal does not accept that the [appellant] will suffer any harm now or in the reasonably foreseeable future because he [sic] grandfather sat as a non-Muslim member of the Punjab assembly in the 1980s or because his family may have been listed as non-Muslim voters in 1986/7. …

(emphasis added)

53    Nothing in those paragraphs indicates to me that the Tribunal had in mind the Family Group Claim. The phrases “identifies as an Ahmadi,” “actively practiced the Ahmadi faith,” “suffered discrimination or prejudice or any other harm as an Ahmadi,” and “suffer any harm … as an Ahmadi,” and the consideration of matters such as the appellant’s marriage certificate, passports, and his children’s birth certificates, are relevant to actual identity as an Ahmadi. If, in saying that it “does not accept that the [appellant’s] family have been identified as Ahmadi,” and “does not accept that the [appellant] has been identified … as an Ahmadi,” the Tribunal was referring to imputed identity, the Tribunal’s reasoning shows that the imputed identity that it had in mind was that which was consequential upon actual identity as an Ahmadi. The reference to the appellant’s grandfather is to be understood in the manner discussed above.

54    At [69], the Tribunal said, “[f]or the reasons set out above, the Tribunal does not accept that the [appellant] is of the Ahmadi faith or practices as an Ahmadi or is perceived to be an Ahmadi … .” While there is reference to the perception of the appellant, it is in the context of the actuality of Ahmadi faith and practice. It should be read as implicitly relying on the same logic made explicit elsewhere (e.g., at [32]), namely that because the appellant does not have actual identity as an Ahmadi he would not be imputed to be an Ahmadi.

55    At [71] and [75], the Tribunal says as follows:—

[71]    The Tribunal does not accept that the [appellant] faces a real chance of serious harm in the future because he is an Ahmadi. For the reasons set out above, the Tribunal does not accept that the [appellant] adheres to the Ahmadi faith or practices or is identified as an Ahmadi. … .

[at [72]–[74] the Tribunal summarises its views as to the minority lawyer, liberal views, and educated professional Ahmadi claims]

[75]    For the reasons set out above, the Tribunal does not accept that there are substantial grounds for believing that … [the appellant] faces a real risk of suffering significant harm if returned to Pakistan because he is Ahmadi or an Ahmadi lawyer or a minority lawyer or an educated or professional Ahmadi or because he has appeared in blasphemy cases or religious cases or acted for minorities or acted against extremists, separately or cumulatively.

At [71], imputed identity (“identified as an Ahmadi”) is dealt with in the manner derivative of actual identity as an Ahmadi, as I have described above. At [75] it is not mentioned at all.

56    In summary, I think that a fair reading of the Tribunal’s reasons discloses that it misapprehended the appellant’s claims and did not address the Family Group Claim. The structure of its reasons suggests that it did not consider the claim separately, as it did with other claims. Nor do I read its reasoning dealing with other claims (including the Ahmadi Claim) as dealing with the Family Group Claim. In paragraphs where imputed identity is mentioned (e.g., [17], [33]–[34], [69]), for reasons given above I am of the opinion that the imputed identity the Tribunal there considered was an imputed identity that would flow from actual identity as an Ahmadi, not from actual identity as a member of the appellant’s family. In so far as the Tribunal considered the prominence of the appellant’s grandfather and the family court case, it did so in the context of considering whether the appellant had actual identity as an Ahmadi.

Conclusion – Ground A

57    I find that the Tribunal failed to conduct a proper review of the appellant’s claims. Its task was not lawfully undertaken because it lacked a “consciousness and consideration of the submissions, evidence and material advanced” (c.f. MZYTS at [38]). Alternatively, in failing to consider a substantial and clearly-articulated submission the Tribunal failed to afford the appellant procedural fairness in the Dranichnikov sense. The approach in SZJSS, approved in MZYTS, directs attention to “the importance of the material to the exercise of the tribunal’s function and thus the seriousness of the error.” Here, the Tribunal has failed to deal with the claim most prominently advanced by the appellant in support of his application. In the context of the Tribunal’s finding (at [15]) that Ahmadis were subjected to severe legal restriction and discrimination in Pakistan, the material was fundamental and the error serious. It is apparent from what is said above that this goes beyond mere failure to deal with evidence. The Tribunal has failed to address a contention which, if accepted, might have established that the appellant had a well-founded fear of persecution for a Convention reason.

58    The Tribunal committed jurisdictional error. The primary judge fell into appellable error by failing to discern the Tribunal’s error. Ground (a) is made out.

Grounds B & C – failure to investigate

59    The appellant’s grounds (b) and (c) both raise failure by the Tribunal to make inquiries in regard to his practice as a lawyer (including concerning documents produced in support of the establishment of that practice), and so they will be dealt with together.

60    The Minister relied upon SZIAI. That case stands for the propositions that the Tribunal does not have a “general duty to undertake its own inquiries … ” (at [1], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), that as applied to the Tribunal the label “inquisitorial” merely delimits the nature of the Tribunal’s functions, the core function being to review the decision that is the subject of a valid application (at [18]), and, centrally (at [25]), that:—

[i]t may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

61    In SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at [21], Bennett J said that SZIAI established three conditions: first, whether the inquiry that the Tribunal failed to make was obvious; second, whether it concerned a critical fact, the existence of which was easily ascertained; and, third, whether it supplied a sufficient link to the outcome as to constitute a failure to review. With respect, I agree with and adopt that approach.

Relevant background to the “failure to investigate” grounds

62    The appellant claimed that he was a practicing lawyer until nearly the time of his departure for Australia. The Tribunal accepted that the appellant graduated as a lawyer and practised for a time (at [36]). However, it did not accept that he continued to practice after he started his business. The Tribunal referred to the appellant’s evidence concerning how busy the business was, and to his overseas travel. It recorded asking the appellant how he was able to involve himself in the business and maintain his legal practice. The appellant stated that he took orders for the business after hours and that he had the assistance of his brother or employees. The Tribunal rejected that explanation. It said this:—

The evidence indicates that the [appellant] had a significant business and the Tribunal does not accept that he was able to conduct this business and maintain a legal practice. Further, the Tribunal does not accept much of the [appellant’s] evidence in relation to his legal practice for the reasons set out below.

63    The appellant provided, inter alia, the following documents in support of his claim to be a practising lawyer:—

(a)    a letter headed “Experience Certificate,” dated 26 March 2012, on Bar Association letterhead, and purportedly signed by a Mr G in his capacity as President of the Bar Association;

(b)    a letter headed “To Whom it May Concern,” dated 30 July 2013, on Bar Association letterhead, and purportedly signed by a Mr S in his capacity as President of the Bar Association;

(c)    a letter headed “To Whom it May Concern,” dated 27 July 2013, on the letterhead of a Mr K and purportedly signed by Mr K in his personal capacity;

(d)    a letter headed “To Whom it May Concern,” dated 30 July 2013, on the letterhead of a Mr M and purportedly signed by Mr M in his personal capacity;

(e)    a letter headed “Certificate,” dated 23 January 2014, on the letterhead of Mr G and purportedly signed by him in his personal capacity;

(f)    a letter headed “Experience Certificate,” dated 23 January 2014, on the letterhead of the Bar Association and purportedly signed by a Mr W in his capacity as President of the Bar Association; and

(g)    variously-dated powers of attorney, described in more detail below.

The Tribunal’s investigation and reasoning

64    The Tribunal doubted that the 26 March 2012 letter was genuine as it had been signed by Mr G, purportedly as president, when the Bar Association’s website indicated that a Mr S was then the president. The appellant initially stated that the office-holders elected in 2012 did not take office until 2013 (at [37]), but later said that in fact it was not Mr S but Mr G that was president at the relevant time. Mr G’s letter dated 23 January 2014 purported to confirm that to be the position. The Tribunal did not accept that evidence, but accepted that the appellant was a “practising lawyer” in the sense that he had maintained his membership of the Bar Association (at [38]).

65    The letter dated 30 July 2013 and signed by Mr S had a different letterhead to the experience certificates, and the phone and fax numbers were reversed as compared with the 26 March 2012 letter and the 23 January 2014 letter. It did not state that it was an experience certificate, it contained statements that there was extreme danger to the appellant’s life, and it referred to two First Incident Reports which were purportedly attached. The Tribunal did not accept the letter as genuine.

66    Powers of attorney were provided, which the appellant stated were required for every case. The appellant’s evidence was that a lawyers’ clerk completed the form, the client and lawyer signed the form, and the client then took the form to court. He had asked a clerk to go to court and procure copies certified by a district judge. He said that he had two or three clerks between 2001 and 2011. The Tribunal disbelieved that the powers of attorney were genuine. It noted that the same handwriting appeared on forms over a ten-year period, that forms from 2001, 2002, 2005, and 2007 contained the same misspelling of the word “trial,” that the documents were incorrectly dated, and that two form were provided in regard to times during which the appellant was in Kuwait and Sri Lanka respectively. By “incorrectly dated,” I assume the Tribunal was referring to the fact that a place name had been inserted on the power of attorney forms where, apparently, the day of the month was supposed to be inserted.

67    The Tribunal did not refer to the letters signed by Messrs K & M. In regard to the 2014 letter signed by Mr W, the Tribunal noted that it “ha[d] not been able to verify if … [Mr W] was the president on 23 January 2014,” and did not deal further with that letter.

68    The Tribunal evidently visited the website of the Bar Association and conducted internet searches which led it to find an article concerning the 2013 elections for the Bar Association (at [37]). It did not contact the Bar Association, and it did not contact any of the individual letter-writers.

Consideration

69    The facts of SZIAI are illuminating by comparison. SZIAI professed to have converted to become an Ahmadiyya Muslim, and provided to the Tribunal two certificates purportedly signed by persons associated with the Ahmadiyya Muslim Jamaat at Khulna and certifying that he had joined the Jamaat in January 2000. The Tribunal sent those certificates to the Ahmadiyya Muslim Association Australia Inc asking the Association to comment on whether SZIAI was known to the Ahmadiyya Muslim Jamaat in Bangladesh (AMJ Bangladesh). The Association responded that it had received information from the AMJ Bangladesh, and enclosed a letter signed by its National Ameer. That letter recorded that the Ameer had contacted the Khulna Jamaat which said that SZIAI’s name did not appear in its records. The Ameer said that the certificates were fake and forged.

70    The Tribunal provided that letter and other material to SZIAI, asking him to comment. SZIAI replied through his solicitors saying, “[w]e are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.” SZIAI contended that the Tribunal should have contacted the individual letter-writers. The High Court said that to have done so would not have been useful (at [26]):—

If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.

71    SZIAI is distinguishable. The Tribunal in that matter took the obvious investigative step of contacting the Association. That was likely to provide corroboration or (as occurred) contradiction of SZIAI’s claims. The Tribunal here would have been in a similar position had it contacted the Bar Association and inquired whether and until when the appellant was a practicing advocate, and whether the experience certificates were genuine. If the Association replied that the certificates were forgeries or that the appellant was not known to the Association, it may then have been of no value to contact individual letter-writers.

Was the inquiry that the Tribunal failed to make an obvious inquiry?

72    The relevant inquiry was to contact the Bar Association. If the authenticity of a document purportedly issued by an organisation is in question, it is an obvious inquiry to contact the organisation and ask whether it really issued the document. Similarly, the Bar Association is the obvious point of contact to ascertain the truth or falsity of a claim by a person to be an advocate practising in a particular jurisdiction or area of a jurisdiction. In each case, I consider that the inquiry was obvious.

Did the inquiry concern a critical fact the existence of which was easily ascertained?

73    The central fact was whether the appellant was a practicing lawyer. A secondary fact that the appellant sought to establish in support of the establishment of the central fact was whether the documents purportedly issued by the Bar Association were genuine.

74    The central fact was critical. Whether or not the appellant was a practicing lawyer was essential to his claims to have a well-founded fear arising out of his legal practice. The rejection of the contention that he was a practicing lawyer negatived the establishment of that claim, and led to the rejection of other propositions. For example, the Tribunal rejected that the appellant had received threatening phone calls, it rejected that the appellant left court with his associate lawyer when the latter was killed, and it rejected that in 2012 the appellant was shot at, in each case because it did not accept that he was a practicing lawyer. The Tribunal rejected that documents reporting the appellant’s work as a minority lawyer were genuine, because (in part) it rejected that he was a practicing lawyer. Those matters, together and with others, led to a finding that the appellant did not face a real chance of serious harm in Pakistan for the reason that he was a lawyer, or a minority lawyer, or an Ahmadi lawyer.

75    The secondary fact (whether the documents were genuine) was not, however, critical. The Tribunal rejected the appellant’s claim that he was a practising lawyer for a number of reasons beyond that it did not accept the appellant’s documents as genuine. For instance, the Tribunal disbelieved that the appellant was a practising lawyer because it considered he could not simultaneously practice as a lawyer and carry on his business. The Tribunal relied on incorrect answers that the appellant gave as to the content of Pakistani law, unclear recollections of the facts of cases in which he claimed to have been involved, his claim to have appeared in the High Court when he was not licensed to so appear at the relevant time, and inconsistencies between the appellant’s recounting of the facts of cases and media reports or other information available to the Tribunal concerning those cases. In that circumstance, I think that no matter the outcome of an investigation by the Tribunal as to the genuineness of the experience certificates it would have found that the appellant was not a practising lawyer.

76    The existence of other bases for disbelieving the appellant as to the central fact (whether he practised as a lawyer) requires the determination of this second question against the appellant. The central fact was critical, but was not easy to establish. It was not easy because contacting the Bar Association would not have been determinative. It would have not addressed the Tribunal’s other concerns in regard to the appellant’s evidence. The secondary fact (whether the experience certificates were genuine) was easy to establish, but was not critical. It was not critical again because, even if it had been determined in the appellant’s favour, that would not have addressed the Tribunal’s other concerns and the likelihood is that the central fact would still have been determined contrary to the appellant’s contention.

Was there a sufficient link to the outcome to constitute a failure to review.

77    If I had held that the fact whether the experience certificates were genuine was critical, I would nevertheless not have found that there was a sufficient link between the failure by the Tribunal to inquire into their genuineness and the outcome of the proceedings. That is because the Tribunal had other reasons for rejecting that the appellant was a practising lawyer. On the other hand, if I had held that the central and critical fact – whether the appellant was a practising lawyer – was easy to establish, I would have held that there was a sufficient link to the outcome to constitute a failure to review.

Conclusion—failure to inquire

78    In the case of both of the facts I have considered, the obvious inquiry would have been to contact the Bar Association. But, in the case of the genuineness of documents the fact was not sufficiently critical and was not sufficiently linked with the outcome of the proceedings as to render the failure to inquire a jurisdictional error. And, in the case of whether the appellant was a practising lawyer, the fact was not sufficiently easy to ascertain so as to render the failure to inquire a jurisdictional error. The primary judge therefore did nor err in discerning no error.

The Tribunal’s fact-finding exercise

79    In his written submissions the appellant took issue with other aspects of the Tribunal’s reasoning in regard to his claims to be a practicing lawyer. He raised his capacity to practise as a lawyer while also carrying on his business, the letters issued in 2012, 2013, and 2014 by presidents of the bar, the genuineness of the power of attorney forms, and the “memory test” in regard to Pakistan penal court and criminal procedure. For reasons that follow, no jurisdictional error is revealed.

Finding in regard to powers of attorney

80    The Tribunal rejected the genuineness of the powers of attorney provided by the appellant including on the basis that some purported to have been executed when the appellant was out of the country. The Tribunal did not accept the appellant’s assertion that a court permitted powers of attorney to be signed by advocates some time after the date of the power of attorney. The Tribunal may not have been on especially firm ground in rejecting that explanation: there was no evidence before the Tribunal as to whether the relevant Sessions Court is one characterised by informality, or not. But, in any event, the Tribunal gave other reasons for rejecting the powers of attorney (see above at [66]). If the Tribunal did here err, any such error would be an error of fact and one within jurisdiction.

Carrying on business while practising as a lawyer

81    The Tribunal disbelieved that the appellant could carry on business and conduct a law practice at the same time. That appears to incorporate assumptions about the practice of law in the appellant’s district that do not have a clear evidential basis. It may be that in that district it is common for advocates to carry on a side business, even a substantial one. But, even if the Tribunal made an error in holding to the contrary, it would be an error of fact and within jurisdiction.

Finding in relation to blasphemy case

82    The Tribunal rejected the assertion that in 2005 the appellant acted in regard to a blasphemy charge. Among the Tribunal’s reasons was that when the appellant was asked under what provision of the Pakistan Penal Code his purported client was charged, he answered 295C when the charge fitting the appellant’s description of the offence would have been one under 295B. But, it is clear that at the time of the Tribunal hearing the appellant had a knowledge of the content of ss 295B and 295C, even if he identified the wrong section (see, e.g., at [45]). To my mind, identifying the wrong section initially and later identifying the right one, and having a vague recollection of the facts and timing of a matter, is not particularly surprising given that the case was said to have occurred in 2005 and the Tribunal hearing was around 7–8 years later in early 2013. But, if this was an error it was one within jurisdiction. The second reason given by the Tribunal for rejecting that the appellant acted for his purported client was that the relevant power of attorney was purportedly signed on a date when the appellant was in Kuwait. I have already said that the rejection of the powers of attorney was not constitutive of jurisdictional error.

Finding in relation to the 30 June 2013 letter

83    The appellant submitted that letters purportedly issued by presidents of the Bar Association were not, in fact, fake. In regard to the letter dated 30 June 2013, the Tribunal said this:—

The … Bar Association letterhead is different to the certificates and the phone number and fax number are around the wrong way. It is not an Experience Certificate as the other documents are but states that there is extreme danger to the [appellant’s] life, and refer to two attached FIRs. When asked if FIRs were attached, the [appellant] said he does not know. The Tribunal does not accept that the President of the … Bar Association, in certifying the [appellant’s] membership, would refer to FIRs, including FIRs not relating to the [appellant], or attach FIRs to his letter.

84    It seems to me that many of the Tribunal’s concerns about the letter are answered by the second sentence of that extract: “It is not an Experience Certificate as the other documents are … .” That may explain why the letterhead is different. Also, while one might not expect to find FIRs and commentary thereon in a letter that only certifies membership, this letter does more than that. The document is headed, “To Whom it May Concern,” rather than “Experience Certificate,” and only the first few sentences relate to the appellant’s membership of the Bar Association. The Tribunal might have inferred from the content of other letters including Mr K’s and Mr M’s that the appellant had contacted persons who he alleged were professional colleagues and asked them to provide letters, and that the appellant outlined the kinds of matters that would be relevant. Messrs S, K, and M all state that the appellant practiced in criminal and religious cases. Both Mr S and Mr M state that because of his practice his life and his family’s lives have been threatened. If that were the background to Mr S’s letter, the reference to FIRs lodged in relation to the criminal case against the appellant’s brother would be cogently connected with the purpose of the letter. Indeed, the Tribunal accepted that the appellant’s brother had been charged, detained, and mistreated by police (at [65]). As to the telephone and fax number, it was wrong for the Tribunal to disbelieve that a letter is genuine because the telephone and fax numbers differ from another letter that the Tribunal also disbelieves is genuine. If, as the Tribunal considered, the 26 March 2012 Experience Certificate was not genuine, then its recording of a telephone number could not provide a basis against which another letter could be said to be false because the latter differently recorded the number. As the Tribunal had evidently been to the Bar Association’s website, the telephone number recorded on the website might have served to identify a genuine baseline.

85    But, again I do not think that these matters rise higher than errors of fact. Jurisdictional error is not established. And, though the Tribunal failed to mention the letters of Messrs K and M, and it referred to the existence of but failed otherwise to consider the letter dated 23 January 2014, signed by Mr W purportedly in his capacity as President of the Bar Association, the Tribunal was not obliged to deal with every piece of evidence (SZSSC at [81]). The Tribunal had concluded that the various letters provided by the appellant were not genuine. It does not constitute jurisdictional error to fail to refer individually to each one of a group of documents that have been found to be forgeries, including because if they were forgeries they could not have materially affected the Tribunal’s decision.

86    Grounds (b) and (c) are not established.

Ground D—failure to refer to country reports

87    As the primary judge identified at [41], with respect correctly, having concluded that the appellant was not a lawyer who acted for minorities, it was not necessary for the Tribunal to consider country information on the treatment of such lawyers. There is no error. Ground (d) is not established.

Ground E—The family land case

88    There are two aspects to ground (e). First, that the Tribunal “failed the [appellant’s] land case on the basis of Ahmadi’s beliefs,” and, second, that (presumably) the primary judge declined to accept further documentary evidence in regard to that case. I read the first aspect as re-iterating the submission made in relation to ground (a), namely, that the Tribunal failed to understand and deal with submissions in regard to the family land case. As I said above, it is not necessary for the appellant to have leave to advance this ground because the issue is already before the Court in ground (a). As to the second aspect, there is nothing in the material before me, including the submissions and the primary judge’s judgment, that would enable me to determine either what was the content of the impugned ruling by the primary judge or whether it was made in error. Ground (e) is therefore unnecessary to consider in its first aspect, and has not been established in its second aspect.

Ground F—section 36(2)(aa)

89    The appellant’s complaint is that “the [T]ribunal has erred when considering s 36(2)(aa).” The Tribunal deals with s 36(2)(aa) at [77] of its reasons, as follows:—

Having concluded that the [appellant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the [appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

90    It was submitted on behalf of the Minister that [75] of the Tribunal’s reasoning also dealt with s 36(2)(aa). At [75], the Tribunal said this:—

For the reasons set out above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia, he faces a real risk of suffering significant harm if returned to Pakistan because he is Ahmadi or an Ahmadi lawyer or a minority lawyer or an educated or professional Ahmadi or because he has appeared in blasphemy cases or religious cases or acted for minorities or acted against extremists, separately or cumulatively.

91    I accept the Minister’s submission. Read as a whole, I am of the opinion that [71]–[73] are intended to address the three claims listed at [9]; [74] is the application of those findings to the test established by s 36(2)(a); [75] is the application of the same findings to the test established by s 36(2)(aa); and [76]–[77] are re-iterations of the conclusions in [74] and [75] for the purpose of disposition of the matter. Accordingly, I accept that the findings made in relation to s 36(2)(a) were, at [75], incorporated into consideration of s 36(2)(aa).

92    The ground of review was not particularised. The appellant dealt very briefly with the matter in his written submissions, but only to say that there were “extensive reasons in the finding[s] that [the] appellant did meet the criterion in s 36(2)(aa) and [the] appellant is [a] person in respect of whom Australia has protection obligations.” That does not assist. There is nothing in the material before me to indicate that the appellant advanced different matters in regard to s 36(2)(aa) than in regard to s 36(2)(a), and it was open to the Tribunal to rely on findings made for the purposes of s 36(2)(a) in dealing with s 36(2)(aa) (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (Robertson J) at [56]).

93    In those circumstances, ground (f) is made good for the same reasons as I have given in regard to ground (a). Namely, in the same way that the Tribunal failed to address for the purposes of s 36(2)(a) the Family Group Claim, it failed to address that claim for the purposes of s 36(2)(aa). Ground (f) is not otherwise established. In particular, while the primary judge at [42] tangentially raised the brevity of the Tribunal’s reasons in regard to s 36(2)(aa), brevity is not itself an error (NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 at [15] (Jacobson J)), and (as in SZSGA), it was open to the Tribunal to incorporate previous findings by reference and state a conclusion (without separate process of reasoning) that the appellant did not face a real risk of serious harm for any of the reasons he had identified. No jurisdictional error is here revealed. That being so, ground (f) is established, but only for the same reasons as for ground (a).

Disposition

94    Grounds (a) and (f) have been established. Accordingly, I will make orders allowing the appeal and remitting the matter to the Tribunal to be determined according to law. There is no apparent reason why costs should not follow the event, so I will make an order accordingly.

Associate:

Dated:    16 July 2015