FEDERAL COURT OF AUSTRALIA

BQN20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1235

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is to be dismissed.

3.    The appellant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    INTRODUCTION

1    This proceeding is an appeal from a decision of what was then the Federal Circuit Court of Australia (FCCA) delivered ex tempore on 2 June 2021: BQN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1655 (J).

2    The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the appellant a Protection (Class XA) (Subclass 866) visa (Protection Visa).

3    The appellant is a self-represented litigant and appeared with the assistance of an Urdu interpreter.

4    Understandably, the appellant, as a self-represented litigant, with very limited English, found it difficult to distinguish between (a) merits and jurisdictional review, and (b) a hearing at first instance and an appeal. Although expressed in varying terms, his fundamental and overarching contention, advanced on appeal, was that the primary judge had failed to recognise that the Tribunal’s findings were sufficient to enliven his entitlement to the Protection Visa.

5    The appellant sought to raise some grounds of review in the appeal that he had not advanced before the primary judge. Necessarily, this required him to obtain leave to rely on these grounds. In turn, this required him to satisfy the Court that it was in the interests of justice that he be given that leave, having regard to his explanation for not raising those grounds before the primary judge, any prejudice to the Minister and, most importantly, the merits of those grounds.

6    For the reasons that follow, I have concluded that the notice of appeal must be dismissed.

B.    BACKGROUND

7    The appellant is a citizen of Pakistan.

8    On 26 November 2013, the appellant arrived in Australia as the holder of a Student (Class TU) (Subclass 573) visa (Student Visa).

9    On 8 June 2016, the appellant was notified of the intention to consider cancellation of the Student Visa.

10    On 3 July 2016, the appellant applied for the Protection Visa.

11    On 18 July 2016, the appellant’s Student Visa was cancelled.

12    On 3 March 2017, the appellant attended an interview for the Protection Visa.

13    On 17 March 2017, a delegate of the Minister (Delegate) refused the grant of the Protection Visa. The Delegate was not satisfied that the appellant met the criteria for a Protection Visa under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act), or that the appellant was a member of the same family unit as a non-citizen who holds a Protection Visa of the same class under s 36(2)(b) or s 36(2)(c) of the Act.

14    On 27 March 2017, the appellant applied to the Tribunal for a review of the Delegate’s decision not to grant the Protection Visa (Tribunal Application).

15    On 12 February 2020, the appellant attended a hearing before the Tribunal, with the assistance of his representative and an Urdu interpreter.

16    On 19 March 2020, the Tribunal affirmed the Delegate’s decision not to grant the Protection Visa. The Tribunal was not satisfied that the appellant met the criteria for a Protection Visa.

17    On 17 April 2020, the appellant filed an application in the FCCA pursuant to s 476 of the Act (FCCA Application). The appellant sought orders that the Tribunal’s decision be quashed and a writ of mandamus issue directed to the Tribunal requiring it to determine the Tribunal Application, according to law.

18    On 2 June 2021, the primary judge dismissed the FCCA Application and made orders that the appellant pay the Minister’s costs fixed in the amount of $6,500 (at J [39]).

19    On 23 June 2021, the appellant lodged a notice of appeal in this Court seeking orders that the orders made by the primary judge on 2 June 2021 be set aside, the Tribunal’s decision be quashed and a writ of mandamus issue directed to the Tribunal requiring it to determine the Tribunal Application, according to law (notice of appeal). The appellant also sought an order that the Minister pay the appellant’s costs in these proceedings and the proceedings in the FCCA.

20    On 1 July 2021, the Tribunal lodged a submitting notice save as to costs which was accepted for filing on 5 July 2021.

21    On 24 February 2023, the appellant filed brief written submissions.

C.    APPELLANT’S CLAIMS

22    The appellant advanced the following principal claims in his application for the Protection Visa concerning matters that had occurred while he was a lawyer in Sheikhpura, Pakistan, representing a man named Amar Zulfiqar against a charge of blasphemy:

(a)    Mr Zulfiquar had been threatened and tortured by Islamic radicals who accused him of making false statements regarding the prophet Muhammad;

(b)    during the period in which he was acting for Mr Zulfiquar, the appellant was abused, harassed, and his family was traumatised;

(c)    he reported threats he had received to the local police, who told him to step down from the case;

(d)    on 2 August 2010, the appellant lodged his first complaint against “the opponent party” in which he mentioned that he was kidnapped and gave a clear description of the offenders but the police were not willing to help;

(e)    on 10 September 2010, his car was “gunned down” whilst he was on his way to chambers, he escaped with minor injuries and again reported this matter to the police but they did not do anything;

(f)    on 18 December 2010, he was kidnapped, beaten with sticks and kicked several times in the gut and face by 5 male assailants and told that his grandparents and other family members would be punished if he reported the incident to the police;

(g)    he then went into hiding in nearby cities and travelled only to attend the court hearings;

(h)    his family continued to receive threats in the time that the appellant was in hiding and were disgraced in the local community;

(i)    on 9 July 2013, he escaped from the roof of a friend’s house as Islamic radicals surrounded the house, protesting and threatening to burn the house down if his friend did not allow them into the house;

(j)    on 19 September 2013, Mr Zulfiquar was acquitted, and from that date, the appellant constantly feared that he would be targeted by Islamic radicals, militant networks along with his local madrassa and Mosque;

(k)    in particular, the appellant feared that Islamic radicals would kill him for winning the case to make an example of him to the community;

(l)    if he returned, the Islamic radicals would definitely hunt him down and kill him, they had continued to threaten his family and the police were incapable or unwilling to assist him due to their connection with high-ranking religious officials; and

(m)    he could not relocate elsewhere in Pakistan as the Islamic radicals had forwarded his picture to their entire network and would track him down and assassinate him.

23    I note that the appellant in his claims variously referred to “Islamic radicals”, “fundamentalists” and “extremists”. I do not understand that the appellant was seeking to refer to different groups of people by using different descriptions and I have used the term “Islamic radicals” as a common term to describe the group of people that the appellant claimed to fear.

D.    THE TRIBUNAL’S DECISION

24    The Tribunal confirmed in its decision record dated 19 March 2020 (DR) that it did not have concerns in relation to the appellant’s use of an interpreter, or that his history of mental health issues impacted on his ability to meaningfully participate in the Tribunal hearing (at DR [14], [25]). The Tribunal was also satisfied that the appellant was a national of Pakistan (at DR [16]).

25    The Tribunal summarised the documents before it which contained the appellant’s claims. The Tribunal summarised the appellant’s evidence at the hearing in relation to his time in Australia, (at DR [26]-[28]), education (at DR [29]), family (at DR [30]-[31]), previous addresses (at DR [32]-[38]) and employment (at DR [39]-[42]).

26    The appellant gave evidence in relation to how long he had lived with his grandparents which was inconsistent with his email to the Department of 15 June 2016 (at DR [35]-[36]), and the Tribunal did not accept that the appellant was telling the truth regarding his previous living arrangements in Pakistan (at DR [38]).

27    The Tribunal observed that the appellant had not listed other addresses in Pakistan which would have been consistent with his claims of going into hiding by “mov[ing] to the close by cities” and “also within my city” (at DR [35]). The Tribunal did not accept that the appellant had hidden from his aggressors in the manner described in his application for a Protection Visa (at DR [38]).

28    The Tribunal considered the appellant’s claims in relation to the incident at his colleague’s house where he was forced to escape (at DR [47]-[61]). The Tribunal:

(a)    recorded that the appellant gave inconsistent testimony regarding whether people had entered the house and if so, whether they entered forcibly, whether he escaped via a back door or via the roof, and the date of the attack (at DR [50], [57]);

(b)    found the appellant’s evidence in relation to the incident to be “brief, inconsistent, and unconvincing” (at DR [60]); and

(c)    was not satisfied that the incident occurred as alleged (at DR [61]).

29    The Tribunal considered the appellant’s claims in relation to an attack on his car at (at DR [62]-[73]). The Tribunal:

(a)    recorded that the appellant gave inconsistent dates for the attack (at DR [63]);

(b)    considered information in the Department of Foreign Affairs and Trade Country Information Report (DFAT Country Information) in relation to the falsification of First Information Reports in Pakistan and concluded that it could not rely on the document provided by the appellant as being accurate (at DR [67], [69]);

(c)    found it implausible that the appellant would be able to escape if the car was being “shot at” by perpetrators said to be damaging the car while holding guns, but also were said by the appellant to be damaging the car with sticks (at DR [72]); and

(d)    was not satisfied by the appellant’s account of the incident (at DR [68], [72]).

30    The Tribunal considered the appellant’s claims in relation to beatings and kidnappings, including an incident described by the appellant where he was beaten in a field (at DR [74]-[84]). The Tribunal:

(a)    recorded the inconsistencies in the appellant’s claims regarding the dates of the attacks, whether they involved kidnapping, whether they arose as a result of his participation in a protest, and whether he was beaten with sticks (at DR [74]-[82]);

(b)    accepted that the appellant may have been the victim of indiscriminate violence at a protest, but not that he was targeted because of his legal defence of his client with the exception of one attack in 2010 (at DR [82]); and

(c)    was prepared to accept that the appellant was attacked in a field in 2010 as a consequence of his legal defence in the blasphemy case but found that it was a “one-off” and “contained” incident and that no further incidents had occurred after 2010 (at DR [83]).

31    The Tribunal considered the appellant’s claims in relation to the harassment of his family (at DR [85]-[91]). The Tribunal:

(a)    noted various inconsistencies in the appellant’s evidence regarding the manner in which the threats were communicated, their duration, and to whom they were targeted (at DR [85]-[90]); and

(b)    accepted that some threats had been made but was satisfied they were confined to the period of his legal representation during the blasphemy trial and had not persisted beyond 2013 (at DR [90]).

32    The Tribunal considered a claim made by the appellant during the Tribunal hearing that he had been harassed by telephone (at DR [92]-[96]). The Tribunal:

(a)    was willing to accept that he had received verbal pressure to alter or disadvantage his client’s case but found the appellant’s evidence to be “shifting, vague and unconvincing” (at DR [95]); and

(b)    did not accept that specific threats were made to the appellant in telephone calls to his chambers in relation to his involvement in the blasphemy trial (at DR [95]).

33    The Tribunal put to the appellant several claims (including inconsistencies) that he had previously made which he had not repeated at the hearing and recorded his response (at DR [100]-[109]). The Tribunal was, ultimately, not satisfied that the appellant was a witness of credit (at DR [109]).

34    The Tribunal was not satisfied that the protection obligations in the Act were enlivened as a consequence of the appellant’s claims relating to: the attack at his friend’s house (at DR [61]), the attack on his car (at DR [73]), the beatings or kidnappings (at DR [84]), the threats to his family (at DR [91]), threatening phone calls (at DR [96]), an attack on his chambers (at DR [104]), and approaches to him not to assist people generally (at DR [106]).

35    The Tribunal was satisfied that the appellant had engaged with its questions and had not been evasive or deliberately misleading in his evidence. The Tribunal, however, was not satisfied that the appellant was a witness of credit because of substantial inconsistencies between the appellant’s testimony at the Tribunal hearing and the documentation before it and the two and a half year delay between the appellant’s arrival in Australia on the Student Visa and his application for the Protection Visa (at DR [109]).

36    The Tribunal considered the length of time between the appellant’s arrival and his application for the Protection Visa and did not find the appellant’s explanation for the delay to be credible (at DR [110]-[113]).

37    The Tribunal considered whether the appellant was associated with the governing political party in Pakistan (at DR [115]-[126]). The Tribunal:

(a)    observed that the appellant’s evidence was inconsistent with a photograph of him standing behind the then Prime Minister of Pakistan, Imran Khan (at DR [117]); and

(b)    was satisfied that the appellant had at least potential connections with the governing political party in Pakistan (at DR [125]).

38    The Tribunal considered the criminal justice system of Pakistan and the appellant’s ability to avail himself of its protection (at DR [127]-[138]). On the basis of the appellant’s evidence and the DFAT Country Information, the Tribunal did not accept that the appellant was afraid of the police or that the police would not protect him (at DR [137]).

39    The Tribunal considered the appellant’s evidence that he could not return to Pakistan (at DR [139]-[144], [154]-[157]) or relocate within Pakistan (at DR [145]- [153]). The Tribunal:

(a)    was satisfied that the appellant would be able to return to Pakistan (at DR [143], [157]); and

(b)    notwithstanding its findings that the appellant and his family would not be subject to any future threats, harassment or violence in his home city of Sheikhpura in connection with his representation of an alleged blasphemer between 2010 and 2013, was in any event, satisfied the appellant could relocate in Pakistan due to the proximity of other large urban centres offering anonymity (at DR [150], [152]).

40    Having stated that it had considered the appellant’s claims individually and cumulatively (at DR [158]-[162]), the Tribunal affirmed the Delegate’s decision under review (at DR [163]).

E.    PROCEEDINGS IN THE FEDERAL CIRCUIT AND FAMILY COURT

41    By the FCCA Application filed on 17 April 2020, the appellant sought judicial review of the Tribunal’s decision. The appellant raised the following six unparticularised grounds before the primary judge (as written):

1.    That the Tribunal erred in its decision when it failed to consider relevant facts regarding the applicant’s protection visa application.

2.    That the Tribunal failed to consider significant harm and a well-founded fear of being persecuted in a country of reference.

3.    That the Tribunal failed to consider that risk of persecution is absolute and relates to all areas of the country of reference.

4.    That the tribunal noted 96.28% population of Pakistan being Muslim. Of the 96.28%, 85 to 90 percent belong to Sunni faith, however even after the recognition of such majority of Sunni faith population, the Tribunal failed to acknowledge 90% real risk of persecution by such Sunni population.

5.    That the tribunal failed to acknowledge influence of such religious extremist over the local and provincial justice system.

6.    That the tribunal is forcing me to return to Pakistan and to continue advocacy whereas I cannot do so because wherever I would practice as lawyer, I would easily be recognised by radicals.

42    The primary judge found the grounds of review to be “significantly generalised” and the claims those grounds advanced to represent a “fundamental disagreement” with the Tribunal’s decision (at J [34]).

43    His Honour addressed grounds 1 to 3 of the FCCA Application together and concluded at J [35]:

In my view, the first three grounds in the application, which refer to alleged failures to consider either relevant facts, well-founded fear of being persecuted, or failure to consider the risk of persecution, are not made out. The matters complained of were, in fact, considered extensively by the Tribunal. In the light of the cases to which I have referred, no relevant procedural or process error has been shown. Read fairly, the Tribunal’s extensive reasons properly, accurately, and in detail consider each of the claims raised by the Applicant.

44    The primary judge then concluded with respect to grounds 4 to 6 at J [36]:

In relation to grounds 4, 5 and 6 in the Application, they too are generalised complaints. They concern, for example, the Applicant being forced to return to Pakistan and the risks he will face as a lawyer, the alleged failure of the provisional justice system, and certain percentages that are referred to in relation to certain parts of the population. Each of these are unparticularised. There is the further alleged failure by the Tribunal to consider certain information. To repeat, read fairly, in my view, the Tribunal’s reasons very thoroughly canvass each of the grounds of the Applicant’s claims. Plainly, the Applicant disagrees with the Tribunal’s decision. Emphatic disagreement, without more, does not establish any error of the kind that would warrant this Court to interfere with the Tribunal’s decision.

45    His Honour held that no relevant legal error as to process, or reasoning, had been identified or established by the applicant (at J [37]). His Honour otherwise accepted and adopted the Minister’s submissions (at J [38]).

46    Accordingly, the primary judge dismissed the application with costs (at J [39]).

F.    LEAVE TO RELY ON NEW GROUNDS OF APPEAL

47    By the notice of appeal dated 23 June 2021, the appellant advanced six grounds of appeal. The Minister submits that these grounds were not raised before the primary judge. To the extent that the grounds had not been raised before the primary judge, the appellant requires leave to raise them for the first time on appeal. Further, in the course of the hearing, an issue arose as to whether the appellant had raised further grounds of appeal in his written submissions.

48    The appellant submitted that his written submissions were intended to provide greater specificity to his six grounds of appeal rather than raising additional discrete grounds of appeal. I accept that is largely the case, with the exception of the matters sought to be advanced at [16]-[18] and [21] of the written submissions (Additional Grounds). I address whether leave should be granted to rely on the Additional Grounds below, after addressing the six grounds of appeal.

49    The principles governing whether an appellant ought to be granted leave to advance a new ground on appeal are well-established. The principles were succinctly summarised by the Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 (Kiefel (as her Honour then was), Weinberg and Stone JJ) in the following passages:

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

50    In Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 (Katzmann, Banks-Smith and Rofe JJ), the Full Court of this Court also relevantly stated at [34]:

The Court’s power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules: FCA Act, s 37M. That purpose is the facilitation of “the just resolution of disputes… according to law” and “as quickly, inexpensively and efficiently as possible”. It includes objectives such as the just determination of all proceedings before the Court; the efficient use of the Court’s judicial resources; the efficient disposal of the Court’s overall caseload; and the timeous disposal of all proceedings. Dealing with a point for the first time on appeal does not serve those objectives.

51    The importance of the merits of a proposed new ground sought to be advanced on appeal in refugee cases was emphasised by the Full Court of this Court in CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [36] (Murphy, Mortimer and O’Callaghan JJ):

There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration & Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

52    In considering whether leave should be given to raise a new ground on appeal, it is not necessary to embark upon a “full consideration” of the ground as to do so “would make the requirement for leave meaningless”: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] (Heerey, Moore and Goldberg JJ).

53    The Minister submits that the appellant has not provided any explanation for seeking to raise new grounds and that the new contentions are devoid of merit. The Minister contends that leave should, therefore, be refused.

G.    RELEVANT PRINCIPLES

54    An administrative decision maker is required to engage in what has been described by the Full Court of this Court in a number of recent cases as “an active intellectual process” with the “relevant matters or criteria”: Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J, as her Honour then was); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35], [46] (Griffiths, White and Bromwich JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155 at [76] (Allsop CJ, Kenny and Snaden JJ). In this regard, findings require a probative basis and “some intellectual engagement that is beyond stereotyping and speculation”: DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [53] (Bromberg, Mortimer and Snaden JJ).

55    As the High Court, however, explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ), in scrutinising the decisions of decision makers, it is necessary for the Court to recognise that:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Citations omitted.)

56    In M1, their Honours Kiefel CJ, Keane, Gordon and Steward JJ, relevantly, also stated the following in respect of the requisite level of engagement required by an administrative decision maker:

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Citations omitted.)

57    Reasons for an administrative decision that are illogical, irrational, or legally unreasonable may give rise to jurisdictional error. Illogicality, irrationality and unreasonableness do not solely arise in respect of a decision maker’s ultimate conclusion or decision. Each may also arise in respect of findings or reasoning leading to the ultimate conclusion or decision, albeit that the overarching question is whether the decision is affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ); see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 at [58]-[61]; King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [52] (Anderson, Feutrill and Raper JJ)

58    The Court’s role in reviewing an administrative decision for legal unreasonableness is “strictly supervisory” and is an exercise concerned with determining whether there has been a lawful exercise of power having regard to the terms, scope and purpose of the relevant statutory power Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [92] (Wigney J); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [65] (Allsop CJ, Griffiths and Wigney JJ); King at [53]. It would not be the correct approach for the Court to reach its own view of what is reasonable or not, and to supplant the view of the Minister. Rather, the question, ultimately, is whether the conclusion is one upon which reasonable minds can differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, and if the answer to these questions is yes, the exercise of power will not be legally unreasonable: Stretton at [21] (Allsop CJ), [92] (Wigney J).

59    Further, the existence of error is not sufficient to establish jurisdictional error. It is also necessary to establish materiality. An error is only material if there is a realistic possibility that the decision in fact made could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ); CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917 at [71], [83] (Stewart J). A majority of the High Court recently declined to revisit the explanation of materiality in SZMTA, describing it as “sound in principle and consistent with precedent”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

H.    GROUNDS 1 AND 5

60    It is convenient to address grounds 1 and 5 together.

61    Ground 1 is in the following terms (as written):

1.    The Primary Judge erred in not finding that the appellant has a well-founded fear of persecution because of his membership of a particular social group or political opinion.

Particulars

i.    The Tribunal accepted that an incident occurred whereby he was indiscriminately attacked when in a car; [Tribunal decision at [72]

ii.    The Tribunal accepted that the appellant received verbal pressure from people to alter or disadvantage his client's case so it was less likely to be successful and that this would have occurred around the time the case was being heard in court; [ Tribunal decision at [95)

iii.    The Tribunal accepted that the appellant experienced some level of physical and verbal harassment and intimidation in relation to his representation in court of an alleged blasphemer and his involvement in the Lawyers' Movement in Pakistan [Tribunal's decision at [103).

iv.    The Tribunal accepted that the appellant was approached between 2010 and 2013 regarding his representation of an alleged blasphemer during that period (but it is not satisfied, based on the evidence, that the appellant received approaches not to assist people generally). These approaches to the appellant coincide with some of the physical and verbal harassment found to have been suffered by the appellant at the time he was representing the alleged blasphemer in Pakistan; [Tribunal's decision at [106)

v.    The Tribunal accepted that at least one lawyer has previously been killed for representing someone accused of blasphemy: [Tribunal's decision at (141]]

62    Ground 5 is in the following terms (as written):

5.    The Primary Judge erred in not finding that there was a real chance that if the applicant returned to Pakistan, he would be persecuted for reasons of his membership of a particular social group (being a lawyer) pursuant to s.5J(1)(b) of the Act.

Particulars

vi.    The appellant reiterates the particulars to the Ground 1 above.

63    By grounds 1 and 5, the appellant contends that the primary judge erred in failing to find the appellant faced a real chance of persecution were he to return to Pakistan, on the basis of his membership of a particular social group, namely lawyers.

64    The Minister submits that these grounds of appeal were not raised before the primary judge.

65    On balance, I am satisfied that these grounds raise, with greater particularity, the complaint advanced in ground 2 before the primary judge, which as I have noted above, was in the following terms:

That the Tribunal failed to consider significant harm and a well-founded fear of being persecuted in a country of reference.

66    I do not see any material distinction between a failure to consider a “well-founded fear of being persecuted” and “failing to find that the appellant faced a real chance of persecution” if he were to be returned to Pakistan.

67    The Minister correctly submits, however, that these grounds, as formulated, rise no higher than impermissible merits review. It was not for the primary judge to conclude that the appellant had a well-founded fear of persecution; that was the task of the Tribunal alone.

68    In my view, as the primary judge held in respect of the appellant’s grounds below, the Tribunal considered each of the appellant’s claims in a “proper, accurate and detailed manner” (at J [35]). While the Tribunal accepted some of the appellant’s claims, the Tribunal was not satisfied given its rejection of the appellant’s remaining claims, inconsistencies in the appellant’s evidence and the country information before it, that the appellant faced a real chance of serious harm or a real risk of significant harm for the purposes of s 36(2) of the Act. Those findings were open to the Tribunal for the reasons it gave. There was nothing in the material to support a finding that the Tribunal failed to consider the appellant’s claims to a well-founded fear of persecution resulting from his membership in a social group or his political opinion.

69    In the course of the hearing of the appeal, the appellant recast ground 1 (and it would follow, by extension, ground 5) in terms that might fall within a recognised category of jurisdictional error. The following exchange with the appellant through his interpreter is instructive:

THE INTERPRETER:     [The Tribunal] accepted my story partially, on one side, and on other side, they didn’t give me any relief.

HIS HONOUR:    So are you saying that no rational decision-maker would have not given you relief, having made these findings?

THE INTERPRETER:    Yes, that is what I’m saying…if they had accepted my claims, then they would have given me some relief.

(Ellipsis in the original.)

70    In substance, the appellant contended that, having made the findings that the appellant had identified in the particulars to these grounds, it was illogical, irrational or unreasonable for the Tribunal not to conclude that he had a well-founded fear of persecution because of his membership of a particular social group.

71    Relevantly, the Tribunal found the appellant and his family would not be subject to any future threats, harassment or violence if they were to return to Pakistan, or that he would be persecuted on the basis of his membership of a particular social group or political opinion (see DR [106], [114], [138]). In reaching that conclusion, the Tribunal found it implausible that the police would protect the appellant’s senior lawyer and his client (the alleged blasphemer) but not afford the appellant any protection (at DR [137]). The Tribunal’s acceptance that the appellant was indiscriminately attacked in his car, received verbal pressure to alter or disadvantage his client’s case, experienced some level of physical and verbal and physical harassment concerning his representation of an alleged blasphemer and that one lawyer had previously been killed for representing a person accused of blasphemy, was not sufficient to make the Tribunal’s finding illogical, irrational or unreasonable.

72    In my view, that conclusion reached by the Tribunal was one upon which reasonable minds could differ and the outcome fell within the range of legally and factually justifiable outcomes. It was not a conclusion that could fairly be characterised as perverse or impermissible, particularly given the country information available to the Tribunal and the adverse credit finding that the Tribunal made against the appellant.

73    Grounds 1 and 5 have not been established.

I.    GROUND 2

74    Ground 2 is in the following terms (as written):

2.    The Primary Judge failed to find that the appellant was not provided procedural fairness during the Tribunal hearing.

Particulars:

The Tribunal made a reference to the DFAT Country Information Report and relied upon that information in rejecting the appellant's claim and the documents produced by the appellant in support of the claim but failed to provide the appellant an opportunity to comment on the information.

75    I accept the Minster’s submission that this ground was not raised before the primary judge and the appellant, therefore, needs leave to raise it on appeal.

76    The ground is fundamentally misconceived.

77    The only obligation on the Tribunal to disclose adverse information to the appellant under the Tribunal’s limited procedural fairness obligations (as codified in Div 4 of Pt 7 of the Act) arises under s 424A of the Act.

78    Section 424A relevantly provides:

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

    …

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

79    I am satisfied that the country information relied upon by the Tribunal is information that was not specifically about the appellant or another person. It contained information about a class of persons of which the appellant or another person was a member. It, therefore, falls within the exception provided by s 424A(3)(a) of the Act. There was no obligation on the Tribunal to put this information to the appellant for comment.

80    This ground has insufficient merit to warrant leave being granted to raise it as a new ground on appeal. I am satisfied that it is not expedient in the interest of justice for leave to be given to raise this ground.

J.    GROUND 3

81    Ground 3 was in the following terms (as written):

3.    The Primary Judge erred in not finding that the Tribunal placed an inappropriate weight on the Country Information.

Particulars:

The Tribunal fell into jurisdictional error by placing too much reliance on the Country Information as against the oral statement and documentary evidence of the appellant.

82    I accept the Minster’s submission that this ground was not raised before the primary judge and the appellant, therefore, needs leave to raise it on appeal.

83    The Minister, again, correctly submits that it is well established that it is for the Tribunal, as part of its fact-finding function, to identify such material, as it finds relevant to its reasoning and to give it appropriate weight.

84    A contention that the Tribunal placed “inappropriate weight” on certain material or “too much reliance” on some material “as against” other material, impermissibly strays into merits review. The weight to be given to the DFAT Country Information, oral statements by the appellant and documentary evidence, is a matter for the Tribunal. Absent irrationality, illogicality or unreasonableness, no jurisdictional error can arise.

85    The challenge to these findings of the Tribunal are more properly characterised as impermissible challenges to factual conclusions and an impermissible challenge to the merits of the decision made, as opposed to jurisdictional error.

86    This ground has insufficient merit to warrant leave being granted to raise it as a new ground on appeal. I am satisfied that it is not expedient in the interest of justice for leave to be given to raise this ground.

K.    GROUND 4

87    Ground 4 is in the following terms (as written):

4.    The Primary Judge erred in not finding that the relocation is not reasonable in the circumstances of this case.

Particulars:

i.    The Tribunal informed the applicant that if it were satisfied that his fears relate to only one region of Pakistan and that he could re-locate to a safe area the Tribunal may reject his claim. The Tribunal then simply jumped to the conclusion that the city of Lahore is approximately one hour's drive from the applicant's city of Sheikhupura and the city of Islamabad is approximately three hundred kilometres from that same city. These two alternate cities are considered large urban centres offering some anonymity from those fleeing non-state actors. There was no evidence before the Tribunal suggesting that the extremists and non-state actors cannot operate in Lahore or Islamabad and for that matter these cities were safe for the applicant regarding his proposed relocation.

ii.    The Tribunal did not consider that the Governor of the Punjab province was murdered in Islamabad and that too by a police constable.

iii.    The Tribunal relied heavily on the applicant's association with the PTI party, the political party of the majority coalition party in government in Pakistan. The Tribunal misdirected itself and asked itself a wrong question when it reached the conclusion that due to the connections with the ruling party, the applicant does not have a real chance of the fear of the persecution at the hands of the religious extremists and non-state actors.

iv.    The Tribunal referred to the DFAT country information and formed an opinion that there was functioning police. However, the Tribunal did not consider that the Governor of the Punjab was killed by a police constable who was responsible for his security.

88    I accept the Minster’s submission that this ground was not raised before the primary judge and the appellant, therefore, needs leave to raise it on appeal.

89    The Minster submits that having found at DR [138] that the appellant did not face a real chance of persecution, or a real risk of significant harm were he to return to Pakistan, the Tribunal was not required to further consider whether the appellant could relocate or whether relocation was reasonable. The Minister submits that it follows that any consideration of specific relocation issues could not give rise to any error, nor could it have any material bearing on the Tribunal’s earlier findings that the appellant did not face a real chance of serious harm or a real risk of significant harm.

90    Further, and in any event, the Minister submits that there was no error in the Tribunal’s failure to find that relocation was not reasonable.

91    I accept, as submitted by the Minister, that given the Tribunal’s finding that the appellant did not face a real chance of serious harm or real risk of significant harm, any alleged error in considering opportunities for relocation could not be material.

92    Further, and in any event, in my view, the Tribunal’s finding that it was satisfied that the appellant’s fears related to only one region of Pakistan and that he could re-locate to a safe area, were findings of fact that were open to the Tribunal upon its adverse assessment of the appellant’s credibility and the available country information. They were not findings that appeared to be perverse or unreasonable. The assassination of a Governor by a police constable does not preclude the existence of a functioning police force. Nor is it perverse or unreasonable to conclude that connections to government officials would preclude any real chance of persecution at the hands of extremists. Again, the challenge to these findings of the Tribunal are, more properly characterised as, impermissible challenges to factual conclusions and an impermissible challenge to the merits of the decision made, as opposed to jurisdictional error.

93    This ground has insufficient merit to warrant leave being granted to raise it as a new ground on appeal. I am satisfied that it is not expedient in the interest of justice for leave to be given to raise this ground.

L.    GROUND 6

94    Ground 6 is in the following terms (as written):

6.    The Primary Judge erred in not finding that the Tribunal acted unreasonably in giving excessive weight to the minor and irrelevant inconsistencies in the applicant's claim.

95    By ground 6, the appellant broadly contends the primary judge erred by not finding that the Tribunal acted unreasonably by affording excessive weight to “minor and irrelevant inconsistencies” in his claims.

96    I accept the Minster’s submission that this ground was not raised before the primary judge and the appellant, therefore, needs leave to raise it on appeal.

97    The Minister submits that the appellant has not identified which of the inconsistencies in the appellant’s evidence are said to be minor or irrelevant, the basis for such a characterisation and why the cumulative reliance of the Tribunal on the inconsistencies was legally unreasonable.

98    The only inconsistency that the appellant identified in the course of his oral submissions was whether he was living in the house with his immediate family or was living for a time also with his grandparents in a different house.

99    Given the appellant is a litigant in person, I have nevertheless considered all of the inconsistencies identified by the Tribunal in order to determine whether this ground of appeal has sufficient merit to be permitted to be raised for the first time on appeal.

100    The relevant principles applicable to judicial review of adverse credit findings were summarised by the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ). For present purposes it is sufficient to have regard to the fifth principle that was expressed in the following terms:

A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

101    The weight to be given to inconsistencies, absent unreasonableness, irrationality or illogicality, is manifestly a matter for the Tribunal.

102    The Tribunal stated that its adverse credit finding against the appellant was further supported by “some substantial inconsistencies between the applicant’s testimony at the hearing and the documentation before the Tribunal” that it had earlier detailed in its reasons (at DR [109]).

103    As explained at [26] to [31] above, the inconsistencies identified by the Tribunal included the appellants claims in relation to his living arrangements and previous addresses, attacks at his colleague’s house, attacks on his car, beatings and kidnappings, threats to his family and association with the political party of the majority coalition party in government at that time in Pakistan.

104    I am satisfied, as submitted by the Minister, that these inconsistencies were relevant to an assessment of the credibility of the appellant and the claims advanced by him to the Tribunal. Although in isolation, some of the inconsistencies might be thought minor, such as inconsistent dates, others were more material, and it was certainly open to the Tribunal, given the extent and nature of the inconsistencies considered as a whole, to give them material weight in its determination of the claims advanced by the appellant. The inconsistencies are with respect to the central claims advanced by the appellant to the Delegate and the Tribunal. They were not trivial or inconsequential inconsistencies.

105    The more material inconsistencies included the various versions of the appellant’s alleged kidnapping and being beaten, which are discussed by the Tribunal at DR [79]. The appellant claimed in his application for the Protection Visa that he had been kidnapped, by being bundled into a car and beaten several times in 2010, due to his involvement in a blasphemy case. The appellant, however, made no mention of the alleged kidnapping in his interview with the Department and stated that he had been beaten once, together with other lawyers because of his involvement in the “Lawyers’ Movement”, not because of his involvement in a blasphemy case. At the hearing before the Tribunal, the appellant referred “to being ‘grabbed’ in the fields and assaulted, but not specifically to being ‘kidnapped’ and bundled into a car”.

106    This ground has insufficient merit to warrant leave being granted to raise it as a new ground on appeal. I am satisfied that it is not expedient in the interest of justice for leave to be given to raise this ground.

M.    ADDITIONAL GROUNDS

107    The Additional Grounds are advanced in the following terms in the appellant’s written submissions at [16]-[18] and [21] (as written):

16)    FCC page 415 paragraph 11: The Court considered my different incidents on one occasion.

17)    Page 174 of Appeal Book: The fee decision-maker failed to assess my risk of harm and the level of harm which I might face if I return to Pakistan. Pakistan does have 95 % of real risk everywhere by the radicals. The FCC didn't take into account this picture to assess the harm related to me. Therefore the principle of case AHK16 versus the minister of immigration and border protection (2018)

18)    161 ALD 457 at (3) is not applied to my case. Therefore, the court failed to give relevant consideration to the real risk associated with my life.

…

21)    The FCC used a tribunal's findings to arrive at decision, the FCC didn't evaluate the documentary evidence therefore, I would like to appeal against the decision of the FCC because the decision is wrong.

108    The claims made in the submissions at [16] and [21] were specifically directed at the reasons of the primary judge. At J [11], the primary judge stated:

In my view, claims A to C in par. 99 of the Tribunal’s reasons may be treated together, because they may be taken to arise out of what might be described as one ongoing incident. That incident may be summarised as follows.

109    The claims made by the appellant that were summarised by the Tribunal in its reasons at A to C of DR [99] comprised:

a.    Being grabbed in the fields and slapped and punched and warned to stay away from the case, possibly in 2010;

b.    Also in 2010, when the applicant was going to court, he was attacked and his car was damaged by sticks and guns and it was fired upon;

c.    The applicant’s sibling was slapped and asked his whereabouts.

110    The primary judge identified the “one ongoing incident” at J [12] as the appellant acting for a person who had been accused of blasphemy. The decision by the primary judge to address the three claims collectively cannot, in itself, give rise to any appellable error. Moreover, the criticism advanced by the appellant proceeds on a fundamental misconception of the role of the primary judge. This ground rises no higher than impermissible merits review. It was not for the primary judge to consider, independently of the reasoning of the Tribunal, whether the appellant had established his claims. Rather, the role of the primary judge, as for this Court, was to determine whether there had been a lawful exercise of power having regard to the terms, scope and purpose of the relevant statutory power.

111    Similarly, the claim sought to be advanced at [21] of the appellant’s submissions proceeds on a fundamental misunderstanding of the role of the primary judge. It was not the role of the primary judge to make findings of fact independently of the Tribunal.

112    The claims advanced at [17] and [18] of the appellant’s submissions do not rise above merits review. An allegation that the Tribunal “failed to assess my risk of harm and the level of harm” if the appellant were returned to Pakistan, reflects the appellant’s disagreement with the conclusion reached by the Tribunal. The Tribunal addressed the risk of harm to the appellant if he returned to Pakistan at DR [139] to [144]. The Tribunal ultimately concluded at DR [144], given its findings concerning the appellant’s potential return to Pakistan, including the DFAT Country Information, that it was not satisfied that there was a real chance that the appellant would be persecuted or that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm, if he was removed to Pakistan.

113    For the foregoing reasons, none of the Additional Grounds establish any jurisdictional error. Given the absence of any application by the appellant to amend his notice of appeal to include these grounds, it is not necessary to make any formal order dismissing such an application. It is sufficient to note that had such an application for leave been made, it would have been refused on the basis that the grounds have insufficient merit to permit them to be raised in an amended notice of appeal. It would not have been expedient in the interest of justice for such leave to be given.

N. DISPOSITION

114    Leave to raise grounds 2, 3, 4 and 6 in the notice of appeal is refused and the notice of appeal will otherwise be dismissed with costs.

Associate:

Dated:    17 October 2023