DIB17 v Minister for Immigration
[2019] FCCA 336
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIB17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 336 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Egypt for reason of religion – applicants not believed – whether the Tribunal decision was unreasonable or whether the Tribunal failed to apply the real chance test considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 438 |
| Cases cited: BEG15 v Minister for Immigration [2017] FCAFC 198 BTW17 v Minister for Immigration [2018] FCAFC 10 Chan v Minister for Immigration (1989) 169 CLR 379 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v SZMTA & Anor,CQZ15 v Minister for Immigration & Anor andBEG15 v Minister for Immigration & Anor [2019] HCA 3 |
| First Applicant: | DIB17 |
| Second Applicant: | DIC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2331 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr O Jones |
| Solicitors for the Applicants: | Firmstone & Associates |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application as amended on 13 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2331 of 2017
| DIB17 |
First Applicant
| DIC17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. The following statement of background facts is derived from initial written submissions by the Minister filed on 7 February 2019.
The applicants are husband and wife, and nationals of Egypt[1] who arrived in Australia on 19 June 2014 on visitor visas.[2]
[1] Court Book (CB) 37; CB 52
[2] CB 118.2
On 24 June 2014, the applicants lodged a protection visa application.[3] The first applicant husband (the applicant) set out his written claims in the protection visa application.[4] Initially, the applicant wife (second applicant) did not advance any independent claims and relied on her membership of the applicant’s family unit. However, she made some independent protection claims in a statement dated 13 June 2017 provided to the Tribunal after the hearing.[5]
[3] CB 24-58
[4] CB 43-46
[5] CB 315
The applicant claimed to fear harm from radical Islamists including the Muslim Brotherhood, Salafists and Wahabis on the basis of his Coptic Christian faith and his religious activities.[6] He also claimed the Egyptian authorities would not be able to protect him because they were unable to control the “rising Islamic fundamentalism” in Egypt.[7]
[6] CB 44-45
[7] CB 46
The applicant appointed an authorised recipient to assist and advise him before the Minister’s Department.[8]
[8] CB 59-61
The applicant expanded on his protection claims in a written statement dated 9 October 2014, in which he claimed to fear persecution for reasons of his religion and “implied political belief”.[9] The applicant claimed that he and the second applicant travelled to Canada in 2007 to visit their son and escape the persecution of “Coptic [Christians] in our country”,[10] but their application for “political asylum” in Canada based on religious persecution was “refused”.[11]
[9] CB 77 at [2]-[3]
[10] CB 78 at [15]
[11] CB 79 at [16]-[17]
In addition, the applicant claimed that when he and the second applicant were deported from Canada and arrived in Egypt, they were held for approximately seven hours by the Egyptian authorities and “extensively questioned” about their activities abroad and their application for asylum in Canada.[12] They were threatened with physical violence and denied access to food, water and medication.[13]
[12] CB 79 at [19]-[21]
[13] CB 80 at [22]
Further, the applicant claimed that after returning to Egypt he and the second applicant were “traumatised by this ordeal”[14] so they contacted their children in Australia and informed them about it. Fearing further imminent adverse attention from the security forces in Egypt, the applicants’ daughter arranged to sponsor the applicants on a visit to Australia.[15]
[14] CB 80 at [23]
[15] CB 80 at [26]
The applicant claimed to fear harm because:
a)the Egyptian authorities were aware that he and the second applicant had applied for “political asylum” in Canada;
b)the Egyptian authorities may have commenced legal proceedings against the applicants;
c)upon return to Egypt, the applicants would be subjected to further arrest and detention;
d)of their advanced age, frail health and their inability to “cope” with another “episode” similar to the one experienced at the “airport security office” in Egypt; and
e)as Coptic Christians they would be subjected to disproportionate mistreatment by the authorities.[16]
[16] CB 81 at [31]-[33]
The applicant also annexed various documents related to the applicants’ claim for asylum and associated court proceedings in Canada.[17]
[17] CB 82-103
In his interview with the delegate, the applicant claimed that during questioning at the airport, the authorities accused him of being a “traitor” and to have “tarnished the reputation of Egypt”.[18] He also claimed, for the first time, to fear harm from the Muslim Brotherhood because he owned a bookshop and sold Christian books. He claimed that members of the Muslim Brotherhood said he was proselytising and came into the shop, destroyed religious books and pictures and beat him.[19]
[18] CB 123.5
[19] CB 327-329 at [28]
The delegate
The applicant was invited to attend an interview before the delegate on 22 October 2014, which he attended.[20]
[20] CB 72; CB 119.9
On 7 November 2014, the delegate refused to grant the applicants protection visas.[21] The delegate was not satisfied that the applicant satisfied the refugee or complementary criteria for the grant of a protection visa.[22] The delegate relied on country information that indicated:
a)the Egyptian authorities generally paid little regard to asylum seekers on return to Egypt;[23]
b)individuals returning to Egypt after several years’ absence would not face any adverse attention on their return because of their absence or on account of any failed application for asylum;[24] and
c)although there had been an increase in tensions between Christians and Muslims and incidents of sectarian violence, not all “Egyptian Copts” experienced discrimination and harassment and most lived peacefully.[25]
[21] CB 112-129
[22] CB 127.5; CB 129.3
[23] CB 124.7
[24] CB 125.3
[25] CB 125-126
The Tribunal’s proceedings
On 17 November 2014, the applicants lodged an application for review with the Tribunal[26] and provided a copy of the delegate’s decision with their application.[27] They also appointed the same migration agents and solicitors to assist them before the Tribunal.[28]
[26] CB 130-132
[27] CB 132
[28] CB 131.7
On 1 July 2016, the Tribunal invited the applicants to attend a hearing scheduled on 25 July 2016,[29] which they accepted.[30]
[29] CB 136-140
[30] CB 141-141
On 19 July 2016, the applicant gave the Tribunal a statutory declaration dated 19 July 2016[31] that included an extensive attachment comprising his medical records.[32] On 23 July 2016, the applicants, by their authorised recipient, requested the Tribunal hearing on 25 July 2016 be postponed for medical reasons.[33]
[31] CB 146-149
[32] CB 150-184
[33] CB 185-186
On 25 July 2016, the Tribunal postponed the hearing and invited the applicants to a re-scheduled hearing on 12 August 2016,[34] which they attended.[35] The applicant provided further medical documents at the hearing.[36]
[34] CB 187-194
[35] CB 198-199
[36] CB 200-204
The hearing on 12 August 2016 was adjourned[37] because the applicants’ daughter, who attended as a support person, was too disruptive.[38]
[37] CB 199
[38] CB 323 at [11]
On 15 August 2016, the Tribunal invited the applicants to a resumed hearing on 19 August 2016,[39] which they attended with their agent.[40]
[39] CB 205-208
[40] CB 216-221; CB 323 at [11]
On 15 August 2016, the Tribunal requested the applicant provide a copy of the decision made by the “Canadian IRB” in July 2009 which he referred to in his “Canadian Affidavit” attached to his statement to the Minister’s Department.[41]
[41] CB 98 at [4]; CB 213-215
On 16 August 2016, the applicants’ representative responded to the Tribunal’s request stating that the applicant did not have a copy of the requested document.[42] On 22 August 2016 the applicants’ representative wrote to the Tribunal and attached a letter from a Canadian lawyer[43] and documents relating to the applicant’s Canadian proceedings.[44]
[42] CB 220
[43] CB 222-228
[44] CB 229-269
On 16 May 2017, the Tribunal sent letters to each of the applicants pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act) inviting them to comment on or respond to information by 30 May 2017. The particulars of the information related to identified inconsistencies in the applicants’ claims and evidence about their:[45]
[45] CB 270-290
a)employment/work history;
b)right to enter the USA;
c)Canadian asylum proceedings;
d)past travel and removal from Canada;
e)daughter and her country of residence;
f)Egyptian passports and whether these documents were confiscated by the Egyptian authorities;
g)hiding and residence in Egypt;
h)interactions with the Egyptian authorities to obtain official documentation upon return to Egypt;
i)health problems;
j)funds in Egypt; and
k)son’s grant of protection in Australia.
On 26 May 2017, the second applicant, by her representative, sought an extension of time to respond to the Tribunal’s invitation on the basis that she was undertaking a dementia assessment.[46]
[46] CB 291
On 1 June 2017, the Tribunal extended the time for the applicants to respond to its s.424A invitations until 15 June 2017[47] and on 14 June 2017, the applicants responded to the Tribunal’s s.424A letters.[48]
[47] CB 308-313
[48] CB 314-317
In a written statement provided after the Tribunal hearing, the second applicant claimed, for the first time, to fear harm on the basis of “current security events” in Egypt and in particular being targeted by “radical Islamists” on the basis of their Coptic faith and Coptic identity. The second applicant also claimed that in the “past few months” there had been “a series of targeting of Coptic Christians in Egypt” including an attack where 32 Coptic Christians were slaughtered on their way to a religious pilgrimage in Egypt. The second applicant specifically requested that the Tribunal to take “the latest events in Egypt” and the applicants’ “vulnerability as elderly Coptic Christians” into consideration when assessing their claims.[49]
[49] CB 315
The Tribunal’s decision
On 29 June 2017, the Tribunal affirmed the delegate’s decision.[50]
[50] CB 321-358
The Tribunal received the Departmental offshore visitor visa file in relation to the applicants’ offshore application for a visitor visa to Australia and noted it contained a non-disclosure certificate issued under s.438(1) of the Migration Act (the certificate), which stated the information the subject of the certificate should not be disclosed because it contained “information relating to an internal working document and business affairs”.[51] The Tribunal found the reason for the non-disclosure was “neither a necessary nor a sufficient basis for public interest immunity” and that the certificate was invalid. It also found that as the certificate was invalid the operation of ss.438(3)(a) and 438(3)(b) was not enlivened. Accordingly, it “treated” the documents as if the certificate had not been issued and found that as the documents related to the applicants’ daughter they were “not relevant to this decision”.[52]
[51] CB 322 at [8]
[52] CB 323 at [8]
The Tribunal accepted that the applicants were nationals of Egypt[53] but had “concerns about [their] inconsistent, changing and not credible evidence as to past events” and what they feared on return to Egypt. The Tribunal did not find the applicants to be “credible, truthful or reliable” witnesses and identified several credibility concerns with their evidence, which it regarded as “significant”.[54] The Tribunal set out some 17 separate concerns in support of its comprehensive adverse credibility findings.
[53] CB 331 at [44]
[54] CB 331 at [48]
The Tribunal was concerned that despite claiming that his Christian bookshop was a source of persecution in Egypt, the applicant failed to mention the bookshop in either his visitor visa application or his protection visa applications.[55]
[55] CB 331-332 at [49]-[54]
The Tribunal was also concerned by the applicant’s “changing evidence” of his whereabouts in the face of past harm by Muslims causing hospitalisation before he went to Canada.[56] It also had concerns about his “inconsistent and changing evidence” about his intentions in leaving Egypt in 2007, and why he travelled to Canada in 2007 and not the USA despite being granted a five year visa.[57]
[56] CB 332 at [55]-[56]
[57] CB 332-333 at [57]-[63]
The Tribunal was concerned about the applicant’s late claim in relation to his fear of harm from the Muslim Brotherhood and the authorities[58] and found the applicants had “developing claims” regarding the claimed harm suffered at the airport. It also found the applicants originally claimed that they were questioned, intimidated and threatened but later claimed they were “continuously and violently” threatened and abused for seven hours.[59]
[58] CB 333-334 at [64]-[66]
[59] CB 334-335 at [68]-[73]
Further, the Tribunal found the applicants’ claim that their passports were taken by the Egyptian authorities was inconsistent with information in their offshore visitor visa applications that the applicant provided both passports to the Australian authorities.[60]
[60] CB 335-336 at [74]-[78]
The Tribunal found the applicants did not give any credible evidence about what happened when they returned to Egypt. It noted they claimed to have suffered “continuous, brutal, serious violence” at the hands of the authorities at the airport but did not go to any hospital or have any medical treatment upon return to Egypt.[61]
[61] CB 336 at [79]
The Tribunal also found the applicants gave inconsistent evidence above living in hiding when they returned to Egypt from Canada.[62] For example, they claimed they lived in hiding in a convent but also specified their home address in their visitor visa applications.[63] The Tribunal also found the applicants were prepared to go and collect their passports from the Egyptian authorities despite claiming to be in hiding,[64] and their ability to obtain documentation from the authorities in support of their offshore visitor visa application undermined their claimed fears of harm.[65]
[62] CB 336-337 at [80]-[86]
[63] CB 337-338 at [87]-[92]
[64] CB 338 at [93]
[65] CB 339 at [94]-[99]
Further, the Tribunal found the applicants had made false claims in order to obtain a visa outcome. For example, the applicants declared in their visitor visa application that their daughter was residing at an address in Egypt and that this was an incentive for them to return to Egypt but she was actually residing in the USA.[66]
[66] CB 339-340 at [100]-[105]
In addition, the Tribunal found the applicant gave inconsistent and “evasive” evidence about whether they had funds in a bank account in Egypt[67] and their health.[68] It also found they were not honest in their current proceedings about the results of their asylum claims in Canada,[69] and provided misleading evidence as to the reasons why their sons were granted protection visas in Australia and falsely suggested that their claims were the same as their son’s.[70]
[67] CB 340-341 at [111]-[114]
[68] CB 341-342 at [115]-[119]
[69] CB 343 at [120]-[129]
[70] CB 343-344 at [130]-[136]
For all of the above reasons, the Tribunal did not find the applicants to be credible witnesses.[71]
[71] CB 344 at [136]
The Tribunal had regard to corroborative material submitted by the applicants in support of their claims and set out reasons why this did not overcome the difficulties it had with their evidence.[72] It also had regard to the age and medical conditions of both applicants but was not satisfied this explained the “varying and significant difficulties” with their evidence.[73]
[72] CB 344 at [137]-[141]
[73] CB 344-347 at [142]-[157]
The Tribunal found the applicants were not witnesses of truth, had a history of “exaggerating and fabricating” accounts in order to obtain visa outcomes and had “made up” their claimed fears to support their protection visa applications in Australia so they could live with their children, not because their claims were true.[74]
[74] CB 348-349 at [158]-[171]
On the basis of independent country information about failed asylum seekers returning to Egypt and having regard to their respective profiles, the Tribunal rejected the applicants’ claims to fear harm as failed asylum seekers from Australia.[75]
[75] CB 349-350 at [172]-[176]
The Tribunal also did not accept that the applicants had been truthful about family members and relatives in Egypt and found they had relatives and friends back in Egypt as well as their home and financial resources.[76] It found the applicants had “not been truthful” about their circumstances in Egypt and was not satisfied they would not be able to afford and access treatment if required. Nor was the Tribunal satisfied that the applicants faced a real chance or a real risk of not being able to access or afford medical treatment.[77]
[76] CB 350-351 at [179]
[77] CB 351 at [181]-[182]
The Tribunal considered extensive independent country information about Coptic Christians, general violence and Muslim extremists in Egypt, but was not satisfied the applicants faced a real chance of harm from the Egyptian authorities, extremist Muslim organisations, any other Muslims or people targeting them on the basis of religion, discrimination, harassment or persecution.[78]
[78] CB 351-352 at [184]-[191]
The Tribunal did not accept that the applicants faced a real chance of serious or significant harm on the basis of their age, gender, medical condition, returning as failed asylum seekers or having previously spent time in Canada.[79] It was not satisfied the applicants were owed protection obligations or met the visa criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act.[80]
[79] CB 353 at [191]-[196]
[80] CB 354 at [198]-[199]
The present proceedings
These proceedings began with a show cause application filed on 24 July 2017. On 13 February 2019, the applicants filed a proposed amended application and sought leave to rely upon it. The Minister opposed the granting of leave because of its lateness.
At the trial on 14 February 2019, I granted the applicants leave to rely upon the amended application, noting that the applicants abandoned the grounds in their original application, the point raised in the amended application is a confined one and the only prejudice to the Minister was one of costs.
I received as evidence the court book filed on 11 September 2017.
The parties augmented their written submissions with oral submissions at the trial.
Consideration
Applicants’ contentions
The single ground in the amended application is as follows:
1. The Tribunal made a jurisdictional error by making a finding of fact which was legally unreasonable or by failing to apply the real chance test.
Particulars
a. The Tribunal found at paragraph 189 of its decision that random attacks had increased against Coptic Christians in Egypt;
b. The Tribunal found at paragraph 189 of its decision that the increase in attacks had not been so great that “all of the approximately 8-9 million Coptic Christians” face a real chance of relevant harm;
c. The Tribunal found at paragraph 189 of its decision that the Applicants, who were identifiable as Coptic Christians, were [not] “more discernible as targets” given their age and medical condition;
d. The Tribunal’s findings were without an evident and intelligible justification as it was not to the point whether each and every one of the Coptic Christians faced a real change of relevant harm. Nor was it to the point whether the age and medical condition of the Applicants made them more identifiable as Coptic Christians.
e. The Tribunal’s findings failed to apply the real chance test as to insist that each and every Coptic Christian face a real chance of relevant harm was not the applicable standard.
The jurisdictional error of legal unreasonableness means that the Authority’s findings may be impugned according to whether or not they have an evident and intelligible justification.[81] The standard required for legal unreasonableness is no longer limited to the classic formulation that the decision must be so unreasonable that no reasonable person could have arrived at it.[82]
[81] see Minister for Immigration v Li (2013) 249 CLR 332 at [76], see also Minister for Immigration v SZVFW [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ
[82] Li at [68], approved in BTW17 v Minister for Immigration [2018] FCAFC 10 at [20]
The real chance test may be stated shortly. It requires a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent.[83]
[83] see Chan v Minister for Immigration (1989) 169 CLR 379 at 389, 398, 407, 429; Minister for Immigration v SZQRB (2013) 210 FCR 505 at [242]-[247]
The applicants submit that the findings of the Tribunal at [189] of its decision fail to observe the above strictures, with the result that the Tribunal has made a jurisdictional error. The Tribunal, in referring to “all of the approximately 8-9 million Coptic Christians”, must have meant each and every Coptic Christian in Egypt. To require the prospect of harm to be so high that the entirety of the Coptic Christian population in Egypt is threatened is said to impose an incorrect and unduly rigorous standard.
Moreover, the applicants submit that the Tribunal’s finding as to Coptic Christians as a whole does not justify the Tribunal’s conclusion that the applicants do not face a real chance of harm. As a matter of logic, if the Tribunal had concluded that each and every Coptic Christian faced a real chance of relevant harm, then it would follow that the applicants faced such a chance. However, the reverse is not true. The mere fact that, according to the Tribunal, each and every Coptic Christian does not face a real chance of relevant harm does not mean that the applicants necessarily do not face such a chance.
The Tribunal’s finding as to whether the applicants’ age and medical condition rendered them more “discernible” as Coptic Christians is said to be a non sequitur. The Tribunal must have been using the term “discernible” according to its ordinary English meaning. The Macquarie Dictionary[84] contains the following relevant definitions:
[84] 7th edition, 2017, page 434
discernible … capable of being discerned, distinguishable …
discern … to perceive by the sight or some other sense or by the intellect; see, recognise or apprehend clearly.
The Tribunal may well be correct in that the age and medical condition of the applicants may not mean that they can be identified more easily as Coptic Christians. However, it does not follow that the applicants have no greater chance of harm than Coptic Christians without their age or medical condition. The question is whether their age and medical condition makes the applicants easier targets for random attacks so as to increase their chance of relevant harm beyond other Coptic Christians.
Minister’s contentions
The applicants contend, with reference to [189] of the Tribunal’s reasons, that the Tribunal made a finding of fact that was legally unreasonable or failed to apply the real chance test.
The applicants further contend that the Tribunal’s findings were without an evident and intelligible justification and that it was “not to the point” whether each and every Coptic Christian faced a real chance of harm. Nor was it to the point that the applicants’ age and medical condition made them more identifiable as Coptic Christians. The applicants also contend the Tribunal failed to apply the real chance test as “to insist that each and every Coptic Christian” faced a real chance of harm was not the applicable standard.
The applicants’ contention is said to be misconceived. First, the applicants’ complaint relies on a selective analysis of the Tribunal’s findings and reasons. The applicants’ focus on [189] of the Tribunal’s reasons ignores the whole of the Tribunal’s findings in relation to its assessment of the chance of harm faced by the applicants as Coptic Christian in Egypt. The Tribunal’s decision and reasons must be read as a whole and given a beneficial construction and should not be read with an eye keenly attuned to the perception of error.[85]
[85] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291
Secondly, and contrary to the applicants’ contention, the Minister submits that the Tribunal did not confine its conclusion about the applicants’ chance of harm to an assessment of whether each and every Coptic Christian in Egypt faced a real chance of harm. Rather, the Tribunal’s express language made it clear that it was considering the particular circumstances of the applicants. For example, after making the relevant finding at [189], the Tribunal stated:
…nor that these applicants in particular, identifiable as elderly Copts (…) in Giza, face a real chance of serious harm or significant harm….
(Minister’s emphasis retained)
The Minister contends that, when [189] is read beneficially, the Tribunal was plainly assessing the chance of harm to the applicants as Coptic Christians and not each and every Coptic Christian in Egypt. In addition, the Tribunal did not require that there be a real chance of harm to “the entirety” of the Coptic Christian population in Egypt as is contended by the applicants. Rather, the Tribunal was stating that, although some Christian Copts suffered harm it did not mean that all Coptic Christians would suffer harm. In this regard, it is apparent that the Tribunal was putting into perspective the scope and scale of the real chance test. It did not ignore that some Coptic Christians in Egypt did face harm but it also did not follow that because some Coptic Christians faced harm, they all faced harm.
Thirdly, the Minister submits that the Tribunal’s findings and reasons in relation to the chance of harm the applicants faced as Coptic Christians must be read as a whole in order to understand whether its findings lacked an evident and intelligible justification. The Tribunal’s assessment is comprehensive and elaborately explained:
a)at [184] of its reasons,[86] noting that, apart from the delegate’s decision record, the applicants had not submitted any country information to it, the Tribunal set out the procedure it adopted at the hearing of putting relevant country information about the situation for Coptic Christians in Egypt to the applicants for comment;
[86] CB 351-352
b)at [185] of its reasons,[87] the Tribunal acknowledged and expressly referred to the 2017 statement in which the second applicant claimed that both she and the applicant feared harm as Coptic Christians and referred to recent attacks on Coptic Christians;
[87] CB 352
c)at [187]-[188] of its reasons,[88] the Tribunal set out relevant country information about the history of events and the treatment of Coptic Christians in Egypt. Critically, that information indicated that:
[88] CB 352
i)widespread attacks against Coptic Christians had ceased;
ii)there was a “low risk” of attacks re-occurring;
iii)day-to-day life for most Coptic Christians in Egypt was not overtly affected by communal tensions;
iv)Islamic State had claimed responsibility for attacking Coptic Christian churches and killing some Coptic Christians;
v)the detention and arrests of perpetrators was likely to increase;
vi)most Egyptians especially those living in urban areas, work, live and socialise together with little regard to religious identity;
vii)high profile incidents in which people are killed or churches attacked were “not a frequent occurrence”;
viii)while there were incidents of communal violence continuing, most “took place” in Minya (Upper Egypt); and
ix)Egyptian authorities were generally committed to preventing communal violence, but acknowledged this commitment may vary between individuals and locations.
The Tribunal’s finding at [189],[89] which the applicants now seek to impugn as being legally unreasonable, was made after the Tribunal outlined the processes it had adopted, its acknowledgment and express regard to the 2017 statement and its comprehensive analysis of relevant country information.
[89] CB 353
Fourthly, and as conceded by the applicants at the trial, the Minister submits that the Tribunal did not find that the applicants “were more discernible as targets”. Rather, it stated:
…The Tribunal is not prepared to accept that their age (and condition) makes them more discernible as targets.
(Minister’s emphasis retained)
Further, the applicants’ contention that it was “not to the point whether the age and medical condition of the applicants made them more identifiable as Coptic Christians” is said to misconceive the 2017 statement. In the 2017 statement, the second applicant stated at [7]:[90]
We also ask the tribunal to take into consideration our vulnerability as elderly Coptic Christians and that we may be relatively easy and discernible targets.
[90] at CB 315
The Minister submits that the Tribunal was responding to a relevant consideration expressly raised by the second applicant, which it was required to do in performing the task it had been jurisdictionally given to perform.[91]
[91] Htun v Minister for Immigration (2001) 194 ALR 244 at [42] per Allsop J (as he then was), with whom Spender J agreed; NABE v Minister for Immigration (No.2) [2004] FCAFC 263 at [55] per Black CJ, French and Selway JJ, with reference to Dranichnikov v Minister for Immigration (2003) 197 ALR 389
In relation to the applicants’ contention that the Tribunal failed to apply the real chance test, this contention also fails on the facts. On a fair reading of the Tribunal’s reasons it is apparent that the Tribunal understood the test that it was required to apply.[92] In addition, as outlined above, the assessment of whether the applicants faced a real chance of harm was directed at the applicants “in particular”, not each and every Coptic Christian in Egypt.
[92] see, for example, CB 350 at [176]; 351 at [182]; 353 at [190]; and 353 at [191]
Resolution
I prefer the submissions of the Minister. The applicants’ attack on the Tribunal decision is directed specifically at [189][93] where the Tribunal stated:
The Tribunal accepts that there have been random attacks against Coptic Christians which have increased, and although this may indicate an increased risk of harm, the Tribunal is not satisfied that this means that all of the approximately 8-9 million Coptic Christians[94] face a real chance of serious harm or significant harm; nor that these applicants in particular, identifiable as elderly Copts (and noting the female applicant’s cross on her hand) in Giza, face a real chance of serious harm or significant harm. The Tribunal is not prepared to accept that their age (and condition) makes them more discernible as targets.
[93] CB 353
[94] Egypt’s population is estimated as between 89-94 million, Coptic Christians make up between 8-10% of the population, 2.5-2.6 (November 2015 DFAT Report), 2.6-2.7 (May 2017 DFAT Report).
It would be an error to consider that paragraph in isolation. The Tribunal had dealt with a significant number of particular claims by the applicants and accepted their age and physical condition. The Tribunal also accepted that they were Coptic Christians. While rejecting a number of specific claims made by the applicants, the Tribunal needed to consider whether the applicants faced a real chance of serious harm (or a real risk of significant harm) simply by reason of their faith, age and state of health.
Paragraph 189 of the Tribunal’s reasons must be read in context. That context is provided by the Tribunal’s reasoning at [186]-[188][95] where the Tribunal stated:
The Tribunal is prepared to accept that the applicants are Coptic Christians who attended church in Egypt, in Canada, in Australia, and that upon return they will continue to seek to attend church in Giza, Cairo (Lower Egypt). The Tribunal accepts that they are elderly and have some medical conditions and that they are not particularly mobile.
The DFAT Reports confirm that since the January 2011 revolution, Egypt had experienced a decrease in law and order. Terrorist attacks occurred regularly since the 2011 revolution[96]. Communal tensions and violent incidents involving Copts had steadily increased in recent decades, fuelled by growing Islamist sentiment; worsening economic conditions; and growing segregation along religious lines. The situation deteriorated after both the January 2011 Revolution, which overthrew President Mubarak, and the July 2013 military intervention, which overthrew President Morsi, due largely to the breakdown of law and order on both occasions. In the lead-up to and following the 3 July 2013 military intervention, Muslim Brotherhood members and supporters responded to the Morsi Government's downfall by attacking Coptic targets across the country. A number of buildings, including churches, were ransacked and/or burned in approximately ten incidents. At least six Copts were killed in the violence. Most, but not all, of the attacks were marked by a slow police response. Further anti-Copt violence occurred in the aftermath of the 14 August 2013 dispersals of pro-Morsi sit-in protests in Cairo. Following the 14 August 2013 dispersals, Egyptian authorities imposed a state of emergency and a curfew across much of the country. These actions, along with a police and military crackdown on protest activity by Muslim Brotherhood supporters, contributed to ending the widespread anti-Coptic violence. Since the Sisi Government came to power, widespread attacks against Copts have ceased. In the 2015 Report, DFAT assessed that there was a low risk of such attacks re-occurring[97], and that day-to-day life for most Copts in Egypt is not overtly affected by communal tensions. Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other's religious identity[98].
The DFAT May 2017 report[99], acknowledges that terrorist attacks have continued and that the Islamic State terrorist organisation has claimed responsibility for attacks targeting Coptic Christian churches and killing of some Coptic Christians (some of which were referred to in the post hearing statutory declaration of the female applicant); DFAT assesses that detentions and arrests of perpetrators are likely to increase as a result. It also confirms that most Egyptians especially those living in the urban areas, work, live and socialise together with little regard to each other's religious identity, and high profile incidents in which people are killed or churches [attacked] are not a frequent occurrence. It noted that while there were incidents of communal violence continuing, most took place in Minya (Upper Egypt) (the applicants also referred to Minya as a source of incidents) and it was assessed that Egyptian authorities are generally committed to preventing communal violence; however, this commitment may vary between individuals and locations.
[95] CB 352
[96] November 2015 and May 2017 DFAT Reports.
[97] Paragraphs 2.18, 4.17-4.23 November 2015 Thematic report, May 2017 report.
[98] Paragraph 2.20, DFAT Thematic Report, May 2017 report.
[99] DFAT Report May 2017 (religion, Christians, security).
In my view, the wording in [189] of concern to the applicants is an example of infelicitous language but not a failure to apply the correct test. When read in context, and with allowance for some loose language, the Tribunal was stating that it did not accept that the applicants faced a real chance of serious or significant harm simply by reason of being Coptic Christians. Further, the Tribunal was not willing to accept that the other attributes of the applicants which it accepted (namely their age and physical condition) increased their risk profile to that of a real chance or real risk of harm. I note in this connection that the discussion of whether those attributes made the applicants “more discernible as targets” was not an invention of the Tribunal but came from [7] of a statutory declaration by the second applicant reproduced at CB 315.
The certificate issue
A non-disclosure certificate had been issued by the Tribunal in this case. No issue or question was raised by the applicants about that certificate either in the original judicial review application or in the amended application. The Minister’s original submissions alluded to the certificate. To the extent that there was an issue that has, in my view, been resolved by the decision in the High Court in Minister for Immigration v SZMTA & Anor,CQZ15 v Minister for Immigration & Anor andBEG15 v Minister for Immigration & Anor.[100]
[100] [2019] HCA 3
The applicants make no complaint about the non-disclosure certificate, but in any event no jurisdictional error is demonstrated in relation to the Tribunal’s approach to the certificate. A denial of procedural fairness will not arise in every case where a Tribunal does not disclose to an applicant a non-disclosure certificate and will depend upon the circumstances of the particular case.[101] While the present Tribunal did not disclose the existence of the certificate to the applicants or the documents the subject of the certificate, the information was not prejudicial to the applicants; nor was it relevant to their applications for protection visas. Further, the Tribunal did not act on the information the subject of the certificate and, critically, neither the invalidity of the certificate nor the Tribunal’s failure to notify the applicants about the certificate or the subject documents gave rise to any practical injustice to the applicants.[102]
[101] Minister for Immigration v BJN16 [2017] FCAFC 197 at [63]
[102] BEG15 v Minister for Immigration [2017] FCAFC 198 at [33], undisturbed by the High Court
Conclusion
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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