Agj19 v Minister for Immigration
[2019] FCCA 2279
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGJ19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2279 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to have regard to or a real and meaningful engagement with the whole of the country information – whether the Authority failed to take into account a relevant consideration – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 476, 477 |
| Cases cited: Nguyen v the Minister for Home Affairs [2019] FCAFC 128 |
| Applicant: | AGJ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 138 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 19 August 2019 |
| Date of Last Submission: | 19 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Yu |
| Solicitors for the Applicant: | Gateway Law and Migration Australia |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Time for commencing the proceedings is extended up to and including 21 January 2019 under s 477 of the Migration Act 1958 (Cth).
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.
DATE OF ORDER: 19 August 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2019
| AGJ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 25 October 2018 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.
The applicant was found to be a citizen of Egypt and his claims were assessed against that country. The applicant feared harm from the Muslim Brotherhood or Salafists, as well as fearing harm because he refused to undertake his compulsory military service or may be subject to do so on return to Egypt. The applicant also fears harm because of human rights violations and general violence in Egypt.
The applicant arrived in Australia on 24 March 2013. The applicant lodged the application for a Temporary Protection visa on 30 May 2017. On 27 September 2018, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.
On 2 October 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The Authority’s letter provided an attached factsheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such information or submissions were provided.
The Authority in its reasons identified the background to the visa application. The Authority referred to having regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and set out the relevant law, including in an annexure to the Authority’s reasons. The Authority expressly referred in a number of the considerations by the Authority to the Department of Foreign Affairs and Trade (“DFAT”) country information report on Egypt dated 19 May 2017.
The Authority identified having concerns about the inconsistencies in the applicant’s evidence about whether or not the Muslim Brotherhood or Salafists attempted to recruit him. The Authority referred to the applicant being asked questions in his entry interview about who burned down his shop and the applicant indicated he did not know who it was because of the uprising and the Authority also referred to the applicant being asked if there were any other reasons that made him leave Egypt and he said no. The Authority referred to the applicant since his entry interview having changed his story from being recruited by Salafists to being recruited by the Muslim Brotherhood and then back to being recruited by Salafists.
The Authority did not accept any of the applicant’s evidence about events as claimed in his written application dated 30 May 2017 and was not satisfied that members of the Muslim Brotherhood or Salafists have the applicant’s name on a list and are seeking vengeance because he refused to join them. The Authority was not satisfied the applicant’s parents are in danger as he has provided no details about that claim. The Authority did not accept the applicant’s evidence as credible that his brother told him that people were looking for him after he left Egypt.
The Authority made further reference to country information. The Authority did not find the applicant’s evidence credible that he was actively recruited by either the Muslim Brotherhood or the Salafists, that his parents were in danger or that his brother told him that people were looking for him after his departure. The Authority was satisfied there was no real chance the applicant would be targeted for serious harm by members of either of these organisations, or by the Egyptian authorities or by any other person, for reasons of his actual or imputed political opinion or for any other reason, if he is returned to Egypt now or in the reasonably foreseeable future.
The Authority referred to the applicant’s claimed fear of harm in relation to membership of a particular social group, that is persons who refused to undertake their compulsory military service. The Authority referred to country information in that regard.
The Authority identified the three possibilities for the applicant’s case: the applicant performing his military service; the applicant receiving conscription papers and not coming to the attention of the authorities until he is 30 years old; or receiving his conscription papers and coming to the attention of the authorities before he turns 30 years old. The Authority considered what may happen if the applicant follows through with his intention to refuse to undertake military service and referred to country information in relation to payment of a fine and facing up to one year’s imprisonment.
The Authority in that regard referred expressly in footnotes again to the same DFAT country information report on Egypt as well as referring to a UK Home Office report dated 15 March 2017 and was not satisfied that if the applicant were to be fined and arrested and imprisoned for refusing to undertake military service or if he were forced to also undertake military service that this would amount to persecution within the meaning of s 5J(4) of the Act, or that the reasons in s 5J(1) of the Act are the essential and significant reason or reasons for the persecution.
The Authority referred to having found that the applicant was of no adverse interest to the Egyptian authorities prior to his departure. In that regard, the Authority had referred to the applicant departing Egypt lawfully as the holder of a genuine and valid passport, although it was subsequently taken by the people smugglers in Indonesia. The Authority referred to the applicant’s evidence that he has never been involved in a political party or demonstration against the government and that he is a law-abiding and peaceful person. The Authority found there is nothing to suggest the applicant would be subjected to a harsher penalty than a prison term of one year and a fine or that he would be subjected to any form of mistreatment that would amount to or constitute serious harm. The Authority did not consider the imposition of a fine equivalent to approximately AUD$170 to constitute serious harm.
The Authority referred to the applicant’s deprivation of liberty for up to one year as being a lawful sanction and, therefore, does not constitute persecution.
The Authority then referred to the conditions inside the Egyptian prisons and referred to the DFAT country information report that, in general, prison conditions are poor and do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence. The Authority referred to the country information about prisons and accepted that all inmates are at risk of violence in prisons. The Authority then referred to the available country information not indicating or supporting a finding that there is a real risk the applicant will suffer serious or significant harm just as a result of his presence in prison as an inmate without some additional factor. The Authority was not satisfied that being detained in a prison with conditions that fall below international standards constitutes serious harm, having regard to the extensive examples of serious harm in s 5J(5) of the Act.
The Authority referred to taking all of the above matters into account and was not satisfied there is a real chance the applicant will suffer serious harm if he is conscripted or if he refuses to undertake mandatory military service if he returned to Egypt now or in the reasonably foreseeable future.
The Authority referred to the applicant having no adverse political profile in Egypt prior to his departure. The Authority was satisfied after referring to country information there is no real chance that the applicant will suffer serious harm for reasons of his membership of a particular social group, that is, failed asylum seekers who return to Egypt either voluntarily or involuntarily.
The Authority referred to general violence and human rights violations in Egypt and was not satisfied there is such a high level of violence or lack of law and order or human rights violations that the applicant would be targeted for serious harm if he were to return to Egypt now or in the reasonably foreseeable future. The Authority found that generalised violence and human rights violations, if the applicant were subjected to serious harm, would not be for reasons in s 5J(1) of the Act and therefore do not amount to persecution.
The Authority considered the applicant’s claims individually and cumulatively and found the applicant does not meet the criteria in the definition of “refugee” in s 5H(1) of the Act and does not meet the criteria in s 36(2)(a) of the Act.
The Authority then turned to the issue of complementary protection. The Authority in that regard referred to the risk of the applicant having to serve mandatory military service on his arrival and accepted if he does not obey the authorities and does not undertake the service he will be subject to arrest, a fine and up to one year’s imprisonment under Egyptian law. The Authority expressly found that these are lawful sanctions.
The Authority was satisfied that the imposition of a fine of up to AUD$170 does not constitute significant harm for the purpose of s 36(2A) of the Act.
The Authority referred to the earlier findings it had made giving consideration to whether the applicant being detained in a prison with conditions that fall below international standards would constitute ‘torture’ or ‘cruel or inhumane treatment or punishment’ or ‘'degrading treatment or punishment’ as defined in the Act. The Authority was not satisfied that there are substantial grounds to consider there is a real risk that the applicant being exposed to such conditions would cause him severe pain or suffering, or pain or suffering that could reasonably be regarded as ‘cruel or inhumane treatment or punishment’ and did not satisfy the requirements of Article 7 of the Covenant. The Authority was also not satisfied that it would cause the applicant extreme humiliation so as to constitute ‘degrading treatment or punishment’ and did not fall within the requirements of Article 7 of the Covenant and did not satisfy the requirement to cause him ‘severe pain or suffering’ that could be characterised as ‘torture’.
The Authority made express reference to the definition of ‘cruel or inhumane treatment or punishment’ in s 5(1) of the Act. The Authority referred to the fact that mere negligence or indifference is not sufficient in relation to the intention to inflict pain or suffering or to cause extreme humiliation. It was in those circumstances the Authority found that the imposition of a punishment of imprisonment on the applicant for his failure to undertake mandatory military service would not meet that requirement of intention.
The Authority was not satisfied there is a real risk the applicant will suffer significant harm if he either undertakes military service or is arrested, fined and imprisoned if he follows through with the intention to evade military service on his return to Egypt.
The Authority found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Egypt from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 18 January 2019. The applicant required an extension of time under s 477(2) of the Act. On 14 February 2019, a Registrar of the Court purported to make such an order by consent. This Court has earlier opined in relation to concern as to the powers of Registrars to make consent orders either for the granting of writs and that should be understood as extending to purported exercise of powers of extending time by Registrars even by consent. The question of whether time should be extended requires an exercise of the jurisdiction vested in this Court and there is a question mark over whether the purported exercise of the power, even by consent, by the Registrar is accordingly valid. For those reasons, at the commencement of the hearing the Court made by consent an order extending time under s 477 of the Act.
The grounds
Ms Yu of counsel on behalf of the applicant relies upon the grounds identified in the amended application relevantly as follows:
1. The Second Respondent (the IAA) failed to consider relevant evidence that was before it.
Particulars
a. The IAA referred to country information at [34] of its decision, which was to the effect that if the Applicant followed through on his intention to refuse to undertake his military service in Egypt, he would be liable to pay a fine of up to EGP1000 (approximately AUD 170) and/or face a minimum of one year's imprisonment.
b. The IAA, at [38]-[39] and [56] of its decision, found that being detained in a prison with conditions that fall below international standards did not constitute serious or significant harm to the Applicant.
c. In making the findings referred to above at (b), the IAA did not demonstrate any active, intellectual consideration of relevant parts of the "DFAT Country Information Report Egypt" dated 19 May 2017 (the 2017 DFAT Country Report), which was before it at the time it made its decision.
d. Paragraph 5.26 of the 2017 DFAT Country Report states that among other things, "Visits by relatives and lawyers are regularly (and arbitrarily) banned, or are severely limited in time (often between five and ten minutes only). Food rations are severely limited and of poor quality, and authorities frequently deny prisoners basic comfort and hygiene items. While it is technically possible for prisoners to complain internally about mistreatment, doing so is likely to result in punishment for the prisoner.”
e. The matters referred to in paragraph 5.26 of the 2017 DFAT Country Report as outlined in (d) above were matters that were directly relevant to the assessment of whether the Applicant met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. These matters were not considered by the IAA in making its decision. Consequently, the IAA's decision was affected by jurisdictional error.
Ms Yu tendered the DFAT country information report, which was marked exhibit B, and took the Court both in her written submissions and orally to paragraph 526 on pages 32 to 33 of the report. Ms Yu submitted that the Court, in the circumstance of the present case where reference appears in the Authority’s reasons only to the first sentence of paragraph 526 of the country information report, that the Authority had failed to read the balance, or take into account the balance, of that paragraph which, in particular, refers to visits by relatives and lawyers being regularly banned or severely limited in time, food rations being severely limited and of poor quality and authorities denying prisoners basic comforts and hygiene, and that while it is technically possible for prisoners to complain internally about mistreatment, doing so is highly likely to result in a punishment for the prisoner.
Ms Yu also took the Court to the Authority’s reasons under the Refugees Convention where the particular paragraph was referred to in paragraph 39 and contended that the second clause of the sentence referring to country information about prisons which referred to the need for some additional factor supported the contention that the Authority had not taken into account and had a real and meaningful engagement with the country information and, in particular, the balance of paragraph 526 of the said report.
Ms Yu also submitted that the Court should accept the potential materiality of the relevant information and made reference to what was said in Nguyen v the Minister for Home Affairs [2019] FCAFC 128 at paragraphs [45] and [46]. Ms Yu referred in her written submissions to the significance of the matter that was referred to in respect of the complementary criteria under s 36(2)(aa) of the Act and, in particular, whether or not the relevant conduct fell within the definitions of “cruel or inhumane treatment or punishment” or “degrading treatment or punishment” as contained in s 5(1) of the Act.
The Authority’s reasons refer to the relevant DFAT country information report in relation to a number of different matters throughout the reasons of the Authority. It is not necessary for the Authority to refer to every piece of evidence before it. Given the numerous references to the relevant DFAT country information report marked exhibit B, that alone is a sufficient basis upon which the Court would not be prepared to infer that the Authority did not have regard to the whole of the report. However, the Authority’s reasons go much further. The Authority’s reasons expressly refer to the relevant paragraph that the applicant complains that part of the content of which has allegedly been overlooked and that there has been no real and genuine engagement with the same. Given the express reference to the present conditions in respect of the detention of the applicant and imprisonment for failing to undergo mandatory military service, there is no proper basis to infer that the Authority did not have regard to and take into account the whole of paragraph 526 of the DFAT country information report.
It is not apparent that there was any issue expressly raised referable to visits, food rations, basic comforts, hygiene and internal complaints so as to require an express reference to the same in the Authority’s reasons. The Court does not regard the absence of express reference to support the conclusion that the Authority did not take same into account. The Authority’s reasons under the Refugees Convention show a real and meaningful engagement with the issue of the significance of the imprisonment to which the applicant would be exposed. The Authority’s reasons under complementary protection reflect the same real and genuine engagement with the applicant’s submissions in relation to the consequence of his failure to undertake military service if that occurs and if he is located prior to turning to the age of 30.
The Authority’s reasons expressly refer to the earlier reasoning of the Authority, picking up the references to the DFAT country information and refer to the requirements of s 5(1) of the Act. Further, the Court accepts the submissions of the first respondent that a reference to “given the country information” was not of itself confined to the DFAT report and nor was the reference to “the available information” in paragraph 39.
In these circumstances, the Court does not accept the submission that the reference to some additional factor supports any basis to conclude that the Authority failed to have regard to or a real and meaningful engagement with the country information in paragraph 526 of the DFAT country information report.
Accordingly, there is no proper basis to find that the Authority failed to take into account a relevant consideration or to find that there is any other failure to have a real and genuine engagement with the country information in respect of complementary protection concerning the imprisonment for up to one year that the applicant may face for not undertaking military service. There is no basis to find that the balance of paragraph 526 that was not set out in the Authority’s reasons was not taken into consideration by the Authority.
Accordingly, no jurisdictional error as alleged in ground 1 of the amended application is made out. Accordingly, the amended application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 August 2019 and the parties were given sealed copies of the Court’s orders on that date.
Associate:
Date: 30 September 2019
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