Ame16 v Minister for Immigration

[2017] FCCA 2607

FEDERAL CIRCUIT COURT OF AUSTRALIA

AME16 v MINISTER FOR IMMIGRATION
& ANOR [2017] FCCA 2607

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – whether the Administrative Appeals Tribunal had regard to all claims and evidence before it – whether the Administrative Appeals Tribunal erred in confining its consideration of an application made under s.48A and s.48B of the Migration Act 1958 (Cth) to consideration of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal denied the applicant procedural fairness or natural justice – whether the Administrative Appeals Tribunal erred in misinterpreting, misunderstanding or misapplying the relevant law – whether the adverse credibility findings made by the Administrative Appeals Tribunal were open to it – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 48A, 48B, 65, 91R, 411, 424AA, 474, 476
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AMA15 v Minister for Immigration and Border Protection (2015) 244 FCR 131
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: AME16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 494 of 2016

Judgment of: Judge Emmett

Hearing date: 18 October 2017

Date of Last Submission: 18 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant appeared in person with an interpreter

Counsel for the Respondents: Mr Jonathan Kay Hoyle

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 494 of 2016

AME16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 15 January 2016 (“the Tribunal”) refusing to grant the applicant a Protection (Class XA) visa.

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 9 August 2007, the applicant arrived in Australia as the holder of a Vocational Education Sector (Subclass TU-572) visa.

2. On 6 March 2008, the applicant was granted a further Vocational Education Sector (Subclass TU-572) visa.

3. On 11 August 2010, that visa expired and the applicant became an unlawful non-citizen.

4. On 2 November 2010, the applicant was granted a Bridging visa in association with his first application for a protection visa.

5. On 16 June 2011, the application for a protection visa was refused by the Department.

6. On 20 July 2011, the applicant applied to the Tribunal for a review of that decision.

7. On 14 December 2011, the Tribunal (differently constituted) affirmed that decision.

8. On 12 January 2012, the applicant made a request to the Minister for ministerial intervention under s.417 of the Act.

9. On 18 June 2012, the applicant’s request to the Minister was declined.

10. On 31 July 2012, the applicant was granted a Bridging visa.

11. On 15 August 2012, that bridging visa expired and the applicant became an unlawful non-citizen.

12. On 13 February 2013, the applicant lodged a second application for a protection visa. This application was deemed invalid due to the operation of the bar under s.48A of the Act. A request was made to the Minister to lift the bar pursuant to s.48B of the Act.

13. On 25 February 2013, an application for review was lodged with the Federal Magistrates Court in relation to the decision that the second application for a protection visa was not valid.

14. On 22 March 2013, the applicant was granted a further bridging visa.

15. On 28 March 2013, the applicant’s request to the Minster pursuant to s.48B of the Act was declined.

16. On 28 March 2013, the applicant was granted a bridging visa in association with his second application for a protection visa.

17. On 3 July 2013, SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (“SZGIZ”) was published with the effect that a second protection visa application in relation to the complementary protection criterion under s.36(2)(aa) of the Act was a valid application.

18. On 4 September 2013, the applicant’s second protection visa application in relation to the complementary protection criterion under s.36(2)(aa) of the Act was received as a valid application.

19. On 25 June 2014, the Department refused the applicant’s application for a protection visa under s.36(2)(aa) of the Act.

20. On 2 July 2014, the applicant applied to the Tribunal for a review of that decision.

21. On 28 May 2015, the applicant appeared before the Tribunal to give evidence and present arguments.

22. On 5 January 2016, the applicant appeared before the Tribunal for a further hearing.

23. On 14 January 2016, the Tribunal affirmed the decision not to grant the applicant a protection visa.

24. On 4 March 2016, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act define “significant harm.”

7. Section 48A of the Act provides relevantly as follows:

   “No further applications for protection visa after refusal or cancellation

   (1)  Subject to section 48B, a non-citizen who, while in the migration zone, has made:

   (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

   (1AA)  Subject to section 48B, if:

   (a) an application for a protection visa is made on a non-citizen's behalf while the non-citizen is in the migration zone; and

   (b) the grant of the visa has been refused, whether or not:

   (i) the application has been finally determined; or

   (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

   (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

   the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.”

8. Section 48B of the Act provides relevantly as follows:

   “Minister may determine that section 48A does not apply to non-citizen

   (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

   (2) The power under subsection (1) may only be exercised by the Minister personally.”

9. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. The Delegate found that there was no further information or evidence to indicate that there were substantial grounds for believing there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Egypt.

2. The Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion under s.36(2)(aa) of the Act.

The Tribunal’s review and decision

1. On 2 July 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided various articles, Facebook blogs and medical reports amongst other documents and submissions to the Tribunal.

3. On 19 February 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 May 2015 to give oral evidence and present arguments.

4. The applicant attended that hearing and gave oral evidence. The applicant had the assistance of his migration agent at the hearing.

5. On 7 December 2015, the Tribunal wrote to the applicant inviting the applicant to attend a further hearing on 5 January 2016.

6. The applicant attended that hearing and gave oral evidence again with the assistance of his migration agent.

7. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

8. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.

9. The Tribunal noted the decision in AMA15 v Minister for Immigration and Border Protection (2015) 244 FCR 131 (“AMA15”) which upheld the Tribunal’s approach of only considering claims in relation to the complementary protection criterion in s.36(2)(aa) of the Act, where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a) of the Act. Subsequently the Tribunal considered the applicant’s claims only in relation to s.36(2)(aa) of the Act.

10. The Tribunal found that the applicant was not a witness of truth and that he had embellished some of his claims and fabricated others for the purpose of obtaining a protection visa. The Tribunal found that the applicant was not a reliable or credible witness.

11. The Tribunal did not accept that the applicant had adverse political opinions when he was in Egypt or that he maintained a dissenting political opinion after his arrival in Australia. The Tribunal did not accept that the applicant became a member of the Muslim Brotherhood after his arrival in Australia. The Tribunal accepted that since the second visa application, the applicant made political comments on Facebook and blogs, as well as attending rallies in Australia.

12. Ultimately, the Tribunal concluded that those comments and actions were carried out to strengthen the applicant’s claims for a protection visa. However, the Tribunal was mindful that s.91R(3) of the Act did not apply with respect to conduct in the context of complementary protection and that it was required to consider such conduct in assessing whether the applicant met the complementary protection criterion.

13. The Tribunal noted that the applicant’s Facebook account was under a name that would not readily identify him to Egyptian authorities. The Tribunal was not satisfied that, in the unlikely possibility that the applicant was identified, there was a real risk that he would suffer significant harm for that reason. The Tribunal was not satisfied that the applicant had published a photograph of himself and Mr Alaa Sadik on his Facebook account.

14. The Tribunal did accept that the applicant attended a pro-democracy rally in Sydney following the overthrow of the Morsi government by the military in 2013. In any event, the Tribunal noted that many hundreds of Egyptians attended those rallies and as such the Tribunal was not satisfied that the applicant could have been identified by the Egyptian authorities. The Tribunal was not satisfied that if the applicant was identified that he would be imputed to be a member or supporter of the Muslim Brotherhood. The Tribunal did not accept that photographs of the applicant had been published on the R4bia Australia website, or that images of him attending a rally were published or that the applicant belongs to Viber groups.

15. The Tribunal was not satisfied that the applicant is of adverse interest to the Egyptian authorise because of his activities in Australia. The Tribunal was not satisfied that the applicant has political opinions which he sought to express if he was returned to Egypt. The Tribunal accepted that the applicant had a subjective fear of returning to Egypt but that this fear was not well-founded.

16. The Tribunal accepted that the applicant had mental health problems and that he was receiving treatment in Australia. However, the Tribunal was not satisfied that such problems prevented the applicant from studying or working. The Tribunal considered that the applicant’s qualifications, English language skills and work experience that he has obtained would leave him an advantageous position for finding employment in Egypt. The Tribunal noted that the applicant had the financial resources to pay for the services of a firm of solicitors to represent him in the proceedings as well as psychiatric reports.

17. The Tribunal accepted that the applicant owned an apartment in Egypt and that the applicant’s mother also owned an apartment in Egypt in which she lived. The Tribunal was therefore satisfied that the applicant had accommodation in Egypt and had the option to live with his mother and rent his apartment.

18. The Tribunal considered country information from the World Health Organisation and the Ministry of Health in regards to psychological and psychiatric services and medication available in Egypt, noting that the best services were in the cities. The Tribunal accepted that those services may not be equivalent to the services available in Australia. The Tribunal was not satisfied that the applicant would be denied access to those services or that the applicant would be unable to access or afford psychotropic medicines.

19. The Tribunal considered the impact of its decision and return to Egypt upon the applicant’s mental health. The Tribunal accepted that while the applicant did not want to return to Egypt, expert reports indicated that the ongoing stress of his visa status was impacting adversely upon his psychological condition such that resolution of his visa status may relieve some of the stress and allow him to plan for his future in Egypt and benefit from treatment. The Tribunal noted that the applicant would also have the support of his family if he were returned to Egypt which may assist in his readjustment to everyday life.

20. The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if he was returned to Egypt then or in the foreseeable future.

21. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal was not satiated that there was a real risk that the applicant would be arbitrarily deprived of life, that the death penalty would be carried out on him, that he would be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment if he returned to Egypt then or in the foreseeable future.

22. Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt there is a real risk that the will suffer significant harm as defined in s.36(2A) of the Act.

23. Accordingly, the Tribunal found that the applicant did not satisfy the criterion in s.36(2)(aa) of the Act and affirmed the decision to refuse the applicant a protection visa.

The proceeding before this Court

1. The applicant was unrepresented before this Court although had the assistance of an Arabic interpreter.

2. Mr Jay Williams, of counsel, had previously acted for the applicant and had drawn the initiating grounds of the applicant’s application for judicial review and a draft amended application that relied only on one ground. However, on 9 September 2017 the applicant withdrew instructions from Mr Williams and said that he wished to represent himself because he did “not agree about any amended application”.

1. The applicant then told the Court that he wished to rely on all of the grounds of his initiating application. Those grounds are as follows:

   “Ground 1: No Evidence

   1. The adverse credibility findings by the second respondent were affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the second respondent’s assessment of the applicant’s credit and the material upon which it relied to make that assessment with regard to the applicant’s credibility.

   Particulars

   Adverse Credibility Finding

   a) There was not a sufficient logical or evidentiary basis for the Tribunal to find at [93], that the ‘applicant is not a witness of truth and that he embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa’ and that the ‘applicant is not a reliable or credible witness’.

   Ground 2: Misapplication of Law of Failure to Ask the Correct Question

   2. The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.

   Particulars

   The Protest in December 2006

   a) At [98], the Tribunal accepted that a ‘few days after the protest in December 2006, approximately 240 students, including the applicant, were detained by the Egyptian authorities for questioning’ and accepted the ‘applicant was insulted, beaten, detained at the Police Station overnight and released without charge.’ However, the Tribunal erred at [101], by finding that the applicant is not ‘perceived by the Egyptian authorities to be a member or supporter of the MB or someone who wants to overthrow the government because he signed a petition against a teacher in 2005 and/or because of his participation in a student protest at El Azhar University in December 2006. It follows that the Tribunal does not accept that the applicant will be arrested, detained, harmed or treated badly for these reasons if he returns to Egypt in the reasonably foreseeable future.’

   Consideration of the applicant’s claims under the refugee criterion

   b) At [32], the Tribunal erred by misapplying the authority in in SZGIZ, and AMA15 that the Tribunal ‘does not have the power to consider the applicant's claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.’ To the contrary, the Tribunal has the power to consider new claims and evidence under the refugee criterion, not previously raised.

   Ground 3: Denial of Natural Justice and Procedural Fairness

   3. The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   Particulars

   a) For the reasons particularised at ground one and two.

   Ground 4: Failure to deal with the applicant’s claims or integer of those claims

   4. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.

   Particulars

   a) For the reasons particularised at ground one and two.

   b) Alternatively, the Tribunal failed to genuinely, properly or realistically take into account that the applicant faces a real risk of harm at the hands of the Egyptian authorities for being a failed asylum seeker on the basis of his failed claims against the Egyptian authorities.

   Ground 5: Relevant Considerations

   5. The second respondent failed to take into account relevant considerations when making the decision to affirm the decision by the delegate to refuse the applicant a protection visa.

   Particulars

   a) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the applicant’s claims at [98] or integers of those claims articulated at ground 3(b).

   b) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the country information, at [73].

   c) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the Facebook evidence, discussed at [67]-[70].

   d) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the medical reports discussed at [76].

   e) Alternatively, the second respondent failed to take into account whether the applicant faces a real risk of harm for being a failed asylum seeker on the basis of his failed claims against the Egyptian authorities.”

2. Each of the grounds was interpreted for the applicant and he was invited to say what he wished in support of the grounds and in support of his application generally.

3. Before inviting the applicant to make submissions in support of the grounds of his application, I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider his claims and make different factual findings. I explained that this Court has no power to interfere with the Tribunal’s decision unless the Court is satisfied that it is affected by a mistake that goes to the Tribunal’s jurisdiction; and, that a disagreement with findings and conclusions rarely by itself establishes such a mistake.

4. The applicant then said that he wished to have an adjournment in order to seek legal advice. I said to the applicant that he had received legal advice but it was obviously advice with which he did not agree and that he had chosen to dismiss his lawyer on 9 October 2017, some 9 days prior to today’s hearing. The applicant then said that he had met with a solicitor, Mr Adrian Joel, the day before who had said that if he obtained an adjournment, Mr Joel would meet with him. The applicant then told the Court that he had no money to pay Mr Joel but that he was waiting for a transfer of funds, although was unable to tell the Court when that transfer might be effected.

5. I stood the matter down to allow the applicant and the first respondent’s solicitor to speak with Mr Joel to see whether or not he was intending to represent the applicant, and would be prepared to do so, in the absence of any funds from the applicant. I was informed by both parties that Mr Joel was prepared to consider the applicant’s documents and give him some advice but did not agree otherwise to act for the applicant.

6. Any adjournment was opposed by the first respondent. In considering whether an adjournment should be granted, I have regard to the fact that the applicant has already had legal advice; dismissed that lawyer upon disagreeing with the advice; and, telling the Court that he wished to represent himself. I explained to the applicant that unless there was utility in doing so, in that the Court was satisfied that the applicant’s application for judicial review had sufficient prospects of success, an adjournment would be refused. For the reasons below, the application for judicial review has no or no reasonable prospects of success, and certainly insufficient prospects of success to justify an adjournment particularly in the context referred to above. Accordingly, an adjournment was refused.

7. The applicant then submitted that in support of his application generally, the Tribunal had ignored independent country information and had relied only on information taken from bloggers. Otherwise, the applicant repeated the complaints in several of his grounds.

Ground 1

1. Ground 1 challenges the Tribunal’s adverse credibility findings as lacking probative evidence or logical connection. Ground 1 refers to the Tribunal’s findings at paragraph 93 where the Tribunal stated as follows:

   “Having considered all the applicant's claims and the evidence, the Tribunal is of the view that the applicant is not a witness of truth and that he embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a reliable or credible witness.”

2. In oral submissions, the applicant particularised his complaint about the Tribunal’s adverse credibility findings to arise from paragraph 42 of the Tribunal’s decision, which is as follows:

   “During the first hearing, the Tribunal discussed these claims with the applicant. When asked what his involvement was with the Free Students Association, he responded it started in the Medical Faculty (he was not a member of the Medical Faculty) and that the Free Students Association offered them the opportunity to write a complaint against Professor Ahmed Al Tayer. He stated that he participated in the elections for the Free Students Association. His participation in elections for the Free Students is very different from his claim that he was involved in organizing the new group called Free Students Association. This raises concerns for the Tribunal that the applicant has embellished his claims in relation to his association with the Free Students Association. It also raises concerns in relation to his credibility generally.”

3. The applicant submitted that the rejection of his claims by the Tribunal was illogical. This complaint appears to be no more than a disagreement with the finding of the Tribunal that the applicant had embellished his claims in relation to the Free Students Association because of the inconsistency in his claims which led the Tribunal to have concerns about the applicant’s credibility generally.

4. The Tribunal then had regard to various other identified inconsistencies in the applicant’s claims made in his protection visa lodged on 2 November 2010 and the evidence he now gave to the Tribunal.

5. The Tribunal also put information contained in records of the Department of Education to the applicant. Those records indicated that since commencing his studies in August 2007, the applicant had only completed 2 courses and had had a number of enrolments cancelled, the last enrolment being cancelled due to disciplinary reasons. The Tribunal gave that evidence to the applicant pursuant to s.424AA of the Act and informed the applicant that it may lead to the conclusion that the applicant lodged his first application for a protection visa because he was no longer able to study and was using his application for a protection visa as a means of remaining in Australia rather than because he was seeking protection. The Tribunal noted the applicant’s response that the applicant had tried to find a sponsor and stated that he did not want to apply for protection. The Tribunal found that the applicant’s response reinforced its expressed concerns.

6. Ultimately, the Tribunal comprehensively rejected the applicant’s claims to have been a supporter or member of the Muslim Brotherhood or that he was perceived to be one; or that the applicant was arrested and questioned in 2003, 2004 or 2006. The Tribunal rejected the applicant’s claim to have been involved in organising the Free Students Association or that he was a member of that association. The Tribunal did not accept that the applicant was perceived by Egyptian authorities to be a member or supporter of the Muslim Brotherhood or was a person who wished to overthrow the government because he signed a petition against a teacher in 2005 or because of his participation in a student protest in 2006. The Tribunal did not accept that the applicant would be arrested, detained, harmed or treated badly for those reasons if he was to return to Egypt in the reasonably foreseeable future.

7. The Tribunal did not accept that the applicant had adverse political opinions when he was in Egypt or that he maintained a dissenting political opinion after his arrival in Australia. The Tribunal did accept that the applicant had made political comments on Facebook and in blogs and had attended rallies in Australia, but found that he did so for the purpose of strengthening his claims for protection. The Tribunal however did note that s.91R(3) of the Act did not apply with respect to conduct in the context of complementary protection. However, the Tribunal noted that the applicant’s Facebook account was in a different name and found that the applicant could not be identified via his blogs.

8. The Tribunal found that the applicant was not of adverse interest to the Egyptian authorities because of his activities in Australia and was not satisfied that the applicant has political opinions which he would seek to express if he returned to Egypt now or in the reasonably foreseeable future. The Tribunal did accept that the applicant has a subjective fear of returning to Egypt, but was not satisfied that the fear was well-founded.

9. The Tribunal accepted that the applicant has mental health problems and that he has been receiving treatment in Australia. However, the Tribunal did not accept that the applicant was unable to study or work because of his mental health problems and noted that he had obtained various qualifications in Australia and had wide work experience in many different jobs that would stand him in good stead in seeking and obtaining employment in Egypt. The Tribunal also found that the applicant had the financial resources to pay for legal representation in the proceeding before the Tribunal and to pay for psychiatric reports. The Tribunal found that the applicant owned an apartment in Egypt, as does his mother and that therefore accommodation in Egypt would be available to him.

10. The Tribunal also had regard to country information from the World Health Organisation and the Ministry of Health in Egypt that indicated there are psychological and psychiatric services and psychotropic medications available in Egypt and the best services are in the cities. The Tribunal is not satisfied that the applicant would be denied those services and noted that country information from the World Health Organisation and the Ministry of Health in Egypt indicated that at least 80% of the population in Egypt has free access to essential psychotropic medicines.

11. The Tribunal also considered the impact of its decision and the impact of returning to Egypt on the applicant’s mental health. The Tribunal accepted that the applicant did not wish to return to Egypt and would prefer to live in Australia permanently. However, the Tribunal accepted that while there may be an initial deterioration in the applicant’s mental health when he is faced with having to return to Egypt, the expert reports indicated that the ongoing stress of his visa status was impacting adversely on his psychological condition and his uncertainty about his future was the main stress factor. The Tribunal found that resolution of the applicant’s visa status may therefore relieve some stress and enable him to plan for his future in Egypt and benefit from treatment.

12. The Tribunal noted that the applicant would have the support of family in Egypt which he does not have in Australia which it found would assist him in readjusting to life in Egypt.

13. The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm for any of the reasons claimed if he returned to Egypt now or in the reasonably foreseeable future.

14. Further, the Tribunal was not satisfied that there is a real risk that the applicant would be arbitrarily deprived of life or that the death penalty would be carried out upon him or that he would be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment if he returned to Egypt now or in the reasonably foreseeable future. Accordingly the Tribunal was not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that he would suffer significant harm as defined in s.36(2A) of the Act and therefore did not satisfy the criteria in s.36(2)(aa) of the Act.

15. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

16. Otherwise, the applicant’s complaint about the findings in paragraph 42 invites merits review which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

17. In the circumstances, the Tribunal’s findings were based on probative evidence and for which there was a sufficiently logical and evidentiary basis.

18. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal misinterpreted, misunderstood or misapplied the applicable law or failed to ask itself the correct question.

2. Ground 2(a) particularises that complaint as arising from findings made by the Tribunal in paragraph 98 of its decision record. Paragraph 98 is as follows:

   “The Tribunal accepts that a few days after the protest in December 2006, approximately 240 students, including the applicant, were detained by the Egyptian authorities for questioning. The Tribunal accepts that the applicant was insulted, beaten, detained at the Police Station overnight and released without charge. The Tribunal does not accept that the applicant was then sent to gaol for 8 days or that he was sexually assaulted in gaol. The Tribunal does not accept that the applicant was detained by the Alexandria Police for questioning.”

3. The findings of the Tribunal in paragraph 98 follow the Tribunal’s comprehensive reasons why it did not find the applicant to be a witness of truth and why it found that the applicant embellished some of his claims and fabricated others. The findings in paragraph 8 are no more than findings of fact that were open to the Tribunal on the evidence and material before it and for the reasons it gave.

4. Ground 2(b) asserts that the Tribunal erred at paragraph 32 of its reasons when it found that the authorities in SZGIZ and AMA15 had the effect that the Tribunal did not have the power to consider the applicant’s claims under the refugee criterion in s.36(2)(a) of the Act; and, that the Tribunal erred in proceeding on the basis that it could only consider the applicant’s claims under the complementary protection provision under s.36(2)(aa) of the Act.

5. SZGIZ made clear that s.48A of the Act did not prevent claims for complementary protection in circumstances where an applicant had already made a claim to fear harm of persecution. In AMA15, Markovic J found that the Tribunal, in considering a second protection visa application based on complementary protection, the Court was correct to conclude that it could only consider complementary protection claims. Markovic J stated at [48] as follows:

   “The Tribunal correctly identified that it could only proceed to consider the Second PV Application based on the complementary protection criterion. That approach was consistent with its obligations having regard to ss 414, 415 and 65(1) of the Act. It cannot be said, in those circumstances, that the Tribunal was required to undertake a review of the delegate’s decision to the extent it included findings on matters that were not relevant to the criteria upon which the visa the subject of the valid application could be granted. The Tribunal exercised the powers and discretions conferred on it by the Act, as it was entitled to do. It considered the delegate’s decision in that context.”

1. In Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (“SZVCH”), the Full Court of the Federal Court of Australia held that neither the delegate nor the tribunal had jurisdiction to consider a second protection visa application that made claims under s.36(2)(a) of the Act. At 398 Mortimer J stated as follows:

   “In circumstances where s.48A(1) is construed as not preventing a further protection visa application relying on a different criterion in s.36(2) than the one relied on in a former visa application, then the validity of that further visa application is wholly dependent on the existence of a protection visa criterion not previously considered in the performance of the duty under s. 65. A further protection visa application which relies on the same criterion as that relied on in an earlier application is not a valid application ... The duty in s.65 has already been performed in relation to an application for a visa based on that criterion.”

   (Emphasis in original)

2. SZVCH makes clear that a second protection visa application is valid only because it was based on the criterion in s.36(2)(aa) of the Act, being a different criterion from the criterion in s.36(2)(a) of the Act, on which the first protection visa was based. A second protection visa application based on s.36(2)(a) of the Act would be invalid (see SZVCH at 377 per Kenny, Siopis and Besanko JJ).

3. In the circumstances, the Tribunal correctly interpreted, understood and applied the applicable law.

4. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to accord procedural fairness to the applicant and relied on the particulars in support of Ground 2 and in support of Ground 3. Having found that those particulars are not made out, it follows that Ground 3 is not made out.

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal hearing was conducted according to law as was the Tribunal’s review. As stated above, the Tribunal explored with the applicant his claims in detail at two hearings and put to him matters of concern it had about his evidence. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. There is no procedural unfairness or denial of natural justice apparent on the face of the Tribunal’s conduct of its review or its decision record.

3. If Ground 3 is intended to allege some form of bias or prejudgment, a fair reading of the Tribunal's decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

4. A fair reading of the Tribunal's decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

5. In the circumstances, there was no denial of procedural fairness, natural justice or a constructive failure to exercise jurisdiction by the Tribunal.

6. Accordingly Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal failed to deal with the applicant’s claims or an integer of his claims. The particulars in support of that assertion are again the particulars referred to above in support of Ground 2. Insofar as Ground 4(a) relies on those particulars, for the reasons above, that complaint is not made out.

2. Ground 4(b) asserts that the Tribunal failed genuinely, properly or realistically to take into account that the applicant faced a real risk of harm at the hands of the Egyptian authorities for being a failed asylum seeker on the basis of the failed claims against the Egyptian authorities.

3. As referred to above, the Tribunal was not satisfied that the applicant was at real risk of significant harm for any of the reasons claimed if the applicant was to return to Egypt now or in the reasonably foreseeable future.

4. The Tribunal found that was no evidence before it that the applicant would be at any risk of harm from Egyptian authorities on the basis of being a failed asylum seeker. As stated above, the Tribunal found that the applicant was not of adverse interest to Egyptian authorities because of his activities in Australia and found that the applicant had no relative political profile in Egypt before his departure.

5. The Tribunal carefully considered all relevant claims made by the applicant in considering whether he was at a real risk of significant harm if he was to return to Egypt now or in the reasonably foreseeable future and concluded that he was not. As disclosed in the reasons above, the Tribunal also considered in detail the impact on the applicant’s mental health of its decision and of the applicant’s return to Egypt.

6. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

7. In the circumstances, the Tribunal gave genuine, proper and realistic consideration to all claims made by the applicant.

8. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 asserts that the Tribunal failed to take into account relevant considerations which it then particularises as below.

2. Particular 5(a) is dealt with above in consideration of other grounds. It asserts that the Tribunal failed to take into account or give proper, genuine or realistic consideration to the applicant’s claims at paragraph 98 or integers of those claims articulated at Ground 3 and further particularised in Grounds 1 and 2. None of those complaints in the grounds have been found to have been made out.

3. Accordingly, Ground 5(a) is not made out.

4. Particular 5(b) asserts that the Tribunal failed to take into account or give proper consideration to country information as recorded in paragraph 73 as follows:

   “Since the first hearing, DFAT has issued an updated Country Information Report on Egypt dated 24 November 2015. The information in this Report on social media is the same as above with the exception that the final sentence has additional information to the effect “Although DFAT is not aware of bloggers being prosecuted for posting purely political commentary since Sisi took power, some prominent bloggers have been prosecuted for violations of the Protect Law.” There is no suggestion that the applicant is a prominent blogger. In fact, he does not even use his own name in his Facebook account or when commenting on blogs.”

5. The applicant also stated at the commencement of his submissions, as referred to above, that the Tribunal ignored independent country information from sources other than bloggers.

6. Paragraph 73 makes clear that the Tribunal was aware of updated country information on Egypt and had plainly had regard to it. Otherwise, the Tribunal’s finding in paragraph 73 that the applicant was not a prominent blogger and did not even use his own name on his Facebook account, or when commenting on blogs, was open to it on the evidence and material before and for the reasons it gave.

7. Accordingly, Ground 5(b) is not made out.

8. Particular 5(c) asserts that the Tribunal did not take into account or properly consider the applicant’s Facebook evidence.

9. The Tribunal noted that the applicant gave evidence that after 2013 he started writing political comments on his Facebook account. However, the Tribunal noted that the Facebook account was not in the name of the applicant. The Tribunal also expressed its concern about the applicant’s motivation for these Facebook blogs.

10. The Tribunal considered in some detail the applicant’s Facebook evidence and was not satisfied that the applicant would be identified by authorities because he had not used his own name. Further, even if he was identified, the Tribunal was not satisfied that he would face a real risk of significant harm having regard to the country information before it.

11. The Tribunal had regard to relevant country information from the Department of Foreign Affairs and Trade (“DFAT”) that DFAT was not aware of bloggers being prosecuted for posting purely political commentary and that individuals can genuinely express their views without state sanctioned interference. The Tribunal put this information to the applicant and noted his response which it found to be inconsistent with country information before it.

12. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

13. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. The Tribunal gave proper, genuine and realistic consideration to the applicant’s Facebook evidence.

14. Accordingly, Ground 5(c) is not made out.

15. Particular 5(d) asserts that the Tribunal failed to give proper consideration to the applicant’s medical reports and referred to paragraph 76 which is as follows:

    “The Tribunal has had regard to the medical evidence, the Counselling Report, Psychological Reports and Psychiatric Reports referred to above. The Tribunal has also had regard to the country information provided by the applicant in relation to psychiatric care in Egypt.”

16. A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave detailed and careful consideration to all the medical evidence provided by the applicant. As referred to above, the Tribunal had regard to country information in relation to that evidence and concluded that psychiatric help would be available to the applicant in Egypt as would appropriate medication. The Tribunal noted that at least 80% of the population in Egypt has access to psychotropic medicines.

17. The Tribunal also had regard to the evidence before it of the current stress factors on the applicant as a result of his visa status and accepted that they would impact upon him adversely. The Tribunal then noted that resolution may relieve some stress and enable him to plan for his future in Egypt and to benefit from treatment there.

18. In the circumstances, the Tribunal did give proper consideration to the applicant’s medical reports.

19. Accordingly, Ground 5(d) is not made out.

20. Particular 5(e) asserts that the Tribunal failed to consider whether the applicant faced a real risk of harm for being a failed asylum seeker on the basis of his failed claims against Egyptian authorities. That complaint is the same as particular (b) in Ground 4 above, which I have already found not to have been made out.

21. Accordingly, Ground 5(e) is not made out.

22. In the circumstances, the Tribunal took into account all relevant consideration in deciding to affirm the decision of the Delegate to refuse the applicant a protection visa.

23. In circumstances where none of the particulars in support of Ground 5 are made out, Ground 5 must fail.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant. The Tribunal explored those claims with the applicant at two hearings and had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard, which it discussed with the applicant. A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave proper, genuine and realistic consideration to all claims made by the applicant.

2. The Tribunal made findings based on the evidence and material before it, which were open to it for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one-hundred-and-forty (140) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  27 October 2017