AFI15 v Minister for Immigration

[2016] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 331

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether misconduct of the applicant’s authorised recipient should have been taken into consideration by the Tribunal – whether the Tribunal considered all of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35

Applicant: AFI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 713 of 2015

Judgment of: Judge Smith

Hearing date: 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr K. Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 713 of 2015

AFI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt who arrived in Australia on 9 May 2013. On 6 June 2013, he applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa on 2 April 2014. The applicant applied to the Refugee Review Tribunal[1] for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 23 February 2015. The applicant seeks judicial review of the Tribunal’s decision. In order to succeed, he must establish that the Tribunal’s decision was affected by jurisdictional error.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicant claimed that he would be harmed upon return to Egypt because he does not practice Sunni Islam and would therefore not be protected by the authorities.

3. The applicant claimed that subsequent to the revolution in Egypt, the issues of religion and the practice of Islam became major issues and that he began to read more about Islam and came across the ideas of Dr Ahmed Sobhy Mansour. In August 2012, the applicant became convinced of these ideas and began to discuss the ideas with his work colleagues, who formed a group and practiced Islam differently. The applicant claims that he is now a Koranist.

4. The applicant claimed that he experienced difficulties, and on multiple occasions, had to pretend to be a Sunni. As a result of his beliefs, the applicant said that his life had been threatened by people with whom he talked to about his beliefs and thoughts on Islam. He also claimed that he had been interrogated by sheiks and forced to stand in the police station and recite the Shahada, the first pillar of Islam, that is, that there is no true god but God and Muhammed is the prophet of God.

5. The applicant also told the Tribunal a number of things concerning his former migration agent, including that she had included claims and excluded others in the visa application without his instructions. When the Tribunal asked the applicant about his alleged interrogation by police, the applicant stated (as set out in [15] of the Tribunal’s decision) that “he does not know what claims the migration agent had made in the application for a protection visa.” The applicant explained to the Tribunal that he told his migration agent “that he would be in a position to further discuss his claims”.

6. The Tribunal made its decision on 23 February 2016 affirming the decision of the delegate.

The Tribunal’s decision

1. The Tribunal did not accept the applicant’s claims. Essentially, this was because it found that the applicant’s evidence in relation to substantial aspects of his claims were vague, lacking in detail, inconsistent, general and somewhat evasive. It concluded that neither the applicant nor his parents were Koranists and that he had not been involved in Koranist related activities either in Egypt or elsewhere. It was also satisfied that if the applicant were to return to Egypt he would not engage in Koranist related activities not to avoid harm but because he was not a Koranist. For those reasons, it concluded that the applicant would not be perceived to be a Koranist or opposed to Sunni Islam, that he and his family had not fled Egypt to avoid harm and that he had not suffered any of the harm claimed by him.

2. In rejecting the applicant’s evidence, the Tribunal addressed the applicant’s claims about the misconduct of his former migration agent. The Tribunal found that, while the migration agent ceased acting for the applicant one day prior to the Tribunal hearing, which may have indicated issues between the migration agent and the applicant, it was not satisfied that any problems that could have occurred would have accounted for the evidentiary concerns the Tribunal had with the applicant’s evidence.

3. For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa under s.36 of the Act.

Consideration

1. There are two grounds in the application:

   1.The Migration Agent had wrongly put the grounds in my protection visa application contrary to my fear of persecution.

   2.The Migration Agent misled me and the Tribunal failed also to accept my claim. I reserve my right to lodge an application with more particulars when I receive the Record of Interview with the Refugee Review Tribunal.

2. At the hearing, the applicant raised a third ground, namely, that the Tribunal did not address the applicant’s claims about being a Koranist. In respect of that ground it need only be said that it cannot stand given the plain fact that the Tribunal rejected all of the applicant’s claims concerning his involvement with the Koranists.

Ground 1

1. At the hearing, the applicant claimed that the migration agent did not put all of the relevant information in the application for a protection visa. The applicant said that he was unaware of this initially, but when he did find out that the migration agent had left information out of the application, he no longer engaged the migration agent’s services.  

2. As noted above, the Tribunal addressed the applicant’s claims concerning his migration agent and concluded that the problems would not have accounted for the evidentiary concerns that it had with the aspects of the applicant’s claims for protection. I accept that there may have been issues between the applicant and his migration agent. As the Tribunal noted, the agent was engaged until just before the Tribunal hearing. However, the issues, even as explained by the applicant, are not enough to infect the Tribunal’s decision with jurisdictional error.

3. Negligence or some other mishap on the part of an agent does not affect the legality of the Tribunal’s decision: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53]. There is nothing in the evidence to suggest that any issues between the applicant and his advisor, including what was put in the application for the protection visa, was anything more than a mishap or, at most, the result of negligence. For that reason, the first ground is rejected.

Ground 2

1. The second ground also concerns the conduct of the applicant’s migration agent. The applicant claimed in the first part of this ground that he would put on evidence of the Tribunal hearing. In orders made on 23 April 2015, the applicant was given until 11 June 2015 to file and serve additional evidence by way of affidavit. The applicant did not do so, and did not have a copy of the transcript of the Tribunal hearing with him at the hearing before me. Furthermore, there was no other evidence put forward by the applicant that suggests that the Tribunal’s record of what took place at the hearing was inaccurate.

2. There is nothing in the evidence to support the contention that the agent misled the applicant except insofar as it could be said that not including a claim in an application is misleading. For the reasons I have given in respect of ground 1, that is insufficient to infect the Tribunal’s decision with jurisdictional error.

3. The second part of this ground is that the Tribunal did not accept the applicant’s claims. When asked at the hearing of this matter what claims the Tribunal did not accept, the applicant claimed that it did not consider his claims of being a Koranist. That is the same ground as that raised by the applicant at the hearing and which I have already rejected. I reject the second part of this ground for the same reason.

Conclusion

1. For the reasons outline above, the applicant has not established any jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 15 March 2016