BQJ17 v Minister for Immigration and Multicultural Affairs [2025] FCA 255

1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 March 2017 (TR), which affirmed a decision of a delegate of the Minister to refuse to grant the Appellant a Protection (Class XA) Visa.

1. The background to this matter is set out in the primary judgment at [4]-[18]: BQJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 806 (PJ).
2. The Appellant is a citizen of Pakistan who arrived in Australia in August 2013 as the holder of a visitor visa. He made an application for a protection visa in September 2013. That application was refused in September 2014.
3. The Appellant applied to the then Refugee Review Tribunal (RRT) in September 2014 for review of the refusal decision. The RRT affirmed that decision on 12 April 2016. The then Federal Circuit Court quashed the RRT decision by consent in July 2016 and the matter was remitted to the Tribunal for reconsideration.
4. On 29 March 2017, the Tribunal affirmed the decision of the delegate to refuse the grant of the Visa.

1. As was the case before this Court, the Appellant was self-represented before the Tribunal and the Federal Circuit Court and appeared with the assistance of an interpreter.
2. Before the Tribunal, the Appellant advanced a number of bases for his claim for a Visa:

(1) The Appellant had now renounced Islam. He had communicated this renunciation by making comments on Facebook and shared other information as well as liking posts of other people. The Appellant had claimed that there were threats against apostates: TR [44]. The Appellant claimed that he could be harmed because, as a non-believer, he may get into an argument and make comments about Islam that people found offensive: TR [47]. The Appellant also stated he would continue to post comments on his Facebook page.

(2) The Appellant claimed that he faced criminal proceedings in Pakistan relating to consumption of alcohol and his relationship with an unmarried woman: TR [82].

(3) The Appellant claimed that he would be stigmatised in Pakistan because of his mental health concerns: TR [88].

1. The Tribunal accepted that the Appellant was a non-believer and did not practise as a Muslim. The Tribunal found that the Appellant had not practised as a Muslim for an extended period in Pakistan (before his arrival in Australia) and no one had raised any concerns regarding his non‑practice: TR [45].
2. The Tribunal also accepted that the Appellant had gone further than not practising Islam to now renouncing his former faith, although he has not converted to another faith: TR [46].
3. The Tribunal found that at present, other people had not raised issue with the Appellant's posts on his Facebook page (which was a page only accessible by the Appellant's Facebook friends) and this would not change on his return to Pakistan: TR [47], [54].
4. The Tribunal's reasons record that it had "discussed the issue of apostacy and blasphemy with the [Appellant]" and "noted that the [Appellant] had claimed that he would be harmed as an apostate, that he could be charged by the police or identified by the community as a blasphemer": TR [48].
5. The Tribunal found that:

(1) The Appellant had not been targeted for harm arising out of his religious views or practices in Pakistan in the past, despite being someone who did not practise a religion and spent time researching other religions: TR [49]. The Tribunal considered this would continue on his return to Pakistan: TR [55].

(2) The Appellant had expressed his renunciation of Islam on his Facebook page and had not been threatened because of his expressed view on this site: TR [49]. The Tribunal did not consider the Appellant's posting of his thoughts or liking items on Facebook on his return would mean that the Appellant had a real chance of serious harm or a real risk of significant harm on return to Pakistan: TR [54].

(3) The Appellant had lived in his home area in Pakistan for a significant period of time without practising his religion and had had the opportunity to read widely in comparative religions while residing in Pakistan. He had not been harmed in Pakistan because of this: TR [51].

(4) The Appellant's religious practices and beliefs are not of a proselyting nature; rather, they are in the nature of an academic exercise in gathering knowledge and information about other faiths. The Appellant had been doing this for some time in Pakistan: TR [52].

(5) The Appellant had engaged in discourse on comparative religions with friends in Pakistan and he would continue to have such conversations in his home area of Pakistan: TR [53]. The Tribunal did not accept that by having such conversations the Appellant would be harmed: TR [56]. The Tribunal did not consider that the Appellant would have to be secretive in these conversations nor that the Appellant would have to modify his behaviour in having these discussions: TR [56]. The Tribunal concluded that the Appellant would have these discussions as private discussions not because of fear that might arise by expressing his views but because "it is a more convivial environment for such discourse": TR [56].

1. The Tribunal relied on country information from the Department of Foreign Affairs and Trade (DFAT) to conclude that the Appellant's region in Pakistan is a location which has been relatively free of sectarian and generalised violence in recent years and that the security situation is stable and open to divergent views, like that of the Appellant, being held: TR [57].
2. The Tribunal (at TR [59]-[61]) also considered country information pertaining to blasphemy laws in Pakistan and accepted that the use of blasphemy laws had occurred. The Tribunal did not consider the Appellant's circumstances to be conducive to him being targeted in this manner. The Appellant had not identified as a Muslim in Pakistan for an extended period, had not practised as a Muslim and had researched and commented on different religions and academic theories in Pakistan without being harmed or threatened with harm as a result: TR [61]. The Tribunal did not accept that anyone would seek to harm the Appellant because of their attitudes towards perceived blasphemous activities: TR [61].
3. The Tribunal concluded that the Appellant would not be harmed by reason of his behaviour, renunciation of Islam or general expressions of his repent beliefs. The Tribunal recorded in its reasons (at TR [62]):

The Tribunal finds that the applicant will not be harmed for his renunciation of Islam, or as a blasphemer. The Tribunal finds that the applicant will be able to behave in the manner he chooses and express his beliefs without being harmed on return to Pakistan, and will not be required to hide his practices or beliefs. The Tribunal finds that the applicant does not have a real chance of serious harm for these reasons, now and in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well - founded fear persecution for these reasons.

1. The Tribunal found that the documents produced by the Appellant in support of his claims relating to criminal charges were fraudulent and did not accept that the Appellant had been arrested by police in the company of an unmarried woman with whom he was in a relationship and with alcohol present. The Tribunal found this claim to be contrived and that there was no ongoing court case against the Appellant in Pakistan: TR [82].
2. The Tribunal considered that the Appellant had delayed his departure from Pakistan, having been granted a visitor visa in April 2013 but not arriving in Australia until 21 August 2013. The Tribunal considered that the Appellant would not have remained in Pakistan for this period had he had concerns for his welfare. The Tribunal did not accept that the Appellant had delayed leaving Pakistan because he had not been feeling well. The Tribunal concluded that the Appellant was not concerned for his safety during this period: TR [87].
3. The Tribunal accepted that the Appellant had been diagnosed with anxiety and depression (TR [94]) and would require ongoing medical assistance on return to Pakistan but he would be able to approach a medical practitioner in Pakistan and obtain medication as required to treat him: TR [89]-[91], [94]. The Tribunal did not accept that the Appellant would be mistreated because of any stigma against mental sufferers in Pakistan: TR [95]. The fact that the Appellant had been willing to seek and receive treatment in the past for mental health issues in Pakistan and country information about assistance available in Pakistan led the Tribunal to be satisfied that the Appellant could receive appropriate mental health care in Pakistan and the Appellant did not face a real chance of serious harm or a real risk of significant harm for this reason: TR [96].

1. The Appellant sought judicial review before the primary judge on the ground that "the decision of the Tribunal: is affected by an error of law; and denied the applicant procedural fairness": PJ [34].
2. Before the primary judge, the Appellant submitted that the Tribunal had incorrectly concluded that he would be able to express himself in Pakistan and had denied him procedural fairness because he was not mentally sound at the time.
3. The primary judge observed that the error of law alleged to have been made by the Tribunal had not been properly identified or particularised. The primary judge found that the Tribunal had had extensive regard to the Appellant's religious beliefs and his claims that he would be charged with blasphemy or otherwise subjected to harm or persecution because of his renunciation of Islam. The Tribunal had also had regard to country information and other material relating to the consequences of the Appellant communicating his views, as he had done and would continue to do, in the event of return to Pakistan. The Tribunal considered the consequences of the Appellant continuing to post on Facebook.
4. The primary judge was satisfied that the Tribunal properly engaged with the Appellant's claims of persecution for religious reasons and it was open to the Tribunal to conclude that the Appellant did not face a real chance of serious harm or real risk of significant harm because he has renounced Islam, or because he is a blasphemer, either now or in the reasonably foreseeable future: PJ [69].
5. The primary judge (at PJ [70]) did not accept that the Appellant had been denied procedural fairness. The Appellant had been afforded a meaningful opportunity to give an account of his experiences, to present arguments in support of his claim and to understand and respond to the questions asked of him during the Tribunal hearing. The evidence of the Appellant's mental health issues did not show that the Appellant was unable to meaningfully engage in the hearing. The Appellant attended the hearing, gave evidence and presented arguments. The Appellant had also had the assistance of an interpreter and a witness/support person: PJ [73]. There was no evidence that the Appellant was incapacitated from participating in the hearing: PJ [74].

1. By his notice of appeal, the Appellant contends that the primary judge erred by:

(1) failing to find that the Tribunal incorrectly applied the law;

(2) failing to find that the Tribunal was legally unreasonable;

(3) failing to find that the Tribunal failed to consider "relevant info".

1. As was the case before the primary judge, the first ground does not particularise or identify a jurisdictional error alleged to have been made by the Tribunal which the primary judge ought to have found. As pleaded, the ground rises no higher than the Appellant disagrees with the findings made by the Tribunal and invites the Court to reconsider those findings. That is not the task of this Court nor was it the task of the primary judge.
2. By his written submissions, the Appellant contends that:

1. decision makers showed serious disregard for freedom of thought and speech.

2. Applicant would face discrimination,religious extremism societal violence.

3 apostasy Is conflated with blasphemy in Pakistan.

4. seculars also qualify as particular social group in pakistan.

Tribunal overlooked apostasy specific risks (cyclical violence and blasphemy enforcement).

Tribunal ignored Pakistan's blasphemy laws and apostate persecution.

Tribunal underestimated apostasy risks.

Applicant would be ostracised in pakistan.

Multiple Studies have shown people with depression,anxiety or those taking antidepressants are more likely to say something offensive specifically about religion. the emotional and cognitive effects of these conditions or treatments can amplify tendencies to express controversial or unfiltered opinions. This is supported by peer reviewed scientific evidence.

...

The applicant's Mukto-Mona posts on Facebook clearly mark him as an apostate in Pakistan, a country where rejecting Islam brings real danger. Whether from personal conviction or struggles with his mental state, these public statements expose him to harsh punishment under blasphemy laws - jail or death from the government - and violence from society, as seen in cases like Mashal Khan's.

The High Court in SZSCA [2014] HCA 45 reminds us to look at their specific situation, and here, his fear of persecution is genuine and unavoidable, justifying asylum under the Migration Act.

1. The Appellant provided further written submissions to the Court a couple of days before the hearing. Those submissions conflated the decision of the Tribunal with the decision of the primary judge. To the extent they are intelligible, they assert that there was a failure to "adequately address" the Appellant's claims.
2. Points (1) to (4) do not identify error in the Tribunal's reasons but are expressions of disagreement with the conclusions reached by the Tribunal. The submission that the Tribunal "underestimated apostacy risks" appears to be a challenge to the Tribunal's assessment of that risk. Likewise, a submission that the Tribunal did not adequately address the Appellant's claims appears to challenge the merits of the Tribunal's conclusions. It is not the task of this Court nor the primary judge to engage in merits review.
3. The Tribunal's reasons do not support a contention that the Tribunal overlooked apostacy risks. The Tribunal accepted that the Appellant had not practised as a Muslim for an extended period and had renounced Islam: TR [45]. The Tribunal's reasons (at TR [48]) record that it discussed the issue of apostacy and blasphemy with the Appellant and acknowledged that the Appellant had claimed that he would be harmed as an apostate. The Tribunal at (TR [49]) considered these claims and rejected them. The Tribunal concluded that the Appellant had not practised as a Muslim in Pakistan without facing harm or the threat of harm and had not been threatened as a result of his posts on Facebook: TR [54]-[55]. The Tribunal (at TR [57]) also considered country information from DFAT that Pakistan was convivial for divergent views like that of the Appellant. The Tribunal did not accept that the Appellant would face any charges or violence because of his practices or beliefs or by reason of his posts on Facebook.
4. Having considered and understood the Appellant's claims, it was open to the Tribunal to reject those claims subject to unreasonableness.
5. The Appellant made no claim before the Tribunal that by reason of his mental illness, he would have a tendency to express "controversial or unfiltered opinions" and led no evidence before the Tribunal that would support such a claim. The Tribunal found that the Appellant had engaged in and on return to Pakistan would continue to engage in conversations and discourse in the nature of an academic exercise of gathering information and knowledge about comparative religions: TR [55]. The Tribunal was satisfied that that this type of activity would not result in the Appellant facing a risk of harm.
6. The High Court decision in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 does not assist the Appellant. In that case, it had been accepted by the Tribunal that "if the [visa applicant] was again intercepted by the Taliban on the roads on which he usually travelled, he would face a real chance of serious harm and even death for a reason specified in the Refugees Convention" (at [9] (French CJ, Hayne, Kiefel and Keane JJ)). In the present case, the Tribunal (at TR [62]) did not accept that the Appellant would face a real chance of serious harm by engaging in any of the activities the Appellant sought to engage in or by reason of the beliefs he held.
7. In his written submissions, the Appellant sought to rely on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473. The decision does not assist the Appellant in the present case because the Tribunal found that the Appellant would not modify his behaviour on his return to Pakistan and would be able to engage in the form of activities he has wanted to upon his return to Pakistan.
8. The Appellant cited SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 in support of the proposition that a person's long-term residence in a country can heighten their risk of harm upon return. SZATV does not support that proposition.
9. Before the primary judge, the Appellant did not rely on a ground of legal unreasonableness or a failure by the Tribunal to consider relevant information. The Minister contended that the Appellant ought not to be granted leave to do so now.
10. The applicable principles were discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at [35]-[38] (Murphy, Mortimer and O'Callaghan JJ). As the Full Court observed at [36], 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. The Appellant is self-represented. Because the merit of the proposed ground is an important consideration in assessing whether leave is to be granted, it is necessary to address the merits of each of the proposed new grounds.
11. The Appellant has not identified the basis on which he contends that the Tribunal's decision was legally unreasonable. By further submissions provided to the Court a couple of days before the hearing, the Appellant asserted that the conclusion that there was no risk of persecution is illogical. That assertion is not accepted. The Tribunal reasons for rejecting the Appellant's claims were intelligible and logical.
12. The Appellant has not identified the relevant information that the Tribunal is said to have ignored. The task for the Tribunal was to evaluate the material before it. It is not open to the Appellant to contend that the Tribunal erred by failing to consider material that was not before it.
13. Because the new grounds lack merit, leave to rely upon on those grounds is refused.
14. As explained above, the Appellant has not identified any error by the primary judge in failing to find that the Tribunal did not fall into jurisdictional error.
15. The appeal is dismissed with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.