BPK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 371
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 371
File number: MLG 747 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 11 May 2023 Catchwords: MIGRATION – Protection (Class XA) Visa – review of Administrative Appeals Tribunal – 18 grounds of review – – no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 36, 91R and 424(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) cl 866.221
Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submissions: 4 October 2021 Date of hearing: 4 October 2021 Place: Melbourne (by videoconference) Solicitors for the Applicant: R & J Lawyers Counsel for the First Respondent: Mr A Roe
Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent submitting an appearance, save as to costs ORDERS
MLG 747 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
11 may 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 27 November 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Amended Application filed on 27 November 2018 (Amended Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 24 March 2017 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) visa (Visa).
This matter was heard on 4 October 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit and Family Court of Australia in Victoria at the time due to the ongoing COVID-19 pandemic (Final Hearing).
BACKGROUND
The Court has before it a Court Book filed by the Minister on 1 November 2017, numbering 214 paginated pages (Court Book). The Minister’s Written Submissions, filed 15 November 2018 (Minister’s First Submissions), at [3] to [6], accurately summarise the factual history of this matter. The Court adopts those submissions as its own, with some amendments, as follows.
The Applicant is a 67 year old national of Egypt who arrived in Australia as the holder of a Visitor (subclass 600) visa on 23 January 2014.[1] The Applicant’s Visitor (subclass 600) visa was valid for three (3) months and was for the purposes of visiting her daughter in Australia.[2] On 6 March 2014, the Applicant applied for the Visa.[3]
[1] Court Book (CB) 11, 110.
[2] CB 110.
[3] CB 11-67.
On 14 December 2015, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).[4] The Delegate’s Decision was made on the basis that the Delegate was not satisfied that the Applicant is a person to whom Australia has protection obligations pursuant to s 36 of the Migration Act 1958 (Cth) (Migration Act) and cl 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth).
[4] CB 107-126.
On 23 December 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[5]
[5] CB 127-128.
On 5 January 2017, the Tribunal invited the Applicant to appear before it at a hearing scheduled on 31 January 2017 (Tribunal Hearing).[6]
[6] CB 143-144.
On 30 January 2017, the Applicant, through her representative, provided documentation to the Tribunal in support of her application for review of the Delegate’s Decision.[7] On 31 January 2017, the Applicant and her representative appeared at the Tribunal Hearing.[8]
[7] CB 145-165.
[8] CB 166.
On 2 February 2017, the Tribunal wrote to the Applicant to inform her that it had consented to her request to provide further documents ‘concerning the court proceedings claimed by the Applicant to be currently awaiting trial in the Egyptian Courts’.[9] On 28 February 2017, the Applicant provided the Tribunal with submissions and further documents.[10]
[9] CB 171-172.
[10] CB 173-191.
On 24 March 2017, the Tribunal affirmed the Delegate’s Decision, and on 27 March 2017 it published a written record of its decision and reasons.[11]
[11] CB 194-212.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 195 to 212 of the Court Book. The Minister’s First Submissions, at [10] to [25], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with some amendments, as follows.
The Tribunal’s Decision reveals that the Tribunal considered and engaged with the Applicant’s claims for protection in detail,[12] and raised a number of issues at the Tribunal Hearing with the Applicant concerning her claim.[13]The Tribunal likewise considered the post-hearing submissions and documents provided by the Applicant.[14] The Tribunal then considered in detail the relevant country information for Egypt from a number of sources with particular emphasis on the treatment of Coptic Christians within Egypt.[15]
[12] CB 199-202.
[13] See for example CB 200, [25].
[14] CB 202, [31].
[15] CB 202-205, [32]-[48].
The Tribunal then considered the issue of credibility and a number of authorities which it was to ‘bear in mind’ when considering the Applicant’s credibility, as borne out by the evidence available.[16]
[16] CB 207-208, [49]-[53].
The Tribunal then assessed the Applicant’s claims and considered if the Applicant satisfied the criteria for a protection visa under either ss 36(2)(a) or (aa) of the Migration Act.[17] The Tribunal accepted that the Applicant is a Coptic Orthodox Christian and that throughout her life she had experienced various levels of discrimination, both official and unofficial. It considered that the country information available confirmed that Coptic Orthodox Christians were likely to experience various levels of discrimination in Egypt. [18]
[17] CB 208-211, [54]-[69].
[18] CB 208, [54].
The Tribunal did not accept that the Applicant’s discriminatory treatment during her education and employment, even when viewed cumulatively, amounted to ‘serious harm’ as required by s 91R(1)(b) of the Migration Act.[19] It is noted by this Court that s 91R of the Migration Act was repealed on 18 April 2015, however the repeal applied only to protection visa applications made on or after that date.
[19] CB 208, [54].
The Tribunal noted that the Applicant had raised concerns regarding four (4) incidents which lead to her fleeing from Egypt.[20] The Tribunal found that these claims were either unsubstantiated by documentary evidence or inconsistent with other claims made by the Applicant.[21] Likewise, the Tribunal did not accept that the Applicant’s son was the target of an attempted attack by ‘unidentified masked persons’ which purportedly came about as a result of the Applicant’s actions.[22] The Tribunal afforded greater weight to the evidence given by the Applicant herself than it did to the documentary evidence which she produced, however found that the Applicant ‘does not face a real chance of serious harm in Egypt from the police, intelligence or judiciary, other authorities or anyone else for reasons of her religion or her gender or for any other reasons considered both individually and cumulatively’ (emphasis in original).[23]
[20] CB 208-209, [57].
[21] CB 209-210, [57]-[60].
[22] CB 210, [61].
[23] CB 210, [63].
The Tribunal ultimately found that the Applicant did not meet the criteria in s 36(2)(a) of the Migration Act.
Having found that the Applicant’s fear of persecution was not well-founded, the Tribunal considered whether she met the requirements for complementary protection in s 36(2)(aa) of the Migration Act. The Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Egypt, there was a real risk that she would suffer significant harm.[24]
[24] CB 211, [66]-[68].
The Tribunal therefore affirmed the Delegate’s Decision not to grant the Applicant the Visa on the basis that the Applicant did not meet the requirements of s 36(2) of the Migration Act.[25]
[25] CB 212, [70].
PROCEEDINGS BEFORE THE COURT
On 13 April 2017, the Applicant filed an Originating Application, dated 12 April 2017 (Application). At the time the Application was filed, the Applicant was represented by a different solicitor. On 16 November 2018 a Notice of Address for Service was filed by the solicitors that appeared for the Applicant at the Final Hearing.
The Applicant was provided an opportunity to file an amended application by Orders of a Registrar of the Federal Circuit Court (as the Court then was), dated 25 October 2017. The Applicant filed the Amended Application on 27 November 2018, which added to the grounds raised in the Application.[26]
[26] This was confirmed by the Solicitor for the Applicant at the Final Hearing, Transcript P2:L41-P3:L2.
By the Application and the Amended Application, the Applicant seeks judicial review of the Tribunal’s Decision.
The Applicant relied on the following documents at the Final Hearing:
(a)The Application;
(b)The Amended Application;
(c)Affidavit of Hugh Ford, Solicitor, sworn or affirmed 12 April 2017 and filed 13 April 2017;
(d)Applicant’s Written Submissions, filed 20 November 2018 (Applicant’s First Submissions);
(e)Applicant’s Further Written Submissions, filed 12 December 2018 (Applicant’s Second Submissions); and
(f)Applicant’s List of Authorities, filed 27 September 2021 (Applicant’s Authorities).[27]
[27] Transcript P2:L26-P3:L28.
The Minister relied on the following documents at the Final Hearing:
(a)Affidavit of Jolanta Zofia Kowalewska, Solicitor, sworn and filed 15 November 2018;
(b)Minister’s First Submissions;
(c)Supplementary Outline of Written Submissions, filed 22 November 2018;
(d)Further Supplementary Written Submissions of the Minister, filed 19 December 2018 (Minister’s Third Submissions); and
(e)List of Authorities, filed 23 September 2021.[28]
[28] Transcript P5:L11-P6:L6.
When read together, the Application and the Amended Application contain the following grounds of review:
1.That the applicant who is a Coptic Orthodox Christian from Sohag, Egypt applied for a protection visa under the Migration Act 1958.
2.The delegate to the minister for immigration refused to grant the visa to the applicant on 14 December 2015.
3.The applicant filed a review application with the Administrative Appeals Tribunal (AAT) against the decision of the minister.
4.The matter was set for hearing for 31 January 2017 at AAT before a member.
5.The AAT failed to give proper weight to the evidence in hands to determine if there are genuine threats to the life of the applicant if deported back to Egypt and affirmed the decision of the minister to not to grant protection visa to the applicant.
6.The AAT to reach the decision raised questions on the credibility of the applicant.
7.The applicant substantiated her claim that she would face a real risk of harm if returned back to Egypt. At paragraph 31 there is a list of documents the applicant provided to the AAT during the hearing.
8.The AAT relied heavily on the country information provided by DFAT and also information provided by UK Border Agency and did not take the account of the information provided by the applicant. At paragraph 42, contrary to the information provided by DFAT, the United States International Religious Freedom Report asserted that attacks on minorities still take place in Egypt and also the Egyptian government failed to curb sectarian violence.
9.Again at paragraph 47, the AAT referred to sources stating that Copts continue to face official and societal discrimination. But AAT did not agree with the applicant that due to everyday discrimination and ongoing violence and the applicant's involvement in different disputes with Muslims have exposed her to real risk of harm.
10.The AAT indulged itself to assess the credibility of the applicant. Despite providing relevant evidence, the AAT failed to give due weight to the evidence and thus committed jurisdictional error. The incidents and events told by the applicant were not given any weight to decide the application fairly. In the Li case the Court decided that the Tribunal is required to act in a fair manner.
11.At paragraph 62, the AAT again raised a question on the truthfulness of the applicant which is against the High Court of Australia's ruling in Minister for Immigration and Indigenous Affairs v SGLB 2004 HCA 32.
12.The AAT refused to accept the claims made by the applicant for protection visa. The AAT did not take account of the fact that the applicant belongs to Coptic Christians and also due to her disputes with some of the Muslims in her city she is under serious risk of harm. The AAT itself assumed that the applicant would not be persecuted for reasons of her past work, from police, intelligence or judiciary without considering the prevalent situation and treatment of minorities in Egypt.
13.The AAT failed to act in accordance with law to make fair assessment of the applicant's claims and the documentary evidence provided by the applicant for protection visa.
14.The applicant believes that he has a good case with every likelihood of success.
15.It is in the interest of justice and fairness that this application may be decided on its merits.
16.The applicant reserves the right to add, amend or delete any of the grounds in support of this application.
17.The finding of the Tribunal that there were no prosecution pending in the Courts in Egypt on the allegations of Proselytization is against the material before it.
Particulars
The applicant provided the Tribunal with:
i.a declaration dated 20 January 2014 that a hearing before the Souhag Full Court was listed for 23 January 2014 against the applicant;
ii.a “Telephone Signal” dated 25 November 2013 cautioning the applicant to attend the Attorney General’s Office of Souhag before Mr Aly Suliman, the Chief of the prosecutions (Paragraph 31 at CB 202)
iii.an investigation report of 26 November 2013 prepared by the prosecutor Mr Aly Suliman, regarding the allegations of proselytization against the applicant (At CB91).
iv.a letter from the Director of Public Prosecutions issued to the passport, Immigration and Citizenship authority at Cairo airport to take a legal action as and when the applicant arrives at Cairo airport (At CB104).
v.The acceptance by the Tribunal that it was up to the prosecutor general to add the name of the applicant to the list against which all traveller are checked prior to departing the country (Paragraph 60 at CB 209)
18.The findings of the Tribunal that the applicant was not telling the truth and that the applicant faces no real chance of serious harm for any convention reason, now and into the foreseeable future if she returns to anywhere in Egypt were not open to it.
Particulars
1. The Tribunal relied upon the country information and accepted that:
i.……Copts have long faced some degree of societal discrimination……there is also sporadic harassment of Christians in some areas, for example targeting women with uncovered hair. Discrimination and prejudice are more of a problem in poorer urban and rural areas. (Paragraph 32 at CB 202)
ii.Problems mentioned most frequently as impacting on Christians are restrictions on building or repairing churches…..(Paragraph 34 at CB 203)
iii.Sectarian tensions have increased in Egypt since the 1970s………(Paragraph 35 at CB 202)
iv.…there was an increase in the frequency and sometimes inflammatory anti-Christian statements which in turn contributed to an increase of threats and attacks on Christian communities in some areas. (Paragraph 37 at CB 203)
v.….most serious outbreak of anti-Christian sectarian violence in recent times, which occurred in July and August 2013 when Christian churches, people and property were attacked. (Paragraph 38 at CB 203)
vi.Possibility of the small-scale dispute adopting religious overtones and its escalation into community-level violence. (Paragraph 40 at CB 204)
vii.Although the Christian in Egypt are not in general at the risk of persecution or ill-treatment, but the Christians do face personal and collective societal discrimination and repeated sectarian violence. (Paragraph 41 & 47 at CB 204 & 206)
viii.The Egyptian government failed to respond, prevent sectarian violence and prosecute the culprits of sectarian violence. The failure to prosecute was for the fact that the religious minorities continued to face significant threats of sectarian violence with the reports of lethal sectarian violence continuing over the year. (Paragraph 42 & 27 at CB 204 & 206)
ix.Discrimination on the basis of religion is prohibited under the Egyptian law, however, Copts continue to face official and societal discrimination…………..Copts have suffered for decades from discrimination. (paragraph 44 at CB 204)
x.Egypt have laws that prohibit discrimination on the basis of religion; however, in practice these laws are rarely enforced and even there is no enforcement mechanism. (Paragraph 45 at CB 205)
xi.It is unlikely that any improvement in the legal framework will bring changes to the situation regarding discrimination of religious minorities. (paragraph 46 at CB 205)
xii.Since January 2011 revolution, there have been reports of harassment and intimidation of Christians and Muslims by more conservative Muslims with reports of Christian men and women being encouraged or cajoled to convert to Islam. Coptic Christians across Egypt face discrimination in law and practice. (paragraph 47 at CB 206)
xiii.Copts face official discrimination in Egypt particularly with respect to the appointments to senior positions within the public sector, public universities, security forces, judiciary and Egyptian government. The societal discrimination can create a glass ceiling for promotions a Copts tend to be under-represented in senior civil and military services. (paragraph 47 at CB 206)
xiv.The applicant repeats particulars i to v of Ground 1 above.
(Without alternation)
The Court has also considered the transcript of the Final Hearing where both the Solicitor for the Applicant and Counsel for the Minister provided oral submissions.
It is noted that many of the grounds of review advanced by the Applicant disagree with the findings of the Tribunal. It is not a matter for this Court to engage in fact-finding about the merits of the Tribunal’s Decision. In order for the Applicant to succeed, the Applicant must show jurisdictional error on the part of the Tribunal.
RELEVANT LEGISLATION
Section 36 of the Migration Act provides for the criteria which must be met in order for a person to be eligible for a protection visa:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
[…]
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
[…]
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
[…]
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
[…]
The Court will now consider each ground of review advanced in the Application and the Amended Application.
CONSIDERATION
Grounds 1, 2, 3, 4, 14, 15 and 16
It was conceded in the Applicant’s First Submissions that Grounds 1, 2, 3, 4, 14, 15 and 16 are not proper grounds of appeal and that reliance on these grounds was abandoned.[29]
[29] Applicant’s Written Submissions, filed 20 November 2018, [12].
Grounds 1, 2, 3, 4, 14, 15 and 16 are therefore dismissed.
Grounds 5 and 10
Reliance on Grounds 5 and 10 have likewise been abandoned by the Applicant.[30]
[30] Applicant’s Further Written Submissions, filed 12 December 2018, (Applicant’s Second Submissions), [2].
Grounds 5 and 10 are therefore dismissed.
Grounds 6 and 11
Grounds 6 and 11 relate to the Tribunal’s assessment of the credibility and ‘truthfulness’ of the Applicant. Ground 6 simply confirms that the Tribunal’s reasoning raised questions about the Applicant’s credibility. Ground 11 specifically asserts that in questioning the truthfulness of the Applicant, the Tribunal has acted ‘against’ the majority of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 (SGLB).
In the Minister’s First Submissions, it was submitted that the Applicant’s claims regarding the Tribunal’s credibility findings are misconceived, as the Tribunal’s Decision included an extensive consideration of the Applicant’s evidence from which the Tribunal concluded that the Applicant was not a truthful witness.[31] The Tribunal Decision expressly noted the relevant case law on the issue of credibility,[32] which demonstrates that the Tribunal was on notice of the need to adopt a ‘reasonable approach’ when assessing the Applicant’s evidence and claims.
[31] Written Submissions of the First Respondent, filed 15 November 2018, (Minister’s First Submissions), [30]. CB 210, [62].
[32] CB 207-208, [49]-[53].
I am not satisfied that the Tribunal’s process of reasoning and decision to accept some information and reject other information lead by the Applicant was illogical or irrational: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]. I therefore find that it was open to the Tribunal to make a finding regarding the Applicant’s credibility.
Ground 11 takes issue with paragraph [62] of the Tribunal’s Decision, which relevantly states:
62. Having regard to the problems with the applicant’s evidence which the Tribunal has identified above, the Tribunal does not accept that the applicant is telling the truth about the problems which she claims prompted her to flee Egypt. […]
As stated above at [35], the Applicant relied on SGLB to support the proposition that the Tribunal was not able to raise a question of the Applicant’s truthfulness. The Applicant did not identify with any particularity how SGLB stands for this proposition, and submitted only that it ‘was not open to the Tribunal to find that the [Applicant] was not telling the truth’.[33]
[33] Applicant’s Second Submissions, [20].
In the Applicant’s Authorities, one (1) paragraph in SGLB is identified by the Applicant. The paragraph relevantly reads as follows:
Conclusion: objective unfairness: Unfortunately, the course adopted by the Tribunal was objectively unfair. […] The particular condition “accepted”, and its operation upon the competence and conduct of the respondent, were not within matters of general knowledge or matters of which even an expert and experienced body, such as the Tribunal, could take notice without proof. The result was that, in the procedures adopted by the Tribunal, an injustice was done to the respondent. […][34]
[34] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [90].
The Minister submitted that reliance by the Applicant upon SGLB is misplaced as there is nothing within that judgment that ‘suggests that the Tribunal cannot assess the truthfulness of an applicant and make credibility findings as appropriate’.[35] I agree with this submission and note that the above paragraph of SGLB identified by the Applicant does not provide any assistance to the argument raised in Ground 11.
[35] Minister’s First Submissions, [31].
I find that Grounds 6 and 11 do not give rise to jurisdictional error and are therefore dismissed.
Grounds 7, 8, 9, 12 and 18
Grounds 7, 8, 9, 12 & 18 all broadly relate to the documentary evidence and country information before the Tribunal, which the Applicant submits substantiate her claims.
Ground 7 asserts that the Applicant substantiated her claim that she would face a real risk of harm if returned to Egypt, and confirms the documents provided to the Tribunal.
I note that it is apparent throughout the Tribunal’s decision that regard was had to the documents provided by the Applicant referred to in Ground 7.[36]
[36] CB 202, [31]; 209 [58]-[59].
Grounds 8 and 9 relate to the Tribunal’s reliance on country information from the Department of Foreign Affairs and Trade (DFAT) and other sources, rather than on information provided by the Applicant. In the Applicant’s Second Submissions, the Applicant also took issue with the type of country information relied upon by the Tribunal.[37]
[37] Applicant’s Second Submissions, [13].
Section 424(1) of the Migration Act empowers the Tribunal to ‘get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review’. The Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 relevantly stated, at [11]:
11. […] There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. [...] It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not […] an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have the power to do that.
I find that it was therefore open to the Tribunal to rely on country information as it saw fit, in addition to any documentary evidence lodged by the Applicant.
Ground 12 relates to the Tribunal’s refusal to accept the Applicant’s claims and its alleged disregard for the treatment of minorities in Egypt.
I do not accept the Applicant’s claims within Ground 12 that the Tribunal made assumptions regarding the Applicant’s risk of significant harm without consideration of the situation and treatment of minorities in Egypt. The Tribunal, as was open to it, gave consideration to country information from DFAT and other sources, which deliberated on the treatment of minorities, including Coptic Christians, in Egypt, as well as the country’s law and circumstances more generally.[38]
[38] CB 202-207, [32]-[48].
Ground 18 relates to the country information accepted by the Tribunal which the Applicant asserts are at odds with the finding that the Applicant was not telling the truth and faces no real chance of ‘serious harm’ if she were to return to Egypt.
To the extent it is asserted in Ground 18, I refer to my comments at [37] and [41] above and note that a finding by the Tribunal regarding the Applicant’s credibility or truthfulness was open to the Tribunal.
The Applicant’s Second Submissions contend, in respect of Ground 18, that the finding of the Tribunal that the Applicant faces no real chance of serious harm does not follow from the country information relied upon by the Tribunal,[39] excerpts of which have been reproduced in the particulars of Ground 18. Further, this finding by the Tribunal was said to be made on the basis of ‘inadequate material/information’.[40]
[39] Applicant’s Second Submissions, [19].
[40] Applicant’s Second Submissions, [19].
The Minister submits that Grounds 7, 8, 9, 12 and 18 ‘all fall under the general umbrella of merits-based grounds’,[41] and invite the Court to ‘engage in impermissible merits review including with respect to country information’.[42]
[41] Transcript P6:L24-26.
[42] Further Supplementary Written Submissions of the Minister, filed 19 December 2018 (Minister’s Third Submissions), [5].
I agree with the submissions of the Minister that the Tribunal undertook the requisite ‘qualitative judgment’ in finding that the Applicant did not satisfy the threshold in s 91R(1)(b) of the Migration Act.[43]
[43] Minister’s Third Submissions, [5]-[6]. See Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [35].
Grounds 7, 8, 9, 12 and 18 are therefore dismissed.
Ground 13
Ground 13 relates to the Tribunal’s alleged failure to act in accordance with law ‘to make [a] fair assessment of the [Applicant]’s claims and the documentary evidence provided by the [Applicant]’ for the Visa.
As submitted by Counsel for the Minister, the specific weight which should or should not have been placed upon evidence provided by the Applicant is an assessment within the realm of merits review, an exercise which cannot be undertaken by this Court.[44] Therefore, the consideration of what is a ‘fair assessment’ of the Applicant’s claims based on the evidence cannot be undertaken by the Court and Ground 13 must fail.
[44] Transcript P6:L27-32.
Ground 13 is dismissed.
Ground 17
Ground 17 relates to the Tribunal’s finding that there was no prosecution pending in the Egyptian Courts, based on the documentary evidence before it. It is said by the Applicant that this finding by the Tribunal is ‘against’ the material, and in particular the further documents provided to the Tribunal after the Tribunal Hearing.
At the Final Hearing, the solicitor for the Applicant made the following submissions regarding Ground 17:
MR ABBAS: […] I would rely on from para 8 of the further submissions, which have raised the ground of erroneous assessment of the applicant’s claim. And in the submission, your Honour, the applicant submits that the tribunal did have before it the documents, evidence showing that there were court proceedings against the applicant and which supports the applicant’s fears that if the applicant was to return to Egypt, the applicant would be prosecuted because the prosecution is already pending in the Egyptian court, which the applicant think that the proceedings are unfounded and have been only pressed against the applicant because of religion.[45]
(Without alteration)
[45] Transcript P4:L24-32.
Contrary to the Applicant’s submissions, it is clear from the Tribunal’s Decision that careful consideration was given to the Applicant’s claims that she was being prosecuted in Egypt for proselytization.[46] The Tribunal engaged with the Applicant’s claims during and after the Tribunal Hearing,[47] and noted that it specifically sought documentation from the Applicant in support of the alleged prosecution, and that none were produced in compliance with this request.[48] The Tribunal made specific note of the Applicant’s submission that she ‘tried her best to get all information required by the Tribunal’ when she attended the Egyptian Consulate in Melbourne,[49] and made the following comments in relation to this claim:
59. [...] what the Tribunal had sought from the applicant was not attested copies of the documents already produced but further documents in support of the applicant’s claims that court proceedings had been commenced against her. The applicant said that her lawyer had told her that whenever he went to the court complex he was denied access to the court files and that this was because a group of prominent families had identified her as a person ‘working against their interests’. Given that the applicant has produced documents such as the purported letter dated 30 January 2014 from the Director of Public Prosecutions to the Major-General, Director of Passports, Immigration and Citizenship at Cairo Airport, to which one would have thought she would not ordinarily have been given access, the Tribunal has difficulty in accepting that she has not been able to produce further court documents in corroboration of her claims regarding the court proceedings against her concerning allegations of proselytization.[50]
[46] CB 209-210, [58]-[60].
[47] CB 201, [26]-[27]; 202, [31]; 209, [58]-[60].
[48] CB 209, [59].
[49] CB 202, [31].
[50] CB 209, [59].
At the Final Hearing, Counsel for the Minister submitted that the Tribunal’s consideration of the Applicant’s purported pending prosecution in the Egyptian Courts was affected by adverse credibility findings in respect of the Applicant, as well as the ‘inconsistency in the [Applicant’s] approach’.[51]
[51] Transcript P8:L41-46.
Counsel for the Minister drew the Court’s attention to the judgment of the Full Federal Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123, where it is stated, at [91]:
91. […] In Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 Finkelstein J referred to the function of the Tribunal to make determinations of fact based on the evidence that is before it. His Honour said in this context:
“This must admit of the possibility that the Tribunal will not accept the accuracy of certain ‘facts’ unless they are corroborated in some way. The acceptance or rejection of ‘facts’ is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some ‘facts’ may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.”
I agree with the submissions of the Minister and note that it was open for the Tribunal, in finding that the Applicant lacked credibility and that the relevant evidence regarding the documentary material was inconsistent, to refuse to accept the claims made by the Applicant regarding the prosecution in Egyptian Courts.
I find that Ground 17 does not give rise to jurisdictional error and is therefore dismissed.
CONCLUSION
The Application and the Amended Application fail to identify any jurisdictional error.
The Application and the Amended Application are therefore dismissed.
At the Final Hearing, the Minister sought costs fixed in the sum of $7,853.[52] This amount is in accordance with the costs allowed in pt 2, div 1, item 3 of sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,853.
[52] Transcript P9:L38-44.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 11 May 2023
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