BGK15 v Minister for Immigration

[2016] FCCA 1424

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGK15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1424

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – application for extension of time – whether the Tribunal erred in making adverse credit findings against the applicant – whether the Tribunal failed to take in account an integer of the applicant’s claims – whether the Tribunal failed to take relevant considerations into account – no arguable jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91A(3), 476, 477

Cases cited:

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: BGK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1856 of 2015

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms N Maddocks
DLA Piper

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1856 of 2015

BGK15

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 1 October 2014 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Egypt and his claims were assessed against that country. The applicant lodged an application for a 456 Business (short stay) visa on 20 December 2012 which was granted on 23 December 2012.

2. The applicant arrived in Australia on 7 January 2013 holding a 456 visa which remained in effect until 7 February 2013.  The applicant made an application for a protection visa on 13 February 2013.  The applicant claims to fear harm in Egypt because of his political opinion, because he is a supporter of the NDP being the ruling political party under the former President Hosni Mubarak. The applicant also claims to fear harm from Islamists because he owned a clothing factory which made Western-style clothes as well as banners and other goods for the NDP.

3. The applicant also claims to fear persecution by reason of his religion and alleged conversion to Christianity.  The delegate made adverse credibility findings in relation to the applicant’s claims and in particular the alleged harm to his factory, his alleged divorce from his wife.  The delegate made the observation that the applicant would have sought protection in Europe in November 2011 if he had a genuine fear of harm in Egypt.  The delegate rejected the applicant’s credit in relation to his alleged detention by Egyptian authorities and rejected the applicant’s credit in relation to the claim he had been sentenced to four years imprisonment after he came to Australia.

4. The delegate rejected the applicant’s application for a visa on 26 September 2013.  The applicant applied for review on 11 October 2013.  The applicant was invited to appear before the Tribunal on 18 July 2014 and then on 29 July 2014 was invited to attend a hearing on 18 September 2014.  The applicant attended on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by his migration agent and the Tribunal also received evidence by telephone from the Reverend John Bailes.

5. The Tribunal referred to the applicant providing substantially different information at different stages of his application.  The Tribunal referred to the applicant’s claims and evidence and found that it did not accept that the applicant had genuinely converted to Christianity.  The Tribunal found that the applicant did not tell the truth about the circumstances in Egypt prior to his departure or his circumstances in Australia.  The Tribunal did not accept that the applicant’s claims about his problems in Egypt or the reasons for his departure were true.

6. The Tribunal was not satisfied the applicant faces harm as a result of any imputed or actual association with Christians in Egypt or because he was perceived not to follow Islam strictly.  The Tribunal considered that the applicant had fabricated new claims to fear harm in Egypt for reason of his claimed conversion to Christianity.  The Tribunal found that it did not accept the applicant had genuinely embraced Christianity. The Tribunal did not accept that his family or community in Egypt thinks he has embraced Christianity and did not accept that the applicant would practice the Christian faith if he returned to Egypt.

7. The Tribunal found that the applicant had fabricated the evidence about his interest in Christianity for the purpose of strengthening his claims to refugee status.  The Tribunal referred to the applicant publishing material on Facebook and found this was done for the sole purpose of strengthening his claims to refugee status and accordingly that it was to be ignored in accordance with the statutory requirements.  The Tribunal found that the applicant practised the Christian faith in Australia and attended Bible study groups and was baptised for the sole purpose of establishing and strengthening his claims to refugee status.

8. The Tribunal noted that under s.91A(3) of the Migration Act 1958 it was required to disregard those claims.  The Tribunal noted however that it must still consider those issues in relation to complementary protection.  The Tribunal found that because it considered the applicant did not have a genuine commitment to Christianity it found that if the applicant returned to Egypt he would not seek to practice in the Christian faith or express his religious beliefs as a Christian.

9. The Tribunal found that the applicant was not a Christian. The Tribunal found that he would not seek to practice his faith because the applicant is not a Christian and not because of his fears of harm as a result of converting from Islam to Christianity. The Tribunal found the applicant did not have a well-founded fear of persecution in Egypt by reason of his religion or that there are substantial grounds to believe that there is a real risk that he will suffer significant harm in Egypt because of his religion. The Tribunal found that the applicant would not pursue Christianity in Egypt and did not accept that there is a real risk the applicant would face harm of any kind as a result of having attended church in Australia and being baptised there.

10. It was in those circumstances that the Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958.  On 8 April 2016, the Court provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant filed an affidavit annexing the transcript but no other document. 

11. The grounds of the application are as follows:

    1. The Court did not consider all matters pertaining to the case.

    2. The Court did not consider that my life is in danger if I go back to my country.

    3. The Court ignored the supporting document to prove that I believed in Christianity instead of Islam, and I will be killed if I go back to Egypt.

    4. I feel that the decision is untrue according to my situation and accepted justice and consider my case.

12. At the commencement of the hearing the Court explained to the applicant that the matter was listed for a hearing under s.477 of the Migration Act 1958 for an extension of time.  The Court explained that an extension of time application required a satisfactory explanation for the delay as well as a sufficiently arguable case to warrant an extension of time.  The Court explained that a sufficiently arguable case required that the Tribunal’s decision be the subject of a reasonable argument that it was affected by a legal error.

13. The Court explained that the legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that in summary it had to be satisfied that there was a reasonable argument that the Tribunal’s decision was made unlawfully or a reasonable argument that the Tribunal’s decision was made unfairly.  The Court explained that if satisfied that there was an adequate explanation for the delay and a sufficiently arguable case it would extend time and fix the matter for hearing on another occasion.

14. The Court explained that if not so satisfied the applicant’s application would be dismissed.  The applicant confirmed that he understood what was said by the Court.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent then submissions from the applicant.  The applicant confirmed that he understood what was said by the Court.  From the bar table the applicant took issue with the adverse findings by the Tribunal in respect of his credit.

15. The applicant made reference to his conversion to Christianity and maintained that it was genuine.  The applicant maintained that there was evidence that he adduced, including evidence from the Reverend Bailes to support his conversion to Christianity and that he feared returning to Egypt because of that conversion.  It is apparent from the Tribunal’s reasons that the Tribunal addressed in detail the applicant’s claims and evidence in respect of his conversion to Christianity.

16. One of the issues raised by the Tribunal with the applicant both in the transcript and in its reasons was the failure of the applicant to raise fears in relation to Christianity at the time of his first interview.  The adverse findings by the Tribunal in relation to the applicant’s alleged conversion to Christianity were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  I accept the first respondent’s submission that in substance what was said by the applicant from the bar table invites an inadmissible merits review. 

17. In relation to ground 1 of the application it is apparent from the Tribunal’s reasons that it addressed the totality of the claims advanced by the applicant.  Ground 1 fails to identify any arguable case of jurisdictional error. 

18. Ground 2 is, in substance, a repetition of the applicant’s claim.  It is apparent that the Tribunal took into account the applicant’s claims and that the applicant had a genuine hearing.  Ground 2 fails to identify any arguable jurisdictional error. 

19. In relation to ground 3 it is apparent that the Tribunal took into account the documentary evidence and the oral evidence advanced by the applicant in relation to his baptism and alleged conversion to Christianity.  There is nothing to support the proposition that the Tribunal ignored the applicant’s claim in that regard or ignored that material.  The adverse findings by the Tribunal in relation to the applicant’s evidence, material and oral evidence of Reverend Bailes was open and cannot be said to be unreasonable.  Ground 3 fails to identify any arguable jurisdictional error.

20. Ground 4 seeks to cavil with the findings of the Tribunal.  On the face of the material before the Court the Tribunal complied with the statutory regime and there is nothing in the transcript, the reasons of the Tribunal or the material before the Court to support the proposition that the Tribunal’s decision was unfair.  The Tribunal’s reasons and the transcript support the applicant having a genuine and real and meaningful opportunity to give evidence and present arguments. The reasons given for the adverse findings were open.  Ground 4 fails to identify any arguable case of jurisdictional error.

21. I take into account the principles and caution given in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. I accept the first respondent’s submission that to seek the ministerial intervention is not a sufficient explanation for the delay. In any event, the merits of the matter are one in which there is no sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

22. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016