BGH16 v Minister for Immigration
[2018] FCCA 1009
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGH16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1009 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal’s decision (AAT) – visa – Protection Visa – complementary protection – dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 36 |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 |
| Applicant: | BGH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1306 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem |
| Solicitors for the Applicant: | Asad Lawyers |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The Amended Application filed 12 February 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1306 of 2016
| BGH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 April 2016. The Tribunal affirmed a decision of a Delegate of the First Respondent dated 18 June 2014 to refuse to grant the Applicant a Protection (Class XA) Visa.
The Applicant is a citizen of Egypt. He was born on 21 June 1976. He first arrived in Australia on 19 April 2008 as the holder of a student visa (according to the present application for Visa). On 23 November 2010, the Applicant applied for a protection visa, which was refused by a delegate of the First Respondent on 28 February 2011. That decision was affirmed by the Refugee Review Tribunal on 5 July 2011. He also applied for a partner visa on 5 December 2011, which was refused on 1 March 2013. The (then) Migration Review Tribunal affirmed the refusal on 12 November 2013.
On 6 January 2014, the Applicant lodged his present application for Visa. The Applicant attended an interview before the Delegate on 3 June 2014, at which interview he submitted a letter dated 30 May 2014 and numerous pages of Facebook posts titled with part of his name - ‘Mohamed Abou Bakr Helmy’ - in support of his application. Subsequently, the Applicant submitted further documents in support of his application under cover of a letter dated 5 June 2014, including translations of Facebook posts. As I have stated above, on 18 June 2014, the Delegate refused to grant the Applicant the Visa.
On 11 July 2014, the Applicant applied to the Refugee Review Tribunal for review of the Delegate’s decision. The Applicant was invited to attend a hearing before the Tribunal (differently constituted), which hearing was ultimately held on 1 April 2016. In advance of appearing at the Tribunal hearing the Applicant provided written statements dated 2 October 2015 and 26 November 2015, supporting documents, and a submission, also dated 26 November 2015 from his current migration agent and solicitor (not the person who acted for him in relation to his earlier visa application lodged in 2010). The Applicant’s migration agent provided a post‑hearing submission on 4 April 2016. As I have stated above, the Tribunal issued its decision on 27 April 2016, affirming the decision of the Delegate.
The Applicant filed an application for judicial review by this Court on 25 May 2016, asserting jurisdictional error. By an amended application dated 12 February 2018, the Applicant recast the grounds of jurisdictional error on which he relies.
Claims for protection – ground pressed
At the hearing before me on 8 March 2018 the Applicant pressed only ground 1 of the amended application, as follows:
1.The Tribunal fell into jurisdictional error in its failure to make an obvious enquiry about a critical fact the existence of which could have been easily ascertained.
Particulars
a.Before the Tribunal the Applicant was relying on an arrest warrant to support his claim for a protection visa;
b.as can be seen from [82] of the Tribunal’s reasons, the Tribunal discussed concerns about the authenticity of the document with the Applicant;
c.the authenticity of the arrest warrant was a critical fact;
d.as can be seen from [83] of the Tribunal’s reasons, the Applicant requested the Tribunal to verify the arrest warrant;
e.the Tribunal indicated at [83] the procedure by which the arrest warrant could be ascertained;
f.the procedure to verify the arrest warrant was an obvious enquiry;
g.the Tribunal failed to make the obvious enquiry and seek to verify the arrest warrant; and
h.in failing to do so the Tribunal committed a jurisdictional error.
The thrust of the Applicant’s case in this Court is thus that the Tribunal committed a jurisdictional error in failing to verify the arrest warrant submitted by the Applicant in support of his claim that he would face persecution if returned to Egypt on account of his expression of political opinions offensive to the government. The Applicant asserts that the authenticity of the arrest warrant was a critical fact, the authenticity of which was easily ascertainable.
Background
The Visa application the subject of this proceeding is the Applicant’s second application for a protection visa. The Applicant’s first application for such a visa (made 23 November 2010) was based on claims that he had converted from Sunni Islam to Qurani Islam and feared persecution on that basis.
In this second protection Visa application and before the Delegate (including in his interview with the Delegate on 3 June 2014) the Applicant maintained his claim of being a Qurani Muslim. Additionally, he sought protection on the basis that he had expressed political views on social media adverse to the interests of the Egyptian regime and that he now feared persecution on that basis. Further, the Applicant said he could not return to Egypt and leave his wife in Sydney, as she was sick and had no one to care for her.
In the course of providing statements in 2015 in support of his application to the Tribunal for review of the adverse decision of the Delegate, the Applicant expressly resiled from his claim of being a Qurani. He stated that he was not relying on any other ground than his claims to seek protection for expressing political opinions/criticism against the Egyptian government.
First, in his statement dated 2 October 2015, the Applicant stated that he was not a committed Qurani, his previous migration agent, a Mr Sam Issa, had told him he could apply for protection based on being a committed Qurani, the Applicant had signed documents prepared by Mr Issa, and, following Mr Issa’s advice, had researched the Qurani faith, obtained material from third parties to support his claim to be a Qurani and had attended the Departmental interview with Mr Issa.
Secondly, in his statement dated 26 November 2015 the Applicant reasserted his claims to protection for expressing anti‑regime political opinions to persons in Australia and writing comments online and on social media, such as Facebook. The Applicant stated that he had also received a threat from an individual in Egypt which he had reported to the Department of Immigration and Citizenship and the Delegate. He suspected that his expression of political opinions against the Egyptian government, combined with some disagreements from other individuals, had now placed him in the situation of being at risk of death by the Egyptian officials. The Applicant provided printouts from the Internet, Facebook, translation of a post on his Facebook account by persons identified as ‘Hosam Kamal’ and ‘Wael Zwam’, his identity document and undated arrest warrant.
Decision of the Delegate
The Delegate recorded that in relation to his claims relating to his political opinion, the Applicant claimed he started posting anti‑government related content on his Facebook account in April 2014, after he arrived in Australia. He claimed threats made against him in responsive Facebook posts dated 19 April 2014 by Wael Zwam, and 24 May and 25 May 2014 by Hosam Kamal, the last of which stated “I would like to tell you that I have reported you to the Egyptian authorities. If you are a man come back to Egypt and you will pay the price of your behaviour”. The Delegate was able to access the Applicant’s Facebook page which showed his previous activity. During his June 2014 interview with the Delegate the Delegate put to the Applicant that the claimed threat and several posts were not visible and asked the Applicant whether he had hidden those posts and threat from public viewing. The Applicant indicated he had not and that they remained visible on his Facebook account. Given the posts were not visible to the Delegate, the Delegate concluded they had either been made private, been deleted or they do not exist. The Delegate found that the threats which the Applicant claims to have been directed towards him had been fabricated for the sole purpose of strengthening his credibility claims.
The Delegate refused the Applicant’s application for the Visa. The Delegate did not accept that the Applicant had been truthful about his reasons for applying for the Visa. The Delegate found that the Applicant was not a Quranist, had never been a Quranist, and had no intention of practising the Qurani faith in Australia or Egypt.
In relation to the Applicant’s claimed anti‑government political opinion, the Delegate found that the Applicant had never genuinely held a political opinion which was anti‑government, did not genuinely hold a political opinion which was anti‑government, did not have a genuine intention to express an anti‑government political opinion in Australia or Egypt, was not of adverse interest to Wael Zwam, had not been reported to the Egyptian authorities by Hosam Kamal for his anti‑government Facebook posts, and had not come to the attention of the Egyptian authorities on that basis. The Delegate found that the Applicant had posted anti‑government content on Facebook since April 2014.
Decision of the Tribunal
The Tribunal proceeded to consider the Applicant’s claims in relation to the complementary protection requirements of s.36(2)(aa) of the Act, as the Applicant had previously had his claims for protection assessed under s.36(2)(a) and rejected: see SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
The Tribunal commenced its reasons by setting out the claims made by the Applicant. It also set out the evidence given by the Applicant at the Tribunal hearing, as well as matters raised by it, and the Applicant’s responses.
The Tribunal stated that the Applicant’s credibility and reliability was “of central importance” to its determination, and observed that it did not have to accept uncritically any and all claims made by an applicant. In assessing his credibility, the Tribunal stated it was guided by the Tribunal’s ‘Guidance on the Assessment of Credibility’ and ‘Guidance on Vulnerable Persons’.
The Tribunal “did not accept that the Applicant is a witness of truth”. In particular, the Tribunal referred to the Applicant having claimed in his 2010 protection visa application, his 2011 partner visa application, and also, initially, in the present Visa application (including before the Delegate) that he was a Quranist, from which claim he now completely resiled. The Tribunal noted that in support of his previous claim to fear harm on account of being a Quranist, the Applicant had himself researched information on the internet to support those claims, and repeated that information to the Refugee Review Tribunal, he had obtained false information from third parties to support his case, and had knowingly lied on oath at tribunal hearings and made false statutory declarations in order to support his claims. Those circumstances, cumulatively, caused the Tribunal to have “serious concerns about the degree of confidence [it could] have in the reliability of his evidence”. The Tribunal was satisfied that the Applicant was not a witness of truth and considered that the Applicant “will do whatever he perceives is required to obtain the visa sought” (Tribunal decision at [68 – 70]).
The Tribunal, on the basis of the Applicant’s own evidence, was satisfied the Applicant had no adverse religious or political profile in Egypt prior to departing for Australia in 2008. The Tribunal noted that the Applicant claims that he joined Facebook in 2008, and that Egypt had been in a state of political turmoil since January 2011. In relation to the Applicant’s claims to have expressed anti‑government views, the Tribunal found it implausible that, if the Applicant held such views, he would have waited until five weeks before the Delegate’s interview (that is, until April 2014) to first express his political opinion publicly on his Facebook page. The Tribunal did not accept that the Applicant was an anti‑Egyptian activist on Facebook.
The Applicant’s Facebook page did not contain his surname. The Tribunal did not accept the Applicant’s submission that Arabs usually use 3 names as their identity names and do not use their surname necessarily. The Applicant had provided no independent evidence to support such a claim. The Tribunal noted that the arrest warrant produced by the Applicant was issued using the Applicant’s 3 names plus his surname.
The Tribunal further considered, on the basis of country information before it, that even if the Applicant’s Facebook page were perceived by the authorities to belong to the Applicant, it was implausible that he would be harmed by the authorities for his posting on Facebook (Tribunal decision at [74] – [76]). The Applicant did not claim to be a member of the Muslim Brotherhood, a blogger or a political activist or organiser. He only claimed to have had a few followers, all of whom were his friends, and his only non-Facebook activity was expressing his views to his friends when they met face to face in Australia, by way of social engagement. The Tribunal expressed the view that were returning Egyptians from abroad harmed for posting on Facebook, some mention would have been made in independent sources including DFAT, US State Department and Amnesty International. The implication is that no such mention was made in those sources.
The Tribunal stated that when it accessed the Facebook page submitted by the Applicant, a political cartoon claimed to have been posted on it was not visible, nor were certain threats claimed by the Applicant to have been posted on the page. In the light of independent evidence that fake or anonymous Facebook accounts can be created with enough friends and activities to look convincing, the Tribunal did not accept that the Applicant posted anti-government cartoons or views or anti-military views on Facebook in the public domain. As to documents depicting threats and posts on Facebook (i.e., the threats and posts by ‘Hosam Kamal’ and ‘Wael Zwam’), the Tribunal placed no weight on them because the Applicant had demonstrated that he was able to research internet sites, blogs and contact persons to provide any information required to support his claims, including arranging false information, as he did for this first protection visa application.
The Tribunal placed no weight on the arrest warrants provided by the Applicant, as country information indicated that false and bogus official documents, as well as genuine documents that have been obtained by way of corruption, could be obtained in Egypt, and the Applicant had previously obtained bogus documents to support his earlier protection visa application.
The Tribunal considered the Applicant’s request to “verify” the arrest warrants, but decided not to do so. Relevantly to the application for judicial review before me, the Tribunal stated:
[82]I have considered the arrest warrants that state that the [A]pplicant is charged with “writing and incitement against the institutions of the Egyptian state through social media"”. I discussed with the [A]pplicant information about fraudulent documents in Egypt that state that “although falsification of documents is prohibited by law in Egypt, DFAT advises that it is possible to obtain false copies of a range of official documents”. I note DFAT advises that it is possible to also obtain counterfeit and/or bogus documents, as well as genuine documents that have been obtained by way of corruption.
[83]I have considered the [A]pplicant's request that the Tribunal and the Australian government verify the arrest warrants. DFAT has advised in 2011 that in relation to documents signed by the Office of the Public Prosecution the “Ministry of Justice would be required to see the name of the client and therefore post is unable to verify the document. ... Due to my concerns about the [A]pplicant’s credibility, the need to identify the client to the authorities and the potential delays in waiting for a response and in light of DFAT advice that it is possible to obtain false copies of a range of official documents and genuine documents can be obtained by way of corruption, I do not propose to attempt to verify those documents.
[84]In light of the possibility of obtaining false/bogus documents in Egypt as discussed above, and the Applicant previously obtaining bogus documents for [his earlier protection visa application], I place no weight on the arrest warrants. I therefore am satisfied that the Applicant does not face a real chance of harm due to being charged with the offence of 'writing and incitement against the institutions of the Egyptian state through social media'. I am also not satisfied that the Egyptian authorities hold information about the Applicant that he will be arrested upon his return to Egypt.
The Tribunal further found that, because it did not accept that the Applicant had an adverse political opinion in Egypt, and as there was no information before it to suggest that his Australian partner has an adverse political opinion in Egypt, the chance was remote that the Applicant and/or his partner will suffer significant harm in Egypt or that the life of the Applicant’s partner is not safe if they were to return to Egypt (Tribunal at [88]). The Tribunal affirmed the Delegate’s decision.
The proceeding before this Court
Before this Court, the Applicant and the First Respondent were each represented by counsel. The Second Respondent filed a submitting appearance. The Applicant’s counsel properly conceded that the Applicant’s admission before the Tribunal of participating and propagating the dishonest design of the Applicant’s former migration agent, Mr Issa, significantly reduced his credibility and reliability, and that the Applicant had done himself no favours by severally compromising his credibility and reliability. The Applicant’s counsel accepted that there was no doubt that the Tribunal took a dim view of the Applicant’s general credibility, and that given the Applicant had compromised his credibility and reliability, the task of satisfying the Tribunal that the Applicant was at risk of persecution in Egypt by reason of the expression of his political views was made more difficult.
The Applicant’s case, however, was that the arrest warrant(s), if genuine (as the Applicant claimed), was conclusive proof of the risk of persecution. The Applicant’s counsel submitted that the authenticity of the arrest warrant was, perhaps, the only factual finding that could have been made to overcome the self-imposed credibility difficulties of the Applicant. The Applicant’s counsel submitted that if the arrest warrant was found to be authentic, the only reasonable decision that could have been made was that Australia had protection obligations in respect of the Applicant pursuant to s.36(2)(aa) of the Act.
One arrest warrant, undated
Whilst the Tribunal decision referred to ‘arrest warrants’, two copies of a single certified translation of the one arrest warrant were included amongst the documents before the Tribunal, as evidenced in this Court, each of which copy was certified by the Applicant’s solicitor on a different date as a copy of the original translation. The documents were otherwise identical. I pointed this out to the Applicant’s counsel and he agreed that there appeared to be one arrest warrant relied upon by his client. I find that the Applicant was seeking to rely on the one arrest warrant. Given that the translated content of each copy is the same, nothing turns on the fact that the Tribunal referred to ‘arrest warrants’ in the plural.
The certified translation of the arrest warrant did not disclose any date on the face of the arrest warrant. The Applicant’s counsel suggested that a notation on the face of the translation to ‘Assignment Number’ followed by a string of digits – ‘2235828/2015’ indicated that the original document was dated sometime in 2015. I note, however, that a translated extract of the identity document also submitted by the Applicant and in evidence as being before the Tribunal also includes the notation ‘Assignment Number’ and a string of digits ‘2235831/2015,’ three digits later in sequence to the notation in the translation copy of the arrest warrant. These similarities in the notations on the two translations leads me to conclude that the ‘Assignment Number’ and string of digits on each of the translations (identity document and arrest warrant) is a reference given by the translation services entity, and a date referable to the dates of the translations, and not a date present on the original arrest warrant. I find that the Tribunal correctly identified the arrest warrant as an undated document.
The arrest warrant set out the Applicant’s full name, including his surname. As the Tribunal observed, that surname was not referred to, or used, on the Applicant’s Facebook page or in any of the Facebook posts proffered by the Applicant in support of his claim for protection.
The law
In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 the High Court at [25] said:
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
At [26] the High Court stated, on the facts in that case, that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the courts below to indicate what information might be elicited if the Tribunal in that case were to undertake the inquiry which was said to be critical to the validity of its decision.
The Applicant’s counsel submitted that the possible duty of inquiry by the Tribunal and the basis of such a duty remained unsettled, referring to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [23], [78], [91]-[92]. Counsel also drew my attention to the observation of Logan J in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [50] that “reasonable minds might reasonably differ as to whether a particular inquiry was obvious. I note that his Honour observed at [49] that the singular circumstances of a particular case may, exceptionally, give rise to an obligation on the part of the Tribunal to make its own inquiry with respect to a critical fact, that his Honour was there referring to cases at the margin
The Applicant’s counsel identified the following elements from the above referenced passage in SZIAI:
(a)there needs to be a critical fact;
(b)about which an inquiry could be made;
(c)the inquiry needs to be obvious; and
(d)the information needs to be easily ascertainable.
The fact needs to supply a sufficient link to the outcome in order for the failure by the Tribunal to make such inquiry, in some circumstances, to constitute a failure to review.
There is no general obligation on the Tribunal to make inquiries. An obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error: see Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 at [33], and cases there cited.
The Applicant submissions
The Applicant’s case was that the arrest warrant was a matter of life and death. The Applicant’s counsel submitted that the authenticity of the arrest warrant was a critical fact that would have been determinative of whether Australia owed protection to the Applicant, or that the authenticity of the arrest warrant was capable of having a material effect on the outcome; that verifying authenticity was a line of inquiry the Tribunal could have made; the inquiry was obvious and easily ascertainable, and that the Tribunal did not suggest that the inquiry was futile. The Applicant’s counsel submitted that regardless of past untruths told by the Applicant, if the Applicant was indeed charged with a crime relating to his expression of political opinion in Egypt, and there was a warrant outstanding for his arrest, then Australia would owe the Applicant protection obligations.
The Applicant’s counsel submitted that there was an inquiry that the Tribunal could have pursued to resolve the factual question of whether there was indeed an arrest warrant for charges relating to the expression of political views waiting for the Applicant in Egypt upon his return. He submitted that not only did the Applicant suggest that the Tribunal make those inquiries, the Tribunal identified with some precision what was required to verify the arrest warrant. Thus, the Applicant’s counsel submitted, the inquiry was obvious and the information easily ascertainable. The process in this case was identified by the Tribunal at [83] (see above at [25]).
The First Respondent’s submissions
The First Respondent’s counsel submitted that the mere fact that it might have been reasonable to make an inquiry does not mean that lack of such an inquiry amounts to jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] per Bennett J; Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [63], and see Kaur at [33]. There is no general obligation on the Tribunal to make inquiries, or to make out, or assist in making out, an Applicant’s case for them: Singh at [64].
Counsel further submitted that the Applicant did not clearly identify, with precision, and prove, what ‘inquiry’ the Tribunal should have undertaken, what step or steps could be undertaken by the Tribunal, what ‘information’ would have been ascertained from the inquiry, or why that was ‘easy’, or would have actually succeeded in establishing the ‘authenticity’ of the arrest warrant.
The Applicant had not proved that the ‘authenticity’ of the warrant would have been a critical fact. Indeed, the Respondent’s counsel submitted, the authenticity of the arrest warrant (assuming, but not conceding that an inquiry was obvious and the fact was easily ascertained), was not determinative to the Tribunal’s review. Even if there was an authentic outstanding arrest warrant, and if the Applicant might be arrested on return to Egypt, those steps do not, of themselves amount to significant harm being inflicted on the Applicant: cf. s.36(2A) of the Act. There was no independent evidence before the Tribunal that people returning from abroad were being harmed for posting on Facebook, and the Tribunal found that it was not plausible that the Egyptian authorities would seek to harm the Applicant on account of his Facebook posting.
Consideration
As I have said, the arrest warrant was undated, and named the Applicant by his full name, including surname, which surname did not appear on the Applicant’s Facebook page, and did not appear in the Facebook posts and threats relied on by the Applicant. There was no evidence to substantiate the Applicant’s claim that Egyptians had 3 names and did not necessarily use their surname. In the absence of substantiating evidence, it was open to the Tribunal to not accept that claim. Aside from the reference on the arrest warrant to the Applicant’s full name, the Applicant was not identified as the author or subject of the Facebook page or any content on that page.
Before the Tribunal the Applicant did not propose how the Tribunal could verify the arrest warrant. He did not identify any inquiry that the Tribunal could make. The Tribunal pointed out to the Applicant that the Facebook page did not have his surname, whilst the arrest warrant addressed to him did have his surname on it (decision at [40]). The Tribunal records (at [41]) that at the Tribunal hearing when it discussed with the Applicant DFAT/DIAC information about document fraud in Egypt, the Applicant said he disagreed and suggested the Tribunal could run a check on those documents. He said he did not know how the Tribunal would do this but it is the Tribunal’s job to do so. In the post‑hearing submission dated 4 April 2016 the Applicant’s solicitor submitted that the Tribunal get the document checked:
“as the Applicant told me that this document is 100% genuine and sent to him by his family (I have no reason to doubt him) … he never obtained this documents by bribe or else as suggested or implied by the Tribunal. The Applicant further advised me that it is not within his knowledge or expertise to advise the Tribunal as to how run the checks on these documents (as the Member asked the Applicant “how to run a check”) – but in all events we trust that the Member/Tribunal and the Australian government are knowledgeable & capable to check these documents and this issue falls in their hands only”.
The DFAT advice available to the Tribunal was that it was unable to verify documents such as the arrest warrant, as the Ministry of Justice would be required to see the name of the client (in the present case, the Applicant). The Applicant’s Counsel did not propose any steps that the Tribunal could have taken to overcome this problem of identifying the Applicant to the authorities.
Given that the Applicant’s Facebook page and threats and posts did not refer to the Applicant by his full name, including surname, and so on their face did not disclose the Applicant’s identity, I do not consider that an inquiry that required disclosure of the Applicant’s identity to the Egyptian Ministry of Justice was an inquiry open to the Tribunal to make, acting reasonably. Further, if asking DFAT to verify the arrest warrant was an inquiry that the Tribunal could have made, whether or not it was reasonable to do so, the evidence before the Tribunal was that the inquiry could not be satisfied: DFAT was unable to verify the authenticity of the document. Thus, inquiry of DFAT could not establish, or disprove, authenticity. In these circumstances I am not persuaded that asking DFAT to verify the arrest warrant was an obvious inquiry for the Tribunal to make.
No other inquiry was proposed to this Court by the Applicant’s Counsel, nor by the Applicant before the Tribunal. In the absence of any evidence as to any other inquiry the Tribunal could have made, I am not persuaded that there was an obvious inquiry that the Tribunal could make to verify the arrest warrant.
Further, given DFAT’s advice, whether or not the arrest warrant was authentic was not information that was easily ascertainable. The DFAT advice makes clear that asking it to verify the arrest warrant would not be productive. DFAT could not answer any such inquiry, c.f. the telephone inquiries of the university at which the applicant was enrolled at issue in Wei v Minister for Immigration [2015] HCA 51; (2015) 257 CLR 22, or the telephonic enquiries of the freshwater fish farm referred to by Logan J in SZLGP, to which cases counsel referred.
In the light of the DFAT advice and the country information relied on by the Tribunal at [82] (see above at [25]), I find that information as to whether the arrest warrant was authentic was not easily ascertainable. The Tribunal’s decision not to attempt to verify the arrest warrant was made in the context of the Tribunal’s earlier views and findings as to the Applicant’s general credibility and reliability, and his claims regarding his expression of political opinion on Facebook and of threats and posts on Facebook: see above at [20] and [23]. Given those concerns and findings, I am not persuaded that the present is one of those “rare or exceptional circumstances” where the Tribunal had an obligation to make inquiries. It follows that the Applicant’s ground of judicial review is not made out.
Given the above findings, whether or not the authenticity of the arrest warrant is a critical fact is moot. However, for completeness I turn to consider the issue of whether the authenticity of the arrest warrant was a critical fact as characterised by the High Court in SZIAI, at [20] and [25].
The Tribunal relied on country information that there are millions of users of Facebook in Egypt; that DFAT understands that individuals can generally express their views without state-sanctioned interference, and that DFAT was not aware of any bloggers being prosecuted for posting purely political commentary. On the Applicant’s own evidence, the Tribunal found that the Applicant was not a member or imputed member of the Muslim Brotherhood, he did not belong to any political party or movement, he did not organise any anti-government activity, he did not claim to be a blogger, or political activist or organiser. The Tribunal referred to DFAT country information that while lower profile political activists may be questioned on return to Egypt, they are unlikely to be detained or suffer significant harm.
The Tribunal referred to the lack of mention in the independent sources of returning Egyptians being harmed for posting on Facebook. On the state of the evidence, it was open to the Tribunal not to accept as plausible that the Egyptian authorities would seek to harm the Applicant for posting on a Facebook page.
Even if the arrest warrant was genuine, and the Applicant was under threat of arrest on return, the country information referred to by the Tribunal at [74]-[76] does not show that as a necessary and foreseeable consequence of him being removed from Australia to Egypt there is a real risk the Applicant will suffer significant harm: s.36(2)(aa), as exhaustively defined in s.36(2A) of the Act, namely that he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment: see further, definitions in s.5(1) of the Act.
If the arrest warrant was authentic, this may suggest that the Applicant might be arrested, and might be charged on return to Egypt. Even if that happened, however, given the evidence and country information before the Tribunal which I have referred to above, I am not persuaded that those steps of arrest and charge, of themselves, would result in a real risk of significant harm being inflicted on the Applicant, such that the Tribunal would have found that the Applicant satisfied the criteria in s.36(2)(aa) of the Act. Accordingly, I am not persuaded that the authenticity of the arrest warrant was a critical fact in the Tribunal’s review.
Conclusion
For the Reasons set out above, I conclude that the Tribunal did not fall into jurisdictional error. The amended application must be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 30 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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