DUM16 v Minister for Immigration

[2020] FCCA 1735

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUM16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1735

Catchwords:
MIGRATION – Refugee Review Tribunal – extension of time application – whether the Tribunal failed to consider integers of the applicant’s claim – whether the Tribunal failed to consider a critical item of evidence – whether the item of evidence had the significance asserted.

Legislation:
Migration Act 1958, ss.477(1), 477(2)

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184
ETA067 v Republic of Naura (2018) 360 ALR 228; [2018] HCA 46
Minister for Home Affairs v Buadromo (2018) 267 FCR 320; (2018) 362 ALR 48; [2018] FCAFC 151
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1

Applicant: DUM16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2683 of 2016

Judgment of: Judge Riley

Hearing date: 19 May 2020

Date of last submission: 19 May 2020

Delivered at: Melbourne

Delivered on: 29 June 2020

REPRESENTATION

Counsel for the applicant: Mathew Kenneally

Solicitors for the applicant: Carina Ford Immigration Lawyers

Counsel for the first respondent:	Nicholas Swan
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Mills Oakley Lawyers

ORDERS

1. The application for an extension of time filed on 9 December 2016 and amended on 28 April 2020 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2683 of 2016

DUM16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time to review a decision of the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. By orders made by a registrar on 6 June 2017, the matter was to be listed before Judge Wilson, as his Honour then was, for hearing of the extension of time application, and, if granted, the substantive application. Ultimately, the matter came before me for hearing.

2. The applicant is a citizen of Egypt. He arrived in Australia on 18 February 2011 on a partner subclass 300 visa. He was granted a partner subclass 820 visa on 9 January 2012. On 6 February 2012, he separated from his wife. He applied for a protection visa on 30 April 2012.

The extension of time application

1. The Tribunal’s decision was made on 19 August 2014. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 9 December 2016. Consequently, the application was 808 days late. Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.

2. In considering whether to grant an extension of time, the court must consider:

   a)the length of the delay;

   b)the reasons for the delay;

   c)the prejudice to the parties of the grant or refusal of an extension of time;

   d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and

   e)the merits of the substantive application.

3. As stated, the delay was 808 days.

4. The applicant explained his delay in an unsworn affidavit dated 28 April 2020. A sworn copy of that affidavit was filed in the court on 19 May 2020, after the hearing. The applicant said in that affidavit:

   2.In August 2014, a copy of the decision from the Second Respondent, affirming the decision to refuse my application for a Protection (Subclass 866) Visa was sent to my lawyers, Sabelberg Morcos Lawyers. I was informed of the decision and provided a copy of the decision by Sabelberg Morcos Lawyers. Approximately two weeks after receiving a copy of the decision, though I cannot remember the exact date, Mr Jimmy Morcos gave me legal advice regarding my options. During an appointment at his office, Mr Morcos said to me that I could appeal for review of the Second Respondent's decision to the Federal Circuit Court and lodge a request for Ministerial Intervention under s 417 of the Migration Act 1958 ("the Act").

   3.It was my understanding that I would have 28 days to apply for the ‘next stage’ after I received any negative decision and that this rule applied to every stage of the process. I believed this because when I received the decision to refuse my application from the Department of Immigration and Border Protection in November 2013, a member of my church, Father X, helped me read the refusal decision and he informed me I had 28 days to apply to the Second Respondent. I was also told by friends of mine who were applying for Protection that I had 28 days to apply to the Federal Circuit Court after receiving the Second Respondent’s decision.

   4.During the appointment with Mr Morcos, I was frustrated that it had taken two weeks for them to contact me and then to organise an appointment, because I was conscious of this deadline. I asked Mr Morcos to apply to Federal Circuit Court and he said I should not worry about that at this time.

   5.I was advised that the best option for me was to lodge a Ministerial Intervention request because the chances of that being successful were high. Mr Morcos and I discussed the situation in Egypt and the fact that many people had been lodging requests for Ministerial Intervention with the support of my church, who were ultimately receiving successful outcomes. Mr Morcos said that I should submit the request for Ministerial Intervention first, which would likely take between sixteen to eighteen months. He told me that I had another 14 days to submit this request.

   6.Mr Morcos did not give me advice about the 35-day time limit to apply to the Federal Circuit Court. If my request was unsuccessful, Mr Morcos said that I could apply to the Federal Circuit Court after receiving the negative decision, as this would still be an option that would be available to me. Mr Morcos did not tell me how long I would have after receiving a decision on my Ministerial Intervention request, before I had to lodge an appeal to the Federal Circuit Court and he did not advise me that if I lodged an application for judicial review only after receiving a outcome on my Ministerial Intervention request, that the application would be ‘out of time’.

   7.Mr Morcos has never provided me a summary of advice in an email or letter. He always provided advice to me verbally, either face-to-face at his office or on the telephone.

   8.At the time of the Second Respondent's decision in August 2014, my English was extremely limited. I could write my address and my name in English as it was spelt in my passport. I could not read.

   9.During the appointment with Mr Morcos, a member of Sabelberg Morcos Lawyers helped as a translator, interpreting what Mr Morcos said to me. He did not read the decision to me or any other document that may have accompanied the decision. He simply translated what Mr Morcos said and expressed his own frustrations at the number of questions I was asking. The appointment lasted approximately 15 minutes.

   10.On the basis of the advice I received, I instructed Mr Morcos to make a request for Ministerial Intervention, which he lodged on my behalf on 18 September 2014. Based on the advice of Mr Morcos, I gave instructions to apply for Ministerial Intervention instead of applying for judicial review at this time because I was advised that it was the best course of action and I would be able to apply for judicial review afterwards, if the Ministerial Intervention request was not successful.

   11.On 14 October 2016, I received notification that the Assistant Minister for Immigration and Border Protection, the Hon Alex Hawke MP, personally considered my case and decided that it was not in the public interest to intervene. Accordingly, the Assistant Minister decided not to exercise his power under s 417 of the Act.

   Now produced and shown to me and marked ‘RS-1’ is a copy of the Notification of Ministerial Intervention request outcome, dated 14 October 2016.

   12.Shortly after receiving the decision, Latifa (I cannot remember her full name), who was a staff member of Sabelberg Morcos Lawyers contacted me to discuss applying to the Federal Circuit Court. By this time, I had lost confidence in Sabelberg Morcos Lawyers because of the way they handled my case at the tribunal, for example by failing to provide documents to the Second Respondent that I had given to them, and similar issues that arose when lodging a request to the Minister. I believed that these eITors contributed to the negative decisions I received and because I did not believe they were providing a good standard of service, I decided to find a new lawyer to assist me.

   13.Sometime between 18 and 20 October 2016, I approached the Asylum Seeker Resource Centre (“ASRC”) to seek help to lodge an appeal to the Federal Circuit Court in line with the legal advice I had received from Sabelberg Morcos Lawyers that judicial review was the next step in the review process.

   14.After a number of weeks, the ASRC informed me that they could not assist me to lodge an application at the Federal Circuit Court and provided me with the option of seeking legal assistance elsewhere if I intended to pursue the appeal. The ASRC did not provide advice on deadlines or whether an application had to be made ‘out of time’.

   15.The next day or very soon after being informed by the ASRC that they could not assist me, I lodged an application for review with the Federal Circuit Court. This occurred on 9 December 2016. I did not have legal representation at this time as it was my understanding, based on my understanding of the 28-day deadline that applied, that I had to lodge urgently.

5. The Minister did not wish to cross-examine the applicant on his affidavit. I accept the applicant’s evidence in relation to the delay. The applicant acknowledged the long line of authority to the effect that choosing to pursue ministerial intervention, rather than judicial review, is not an adequate explanation for the delay. However, the applicant argued that, due to poor advice, he was not aware it was an either/or choice. The Minister noted that, even disregarding the time spent on the ministerial intervention, the application was still lodged more than the 28 days that the applicant understood he had after the notice of the refusal of the ministerial intervention.

6. In my view, the applicant’s explanation for his delay is weak. Poor legal advice is not an adequate explanation.

7. The Minister did not point to any prejudice from the grant of an extension of time. Obviously, there could be very grave consequences for the applicant if an extension of time were not granted.

8. Because of the way the matter was listed for hearing, the parties put forward extensive arguments about the merits of the applicant’s substantive case. I turn to that issue now.

The applicant’s claims

1. In paragraph 13 of the applicant’s submissions filed on 28 April 2020, the applicant described his claims as follows:

   a.In 1978 the applicant’s brother, [A], converted to Islam. The applicant’s family were targeted by for (sic) not converting to Islam along with [A] (applicant’s statement (statement) CB 169 – 170 [2] – [5]3).

   3 An unsigned copy was submitted to the Minister (CB 69 – 74). A signed statutory declaration dated 26 June 2012 was submitted to the Tribunal on 19 March 2014 (CB 169 – 174).

   b.In 1997, the applicant, while working as a taxi driver was arrested and charged with blasphemy. He was released without further action (statement, CB 170 – 171, [6] – [7]).

   c.In 2002, the applicant assisted his nephew, [B], to back out of a promise to convert to Islam in order to marry a Muslim woman. The applicant and [B] had to go into hiding to avoid retribution from the woman’s family (statement, CB 171, [8] – [10]).

   d.Prior to the applicant’s departure, the applicant’s Muslim brother, [A] and his son [C] visited the family home regularly and discussed religion with the applicant.

   i.At an Easter feast, the applicant had a conversation with [C] about religion. [C] offered to bring people from the Muslim community to speak to the applicant. For this reason, the applicant formed the view that [C] was being encouraged to convert the applicant by members of his Muslim community (Transcript of Hearing (transcript)4 38 – 40).

   4 Annexure CF-2 to the affidavit of Carina Ford affirmed 28 April 2020.

   ii.The applicant’s brother warned the applicant and [C] not to discuss religion (transcript, (40).

   iii.Nevertheless, the applicant, [A] and [C] had ongoing discussions about religion. During one visit [A] said he was in conflict over which religion to choose. However, the applicant understood that [A] feared converting back to Christianity because of the risk to him and his son (statement, CB 172, [11] – [13]).

   e.[A] warned the applicant to leave Egypt. The applicant left shortly thereafter (Statement, CB 172 – 173 [14] – [15]).

   f.On … 2011, the applicant arrived in Australia on a partner visa.

   g.In 2012, the applicant told his family he was going to return home due to the end of his marriage. The applicant’s family told the applicant not to return home for the following reasons:

   i.[A] and [C] had disappeared.

   ii.[A]’s family had raided the applicant’s sister’s home in … 2012 (the raid)

   iii.[A]’s family concluded from the applicant’s absence in combination with [A] and [C]’s disappearance, that the applicant had persuaded them to convert to Christianity.

   iv.[A]’s family threatened to kill the applicant.

   (Statement, CB 173, [15] – [17])

   Following the Tribunal hearing the applicant produced a police report dated … 2012 in support of this claim (RRT, CB 166 – 168).5

   h.The applicant claimed Egypt was unsafe for Christians since the revolution. The applicant feared harm from the Muslim Brotherhood (Statement, CB 173, [18]),

   i.On …, the applicant’s brother, [D], was shot and killed by a member of the Muslim brotherhood. The applicant produced a death certificate, (CB 148) police report, (CB 149 – 151) and hospital report in support of the claim (CB 152).

   5 At the hearing the applicant said he had provided this document to the delegate. The Tribunal accepted that the applicant’s representatives had received the document from the applicant but failed to provide the document to the delegate prior to the decision or the Tribunal prior to the hearing, see RRT (CB 188 [59]) and Transcript 118 – 120.

The Tribunal’s reasons for decision

1. In paragraph 14 of the applicant’s submissions filed on 28 April 2020, the applicant summarised the Tribunal’s reasons for decision as follows:

   14.The Tribunal made the following relevant findings:

   a.The applicant did not face any risk of harm due to the 1997 blasphemy incident, or the incident with his nephew, [B], in 2002 (RRT, CB 183, [31]; 185 [39], 190 [67]).

   b.The Tribunal did not accept the applicant had previously faced harm for refusing to convert to Islam (RRT, CB 183 [29]).

   c.The Tribunal found the applicant had no intention nor desire to proselytize on return home. Considering the county information, found the applicant would not be at risk of harm as a Coptic Christian in the foreseeable future (CB 191 – 192, [71] – [76]).

   d.The Tribunal did not accept the applicant’s brother had been deliberately shot on … 2013. The Tribunal found he was killed in clashes between pro- military and Muslim Brotherhood supporters. The Tribunal found [D] was “accidentally” killed by someone seeking to harm a pro-military or pro-brotherhood supporters (RRT, CB 190 [64]).

   e.The Tribunal rejected the applicant’s primary claim that he was at risk of harm due to his brother and nephew’s disappearance. The Tribunal’s central reason for rejecting the claim was its finding that the police report was not genuine (RRT, CB 189, [61]). The Tribunal found the timing of the incident was implausible. In particular, it was not plausible that:

   i.      the applicant’s family would not have updated him about [A] and [C]’s circumstances until after his separation from his wife;

   ii.     [A] would decide to convert to Christianity; and

   iii.     that [A]’s Muslim family would have been aware of [A]’s conversations with the applicant about religion and would seek out the applicant at his sister’s residence a year after his departure.

   The Tribunal also observed that the applicant had not faced any harm due to his assistance to his nephew, [B] in 2002.

   f.The Tribunal relied on the finding that the police report was not genuine to support its further findings that [the] applicant had not had any detailed conversations about religion and conversion with his brother and nephew (RRT, CB 189 [63]), and that his brother had (sic) nephew had not, in fact, converted (RRT, CB 190, [67]).

   15.The Tribunal concluded the applicant did not satisfy the protection criteria as he was not a refugee, nor did he face a real risk of significant harm on return (CB 193).

Ground 1

1. The first ground of review in the application filed on 9 December 2016 and amended on 28 April 2020 (“the application”) is:

   The Tribunal denied the applicant procedural fairness and/or failed to complete its statutory task by failing to consider an integral part of the applicant’s claim to fear serious or significant harm for reason of his religion.

   Particulars

   a.The applicant claimed to fear serious harm and/or significant harm on return to Egypt as he was a Coptic Christian from the Muslim brotherhood and his older brother’s Muslim family.

   b.The applicant claimed that:

   i.his older brother and nephew were Muslim;

   ii.sometime after the applicant left Egypt in 2011, his brother and nephew went missing;

   iii.his brother’s Muslim family suspected the brother and nephew were missing because the applicant had persuaded them to convert to Christianity;

   iv.the brother’s Muslim family raided the applicant’s sister[’]s home on … 2012 looking for the applicant; and

   v.the applicant was suspected of involvement in his brother and nephew’s disappearance because he had himself been missing and he had previously had conversations about religion with his brother and nephew.

   c.The Tribunal rejected these claims, primarily because it found the police report was not genuine (Reasons for decision, [61] – [63]).

   d.The Tribunal found it was not plausible that the applicant’s brother’s Muslim family would suspect the applicant was involved in his brother and nephew’s disappearance.

   e.The Tribunal in making this finding failed to consider the applicant’s claims, or integral parts of his claim that:

   i.the brother’s family suspected the applicant of being involved in the disappearance because the applicant himself had disappeared; and

   ii.the brother’s family would have been aware of their conversations about religion because the applicant’s nephew disclosed the conversations to members of the Muslim community.

   f.Had these claims or integral parts of the claim been considered the Tribunal could have accepted the applicant’s claims to fear harm from his brother’s family.

   g.Accordingly, the Tribunal fell into jurisdictional error.

1. The applicant submitted orally that he had clearly raised two claims that the Tribunal did not consider. Those claims were that:

   a)he was suspected of being involved in his brother’s disappearance because they were simultaneously absent; and

   b)he was suspected of being involved in his brother’s and his nephew’s disappearance and their potential conversion to Christianity because his nephew had discussed with his family the conversations the applicant, his brother and nephew had had about religion.

2. The applicant said that he had clearly raised a claim in his statutory declaration made on 26 June 2012 (CB173) that:

   … Our home in Egypt was raided by [A]’s family, who concluded that my absence and [A and C’s] disappearance was due to their conversion to Christianity after my persuasion.

3. The applicant also submitted that the claim was further explained at the hearing before the Tribunal, when the applicant said that:

   a)prior to the raid, people had come to his sister’s house asking about him, A and C1; and

   b)the raid occurred at a time of religious and civil strife in Egypt2.

   1 The transcript of the Tribunal hearing (“the transcript”), page 77, exhibit CF-2 to the affidavit sworn by Carina Ford on 28 April 2020.

   2 Transcript, pp.79-80.

4. The Tribunal discussed the issues relating to A and C at length (CB185-190), including by saying:

   Conversion of [A] and [C]

   40.The applicant’s main claim relates to the conversation of his brother, [A], to Islam, and visits by [A] and [A]’s son [C] to the applicant, at which they discussed religion.

   41.The applicant discussed the conversations he had had with [A] and [C]. The applicant’s evidence on these events was fulsome but vague on detail about times and specific events. The applicant speculated that the reason behind these visits was for [A] or [C] to convert the applicant and the rest of his family to Islam, but that over time they wavered and were unsure whether to pursue Christianity because of the applicant’s conversations with them, but did not indicate that either of them had said anything to him on which he based this speculation. He said that [A] and [C] would come to his place, and sometimes other family members would be there. He said that they would both become dismayed by the applicant’s speaking to them about Christ and Christianity, and would not come for a time and then return. The applicant said that [C] told the applicant he would bring some people to the applicant to talk about Islam, which made the applicant nervous he said. The applicant said that they came to the point where they were willing to listen more and at this point he gave [C] some brochures. These matters developed, the applicant said, until the point where he was about to get married and leave Egypt.

   42.I asked when the applicant had his last conversation with them. He said that the last conversation, [A] was frightened of problems. The applicant said at this time he was busy preparing documents for his engagement. He said that from a time before he left until now he has not spoken to [A] or [C], but he asks his relatives if they are ok and if they come to visit. He said that his family would just tell him that they were ok.

   43.I asked the applicant whether his brother had converted to Christianity. He said he did not know, his sister did not know, he just vanished, and then these people came looking for the applicant because they had a background before from [C] as he had come to preach to the applicant and his family and these other people knew who he was speaking with. He said that these people have asked for him specifically.

   44.Later in the hearing I explained to the applicant that I was not sure I believed that [A] or [C] had converted to Christianity because the applicant said he did not know and because according to his statement, the last thing [A] had said to the applicant was that he did not want to hear any more about Christianity, which despite his speculation I did not think indicated [A] was interested in converting to Christianity.

   45.The applicant said that it was there in the police record of the attack on his sister’s house (the family home). We then spent a considerable amount of time discussing why I did not have a translated copy of the report before me, which appeared to be an error which the agent had not followed up on. The applicant said that the police report showed the demands that were being made for the applicant to his sister by them and they went to the police station, this was all in the police report.

   46.I explained to the applicant that even if I got the translation of the report I may have doubts because of the facts underlying these claims; for many years after [B]  came back to Christianity, nothing happened to the applicant connected to that incident, I was not sure I accepted that the applicant was in hiding for 8 years, the last words the applicant said that [A] had said to him did not indicate he wished to convert, so there was little information to base a view that [A] or [C] have converted to Christianity, or that anyone is looking for him in relation to that, or that he will be harmed because of that. Further, I explained to the applicant that the claimed attack of his sister’s house occurred at the time that the applicant was coming to the realisation that his marriage was ending and he would therefore not have a basis to remain in Australia, and that this timing concerned me, and may indicate to me that the applicant fabricated this claim as it became clear to him that he was not able to remain in Australia married to his ex-wife. I explained that I was not sure his sister’s house had been invaded, or that hey said anything to her about the applicant and/or [A]. I explained I was not sure I accepted that people were looking for him. He said that in the report they mentioned him by name. He said that he had sworn to tell the truth. He said that this was indeed when his marriage collapsed but he was inclined to get back to his family until they told him about all of this.

   Since the applicant’s departure from Egypt

   47.Since his departure, the applicant has claimed that his family have been telling him that they are fine. Then, when his marriage was breaking down, he told them that there was a possibility that he may come back to Egypt and then they told him that these people have invaded his sister’s house. He said that before this attack, she told him that there had been people inquiring about the applicant and about [A] and his son, that has happened once or twice, just some people inquiring, then the attack of the house has happened afterwards, and then the police attended. He said that he knew that around that time Egypt had had problems and it was difficult for the police to attend speedily. I asked when this was and he was unable to answer. I asked then what problems he was referring to. He said he knew that police were not attending speedily, as Egypt has disturbances everywhere. He then said that he thought his sister’s report was two years ago.

   48.I asked if he was able to tell me when his family told him about the attack. He said it was after the issues between him and his wife, he thought after … two years back in 2012 when he came out of the court. I asked what his family told him and he said that they told him they invaded his sister’s and are looking for you. He said that his family were not telling him before this because they did not want to worry him, and his family told him that some people were searching for him, his family had told them he was in Australia and these people said that ‘he is the one who got his brother back to Christianity.’

   49.I asked him where his family were living now and he said that his sister had left the house that had been invaded, and she lives with his other siblings on and off. He said that she was injured in the attack on the house.

   …

   58.I have carefully considered the claims of the applicant and the documentation supplied in relation to [A] and [C], the attack on the applicant’s sister’s house and the death of his brother [D].

   59.I accept that the applicant provided the police report of the attack on his sister’s house to his representative earlier in the process. The representative has provided a translated copy of this only after the hearing, despite it being clear that this was not before the delegate. I accept that the late provision of the translation is not at all to do with the applicant, who thought it had been provided to the delegate. However, as I put to the applicant, I had considerable concerns with this document and the information it contains.

   60.I raised with the applicant at hearing that there is information that purported official documents which are non-genuine are able to be obtained in Egypt. I noted to him that I was concerned about the timing of this attack, apparently coming at the time when his marriage was breaking down. I noted to him that I had difficulty with the basis of the claims, because for many years after [B] came back to Christianity and the applicant assisted in this, the applicant had not been charged with assisting apostasy or been harmed in any way, as I have found above. The applicant’s claims about what [A]said to the applicant the last time the applicant spoke to him does not indicate to me that [A] was in any way in the process of conversation, despite the applicant’s speculation about why [A] said this.

   61.Having now had the opportunity to consider the report I find that the police report is not genuine. This is largely because of the timing of this claimed incident. The applicant left Egypt in … 2011, and had his last conversation with [A] sometime before this. A year later, at the time when his marriage is breaking down and he is separating from his wife, the attack on his sister’s house allegedly happens after some earlier incidents of people coming to her house and asking for her brothers, and a police report is provided. I do not accept that his family did not tell him earlier because they did not want him to worry. He claims that his sister told him these people came to the house a few times before the attack in … 2012 and asked for the applicant by name and asked for [A]. I find it implausible [A]would decide, in the absence of the applicant who he had conversations about faith with, to go through the dangerous and risky process of verting back to Christianity sometime between the applicant’s departure and … 2012, that his Muslim family or other Muslims would know about the applicant’s conversations with [A] some considerable time before this and make a connection and then seek out the applicant at a place he has not resided or been at for at least a year, and that this culminates in the attack on the house shortly before the applicant separates from his wife and therefore has no basis to remain in Australia. When I consider these concerns with country information indicating that purported official documents which are non-genuine are able to be obtained in Egypt, I find that this timing is not a coincidence but has been manufactured by the applicant or his family to support his claim for protection. I am further supported in this finding because the applicant undertook activities similar to this in relation to [B] and nothing happened to him for a period of 8 years. I find that the police report about the attack on his sister’s house has been fabricated and I give it no weight. I specifically reject that the applicant is on a watch list at the Republic’s borders or is of any interest whatsoever to the authorities for any reason.

   62.Because of this finding I give the medical report in relation to the applicant’s sister’s injuries at this time little weight, and find that it does not support a conclusion that she was injured in the manner claimed.

   63.On the basis of these findings, but also because there is little evidence outside the police report to indicate that they were considering or ever intended to convert to Christianity, I find that [A] and [C] have not converted to Christianity, nor that they would be suspected of doing so and the applicant blamed for this. I further find on the basis of my above findings that the applicant had only general discussions with [A] and [C] and not the detailed discussions of faith he has claimed. His evidence on this was vague and speculative. I do not accept that he has proselytised or evangelised to [A] or [C].

   …

   69.I do not accept that the applicant’s brother [A] has re-converted to Christianity, has disappeared, or would be believed to have converted. I do not accept that [C] has converted, I do not accept that the applicant’s sister’s house was attacked, or that people have come there asking about the applicant and [A]. I find that this whole sequence of events has been invented by the applicant. I find that there is no reason connected with his family that he will be harmed on return.

5. The applicant argued that, in deciding that the police report about the raid was not genuine, the Tribunal did not afford him procedural fairness, because, in making that finding, the Tribunal did not consider two integers of his claims that went to the likelihood of A’s family suspecting that the applicant had engineered A’s disappearance. Those integers of the applicant’s claims were the claims that A’s family suspected the applicant of involvement in A and C’s disappearance because:

   a)the applicant and A were simultaneously absent; and

   b)C had talked about the applicant, A and C’s religious discussions with other people.

6. The applicant submitted that the Tribunal did not take into account, and did not mention, his argument that he was suspected of involvement in A’s disappearance for the very reason that he was absent at the same time as A. The applicant submitted that argument contradicted the Tribunal’s reasoning that it was implausible that the raid on the applicant’s sister’s house would have happened at a time when the applicant had not lived there for 12 months.

7. In addition, the applicant said that he had indicated at pages 39 and 40 of the transcript of the Tribunal hearing that a person, other than A, had sent C to the applicant to discuss religion. The applicant argued this showed that people, other than the applicant, A and C, were aware of their discussions about religion, and therefore that A’s family may have suspected that the applicant had tried to convert A and C.

8. The applicant acknowledged that the Tribunal found in [63] that the applicant had not had any detailed conversations with A and C about religion. However, the applicant said that the Tribunal expressly predicated that finding on the finding that the police report was not genuine.

9. That submission was only partially correct. The Tribunal also based its findings in [63] of its reasons for decision on the other matters mentioned in [61] of its reasons for decision, including matters that were described as implausible, and on finding in [63] of its reasons for decision that the applicant’s evidence about his discussions with A and C was vague and speculative.

10. The Minister noted that it is well established that the Tribunal is not obliged to refer to every piece of evidence before it or every contention raised by an applicant, and is not obliged to give a line by line refutation of evidence, or provide the sub-set of reasons for rejecting individual items of evidence. Moreover, the Tribunal may deal with certain evidence by findings of greater generality.3

    3 ETA067 v Republic of Naura (2018) 36 ALR 228; [2018] HCA 46 at [13] per Bell, Keane and Gordon JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320; (2018) 362 ALR 48; [2018] FCAFC 151 at [48]-[49]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1 at [31] per French CJ and Kiefel J (Heydon and Crennan JJ agreeing, at [91] and [92]).

11. The Minister noted that the Tribunal referred expressly at [14] and [56] of its reasons for decision to the statutory declaration where the claim set out above was made, and can be taken to have been well aware of it. The Minister also noted that the Tribunal referred in [43] of its reasons for decision to the claim of other people knowing about the applicant speaking with A and C about religious matters, so can be taken to have been well aware of that claim as well.

12. The Minister submitted that the Tribunal’s findings about A and C were comprehensive, rational and subsumed the issues the applicant claimed the Tribunal had not considered.

13. I accept the Minister’s submissions in this regard. The Tribunal dealt comprehensively with the claims that the applicant made.

14. The applicant’s complaint that the Tribunal did not consider the claim that the applicant was suspected of involvement in his brother’s disappearance because the applicant was absent simultaneously cannot be sustained. The Tribunal was clearly aware that the applicant and A were simultaneously absent. Their simultaneous absence was not self-evidently a basis for considering that the applicant was involved in A’s disappearance, especially in circumstances where anyone who knew the applicant well would have known that he was in Australia to get married. The Tribunal was under no obligation to deal expressly and individually with that particular point. The fact that the Tribunal did not do so does not undermine its finding that the police report was a fabrication.

15. As the applicant acknowledged, the Tribunal expressly found that A and C would not have been suspected of converting to Christianity and the applicant therefore would not have been blamed for trying to convert them to Christianity. Those findings deal with the applicant’s claim that C discussed the applicant’s attempts to convert A and C with other people. The Tribunal implicitly found that C did not discuss the applicant’s attempts to convert him with anyone because the applicant did not attempt to convert him. These findings were not undermined by their reliance on the finding that the police report was fabricated, because that finding was sound.

16. The applicant acknowledged in reply that the applicant had provided written submissions to the Tribunal which indicated that A had converted to Christianity. However, the applicant said that the submissions were wrong on that point, and the Tribunal should not have relied on that acknowledgment, but should instead have relied on the applicant’s own evidence which was to the contrary. Because of the approach I have taken to ground 1, it is unnecessary to say anything further about this issue.

17. Ground 1 has no reasonable prospect of success.

Ground 2

1. The second ground of review in the application is:

   The Tribunal denied the applicant procedural fairness and/or failed to complete its statutory task by failing to consider critical material relating to the applicant’s claim that his brother was murdered in a targeted killing.

   a.The applicant claimed that his younger brother had been killed on … 2013 by a member of the Muslim brotherhood.

   b.The applicant produced a death certificate, police report, and hospital report in support of the claim.

   c.The Tribunal found that the applicant’s younger brother had been killed in an “accidental shooting” by someone seeking to harm the Muslim brotherhood or authorities.

   d.The Tribunal failed to consider the hospital report which showed that the applicant’s younger brother had:

   i.a bullet wound; and

   ii.a second wound.

   e.The hospital report was critical to the claim because it suggested the applicant’s younger brother had not only been shot but wounded at close range.

   f.The hospital report contradicted the Tribunal’s finding that this was an “accidental shooting”.

   g.Had the Tribunal considered the hospital report it may have accepted the applicant’s younger brother was the victim of a targeted killing, rather than [an] accidental shooting; in turn this would have affected the Tribunal’s assessment of the applicant’s own profile and risk as a Coptic Christian.

1. A translation of the hospital report was as follows (CB152):

   …

   Death Report … dated … 2013

   Name: XXX

   Age: … Years

   Gender: Male

   Address: …

   ID Card No.: …

   Date and time of reaching the hospital: … 2013 at

   Having examined the victim, it came out that:

   1- He was shot by a fire bullet at the right side of the belly

   2-The bullet made an entry whole (sic) to the body without making an exit whole (sic)

   3- A wound at the right side of the chest

   4- The injured person was transported to the morgue

   The corps (sic) is under the proposal of the Public Prosecutor

   …

2. The applicant claimed that he was at risk from the Muslim Brotherhood and that his own brother, D, had been killed by the Muslim Brotherhood. However, the Tribunal found that D had been killed in an accidental shooting.

3. In relation to D’s death, the Tribunal said:

   22.On 5 March 2014, the applicant’s representative provided further documents, including a death certificate for the applicant’s brother, [D], indicating he died on … 2013, a police report in relation to the death in which the applicant’s brother, [E], claims that [D] was killed by the Muslim Brotherhood despite not being with [D] at the time, an entombment licence, a death report and an amended family record recoding the death.

   …

   52.I explained to him that there was evidence that … 2013 was a significant date in Cairo when the authorities clashed with Muslim Brotherhood supporters and protesters.1 I also put to him country information that official reports and documents such as police reports which were non-genuine were apparently easy to obtain in Egypt.2 He said that he did not think someone would allege that his brother has been shot and went to the morgue, there must be a genuineness relating to it, and that these were all genuine documents. The applicant said that his brother wanted to get the police report to get compensation from the state. I put to him that reporting from Egypt in relation to harm done to Christians appeared quite good, that there were reports of Copts killed around this time, by name, in Upper Egypt and the Sinai. Around this time I could not find reports of the applicant’s brother by name being killed, or of a Copt being killed in Cairo in the manner claimed. The applicant said that not all the events in Egypt were broadcast, not all the persecution of Christians on a personal level can reach to that level. The applicant said that he feared what had happened to his brother would happen to him.

   53.I explained to the applicant that even if I accepted his brother [D] had been killed I may find that this was a random act of violence in the midst of the unrest between the authorities and the Muslim Brotherhood. He said that he did not know whether his brother was killed in general violence or pursued personally.

   1 See for example BBC News, 2013, Egypt crisis: Deaths as Cairo violence resumes, … - Accessed 19 August 2014; ABC News 2013, Egypt tensions approach breaking point following Friday prayers, 16 August - accessed 19 August 2014; Amnesty 2013: Egypt: ‘People were dying all around me: testimonies from Cairo violence on 14 August 2013, - accessed 19 August 2014.

   2 For example in a report dated 3 July 2014, DFAT provided information that ‘Post does not have any specific information on the availability of fraudulent court/legal documents since the ousting of former president Morsi. Corruption however is a serious problem in Egypt and impacts on all areas of life. Contacts have told Post that document fraud is rife, involving not only counterfeit documents but also official documents or reports that have been obtained by way of bribes. Egypt was ranked 114th out of 177 countries in Transparency International’s 2013 Corruption Perceptions Index, as levels of bribery, abuse of power and secret dealings remained high.’ CX322827 accessed 19 August 2014.

   …

   64.I have considered the claimed death of the applicant’s brother [D] on … 2013. I have had regard to the evidence given by the applicant at hearing and the claims made in the post hearing submission. The applicant indicate at the hearing that he did not know if it was a random act of violence. The submission claims it was not because the attacker was close and there were many people there who were not harmed. I find this reasoning unconvincing. I have considered the report from the psychologist in which he reiterates the claims of the applicant and says he has sighted these documents and considers them genuine. Given that this report of the psychologist is not based on any source of independent information I give this aspect of his report little weight. Whilst I may accept that the applicant’s brother [D] was killed in … 2013, in the manner claimed in the police report, I place greater weight on the country information about violence between the authorities and Muslim Brotherhood supporters on this date, and on the basis of this evidence I find that [D], if he was indeed killed, was killed in an accidental shooting in which the attacker intended to harm either the Muslim Brotherhood supporters or the authorities. I do not accept that [D]’s death had any relationship to the claims of the applicant, and I find that there is no real chance or real risk that the applicant will be killed because of this.

4. The applicant argued that, in making the finding of an accidental shooting, the Tribunal had failed to consider critical material, being the hospital report. The applicant said the hospital report contradicted the Tribunal’s finding that D’s death was accidental. The applicant submitted to the Tribunal that the shooter was in close proximity to D, which suggested an intentional killing as per the police report and not a random killing.

5. The applicant submitted that the hospital report stated that:

   a)D had been shot in the belly; and

   b)D had a wound in the chest with no exit wound.

6. The applicant argued that the existence of the chest wound strongly supported the inference that D was attacked deliberately at close range. The applicant then argued that, from the Tribunal’s finding that D’s death was accidental, it could be inferred that the Tribunal had not considered the hospital report. The applicant argued that the hospital report was important material, because it showed that D had been deliberately targeted by the Muslim Brotherhood and that the applicant might be too.

7. In oral submissions, the applicant argued that the existence of the second wound led to the inference that it was caused by a weapon at close range and was therefore deliberate, and the fact of a second wound also suggested that D was deliberately targeted.

8. The applicant’s submissions are not entirely accurate. The hospital report said that:

   a)D was shot in the belly with no exit wound; and

   b)D had a separate wound on his chest.

9. The hospital report did not say that the shooter was in close proximity to D or that D was killed intentionally. The applicant’s submissions on this point are alarmingly speculative.

10. The hospital report did not say that the chest wound happened at around the same time as the bullet wound, or that it was caused by a weapon, or that it was caused intentionally. The chest wound may have been an old wound, or D may have tripped and hurt himself while trying to escape the protest.

11. The Tribunal dealt in [64] of its reasons for decision with the crux of the submission, that the killing was not random because the killer was close, and rejected that contention. The hospital report did not substantiate the submission that the killing was not random because the killer was close. It was silent on that issue.

12. The Tribunal did not refer specifically to the hospital report in its reasoning on this issue. However, that is presumably because the Tribunal considered the hospital report, and determined that it did not assist with the question of whether D’s death was random or targeted. That conclusion is unassailable.

13. As indicated above, in [22] of its reasons for decision, the Tribunal was aware of the hospital report, although the Tribunal described it as a death report. There can be no doubt that the document the applicant described as the hospital report is the same document as the Tribunal described as the death report. There is no reason to suppose that the Tribunal did not give it the consideration it warranted.

14. With this ground, the applicant is trying to put a gloss on the hospital report that is simply not available.

15. Ground 2 has no reasonable prospect of success.

Conclusion

1. Neither of the applicant’s grounds has a reasonable prospect of success. The applicant’s explanation for his delay in filing his application in this court is weak. In all the circumstances, the application for an extension of time will be refused with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 29 June 2020