AJF17 v Minister for Immigration

[2019] FCCA 2913

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJF17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2913

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider an aspect of the applicant’s claims – whether the Tribunal’s reasoning was illogical – whether the Tribunal failed to have regard to appropriate country information – whether the Tribunal’s conduct could have led to a reasonable apprehension of bias.

Cases cited:
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114

Applicant: AJF17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 185 of 2017

Judgment of: Judge Riley

Hearing date: 19 June 2019

Date of last submission: 19 June 2019

Delivered at: Melbourne

Delivered on: 14 October 2019

REPRESENTATION

Counsel for the applicant: Alex Burt

Solicitors for the applicant: Asylum Seeker Resource Centre

Counsel for the first respondent: Timothy Goodwin

Counsel for the second respondent: No appearance

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

(1)The application filed on 30 January 2017 and amended on 27 May 2019 be dismissed.

(2)The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 185 of 2017

AJF17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1.This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

The applicant’s claims

2.The Minister summarised the applicant’s claims in his written submissions that were filed on 11 June 2019 as follows:

4.The Applicant was born on 8 June 1975, is a citizen of Egypt, a member of the Nubian ethnic group and a Muslim.2 The Applicant claimed to fear harm as a Nubian (ethnicity) and for his political opinions as a member of the Nubian Club generally and about protecting Christians in Egypt specifically (political opinion).

5.The key elements of the Applicant’s fear of persecution were summarised in his Statutory Declaration.3 The Applicant claimed to live in Aswan and to have been a member of the Nubian Club there for 10 years and to have been an activist for the rights of Nubians to their ancestral lands through his activities with the Club. The Applicant’s primary activity was to collect signatures for petitions in support of the aims of the Nubian Club for eventual presentation to the Egyptian Government.

6.In conducting that activity, on 28 February 2013, the Applicant claimed he was at the Christian Church in Kom Ombo working with the local priest, who was helping the Nubian Club speak to Muslims in that area to gain signatures. While at the church, a large number of Salafists accused the church of hiding a Muslim girl inside. After the Applicant attempted to assure them that a Muslim girl was not inside the church, he was accused of being an infidel. Violence ensued and the Applicant was injured.

7.Immediately following the incident at the church, the Applicant stayed at the house of a friend of the church and decided to escape to Cairo the next day. The Applicant was informed by his family that Salafists had attempted to find him at his home and threatened his family.

8.The Applicant claimed that on 5 March 2013, his daughter was abducted from her school by Salafists, who demanded the Applicant return to his home in Aswan. Rather than return, the Applicant was convinced by other members of the Nubian Club to instead leave Egypt immediately and they would (and did) negotiate the release of his daughter. However, the Salafists stated they would not forgive the Applicant for standing against them and helping Christians and if he returned to Egypt, he would be killed.

9.In support of his claims, the Applicant provided the delegate with a Nubian Club membership card and supporting letter from the President of the Club in Cairo.4

…

11.… Following the [Tribunal] hearing, the Applicant provided the Tribunal with a second letter from the President of the Nubian Club in Cairo.7

2 CB 13 to 14

3 CB 60 to 63.

4 CB 68 to 71.

7 CB 127.

The Tribunal’s reasons

3.The Minister summarised the Tribunal’s reasons for decision in his written submissions that were filed on 11 June 2019 as follows:

Credibility findings

13.After setting out the Applicant’s claims from his Statutory Declaration, the Tribunal set out a number of adverse credibility findings, particularly in relation to the Applicant’s involvement with the Nubian Club and the attack at the Christian Church in Kom Ombo.

14.In relation to the Applicant’s involvement with the Nubian Club, the Tribunal made a number of important findings.

a.The Tribunal raised concerns that the first letter from the Club failed to detail his involvement with the Club or refer to the particular incidents of harm that the Applicant had raised, such as at the church in Kom Ombo or his daughter’s kidnapping.8

8 Decision at [14] to [17] (CB 135 to 136).

b.The Tribunal had regard to the second letter from the Nubian Club provided after the hearing, but found that the letter did not deal with precision with the claims raised by the Applicant associated with his involvement in the Club. Given this lack of detail, the Tribunal placed no weight on it.9

9 Decision at [18] (CB 136).

c.The Applicant’s membership card, issued in August 2012, listed a suburb of Cairo as his address even though he claimed to live in Aswan. The Tribunal raised this matter with the Applicant but did not find his explanations for the inconsistency to be convincing and as a result found that the Applicant in fact lived in Cairo.10

10 Decision at [19] to [21] (CB 136 to 137).

d.The Tribunal found that the Applicant’s statements about his involvement with the Nubian Club were “undetailed and generalised” and “vague and imprecise”, leading the Tribunal to doubt that the Applicant had a level of involvement with the Club as claimed.11

11 Decision at [22] to [25] (CB 137 to 138).

15.In relation to the attack in Kom Ombo at the Christian Church, the Tribunal ultimately found that, based on the inconsistencies in his evidence, the Applicant was not in fact present when the Church was attacked in February 2013.12

12 Decision at [33] (CB 139).

a.The Tribunal highlighted an inconsistency between the Applicant’s evidence in his Statutory Declaration and at the hearing regarding whether the Applicant entered the church or not. The Tribunal did not find the Applicant’s explanation for the inconsistency to be convincing.13

13 Decision at [29] (CB 139).

b.The Tribunal noted that the targets of the attack were the Christian Church and Christians rather than Nubian Muslims and there was no basis for a conspiracy that the attack was orchestrated to attempt to stop Nubians from eliciting signatures.14

14 Decision at [30] (CB 139).

c.The Tribunal found it implausible that the Applicant would seek the assistance of a Christian minister to help collect signatures from Muslim Nubians.15

15 Decision at [32] (CB 139).

16.Further, the Tribunal found no evidence of State security involvement in the attack in Kom Ombo and the death of the Applicant’s cousin as an orchestrated attempt to stop Nubian’s from getting back their original lands.16 Rather, the incident in Kom Ombo was “an incident of sectarian violence” that did not have anything to do with the Applicant or the Nubian Club and that, without further evidence, the death of his cousin appeared to be an unfortunate accident.17

16 Decision at [34] (CB 140).

17 Decision at [35] (CB 140).

17.In regards to the Applicant’s credibility, the Tribunal concluded that […] his evidence contained “serious deficiencies in terms of inconsistencies, lack of detail, and failing to be supported by the provided documents”18 and on this basis the applicant was found “not to be credible or a witness of truth [leading the Tribunal to] place little or no weight on the documents [the Applicant] has provided” 19.

18 Decision at [36] (CB 140).

19 Decision at [37] (CB 140).

18.The Tribunal then summarised its general findings based on its findings of fact and general credibility concerns at [38] of the Decision, particularly that:20

20 CB 141 to 142.

a.while the Tribunal accepted that the Applicant was a member of the Nubian Club, it did not accept that he lived in Aswan or was involved in any political activities beyond being a member based on his undetailed and unconvincing description of what he did and his lack of political involvement in Australia;

b.the Tribunal did not accept that the Applicant had been in touch with the priest from the Christian Church in Kom Ombo and was not in Kom Ombo on 28 February 2013, primarily because the Tribunal did not find the explanation of why the Applicant was there to be convincing;

c.as the Tribunal did not accept that the Applicant was in Kom Ombo on 28 February 2013, it found that he had not been abused or threatened by Salafists or otherwise, had not stayed overnight with a person from the church, his family had not been threatened and his daughter had not been kidnapped; and

d.the State authorities had not had any involvement with the claimed events.

19.Having rejected most of the central claims of the Applicant, the Tribunal considered country information and found that post the 2011 revolution, Nubian political activism had increased without backlash by State authorities and Egypt’s new Constitution included recognition of the rights of Nubians to their original territories.21 Although there remained impediments to the practical realisation of that goal, recent governments had [… met] with Nubian leaders and made moves to negotiate a resolution.22 In light of the country information, and considering the Tribunal had found that the extent of the Applicant’s political involvement was simply as a member of the Nubian Club, the Tribunal found that the Applicant could safely return to Egypt without fear of persecution for a Convention reason.23

20.For the reasons given, and having confirmed there were no other bases for fearing harm, the Tribunal also found that the Applicant was not owed complementary protection.24

21.Finally, the Tribunal noted that there was information on the file that was provided to the Department in confidence relating to a prior, unsuccessful application for a visa from the United States of America. The Tribunal made clear in its reasons that it accepted the Applicant’s evidence regarding that matter and had made no adverse inference or given any weight to the information, which it found to be “completely irrelevant” to the Applicant’s claims.25

21 Decision at [42] to [43] (CB 143).

22 Decision at [47] (CB 144).

23 Decision at [49] (CB 144 to 145).

24 Decision at [51] to [52] (CB 145).

25 Decision at [53] (CB 145).

Ground 1

4.The first ground of review in the application filed on 30 January 2017 and amended on 27 May 2019 (“the application”) is:

The Administrative Appeals Tribunal (‘AAT’) failed to consider an aspect of the Applicant’s claim namely that the Nubian Club had previously supported him to apply for a visa to the United States (‘US’) as he had to flee Egypt.

PARTICULARS

i.The Applicant advances a claim at the delegate stage that he had had to flee Egypt and that the Nubian Club had supported him to do so.

ii.The Applicant was asked about this claim at the interview.

iii.The AAT, effectively, regarded the Applicant’s claim as abandoned.

iv.The AAT ought not to have regarded the Applicant as having abandoned that claim.

v.The AAT ought to have considered the Applicant’s claim.

5.In relation to the applicant’s earlier application for a visa to the United States, the delegate said at page 5 of her decision dated 11 December 2014 (at CB81) that:

General credibility concerns

Failure to declare application for US visa in November 2012

At the PV interview the applicant was asked if he had applied for any visa to any country apart from Australia. When he said that he had not, he was asked again if he had applied for any type of visa to any other country. He again denied that he had applied for any other visa. He stated that he does not know if the Nubian club applied for him when he was running away from Aswan. It was put to the applicant that there was information to show that he applied for a visa in 2012. He again denied that he had applied for a visa. It was put to him that he was fingerprinted in November 2012 when he applied for the visa. He said that he did not ask for a visa and maybe the Nubian club asked for him. When it was again put to him that he was fingerprinted, he said that he did not know.

At the end of the interview the applicant confirmed that he had applied for a US visa. He said that he did not declare this earlier in the interview because he was scared. His representative stated that the applicant did not declare it because it was not mentioned in his application to come to Australia. The agent added that this process was new to the applicant and he does not know what to say or what not to say.

Despite taking an oath to promise that the information he provided would be true and complete in every respect, the applicant was not truthful in response to this question and denied that he had applied for another visa. This suggests that the applicant is prepared to provide false or misleading evidence to support his application. For this reason, I do not accept that the applicant is a credible witness.

6.At page 7 of her decision, (at CB83), the delegate said:

In relation to the information that the applicant had applied for a US visa in November 2012, the representative stated that the applicant was at risk prior to the incident on 28 February 2013 because he was collecting signatures on petitions. He added that after the 2011 Revolution the applicant started to collect [signatures] on petitions for Nubian land rights, and these activities were against the fundamental beliefs of the Salafis, and caused problems for him with them. The Nubian club knew that this type of activity placed him at risk and they organised for the applicant to apply for a visa to the US. (emphasis added)

7.It can be seen that it was the applicant’s representative who made the claim to the delegate that the applicant’s activities had put him at risk so he had attempted, with the support of the Nubian Club, to get a visa to the USA.  The applicant’s own evidence on the point to the delegate was, firstly, that he had not applied for a visa to the USA and, secondly, that he had.

8.A transcript of the hearing before the Tribunal is annexed to the affidavit affirmed by Bridget Clare Mannix on 24 May 2019.  At page 17 of the transcript, the following appears:

REVIEWER:          Have you ever applied for another visa from Egypt?

APPLICANT:     Yes.

REVIEWER:           What was that?

APPLICANT:     To the US.

REVIEWER:           When was that?

APPLICANT:     Possibly November 2012.

REVIEWER:           And why did you apply for a visa to the US?

APPLICANT:     You want to know the reason for applying to ... because the Nubian Club advised that maybe there is some work relating to the Saudi[•] and we want because the   potential work is there and we want to [•].

REVIEWER:           So, that visa wasn't related to your claims?

APPLICANT:     What claims?

REVIEWER:           So, you applied for the visa to the US just to go and work there?

APPLICANT:     It was a precursor to a probable and possible and potential work opportunities in places such as embassies etc and that is the reason why the application to the US embassy was made. This is in short because otherwise the story gets very elaborate and I'm not sure what the point is anymore. But I wasn't the only one who had applied for that visa anyway.

9.It was not explained to the court what the [•] symbol means.

10.The applicant’s claim to the Tribunal was that he applied for a visa to the USA for employment reasons.  However, the applicant argued that he had also indicated that he did not wish to elaborate on his claims for the reasons that the applicant described as being reflective of a sense of hopelessness.

11.In relation to the visa to the USA, the Tribunal said at paragraph 53 of its reasons for decision that:

S.438(1)(b)

The Departmental file purported to contain information that was provided to the Department in confidence. I explained to the applicant that there was a notification on the Departmental file that s.438(1)(b) may apply to information contained on the Department file. I noted that we had just discussed the basis for this information, being his prior, unsuccessful application for a United States of America visa, which the applicant had disclosed and discussed with me at the hearing. I indicated that I was not going to take into account or give any weight to the information contained on the Department file to which s.438(1)(b) may apply. I note that the applicant said the Nubian club had applied for the US visa on his behalf, that it was not related to his claims but was a precursor to potential work for him in the US as a cook and that was the reason the application was made to the US embassy. I accept the applicant’s evidence and draw no adverse views, nor give any weight whatsoever to the information on the Department file to which s.438(1)(b) may apply, which I consider completely irrelevant to the claims made by the applicant and the findings made by me above. The existence of the s.438(1)(b) notification, any potential issues relating to the validity of the notification and disclosure of my lack of interest in or weight given to the information which formed the subject of the notification was ventilated at the hearing to the extent relevant to the case.

12.That is, the Tribunal considered that the applicant’s application for a visa to the USA was irrelevant to his protection claims, because the applicant told the Tribunal that he applied for the visa to the USA for employment reasons.

13.In these circumstances, the applicant argued that the Tribunal was obliged to, but did not, consider the applicant’s claim that he had attempted to flee Egypt (because of the risks he faced arising from his work with the Nubian Club) by getting a visa to the USA.  The applicant argued that the Tribunal thereby fell into jurisdictional error.

14.The Minister argued that the applicant did not make the claim as alleged. I accept that the applicant personally did not make the claim.  However, the applicant’s representative made the claim.  That was sufficient for the Tribunal to be obliged to deal with it.  

15.However, the Minister’s second argument was that the Tribunal had in fact dealt with the claim by findings of greater generality.  That is, the Tribunal said at the ninth dot point of paragraph 38 of its reasons for decision:

On the basis of my findings above and my general credibility findings, I do not accept that the Nubian club arranged for the applicant to flee Egypt for any reason connected to his claims …

16.That finding deals with the issue of whether the applicant attempted to flee from Egypt to the USA.  Moreover, at the third dot point in paragraph 38 of its reasons for decision, the Tribunal said:

I do not accept that the applicant was involved in advocating for the Nubian case, collecting signatures for petitions, assisting Nubians with problems or any other activities, I make this finding on the basis of his undetailed and [unconvincing] description of what he did for the Nuba Club, Aswan, the concerns and inconsistencies highlighted above, his lack of political involvement in Australia, and my general credibility finding …

17.That finding constitutes a rejection of the applicant’s claims that he had participated in any of the activities that he claimed led to him needing to flee and constitutes a rejection of the claim that the applicant tried to get a visa to the USA because his political activities had put him at risk.

18.As the Tribunal did deal with the claim, there is no substance to ground 1.

Ground 2

19.The second ground of review in the application is:

The AAT engaged in reasoning which was illogical when it made findings that the Applicant had not been politically active since he left Egypt.

Particulars

i.The AAT made findings that the Applicant had not been politically active since he left Egypt.

ii.The Applicant had given evidence at the hearing that he was politically active since he arrived in Australia.

iii.There was no other evidence available to the Tribunal which was relevant to this question and the Applicant was not challenged about this evidence.

iv.This reasoning process was illogical such that no rational decision maker could have come to that conclusion.

20.The Tribunal referred in the third dot point of paragraph 38 of its reasons for decision to the applicant’s lack of political involvement in Australia. 

21.Pages 14 to 15 of the transcript of the Tribunal hearing indicate the following:

REVIEWER:      Are you involved in the Nubian community in Australia?

APPLICANT:     There are no Nubis in Australia. Maybe there are but I won’t know them.

REVIEWER:      Are you involved in the Nubian Club or any other political activities over in Egypt whilst you’ve been here?

APPLICANT:     Definitely.

REVIEWER:      Such as?

APPLICANT:     Of course. I have been in constant contact with them because they had been involved in safe-guarding my children and providing a safe place for my children and [•] I contacted them and they provided the document to me to say the full my identity and the fact that I was a member of that Club.

22.The applicant argued that his evidence was to the effect that he was politically active in Australia and that evidence was ignored. The applicant argued that the finding made by the Tribunal that he was not politically active was irrational, in view of the clear evidence to the contrary.

23.It is true that the applicant asserted that he was politically active in Australia.  However, when the Tribunal asked him to explain the detail of his political activities, he did not supply any.  He only said that he was in contact with the Nubian Club because they were safeguarding his children and they provided him with proof of membership.  That does not amount to political activity. 

24.In these circumstances, it was not irrational for the Tribunal to conclude that the applicant lacked political involvement in Australia.

Ground 3

25.The third ground of review in the application is:

The AAT failed to consider country information available to it which demonstrated that Egyptian authorities were acting adversely towards Nubian people.

Particulars

i.The AAT formed a conclusion that ‘that more recently Nubians had engaged in political protests against government actions without backlash from the government or authorities, which appeared to be allowing political protests and attempting to negotiate a political solution.’

ii.The country information before the AAAT indicated that Nubians had not been allowed to engaged political protests without backlash.

iii.The AAT failed to have regard to that information.

(errors in original)

26.The supposed conclusion that this ground refers to was actually part of the Tribunal’s summary of matters that it put to the applicant during the hearing.  The relevant passage appears at paragraph 43 of the Tribunal’s reasons for decision and is as follows:

I noted [during the hearing] that more recently Nubians had engaged in political protests against government actions without backlash from the government or authorities, which appeared to be allowing political protests and attempting to negotiate a political solution.8

8 CX6A26A6E13675: "Egypt’s Nubians protest for right to return to their lands", Al Monitor, 22 November 2016, matters put by the Tribunal to the applicant during the course of the hearing are not the Tribunal’s concluded views.  By making the statement set out in the previous paragraph, the Tribunal was simply giving the applicant an opportunity to comment on the view that the Tribunal had taken of the country information, at that stage and subject to the applicant’s comments. 

28.The Tribunal’s actual conclusion on the relevant issue was contained in paragraph 48 of its reasons for decision, and is as follows:

I have considered the country information and the applicant’s responses. I find that, following the January 2011 revolution, Nubian activists were more active in making demands about their land claims, and that during the Morsi, and now Sisi administrations, there has been some level of support by the authorities for these demands, including the meeting with representatives of the Nubian community by Morsi and others in his administration, including a leading Salafists, the appointment of Adol to the Constitution committee, the explicit inclusion of the return of the Nubians to their ancestral land in the 2014 Constitution, and the continuing discussions and dialogue by high up members of the Sisi administration including the Prime Minster with representatives of the Nubian community. Whilst I accept that the Nubians have not achieved their demands, and that decree 444 may be an impediment to the realisation of all of these demands, I do not discern any moves to repress, persecute or harm the Nubian community or those elements protesting or taking an active political role in making these demands. I do not discern in the country information any evidence that the authorities, or elements of the authorities, have sought to repress or harm in any way Nubian activists.

29.In any event, the article mentioned in footnote 8 to the Tribunal’s decision is in exhibit RAS-2 to the second of two affidavits affirmed by Rachel Anjali Saravanamuthu on 18 June 2019.  The article is headed Egypt’s Nubians protest for right to return to their lands. The applicant particularly noted the second and third paragraphs of that article, which are as follows:

The crisis was renewed when many Nubians protested as part of the so-called Nubian Return Caravan, in an attempt to reach the  Nubian Toshka and Forkund villages to protest the sale of their lands as part of President Abdel Fattah al-Sisi’s national development project to reclaim 1.5 million feddans (2,432 square miles). On Nov.19, the security forces obstructed the caravan’s arrival. Consequently, the protesters staged a sit-in on the road leading to the disputed land.

Munir Bashir, the head of the Coordination Committee of the Nubian Return Caravan, told Al-Monitor over the phone from the sit-in spot on Abu Simbel-Toshka highway, “The caravan wanted to voice Nubians’ objection to the government’s decision to sell their lands. But we were surprised with the security’s arbitrary measures to stop us from reaching our destination. They even threatened to arrest any Nubian who tries to cross the security checkpoint, and they said they would besiege the caravan and ban any food or water from reaching the protesters for three days.”

30.The Minister particularly noted the eighth to eleventh paragraphs of the same article, which are as follows:

In the first official response to contain the crisis and negotiate with the protesters, a former commander in chief of the Egyptian armed forces, Field Marshal Mohamed Hussein Tantawi, headed to Aswan and met with officials from the governorate and with the Nubian member of parliament to resolve the stalemate. Prime Minister Sherif Ismail also held two meetings with parliamentary delegations Nov. 21 to act as intermediaries between the government and the Nubian protesters.

After meeting with the prime minister, member of parliament Saad al-Jamal told Al-Monitor, “The government pledges to implement the Nubians’ demands and to develop Nubian villages as a key part of the developmental plans in Egypt, and without any discrimination.”

He said, “Ismail has asserted to the members of parliament that any development in Upper Egypt would prioritize the region’s inhabitants. The government has also allocated 270 million Egyptian pounds [$15.4 million] to develop Nasr al-Nuba villages.”

Despite official attempts to contain the crisis by communicating with members of parliament, Mohammed Azmy, the head of the General Nubian Union, told Al-Monitor over the phone, “We did not receive any calls for dialogue with Field Marshal Tantawi or with the speaker of parliament.” He added, “We refuse any negotiations unless an official and explicit decision to halt the sale of Nubian lands is issued.”

31.It can be seen that the article included a quotation from a protester to the effect that the authorities had blocked the progress of the protesters’ caravan, threatened them with arrest if they crossed a security checkpoint and would not allow any food or water to reach them.

32.The article also includes reports that the Prime Minister of Egypt had been involved in negotiations and promised to implement the Nubians’ demands.  The article did not contain any information to the effect that protesters were actually harmed.

33.It is well established that, in general, the Tribunal is able to give such weight to country information as it sees fit.  An exception to that is where the Tribunal relies on out of date country information, especially if the Tribunal does not alert the applicant to it and seek comment on it. 

34.In the present case, the impugned article was dated 22 November 2016.  The applicant travelled to Australia in May 2013 on a temporary work visa, and applied for a protection visa on 16 July 2013.  The Tribunal’s decision was dated 4 January 2017.  That is about six weeks after the date of the article.

35.The applicant acknowledged in his written submissions that his agent, for some unknown reason, did not provide country information to the Tribunal.  The applicant claims that this is a case like Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114. However, the applicant has not pointed to any more recent country information that the Tribunal failed to take into account.

36.Rather, the applicant takes issue with the part of an article that the Tribunal chose to quote in paragraph 44 of its reasons for decision.   That article is entitled No benighted Nubia and, according to the Tribunal’s footnote 9, is dated 14 August 2014.  That is, the article the applicant so heavily relies upon predates, the article the applicant complains about.

37.Moreover, the passage from the earlier article that the applicant emphasised concerns the economic background to the Nubian’s complaints, particularly the significance of Nubia’s high quality granite.  This aspect of the article said nothing about the alleged quashing of protests and dissent.  Indeed, the applicant did not take the court to any country information that showed that the authorities in Egypt in fact persecuted any Nubians for their protests or otherwise.  

38.This ground is not made out.

Ground 4

39.The fourth ground of review in the application is:

The AAT demonstrated ‘apprehended bias’ towards the Applicant in its conduct of the assessment of the Applicant’s claims.

Particulars

i.A fair minded observer would have observed that the AAT did not bring an open mind to an assessment of the Applicant’s case.

ii.In particular, the AAT adopted a ‘one-sided’ attitude to the country information.

iii.Further and in particular, it rejected the Applicant’s account of why a letter from the Nubian Club was generalised.

iv.Further and in particular, it characterised the Applicant’s evidence as undetailed [and] generalised, when it was not.

40.The test for apprehended bias was recently articulated in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] as follows:

… the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits …

41.For the reasons discussed above, I do not consider that it can be said that the Tribunal adopted a one-sided attitude to the country information. 

42.The translation of the letter dated 18 October 2016 from the Nubian Club is at CB127 and is as follows:

GENERAL NOBA CLUB OF CAIRO

To Whom It May Concern

Department of Immigration  18 October 2016

Department of Immigration and Citizenship

Australia

Dear Sir/Madam,

I, in my capacity as the president of the General Noba Club of Cairo, its addresses and phone numbers are mentioned below, would like to indicate that I look after the affairs of Egyptians from a Nobi background.

It is worth mentioning that Nobis are the ones who established the old Egyptian civilization. Despite their sacrifices and their contributions to the Egyptian community throughout history, they were displaced forcefully because of the High Dam.

We work on keeping the Noba heritage and culture alive due to displacement which resulted in their concentration in different places and scattering in various places.

I would like to inform you that [the applicant], date of birth [omitted] who is an active member and participates in the promoting [of] the club's aims; teaching the Noba language and the Noba culture for the Noba children due to the absence of a channel or a way to teach it to them.

I would like to mention that the club is aware of [the applicant] and his suffering in Egypt due to his Nobi background and the consequences which led to him departing Egypt and his arrival in Australia. Also, the incident of Kom Embo church which resulted in facing many difficulties.

I, in my capacity as the president of the Noba Club, confirm the credibility of the information presented to you and I am prepared to provide the information to the queries due to the seriousness of the situation and to protect a Nobi son who sacrificed a lot for the cause.

Sincerely yours,

Mohammad Saleh

President of the Nobi Club of Cairo

…

43.The Tribunal dealt with this letter at paragraph 18 of its reasons for decision, which is as follows:

I have had regard to the letter provided after the hearing. This letter, dated 18 October 2016, from the President of the Nobi Club of Cairo, does explain the work the applicant did for the Club, and that the club is aware of the applicant’s suffering (without detailing this) and the incident of Kom Embo church which resulted in [the applicant] facing many difficulties. Even this letter is undetailed and imprecise. There is nothing in the letter, nor in the applicant’s explanation, to explain why this information could not have been provided in the earlier letter, and it further demonstrates to my mind that this claim that those from the Club were afraid to put in writing the details of his claims are false. Despite the applicant being aware of my concerns, the letter does not indicate with precision the things that the applicant claimed happened to him, and about which he claims the Club assisted him, apparently organising his travel to Australia and the release of his kidnapped daughter. Given this lack of detail in the letter, and given that this letter has been provided only after the hearing, along with my concerns above and below, I place no weight on this letter.

44.The applicant submitted that the reason that he advanced for the letter dated 18 October 2016 being general in nature was that the Nubian Club members were fearful, and the Club President had a high position in the government and did not want to jeopardise his job.  However, those were the reasons that the applicant advanced at the Tribunal hearing for an earlier letter from the Nubian Club being general in nature.  A translation of that letter, which appears to be undated but was before the delegate, said as follows:

LOGO
Of
Of General Noba Club of Cairo

General Noba Club of Cairo

Certificate

The Deputy of the President of General Noba Club, here by certifies that [the applicant] National Number: [omitted], of Egyptian Nationality
Is a member of The NOBA community residing in Egypt, and he is known for his good behavior and conduct and that he has many activities.
This certificate from us is to certify this fact without bearing any responsibility, what so ever.
Please accept our best regards and respect./.

The President of General Noba Club
Signed
Sealed twice with
The Circular rubber seal of the Club in Cairo

45.The Tribunal summarised its discussion with the applicant about the earlier letter in paragraph 15 of its reasons for decision which is as follows:

I asked the applicant about the membership card and the letter. I asked him why the letter, from the President of the General Noba Club, Cairo, did not describe any of the things he had told me about at the hearing including his work for the Nubian Club in Aswan, his being attacked in Kom Ombo, or being threatened and his daughter being kidnapped. I noted the letter noted he was a member of the Noba community and attested to his good behaviour and conduct and that he has many activities, and this was certified whilst without bearing any responsibility whatsoever, and seemed to speak only in very general terms about him and his role. He said this was because, he suspected, they were fearful, but if I now needed supporting documents from them, he was more than happy to obtain them. I asked him if he could explain in more detail why the letter did not include any information about his claims. He said that they were fearful at that stage, all they wanted to do was prove his identity and that he was not in harm’s way. I noted this didn’t seem to explain why they would go to the trouble of writing a letter and not put any of this information into the letter – I asked, if people from the Club had been fearful, why did they provide him with a letter at all. He said that I had to understand that this could have been used against the Nubian club, and they were fearful. The applicant’s representative submitted at the end of the hearing that the President of the Nuba Club held a very high position with the government and may not wish to jeopardise his job.

46.The applicant did not, in fact, give any explanation for why the letter dated 18 October 2016 was general in nature, because that letter was provided after the hearing.

47.In any event, I do not consider that there is anything in the way the Tribunal dealt with the letter dated 18 October 2016, and, indeed, the earlier undated letter, that could have led a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not have brought an impartial mind to the matter.

48.The applicant also took issue with the Tribunal’s statement in paragraph 22 of its reasons for decision that the applicant gave a series of undetailed and generalised statements.  The full paragraph is as follows:

The applicant has claimed that he was not only a member, but also actively involved in seeking further rights and land rights for the Nubians. However, when asked about this at the hearing the applicant gave a series of undetailed and generalised statements about his involvement with the club. Despite him saying heh ad worked for them from 2001 until he fled to Australia, he was unable to give me a coherent description of his work, saying he was involved in solving problems for Nubians, such as those in work, life, traditional issues and things of that nature. When I asked how he specifically helped these people he responded generally again, saying they provided financial aid and raised awareness about Nubians and to raise the pride and awareness of their background. Rather than provide more detail about the help he had given he then said that from 2011 until he had come here his role was to get signatures within the Nuba to get people to become aware that Nubians are a tribal people who need to be recognised, for these people to be able to return back to original lands. I asked again how he had helped prior to this and he said they had gone through villages and found which were lacking resources and the Nubian Club had then taken this up with the authorities, from 2001 until the revolution, and he was also trying to develop people from the Nubian background. I noted I had concerns that his answers seemed undetailed and did not seem to me to connect together to explain coherently what he had done when. He had provided more information about his role to get signatures, saying that they had been promised by the Military Council that they could reclaim the lands, and he was working with people in order to raise awareness that they could reclaim the lands, and he was working with people in order to raise awareness that they could get back and become part of the Nuba groupings and reclaim lands.

49.It seems to me that it was reasonably open to the Tribunal to conclude that the applicant gave a series of undetailed and generalised statements.  I do not consider the Tribunal’s conclusion in this regard to be supportive of the applicant’s allegation of apprehended bias.

50.Taking the matters raised by the applicant cumulatively, it does not seem to me that they rise to the level where they could have led a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not have brought an impartial mind to the matter.  Rather, it seems to me that the applicant is merely taking issue with the Tribunal’s findings on the merits.  This ground is not made out.

Conclusion

51.As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  14 October 2019