CVO17 v Minister for Immigration

[2018] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2025

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether there was any material error or misunderstanding by the Tribunal of the applicant’s evidence – whether the interpretation was so inadequate the applicant was prevent from giving evidence – whether the applicant had a real and meaningful hearing – whether the Tribunal made findings in respect of complementary protection which were not reasonably open – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476.

Applicant: CVO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2014 of 2017

Judgment of: Judge Street

Hearing date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2014 of 2017

CVO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Egypt and his claims were assessed against that country. The applicant applied for a (FA-600) Business visa on 31 December which was granted on 19 January 2014. The applicant arrived in Australia on 12 April 2014 as the holder of a three month period visa. It was not until 30 June 2014 that the applicant lodged the application for protection.

3. The applicant claimed to fear harm in Egypt because of his political opinion as a supporter of the former President Morsi. The applicant also claimed to fear harm by reason of having sought asylum abroad and by reason of the conduct he engaged in in Australia.

4. On 9 March 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate identified in that regard major credibility concerns in relation to the applicant’s claims. 

The Tribunal’s decision

1. The applicant applied for review on 10 April 2015. The applicant was invited to attend at a hearing on 3 April 2017 and a further resumed hearing on 12 May 2017, which the applicant attended to give evidence and present arguments.

2. The Tribunal accepted certain aspects of the applicant’s claimed background, including that he was an Egyptian national from Aljazira Alkhadra, that he was a pharmacist and a Muslim, that he ran three pharmacies, that in principle he may prefer democracy to dictatorship, that he welcomed the election of Morsi and the passing of the new constitution in 2012, and that he voted for the Freedom and Justice Party (“the FJP”) in 2012.

3. The Tribunal identified, however, having significant concerns in respect of the credibility of the remaining aspects of the applicant’s claims and about the documentary evidence the applicant provided. The Tribunal referred to certain photographic evidence provided by the applicant about alleged attendance at public gatherings in Egypt and found it could not rely upon the claim that the photographs depicted him at the Rabaa protest in 2013.

4. The Tribunal accepted the applicant’s more recent evidence of the photographs depicting him celebrating the new constitution in 2012.  The Tribunal found the applicant’s claims about participating in Rabaa not to be reliably supported. The Tribunal did not accept the applicant was truthful about his subjective engagement in politics or his views, perceptions or ramifications of his claimed engagement.

5. The Tribunal did not accept that certain documents the applicant provided in support of his claim to have been arrested in January 2014, were genuine due to discrepancies between the documents and his oral evidence. The Tribunal found the applicant had been an unreliable witness in relation to this issue. 

6. The Tribunal gave no weight to the 2013 police report and a copy of the FJP membership card. The Tribunal considered the applicant’s evidence that he was a member of a long‑term affiliate of the Muslim Brotherhood to be far‑fetched, inconsistent, an exaggeration and generally misleading.

7. The Tribunal found the applicant’s claims that he engaged in activities supporting the FJP to be vague, generalised and exaggerated, and that his claims about political activism and being punished as a result, were unsupported by unreliable evidence.

8. The Tribunal gave weight to the continued validity of the applicant’s passport beyond the time he left to come to Egypt and that he did not seek asylum abroad in Europe when he visited, and the evident freedom of international movement he enjoyed in 2013 and 2014, and to claims he returns to his routines after he visits foreign countries. It was in those circumstances, that the Tribunal rejected the past instance of harm and alleged discrimination that the applicant claimed to have experienced.  The Tribunal found that:

   this is a case where the well of the applicant’s evidence is so poisoned by inconsistency and lack of credibility that I can give no weight to the documents and supporting letters that he has provided over time.

9. The Tribunal found the applicant engaged in political demonstrations in Australia and affiliated with Rabia, MB and other groups for the sole purpose of strengthening his claim to refugee status and disregarded the same consistent with s 91R(3) of the Act. 

10. The Tribunal was not satisfied the applicant faces a real chance of persecution in Egypt for having sought asylum abroad, or for his being imputed to have done so. 

11. In relation to complementary protection, the Tribunal was prepared to accept the applicant’s participation in anti‑government political rallies in Australia may have come to the attention of the Egyptian authorities. Taking into account however, country information and the applicant’s profile, the Tribunal was not satisfied the applicant’s activities or associations in Australia give rise to a real risk of significant harm in Egypt. 

12. The Tribunal found the applicant failed to meet the criteria of s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. The grounds in the amended application are as follows:

   1. The decision made by the Administrative Appeals Tribunal Member is affected by error of law as the Member failed to take my evidence appropriately.

   2. The Tribunal failed to consider that I was forced to flee Egypt as a result of my arrest and not the attack on the pharmacy.

   3. The Tribunal's decision is affected by error of law as the Member misunderstood my circumstances and the findings in relation to complementary protection are contrary to my evidence. I will provide the transcript to demonstrate the error committed by the Tribunal.

   Particulars

   1. The Tribunal Member had evidence about my employment as pharmacist since January 2001 and my first pharmacy was sold in 2014 while I was in Australia. My second pharmacy was opened in 2005 in El Jazira Elkhadra and my third pharmacy also in El Jazira Elkhadra was opened in 2007 and that I reported the reasons why I left Egypt to avoid persecution and harm.

   2. As to the transcript I refer the Honourable Court to pages 7 and 8 of 34 where the Member himself accepted the mistake made by the interpreter and I add that in the transcript on p.11 of 34 lines 20-28 the interpreter did not translate all that I said. I will provide comments before the hearing. On p.24 Of 34 line 18 I said that "the party members were 'motahideen' (meaning persecuted)" yet the interpreter interpreted it as 'chased by authorities'.

   3. The interpreter in his affidavit of 13/10/2017 submitted transcript. He transcribed the English parts and I will provide comments regarding the discrepancies in the transcript by the Tribunal's interpreter. It will be submitted some fourteen days before the final date of 28 May 2018.

   4. I rely on Clarification for some points in the tribunal court statement which I submitted before and I will clarify other matters during the hearing with the honourable Judge on the date of hearing.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The Applicant’s submissions from the bar table

1. From the bar table the applicant suggested that he had requested the Tribunal contact a particular person for the purpose of giving evidence and that he had provided a telephone number in that regard. A transcript of the hearing before the Tribunal has been tendered and provides no support for the assertion by the applicant from the bar table. When that was raised with the applicant, the applicant said it was implicit from the reference to the document that was provided with the telephone numbers that the Tribunal was being invited to contact the person.

2. The response to hearing invitation does not identify any request for the person to be the subject of any evidence. I do not accept that any request was made to the Tribunal to take evidence from a particular person.  Further, the Tribunal does not have a duty to obtain material. I do not accept the applicant’s assertions from the bar table that the Tribunal was requested to take evidence from a particular person. The Tribunal’s reasons do reflect the taking into account of a particular person’s letter at paragraph 58. No jurisdictional error arises by reason of the Tribunal not contacting the telephone number in respect of that person.

3. The Tribunal also identified that the applicant’s own evidence contradicted the substance of the letter that the applicant was a member of the MB, active or otherwise, at any time in his life.  No jurisdictional error arises by reason of the Tribunal not contacting a particular person referred to in the letter. 

4. The applicant took issue with the adverse credibility findings by the Tribunal. The Tribunal provided logical and cogent reasons in support of the adverse credibility findings which relevantly, included the inconsistencies identified by the Tribunal, and the applicant’s delay in having obtained the business visa in coming to Australia, and the applicant’s travel to other countries. There were logical and rational reasons to support the adverse credibility findings as summarised above. No jurisdictional error arises by reason of the applicant taking issue of the adverse credibility findings. 

5. The applicant also took issue with the weight the Tribunal gave to the material the applicant provided. The Tribunal provided logical and rational reasons in support of placing no weight on the material that was identified by the Tribunal in circumstances where the applicant’s credibility had been so materially affected as summarised above.  That finding was open to the Tribunal and cannot be said to be illogical or unreasonable. 

6. The applicant otherwise sought to invite the Court to engage in impermissible merits review, and the applicant sought to explain his background before he left his own family and his parents and came to Australia. This Court does not have power to decide the application on compassionate or discretionary grounds. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

7. The Tribunal was required pursuant to s 91R(3) of the Act to disregard the applicant’s activities that were engaged in Australia solely for the purpose of obtaining a protection visa in assessing the Refugee Convention criteria. It was correct for the Tribunal to do so and the Tribunal did in relation to complementary protection, consider the applicant’s activities in Australia and made an adverse finding in respect of complementary protection that was logical and reasonable. Nothing said by the applicant from the bar table identified any jurisdictional error.

8. The applicant provided a written submission which also took issue with the adverse findings by the Tribunal. For the reasons summarised above by the Tribunal, those adverse findings were open to the Tribunal and were logical and reasonable. There is no material identified to support the assertion that the Tribunal misunderstood the applicant’s claims, or that the Tribunal misunderstood the applicant’s evidence, or that there is any material interpretation error in relation to the applicant’s evidence. The applicant’s written submission is in substance a disagreement with the adverse findings and does not identify any jurisdictional error. 

Ground 1

1. In support of ground 1, the applicant also tendered written submissions “clarification for some points in the tribunal court” which were marked Exhibit C referring to alleged errors in the transcript. The alleged errors are in substance an expansion by the applicant of what it was that the applicant intended to convey. The submissions do not support any material error by the Tribunal in understanding the applicant’s evidence, nor do the submissions support any material error by the interpreter in respect of the applicant’s evidence.

2. The applicant’s contention that he said “private clinics” and that it was incorrectly interpreted as “private rooms” does not identify any actual interpretation error or identify any misunderstanding by the Tribunal in respect of the applicant’s alleged charitable work.

3. The applicant’s complaint in relation to an alleged interpretation error in respect of his political role is not made out and there is no basis to find that the Tribunal misunderstood the applicant’s evidence in relation to his political activities. 

4. The Tribunal made adverse credibility findings in relation to the applicant’s credibility and his alleged role in the FJP that was open to the Tribunal for the reasons given by the Tribunal as summarised above.  The evidence before the Court is insufficient to make out any alleged misinterpretation error. No further transcript has been put on by an accredited interpreter setting out the instances of alleged misinterpretation and the alleged interpretation error, notwithstanding orders made on 31 October 2017.

5. The transcript simply identifies the person listening to the audio recording and transcribing into English.  As such, the transcription is simply a record of what was said in English and no comparative transcript from an accredited interpreter is relied upon. 

6. The applicant in substance is asserting that the Court should rely upon what he now alleges, without any evidence to substantiate those assertions. I find the applicant’s alleged interpretation errors fails for this reason.

7. Further, the alleged misinterpretations do not satisfy the Court that there was any material error or material misunderstanding by the Tribunal of the applicant’s evidence. The Court is not satisfied that the interpretation was so inadequate that the applicant was effectively prevented from giving evidence to the Tribunal. The Court has taken into account the transcript and material before the Court identifying the applicant’s submissions in that regard.

8. In relation to the applicant’s complaint about “private clinics” being translated as “private rooms”, and the interpretation of “motahideen” as “chased by authorities” instead of “persecution” instances of misinterpretations are minor and do not reflect any misunderstanding by the Tribunal of the applicant’s claims. The other alleged instances of misinterpretation on pages 7, 8, 9, 11, 14 and 34 of the transcript do not specifically state what the correct interpretation is alleged to be. The alleged misinterpretations are not material and the Court does not accept that the Tribunal has misunderstood the substance of the applicant’s claims and evidence.

9. The transcript tendered into evidence demonstrates the applicant was able to put forward his claims and evidence and respond to the queries from the Tribunal. On the face of the evidence before the Court, the applicant had a real and meaningful hearing. The Court does not accept the contention that the Tribunal failed to give the applicant a proper opportunity to give evidence and present arguments. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, it is apparent from the Tribunal’s reasons that the Tribunal did take into account the applicant’s alleged arrest in January 2014 and the proposition that his pharmacy stores were attacked. The Tribunal considered the claim but did not accept the applicant’s evidence was credible in relation to that claim and rejected the same.

2. The Tribunal did not accept the applicant’s shops were forced to close due to political pressure. On the basis of the Tribunal’s reasons, the Tribunal understood the applicant’s claim and made an adverse finding that was open to the Tribunal for the reasons given by the Tribunal for the reasons summarised above. The adverse finding in that regard cannot be said to lack an evident and intelligible justification.

3. The Tribunal expressly referred in that regard to the applicant having explicitly contradicted claims in this regard, in his written submissions and in his oral evidence.  Further, the Tribunal was entitled to take into account the adverse credibility findings that were open to the Tribunal in making dispositive findings of the applicant’s claims for the reasons given by the Tribunal. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the Tribunal’s adverse findings in relation to complementary protection were open to the Tribunal for the reasons given by the Tribunal. The Tribunal properly took into account the conduct the applicant had engaged in in Australia, as it is required to do.  The applicant’s assertion of inconsistency in relation to accepting his activities in Australia compared to his alleged political activities in his home country are not inconsistencies in reasoning or findings. The Tribunal provided logical and rational reasons in support of the adverse findings in respect of the applicant’s claims concerning his home country as summarised above.

2. Insofar as the particulars to ground 3 allege errors in the transcript, for the reasons already given, I do not accept that there was any interpretation error. Further, for the reasons already given, I do not accept that any alleged error was material or reflected any misunderstanding by the Tribunal of the applicant’s claims and evidence. No jurisdictional error is made out by ground 3. 

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 September 2018