Afi15 v Minister for Immigration and Border Protection
[2016] FCA 902
•5 August 2016
FEDERAL COURT OF AUSTRALIA
AFI15 v Minister for Immigration and Border Protection [2016] FCA 902
Appeal from: AFI15 v Minister for Immigration and Border Protection [2016] FCCA 331 File number: NSD 427 of 2016 Judge: GRIFFITHS J Date of judgment: 5 August 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing judicial review application – whether primary judge erred in failing to set aside Tribunal’s decision because of migration agent’s “misconduct” and claimed failure of the Tribunal to accept appellant’s evidence of harm – appeal dismissed. Cases cited: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 Date of hearing: 5 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: The Appellant appeared in person. Solicitor for the First Respondent: Ms P Blackadder from Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent submitted to any order the Court might make, save as to costs. ORDERS
NSD 427 of 2016 BETWEEN: AFI15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
5 AUGUST 2016
THE COURT ORDERS THAT:
1.The notice of appeal dated 28 March 2016 is dismissed.
2.The appellant is to pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
The appellant appeals against a judgment and orders of the Federal Circuit Court of Australia (FCCA) dated 15 March 2016. The FCCA dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)), which affirmed a decision of the Minister’s delegate not to grant the appellant a Protection visa.
Background facts summarised
The appellant is a citizen of Egypt who arrived in Australia on 9 May 2013. He lived in Austria from 2006 to 2011.
In brief, the appellant’s application for a Protection visa, which was lodged on 6 June 2013, was based on his claim that he would be harmed if he returned to Egypt because he did not practice Sunni Islam and, instead, was a Koranist. He claimed that he had experienced difficulties as a result of his religious beliefs and frequently had to pretend to be a Sunni. He said that, because of his beliefs, his life had been threatened and he had been interrogated by sheiks and forced to stand in a police station and recite the Shahada (the First Pillar of High Islam).
The Minister’s delegate found that she was not satisfied that Australia owed the appellant protection obligations. In reaching that conclusion, the delegate made strong adverse findings concerning the appellant’s credibility. She made reference to numerous inconsistencies in the appellant’s evidence and claims and set out several reasons why she found that the appellant “was not able to demonstrate more a limited understanding of the Quranist faith and failed to describe his own Quranist beliefs in any detail” (noting that the delegate adopted a different spelling of the Koranist faith). The delegate made numerous references to aspects of the appellant’s evidence which underpinned her ultimate finding that the appellant was not a witness of truth The delegate found that the appellant had fabricated all his claims relating to his religion.
The Tribunal’s decision reviewing the delegate’s decision was handed down on 23 February 2015. The Tribunal also made adverse findings concerning the appellant’s claims. The Tribunal did not accept that the appellant was a Koranist or that he had been involved in any activities either in Egypt or anywhere that were Koranist-related activities. The Tribunal found the appellant’s evidence in relation to substantial aspects of his claims to be “vague, lacking in details, inconsistent, general, and somewhat evasive”.
The Tribunal explained that it arrived at this conclusion by reference to the appellant’s evidence before it. For example, based on the appellant’s answers to the Tribunal’s questions concerning his knowledge of the Koranist movement, the Tribunal concluded that his “knowledge of the movement is superficial, general and inconsistent with a person who has been involved in the practice for a number of years”. It also found that the applicant provided inconsistent information about his claim that, in 2012, he began to discuss his ideas with his work colleagues and it concluded that this inconsistency raised doubts about his claim and his credibility. Further, as a result of the Tribunal’s questioning of the appellant concerning any other incidents of harm he had encountered, the Tribunal found that the appellant required prompting by it about the claims he made in his written application, which suggested “fabrication”.
The Tribunal addressed the appellant’s claims that he had had problems with his former migration agent whom he believed had included claims and excluded others without his instructions. It is desirable to set out [12] of the Tribunal’s reasons for decision which relate to this claim:
As discussed below, the Tribunal found the applicant’s evidence in relation to substantial aspects of his claims to be vague, lacking in details, inconsistent, general and somewhat evasive. In the course of the hearing, when potential concerns were put to the applicant, he responded essentially by saying that he had problems with his former migration agent (Ms Terese Nicolas) whom he believes had included claims and excluded others without his instructions. The Tribunal notes that the former adviser had ceased acting a day prior to the hearing and whilst it is plausible that there were problems between the applicant and his former adviser, the Tribunal is not satisfied that any such problems account for the evidentiary concerns.
The FCCA proceeding
The appellant sought judicial review of the Tribunal’s decision in the FCCA. He raised the following two grounds of judicial review (errors in original):
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.
A third ground was sought to be raised at the hearing, namely that the Tribunal did not address the appellant’s claims about being a Koranist. This was rejected by the primary judge on the basis that the Tribunal’s reasons plainly revealed that this claim was addressed.
The primary judge’s reasons for judgment are reported as AFI15 v Minister for Immigration and Border Protection [2016] FCCA 331.
As to ground 1, the primary judge noted that the Tribunal had addressed the appellant’s claims concerning his migration agent and found that those problems did not account for its evidentiary concerns regarding some of his claims. The primary judge accepted that there may have been issues between the appellant and his migration agent, noting that the agent had been engaged up until just before the Tribunal hearing. The primary judge concluded, however, that the issues with the migration agent as explained by the appellant were not enough to infect the Tribunal’s decision with jurisdictional error. In reaching this conclusion the primary judge referred to settled authority that negligence or some other mishap on the part of a migration agent does not give rise to jurisdictional error (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE) at [53]). Accordingly, this ground was rejected.
The primary judge described the second ground of judicial review as also relating to the migration agent’s conduct. The primary judge concluded that there was nothing in the evidence to support the appellant’s contention that the migration agent had misled him save to the extent that it could be said that not including a claim in his application is misleading. The primary judge reiterated his finding that such conduct was insufficient to amount to jurisdictional error.
As to the appellant’s complaint that the Tribunal did not accept his claims, which the appellant confirmed was a reference to his allegation that the Tribunal did not consider his claims of being a Koranist, the primary judge referred to his earlier finding that the Tribunal had addressed and rejected all of the appellant’s claims concerning his involvement with the Koranists.
The proceeding in this Court
The notice of appeal contains the following two grounds of appeal (errors in original):
(a)His Honour as well as the Tribunal failed to accept the misconduct of the migration agent which harmed my application. It is an error of law that the migration agent misled the Department and me.
(b)His Honour and the Tribunal do not have evidence that I will not be harmed as a Koranist in Egypt.
Directions were made on 29 March 2016, including a direction that the appellant file and serve an outline of written submissions ten business days before the hearing date. The appellant failed to comply with this direction.
The appellant represented himself at the hearing and was assisted by an interpreter. The oral submissions made in support of his appeal may be summarised as follows:
(a)the “misconduct” of the migration agent referred to in ground 1 of the appeal relates to information which the migration agent included in the Protection visa application which did not accurately reflect the appellant’s instructions to the agent about his claims and the migration agent misunderstood his case; and
(b)the second ground of appeal relates to the appellant’s complaint that the Tribunal did not accept his evidence that he would be harmed as a Koranist in Egypt.
The Minister filed an outline of written submissions in advance of the hearing. It is unnecessary to summarise those submissions because they are substantially reflected in the reasons for judgment given below.
Disposition of the appeal
The two grounds of appeal are set out in [14] above. The appellant has not satisfied me that the primary judge fell into appealable error.
As to the appellant’s claims regarding his migration agent’s conduct, the primary judge made reference to the Tribunal’s reasoning at [12] (as set out in [7] above). In circumstances where there was no appropriately expressed claim of fraud on the part of the migration agent, nor any evidence of any such fraud, the primary judge was correct to apply SZFDE. It is well settled that it is insufficient in law that the Tribunal has acted on “bad or negligent advice or some other mishap” on the part of a migration agent.
There is a reference in [10] of the Tribunal’s statement of decision and reasons to the Departmental file containing “documents relating to allegations of fraud concerning the applicant’s entertainer visa application” and that the appellant was interviewed in relation to his Protection visa application on 14 February 2014. The Tribunal stated that it had not relied on this information in assessing the then applicant’s claim. This reference to “fraud” does not appear to be a reference to any claim that the migration agent had acted fraudulently. Rather, the appellant’s complaint, at least before the FCCA, was that the migration agent had “wrongly” put material in the appellant’s Protection visa application which was contrary to his claimed fear of persecution and that this conduct by the migration agent misled the appellant (and possibly the Tribunal).
As noted above, the appellant confirmed in the appeal that his complaint against the migration agent related to the material which she included in his Protection visa application, which was based on an alleged misunderstanding by her of his instructions and his claims. There was no claim of fraud or bad faith. In these circumstances, it is plain that the primary judge was correct to apply SZFDE at [53] and reject the appellant’s complaint.
As to ground 2, it is evident from the summary of the appellant’s oral submissions that he challenged the Tribunal’s non-acceptance of his evidence concerning his beliefs as a Koranist and his fear of harm if he were to return to Egypt. This amounts to a challenge to the Tribunal’s findings of fact on that topic, as is reflected in the Tribunal’s analysis of his evidence and the findings it made which are set out in [18]-[20] and [27] of its statement of decision and reasons. The primary judge was correct, in a judicial review application, to reject this challenge which amounted to an impermissible questioning of the merits of the Tribunal’s decision in relation to matters of fact which were within its province. I can discern no appealable error in the primary judge’s rejection of the appellant’s claims relating to this matter.
Conclusion
For these reasons, the appeal must be dismissed and the appellant ordered to pay the Minister’s costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 5 August 2016
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