Auw20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 251

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AUW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 251

File number(s):	SYG 426 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	10 November 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) Visa – where the Tribunal did not accept that the applicant faces a risk of serious harm – whether the Tribunal had a genuine intellectual engagement with the applicant’s claims and evidence – jurisdictional error made out – application allowed – writs issued
Legislation:	Migration Act 1958 (Cth) ss 5J, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	24
Date of hearing:	10 November 2021
Place:	Sydney
Counsel for the applicant:	Mr D Godwin
Solicitor for the first respondent:	Mr K Eskerie, Sparke Helmore

ORDERS

SYG 426 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AUW20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	10 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Court grants leave to the applicant to rely on the amended application filed on 8 November 2021.

2.A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made by it on 23 January 2020.

3.A writ in the nature of mandamus is issued requiring the second respondent to determine the review application before it according to law.

4.The first respondent pay the applicant’s costs fixed in the amount of $6,000.00.

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 STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) which relates to the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 January 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Subclass 866) Visa (“the Visa”).

   Background

2. The applicant is a citizen of Egypt, and his claims were assessed against that country. 

3. Relevantly, the applicant feared harm by reason of being a Coptic Christian.

4. On 30 September 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa. On 31 October 2016, the applicant applied to the Tribunal for review. On 20 November 2019, the applicant was invited to and attended a hearing before the Tribunal to give evidence and present arguments.

5. On 17 December 2019, the applicant’s representative provided additional submissions in support of the applicant’s claim to fear harm as a Coptic Christian. Country information had been provided, which was the subject of that submission in hard copy, which referred to events in relation to, first, an occurrence on 21 December 2019. This was an event which occurred post the most recent Department of Foreign Affairs and Trade (“DFAT”) country information report which, on the evidence before the Court, the Court accepts was in fact before the Tribunal. There were a number of other events identified in that summary, some of which were also referred to in the country information and or the thematic Egyptian Copts report which was dated 2015. That summary identified Christian Copts being killed, which was, in substance, the claim being advanced by the applicant.

   Before the Tribunal

6. Unfortunately, in the present case, the Tribunal only made a general reference to the DFAT country information that it was relying upon, in paragraph 42 of its reasons. In that paragraph, the Tribunal referred to:

   I have taken into account the DFAT Country Report – Egypt and the DFAT Thematic Information Report – Egyptian Copts.

7. Because of a reference to moderate discrimination in its reasons, the Court accepts that it was the 17 July 2019 country report to which the Tribunal was referring. The only thematic report provided is that dated 2015. The summary of events provided by the applicant in their submissions identifies events post the 2015 report in relation to Christian Copts in Egypt. 

8. The Tribunal then made reference, under a heading “Related Issues”, to the enormous amount of country information provided by the applicant’s advisor, who referred to folios 37 to 375 prior to the hearing, and made the observation:

   I have lent it little weight. 

9. The Tribunal member has then referred to there being no effort to link particular elements of it to the applicant’s specific claims. The Tribunal stated that there was no apparent effort on the part of the applicant’s advisor other than to photocopy various news reports and submit them to the Tribunal without arguing their relevance to the applicant’s particular case. The Tribunal refers to requesting the advisor to give a short summary of the relevant articles and their relevance to the Tribunal prior to the hearing. There is a statement:

   This was done but they remained general in nature and failed to convince me that they were relevant to the applicant’s individual claim.

10. The reference is clearly a reference to the submission of 17 December 2019. The proposition advanced in the Tribunal’s reasons, that they remain general in nature, is not a fair summary of what was in the submissions, which clearly identified incidents involving Egyptian Christian Copts being killed. The reference to “general in nature” is, of itself, of concern in the context of the ground advanced by Mr Goodwin on behalf of the applicant in the immediate application. They were not general in nature in the table provided in the applicant’s submissions. The table clearly identified Christian Copts being killed in respect of the applicant’s claim to fear harm in that regard.

11. The Tribunal member continued with a proposition, effectively, that the submission:

    Failed to convince me that they were relevant to the applicant’s individual claim.

12. It is patent that the table that was provided and the submissions were relevant to the applicant’s individual claim to fear harm as an Egyptian Christian Copt. The proposition that they were not relevant reinforces the substance of the singular ground advanced by Mr Goodwin; that there was a failure by the Tribunal to have a genuine intellectual engagement with the applicant’s submissions, and evidence in relation to his claim to fear harm as a Christian Copt. 

13. The Tribunal member then continued:

    I give more weight to the various inconsistencies in the applicant’s claim than the country information report provided by DFAT in assessing his credibility.

14. Inconsistencies are often a matter in relation to evaluating the credibility of an individual. The last reference to credibility is consistent with the Tribunal, in that last sentence, focusing on an assessment of credibility of the applicant rather than assessing the risk of the real chance of harm to the applicant by reason of being a Christian Copt. 

15. The suggestion that giving more weight to the country information in assessing credibility also reflects a failure by the Tribunal to address the relevant submission being advance in respect of the applicant’s claim to fear harm as a Christian Copt.

16. While the Tribunal’s reasons are not to be read with a keen eye for error, combined with the reference to inconsistencies, it is suggested that country information has been used in that regard in terms of giving weight in assessing and rejecting the applicant’s credibility in respect of his other claims. 

17. It is apparent that the Tribunal did make adverse credibility findings in respect of the applicant’s other claims and the applicant themselves. The Tribunal is not precluded from taking into account country information in assessing credibility. However, the substance of the submission that was being advanced, to which the Tribunal has then talked about giving more weight about credibility, was in respect of the applicant’s individual claim to fear harm as a Christian Copt. The reason given by the Tribunal in paragraph 46 of its reasons is consistent with the Tribunal not having a genuine intellectual engagement with the applicant’s claims and evidence to fear harm as a Christian Copt.

18. The first respondent has, obviously, drawn the Court’s attention to the country information that was provided, and in particular, the findings in paragraph 63 of the Tribunal’s reasons. It refers to the Tribunal not accepting that there is a real chance the applicant will face serious harm for being a Christian in Egypt. That paragraph also includes the Tribunal’s reference to there being instances of violence against Christians, that there are around eight million Christian Copts in Egypt, and that the violence is not systematic, nor is the government unable or unwilling to target those responsible. 

19. It was in that context that the Tribunal made reference to a different issue in respect of employment and ability to subsist, that the Tribunal did accept that Christians face a moderate risk of discrimination that is more likely to be societal and in rural areas. However, the Tribunal did not accept that this constitutes serious harm for the purpose of s 5J(6) of the Act. The reference to the moderate risk of discrimination was not a reference to assessing the applicant’s claim of fear of harm by reason of being a Christian Copt.

20. The Tribunal did correctly identify, in the context of societal discrimination, that the applicant lives in an urban area. The Tribunal made reference to the applicant’s migration history supporting the applicant as being a person who has been able to lead a normal life in Egypt. 

21. The Court does not accept that the reference to the violence not being systematic in paragraph 63 of the Tribunal’s reasons reflects a genuine intellectual engagement with the applicant’s claims and evidence in that regard. It is not necessary for the Tribunal to identify the whole of the evidence before it or to identify particular pieces country information. 

22. The Court is satisfied that, in this case, there has not been a genuine intellectual engagement by the Tribunal with the applicant’s claims and evidence in respect of the submission dated 17 December 2019 and the applicant’s fear of harm as a Christian Copt. This is in the context of an out of date thematic report from 2015 which, on the Tribunal’s reasons, it was seeking to say it had taken into account, and in the context of more recent events summarised in the applicant’s submissions, and taking into account the Tribunal’s approach that the content of those submissions, apparently, were found not to be relevant to the applicant’s individual claim. Contrary to that approach the submissions were relevant and, the Court finds, were not taken into account as a matter of genuine intellectual engagement with the same.

23. In these circumstances, jurisdictional error has been made out.

24. Accordingly, the Court orders that a writ in the nature of certiorari is issued, calling up the record of the second respondent and quashing the decision made by it on 23 January 2020. The Court also orders that a writ in the nature of mandamus is issued, requiring the second respondent to determine the review application before it according to law.

I certify that the twenty-four (24) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 November 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 March 2022