BEU15 v Minister for Immigration

[2016] FCCA 1409

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEU15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1409

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal misunderstood the applicants’ claims – whether the Tribunal’s decision was contrary to the available evidence – whether the Tribunal acted in bad faith – bias – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91A(3), 476

First Applicant: BEU15

Second Applicant: BFA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1807 of 2015

Judgment of: Judge Street

Hearing date: 9 June 2016

Date of Last Submission: 9 June 2016

Delivered at: Sydney

Delivered on: 9 June 2016

REPRESENTATION

The first applicant appeared in person.

Solicitors for the First Respondent: Mr T Galvin
Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the first respondent fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1807 of 2015

BEU15

First Applicant

BFA15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 4 June 2015 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Egypt. The applicant left Egypt on his passport. The applicant had previously visited Australia from 3 April 2007 to 1 October 2007 and from 1 December 2007 to 20 November 2008 and from 25 February 2012 to 8 May 2012 and his most recent arrival on a Parent visa (subclass 103) was on 27 December 2012.

2. The first applicant is the partner of the second applicant who advances no independent claims but relies upon being a family member of the first applicant.  The first applicant applied for protection on 9 October 2013.  The first applicant claimed to fear harm in Egypt from the Muslim Brotherhood.  In summary, the first applicant is a decorated former Air Force Major General who had dealings with the former Egyptian president and former Egyptian prime minister.  The first applicant claimed that he was in charge of a particular campaign in his local area which resulted in harassment and threats from the Muslim Brotherhood.  The first applicant made further claims about his daughter’s car being vandalised and his grandson being kidnapped for two days and beaten and his wife and daughter being robbed and beaten in September 2012 and a close friend being assassinated. 

3. The delegate made adverse findings in relation to the applicants’ claims and, relevantly, said that the first applicant had fabricated his refugee claims.  It was in those circumstances that the delegate rejected the applicants’ claims on 27 June 2014.  The applicants then applied for a review on 7 July 2014.  By a letter dated 2 March 2015, the applicants were invited to attend a hearing before the Tribunal to be held on 14 April 2014.  The applicants attended on that day to give evidence and present arguments and were assisted by their migration agent. 

4. After the hearing, further submissions were provided dated 1 May 2015 from the Refugee Advice & Casework Service (RACS) that was representing the applicant.  Those submissions were expressly referred to in the Tribunal’s reasons in a number of different paragraphs.  The Tribunal found that there were significant issues in relation to credibility and reliability of the evidence of the first applicant.  It was in those circumstances that the Tribunal affirmed the decision of the delegate.  The Tribunal in detail set out the first applicant’s background and the first applicant’s original claims.  The Tribunal summarised what occurred in relation to his original statement as well as the issues raised by the first applicant in his claims. 

5. The Tribunal referred to the new claims that the first applicant advanced and the Tribunal also took into account medical evidence provided in relation to the first applicant’s health and ability to meaningfully participate in the hearing.  The Tribunal found that it gave no weight to the proposition that important claims were omitted by the first applicant from his first application for protection for the reasons he claimed due to uncertainty or trustworthiness of the translator or possibility of being omitted by the translator or a decision to outline the basis of his claims with a view to providing detail later on.  The Tribunal referred to the applicants’ concern in respect of ongoing threats and on the evidence before the Tribunal gave that proposition no weight. The Tribunal expressed concern that, in the alleged circumstances, the applicants’ daughter would place and leave her telephone number on Facebook and to continue to leave it there whilst continuing to receive telephone threats.  The Tribunal said that that made the claim about telephone threats implausible.

6. The Tribunal found that the first applicant had given an unsatisfactory explanation as to the circumstances in which his daughter went back to Egypt when she did.  The Tribunal considered the medical reports in relation to the first applicant’s capacity to give meaningful evidence and the Tribunal expressly found that the applicant was able to provide meaningful evidence and was not satisfied that any medical condition or memory impairment had anything to do with the inconsistencies or deficiencies in the applicant’s evidence.  The Tribunal found that the first applicant’s claim about being closely associated with the former president was a substantial exaggeration and found that the first applicant had displayed a pattern of either fabricating or grossly exaggerating links between himself and other prominent figures in his account.

7. The Tribunal did not accept that the first applicant had campaigned on behalf of or ever had a close or otherwise significant relationship with the former prime minister or the presidential candidate in 2012.  The Tribunal found the first applicant’s claims about his running of the campaign in Giza to be vague and improvised.  The Tribunal found that the first applicant’s evidence about participation in the Shafik campaign was revised and improvised and lacks credibility.  The Tribunal did not accept that the first applicant had organised and managed a local Giza political campaign via Facebook or any other medium before, after or during his significant absence from Egypt during the campaign period. 

8. The Tribunal did not accept that the first applicant came to Australia in early 2012 due to harassment he was encountering during the campaign.  The Tribunal found that the first applicant’s claims about having organised any aspect of the Shafik campaign were unreliable.  The Tribunal did not accept on the evidence that the first applicant played in any role in encouraging or advising Shafik to run and the Tribunal took those findings into account in relation to the first applicant’s reliability as a witness in respect of his claims.  The Tribunal found that the first applicant had been untruthful about his links with Waleed and the Tribunal found that it gave no weight to that evidence. 

9. The Tribunal considered the first applicant’s explanation for the inconsistencies and omissions and found the first applicant’s explanations to be unreliable and unsatisfactory.  The Tribunal made adverse credibility findings in relation to the first applicant’s alleged association with MB and found the first applicant was overall a poor witness and did not accept that he was affiliated with MB, let alone between 2005 and 2010. 

10. The Tribunal found that the applicant did not have any significant profile with MB or any other socio-political group. The Tribunal found that because the applicant had been discredited as a witness, it gave no weight to the supporting evidence provided by his wife. The Tribunal did not disregard the first applicant’s activities in Australia under s.91A(3) but was satisfied on the evidence before the Tribunal that any participation in rallies or other things, in talkback, in radio interviews, in public speakings by the first applicant in Australia did not give rise to a real chance of persecution in Egypt in the reasonably foreseeable future. The Tribunal made reference to the first applicant’s association with the Coptic Christian Egyptians and found that the first applicant’s association with that social contact had been solely for the purpose of strengthening the applicants’ claims to refugee status.

11. The Tribunal was not satisfied that the applicants’ claimed social contact with the Coptic Christians in Australia would be of any potentially significant interest to any individuals or parties here or in Egypt, let alone would give rise to a presumption of their becoming Christians.  The Tribunal found it was not satisfied on the evidence that the association with the Christians in Australia gives rise to any real chance of the applicants being persecuted in Egypt.  The Tribunal found that having considered the evidence in its entirety, it did not accept that the applicants are genuinely inclined to abandon Islam or nominal adherence to Islam for Christianity. 

12. The Tribunal found that it was not satisfied that the applicants would be imputed to be apostates here or in Egypt. The Tribunal found that it was not satisfied that the applicants faced a real chance of Convention-related persecution in Egypt in the reasonably foreseeable future and was not satisfied that the applicants’ claimed fears of Convention-related persecution in Egypt were well founded. It was in those circumstances that the Tribunal found that the applicants did not satisfy the criteria under s.36(2)(a) of the Migration Act 1958. 

13. The Tribunal then turned to the issue of complementary protection. The Tribunal found, having considered all the evidence in the matter in its entirety, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Egypt there is a real risk that the applicants would suffer significant harm. It was in those circumstances that the Tribunal found that the applicants did not meet the criteria under s.36(2)(aa) of the Migration Act 1958 and the decision of the delegate was affirmed.

14. On the 23 July 2015, a Registrar of this Court made orders providing the applicant with an opportunity to amend the application, file affidavit evidence and put on submissions.  The applicants put on an affidavit annexing the transcript and, on the day of the hearing, the first applicant handed up a two-page document which was treated as submissions. 

15. The grounds in the application are as follows:

    1. The Member of the Refugee Review Tribunal misunderstood my fear of persecution.

    2. The Tribunal Member acted contrary to the evidence before him and the support by Refugee Advice and Casework Service (RACS).

    3. As it will be seen from the transcript the Member of the Tribunal acted in bad faith and failed to understand my involvement and my fear of persecution as a result of such involvement.

16. At the commencement of the hearing, the Court explained to the first applicant that this was a final hearing to determine whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant that the Court was determining whether the Tribunal’s decision was fair or unlawful.  The Court explained that it would identify the evidence and then hear submissions from the first applicant and then submissions from the solicitor for the first respondent and then submissions from the first applicant in reply.  The first applicant confirmed that he understood the nature of the hearing as explained by the Court. 

17. In relation to ground 1, there was nothing in the Tribunal’s reasons that identifies any misunderstanding of the applicants’ claims.  The Tribunal accurately identified the applicants’ claims and evidence and nothing has been pointed to by the first applicant to support any lack of understanding of the applicants’ claims.  The first applicant takes issue with the adverse findings by the Tribunal.  However, the adverse findings do not identify that the Tribunal misunderstood the applicants’ claims.  There is nothing in the transcript to support the proposition that there was any misunderstanding of the applicants’ claims in the transcript.  The transcript reflects an orthodox hearing in which the Tribunal tested and explored the applicants’ claims and evidence.  Ground 1 fails to make out any jurisdictional error.

18. In relation to ground 2, it is apparent that the Tribunal identified the applicants’ claims and evidence and the adverse findings made by the Tribunal were open to it and cannot be said to be unreasonable or lack an evident and intelligible justification.  There was no finding identified that was said to be contrary to the evidence and it is clear that the Tribunal took into account the submissions advanced on behalf of the applicants.  The Tribunal was not bound to accept the applicants’ representative’s submissions and it was a matter for the Tribunal to determine the applicants’ credit. 

19. Moreover, it was patent to the first applicant that his credit was going to be a live issue from the adverse findings by the delegate.  In circumstances where the first applicant had travelled backwards and forwards from Australia in the periods identified and his delay in seeking protection, the adverse findings in relation to the first applicant’s credibility cannot be said to lack a logical and rational foundation.  Ground 2 fails to make out any jurisdictional error.

20. In relation to ground 3, there is nothing in the reasons of the Tribunal or on the face of the transcript to support the serious assertion of bad faith by the Tribunal.  The proposition that the Tribunal’s decision was affected by bad faith is meritless and without substance.  The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent and impartial mind to the determination matter on its merits.  Further, the testing of the first applicant’s evidence, as identified in the transcript, is not conduct by reason of which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an independent, impartial and fair mind to the determination of the matter on its merits. 

21. Nothing was identified by the first applicant to demonstrate any such serious allegation.  No case of bias has been proved.  No case of bad faith has been proved.  The proposition that the Tribunal failed to understand the applicants’ claims and evidence is, in substance, a repetition of ground 1 and is not supported by the detailed reasons of the Tribunal identified above.  Ground 3 fails to make out any jurisdictional error.

22. In the written submissions, the first applicant suggested that the Tribunal had ignored his mental health.  It is apparent that is not the case and the Tribunal made express reference to it and took it into account.  I am satisfied that the applicants had a genuine hearing and were able to participate meaningfully in that hearing.  Nothing said by the first applicant in relation to his impairment identifies any jurisdictional error by the Tribunal.  The first applicant’s repetition of the allegation that the Tribunal misunderstood his claims is, for the reasons earlier given, without substance.  The first applicant’s submissions were otherwise an impermissible challenge to the adverse findings made by the Tribunal that were open on the material before the Tribunal. 

23. From the bar table the first applicant identified his personal history.  This Court accepts that the applicant has been an upstanding member of the community whilst he has been here.  This Court accepts that the first applicant has had a reputable career in the military.  This Court does not have the power to make fresh findings of fact in relation to the first applicant’s claims or credibility.  Nor does the Court have the power to make a decision based on compassionate grounds, albeit the Court recognises that the first applicant’s family is here in Australia.  That is not a basis that gives this Court any power to grant relief.  This Court does not have power to grant any fresh visa. 

24. The Court did raise with the first applicant in the course of seeking to explain the nature of the powers of the Court that it appeared a great tragedy that he had made an application for protection because that was likely to substantially affect his prospect of other types of visas being granted in the future.  The Court raised with the first applicant that whoever encouraged him to make that protection application did him and his wife little favour.  The first applicant maintained from the bar table that there had been a deficiency in the conduct of the hearing by the Tribunal.  For the reasons earlier given, there is no such deficiency in the conduct of the hearing before the Tribunal.  The other matters raised by the first applicant from the bar table were, in substance, an invitation to this Court to engage in an impermissible merits review.  Nothing said by the first applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016