DAC16 v Minister for Immigration

[2017] FCCA 2961

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2961

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – temporary protection visa – where Applicant’s grounds of application are unparticularised – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.422B, 424AA, 424A.

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu ShanLiang [1996] HCA 6.

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46.

Applicant: DAC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2259 of 2016

Judgment of: Judge Hartnett

Hearing date: 9 November 2017

Delivered at: Melbourne

Delivered on: 30 November 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2259 of 2016

DAC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 18 October 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 October 2016.  The Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the Delegate’) not to grant the Applicant a temporary protection visa (‘the visa’).

2. The grounds of application are as follows:-

   “(1)   The decision of the Tribunal:

   (a)     is affected by an error of law;  and

   (b)     denied the Applicant procedural fairness.

   (2)     I have made an application for assistance through Victoria Legal Aid and am waiting for a decision”

3. As can be seen from the above-stated grounds of application, they are unparticularised and fairly meaningless.  When asked to expand upon them in oral submissions, the Applicant was unable to, save to submit that there had been a mistake with respect to dates, with the Tribunal looking at the wrong calendar.

4. The Applicant further submitted to the Court that he required a lawyer and, essentially, that he could not proceed without one. The application before the Court indicates that the Applicant made an application for assistance through Victorian Legal Aid prior to the filing of the application on 18 October 2016. That was some 13 months ago now. The Court indicated to the Applicant that he had had ample time within which to secure legal assistance and that the matter was proceeding.

The proceedings

1. On 7 December 2016, the proceedings were listed for final hearing on 19 April 2017.  That date was then administratively altered such that the Applicant obtained a further number of months in which to seek out and obtain legal assistance.  The orders of 7 December 2016 required the Applicant to file and serve written submissions before the final hearing.  He did not do so.  He nevertheless was given an opportunity to make oral submissions at the commencement of the hearing and was assisted by an interpreter proficient in the Arabic and English languages.

2. The Applicant could not describe at all how it was that the Tribunal denied him procedural fairness and again repeated that he required a lawyer before he could conduct the proceedings.  He added further that he had no legal representation before the Tribunal and that he had a right to such legal representation.  This, of course, is not the case. 

Background

1. The Applicant is a citizen of Egypt. On 14 April 2015, he arrived in Australia as the holder of a Class TX (Subclass 771) Transit visa.  He claimed asylum on his arrival and was interviewed at Brisbane Airport by Departmental officers on 15 April 2015.

2. On 14 September 2015, the Applicant applied for the visa.  His claims for protection were relevantly as follows and as accurately set out in the First Respondent’s submissions:-

   a)the Applicant went to the same mosque as some other men who asked him to fight in Syria;

   b)the men told him that, if he did not join the jihad, he would be “KAFER (not Muslim any more) who supports non-believer and accepts the dictators governing”;

   c)the men would have the right to kill him if he were KAFER;

   d)on the night he left Egypt, he rang one of the men (later identified as Sheikh Abd Et-Rasoul (the Sheikh) to tell him he was leaving the country.  He also told the Sheikh to forget about him.  The Sheikh “started to scream on the phone that I am KAFER now and/betray the message and I am coward”;

   e)the Sheikh told the Applicant that he would pay “a big price and that price would be my blood and life”.  The men would find the Applicant and kill him without warning;

   f)the Applicant did not seek protection from police because it might lead to the police finding the Applicant’s family are Islamic Brotherhood sympathisers and his brothers might lose their jobs if exposed;

   g)the Applicant was arrested by military police at a protest on 12 July 2013 at Rabea-ah Square.  He was taken to a prison in Almarj and subjected to abuse (including being sexually assaulted and electrified);

   h)the Applicant was released during the Alqeyamah festival on 9 January 2014.  He had some injuries;

   i)the Applicant feared being investigated by the State Security Department if he reported his concerns to the police.  He stated “this security force is the iron wall to protect the bloody regime in Egypt, which is distinguished by its brutality and controls all aspects of life in there.”;

   j)he had suffered depression after his time in jail;

   k)he feared harm from the men from the mosque; and

   l)if arrested, he would be imputed with pro-Muslim Brotherhood beliefs and he did not deny he sympathised with members of the Muslim/Islamic Brotherhood.

3. The Applicant, through his then-representative, submitted a further statement to the Delegate on 5 May 2016.  The Delegate interviewed the Applicant with his then representative on 11 May 2016.  On 24 May 2016, the Applicant’s representative sent submissions to the Department of Immigration and Border Protection (‘the Department’).  Having regard to the written submissions made by the Applicant and the record of the interview contained in the Delegate’s reasons, it is apparent as submitted by the First Respondent, the Applicant claimed harm due to his political opinion being:-

   a)opposed to fighting in Syria;

   b)opposed to extremist groups;

   c)anti-government;  and

   d)imputed with pro-Muslim Brotherhood views.

4. On 9 August 2016, the Delegate refused to grant the visa.  On 16 August 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision.

The Tribunal

1. The Applicant attended a hearing of the Tribunal on 13 September 2016, following an invitation from the Tribunal to attend a hearing to give evidence and present arguments in respect of his application.

2. By its decision of 3 October 2016, the Tribunal concluded that the decision under review should be affirmed.  The Tribunal noted in paragraph 9 of the Statement of Decision and Reasons (‘the Decision Record’) the following:-

   “Over the course of the hearing I developed significant concerns with the evidence of the applicant.  His evidence was at times contradictory, and often undetailed and vague.  For the reasons below, I developed concerns with the applicant’s credibility, which lead me to doubt his general truthfulness and credibility as a witness.  In particular his changing and inconsistent evidence about the claimed recruitment, his contact with the recruiters despite his claims to fear them, and his evidence about the protest lead me to have doubts about all of his claims and his claim to fear harm on return to Egypt.”

3. The Tribunal found the Applicant to be a national of Egypt who had travelled to a number of countries prior to arriving in Australia.  During the course of the hearing, the Tribunal expressed to the Applicant, concern as to a number of his claims and as to the evidence put before the Tribunal

4. The Tribunal set out the Applicant’s evidence about key factual matters but concluded in respect of each of those matters that they had not occurred as claimed due to the Tribunal’s assessment of the Applicant’s evidence and relevant country information, and because of the Tribunal’s credibility findings.  The Tribunal considered the two main factual matters before it, being the Applicant’s claim that he attended, on 12 July 2013, a demonstration in protest of the Military Council and the Applicant’s claims about his interaction with a group of men who tried to convince him to fight for jihad in Syria, in considerable detail.  The Tribunal decision is replete with relevant matters asked by the Tribunal of the Applicant in respect of his claims where the Tribunal found the Applicant’s evidence to be implausible or inconsistent, or inconsistent with country information. In respect of the Applicant’s claims to have attended the demonstration on 12 July 2013, the Tribunal said in paragraph 32 of the Decision Record, the following:-

   “The applicant’s description of the protest was detailed in some respects, but the applicant was adamant that it occurred after Ramadan had finished, and he did not recall that it occurred on a Friday, the most significant day for worship for Sunni Muslims, especially during the month of Ramadan. The applicant described himself as religious, and has also used the timing of Ramadan in his statement of claims to describe when events occurred, but was unable to link the protest that he claims to have attended to Ramadan, nor remember that the protest was on a Friday. This, coupled with his vague description of his detention and treatment at al-Marg, his inability to explain why his family would not have sought his release from human rights organisations which dealt with disappearances at that time, causes me to doubt that the Applicant did attend this protest as claimed, and was beaten and detained and taken to a prison/detention where he was tortured and beaten. When I consider these doubts with my concerns with his subsequent claims and evidence below, I have reached a state of disbelief in his claims and evidence. I find on the evidence before me and my findings that the applicant did not attend a protest on 12 July 2013, was not beaten and detained by a member of the security forces at that protest, was not taken to al-Marg, was not tortured and beaten and interrogated there, and was not released from detention. I note also that the applicant has consistently claimed that after release he has had no interactions with the authorities and they have displayed no interest in him.  Given that those considered to be associated with the Muslim Brotherhood or other political opponents of the current regime are assessed as ‘likely’ to come under surveillance and monitoring by the authorities according to sources such as DFAT, this causes me to further doubt that the applicant was detained for a period of 5 months and released as he claims, because I also consider it likely that this would lead to ongoing surveillance and monitoring of the applicant by the authorities.”

5. The Tribunal noted in respect of the country information which it considered and put to the Applicant, together with that provided by the Applicant, that in the period between July 2013 and May 2014, the “Egyptian government arrested, detained, charged and sentenced, and mistreated and tortured, thousands of people, actual or claimed Muslim Brotherhood members or supporters”. The Tribunal’s concerns however, were with the Applicant’s specific claims to have been at the protest and to have been subjected to the treatment claimed by him.

6. The Tribunal concluded the Applicant faced no real chance of serious harm or a real risk of significant harm on return to Egypt for any reason connected with his claims to have attended a protest on 12 July 2013, and to have been in prison at al-Marg where he claimed he was interrogated, tortured and beaten and then released.  The Tribunal found that the Applicant did not have a well-founded fear of persecution for any reason connected to these claims.  Further, considering the evidence, the Tribunal did not consider that the Applicant had a real risk of significant harm for any reason connected to his claims.

7. When considering the claim of being recruited to fight for Jihad in Syria, the Tribunal set out in the Decision Record in paragraphs 34 to 43 inclusive its consideration of that claim. The Tribunal said, relevantly, by way of conclusion:-

   “44. I have a number of significant concerns with the evidence of the applicant about his claimed interaction with a group of men who tried to convince him to fight for Jihad in Syria.  The applicant’s explanations became increasingly elaborate and contorted, and he became increasingly agitated when I raised concerns with his claims with him. Having considered my concerns and his responses, I do not accept as credible or plausible his explanations for having kept his telephone number when he moved to Alexandria.  As I noted to him, in his statement, he claims that after the discussion in the mosque, he ‘knew he had to get away’, and he really started to fear the men.  He then quit his job, moved to Alexandria and kept a low profile and told his family and colleagues not to give any information. When considered with these statements, his claims about keeping his phone number and receiving calls from the men are incompatible with these statements – if he has taken such steps as to quit his job, travel to another city and tell his family and colleagues not to tell people where he has gone, then why would he keep his phone number and continue to be contacted by the men? – To not change it because it was a memorable number for his mother or anyone else seems inconsistent with taking these other, involved, steps to conceal his departure for a different location, whether it was a dual sim or not, and even if they had been looking for him in his area this does not seem to answer the question of why he kept his number so they could contact him…His further claim that he called the Sheikh on his way to the airport when he was departing Egypt is also problematic.  The applicant has given a variety of response (sic) as to why he did this and I do not find that any of these explanations are plausible…Even when I tried to explore his explanations for this apparently implausible action, his answers again became elaborate and convoluted, saying that the Sheikh and others had not contacted his family, that his family had not moved apartments as he appears to have claimed at various points, and then saying that the Sheikh’s revenge was not with his family. I do not accept his explanations for why he claims to have called the Sheikh on the way to the airport and then been threatened with death by the Sheikh.  I find that the applicant has fabricated this claim.

   45. In addition to these concerns, I also raised with the applicant my concerns that this claim appeared implausible when considered with available country information…”

8. The Tribunal went on to discuss the country information before it with the Applicant. The Tribunal said of the Applicant’s responses to that discussion:-

   “47. I do not find the responses of the applicant convincing at all.  The news articles and reports that I have read indicate that potential jihadis are generally seeking a path to jihad, which is when they make contact with recruiters.  I accept that in this period Muslim Brotherhood members and supporters were being arrested and detained but as the articles the applicant himself provided, this was a process that continued until at least May 2014. As I explained to the applicant, the scenario he has described seems deeply implausible – that recruiters would pursue a potential recruit who has expressed only a theoretical interest and, when suggested that he travel to Turkey and then Syria directly responds that he does not wish to on (sic) do so on a number of occasions and then travels to other parts of Egypt to avoid the recruiters. The explanations offered by the applicant do not make this more plausible – even if I accepted the other key elements of his story including his attending the protest and detention, which I do not, there would, at that time, have been many Egyptian young men, religious to some extent, who had been detained and mistreated and released and who resented the government, but who may have been more amenable to fighting as foreign fighters in Syria.”

9. The Tribunal concluded the following:-

   “50. … I find that the applicant was not approached by a group of men and the Sheikh who tried to recruit him to fight in Syria, that he was not pressured and then threatened by this group, that he did not quit his job, ask his family and colleagues not to tell anyone where he had gone, go to Alexandria and then to Matri Matrouh to get away from these men, nor that he decided to leave Egypt to get away from these men,  nor that the Sheikh threatened the Applicant at any stage.

   51. For these reasons I find the applicant faces no real chance of serious harm or a real risk of significant harm on return to Egypt for any reason connected with his claim to have been the subject of an attempt to recruit him to fight in jihad, either from these men, including the Sheikh, or from the authorities. I find that the Applicant does not have a well-founded fear of persecution for any reason connected to these claims. Further, considering the evidence, I do not consider that the applicant has a real risk of significant harm for any reason connected to these claims.

   52. I further find that the applicant has been untruthful about the above, his core claims, and that, as I explained to him at hearing, this has led me to have doubts about his general credibility. On the basis of my findings above, I find that the applicant is not credible or a witness of truth.”

10. In relation to the Applicant’s claims about his anti-government political opinion, the Tribunal found the Applicant did not participate in anti-government activities in the past; did not have a profile that placed him at risk of harm; and would not, in the future, undertake political activities.  The Tribunal also considered whether the Applicant faced a risk of serious or significant harm as a failed asylum seeker, however, based on country information, concluded there was no relevant risk.

Consideration

1. The Tribunal dealt with each and every of the Applicant’s claims with considerable care and in some detail. It correctly interpreted and applied the relevant provisions of the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’). Each of the findings made by the Tribunal were open to it on the evidence before it and there was nothing illogical or unreasonable about the Tribunal’s findings, all of which were rational and reasonable.[1]

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

2. There is no particularisation of the grounds of application.  Neither of the grounds can succeed.  There is nothing in the Tribunal’s reasons that suggests the Tribunal made an error of law in considering the Applicant’s claims and making its decision.  Further, there is nothing to suggest the Tribunal failed to comply with its procedural fairness obligations and nor could the Applicant point to anything when asked specifically on the hearing of the application.

3. Part 7, Division 4 of the Act is taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.[2]  On the material and evidence before the Court, the Tribunal complied with the obligations statutorily imposed upon it.  It invited the Applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues arising in relation to the Tribunal’s review of the Delegate’s decision.  The Tribunal brought the relevant issues that were before it to the attention of the Applicant so that he had an opportunity to respond.

   [2] Migration Act 1958 (Cth) s.422B.

1. There is no suggestion, as submitted by Counsel for the First Respondent, that the Tribunal failed to properly disclose information within ss.424AA and 424A of the Act. In the course of reaching its decision, the Tribunal relied on information before it as provided by the Applicant and independent country information not specifically relating to the Applicant. Both of those types of information fall within the exceptions specified in s.424A(3) and therefore are not subject to the particular requirements of s.424A(1).[3] 

   [3] SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, 76-107 per Tracey and Foster JJ

2. The Applicant was not denied procedural fairness.

3. The Applicant’s application is dismissed and costs will follow the event.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 30 November 2017