BFH17 v Minister for Home Affairs

Leave to raise new grounds on appeal and new evidence 4 However, the appeal now sought to be agitated is one which raises a new ground which seeks to rely upon material which was not before the primary judge. The Minister opposes the granting of leave to raise a new ground and to introduce the further evidence. In doing so he principally relies upon an asserted lack of merits in the proposed new ground.

Background 5 The applicants are all Pakistani nationals and are a family group of four. The first applicant is the husband and father in the group, the second, the wife and mother, and the third and fourth are their children. Although there is some lack of clarity in the material it seems that the first and second applicants arrived in Australia on 22 April 2010 from Pakistan holding student visas. The precise dates of arrival are not relevant. 6 On 4 November 2013, the applicants all made applications for Protection (Class XA) Visas (protection visas). The first applicant made substantive claims seeking to engage Australia's protection obligations. The second, third and fourth applicants were included in his application as members of his family unit. 7 The substance of BFH17's application was that his father and uncle were prominent Shia scholars and preachers in Pakistan. He claimed they had inspired him and his brothers to set up Shia religious schools (Madrassas) in Karachi. BFH17 claims that in May 2010 his father received a threatening mobile phone call from a man identifying himself as a member of Lashkar-e-Jhangvi (LeJ), who allegedly said that the LeJ would kill his father and his entire family if the brothers continued to preach the Shia Muslim faith. This, BFH17 claims, precipitated his departure from Pakistan, and he now asserts that he and his family will be killed if they are returned to Pakistan. He also adds that he would be unable to practice his religion freely and would live in constant fear of LeJ. 8 The applicants were notified on 10 July 2015 that the delegate of the Minister had refused their applications for protection visas. 9 On 22 July 2015, they applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate's decision and they were subsequently invited to attend a scheduled hearing. Ahead of that, their representatives provided written submissions and supporting documents. The hearing took place on 14 October 2016, at which BFH17 gave evidence in support of his claim. 10 By a decision made on 23 February 2017, the Tribunal affirmed the delegate's decision. The Tribunal determined that the first applicant did not meet the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), nor the complementary protection criteria in s 36(2)(aa) of the Act.

Proceedings before the Federal Circuit Court of Australia 11 The applicants sought review of the Tribunal's decision before the FCC by filing an application on 22 March 2017. They subsequently obtained legal representation and, on 12 January 2018, filed an amended application for review which contained two grounds, being: (1) The Tribunal applied the wrong test and/or asked itself the wrong question in assessing whether the first applicant faced a "real chance" of persecution from extremists in Pakistan as a Shia Muslim generally. (2) The Tribunal failed properly to consider the applicant's claim or an integer of his claim, being that he would be at risk of harm in Pakistan by reason of having a similar profile to a cousin who had been killed in Pakistan for reasons related to his Shia Muslim religion. 12 The FCC rejected both grounds, and dismissed the application. It found that the Tribunal had correctly applied the test concerning a "real chance of persecution". It further found that the Tribunal had properly considered the integer of the applicant's claim that he was at risk by reason of having a similar profile to his family members.

Appeal to this Court 13 The sole ground of appeal now sought to be agitated before this Court appears in a draft notice of appeal, annexed to the affidavit of the applicants' solicitor, Mr Botros, of 24 May 2019. It provides: The Tribunal failed to appreciate that the DFAT Report referred to "teachers" and "religious leaders" are being "high profile Shia" that had been the subject of targeted attacks in Karachi, and that the applicant claimed to be, or that he would be imputed to be, a teacher or religious [leader] or both. In the premise, the Tribunal failed to understand the correct premise for this claim, and failed to consider this claim lawfully, or constructively failed to exercise jurisdiction having regard to the seriousness of this error (see Reasons [45]). 14 As mentioned above, the Minister opposes the grant of leave, in particular, because it requires the Court to receive evidence in the form of a DFAT report that was not before the FCC, but that was before the Tribunal. The report is entitled "DFAT Thematic Report, Shias in Pakistan 15 January 2016" (the DFAT Report). 15 For the reasons that follow, the appeal must be dismissed.

Principles on which leave will be granted 16 The general principles on which this Court acts in determining whether to grant leave to raise a new ground of appeal were identified in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599 [46]-[48]: 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 and 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. 17 Further, in this case the Minister relies upon the proposition that a party is bound by the conduct of his or her case at first instance. It was submitted on the Minister's behalf that, save in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against them, to raise on appeal a new argument which, whether deliberately or by inadvertence, they had failed to put during the hearing when they had an opportunity to do so: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 (also reported as Metwally v University of Wollongong (1985) 60 ALR 68 at 71). 18 The Minister places reliance upon the fact that the appellants were represented before the FCC by Counsel and solicitors who advanced an amended application for review which identified two grounds. The implication is that the ground now sought to be raised must have been discounted by those previously appearing for the applicants and the applicants ought to be bound by the manner in which the case was advanced below. 19 Additionally, the Minister also submitted that there has been no explanation from the lawyers who ran the matter before the FCC as to why the point now sought to be taken was not agitated in that court. Those representing the applicant in the court below were experienced lawyers in this field and, in the absence of any explanation as to why this new point was not advanced there, this Court should infer that a strategic decision was made which now binds the applicant. 20 There is not inconsiderable force in the Minister's submission in this respect and, had the Minister not otherwise succeeded, I would have been prepared to find that the applicant should be bound by the manner in which he pursued his case below. The absence of any explanation for the failure to advance the new ground below is a substantial foundation for that conclusion.

Merits of the proposed ground 21 The contentious finding appears in [45] of the reasons of the Tribunal. There, it referred to the DFAT Report identifying targeted killings against Shias in Sindh province in 2015, which included high profile Shias such as doctors, lawyers, teachers and political and religious leaders. The Tribunal then said that it found "that the applicant [being the first applicant] does not have a high-profile in Pakistan for these or other reasons". It indicated that it accepted he and his family had been involved in religious activities, including organising religious speakers to participate in events at their home or at their local Imambargah, and had been involved in Shia community welfare activities. It also accepted he and other family members had been involved in the establishment and running of Madrassas. However, it did not accept these matters had the result that he had a high profile beyond his local Shia community. The Tribunal also considered that, were he to return to Pakistan, he would seek to resume his career as a nurse. It did not accept that he would have a high profile and be a prominent Shia due to those factors, taken individually or cumulatively, now or in the foreseeable future. 22 The Minister submitted, and correctly so, that the finding at [45] of the Tribunal's reasons was not made in isolation. In the course of the hearing, Ms Symons for the Minister referred to the following paragraphs of its reasons as being the foundation (or part of the foundation) for the conclusions reached in paragraph [45]: (a) That, in the pre-hearing submissions made by the applicant, it was submitted that he had been very active within the Shia community and that "[t]he main reason his life is at risk is because of the Shia madrassas he and his brother established and his ongoing role in managing these": [14]. (b) In those submissions, he also claimed that he and his brother had established the various schools and were involved in all aspects of their administration; that he was the public face of the school; and that he is still the chairperson and makes the important decisions about their overall running: [14]. The point relied upon by the Minister was that there was no reference to being a teacher at the school. (c) The Tribunal outlined the applicant's claim of a fear of harm in the following terms (at [23]): The applicant claims to fear serious harm from Sunni extremist groups including Lashkar-e-Jhangvi (LeJ) and the Pakistan Taliban (TTP) as a consequence of his Shia Muslim religion, his religious, political and community activities and associations within the Shia community, including his family links to his father and uncle, particularly due to his involvement with the Zain ul Aabideen Academy and the Imam-e-Zamana Academy, because his name readily identifies him as a Syed Shia, and because of his work as a volunteer polio vaccinator. (d) The Tribunal accepted that the applicant had nursing qualifications, including in psychiatric nursing, and worked as a nurse in Karachi: [25]. (e) The Tribunal again referred to the claims being agitated by the applicant as being that "his father and uncle are prominent Shia scholars and this inspired him and his two brothers to set up Shia religious schools (madrassas) in Karachi" and that he and his brothers preached to Shia teenagers and, because of their teachings, they became well-known throughout the Shia community: [26]. (f) The Tribunal accepted that the first applicant's father and uncle were active in their local Shia community, but that they did not have a public profile which extended beyond or outside that community such that they were not "high-profile" Shias: [26]. (g) The Tribunal accepted that "the applicant became well-known in his local Shia community" because of his involvement in the school and religious work in the Shia community: [27]. However, it went on to find that: the applicant, like his father, does not have a high profile or a public profile that extends outside of his local Shia community. In this regard the Tribunal finds that the only public reference to the madrassas the applicant claims to have founded and to be the chairman of is the Zain ul Aabideen Academy Facebook page which the applicant drew the delegate's attention to when she interviewed him on 26 August 2014. (h) In relation to the first applicant's claim that he engaged in teaching at the madrassas he established, the Tribunal said (at [28]): The Tribunal accepts that the applicant and his brothers set up Shia madrassas, the first in 2004 and a second in 2009. In his Protection visa application and at the interview with the delegate the applicant indicated that due to his employment as a nurse, where he had work commitments in the afternoon and evening, he only taught in the morning. At the hearing when the Tribunal asked the applicant if he taught at the madrassas he indicated that he only taught on a relief basis if one of the regular teachers was unexpectedly unable to attend. He indicated this was the same for his brothers and said they were mainly managing. Based on the applicant's evidence at the hearing the Tribunal concludes that the applicant's principal role in relation to the madrassas was in management and administration rather than teaching. (i) The Tribunal also considered the first applicant's claim that he would be targeted because he was involved in the administration and management of the schools: [32]. While it accepted that he was still involved in the management and operation of the schools, that did not mean that he would be targeted by extremists. It found that, if the extremists had made the alleged threats in 2010 (being when the first applicant made his initial statement), it is not plausible that they would allow the schools to continue to operate and were merely waiting until his return to Pakistan. 23 These paragraphs reveal the consideration given by the Tribunal to the first applicant's claim that he would be targeted because he was involved in the operation and management of the Shia schools. At [40], the Tribunal turned to the DFAT Report and, in a series of 14 dot points, identified its substance in relation to the first applicant's claim. Ms Symons for the Minister referred to two particular references made by the Tribunal that: DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals. Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure. and: According to the South Asian Terrorism Portal (SATP), there were 18 sectarian attacks against Shias in Sindh province in 2015 which resulted in a total of 149 fatalities. These attacks included target killings of high-profile Shias such as doctors, lawyers, teachers, and political and religious leaders. On 4 March 2015, for example, militants shot and killed senior Shia lawyer and counsel for MQM activists, Ali Hasnain Bukhari, in Korangi Town, Karachi. While the LeJ and Sipah-e-Mohammed (SMP), a Shia militant group, have historically claimed responsibility for sectarian attacks in Karachi, it is difficult to conclusively determine the motives behind these attacks, which can conflate personal, business and other interests. 24 The second paragraph extracted here was taken directly from paragraph 4.16 of the DFAT Report. The first paragraph is an almost direct quote of paragraph 4.3, with the only difference being the deletion of internal references. In particular, after the words "prominent Shias such as high-profile professionals", the Report includes "(see 'Sindh' below)". That internal reference (which can only be to the content of paragraph 4.16, which falls under the heading "Sindh") might be thought to provide support for the Tribunal's conclusion, in that it suggests that - even were the first applicant to be considered a "professional", teacher or otherwise - the danger exists only in relation to such persons who had a high profile. 25 The Minister submitted that the above matters give context to the determination of the Tribunal at paragraph [45], where it said: The DFAT report refers to target killings against Shias in Sindh province in 2015 which DFAT states included high-profile Shias such as doctors, lawyers, teachers and political and religious leaders. The Tribunal finds that the applicant does not have a high-profile in Pakistan for these or other reasons. As discussed above, while the Tribunal accepts that he and his family have been involved in religious activities including organising religious speakers to participate in events at their home or at their local Imambargah and have been involved in Shia community welfare activities, and accepts that the applicant and other family members have been involved in the establishment and running of madrassas, the Tribunal does not accept that this has resulted in the applicant having a profile beyond his local Shia community. Accordingly, while the Tribunal accepts that the applicant would continue to be involved in running madrassas, would continue to be an active participant in Shia religious events both at his home and at Imambargahs; would continue to be involved in Shia social work activities; would likely participate in Ashura processions should he return to Pakistan; is as a Shia by his name; and would likely seek employment as a nurse and may on occasions be involved in polio vaccination activities, the Tribunal does not accept that he would have a high profile and be a 'prominent Shia' due to these factors, including when taken cumulatively now or in the foreseeable future.

The substance of the applicants' proposed new ground 26 Counsel for the applicants noted that the Minister had given a direction under s 499 of the Act, Ministerial Direction No 46 (which was in force at the relevant time), to the effect that in the assessment of protection visas it was a requirement for a decision maker to take into account DFAT reports. That direction required: 3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country. 27 The gravamen of the applicants' complaint is that the Tribunal misconstrued or "misapplied" the DFAT Report, in that it failed to recognise that, because the first applicant was a teacher of Shia religion, he was, as a result, a high profile Shia, and therefore would possibly be the subject of targeted killings. In particular, they submitted that in paragraph [45] the Tribunal misconstrued or misapplied paragraph 4.16 of the DFAT Report. It was submitted that the DFAT Report indicated that persons who were Shias and were professionals, such as doctors, lawyers, teachers and political and religious leaders, were the subject of targeted killings and that, as the first applicant was a teacher, it necessarily followed that he would be so targeted. So the submission went, the effect of the report was that, so long as a person fell within the category of professions identified, that was sufficient to establish they were at risk. 28 The applicants submitted that it followed that the Tribunal had misunderstood the DFAT Report or misapplied it, because if the first applicant was a teacher he would have a sufficiently high profile to be the target of an attack. They made a similar submission on the basis that the applicant was a religious leader.

The Minister's submissions 29 On behalf of the Minister it was submitted that the anterior findings of the Tribunal involved a comprehensive evaluation of the first applicant's claims and his particular circumstances. Those findings, so it is submitted, informed the discussion in [45] and the findings made. In brief, it was said that, when that paragraph is read in the context of the reasons as a whole, it is apparent that the Tribunal reached a conclusion of fact that the applicant did not have a high profile as a Shia outside of his community for any of the reasons identified by DFAT or for any other reason, such that he was not at risk of being targeted by extremists.

Consideration 30 The essential difficulty for the applicants is that the Tribunal did take the DFAT Report into consideration in reaching its conclusion as to whether the applicant met the requirements of the criteria for the grant of a protection visa. Indeed, it went to some lengths to identify the report's content to the extent to which it was relevant to this matter and it accepted the veracity of the statements made in it. There is nothing in its reasons which suggest that it did not do so, and it accepted that Shias who were doctors, lawyers, teachers and political and religious leaders were targeted by extremists. However, what it did not accept was that the first applicant had a high profile for the reasons referred to in the DFAT Report or for any other reason. It undertook an analysis of the first applicant's particular personal circumstances and determined that he did not have a high profile as a teacher or religious leader, and would not have a high profile as a Shia if he returned to Pakistan and resumed his activities at the school he had established. 31 To the extent to which it was relevant that the first applicant engaged in teaching activities, these were explained at [28] of the Tribunal's reasons. It considered that he was primarily involved in the management and administration of the school and any teaching was piecemeal or of an ad hoc nature. The first applicant did not mount a claim that he was at risk because he was a teacher, and the finding of the Tribunal was that he was a manager or administrator, not a teacher. The Tribunal concluded that he did not have a high profile on the basis that he was a teacher, and its findings in relation to the first applicant's relatively minimal teaching activity supported that. He was a person who filled in for teachers who were unexpectedly unable to attend the Madrassa. As Ms Symons for the Minister submitted, the findings in relation to the activities of the first applicant were open to the Tribunal and were not directly attacked by the applicants. 32 Similar comments apply in relation to the claim that the first applicant would fear harm because he was a "religious leader". It is not clear in what way he claimed that he held such a position. Whilst he may have established a school or schools (Madrassas), there is no suggestion that he rose to the level of a "religious leader" within the meaning of that term as it is used in the DFAT Report. It is relevant that no attempt was made to explain the meaning of that term, or how the applicant was within its scope. Regardless, the Tribunal's determination that the first appellant did not have a high profile as a religious leader was sufficient to dispose of any claim on that basis. Reference was made by the first applicant to [27] of the Tribunal's reasons, where it accepted that he had become well-known in his local Shia community because of his involvement with Madrassas and because he undertook religious activities and social work within the local Shia community. However, all that the Tribunal was identifying there was that any profile which he had was within the Shia community and it did not extend beyond it to the broader community. It is apparent that the Tribunal regarded the reference in the DFAT Report to "high profile Shias" as being those who had a high profile in the wider community, rather than merely within the Shia community itself. No error was identified in that conclusion. 33 The applicants' submissions cannot be accepted. It is apparent that the Tribunal took into account the DFAT Report concerning the profile of teachers of the Shia religion. However, the mere fact that, on occasion, the first applicant taught at the Madrassas, did not necessarily put him within that group. The analysis by the Tribunal involved an assessment of the first applicant's particular conduct in relation to teaching of the Shia religion. It identified that, as a matter of fact, his involvement with the Madrassas was more in the nature of administration and that, because he had other employment, his time there was limited to occasional teaching. The Tribunal did not err in concluding that he was not a "teacher" who had a high profile and would be targeted. On the contrary, the conclusion that his profile only existed within the local Shia community was soundly based on the evidence.

Illogicality or irrationality 34 The applicants argued that there existed some error in the fact-finding process of the Tribunal in concluding that the first applicant did not have a high profile in Pakistan. This was not part of the application for leave to rely upon a new ground, and would require the making of a further application. Quite rightly, the Minister submitted that the absence of any explanation for not advancing the point below in the circumstances where the applicants were well represented weighs heavily against allowing any further new ground. 35 In any event the submission was somewhat underdeveloped and, as the above discussion discloses, the Tribunal's reasoning pathway was neither illogical nor irrational. It identified the risks for persons in Pakistan who were Shia teachers or religious leaders and, after evaluating the first applicant's particular circumstances, concluded that he did not fall within that class of persons who were at risk. No illogicality or irrationality arises in the present case: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 (EHF17) at [73]-[85]. 36 The decision in EHF17 also emphasised the importance of keeping steadily in mind the nature of administrative decision-makers' reasons for decision and eschewing an overzealous review of them. This is particularly so in relation to a ground which asserts an illogical or irrational finding of fact or conclusion. Further, that issue must be analysed through the lens of the nature of administrative fact-finding and not through that of the process which occurs in curial proceedings. 37 In this matter, the Tribunal took into account the DFAT report and considered its application to the first applicant's circumstances. It reasoned that the first applicant's occasional activities teaching at the school he established did not put him into the category of a "teacher" or religious leader who would be targeted. It relevantly concluded that his activities did not give him a high profile outside his religious community. It followed that his claimed fear of harm was not well-founded. A rational or logical person might easily follow that same path of reasoning.

Further submissions concerning a referral to a Full Court 38 In the course of the hearing of the application, Counsel for the applicants submitted that this matter ought to be referred to the Full Court to consider the applicability of the decision in EHF17. Leave was given for the parties to file written submissions on this topic. In brief, the applicants submitted that the observations in that case would ease the burden on them in establishing jurisdictional error, in the sense that the identification of illogicality or irrationality in the fact finding process, which is part of the formation of a subjective jurisdictional fact, is allegedly less onerous than demonstrating irrationality in the decision generally. 39 Counsel for the minister submitted that the distinction recognised in EHF17 was neither novel nor unorthodox, and that is patently so. Further, it was correctly submitted that there is nothing in EHF17 which would overcome the factual difficulties which the applicants face in this case. Whether the conclusion of the Tribunal is considered as a finding of fact in the course of reaching a state of satisfaction, which is a jurisdictional fact, or otherwise, the Tribunal's conclusion was one which was rational and supported by probative evidence for the reasons identified above. As Crennan and Bell JJ suggested in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131], there may be no relevant difference between the stringency of the test applied when considering whether a subjective jurisdictional fact is vitiated for illogical fact finding and where it is alleged that the overall decision is illogical. Indeed, their Honours seemed to accept that even where the actual reasoning was illogical, if a logical, rational and reasonable person could have reached the same decision, the ground was not made out (at 649-650 [135]). There is no need to consider that question here because, on any view, the finding that the first applicant was not at risk from extremists because he did not hold a high profile for his work outside of the Shia community was not affected by illogicality or irrationality and was founded upon probative facts.

Conclusion 40 It follows from the above that, in this case, no irrationality or illogicality has been demonstrated. The necessary state of mind, which is the non-satisfaction of the criteria for a protection visa being met, has not been vitiated by any error. 41 It follows that the proposed ground of appeal has little or no merit. The application for an extension of time, which is consented to, will be granted. The application for leave to rely upon the new grounds advanced in this Court for the first time ought to be refused. 42 As that ground is the only ground pressed on appeal, the appeal must also be dismissed. There is no reason why the applicants ought not pay the Minister's costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.

SCHEDULE OF PARTIES VID 556 of 2019 Applicants Fourth Applicant: BFK17