Aha18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 118
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 118
File number(s): PEG 235 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 25 February 2022 Catchwords: MIGRATION – Immigration Assessment Authority – application for extension of time – leave granted for the extension of time – whether the IAA erred by misunderstanding evidence – whether the IAA erred by misunderstanding the law – whether the IAA failed to properly consider – whether there is jurisdictional error – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) ss 473DD, 477
Federal Circuit Court Rules 2001 (Cth) r 44.05
Cases cited: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 21 February 2022 Date of hearing: 21 February 2022 Place: Parramatta Counsel for the Applicant: Mr Guo Counsel for the Respondents: Ms Taggart ORDERS
PEG 31 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Grant leave pursuant to s 477(2) of the Migration Act1958 (Cth) for an extension of time to file the Originating Application.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $6500.00.
THE COURT NOTES THAT
4.The applicant did not appear for the judgment delivery. Grant leave for the restoration of the matter within 3 days’ as to any issue in relation to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Vietnam. The applicant arrived in Australia as an unauthorised maritime arrival on 13 July 2013. The applicant had travelled to Australia with his pregnant sister and his niece.
On 18 April 2017, the applicant’s sister lodged an application for a Protection visa naming her brother (the applicant), her daughter and her unborn son as applicants for the Protection visa.
By way of background only, separate decisions were made by the delegate of the Minister for Immigration (“the delegate”) and the Immigration Assessment Authority (“the Authority”) in relation to the sister and her two children. The sister, and her two children sought judicial review in this Court, however, in July 2021 their applications were dismissed.
On 18 October 2017, a delegate refused to grant the applicant a Protection visa. The matter was referred to the Authority for merits review. On 8 January 2018, the Authority affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
The applicant sought judicial review in this Court. On 4 April 2020, by consent, the Court remitted the matter to the Authority for reconsideration on the basis that the Authority had relied upon the applicant’s entry interview with the Department, which was new information, without first considering that new information against the requirements of
s 473DD of the Migration Act 1958 (Cth) (“the Act”).
On 19 May 2020, the Authority affirmed the delegate’s decision for a second time. The applicant now seeks judicial review of the Authority’s second decision.
PRELIMINARY ISSUE – EXTENSION OF TIME TO LODGE THE APPLICATION FOR JUDICIAL REVIEW
The applicant did not apply to this Court for judicial review until 3 August 2020, 43 days out of time. At the time the applicant filed his application, he was self-represented. The respondent noted that the applicant’s Affidavit filed in support of the application for an extension of time failed to comply with r 44.05(2)(c) of the then Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Following the applicant gaining legal representation, an amended proposed application for review and a further Affidavit in support of the application and submissions were filed on 26 July 2021.
Pursuant to s 477(2) of the Act, the Court may extend time for making of an application if satisfied it is necessary to do so in the interests of the administration of justice
It is only if the precondition that the Court is satisfied that an extension of time is “necessary” in the interests of the administration of justice that an order for extending time should be made: (see; SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] per Mortimer J). It is a discretionary matter for the Court, taking account of the following considerations (see; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]):
a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
b) Whether there is any prejudice to the other party; and
c) Whether the applicant’s substantive application for judicial review is sufficiently arguable to justify the granting of an extension of time.
The Court however, should not exercise its discretion to extend time, even for a short period, if the application has no prospects of success. The substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The Court is not required to establish that the application will succeed at final hearing. The grounds of review should be examined on a reasonably impressionistic level to see whether not there are reasonable prospects of success: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]).
In relation to the grounds for the application for extension of time, it was submitted on behalf of the applicant that the application has merit and that an acceptable explanation for the delay had been provided. In terms of the extent of the delay, it was submitted that was not significant and that the first respondent would not be prejudiced by the grant of an extension of time. Further, the applicant had applied for a Protection visa and faces serious consequences if denied an opportunity to seek review of the decision to refuse application.
In relation to the reason for the delay, it was submitted that the applicant had attempted to commence his own judicial review proceeding around 19 June 2020. The applicant was contacted by the Court’s registry about a fee waiver. There was confusion about whether or not the applicant’s now solicitors needed to file a separate application. In fact, the new solicitors did so, but later discontinued it when it was ascertained that this particular application had precedence.
In relation to the explanation for the delay, the first respondent conceded that there was some explanation and that there was confusion as to which application needed to be prosecuted. Whilst the first respondent is not specifically prejudiced by the delay in the bringing of the application, there was a public interest in the finality of decision-making. Further, and in any event, the mere absence of prejudice alone is not sufficient reason for the grant of extension of time. Finally, it was submitted that the substantive application lacks sufficient merit to warrant an extension of time.
The Court accepts the explanation provided by the applicant for the delay in the lodgement of the application, noting that there was some confusion which resulted from the applicant initially trying to lodge an application on his own behalf and then later instructing solicitors. The length of the delay is not significant.
The Court notes the proper concession made on behalf the first respondent that there is no specific prejudice by allowing an extension of time. Allowing an extension of time in this case would not impact on the finality of the administrative decision-making process in relation to this matter: (see; Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67).
At an impressionistic level, the Court is satisfied that there is a sufficiently arguable basis for the matter to be heard in full in relation to the merits of the application. The Court is also mindful of the significance of a refusal by the Court to hear the matter on its merits to the applicant. The Court is satisfied it is in the interests of the administration of justice to allow an extension of time.
Accordingly, leave is granted pursuant to s 477(2) of the Act for an extension of time to file the originating application until 3 August 2020.
THE AUTHORITY’S DECISION
The Authority’s decision consists of 19 typed pages and 99 paragraphs. It is both detailed and comprehensive. The background and information before the Authority are outlined in paragraphs 1 through to 18. At paragraph 15 of its decision, the Authority noted that it wrote to the applicant and invited his comment in relation to information arising out of both the applicant’s arrival interview, and his Protection visa interview, together with the arrival interview of the applicant’s sister. No specific response was provided to that invitation.
The applicant’s claims are set out at paragraph 20 of the Authority’s decision. They are as follows in summary:
•He is a citizen of Vietnam born in the Vung Tau area. He is Catholic by religion.
•His main reason for seeking protection in Australia is his fear of harm at the hands of the police and the Vietnamese government on account of his imputed political opinion.
•He claims that he took part in a public demonstration in 2013 in Vietnam over government inaction in relation to Chinese Navy boats preventing locals from fishing in their own territorial waters. Police arrived and began to beat the applicant his family and neighbours. The applicant was taken to a police station, his fingerprints and photograph taken.
•Following interrogation, he was held for three days prior to being released when his father offered a surety in guarantee. The applicant failed to comply with reporting conditions on his release and then left Vietnam to come to Australia. Before leaving Vietnam he was facing criminal charges for protesting. He claims that he is identifiable because police have his fingerprints and photograph on file.
•The applicant believes that his personal information has been accessed by Vietnamese authorities due to a data breach and that they know his whereabouts in Australia.
•After the data breach occurred, police went back to his parents’ house to enquire about his whereabouts. They served the summons against his parents which required them to go to the police station and answer questions about the applicant’s departure from Vietnam. Police have gone to his parents’ house four times to interrogate them.
At paragraphs 21 to 22 of the decision record, the Authority accepted the applicant’s claim as to his identity and nationality. The Authority noted that the applicant claims to suffer from ill health and memory loss, but no evidence was provided to support these claims.
Paragraphs 23 of the Authority’s decision and onwards, deals with the applicant’s arrival interview. The Authority was satisfied that it was reasonable to rely on the material provided in those interviews by both the applicant and his sister. The Authority noted considerable inconsistences in the applicant’s claims as made at the arrival interview and subsequently.
At paragraph 30 of the decision record, the Authority noted that in his arrival interview, the applicant did not claim that he was detained in connection with the 2013 protest, nor did he claim that his sister was involved in the organisation of the protest. The applicant was asked specific questions as to whether he was ever arrested or detained by police and his evidence was that he had not. The applicant confirmed that the Vietnamese police and security forces did not impact his day-to-day life. The applicant confirmed that there were no outstanding warrants for his arrest.
At paragraph 31 of the decision record, the Authority noted that at the sister’s arrival interview she did not claim to fear harm on return to Vietnam or that her family faced any beatings, arrests or detentions. The applicant’s sister’s claims related solely to mistreatment she had faced from her mother-in-law. She did not claim that her older brother was killed in any protest, as compared to the applicant. To the contrary, the applicant’s sister indicated that her older brother was alive and living with her parents in Vietnam. These inconsistencies raised significant doubts in the Authority’s mind as to the credibility of both the applicant and his sister’s accounts.
At paragraph 36 of the decision record, the Authority noted that the applicant had not provided any documentary evidence in support of his claims, including any warrant, summons, death certificate relating to his older brother, or correspondence from Vietnamese authorities. At paragraph 37 of the decision record, the Authority determined that applicant had not provided a credible account of his claims as they relate to the June 2013 protest. The Authority determined that it did not accept that the applicant or his family were involved in any protests in June 2013. As a result, the applicant did not have any adverse profile with Vietnamese Authorities.
Paragraphs 39 of the Authority’s decision onwards deal with claimed political activities by the applicant post arrival in Australia. It was only in 2017 that the applicant claimed he had become politically active in Australia. Evidence of this included:
•One photo from a small protest or gathering outside the Vietnamese consulate in Perth in June 2018 showing the applicant and his sister.
•A series of photos from a large protest outside the Vietnamese consulate in Perth in July 2018 which also contain the applicant and his sister.
•Two photos of the applicant from a Voice Australia event in 2018. The applicant is standing next to a man identified as the founder of the organisation, an Australian lawyer and human rights activist.
•A number of photos of the applicant at a Viet Tan dinner in 2019.
•The applicant and his sister standing outside a Viet Tan stall at the Moon Lantern Festival in 2019.
•A range of Facebook postings between July 2018 and May 2020.
•A “letter of gratitude” from the Viet Tan organisation dated 31 March 2019.
At paragraph 48 of the decision record, the Authority records that it had reviewed the applicant’s evidence and submissions but does not consider that his political involvement is genuine. In terms of the applicant’s Facebook activities, it considered these were uneven and irregular. At paragraph 47 of the decision record, the Authority concludes:
“Within the posts I accept the applicant does make political statements. It is unclear whether these posts involve his own wording in all cases… it is unclear whether the majority of these postings have actually been made available or public on his Facebook page”
At paragraph 49 of the decision record, the Authority noted that there was no evidence the applicant had organised protests or otherwise sought to use Facebook to extend his political activism. Further, there was no evidence of any other political engagement or statement prior to 2018. At paragraph 50 of the decision record, the Authority considered the lapse in the applicant’s 2019 postings and the recommencement postings in April 2020 to be particularly relevant. While accepting that the evidence may not encompass the totality of the applicant’s Facebook activity, it raised significant concerns for the Authority as to whether the applicant’s engagement on Facebook and his claims to be politically active were genuine. At paragraph 51 of the decision record, the Authority accepted that the posts had been shared, but that his comments on those postings were not overly critical of the Vietnamese government, rather indicating a desire to keep the internet free and prevent further Chinese involvement in Vietnam.
The Authority, at paragraph 54 of the decision record, accepted that the applicant had attended Viet Tan events. There was little indication that the applicant had an active role at the events or engaged with others. Each photograph appeared designed to confirm the applicant’s attendance at the event. Further, the Authority noted that was no evidence before it that the applicant had joined the Viet Tan political party or organisation. At paragraph 57 of the decision record, the Authority concluded that it was not satisfied that the applicant has any ongoing involvement or profile with the Viet Tan organisation. The Authority accepted that the applicant attended one Voice event in 2018 and one Viet Tan event in 2019 that is linked to this group, however the link between this evidence and the claims of political involvement was limited and not credible.
At paragraph 58 of the decision record, the Authority accepted that the applicant had attended to protests in quick succession in June and July 2019. The Authority was prepared to accept of the applicant does have some low level progressive political views. It was not satisfied however that the applicant would be seen as a political dissident if he were to return to Vietnam, nor was it satisfied that he would be politically active, involved or outspoken on return to Vietnam.
Paragraph 61 of the Authority’s decision and onwards deal with relevant country information in relation to Vietnam. A person who is known to be at active organiser or leader of political opposition was likely to be subject to persecution and/or serious harm. The risk, however, would depend on the profile, activities, nature of and criticism. At paragraph 65 of the decision record, the Authority was not satisfied that the applicant’s activities or profile would be at a level that would give rise to the adverse interest by Vietnamese authorities or that he would face a real chance of risk or harm on the basis of his activities in Australia or any actual or imputed profile.
At paragraph 67 of the decision record, the Authority was not satisfied that the applicant would be required to modify his behaviour upon return to avoid serious harm.
At paragraphs 69 through to 72 of the decision record, the Authority discusses whether or not the applicant would be at risk because of his Catholic religion. The Authority was not satisfied that the applicant would be at risk of any harm based on his religious and ethnic profile. Paragraphs 73 of the Authority’ decision and onwards deal with a data breach that occurred in 2014. The Authority was satisfied that Vietnamese authorities would not know of his specific claims. The Authority was satisfied that the applicant’s sister and her family paid money for travel to Australia, but was not satisfied that the applicant and his sister were involved in the organisation of the boat or otherwise involved in people smuggling. The Authority was not satisfied that the applicant would have any profile in relation to this issue. Accordingly, the Authority determined the applicant did not satisfy the requirements for refugee protection.
At paragraph 82 of the decision record, the Authority accepted the Vietnamese authorities would determine that the applicant had left Vietnam illegally and sought asylum in Australia, as had his sister niece and nephew. On the basis of country information, the Authority was satisfied that the applicant may be questioned upon his return but will typically only face an administrative fine relating to his illegal departure.
At paragraph 87 of the decision record, the Authority concluded that the applicant would not be viewed suspiciously by the Vietnamese government as a result of having spent time in Australia. The Authority was not satisfied that any period of detention, any interview on arrival, or a fine would amount to serious harm or that the applicant would otherwise face a real chance of serious harm if returned to Vietnam for any of the reasons discussed. Accordingly, the Authority affirmed the decision of the delegate not to grant the applicant a Protection visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in a Further Amended Application filed with the Court on 26 July 2021. They are as follows;
1. The IAA erred by misunderstanding evidence that was central to the Applicant’s claims:
a.When it wrongly reasoned at [47] that the evidence before it of the applicant’s political posts on Facebook was ‘unclear’ as to whether they had been posted publically,
Particulars
The posts were unequivocally public, as demonstrated by the ‘globe’ icons on each of them at CB 648ff.
b.When it wrongly reasoned at [49] that the Applicant ‘has not shared photos of himself in attendance at Voice or Viet Tan events’.
Particulars
The photos of the Applicant in attendance at such events had obviously been publicly shared on Facebook, as shown by, for example, a comparison of the photos of the Applicant in attendance at CB 640-642, with the photos shown as publicly shared on Facebook at CB 673.
2. The IAA erred in misunderstanding of the law by drawing adverse inferences from what the Applicant’s sister had not previously identified as the basis of her fear of harm.
Particulars
a.It was a requirement under the Act that to be a refugee, the person subjectively hold a fear of persecution for any given reason. The IAA, in engaging with the process of comparing what the sister had not identified as a basis for her fears of harm with what it was said were “inconsistencies” with the Applicant’s basis for his fears of harm, misunderstood the requirement at law that the person have a subjective fear; the same circumstances not giving rise to the sister having a subjective fear did not mean that the Applicant could not have a subjective fear for the same reason.
3. The IAA failed to properly consider whether the applicant would face a real chance of persecution or real risk of significant harm as a result of him facing ‘a moderate risk of harassment from authorities, which may include arrest and being subjected to violence’ for having been a ‘low-level’ protester against the Vietnamese government in Australia.
Particulars
a.The IAA acknowledged that the Department of Foreign Affairs and Trade (DFAT) ‘assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence’.
b.DFAT defined a ‘moderate risk’ as meaning it ‘is aware of sufficient incidents to suggest a pattern of behaviour’.
c.In assessing the Applicant’s claims, the IAA found that:
i.‘the applicant does make political statements’ on Facebook and that ‘these political comments are critical of the Vietnamese government’;
ii.‘the applicant has shared political postings on his Facebook profile, including photos of his attendance at a protest in July 2018’.
iii.‘[t]he applicant has attended two protests, in quick succession in June and July 2018’ and that ‘the applicant’s attendance at protests in Australia was superficial, low-level and infrequent’;
iv.‘the applicant has some low level progressive political views’;
v.if identified, the Applicant’s protest activities from his time in Australia ‘would be considered low level’.
a.Having found that, if identified, the applicant was a “low-level” protester against the Vietnamese government, it was incumbent on the IAA to properly consider whether the ‘moderate risk of harassment from authorities, which may include arrest and been subjected to violence’ would give rise to real chance of persecution or real risk of significant harm.
CONSIDERATION
Ground 1a seeks to impugn the finding by the Authority that it was ‘unclear’ as to whether or not the applicant’s Facebook postings were public. Reliance was placed on an annexure to the Affidavit of Reuben Jahnke, the applicant’s Solicitor, affirmed 26 July 2021. That annexure indicated that a ‘globe’ next to a post meant it was public and anyone, including those not on Facebook, can see it.
Given the state of the evidence before the Authority, the Court is not satisfied that this was a factual error on the part of the Authority. Rather, it was simply what the Authority said, that the evidence was not clear. Even if it was, the Court is not satisfied the error was material in the sense that it could have realistically resulted in a different outcome: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17). A fair reading of the whole of the Authority’s decision record makes it clear that even if the material were public, it did not raise the profile of the applicant to that whereby he would be of adverse interest to Vietnamese authorities upon return. The Authority closely considered the totality of the applicant’s social media posts. It found these posts were irregular and uneven: (see; paragraph 45 of the Authority’s decision).
At paragraph 50 of the decision record, the Authority accepted that photographs had been shared of his attendance at various activities, however this evidence was not sufficient to find his political activities were genuine. At paragraph 51 of the decision record, the Authority found his posts indicated a desire to keep the internet free and prevent further Chinese involvement in Vietnam and were not overly critical of the Vietnamese government. The conclusion of the Authority, at paragraph 68, was that it was not impossible that Vietnamese authorities could have identified the applicant at protests is a genuine assessment of the risk to the applicant, even on the basis that all of his posts were public. Notwithstanding this, the Authority was not satisfied he was at risk on return. Ground 1a reveals no error on the part of the Authority. The Authority considered the posts even on the basis that they were public, but rejected the assertion that the applicant was at risk for the reasons it gave. The finding was open to the Authority.
Ground 1b asserts that the Authority was wrong in assessing at paragraph 49 of its decision that the applicant has not shared photographs of him at events. It is important that the Authority’s reasons not be read with an eye finely attuned to error. It is clear that the Authority accepted he had shared photos of this attendance at a 2018 event.
Even if the Court accepts this is a mistake of fact by the Authority, the mistake of itself is not dispositive of the applicant’s claims, nor is it capable of suggesting the Authority did not consider the applicant’s claims: (see; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51). The Authority, as set out above, clearly considered all the material available but found that the applicant’s political activities did not support a finding that the applicant would be of adverse interest to Vietnamese Authorities if returned. Ground 1b likewise has not merit.
Ground 2 suggests that the Authority erred by drawing an adverse inference based on what the applicant’s sister said in her arrival interview, noting it was not consistent with what the applicant said in some major details. On behalf of the applicant, it was submitted that what the sister said, does not impact on what the brother may fear. It was submitted that the omissions of the sister recorded at paragraph 33 of the Authority’s decision were immaterial to the consideration of the applicant’s case.
On behalf of the first respondent, it was submitted that the Authority did not reject the applicant’s claims on the basis of what the sister said. Rather, the Authority found the inconsistencies raised doubts as to the credibility of their claims.
The Court notes that the inconsistencies between the applicant’s claims and those of his sister were specifically drawn to the applicant’s attention by the Authority, but no response was received.
The Court is satisfied that it was open to the Authority to draw the conclusion it did, limited to the effect that the inconsistencies placed doubt on the credibility of the applicant’s claims. It was not by any means the sole basis for the ultimate findings of the Authority. Paragraphs 30 to 33 of the Authority’s decision need to be read as a whole and in conjunction with other findings, including at paragraph 36 of the Authority’s decision, regarding the lack of documentation to support the applicant’s later claims that he was the subject of an arrest warrant in Vietnam as a result of attending protests in 2013 and the death of his brother at the hands of Police.
The Court is not satisfied the recording of the inconsistencies and the subsequent use made of them by the Authority involves any jurisdictional error such as to warrant intervention by the Court in its supervisory capacity. Ground 2 has no merit.
Ground 3 impugns the finding by the Authority that the applicant would not face a real chance of persecution all real risk of significant harm as a result of him facing a “moderate risk of harassment of from authorities, which may include arrest and being subjected to violence”, for having been at low a level protest against the Vietnamese government in Australia
Counsel for the applicant submitted that, given the findings of the Authority regarding the fact that the applicant make political statements on Facebook, had attended two protests, had some low level progressive political views, it was submitted it was incumbent on the Authority to properly consider whether a moderate risk of harassment including arrest and being subject to violence would give rise to real chance of persecution. It was submitted that it was simply not possible for the Authority in the circumstances to consider that being subject to “arrest and violence” was not serious harm
Counsel for the first respondent submitted that paragraphs 61 to 63, and 65 of the decision record need to be read in the context of the findings at paragraph 66.
Paragraph 65 of the Authority’s decision found that, whilst noting the relevant country information, the applicant had not satisfied the Authority that he had a profile, whether actual or imputed, from his time in Australia such that he would face a real risk of harm on the basis of his activities in Australia. The risk of harm related to those who were active organisers who openly criticise the government. The profile of the applicant was not such that he faced a real risk of arrest and violence upon return.
It is not in dispute that the selection and use of country information is a matter for the Authority: (see; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). The Authority comprehensively set out relevant country information. That included the relevant risk if a person was viewed adversely that they could be subjected to arrest and violence. However, the Authority found that this risk related to organisers or those who were leaders of political opposition. The Authority found the applicant did not fit into any of these categories and did not have a risk profile that would be adverse if he were returned.
The Court is satisfied this reasoning was open to the Authority on the basis of the evidence before it and for the reasons it gave. The Court is not satisfied that the Authority failed to consider or engage in an active intellectual manner with the claims made by the applicant as to his political activities. That engagement is clear from the discussion at paragraphs 80 to 81 of the Authority’s decision by the Authority of the risk faced by the applicant. Ground 3 has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 25 February 2022
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