FEDERAL COURT OF AUSTRALIA

ATU16 v Minister for Home Affairs [2019] FCA 1295

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs, to be assessed or agreed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

SNADEN J:

1    By notice of appeal dated 16 April 2018, the appellant appeals from a judgment of the Federal Circuit Court of Australia (hereafter, the “FCCA”): ATU16 v Minister for Immigration & Anor [2018] FCCA 686 (Judge Kelly). By that judgment, the FCCA dismissed an application that the appellant made to that court for relief in the nature of certiorari and mandamus, directed to a decision that the second respondent (hereafter, the “Tribunal”) made on 11 March 2016. By that decision (hereafter, the “Tribunal decision”), the Tribunal affirmed an earlier decision made by or on behalf of the first respondent (hereafter, the “Minister”), by which an application by the appellant for a protection visa made under the Migration Act 1958 (Cth) (hereafter, the “Act”), was refused. I will refer to that application hereafter, as the “Visa Application”.

2    The appellant is a Pakistani citizen. In his Visa Application, he claimed to hold a well-founded fear that, if he returned to Pakistan, he would be subjected to harm; or that there was a real risk that he would be subjected to such harm; in each case of the kind or kinds sufficient to satisfy the criteria for the grant of a protection visa for which s 36 of the Act makes provision. To that end, he advanced a number of contentions, including that:

(a)    he is and was an adherent of the Ahmadi faith;

(b)    his family, for reasons shortly to be elaborated upon, was well-known throughout his home region for its adherence to the Ahmadi faith, such that he was widely imputed to have the same faith;

(c)    before leaving Pakistan he practised as a lawyer and, in the time that he did so, acted in the interests of minority groups and against the interests of extremists; and

(d)    he is an educated professional of Ahmadi faith who is known throughout the region for holding, or to whom might otherwise be imputed, liberal views.

3    Those circumstances, individually and in combination, were said to ground the appellant’s fear that, were he to return to Pakistan, he would be killed or seriously harmed. The Tribunal did not accept that that was so. It found that the appellant did not satisfy any of the criteria that conditioned the grant of a protection visa. En route to doing so, it considered each of the constituent circumstances that the appellant advanced by way of explanation of his eligibility for such a grant.

4    Insofar as concerned the appellant’s alleged adherence to the Ahmadi faith, the Tribunal found the appellant’s evidence to be “vague, lacking in details and, at times evasive”. It considered the appellant’s passport and birth certificate, which both recorded “Islam” as his religion. It also noted that the appellant was married to a Muslim woman, and that their marriage had been effected under what was described as the Muslim Family Laws Ordinance 1961. The Tribunal also considered the appellant’s submission that he had been discriminated against on the basis of his Ahmadi religion. It described his evidence in that regard as “vague, lacking in details, and at times evasive”. It also noted that the appellant himself had conceded that he did not practice what he said was his Ahmadi faith in Australia. It described the appellant’s evidence about who it was that he claimed might know of his adherence to the Ahmadi faith as “vague and at times internally inconsistent”. It did not accept that the appellant’s father was Ahmadi. Those considerations ultimately grounded its finding that the appellant was not, as he claimed to be, an adherent of the Ahmadi faith.

5    The Tribunal then considered the appellant’s second contention: namely, that he was a member of a prominent Ahmadi family, or of a family that was otherwise known throughout the region to be Ahmadi. The appellant advanced two bases for that assertion. First, he said that his grandfather had been a prominent Ahmadi politician; second, he claimed that his family was involved in a significant court case involving his grandfather’s land. The Tribunal did not consider either to be dispositive. It found that the appellant had exaggerated his grandfather’s prominence, and the tribulations to which he claimed that his grandfather had been subjected on account of that prominence and/or his Ahmadi faith (the particulars of which need not here be explored). The Tribunal did not accept that there was any court case involving a dispute about the appellant’s grandfather’s land. There were various reasons for that finding, which it is not necessary here to state. The Tribunal’s conclusion was that the appellant’s family as a collective—and its members individually—had not suffered any harm on account of any legal proceedings, or any attribution to them of adherence to the Ahmadi faith (nor, indeed, on account of any actual adherence to that faith, to the extent that there was any).

6    The Tribunal then turned to consider the appellant’s former life as a lawyer in Pakistan and his claim that he had worked on cases on behalf of minority interests. The Tribunal explored with the appellant his involvement in such matters. It evidently did not find his explanations convincing, ultimately concluding that the appellant had not been involved in cases of the nature that he identified. Insofar as concerned specific cases in which the appellant claimed to have acted, the Tribunal found that, in fact, he had not.

7    Finally, the Tribunal considered the appellant’s contentions about the liberal views that he claimed to hold, and the publication or expression of such views that he claimed had occurred. Again, the appellant’s evidence on those scores appears not to have moved the Tribunal to accept his contention. It accepted that the appellant was an educated professional; but found his evidence about his alleged liberal views and beliefs to be vague and unpersuasive. It did not accept that he had ever published articles about, for example, blasphemy laws; nor that he had ever been criticised or subjected to verbal taunts as a result of doing so. It did not accept that he held and/or had widely communicated any views such that he might, upon return to Pakistan, have cause to fear any harm or persecution of the kind in connection with which a protection visa might issue.

8    In his application to the FCCA, the appellant claimed that the Tribunal Decision was the product of jurisdictional error. Six such errors were identified. They are, in effect (though not quite in terms), the same as the first six grounds of appeal that are now pressed in this court. That being the case, it is not necessary to examine in detail the findings of the court below, save to observe that it did not accept that the Tribunal’s decision was the product of jurisdictional error in any of the ways that were alleged. The question for this court is whether that conclusion was, in each case, correct. That requires analysis of the Tribunal’s decision. If, as the appellant contends, it exposes jurisdictional error of the kinds that he identifies, then it will follow that the court below erred by finding otherwise. If it does not, then the court below will have been correct to conclude as it did.

9    The six grounds that the appellant presses (and in respect of which he urges that this court should find that the Tribunal Decision was a product of jurisdictional error) are as follows (errors in the original):

1.     The decision of the Fedrel Circuit Court and tribunal was made without Jurisdiction or is affected by an error of jurisdiction.

a.     The Fedrel Circuit Court and Tribunal has failed to consider each integer of the applicant's claim or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91 R of Migration act .

b.     The applicant has made a number of claims regarding his practice as an Ahmadi or minority lawyer and has produced a number of documents to support it. The judge has rejected these documents on mere specultion. The tribunal has acess to facilites which acess the authencity of the documents and the tribunal should have verified these documents, rather than speculating and making generlized statements that fraudulent documents are rife in Pakistan .

c.     It would have been very easy to verify whether applicant was a practising lawyer until his depature to Australia and the tribunal has failed to do so.

d.     The Fedrel Circuit Court and tribunal failed to refer to the country information about the treatment of lawayers who act for minorties and the general situation in Pakistan.

e.     The Fedrel Circuit Court and tribunal erred when considering section36(2)(aa) .

f.     The Fedrel Circuit Court has failed to consider as impuned and labeled Ahmadi , small group of family and land cased based on ahmadis as considerd Fedrel Court in (MZABA VS IMMIGRATION AND REFUGEE TERMINAL)

10    A seventh appeal ground is advanced in this court, namely (errors in the original):

g.     No affidavit and documents provided and posted to the apllicant as in paragraph number 129, 133, 137, and 138 mentioned in decision of 28th of march 2018.

11    Before me, the appellant made submissions about his grounds collectively; and, about some of them, individually. As to the first, he claimed that the Tribunal failed to consider part of the claim or evidence that he advanced in support of his Visa Application. Specifically, he said that it failed to understand that there was a court case that his family in Pakistan is prosecuting in respect of a land claim that is only open to them to prosecute because, so the contention is put, they are Ahmadi; or, perhaps more precisely, because they are not Muslim. The nature of that claim was the subject of some analysis in MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425 (hereafter, “MZABA”) (Bromberg J). By that decision, this court remitted the appellant’s Visa Application for re-determination (it was that re-determination that is the Tribunal Decision with which the court is now concerned). In MZABA, Bromberg J said, at 437-439 [40]-[45]:

[40]     The appellant also argued before the primary judge…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 [West Pakistan Muslim Personal Law (Shariat) Act 1962] 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” (emphasis added). 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. …

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.

12    The appellant here, with respect, faces the same problem; but also a more significant one. The Tribunal here found that there was no ongoing court case involving a land claim in Pakistan. The appellant, of course, says the Tribunal was wrong so to conclude. Even if it was wrong, that would not be sufficient to establish jurisdictional error of the kind in respect of which the court below might have properly granted relief. In the decision below, the trial judge embarked upon a careful analysis of the claims that the appellant advanced and the matters that the Tribunal considered. There was and is no want of correspondence in those regards. I do not accept that there was an aspect of the case that the appellant advanced in support of his Visa Application that the Tribunal failed to consider. Further, I accept the submission of the Minister that it was not necessary, in any event, for the Tribunal to refer to every piece of evidence and every contention made by the appellant: see, in that respect, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 236 FCR 593, 604 [46] (French, Sackville and Hely JJ). Although he has couched this aspect of his appeal in the language of judicial review, what the appellant appears to agitate, instead and in truth, is more in the nature of merits review. I reject the first ground of appeal.

13    The second ground suffers from the same vice. The criticism of the Tribunal is that it should not have rejected “a number of claims” that the appellant advanced regarding his Ahmadi faith. He suggests that the Tribunal rejected documents upon mere speculation, and that it was open to it to have taken steps to have had their authenticity verified. I do not accept that the Tribunal rejected anything upon mere speculation. On the contrary, its decision is comprehensive and well-reasoned. Likewise, that there were (or might have been) avenues open to it to make inquiries about certain aspects of the appellant’s evidence is not, in my view, indicative of a constructive failure to discharge its function, nor otherwise of such unreasonableness as might (in either case) amount to jurisdictional error. The appellant did not identify why the making of such inquiries (assuming that there were some that could have been made) was the only course reasonably open to the Tribunal. I do not accept that it was. The appellant’s second ground of appeal is rejected.

14    The third ground of appeal may swiftly be dealt with. It charges the Tribunal with having failed to check whether the applicant was a practising lawyer until his departure to Australia. The Tribunal accepted as plausible the appellant’s contention in that regard. There was no need to make any further inquiry. It cannot be said that any failure to do so was indicative of jurisdictional error. The appellant’s third ground of appeal is rejected.

15    By his fourth appeal ground, the appellant complained that the Tribunal committed jurisdictional error by failing to refer in its decision to country information about the treatment of lawyers in Pakistan who act for minorities. As I have already stated, the Tribunal did not accept that the appellant acted in such cases. It was not, therefore, necessary that it should consider or refer in its decision to country information concerning that issue. The judge below came to the same conclusion and, with respect, was correct to do so. I reject the fourth ground of appeal.

16    The appellant’s fifth ground of appeal is that the Tribunal, erred when considering s 36(2)(aa) of the Act. In the hearing before me, the appellant explained that, in saying so, he advanced the same contentions concerning the court case that he told the Tribunal that his family was pursuing in Pakistan (about which I’ve already commented). The Tribunal, as is recorded above, found that there was no such case. This ground, again, strays well beyond the realm of jurisdictional error and squarely into the realm of impermissible merits review. I reject the appellant’s fifth ground of appeal.

17    The appellant’s sixth ground is, with respect, difficult to understand. The appellant appears to contend that the Tribunal failed to consider aspects of the appellant’s claim that he was, or might be thought to be, an adherent of the Ahmadi faith because of his family connections. Again, I stress that the ground is unclear and, with respect, was made only marginally clearer during the appeal hearing. In any event, the Tribunal Decision deals squarely with the issue that the appellant raised about the significance of his family connections to the Ahmadi faith (both through his grandfather and through what he contended was a significant court case involving his grandfather’s land). I do not accept that there was anything that the appellant advanced that the tribunal failed to consider. Again, the appellant, by this ground, invites the court to embark upon a process of impermissible merits review. This ground of appeal is also rejected.

18    The appellant’s seventh ground concerns some documents that the Tribunal had when it made its decision, but which were not, at that time, given to the appellant. Those documents concerned some fingerprint verification information pertaining to the appellant. I had understood by his notice of appeal that the appellant took the view that their non-production to him prior to the making of the Tribunal Decision bespoke jurisdictional error on the part of the Tribunal. The judge below dealt with that possibility—in my view correctly—on the basis that the documents did not have, or could not sensibly have had, any material bearing on the Tribunal’s decision, such that even if their non-provision might have amounted to error of a reviewable kind, there were discretionary reasons why no relief should be granted. Before me, the appellant—quite properly—accepted that the documents were not in any way relevant to his Visa Application. I proceed upon the basis that this appeal ground is no longer pressed; but, even if it is, I reject it for the same reasons that the judge below did. Those reasons are ably summarised at [138] of the FCCA’s reasons, where his Honour observed:

[138]    …the documents contained material that, on no view, could be thought to have prejudiced the interests of the applicant and could not and did not, even possibly, undermine the applicant's prospects of a favourable decision by the Tribunal: see also CQZ15, [72]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, [85]-[86]. To apply the principle in SZSSJ at [83], there was no denial of procedural fairness in failing to put the applicant on notice of the documents once they came into the Tribunal’s possession. They were not taken into account at all in the conduct of this inquiry.

19    It follows from the above that the appellant has failed to expose any jurisdictional error on the part of the Tribunal and, by extension, any appellable error on the part of the court below. The appeal will, therefore, be dismissed with costs.

Associate:

Dated:    21 August 2019