The Tribunal's consideration of the appellant's claims
25 It is convenient to identify in brief my conclusion, that the Tribunal failed to deal with the Family Group Claim, in advance of the reasons for it. As stated above, the appellant made two submissions in support of the Family Group Claim: first, that his grandfather was a prominent Ahmadi politician and therefore that his family was a well-known Ahmadi family throughout the Punjab; second, that members of his family were involved in a current and prominent court case that identified them as Ahmadi. The Tribunal addressed and rejected the second submission in the context of the Ahmadi Claim: it held that members of the appellant's family were not conducting any court case that identified them as Ahmadi. That finding would have been made in the context of consideration of the Family Group Claim as well (if it had been considered), and so the Tribunal's failure to address the family land case specifically in the context of the Family Group Claim did not affect the outcome. But, the Tribunal did not deal with the submission that the appellant's family was a well-known Ahmadi family throughout the Punjab as a consequence of the prominence of the appellant's grandfather as an Ahmadi politician. That constituted a jurisdictional error.
26 As Griffiths J identified in SZSSC at [81(e)], the structure of the Tribunal's reasons warrants careful attention. At [13]-[14] above, I set out that structure. It is significant that at [9] of the Tribunal's reasons it identified the Ahmadi Claim, the Minority Lawyer Claim, and the Educated Liberal Claim, but did not identify the Family Group Claim, and that the Tribunal's reasons include headings that accord with the three identified claims.
27 The Tribunal occasionally re-iterated what it perceived to be the appellant's claims. At [70], it observed that the appellant had not made a claim of having been harmed as an educated professional, simpliciter: "[h]is claims are based on being an Ahmadi, an Ahmadi/minority lawyer or an educated, professional Ahmadi" (emphasis added). In stating its conclusions on the question of future harm, the Tribunal said at [74] that it, "[did] not accept that the [appellant] will suffer serious harm … as an Ahmadi, as a lawyer engaged in blasphemy and minority cases or as an educated professional Ahmadi with liberal views … " (emphasis added). At [75], the Tribunal said that "… [it did] not accept that there are substantial grounds for believing that … [the appellant] faces a real risk of suffering significant harm if returned to Pakistan because he is an Ahmadi or an Ahmadi lawyer or a minority lawyer or an educated professional Ahmadi or because he has appeared in blasphemy cases or religious cases or acted for minorities or acted against extremists … " (emphasis added).
28 The identification of the claims at [9], the headings thereafter used, and the summaries of the appellant's claims are indicative that the Tribunal did not deal with the Family Group Claim. But, while structure is relevant, it is not determinative, and though those matters sit ill with the centrality of the Family Group Claim in the Visa application, it is wrong to approach the Tribunal's reasons with an eye keenly attuned to error. If the Tribunal did address the Family Group Claim albeit with less prominence than I might have myself, for instance if it was addressed in consideration of another claim, jurisdictional error would be unlikely. Analysis of the Tribunal's reasons in regard to other claims is thus required.
29 The Minority Lawyer Claim turned on whether the appellant was a practising lawyer, rather than anything related to imputed identity as an Ahmadi. The Tribunal's consideration of the Educated Liberal Claim turned on its incorporation of reasons "set out above" (at [69]), being those in relation to the Ahmadi Claim. Thus, the question is really whether the Tribunal dealt with the Family Group Claim in considering the Ahmadi Claim. In order to answer that question it will be useful to identify the essential features of the two claims. The features of the Family Group Claim are these: (1) the appellant is a member of his family group; (2) people would consider members of the family group (and therefore the appellant) to be Ahmadi whether they are or not (because of his grandfather's prominence and the family land case). The features of the Ahmadi Claim are these: (1) the appellant is Ahmadi; (2) because he is Ahmadi people will perceive him to be Ahmadi. In each case there are two common further steps, namely: (3) Ahmadis and those perceived to be Ahmadi are persecuted in Pakistan; (4) the appellant therefore has a well-founded fear of persecution. The Tribunal accepted the third step: at [15] it said, "Ahmadis are subjected to severe legal restriction and discrimination in Pakistan," and identified certain matters relating to Ahmadi belief arising in the Pakistani Constitution and the Pakistan Penal Code.
30 Expressed thus, the difference between the claims is clear. Each involves assertion of actual identity and of imputed identity, and in each case the imputed identity is that the appellant would be seen to be Ahmadi. But, the Ahmadi Claim is one of actual identity as an Ahmadi leading to that imputed identity, whereas the Family Group Claim is one of actual identity as a member of the appellant's family leading to that imputed identity. Unlike the Ahmadi Claim, the Family Group Claim does not first require the establishment of actual identity as an Ahmadi or evidence of practice.
31 This difference is necessary to identify because the Tribunal referred occasionally in its reasoning to whether the appellant would be perceived to be an Ahmadi. On its face, that nature of language is capable of addressing either or both of the Family Group Claim and the Ahmadi Claim. But if the Tribunal was there considering only imputed identity that is derivative of actual identity as an Ahmadi, then the Tribunal would only have considered the Ahmadi Claim. In simple terms, if a claimant said that if either of propositions A or B is established then conclusion C is true, and the finder of fact said that it disbelieved A, therefore it disbelieved C, without more that would be an error and a failure to consider whether B had been established and (if so) whether B's establishment led to conclusion C. With respect, that was the Tribunal's error: it dealt with one claim as to why people would consider the appellant to be an Ahmadi (because he was: the Ahmadi Claim), but did not deal with another (because he was a member of a well-known Ahmadi family: the Family Group Claim).
32 The Tribunal's consideration of the Ahmadi Claim commenced at [13]. There, under the heading "Ahmadi religion," the Tribunal stated (with emphasis added) that "the [appellant] claims that he will be harmed as an Ahmadi. In support of his claim to be Ahmadi, he [made certain statements]." Those statements, in summary, were as follows:
(a) that the appellant's grandfather became an Ahmadi between 1965 and 1970, noting also that his grandfather's grandfather was also Ahmadi;
(b) that he suffered discrimination as an Ahmadi as a student, in his legal career, and as a businessman;
(c) that he ceased to practice as an Ahmadi in 1995 or 1996 after his "teacher lawyer" was killed;
(d) that his family were listed as Ahmadi in the 1986/87 electoral roll
(e) that his grandfather was an Ahmadi member of the Punjab Assembly;
(f) that his family were fighting a court case that identified them as Ahmadi;
(g) that his uncle had been kidnapped, tortured, and beaten and that his uncle had allegedly been told that it was because he was Ahmadi.
33 Contrary to the Tribunal's statement that those matters were raised in support of a claim "to be Ahmadi," (i.e., of actual identity as an Ahmadi) many can be seen to have been advanced not for that reason but instead in support of the claim that, since he was a member of his family, he would be seen to be Ahmadi. That applies particularly to items (e) and (f).
34 At [14]-[19], under the heading "Ahmadi practice," the Tribunal considered whether the appellant was at any time a practicing Ahmadi and concluded (at [19]) that he and his family engaged in little, if any, practice of the Ahmadi faith prior to 1999. At [20]-[22], the Tribunal referred to the electoral roll records that purported to show the appellant's family having registered in 1986/87 as Ahmadis. The Tribunal did not accept the lists as genuine ([21]). Nevertheless, it accepted that the appellant's family members were listed as non-Muslim voters when his grandfather was elected to the Punjab Assembly as a non-Muslim member. It concluded (at [22]) that the appellant had not been listed as non-Muslim since 1999 when his passport was issued showing his religion as Islam. At [23], the Tribunal referred to declarations that were required to be signed by passport applicants denouncing Mirza Ghulam (the founder of the Ahmadi faith) as a false prophet. It concluded that the appellant had signed such declarations in 1999, 2002, and 2011. At [24], the Tribunal noted that separate registers were maintained for Muslim and Ahmadi marriages and that the appellant married in a Muslim marriage arrangement. At [25], the Tribunal noted that the birth certificates of the appellant's children showed their religion as Muslim.
35 All of those matters may well have been relevant to negativing actual identity as an Ahmadi and imputed identity derivative thereof - i.e., the Ahmadi Claim. But, in my opinion, they do not address and are irrelevant to a claim of imputed identity that does not rely on actual identity as an Ahmadi, like the Family Group Claim.
36 At [26]-[29] the Tribunal considered the family land case. I will return to that later. At [30], the Tribunal considered the appellant's uncle's kidnapping. A First Information Report (FIR) stated that the "bone of contention" that led to the kidnapping was a dispute over property. The appellant claimed that "his uncle told him after he was released that he had been kidnapped because of religion. The [appellant] stated that everyone knows his uncle is Ahmadi as he presented the land case in the court" (at [30]). But, having concluded that the uncle had not presented a case that identified him as Ahmadi, the Tribunal held that the uncle had not been kidnapped because he was an Ahmadi. It concluded (at [31]), "the [appellant] has not claimed that he was harmed because his uncle was kidnapped in connection with a property dispute and the Tribunal … does not accept that he suffered any harm or will suffer any harm in the future because of his uncle's property dispute." That was a mischaracterisation of the appellant's submission. He did not claim that he would be harmed because his uncle was kidnapped or because of the property dispute. Rather, the claim was that his family was thought to be Ahmadi, in part because of the court case, and because of that they were at risk. The uncle's kidnapping was proffered as an instance of the actualisation of that risk - i.e., evidence in support of a claim - not as a claim in itself. It is doubtful that [31] deals with any of the appellant's claims but if it does then for the same reasons as will shortly be given in regard to the Tribunal's consideration of the court case the consideration is of the Ahmadi Claim, not the Family Group Claim.
37 At [32], the Tribunal held that the appellant had not been discriminated against or been the subject of prejudice as an Ahmadi, on two bases, being: first, that the Tribunal "[did] not accept that the [appellant] present[ed] himself as Ahmadi or that he would be identified as Ahmadi;" and, second, that the appellant had three degrees, graduated as a lawyer, and established his own business which was inconsistent with his having been discriminated against. The reasoning included that "the Tribunal does not accept that the [appellant] identifies as an Ahmadi or practices the Ahmadi faith and therefore does not accept that he has suffered discrimination … as an Ahmadi" (emphasis added). This exposes the Tribunal's approach: it set up an essential causal relationship between actual identity as an Ahmadi and imputed identity as an Ahmadi. That is valid and appropriate for consideration of the Ahmadi Claim, but it is inconsistent with consideration of the Family Group Claim. I observe, in passing, that the fact of a person having achieved success does not require the finding that the person has not been discriminated against. Nor is success necessarily "inconsistent" with discrimination. The Tribunal's reasoning in this regard is arguably problematic but it is not necessary to consider that further.