Aty18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 464

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ATY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 464

File number(s):

MLG 438 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

14 June 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal failed to consider whether the First Application faced serious harm in the reasonably foreseeable future – whether there was jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 477

Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

Division:

Division 2 General Federal Law

Number of paragraphs:

50

Date of last submission/s:

31 May 2022

Date of hearing:

31 May 022

Place:

Parramatta

Counsel for the Applicants:

Ms Gang

Counsel for the Respondents:

Ms Smith

ORDERS

MLG 438 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ATY18

First Applicant

ATZ18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	14 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The Applicants’ to jointly and severally pay the First Respondents costs fixed in the amount of $7328.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicants are a wife and husband who are citizens of Egypt. The first applicant was born in 1945 and is currently 77 years of age. The second applicant, her husband, was born in 1943 and is currently 79 years of age. They were married in 1970. They have 2 adult children, who are now both Australian citizens and presumably residing in Australia.

2. The fist applicant visited Australian twice on a visitor’s visa during the period October to September 2003 and again from December 2010 to June 2011.

3. On 10 June 2013, both applicants were granted Class FA 600 Visitors visas (“visitor visas”) that were valid until 17 October 2013. They arrived in Australia on 17 July 2013 and have not departed since that date.

4. After an initial protection visa application was deemed invalid, the applicant’s applied for an XA subclass 866 Protection visa (“Protection visa”). They have been on various bridging visas since that date.

5. On 28 August 2015, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants’ Protection visas. The applicants sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 31 January 2017, the Tribunal affirmed the decision not to grant the applicants Protection visas.

6. The applicants now seek judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

7. The Tribunal decision is both lengthy and detailed in its consideration of the applicant’s claims.  After setting out the relevant background, the Tribunal summarised the applicants’ protection claims at paragraph 31 of the decision record.  This includes:

   •The applicants had a leased apartment in Cairo.  After a new owner took control of the building, he began acting against Christian tenants in the building and would be rude and abusive to them.  They became the only Christian family left in the building.

   •Things became worse after the fall of President Mubarak, Christians became the most disadvantaged people and easy targets under the new Muslim Brotherhood regime.

   •The first applicant claimed that a police report was filed against her and husband accusing them of using the apartment for religious purposes.  Police searched the house and found some Christian books together with money that had been provided from their son who is supporting them financially.  The police took the money.

   •In February 2013, the first applicant claimed that she and her husband had to visit the police station and were released on bail of 5000 Egyptian pounds.  Investigations are ongoing but the initial report showed that things were not going to be good.

   •Since their arrival in Australia, they been in contact with the lawyers and had been advised that they will be charged upon their return to Egypt.

8. At paragraph 37 of the decision record, the Tribunal detailed medical evidence it had received from a specialist stating that the second applicant had advanced kidney disease.  The disease has progressed to end-stage kidney disease and requires dialysis support.  This medical treatment would not be available in Egypt and a lesser form of treatment would be required as it would not cost as much.

9. At paragraph 65 of the decision record, the Tribunal found that the first applicant was not a credible witness. The first applicant was often non-responsive to questions put to her by the Tribunal and provided evidence which undermined her original claims that she personally held fears of persecution in returning to home country.  At paragraph 68 of the decision record, the Tribunal stated that they made a number of findings in favour of the applicants in relation to the health and religion but had difficulty with a number of other matters put by the applicants in relation to the fears of harm, particular based on incidences of past harm.

10. At paragraph 79 of the decision record, the Tribunal found that it was not credible that the applicants were harassed or harmed by Muslims or other individuals in relation to the apartment building. The Tribunal was not satisfied that the applicants’ apartment had been raided by the authorities or that they were suspected or accused of breaching Egyptian laws against proselytisation with the intention to convert Muslims from the religion. The Tribunal was not satisfied that the applicants were arrested and interrogated, taken to the public prosecution’s offices, interviewed and then released. The Tribunal was not satisfied that the applicants were taken to court and released on bail. The Tribunal was not satisfied that the applicants were able to leave the country in breach bail conditions through bribery, as there were no charges against them.

11. At paragraph 82 of the decision record, the Tribunal found that it was not satisfied that the applicants had a real chance of serious harm arising from these claimed past incidents or harassment and there were no reasons under the complimentary protection requirements which would give rise to any protection obligations on Australia.

12. Paragraphs 84 through to 92 of the Tribunal’s decision deal with real chance of serious harm arising from the applicants’ religion.  The Tribunal accepted country information that Coptic Christians faced some discrimination in Egypt.  The Tribunal accepted that since the Sisi government in Egypt came to power, widespread attacks upon Coptic Christians have declined, that but had not been eliminated. The Tribunal assessed that there was a low risk of attacks, especially in urban areas in the north cities of Egypt, where the applicant usually reside.

13. At paragraph 89 of the decision record, the Tribunal accepted that Coptic Christians in Cairo needed a high profile to reach the threshold facing serious chance of harm that was real.  This did not apply to the applicants.

14. Paragraphs 92 to 110 of the Tribunal’s decision deal with the second applicant’s health claims. At paragraph 98 of the decision record, the Tribunal accepted that the characterisation of the public health system in Egypt was limited and oversubscribed.

15. At paragraph 99 of the decision record, based on the fact that the applicants would continue to be supported by the children, the Tribunal was satisfied that they would be able to afford most of the cumulative medical costs if they return to Cairo.  The Tribunal considered relevant country information in relation to the availability of dialysis in Egypt. The Tribunal was satisfied that the applicants’ overall health and financial circumstances, with particular weight placed on the second applicant’s health requirements for dialysis, amounted to a real chance of serious harm if they return to Egypt in the foreseeable future.  However, the Tribunal found that this did not attract or trigger Australia’s protection obligations under the Refugee Convention as there was no information that the applicants would suffer harm by being denied health treatment arising from any systemic discrimination or harm or harassment towards the applicants by the health system.

16. At paragraph 107 of the decision record, the Tribunal dealt with claims that the applicants would be arbitrarily deprived of their lives as a necessary and foreseeable consequence of being removed from Australia.  The Tribunal was satisfied that the removal of the second applicant to Egypt may result in a reduction of his life expectancy.  However, as his death would be due to natural causes, this did not involve any matter which gave rise to protection requirements.  There was no suggestion that the second applicant’s access to and the affordability of health services in his home country would be withdrawn or restricted with the intention of causing harm leading to the arbitrary deprivation of the applicant’s lives.

17. Accordingly, the Tribunal affirmed the decision not to grant the applicant’s that protection visas.

    GROUNDS OF JUDICIAL REVIEW

18. The applicants rely upon a single ground of judicial review contained within an Amended Initiating application filed with the Court on 20 13 April 2022. It is as follows:

    1.   The Tribunal failed to consider whether the First Applicant faced serious harm in the reasonably foreseeable future as a result of the Second Applicant’s life being shortened upon return to Egypt, constituting a jurisdictional error based on a constructive failure to exercise jurisdiction.

    Particulars

    a.Having made the finding that the Second Applicant was likely to pass away fairly soon as a result of his end-stage kidney disease, it came within the “reasonably foreseeable future” to consider the circumstances First Applicant may be left in as a result.

    b.Despite having read country information discussing systemic discrimination against women, the Tribunal failed to consider the logical question of whether the Second Applicant’s death would consequentially create a greater risk of serious harm for the First Applicant based on her gender.

    c.In the premises, the Tribunal failed to exercise jurisdiction.

19. During submissions Counsel for the applicant abandoned particulars (b) and (c), however relied upon then them as submissions as to the failure to exercise jurisdiction.

    EXTENSION OF TIME APPLICATION

20. The first applicant seeks leave pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”) to file her application out of time. It is conceded that the delay was 352 days as at the date of filing.

21. The relevant considerations in relation to an extension of time application were considered in SZTES v Minister for Immigration and Border Protection [2015] FCA 719. They are as follows:

    •The extent of the delay, in this case 352 days;

    •The explanation for the delay;

    •Any prejudice to the respondent due to the delay; and

    •The merits of the proposed application;

22. In relation to the first matter, being the extent of the delay, this amounts to 11 months and 14 days out of time.  This is a significant period and accordingly, requires some significant explanation as to the reasons for the delay.

23. In relation to the second matter, being the reasons for the delay, the first applicant relies upon an Affidavit dated 13 April 2022.  The first applicant claims that the delay was occasioned by difficulties in obtaining timely and accurate legal advice, made worse by the applicant’s lack of knowledge of English, lack of familiarity with the legal and administrative systems and a total reliance on her adult children.  Further, both the first and second applicant’s suffer from significant health issues.  The applicants had been involved in pursuing various pathways to remain permanently in Australia and it is claimed they would have filed this application within time, had they the financial and social resources to seek correct advice.

24. The first respondent submits that the explanations proffered, failed to provide a justifiable explanation for the significant delay.

25. In relation to the third matter, being prejudice to the respondent, no specific submissions were put to the Court on behalf of the Minister.   However, that is not the end of the matter.  There is a significant public interest in the timely and effective disposal of litigation, particularly in public law where delays in dealing with applications for visas are to be avoided if possible: (see; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62]).

26. The last matter relates to the merits of the application.  The Court notes that at this point it is not necessary for a substantive examination to be undertaken of the grounds of judicial review rather, the merits should be examined at an impressionistic basis to see whether or not there is sufficient merit for them to be are looked at substantively.  The Court is of the view that the proposed ground of judicial review is arguable.  This mitigates significantly in favour of the leave being granted

27. The Court also takes into account the impact of leave not being granted on to the applicants, both of whom are elderly and one of whom has significant medical conditions.  It is put to the Court that a return to Egypt at this stage of the second applicant’s life would most likely result in his early death. This could result in the first applicant, being an elderly woman, being alone in Egypt removed from family support.

28. Considering all of the factors, the Court is satisfied that it is in the interests of justice to grant the applicants leave to file the Initiating Application out of time.

    THE APPLICANTS’ SUBMISSIONS ON MERIT

29. In relation to the merits of the ground of judicial review, it was submitted that the statutory test for finding a “well-founded fear of persecution” requires consideration of the circumstances as they may emerge in the “reasonably foreseeable future”, not merely the present: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279).

30. The Tribunal accepted both applicants’ evidence about the medical issues and found at paragraph 101:

    [T]he Tribunal is not satisfied that the applicants will be able to afford a suitable APD or CAPD for the second applicant given the applicants’ financial challenges and the cumulative health costs if they return to Egypt.  It is the assessment of the Tribunal that the combination of these challenges amounts to the chance of harm being more than remote or far-fetched.  Furthermore the Tribunal finds that the harm arising from the applicants’ overall accepted circumstances will amount to serious harm as the applicants will be significantly restricted access to services, where the restriction threatens the applicants’ capacity to subsist based on the cumulative impact of living expenses and overall medical costs on them.  It also finds there is serious harm where the restriction threatens the second applicant’s life would be shortened by untreated end-stage kidney disease for the same reasons. The Tribunal is accordingly satisfied that the specific findings about serious harm satisfied that these specific findings about serious harm satisfies as listed, non-exhaustively, in s.91R(1)(b) (sic).

31. At paragraph 104 the Tribunal found that:

    Based on the applicants’ accepted health and financial circumstances and the available evidence, cumulatively considered, there are no Refugees Convention reasons as the essential and significant reason or reasons for the real chance of serious harm if they return to Egypt… and there was no persecution involving systemic and discriminatory conduct as required by s.91R(1)(a).… Accordingly the applicants do not have a well-founded fear of serious harm that amounts to persecution based on the health claims if they were to return to their home city of Cairo or anywhere within the country of nationality, now and into the foreseeable future.

32. At paragraph 107 of the decision record, the Tribunal considered both applicants’ health issues in the context of the protection against arbitrary deprivation of life.  The Tribunal found that there was no capriciousness or intention towards the second applicant arising from the governance of Egyptian health or welfare sector or is family’s limited financial resources.  Even taking into account the first applicant’s own serious comorbidities leading to a natural death, the Tribunal did not accept that she faced a real risk of being arbitrary deprived of her life.  There was no intention on the part of Egyptian authorities to cause harm or lead to the arbitrary deprivation of life.

33. On behalf of the applicants, it was submitted that the country information from the Department of Foreign Affairs and Trade (“DFAT”) pointed to systemic discrimination against women in Egypt.  This included the harassment and intimidation of Coptic Christians and moderate Muslims, including the sporadic harassment of women with uncovered hair.  Whilst some Coptic Christian woman had reported being harassed or discriminated against after being identified as Coptic Christians, such incidents were mild and likely to occur in rural and poor areas. Ongoing traditional values and ideas about gender roles plays a part in such discrimination which was distinct from any specific anti-Coptic prejudice.  Upper-middle-class Coptic Christian women would most likely have greater ability to find work and shelter than Coptic Christian women from poor and more conservative areas.

34. It was submitted that following the death of the second applicant, the first applicant would be more vulnerable to the consequences of gender-based discrimination, particularly given the Tribunal’s acceptance of the significant health issues and financial challenges.  Whilst the Tribunal explored the reasonably foreseeable future of the second applicant, it was silent to that of the first applicant and therefore failed to complete its statutory task.

35. In her oral submissions, Counsel for the applicants submitted that the essence of the claim was that the Tribunal did not deal with the claim that following the death of her husband, as a single elderly Coptic Christian woman, the first applicant would face serious harm in the reasonable foreseeable future due to her age, gender and religious status as a Coptic Christian.

    THE FIRST RESPONDENT’S SUBMISSIONS

36. On behalf the first respondent, it was submitted that the Tribunal considered the first applicant’s claim for protection as a Coptic Christian, including her claim that the landlord and his colleagues would tell her to wear a veil, and subject to the verbal abuse.  However, the Tribunal found the first applicant was “not a credible witness” and “was often non-responsive to questions put to her by the Tribunal”.  The Tribunal made a number of adverse credibility findings about the second applicant.  The Tribunal did not accept that the police and prosecution documents submitted by the applicants were genuine.  The Tribunal set out in detail its credibility concerns about the applicants’ claim of incidences of past harm. The Tribunal did not accept the applicants’ claims that they had been harassed by the landlord, including the claim that the first applicant had been warned to wear a veil, nor that their apartment had been raided by Egyptian authorities, nor that they had been charged for proselytization or any other breach of the law.

1. It was submitted that the Tribunal properly considered whether the applicants held a “well-founded fear of persecution”, by considering the reasons the applicants had articulated for fearing persecution, being their religion, health, and by considering other relevant matters that arose before the material before the Tribunal.  However, neither of the applicants nor their legal representative suggested to the Tribunal that the first applicant would face serious harm on return to Egypt due to her gender if the second applicant were to pass away before her.

2. To properly perform its function, the Tribunal was required to consider the claims made by the applicants and the essential components or integers: (see; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]). This required the Tribunal consider first the claims are the subject of substantial clearly articulate an argument, relying on established facts or, secondly unarticulated claims that clearly emerged from the materials.

3. A finding that a claim clearly emerges from the material is not to be made lightly.  It is not sufficient that the claim might be said to arise on the materials.  It must be based on established facts and be plain on the face of the material: (see; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]).

4. The Tribunal found that it was a real chance the second applicant’s life would be shortened by untreated end-stage kidney disease due to the limited access of dialysis treatment in Egypt.  Country information which the Tribunal read and referred to pointed to systemic discrimination against women in Egypt.  It was submitted that it cannot be said that, the first applicant would face serious harm in Egypt due to being a Coptic Christian woman who was widowed, clearly from the country material now sought to be relied upon. 

5. This was because the country information which was assessed indicated that discrimination against women had decreased.  Further, the country information indicated that Coptic Christian women were generally able to work and travel unaccompanied in most areas of Egypt.  Incidents of harassment and discrimination against Coptic Christian women were “more likely to occur in rural and poor areas’, whereas the applicant would be returning to Cairo. 

6. At paragraph 82 of the decision record, the Tribunal concluded that it was not satisfied that the applicants had a real chance of serious harm or that they would be targeted by any Muslims for the religion or for any other convention reason.

7. In the absence of information before the Tribunal to suggest that the first applicant might face harm on the basis of agenda if her husband passed away is highly speculative of the nature of that enquiry on the information before the Tribunal.

   CONSIDERATION

8. The essence of the applicants’ case is that if required to return to Egypt, it is likely that the second applicant will pass away from end-stage kidney disease at an earlier time that he might otherwise if he were to remain in Australia.  The claim now made is that if this were to occur, this would leave the first applicant, as an elderly Coptic Christian woman, who would be the subject of persecution as a result of her age, gender, and religion.

9. The Tribunal conducted a detailed and comprehensive analysis of the applicant’s claims.  It made a number of adverse credit findings in relation to the applicants’ claims of persecution for reasons of their religion prior to coming to Australia.  It did not accept these claims.  The Tribunal however, did accept the medical information that was before it relating to the second applicant’s health status.

10. The Tribunal quite properly found that his access to medical treatment would be less than what would be available in Australia.  It was likely that the second applicant would pass away at an earlier point of time due to the lack of the same level of medical treatment available in Egypt.  However, this did not attract protection obligations in Australia because he would pass away as a result of natural causes, not as a result of any persecution in Egypt.

11. The Tribunal can only be required to assess the claims that are squarely before it, either based on the specific claims made by the applicants or material which clearly arises from the materials that form the case before it. The Tribunal cannot be required to deal with claims that are neither specifically made, or do not clearly arise on the materials before it is as unarticulated matters.

12. In this case, the Court is satisfied that the claim that the first applicant would be persecuted as a result of her gender and religious status, following the death of the second applicant, was never before the Tribunal in that it was never specifically put, nor could be said it arise squarely on the materials before the Tribunal.

13. The Court is satisfied that the Tribunal properly performed its function in that it considered the claims made by the applicants and their essential integers.  As the Tribunal considered all of the applicants’ claims, no jurisdictional error arises for it did not considering a claim in relation to the first applicant’s age and gender following the anticipated early death of her husband upon return.

14. Even if the Court is wrong in this conclusion, the Court is not satisfied that a consideration of a claim of a fear of harm based on age or gender in relation to the first applicant would have produced a different result. That is, the error, if there was one was not material: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17).

    CONCLUSION

15. In these circumstances, the Court is unable to find any jurisdictional error in the application and it must be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       14 June 2022