DTS16 v Minister for Immigration

[2018] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTS16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2069

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to accept the premise of the applicant’s claims – whether the Tribunal erred by not raising with the applicant the possibility that his witness statements may be rejected – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 425, 430

Cases cited:

Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

Applicant: DTS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3485 of 2016

Judgment of: Judge Smith

Hearing date: 5 July 2018

Date of Last Submission: 5 July 2018

Delivered at: Sydney

Delivered on: 5 July 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3485 of 2016

DTS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 16 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The applicant is a citizen of Egypt who first arrived in Australia as a student in January 2008 and subsequently obtained further student visas, which entitled him to remain in Australia until December 2015.  In August 2008, he returned to Egypt coming back to Australia in October of that year.

2. The applicant made subsequent return trips to Egypt between August 2010 and November 2010, August 2012 and November 2012, and finally, 16 November 2013 to 28 March 2014.  He went to Egypt in 2010 to visit his ill father and on the latest of his visits to Egypt, he married and now has one child to that marriage.  Upon return from his last trip the applicant made an application for a protection visa, which was lodged on 12 May 2014.  The applicant claimed, in support of that application, that while he remains a Muslim, he believes the Koran is the word of God and rejects the authority of the Hadiths.

3. Hadiths are a collection of traditions containing sayings attributed to Muhammad with accounts of his daily practices, also known as the Sunna from which the title Sunni Muslim derives and together constitute the major source of guidance for Muslims apart from the Koran.  The applicant claimed that he no longer considered himself a Sunni and did not follow the traditional practices of Sunni Islam.  He claims that the Koran requires him to speak out about his views and that he would do that if he returned to Egypt.  He said that doing so would place him at risk of being arrested or killed if he returned to Egypt.

4. On 17 December 2014, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa and the applicant made an application to the Tribunal for review of that decision. The applicant was invited to, and attended, a hearing conducted by the Tribunal on 27 October 2016. At the hearing, the applicant provided to the Tribunal three witness statements corroborating his claims. The Tribunal handed down its decision on 16 November 2016. In accordance with its obligations under s.430 of the Migration Act 1958 (Cth), the Tribunal prepared a written statement recording, amongst other things, its material findings of fact and its reasons for decision.

5. It is important, as will become apparent later in these reasons, to note briefly the structure of those reasons.  After some preliminary matters, including a statement of the relevant law, a brief background to the application and a summary of the applicant’s claims, the Tribunal set out, under the heading “Protection visa application”, a summary of both the applicant’s written claims before the Department and his oral evidence given at an interview with a delegate of the Minister.  That was from [15] through to [26] of the statement of reasons.

6. The Tribunal in the next part of its reasons, under the heading “Review application” (from [27] through to [52]), set out the material which arose before it. This included the oral evidence given by the applicant at the hearing, the questions asked by the Member and the applicant’s response to those questions. It also set out at the end of that section, some country information: see [47] - [52]. Next, under the heading “CONSIDERATION OF THE APPLICANT’S CLAIMS FOR PROTECTION UDER S.36(2) A (REFUGEE STATUS)”, the Tribunal made findings of facts based upon the material before it and concluded that the Tribunal was not satisfied that the applicant met the criteria in sub-s.36(2)(a) of the Act: see [53] - [62].

7. I will return to that passage in a little more detail later in these reasons. 

8. The next part of the Tribunal’s reasons concerned the criterion in sub-s.36(2)(aa), which effectively turned upon its findings under the previous section.  Finally, the Tribunal set out its conclusions and its decision to affirm the decision of the delegate: see [65] - [68].  The critical reasoning of the Tribunal was found at [53] – [62] of its reasons concerning sub-s.36(2)(a) of the Act. 

9. The Tribunal stated, at [53], a brief summary of the applicant’s claims before stating that it did not accept those claims, that is to say, it did not accept any of the applicant’s claims. It gave, in essence, three reasons for that conclusion.

10. The first was at [54] and [55], which I set out below:

    54.At hearing that applicant said that he had ceased attending the Mosque about 8 or 9 months before he travelled to Egypt in 2013 and that he was convinced in his mind and his thoughts that his new beliefs on religion were correct prior to this trip.  However, he attended Sunni Mosques, married a Sunni woman according to Sunni traditions and spoke to nobody but his wife about his new beliefs. If the applicant had genuinely abandoned Sunni Islam and felt obliged to speak out about his beliefs then he would surely have done so during this trip.  However, he failed to do so and I do not accept that he has abandoned his Sunni faith or that he would criticise traditional Sunni beliefs and encourage others to change their religious beliefs and practises if he returned to Egypt.

    55.In reaching this conclusion I have noted the applicant’s claim that while he was convinced in his mind and thoughts that he was no longer a Sunni and had to try and convince others to adopt his new religious beliefs in November 2013 he was not ready for a complete break from his old religion in his heart and his spirit-I do not accept this explanation. When his 2013 visit to Egypt was discussed at the hearing he said that he had attended a Sunni mosque, married according to Sunni traditions and refrained from speaking to anyone about his new beliefs not because he had any doubts about his new beliefs, but because he did not want to upset his mother or cause her problems and because he did not want his wife to divorce him.

11. The second was at [56] and [57] which, in effect, was that the Tribunal found that the applicant had given differing accounts of his experiences during visits to Egypt. 

12. Finally, at [58], was the Tribunal’s concern arising from the applicant’s prolonged stay in Australia as a student, during which he failed to complete more than four low-level courses.  That history suggested to the Tribunal that the applicant was merely seeking to find a way to remain in Australia; in other words, that the applicant’s claims were not based upon a genuine fear of harm.

13. At [59], the Tribunal stated again that it did not accept the applicant’s claims. It found that he had concocted such claims to support his application for protection in Australia.  At [60], it referred to the statements provided to it by the applicant at the hearing and gave them little weight, both because they were written by the applicant’s personal friends and because they related to claims which the Tribunal had rejected.  Finally, at [61], the Tribunal referred to another claim that the applicant had been viewed with suspicion prior to his departure from Egypt in 2008, but stated that it rejected that because of his willingness to concoct his claims for the reasons that he had already given.

14. On the basis of all of those findings, the Tribunal was not satisfied the applicant met the criteria for the grant of a visa and so affirmed the decision of the delegate. 

15. The applicant now seeks judicial review of the Tribunal’s decision. 

Consideration

1. There are six grounds in his application, which the applicant addressed individually in oral submissions at the hearing.  The first five of these grounds can be conveniently dealt with together.  There are two problems with all of the grounds.  The first, is that they each relate to a part of the Tribunal’s statement of reasons which did not, in fact, contain any findings upon which the Tribunal based its decision, but rather were a summary of either the questions it asked or evidence given at the hearing or the country information before it.

2. As such, nothing said in those reasons formed the basis of the reasoning process of the decision and so did not, on any view, even if accepted as erroneous, constitute jurisdictional error.  The second problem with grounds 1 to 5 is that they are premised on the acceptance of the truth of the applicant’s claims.  For the reasons that I have given already, the Tribunal rejected each of those claims. For that reason, the premise in each of the grounds has not been established and each of the grounds must be rejected.

3. The sixth ground concerns the finding at [60] in respect of the witness statements provided by the applicant.  The applicant says two things about these witness statements.  First of all, he complains that they were rejected in the first place. Secondly, he argues that the Tribunal erred by not discussing those statements with him and the possibility that they might be rejected in the manner found by the Tribunal.  The applicant argued that the Tribunal should have discussed those with him and given him the chance to get different witness statements.  On one reading, the second part of ground 6 also suggests that the Tribunal failed to discuss any of the claims which it rejected.

4. On that understanding, that part of the ground must be rejected. As I have noted above in [27] through to [46] of its statement of reasons, the Tribunal set out a summary of what occurred at the Tribunal hearing. That summary makes it clear that, contrary to the implied assertion in ground 6 of his application, the Tribunal did discuss with the applicant his evidence and did suggest to him ways or reasons for which that evidence might not be accepted. See for example, [35], [43], [45] and [46].

5. Returning to the other two ways in which ground 6 could be understood, the Tribunal gave little weight to the corroborating evidence for two reasons, the second of which was essentially because of its rejection of the applicant’s credibility.  In Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, North and Lander JJ referred to the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 and said at [33] that:

   ... it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. ...

   See also Katzmann J at [50].

6. Those principles, which have been applied consistently since the decision in SZNSP, and indeed well prior to that time, apply with only one caveat to this case.  The caveat which is ordinarily applied in respect of the dealing with corroborative evidence is that a finding of credit does not mean that it is open to the Tribunal simply to ignore corroborating evidence altogether.  The question, as Gleeson CJ said in Applicant S20/2002, is often simply one of timing.  For those reasons, I find that there was no error in the Tribunal giving no weight to the witness statements. 

7. Insofar as the applicant asserts that the Tribunal erred by failing to discuss the witness statements with him at the hearing, there are two problems. The first is that the applicant has not established, to my satisfaction, that the Tribunal failed to do so. Secondly, even if he had established that, there would have been no error because the Tribunal is under no obligation to give the applicant, in advance, any opportunity to address its thought processes. It was clear from the Tribunal’s summary of what occurred at the hearing that the applicant’s credit in general was in issue before the Tribunal and in that way the Tribunal gave the applicant the opportunity it was required to give under s.425 of the Act.

8. For those reasons, each of the grounds in the application will be rejected.

9. In his affidavit, the applicant makes a number of submissions about the Tribunal’s decision. The first is that the Tribunal did not consider whether the applicant would be accused of defaming Islam and did not consider that being charged with an offence could be serious harm: [3]. That ground cannot stand in light of the Tribunal’s rejection of all of the applicant’s claims.

10. Paragraph 4 has two sentences. The first sentence is “[t]he RRT did not take into consideration my witnesses because it rejected my claims but did not explain why”. Ignoring the internal inconsistency in that sentence, it is plain that the Tribunal did give two reasons for giving no weight to the witnesses put forward by the applicant: see [60].

11. The second sentence in [4] is “[m]y witnesses confirmed by religious beliefs and the RRT did not say it did not accept my beliefs”.  Contrary to the assertion in that sentence, the Tribunal stated in the plainest of terms that it did not accept the applicant’s claimed beliefs.  It said, for instance at [59], that he had “concocted” his claims. 

Conclusion

1. For each of those reasons, nothing in the affidavit of the applicant exposes any jurisdictional error in the Tribunal’s reasons.  For those reasons, the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     31 July 2018