AEQ15& Ors v Minister for Immigration

[2016] FCCA 2849

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEQ15& ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2849

Catchwords:
MIGRATION – Application for judicial review – failure to have proper regard to documentary evidence – no matter of principle – application granted.

Legislation:

Migration Act 1958 (Cth).

First Applicant: AEQ15

Second Applicant: AER15

Third Applicant: AES15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 514 of 2015

Judgment of: Judge Riethmuller

Hearing date: 2 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Melbourne

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicants: Mr Aleksov

Solicitors for the Applicants: Sabelberg Morcos Lawyers

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing its decision dated 19 February 2015 (RRT case number 1319178)

2. A writ of mandamus issue directed to the Second Respondent requiring it to reconsider and re-determine the review application made on 17 December 2013 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG514/2015

AEQ15

First Applicant

AER15

Second Applicant

AES15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a protection visa. The application was refused by the delegate on 28 November 2013. The applicant applied to the Tribunal on 17 December 2013, and appeared before the Tribunal in June and July 2014. The Tribunal made a decision on 19 February 2015.  The applicant then sought judicial review in this Court.

2. The basis of the protection visa application is conveniently summarised in paragraph 27 of the Tribunal’s decision where the Tribunal states:

   [27] Only the first named applicant provided an application with Part C, ‘Application for an applicant who wishes to submit their own claims for protection’. The second named applicant did not. In a statutory declaration accompanying the application, the first named applicant (the applicant) set out the following claims (the subheadings are the Tribunal’s):

   Employment related problems

   In December 1999 he found a job as an accountant at Abi Dous Tourism company, located at Tahrir Square, Cairo. The manager, Ehab, was a Christian, but the three Muslim owners of the company, a husband and wife and another man, started to try to convert the applicant about a month after he started working there. During the six months that the applicant was working there Ehab converted to Islam. A Christian girl who was working at the company married a relative of one of the owners and also converted to Islam. The applicant ‘couldn’t handle’ the pressure and left the job in June 2000.

   After leaving he went to many companies and restaurants to seek work but they only employ Muslim people – according to his statement it is “written very clearly ‘we only employ Muslim people’.” He was forced to work for a distant family member in his hardware store. He worked there from August 2000 until October 2004. From October 2004 until March 2005 he worked in what he described as a better job in ‘admin and HR’ at a company called Helbis.

   After this the applicant worked at Orascom in Egypt from May 2005 until August 2007. To escape the problems he faced in Egypt, the first named applicant asked for a company transfer to Abu Dhabi. He left in August 2007 and the second named applicant followed him in July 2008.

   Problems faced by the second named applicant

   After the applicant and the second named applicant married, they moved to a ‘very dangerous part of Egypt’, Dahr El-Salam, and faced many problems. Muslims used to scare the applicant’s wife in the street, tell her to take off her cross, throw water on her and threaten to throw acid on her if she continues to wear a cross. In 2004 ‘they’ threw acid on her. The acid burned her clothes but did not reach her skin. People threw water on it, while the assailant managed to get away.

   One time the second named applicant was crossing a bridge, on her way to a church. An ‘individual with a beard was walking past on the bridge and snatched the cross’ from her neck, threw it on the ground and stepped on it. He injured her neck ‘and it also had scratches’. When she went to the police station the police told her it wasn’t possible to press charges and ‘changed her story.’

   Attempts to force the applicants to leave the area where they lived

   The applicants were the only Christian family in the ‘block’ and faced many issues on account of their religion – their windows were broken with ‘Molotovs’, ‘much’ of their belongings were damaged, granite blocks were thrown and the TV damaged. The applicants decided they would face further problems and did not report anything to the police after they were warned that the authorities in Egypt are corrupt and they don’t help Christian people with any problems.

   A lot of Muslims in the area told them to convert if they wish to remain in the area.

   Next door there was a mosque and a ‘microphone’ (speaker) was placed outside their window and ‘directed’ at them. Loud prayers would be recited every morning from 4:45am. On Friday, at the 12pm prayer there would also be degrading anti-Christian comments e.g. that Christian infidels should leave Egypt or convert.

   Out of fear many time the family would go to stay with the second named applicant’s mother.

3. The Tribunal also identified additional claims that arose from documents provided by the applicants after the delegate’s decision had been made (see paragraphs 43 to 47 of the decision).  Importantly, as noted at paragraph 43(3):

   43(3) A police report from Old Cairo Police Station. It refers to the incident, discussed at paragraph 6 of the first named applicant’s statutory declaration, where the second named applicant had a chain snatched off her neck when she was crossing a bridge. The report is undated but states: ‘The certified fees were settled under no. 0605421, group no. 826 on 18/7/2012’.

4. The Tribunal ultimately concluded that it did not accept that the applicants were credible witnesses, making findings that:

   The Tribunal finds that the applicants are not credible witnesses and does not accept that:

   ·   anyone attempted to kidnap any of the applicants;

   ·   anyone was following any of the applicants and plotting to kidnap or harm them;

   ·   that there were threatening letters or phone calls made to the applicants;

   ·   that they had to go into hiding or go to stay with relatives because they feared harm;

   ·   that their flat was firebombed, or that any flammable liquid was ever thrown into the flat;

   ·   that any rocks or pieces of granite were thrown into their flat;

   ·   that the second named applicant was hit or almost hit by a vehicle;

   ·   that the second named applicant’s niece or any other member of the extended family has been assaulted or threatened because of the applicant’s Christian activities;

   ·   that the applicants’ Muslim neighbours or other Muslims wanted to convert the applicant

   ·   that the applicants’ Muslim neighbours or other Muslims wanted to force the applicants to move out of the building and area where they were living;

   ·   that anyone ever tried to break in into the flat or made noise (rang the bell) during the middle of the nigh to harass and frighten the applicants;

   ·   that the applicants Muslim neighbours or other Muslims installed a speaker outside one of the bedroom windows of the flat;

   ·   that either the first or second named applicant engaged in helping Christian children, girls, converts or people who were returning to Christianity after being forcibly converted to Islam in a way that went beyond collecting goods, food or money for needy families;

   ·   that the second named applicant had water or acid thrown on her;

   ·   that the second named applicant was assaulted by a bearded man, because she was a Christian and she was wearing a crucifix around her neck;

   ·   that the first named applicant’s father accidentally stepped on the prayer rug of a Muslim praying in the street, it caused an argument and his father was assaulted. Subsequently the ‘mullahs’ came to the house and assaulted his father there (this claim was raised at the interview with the delegate and then discussed at the first hearing).

5. In argument before this Court, counsel for the applicants properly identified the key issue in this case and pressed only that argument.  The issue arises as a result of the Tribunal’s findings in paragraph 64.  That paragraph provides:

   64. Based on the statement that ‘[t]he certified fees were settled… on 18/7/2012’ the Tribunal finds that the police report was purportedly issued in relation to events which took place on 18 July 2012 or earlier. As the delegate correctly pointed out, at that time the second named applicant was not in Egypt. According to a stamp in her passport, she left the United Arab Emirates and travelled back to Egypt on 20 July 2012[1]. On the evidence before it, the Tribunal has reached the same view as the delegate in relation to this document, namely, that it was fabricated by the applicants. Therefore, the Tribunal finds that the claims contained in the document have also been made up and she was never assaulted by a Muslim man for wearing a necklace with a crucifix.

   [1] Folio 117 of first DIBP file. See also answer at question 24, Part D, Form 866, folio 40 of first DIBP file

6. The Tribunal member concluded that the claim with respect to the incident of 18 July 2012 must have been false on the basis that the Applicant’s passport showed that she only left the United Arab Emirates and travelled back to Egypt on 20 July 2012, two days after the alleged event.

7. As the Tribunal notes in their footnote, there is also some evidence to support this proposition in the original application document, which appears at page 34 of the court book: In the application document question 24 asked: Did you ever travel outside your home country or country of residence before your current journey to Australia? The answer given was yes, and the details given were for travel to the United Arab Emirates between 11 June 2008 and 20 July 2012 as a result of the husband’s occupation.

8. The additional documents before the Tribunal, referred to in the body of paragraph 64, were copies of the entry and exit stamps contained within the applicant’s passport. Whilst difficult to read, there is no dispute as to the contents of the stamps applied by the United Arab Emirates.  It is clear that the applicant left the United Arab Emirates on 10 July (see court book 141) and returned to the United Arab Emirates on 19 July (see court book 140). Thereafter, the applicant left the United Arab Emirates on 20 July and entered Australia on 21 July (See court book 127 and 140.)

9. It is not disputed by the Minister in these proceedings that the applicant was, in fact, in Egypt between 10 July and 18 July, which the evidence of her leaving and returning to the United Arab Emirates (the entry and exit stamps in the passport) demonstrates.

10. At the hearing it was also identified that entry and exit stamps for Egypt appeared in the passport for entry into Egypt on 10 July 2012 and departure from Egypt on 18 July 2012.  These stamps, although in Arabic, appear at court book 142 for the entry into Egypt, and at page 144 of the court book (the second bottom stamp) for exit from Egypt.  The solicitor for the applicant, who speaks Arabic, undertook to file an affidavit confirming the translation of the Arabic stamps in the passport. As this evidence of translation was not before the Tribunal, I do not take it into account (I had the evidence placed in admissible form lest I be in error in not relying upon it).

11. The result is that there can be no doubt that the Tribunal has made an error in its discussion of the evidence at paragraph 64 when it concluded that the applicant was not in Egypt on 18 July 2012, leading to the finding that the applicant’s claims with respect to the events on 18 July 2012 in Egypt were therefore false.

12. It is apparent that the Tribunal member misread the United Arab Emirates stamps and the passport and therefore, in effect, failed to take into consideration the evidence before the Tribunal in this regard. This was not a case where the Tribunal’s conclusion could be said to be an interpretation open to the Tribunal on a plain reading of the documents.

13. The question that was ultimately the point at which the parties joined issue was whether or not this resulted in a jurisdictional error. I accept that it was not open to the Tribunal member to come to the conclusion they reached, if they had proper regard to the stamps (although I have considerable sympathy for the member in the circumstances) for the reasons set out below.

14. Counsel for the Minister argued that the credit findings against the applicant were significant, relating to a large number of other matters. The decision, it was argued, could not have resulted in a different outcome had the Tribunal had proper regard to the stamps in the applicant’s passport.  In particular, Counsel relied upon the findings at paragraphs 63 and 65 to 67 which provide that:

    [63] The Tribunal finds that they manufactured the claims in relation to their work helping converts, and many of the other claims, for the following reasons:

    (1) Only the first named applicant submitted a Part C of Form 866 'Application for an applicant who wishes to submit their own claims for protection'; his wife submitted a Part D 'Application for a member of the family unit'. Only the first named applicant submitted a statutory declaration. The applicants were represented by a registered migration agent from the time they lodged their applications.

    (2) The first named applicant's written claims make no mention of the second named applicant's alleged activities and the consequent problems, except for a general reference at paragraph 6 to a church letter (see at paragraph 56 above).

    (3) By contrast, the first named applicant's statutory declaration refers to alleged incidents involving the second named applicant, including the claim that acid was thrown on her and that she was assaulted on a bridge. The Tribunal considers that the first named applicant would have at least mentioned, in his own statutory declaration, the alleged problems the whole family experienced as a result of the second named applicant's activities.

    (4) The explanation provided in the response to the s.424A letter that the immigration system is 'extremely complex', is not persuasive. As already noted the applicants enjoyed the assistance of a representative, who is an experienced migration agent. During the course of the interview with the second named applicant he discussed claims relating to his wife - including that acid was thrown on her, that she was assaulted on a bridge - but not the far more important claims involving death threats, attempted kidnappings/abductions and an attempt to run her over with a car.

    (5) At interview the delegate invited the first named applicant to talk about the problems experienced by the second named applicant (see, for example, at top of p. 11 of the delegate's decision). During the course of the interview he was asked why his wife would be targeted. He said it was because she was always wearing a big cross on a necklace and could be identified as a Christian. There was no mention of the alleged numerous other problem she incurred as a result of her activities.

    (6) The applicants provided a large number of documents together with their application, including copies of all pages of their passports, birth certificates, a marriage certificate, baptism certificates, and various school and higher education related documents. There was no mention of the second named applicant's problems, except for an oblique reference to 'severe persecution, threatened to be killed and harmed' in an undated letter from an unnamed priest of St Mary Coptic Orthodox Church, at an unnamed location.

    (7) As the Tribunal noted in its s.424A letter, the delegate specifically asked the first named applicant at interview whether he wanted to make any more comments or talk about anything that has not been covered during the interview. The unequivocal answer was no. The interview resumed after a short break and the first named applicant said he did not wish to make any final comments. Neither he, nor his representative asked to confirm that the second named applicant will be interviewed.

    (8) In relation to the alleged expectation the applicants had that the second named applicant would be interviewed, only the first named applicant was invited to an interview by the Department of Immigration. At the end of the interview the first named applicant was told that he had two weeks to provide further information or evidence to the delegate and after this time the case will be finalised. At no point was there a suggestion by the delegate that the second named applicant needed to be interviewed. While the case was before the Department of Immigration, the applicants' representative did not identify the need to interview the second named applicant.

    (9) At the very end of the interview with the delegate the first named applicant said if he went back to Egypt the family will face problems. He did not know the precise reason why they would do so, but maybe because the applicants were good Christians, who go to church at least twice a week, and who go to poor people and help them. There was no reference to helping converts, nor to any specific past acts of harm the applicants had already suffered.

    (10) The applicants' pre-hearing submissions, received by the Tribunal on 23 June 2014, made no reference to the second named applicant's alleged activities; they do not complain about the delegate's failure to interview the second named applicant; they do not expressly raise the new claims. Instead, the submissions cover the first named applicant's employment difficulties, 'property damage, attacks with Molotov cocktails, accounts of verbal abuse, threats of death and acid thrown' on the second named applicant, the police report in relation to the cross/necklace incident on the bridge.

    (11) The response to the s.424A Jetter asserts that the letter from the St Mary Coptic Orthodox Church is genuine and that it raised the second named applicant's claims (see paragraph 57, above). As already noted, the letter was not only undated, but general in nature. Further, the Tribunal does not accept that an updated letter was provided. Two letters were provided from the church of 'St., Mary and Saint Athanasius' (italics added) which is different from 'St Mary Coptic Orthodox Church'. One is signed 'Priest: Paul', the other - 'Priest: Kyrollos'. Because the two letters were signed by different persons, the Tribunal places little weight on these 'updated letters'. In any case, they only contain general claims as well.

    (12) The problems relating to Haidi allegedly started in late 2006 or early 2007. On at least one occasion some men waited in front of the applicants' flat and made threats. The applicants had to go into hiding. The Tribunal considers it implausible that the first named applicant would have neglected to mention this either in his statutory declaration or at interview with the delegate, because these problems concerned him and the third named applicant as well.

    (13) The applicants claimed at the second hearing that the first named applicant returned from the United Arab Emirates around April 2008 after a phone call from his son's school to his wife. A woman had pretended to be a family friend and tried to take the third named applicant. This was one of the kidnapping/abduction attempts. The school called the second named applicant who in tum called the first named applicant in the United Arab Emirates. According to the evidence at the hearing, the impersonator was 'for sure' related to the people who tried to kidnap the third named applicant before. The Tribunal finds it implausible that the first named applicant would not have mentioned either in his statutory declaration or at interview something about this incident. While he was not in the country at the time it allegedly took place, it is both important and caused him (the first named applicant) to return to Egypt.

    (14) The second named applicant claimed to have gone to the police when she was assaulted on a bridge by a bearded man. Yet she did not contact the police in relation to Haidi, even though more serious crimes were allegedly committed. When asked about her failure to report what appeared to be a more serious problem, the second named applicant told the Tribunal that she reported the necklace incident, because there were witnesses to that crime. The Tribunal does not accept that explanation - the police report provided by the applicants does not name any witnesses. Further, the Muslim men's alleged offences in relation to Haidi could have been investigated and the applicant herself could have been a witness for the police/prosecution. In addition, she told the Tribunal that at least one incidence -the attempt to kidnap the third named applicant - happened in broad daylight in front of many witnesses.

    (15) At the resumed hearing the second named applicant provided an alternative explanation for her failure to report these problems to the police, namely, that when Christians complain to the police they not only do not get any assistance, but in fact the authorities would sometimes try to convert a person in the police station. The second named applicant said that the Tribunal could Google this and would find information. The Tribunal expressed a view that this sounded implausible and in the absence of any independent information in support of this claim, the Tribunal rejects it.

    (16) Contrary to the second named applicant's claim that she did not report anything to police, the EUHRO report states that there were at least three reports or attempted reports to police - in relation to the family receiving threatening letters, in relation to the attempt to abduct her in 2012, and the assault of the second named applicant's niece.

    (17) Through the same church the second named applicant helped girls for about 5 years, yet she was never seriously harmed, even though in the Tribunal's opinion it would have been relatively easy to locate her. Despite all the verbal and written threats, the persecutors always failed in their attempts to inflict serious physical harm or to kidnap her or the third named applicant were unsuccessful.

    …

    [65] The Tribunal places little weight on the various other letters from Coptic Church officials in Australia and Egypt both because of its concerns about the applicants’ credibility and because they are mostly of a rather general nature.

    [66] The Tribunal considers it implausible that the applicants would have remained in their house from 2002 to 2007 if they were in fact subjected to constant harassment in a concerted effort either to force them out or to convert them. The first named applicant had grown up in another part of the same suburb, a few kilometres away, where he had not had serious problems. The Tribunal finds that the applicants could have moved to a place that was safer instead of remaining in this 'very dangerous part of Egypt'. The Tribunal notes that this allegedly 'very dangerous part of Egypt' is the same suburb where the first named applicant grew up. At the hearing he asserted, unconvincingly in the Tribunal's view, that one part of the same suburb was relatively safe (although he insisted that Christian in Egypt cannot be safe anywhere), while the part to which he moved after getting married was not safe at all.

    [67] Even if the Tribunal was to accept the claims in relation to the second named applicant's past activities helping converts, and it does not, it finds it implausible that after the applicants spent more than four years in the United Arab Emirates (June 2008 to July 2012) and another two years in Australia, she would still be of any interest to a Muslim group and the man who wanted to marry Haidi.

1. This large number of matters are discussed prior to paragraph 68 where the Tribunal formally finds that the applicants are not credible witnesses and rejects all of their claims.

2. Counsel argued that this resulted in a number of “parallel strands” to the decision-maker’s reasoning, that sustained the decision despite the problems with paragraph 64.

3. Counsel also pointed out that the finding that the applicant was not in Egypt at the relevant time appeared in the delegate’s decision (see court book 304), and a was matter that was not subject to dispute specifically in submissions before the Tribunal.  Thus, the Tribunal member was left without specific submissions or assistance with respect to this particular issue. I also accept that it would not be difficult to misconstrue the passport stamps, even though a careful reading of them leads to only one conclusion.

4. The hearing before the Tribunal was supported by an interpreter for the Arabic language (a matter which is not in dispute), however, there is no evidence as to the actual matters discussed (such as a transcript), nor whether the Arabic stamps in the passport of the applicant for entry and exit from Egypt were discussed at the hearing. Thus there is no evidence this was not raised in submissions to the Tribunal.

5. The argument developed two significant points. First, whether the matters alleged to have occurred on 18 July 2012 could be an integer capable of supporting the visa application independently of the other matters, in which case the failure of the Tribunal to consider this integer resulted in jurisdictional error. Secondly, whether the result and findings in paragraph 64 so impugn the applicant’s credit as to infect the considerations with respect to the applicant generally, and thereby taint the considerations with respect to the other matters that were alleged.

6. At paragraph 64 the events on 18 July are simply described by the applicant as an “assault by a Muslim man for wearing a necklace with a crucifix”.  Such a bare allegation does not readily admit of an argument that it could be to potentially sustain a protection visa argument.  However, a review of the material indicates that the claim was more than that. It was alleged not only that a criminal had grabbed the necklace from the applicant’s neck, but also that the crucifix had been thrown on the ground and stepped on (see the paragraph 27 of the Tribunal’s reasons set out above).

7. The event was alleged to have occurred when the applicant was on her way to church. Whilst it would be difficult to conclude that the event in isolation would amount to serious or significant harm, as described in the protection criteria, it would be an event that would bear upon the question of whether or not such harm was likely in the future, particularly in the broader context of this case.

8. Whilst it would not be a strong basis for a case it nonetheless appears that it is an integer that ought to have been considered by the Tribunal (if it is accepted that it occurred), and would have been considered, but for the difficulties with respect to reading the passport stamps, and identifying the dates that the applicant was, in fact, in Egypt.  For these reasons I find that the Tribunal has failed to deal with this part of the applicant’s claim, and that the decision should be quashed.

9. Secondly, in a case such as this where the credibility of the applicant was central to the claims, it would be easy to underestimate the significance of a finding that the dates in the passport stamps showed that the applicant could not have been present in Egypt at the time of the offence set out in the police report that she relied upon.  It appears to be the only finding of the Tribunal of a potentially definitive and deliberate untruth in the context of many findings as to credibility based upon the versions of events, the applicant’s presentation and the nature of the information put forward.

10. Put simply, the other credibility findings related to the applicant’s presentation and conduct of her visa application, and the impression of the Tribunal member as to whether or not the events described had the ring of truth, in comparison to this particular finding, which purported to demonstrate a clear falsehood on the part of the applicant based upon documentary evidence.

11. In these circumstances, in the context of a protection visa application, I am ultimately persuaded that this is also a proper basis upon which to quash the decision of the Tribunal.

12. I therefore make orders to quash the Tribunal’s decision and remit the matter for rehearing.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 7 November 2016