Edv16 v Minister for Immigration
[2019] FCCA 2698
•24 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDV16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2698 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (“Tribunal”) – whether the Tribunal should have had regard to the applicant’s student visa history – ground 1 seeks impermissible merits review – whether the Tribunal’s finding was reasonably open to it – ground 2 seeks impermissible merits review – whether the Tribunal gave reasons for a particular finding – ground 3 seeks impermissible merits review – whether the Tribunal erred in making a particular finding – whether the Tribunal’s conduct at the hearing revealed a breach of the natural justice hearing rule – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 424AA, 476 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; |
| Applicant: | EDV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3759 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 September 2019 |
| Date of Last Submission: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Ms A. Zinn |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application made on 29 December 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3759 of 2016
| EDV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 December 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 9 December 2016 affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
(1) A bundle of relevant documents (the Court Book – “CB” – “RE1”).
(2) The affidavit of Mr Toufic Laba Sarkis of 31 July 2019 annexing a transcript of the Tribunal hearing. (“T”).
(3) The affidavit of Sharon Manpreet Sangha of 30 January 2018.
(4) A supplementary bundle of relevant documents (“SCB” – “RE 2”).
Background
The applicant is a national of Egypt. He first arrived in Australia on 12 April 2007 as the bearer of a student visa valid until 6 April 2009. Up to 2014 the applicant was granted further student visas in May 2009 and July 2011. In this period he returned to Egypt on five separate occasions, and on each occasion remained in Egypt for several months (see CB 25.2).
He applied for the protection visa on 6 January 2014 (CB 1–CB 31). He was assisted by a registered migration agent (CB 29).
The Applicants Claims To Protection
The applicant’s claims to fear harm were initially set out in his protection visa application (CB 20–CB 23). He stated that he feared harm from the Egyptian authorities because of his political opinion. This was that he supported the Muslim Brotherhood and former president Morsi who had been ousted by the army who now controlled Egypt.
The elements of this claim as set out in a fair summary in the Minister’s written submissions:
“…The applicant claimed that members of his family opposed President Mubarak’s regime, were affiliated with the Muslim Brotherhood and were imprisoned during the 1990s. The applicant confirmed that he was not a member of the Muslim Brotherhood but was against the corruption of the Mubarak regime. He claimed that he was part of a youth group and was involved in election campaigning.
7. After President Mubarak was removed from office in February 2011, the applicant travelled to Egypt from Australia (from 27 February 2011 to 12 June 2011) and was “politically involved in Egypt’s new direction” within his local area. He supported President Morsi and was happy when he gained power. During his last visit to Egypt (17 July 2013 to 18 November 2013), the applicant was actively protesting against the army and the underhanded way they took control. They applicant claimed there were people who were working undercover for the authorities at the protest and that he was identified.
8. The applicant claimed the authorities came to his home and he was “taken to their office by force” and “interrogated and treated badly”. He was released but was told not to take any part in further protest activity. After two weeks, he restarted his activity with the group and protested again. He was arrested and “detained for two days and physically beaten”. After his release, the applicant immediately arranged for his departure.
9. In support of his Protection visa application, the applicant provided copies of the bio-page from his passport (CB 32), an untranslated identity card2 and a membership card titled: “Freedom ANF Justice Barty” (CB 64). He provided no other supporting documents to the Department in support of his Protection visa application”.
[Footnote omitted.]
Relevant to understanding the Tribunal’s analysis is that following his protection visa application the applicant applied for a further student visa. This was refused on 21 November 2014. The then Migration Review Tribunal affirmed this decision on 3 December 2014 (dot point 10 of [10] at CB 149).
The Delegate
The applicant attended an interview with the delegate on 5 August 2014 (CB 74). The delegate refused the application on 22 December 2014 (CB 70–CB 85).
The delegate had concerns about what he described as the “veracity of the applicant’s claims” (CB 77.4 and following).
That delay was said to be in relation to elements that were not in his written claims, but raised for the first time before the delegate some seven months later (CB 77.5).
The delegate reasoned that the applicant’s delay in raising the claim that he was a “member of the Muslim Brotherhood” and participating in a “notorious” protest “raises the concern that he has embellished or fabricated his association and involvement with the Muslim Brotherhood and participation in protest activity…” (CB 78.3).
Further, the delegate noted that “the applicant appears to be somewhat naïve about the actions of supporters of the Muslim Brotherhood, an organisation he claims to be a member and supporter of” (CB 79.3).
In relation to the applicant’s claims to have been detained on two occasions and released after a “relatively brief period”, the delegate found this, in the circumstances, to be “implausible” (CB 80.6).
Ultimately the delegate rejected the factual basis for the applicant’s claim to fear harm (CB 81.2).
The relevance of this for current purposes, amongst other things, is that as a result of the delegate’s decision the applicant would have been on notice that the credibility of the central part of the factual basis of his claimed fear was at issue.
The Tribunal
The applicant applied for review to the Tribunal on 5 January 2015 (CB 86–CB 92 see also CB 93). He continued to be represented by the same migration agent whom he also appointed as the authorised recipient to receive correspondence on his behalf in relation to the review (CB 88). The applicant also gave the Tribunal a copy of the delegate’s decision record ([5] at CB 147).
The applicant provided further documents to the Tribunal (CB 96–CB 119).
By letter dated 4 October 2016 the applicant was invited to a hearing before the Tribunal scheduled for 19 October 2016 (CB 120–CB 128). The Tribunal asked the applicant to provide a written statement, by 12 October 2016, setting out all of his claims (CB 121). No such statement was provided.
The applicant attended the hearing. His representative was not present (CB 132). At the hearing the applicant claimed, for the first time, that he was involved with “Rabaa Australia”, an organisation with whom he claimed to have participated in protest activities ([70]–[77] at CB 160–CB 61).
Following the hearing, on 21 October 2016, the applicant gave the Statutory Declaration of Amr Moustafa, and screen shots from a Facebook page, to the Tribunal to support his claim of his involvement with this organisation and his attendance at their rallies (CB 140–CB 142).
The Tribunal affirmed the delegate’s decision on 9 December 2016. The Minister’s written submissions provide a fair and comprehensive summary of the Tribunal’s decision [19]–[34]:
“19. The Tribunal accepted that the applicant was a national of Egypt and that Egypt was the receiving country (CB 151, [27]).
Student visa and entry into Australia
20. The Tribunal noted the applicant had only studied for a total of 23 months out of the 89 months he had been in Australia. It set out his student visa history and put to him, pursuant to s 424AA, information about his student visas, studies in Australia and the rejection of his further Student visa by the delegate and the MRT (CB 152, [28]-[29]).
21. The Tribunal explained its concerns that the information indicated he had limited academic success, he had not completed his education in Australia, he appeared to not be committed to his studies, he had done limited studies to allow him to remain here and he had spent long periods of his student visas overseas and not studying. Whilst expressly considering his response, the Tribunal found the applicant's study history indicated he was not a genuine committed student in Australia and had instead used the student system for his benefit in order to remain in Australia and work, while managing to spend long periods of time with his family in Egypt (CB 152-153, [30]-[31]).
22. The Tribunal found that its concerns were heightened by the applicant's "changing evidence about his plans (when he was in Egypt) for his studies in Australia". It found his inability to clearly explain his plans for his studies in Australia undermined his claim that he came to Australia to study and that he was a genuine committed student in Australia (CB 153, [32]).
23. The Tribunal also noted that, at the hearing, the applicant struggled to spell the name of the organisation with which he was allegedly involved in Australia. He made four unsuccessful attempts. The Tribunal was concerned that although the applicant claimed to be a genuine student in Australia for seven years, he was unable to spell "Australia" and it did not find his explanations for this inability persuasive (CB 153, [33]).
24. For these reasons, the Tribunal found that the applicant used the student visa system in order to remain in Australia and work, and that this finding was fortified by its further adverse credibility findings. The Tribunal found the applicant had a "strong desire to remain in Australia" and may be prepared to make false protection visa claims to do so (CB 153, [34]).
Credibility
25. The Tribunal (at CB 153, [38]) had concerns with the applicant's "inconsistent, changing and not credible evidence" about past events and what he feared on return to Egypt. It found he was not a "credible, truthful, or reliable witness in relation to matters central to, and related to, his claims", and identified seven reasons to support its credibility findings.
a. First, the Tribunal had "significant concerns" about the applicant's late claim regarding his involvement with political activities in Australia given that he "clearly indicated' that he had not been involved in such activities when asked by the delegate (CB 154-155, [39]-[45]).
b. Secondly, the Tribunal found the applicant gave inconsistent evidence about how he managed to leave Egypt in 2013 if he was a known member of the Freedom and Justice Party (FJP) and had been arrested twice for protesting against the government as claimed (CB 155-156, [46]-[48]).
c. Thirdly, the Tribunal was concerned with the applicant's reason why he did not attend protests in Australia after the overthrow of President Morsi given his claimed political views and background (CB 156, [49]-[52]).
d. Fourthly, the Tribunal was concerned with the applicant's inability to explain why he took "grave risks" in returning to Egypt for four months and protesting, despite his claim that the authorities were aware of him (CB 157, [53]-[56]). The Tribunal relied on country information that indicated after the military overthrow of President Morsi, the Egyptian security forces launched a "severe and comprehensive crackdown" against the Muslim Brotherhood with mass killings of pro-Morsi protestors and arrests of thousands of supporters (CB 157, [55]). Whilst accepting that some party members may be motivated to go into such situations to support their party and values, the applicant's inability to explain his motivation undermined the credibility of his claims (CB 157, [56]).
e. Fifthly, the Tribunal found the applicant's claim that he was released twice after being held briefly was inconsistent with country information that indicated Muslim Brotherhood supporters were not released and remained in detention for lengthy periods (CB 157-158, [57]-[60]).
f. Sixthly, the Tribunal was concerned that the applicant claimed in his interview with the delegate for the first time that he was a member of the FJP, but failed to mention this in his Protection visa application (CB 158-159, [61]-[64]).
g. Seventhly, the Tribunal was concerned by the applicant's failure to mention in his Protection visa application that he had participated in the "notorious" Muslim Brotherhood sit-in at east Cairo Rabaa al-Adawiya (CB 159, [65]-[66]).
26. The Tribunal had regard to the applicant's membership card with the FJP but was not prepared to accept that the card was genuine given its concerns with the applicant's credibility and country information about the prevalence of false documents in Egypt (CB 159, [68]).
27. The Tribunal accepted that the applicant had "general knowledge" in relation to affairs in Egypt but was not prepared to accept that this meant his claims were true or that he had any interest in speaking out against injustices or problems in Egypt (CB 160, [69]). On the basis of relevant country information about Egypt, the Tribunal did not accept that the applicant faced a real risk of serious or significant harm from general violence in Egypt or any other matters raised by him (CB 166, [103]-[109]).
28. The Tribunal was prepared to accept on the basis of the photographs the applicant provided that he attended two or three demonstrations/activities in Australia and that photographs of the applicant appeared on the "Rabaa Australia" website and Facebook page. However, given the Tribunal's "significant concerns" about the applicant's credibility, the Tribunal was not prepared to accept that the applicant was an active member or organiser, or that he was genuinely involved with the organisation. The Tribunal was also not prepared to place any weight on the statutory declaration in support from Mr Moustafa who claimed to be the main coordinator of Rabaa Australia (CB 162, [77]).
29. On the basis of its adverse credibility findings and its assessment of country information, the . Tribunal rejected the applicant's claims to fear harm in their entirety (CB 162, [81]-[86]).
30. On the basis of its assessment of country information, the Tribunal was not satisfied that the applicant faced a real risk of being of adverse interest to the Egyptian authorities because of his activities in Australia (CB 163, [90]-[98]).
31. The Tribunal also did not accept that the applicant had any actual interest in engaging in political or associated activities in Egypt or that he would express his views about the regime publicly because he did not have any genuine desire to do so. The Tribunal did not accept that the applicant intended to speak against the regime or that he faced a real chance of being imputed as speaking against the regime and concluded that he would not face a real chance of serious harm, or of being imputed as anti-government, if he returned to Egypt (CB 165,[101]- [102]).
32. The Tribunal disregarded the applicant's conduct in Australia pursuant to s 91R(3) of the Act after finding he had engaged in such conduct for the sole purpose of strengthening his protection claims and not because of any genuine interest in political or anti-government matters (CB 160, [89]).3 It was also not satisfied there was a risk of the authorities identifying the applicant or that he faced a real risk of significant harm on that basis (CB 167, [116]).
33. The Tribunal considered whether the applicant would face harm as a failed asylum seeker, but relied upon independent country information to find that failed asylum seekers would not face adverse attention upon their return (CB 167, [110]). The Tribunal accepted that the applicant would return to Egypt having been away for a considerable number of years. It also noted that he had "a practice of going to and from Egypt” without suffering from any adverse attention (CB 167, [111]-[112]).4 The Tribunal was not satisfied the applicant faced a real chance or a real risk of suffering any harm in Egypt, including for being involuntarily returned to Egypt, or after having lived in Australia for a lengthy period (CB 167, [111]).
34. For all of the above reasons, the Tribunal was not satisfied that the applicant met the criteria for a protection visa under either s 36(2)(a) ors 36(2)(aa) of the Act (CB 168, [119]-[121]).”
[Footnotes Omitted.]
The Grounds of the Application to the Court
The grounds of the application to the Court are in the following terms:
“1. At Point 34 the RRT used its findings in relation to my behaviour as a student and found that this indicates that I would make false protection visa claims in order to stay in Australia. The RRT was influenced by its finding in relation to my student visa despite the fact that its role was not and it did not fully assess issues relating to my student visa.
2. At point 45 the RRT stated that my “evidence was vague” in relation to the number of demonstrations I attended. The RRT asked no questions and gave no reason for this finding.
3. At point 68 the RRT was not prepared to accept that my FJP card was genuine. The RRT based this finding on country information stating that false documents can be obtained. The RRT did not raise or give any specific reasons why specifically it found that my card was not genuine. stated that it had concerns that I did not mention my Australian activity to the delegate.
4. At point 39 the RRT expressed concern that I did not mention my Australian activity to the delegate. This concern was raised repeatedly by the RRT. At 3rd dot point I explained that I understood that the delegate was referring specifically to activity and events in Egypt and this was repeated again at point 40. This understanding is supported by the fact that I provided photographic evidence of my Australian activity. I would not omit verbal evidence and provided photographic evidence but the RRT did not recognize this.
5. The RRT claims at point 42, that the delegate “asked squarely” if I was an activist in Australia. The delegate did not at anytime use the word activist or similar questions. The delegates questions were framed in terms of what I fear if I return to Egypt and not specifically questioning my Australian activity.”
Before the Court
On 11 May 2017 a Registrar of the Court made various orders for the conduct of this case. The applicant was given the opportunity to file any amended application and written submissions. He has not done so. He did file the affidavit of Mr Laba Sarkis which was read into evidence.
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Arabic language.
The applicant read from a lengthy prepared statement which was directed to each of the grounds of the application. His submissions have been considered below as they relate to each ground. The applicant also raised further matters not in his grounds. These are dealt with below.
Consideration
What can immediately be said about each of the applicant’s grounds, and the submissions in support, is that they are in the nature of complaints about certain findings made by the Tribunal, rather than some attempt at asserting some recognisable legal error.
It may be that the additional matters raised by the applicant orally (while reading from a prepared statement) are his attempt to argue legal error. As the applicant submitted these additional matters were consequent upon, or followed from, his “grounds”.
In essence the applicant complained that one, the Tribunal was biased against him in that it “wanted” a predetermined outcome, and two, that the Tribunal agreed he would face harm based on the photographs he had provided yet found adversely to him. This latter may have been an attempt to argue that the Tribunal’s decision was unreasonable.
Ground 1 directs attention to [34] of the Tribunal’s decision record:
“34. Based on the above, the Tribunal finds that the applicant has used the student visa system in order to remain in Australia and work. The Tribunal’s credibility findings below support this finding. The Tribunal considers that this indicates that he has a strong desire to remain in Australia and that he may be prepared to make false protection visa claims to do so.”
The applicant’s submissions took issue with the Tribunal’s finding that he would make false protection claims to remain in Australia. That is, that the Tribunal should not have had regard to his study history in assessing his credibility. The argument was that the task of the Tribunal was to assess his protection claims and not his student history.
The applicant submitted that the Tribunal made a “mistake” in saying that he had used his student visas for the purpose of staying in Australia to work. This is because he stayed in Australia on valid student visas granted to him from 2007 to 2014 and he “abided” by the law in relation to his visa conditions.
In seeking to understand the applicant’s ground and submissions in the context of some assertion of a recognisable legal error, the best that can be said, is that the assertion is that it was not reasonably open to the Tribunal to make this finding based on his student visa history, or that in doing so the Tribunal took into account an irrelevant consideration.
The applicant’s submissions misunderstand, or misconstrue, the Tribunal’s actual reasoning. The Tribunal did not make any adverse, or for that matter any finding, that the applicant breached his student visa conditions.
Rather as is clear on any plain reading of its analysis the Tribunal was concerned that the applicant had “used” the student visa system to stay in Australia.
The Tribunal’s finding at [34] was not some arbitrary, capricious or unexplained finding. The Tribunal set out, extensively, its reasons for arriving at the conclusion expressed at [34] (see [28]–[33]).
The Tribunal utilised s.424AA of the Act to put to the applicant at the hearing that his study history in Australia gave rise to a concern that he used the student system to stay and work in Australia while still managing to spend long periods of time back in Egypt with his family. That is the country in which he said he feared harm from the authorities. (See [28]–[29] and T 59, line 5–T 60, line 11).
The applicant’s own conduct is relevant in assessing the genuineness of claims to protection. In this case the Tribunal found that the applicant had for some years sought to extend his stay in Australia by studying for only 23 months out of a possible 89 months he held student visas, and that his courses “were a series of short, inexpensive courses” of which “[h]e only completed a limited number”.
The applicant’s motivation in applying for the protection visa and how this related to establishing a well-founded fear of harm, was a relevant matter for the Tribunal to consider.
It is also important to note that the Tribunal’s adverse credibility finding did not rely only on the applicant’s student history. As the Tribunal made clear at [34] the finding based on his student history was only a part of the adverse view it took of his credibility: “…The Tribunal’s credibility findings below support…” (See at [35]–[67]).
The Tribunal’s finding at [34] was reasonably open to the Tribunal on what was before it. The applicant was put on notice of the Tribunal’s concerns and given the opportunity to respond. The Tribunal’s finding at [34] was probative of the information and evidence before it (including the applicant’s oral evidence) and it was logical in the requisite sense (CQG15v Minister for Immigration and Border Protection [2016] FCAFC 146).
In all what remains is that by ground 1 the applicant seeks impermissible merits review. Ground 1 is therefore not made out.
Ground 2 directs attention to [45] of the Tribunal’s decision:
“45. The Tribunal’s concerns about the applicant’s claimed participation in Australian activities were heightened by his vague responses about those activities. In this regard, the applicant told the Tribunal that the first time he participated in a demonstration in Sydney was on 25 January 2014; he claimed that he helped organise it. However, when asked about the number of demonstrations he attended thereafter, his evidence was vague. Finally he said he attended 20-25 demonstrations from 25 January 2014 until most recently, in August 2016. The Tribunal considers that if the applicant was a genuine activist who had attended such a large number of demonstrations, he would have been able to give the Tribunal at least approximate details of this when asked.”
The applicant’s ground asserts that the Tribunal did not ask him any questions in relation to the number of demonstrations he attended, yet it stated that his “evidence was vague”. Further that it gave no reasons for this finding.
At best the ground may be understood as a claim that it was not reasonably open to the Tribunal to make this finding in the circumstances presented.
However, before the Court the applicant’s submissions asserted that the complaint in ground 2 is that he was “clear” in the explanations that he gave in this regard, and that this could be seen from the transcript of the Tribunal hearing.
The complaint in the applicant’s ground as stated was contradicted by the applicant himself before the Court. Contrary to what is stated in the ground, and consistent with what is in part implicit in the applicant’s submissions, the Tribunal did ask the applicant questions about his claimed attendance at demonstrations in Australia.
This is clear from the transcript (T 7, line 3-T 13, line 13):
“Applicant I am in danger if I went there because I am participating in the demonstration that goes on Sydney here.
Member So when was the first time you participated in a demonstration in Sydney?
Applicant The first time I participated in the demonstration in Sydney was 25 January 2014 after Morsi came too.
Member After that demonstration right so that was after you lodged your protection visa application was it?
Applicant Yes. When I participated in that demonstration I didn't have the response of the ministry yet.
Member Yes that's okay.
Applicant I didn't have a meeting at that time.
Member When was the next time you attended?
Applicant Depends what is going back in Egypt.
Member So when was the next time?
Applicant It might be one month after that. We were doing these demonstrations after some incidents or occasions that happened in Egypt like 25 of January like they could attack which happened in Egypt.
Member Stop please stop sir. It is all very vague. You need you to be more precise. Okay so tell me those particular occasions, the important occasions that you demonstrated.
Applicant Some occasions happened in Egypt like executions.
Member Again that's not giving me a date. Can you give me a date please?
Applicant I'll give you a date for the main things that happen and we know very well. I'll tell you about those main incidents that happened in Egypt. 25 of January,coup d'etat occurred on 3rd of July.
Member What year?
Applicant 2013.
Member Sorry hang on. We're talking about Australia and I asked you when did you first protest and you said 25 January 2014. So why are you telling me now that you protested on the 3rd of July 2013. No please wait and listen to it being interpreted okay.
Applicant I left Egypt after the coup d'etat occurred 2 weeks in Sydney.
Member Stop stop okay. I didn't ask you about that. I ask you first of all please listen to the question and answer the question. I asked you when was your first protest in Australia and you said 25 January 2014. Okay so now you didn't protest then on the 3rd of July 2013.
Applicant I'm telling you about the coup d'etat which happened on the 3rd of July 2013.
Member Sir, can you please stop and listen to the question. I asked you when was the first time you know you did political activity in Australia. You attended a demonstration. You said to me the first time was the 25th of January 2014. Alright so what I am interested in; why you didn't demonstrate in July 2013 in Australia.
Interpreter Sorry what's the question again?
Member So why did you not demonstrate in July 2013. If the first demonstration was 25th of January 2014 why did you not have any involvement in any demonstrations in July 2013 or earlier?
Applicant The coup d'etat happened the 3rd of July 2013. Two weeks after that I travelled to Egypt.
Member So I'm going to take that as your answer which is actually not an answer to my question. No sir please listen to my question. You didn't demonstrate when there was a coup d'etat 3rd of July 2013.
Applicant No, this date I didn't demonstrate.
Member Okay the first time you ever did any demonstration was in Australia 25th of January 2014. Is that correct?
Applicant Correct. I understand the question differently when you asked about the coup d'etat on the 3rd of July 2013.
Member What do you mean?
Applicant The question what I understood from your question is when the coup d'etat occurred.
Member No that's not what I asked. I'm interested in your demonstrations in Sydney.
Applicant When I came to Sydney on November 2013, with the group I am with we have organised this demonstration on the date I told you 25 of January 2014.
Member What's the next date you demonstrated?
Applicant There was something occurring in Egypt.
Member Sir can you tell me the next date you demonstrated yes or no.
Applicant It's very hard to tell you exactly because lots of incident happened in Egypt.
Member Sir please stop. I am trying to understand how many times and when you demonstrated in Australia. Now can you please give me an idea of how many times you've demonstrated in Australia?
Applicant The demonstrations that happened here not less than 30.
Member Sorry sir just wait I'm trying to clarify. You have attended 30 demonstrations in Australia. Is that correct? Yes or No.
Applicant Most of them 85% of them I attended.
Member No sorry I'm asking about how many demonstrations you have attended.
Applicant 85% of them.
Member Sir I'm not asking you about the total number of demonstrations in Australia. Sir please wait for that to be interpreted.
Applicant From 20 to 25.
Member You've attended from 20 to 25 demonstrations in Australia. Is that correct?
Applicant Yes, I can't tell you the exact number.
Member Alright and the first time you attended was the 25th of January 2014?
Applicant Yes
Member When was the last time you attended?
Applicant The last time I attended a demonstration was 14 August 2016 and the occasion was when they were in madeenat masr in Egypt they killed many people there in madeenat masr in Egypt.
Member Right so would you say that the demonstrations on average were probably spread out evenly from January 2014 until August 2016?
Applicant It was organised on the main occasion, on the main incidents that happened in Egypt.
Member Sorry Sir I'm just asking approximately. You're not really telling me when these main occasions are.
Applicant I can tell you about 25 January 2014.
Member I don't need to know that because we've already talked about that one.
Applicant The 3rd of July.
Member What year?
Applicant After 2014.
Member Sorry?
Applicant 2014 after I came here.
Member Further July what year that's my question. You said 3rd of July.
Applicant The 3rd of July 2013 is the occasion of the coup d'etat which happened in Egypt.
Member Sir at the moment I'm trying to understand the demonstrations you attended in Australia. You said just now you said 3rd of July and I asked what year. Right so can you please answer my question. In what year? What year? 3rd of July you attended a demonstration. What year?
Applicant 2014.
Member Right 3rd of July 2014. What was that about?
Applicant 1 year after coup d'etat.
Member What was the coup d'etat?
Interpreter Sorry?
Member What was the coup d'etat?
Applicant The occasion was when the army entered here with the legality of Mohammed Morci the rightful President.
Member Right so that's what you were unhappy with. Is that correct?
Applicant No I wasn't.
Member You weren't unhappy or you were unhappy with that? I just want to be clear with that. You were unhappy with that or you were happy with that?
Applicant I was unhappy.
Member Right I thought you might say that. Okay I suppose my question is why didn't you demonstrate or do anything on the 3rd of July 2013 when you were Australia. Why didn't you do anything when it actually happened 3rd of July 2013 when you were in Australia?
Applicant You said in 2013?
Member That's right when it actually happened. You didn't attend any demonstrations then. I'm wondering why.
Applicant When they announce the coup d'etat it was the 3rd of July 2013. No one was anticipating that the coup d'etat would happen. When it happened the day of the 3rd of July 2013, the first thing I was thinking of was to join forces in the middle of the incidents in Egypt. To be more active in the real incident with the other people who was gathering in Rabyar AI-Adaweah. This gathering is to say to all people that the people of Egypt is not happy at all with this coup d'etat. We tell the people that we rejecting the coup d'etat.
Member Right I'm still not understanding why you are this political person why don't you organise demonstrations in Australia while you're still here. Surely you must of been pretty angry at the time.
Applicant I had a problem and I knew that I am in danger, everyone talking, everyone organising.
Member Sorry sir that didn't appear to be a complete sentence. Please answer in a complete sentence. I do not understand so I will explain to you why I have concerns okay. Can you tell him that? Okay hold on a second. You okay coup d'etat happens, Morci is toppled, he is removed by the army on the 3rd of July 2013.
Applicant Yes
Member You suggest throughout all of your documents, your evidence that you are this political person. This is a major event that has occurred for the Muslim brotherhood and the Egyptian people. Okay you don't leave Australia until the 17th of July. You actually had 2 weeks, a fortnight while this incredible event is occurring in Egypt and you don't do any demonstrations in Australia. So what I'd like you to do is to explain to me why in those two weeks you've done nothing in Australia.
Applicant My concentration was to prepare my papers, to see the college, to go to Egypt. My all concentration was to go to Egypt.”
This lengthy extract from the transcript speaks for itself. It is difficult to see how the applicant drafted the terms of his ground in light of what is set out here. As to his submission before the Court it can only be said that the Tribunal’s impugned finding (at [45]) was reasonably open to it given the evidence before it.
The Tribunal gave reasons for its finding which were probative of the material before it and were reasonably open to it (see [39]–[44] at CB 154-CB 155). Again ground 2 rises no higher than, it must be said a curious (in light of the evidence), attempt at seeking impermissible merits review.
Ground 3 directs attention to [68] of the Tribunal’s decision:
“68. The applicant had produced a card from the Freedom and Justice Party showing membership in 2012-2013. The Tribunal noted that it was concerned with the credibility of his claims and noted that there is country evidence indicating false documents can be obtained16. The applicant said that he had submitted a genuine card. The Tribunal has considered the card but does not find it persuasive in light of its concerns. The Tribunal is not prepared to accept that this card is genuine.”
[Footnote omitted.]
This ground takes issue with the Tribunal’s finding that the Freedom and Justice Party (“FJP”) card that the applicant produced to the Tribunal was not genuine. It asserts that the Tribunal did not give reasons for its finding.
Before the Court the applicant submitted that it was “wrong” for the Tribunal to say that the FJP card was not genuine. The applicant argued that the Tribunal’s error was that it did not provide evidence to prove that the document was not genuine.
Contrary to what is stated in the ground the Tribunal did give reasons which arose from the applicant’s own evidence and country information before it.
At the hearing the Tribunal raised its concerns about the card with the applicant (T 66, line 5-T 67, line 15):
“Member That's very good. Yes very good thank you. Right the other thing I have to say is people can write letters and they can say things for all different reasons. Now I'm going to take into account anything you've produced okay but that I have to weigh it up also in terms of people's desires to help. Okay the other thing I have to say as well is you've produced a letter which says I think you're a member of the Freedom and Justice Party and again there's country information indicating there's false documents available. So I have to weigh that up.
Applicant The second thing is talking about the Freedom and Justice Party. He has membership with them.
Member You have a membership card.
Applicant We are not an establishment. We are a group together. It is a movement and the letter will say I am a member with them.
Member It's a membership card of a political party.
Applicant It's not a club. I can get you a paper from this man and this man is an organiser of the demonstration from the government.
Member Sorry sir I'm not talking I've moved on from talking about the Rabya. Are you now talking about the Rabya? I just want to hear yes or no. Are you talking about Rabya or Freedom and Justice Party? Which one?
Applicant I'm talking about Rabya.
Member I've moved on. I've just been talking about Freedom and Justice party membership you've produced. I'm saying that false documents, country information indicates false documents can be provided and I have to weigh that up in considering this card.
Applicant Freedom and Justice in Egypt?
Member Yes sir. Please listen to this. Okay country information indicates false documents can be obtained from Egypt. I have to weigh that up. Also with my concerns is you were even a member of this party. So I'm not sure if I accept that or not I haven't made up my mind. But I may not accept that the card is a genuine card.
Applicant I submitted this card before.
Member Yes to the Department.
Applicant You want it again?
Member No I don't want it again. I just said I may not I'm not sure but I may not because there's country information indicating documents can be forged I may not accept it's genuine.”
As is clear, the Tribunal had significant concerns with the credibility of the applicant’s claim. As set out above these were set out extensively, and given what was before the Tribunal, comprehensively at [35]–[66] (of the Tribunal’s decision record).
At [67] the Tribunal stated:
“67. For these reasons set out above, the Tribunal does not consider the applicant to be a credible witness.”
What is set out at [68], when read fairly and contextually, is that the Tribunal had found that the applicant was not a credible witness for reasons which it gave, and which were probative of what was before it. In this context, and when regard was had to country information about the availability of false documents, the Tribunal found it was not prepared to accept that the card was genuine.
The Tribunal did not reject the genuineness of the card simply on the basis of country information. Rather the credibility of the applicant’s own claims and evidence had been so weakened that the Tribunal could not accept the corroborating evidence (the card), and given also the country information before it. There is no legal error in the Tribunal’s approach in this regard (Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [68] and WACOv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [41]).
As the Minister submitted it is a matter for the Tribunal to identify the material relevant to its reasoning and to give that material appropriate weight (Tranv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297, and NAHIv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
In all ground 3 is not made out. The Tribunal did give reasons for its finding in relation to the FJP card. It put the applicant on notice of its concerns and gave him the opportunity to respond. It’s finding, and the key findings on credibility that informed it, were all reasonably open to it. In the circumstances ground 3 again seeks impermissible merits review.
Ground 4 directs attention to [39] of the Tribunals decision:
“39. Firstly, the Tribunal has significant concerns about the applicant’s inconsistent evidence given to the delegate at interview concerning his claimed Australian activities (which he revealed for the first time at the Tribunal hearing on 19 October 2016). The Tribunal considers that the applicant had the opportunity at the delegate’s interview on 5 August 2014 to mention his claimed Australian activities, but he did not do so. In particular:
· The Tribunal notes that the applicant makes no mention in his protection visa application form (lodged 6 January 2014) of having undertaken any political activities in Australia, a country where he has lived for the last seven years. At the interview with the delegate on 5 August 2014, the delegate asked him if he had been involved in any project or activity in relation to the events in Egypt since he has been in Australia, and his response was words to the effect of:
“just try to get information, I have a friend, I try to get information about what’s going on and I ask about my friends who were still imprisoned”.
· Not only did the applicant fail to mention any Australian activities at his interview with the delegate in response to a specific question, he also told the delegate at interview that his application form contained all of his reasons for seeking protection6 . In this regard, the applicant had indicated at interview that his written claims should refer to the second occasion he was protesting, not the third occasion, but that there were no other mistakes, and that his application form contained all of his reasons for seeking protection. However, he claims that he did not attend any demonstrations or undertake any significant Australian activities until after he lodged his protection visa application form. Given his evidence that he would suffer harm as a result of his attendance at demonstrations in Australia because ever since the first demonstration (25 January 2014), the Egyptian authorities photographed them demonstrating and they know that he has been demonstrating, the Tribunal considers that if, as he claimed, he had commenced numerous activities after the lodgement of his protection visa application form, he would not have would not have said to the delegate that all of his claims are contained in his application form. The Tribunal considered that this was a further opportunity for the applicant to tell the delegate about his attendance at demonstrations and claimed political activities in Australia and that he had been photographed by the Egyptian authorities and that he would face harm for Australian activities; yet again he did not do so.
· The Tribunal was further concerned with the applicant’s evidence at hearing about his interview with the delegate. The applicant told the Tribunal that he did not tell the delegate at interview on 15 August 2014 that he had attended demonstrations in Australia. The Tribunal put to the applicant that it did not understand why he didn’t think it was worthwhile telling the delegate about that. In response he said that he told the delegate about what he was facing in Egypt and the delegate didn’t ask the applicant about Australia. However, the Tribunal asked whether the delegate had asked the applicant to explain the reasons why he would suffer harm upon return, and the applicant said yes. The Tribunal asked whether the applicant had then told the delegate that he would suffer harm because of his attendance at demonstrations in Australia, and the applicant said no. The Tribunal noted that he had been given further opportunity to tell the delegate about his attendance at demonstration in Australia (as a reason for facing harm in Egypt), but that he did not do so.”
The applicant’s ground takes issue with the Tribunal’s finding that the applicant raised claims concerning protest activities in Australia for the first time before the Tribunal, and did not raise them before the delegate.
Ground 5 also concerns what the Tribunal found as arising from the interview with the delegate. The ground directs attention to [42] of the Tribunal’s decision:
“42. The Tribunal considers that the applicant was asked squarely by the delegate as to whether he has been an activist in Australia and his answer clearly indicated that he had not been an activist in Australia. The Tribunal considers that this undermines his claims to have undertaken any genuine activities in Australia as an activist.”
In short both grounds 4 and 5 take issue with the Tribunal’s finding that he did not mention to the delegate his claim put to the Tribunal at the hearing that he feared harm on return to Egypt because of his protest activities in Australia and that he had carried out “several activities” in Australia for an organisation called “Rabaa Australia”.
The applicant now argues that he was not asked questions by the delegate about his activities in Australia so he did not mention these activities to the delegate.
In submissions before the Court the applicant stated that he did not raise this matter with the delegate because he was not “…in charge of the conversation or what I have to say”. That is, all the delegate’s questions were focused on the protests and events in Egypt. He was not asked about events in Australia.
Again the applicant’s ground seeks to impugn one finding in one part of the Tribunal’s decision record without reference to the context within which the Tribunal made this finding.
As set out above a key finding in the Tribunal’s decision was that the applicant was not a credible witness. The Tribunal set out, extensively, its reasons for making this finding. What is set out at [39] is one part of that consideration.
The applicant’s submission was that he had no opportunity to raise the matter of the Australian protests before the delegate. The Tribunal found that he did.
The applicant has not put a transcript of the interview with the delegate into evidence before the Court. Plainly he had the opportunity to do so, and in particular when he provided a transcript of the Tribunal hearing.
The only direct evidence before the Court of what occurred at the interview with the delegate is what is contained in the delegate’s decision record and in the discussion between the applicant and the Tribunal at the Tribunal hearing about what occurred at the interview with the delegate.
The delegate’s decision record reveals that at the interview the applicant confirmed that: “…his application contains all of his reasons for seeking protection” (CB 74.4).
That application is reproduced at CB 1–CB 31. It contains various statements made by the applicant in setting out his claims to protection (CB 20–CB 23). There is nothing in those claims to indicate that the applicant feared harm in Egypt because of any protest activity in Australia.
At the hearing with the Tribunal the applicant gave evidence that he participated in demonstrations in Sydney and would be in danger if he returned to Egypt because of this (T 7, lines 3–4). Further to what is set out above, and as extracted from the transcript of the Tribunal hearing (see [47] above) the Tribunal sought to elicit a coherent explanation of this claim from the applicant.
At T 19, line 1 to T 20, line 20 the following exchange occurred:
“Member Just hold on a second. No I said just hold on a second. You attended an interview with the delegate to discuss your claims on the 5th of August 2014.
Interpreter Can you say that again?
Member You attended an interview with the delegate of immigration to discuss your claims on the 5th of August 2014.
Applicant Yes I did.
Member Right so did you mention to that delegate you'd been attending demonstrations in Australia?
Applicant He didn't ask me.
Member He did. He asked you about your political activity in Australia I've listened to the tape.
Applicant He didn't give a valid question about participating in demonstration in Australia.
Member We'll come back to that later. We'll come back to that. But you didn't think it was worthwhile telling him about that. Is that right?
Applicant They were photographing us in front of the embassy Consulate of Egypt.
Member Sir my question to you was did you think it was worthwhile to tell the delegate what you had been doing?
Applicant All the dialogue was between me and him. All the dialogue was about Egypt and my activity in Egypt and the danger I was facing in Egypt. He even didn't give any interest in knowing what is happening here.
Member Well I'd told you I listened to the tape. Okay alright we can again talk about that later. Did he ask you why you would suffer harm when you went back?
Applicant Yes
Member And you didn't say I will face harm because I'd been protesting in Australia did you?
Applicant But I already subjected to danger when I went to Egypt and when I go back I will not stay silent I would join those forces against the regime.
Member So I take it from your answers that you don't think there's any reason for you to face harm because of what you did in Australia. Is that correct?
Applicant No it will happen.
Member No just stop. I need to be very clear about what your claims are so just wait. Please tell him that.
Interpreter Can you repeat the question?
Member I want you to be very clear about your claims. I want to understand your claims so I need you to wait for me to ask you questions.
Applicant Yes
Member Right so are you now saying that you will face harm because you think the Egyptian authorities will know you attended demonstrations in Australia? Is that what you’re saying?”
The applicant does not dispute that he did not raise the matter of his claimed protest activities in Australia with the delegate.
What he takes issue with in grounds 4 and 5 is the Tribunal’s relevant findings that he had the opportunity to raise this matter before the delegate and that the Tribunal did not accept his explanation as to why he did not do so.
As to the evidence as to what occurred before the delegate the applicant’s assertion that the delegate did not give him the opportunity to raise this claim, and did not “squarely” ask him if he was an activist in Australia, was not put before the Court in any evidentiary context.
As set out above the Tribunal raised this matter with the applicant at the hearing. There is no reason to doubt that the Tribunal listened to the audio of the delegate’s interview, as it said it did, and put what it relevantly said it heard to the applicant (T 49, line 13 – T 50, line 24):
“Member Alright okay. Just give me one second. The Tribunal has information which would be the reason or part of the reason for affirming the decision under review. Okay but I’ve not made up my mind but I’m going to tell you what the information is. So I’m going to tell you the particulars of the information, I’m going to tell you the relevance of the information. I’m going to ask you if you would like to comment or respond to the information or if you’d like further time and if so why. Okay so now I’ll start saying the information. So if you get let me finish saying it all and then let me know if you do or don’t understand it or if you’d like further time and if so why. Okay so the information is that you attended an interview with the Delegate on the 5th of August 2014. Okay the Delegate ask you have you been involved in any protests or activity in relation to the events in Egypt since you’ve been in Australia. Okay your response was just trying to get information, I have a friend. I just try and get information about what’s going on. And I ask about my friends who are still imprisoned.
Interpreter I ask?
Member I ask about my friends who are still imprisoned. And I ask about my friends who are still imprisoned. So I try and get information about my friends who are still imprisoned. Okay now this information is relevant because you did not mention that you were involved in any organisation such as information called Rabya.com.au And you did not mention you’d been attending demonstrations in Australia. You did not mention you’d been attending demonstrations in Australia. If the Tribunal relies upon this information it would find you’re not a witness of truth that you’ve made up your claims about attending demonstrations and that any evidence you’ve produced such as the photos indicates that you’ve been to, that you’ve done some minimal activities in order to have a profile for a protection visa application. Okay and the Tribunal would find that it would not have regard to such activities in determining your refugee claims and it would find that you had occasionally attended but there is no evidence to suggest that the authorities would be aware of that and that you are prepared to make up claims and the Tribunal would find that your claims are not true and the Tribunal would find that you don’t face a chance of serious harm or real risk of significant harm and it would affirm the decision under review. Would you like to comment or respond to the information or would you like further time?”
What follows, including the applicants response is at T 50, line 25 – T 52, line 7:
“Applicant Firstly the decision of the Tribunal I don't know what it will appear. And secondly I didn't say I was in Rabya. He was limited in his questions. And I was giving answers according to the question. The danger for me in Egypt, I know about this danger and I am terrified about this danger against me in Egypt. I'm really, really my life is in danger because all these photo were on the internet. The Consulate have taken photos of us. If you want any more evidence from Rabya movement or from the leader of Rabya movement I can get you evidence because I'm among this movement.
Member Sir why didn’t you produce any evidence? Sir you’ve had this ongoing, your application has been ongoing since January 2014. So if that evidence was relevant, why would you have not brought it today? Sir please answer the question if you thought the evidence was relevant why would you have not brought it today?
Interpreter The second half of the question what was it?
Member If you thought the evidence was relevant why would you have not brought it today?
Applicant I'm responding to the question you asked me and you said you are not a member of the movement and the photos are not evidence of the movement. I was coming to talk about myself not bringing the evidence that is needed. If they have asked me about the evidence before I would bring it.
Member Well sir you were sent a letter via your agent that all of your claims should be provided to the Tribunal seven days before hand. That didn't happen. Today's the first time I've ever heard about you being involved in any Australian organisation. So sir you've had plenty of opportunity to mention this organisation including at the Delegate's interview.
Applicant When I was at the interview with the Delegate all my thoughts was what happening with me in Egypt. And when they visited my family and gave the warning to my family in 2015 it was after the meeting with the Delegate. Participation in the Demonstration it was a motif a motif from myself against the regime. When I was during the interview 5 August I didn't have all the threatening from this state and I was thinking the danger there not here. 2015 I knew that the danger for me is from my participation in this demonstration. The meeting in the Immigration I did it in 2014. If you can't believe me I can get some letters. If you say I don't believe you I can get some written letters and evidence. I'm thinking now of getting the evidence for you because you say you don't believe me.
Member Sir it is up to you to produce your evidence okay? You've had plenty of opportunities to do so. The Delegate didn't believe you okay so you should of been getting any evidence together that you needed to.”
The Tribunal was not bound to uncritically accept the applicant’s explanation in this regard. In essence both grounds 4 and 5 do not rise above a disagreement with findings made by the Tribunal which were reasonably open to it on what was before it, and for which it gave logical and comprehensive reasons probative of the evidence before it. In large part the applicant’s own evidence. Grounds 4 and 5 are not made out.
The grounds of the application to the Court do not reveal jurisdictional error in the Tribunal’s decision.
As set out above the applicant raised further matters before the Court.
First, that during the hearing the Tribunal member insisted that he only give “yes” or “no” answers. This was because the Tribunal member wanted an “outcome” that was “against” the applicant.
It is the case that at certain parts of the transcript the Tribunal member is reported to have asked the applicant to answer “yes” or “no”. See for example at T 9, line 20: “Member Sir can you tell me the next date you demonstrated yes or no”. This serves as an example for the other occasions when this occurs.
It is clear by what precedes this statement by the Tribunal (and all other similar statements in the transcript) that the Tribunal, in context understandably, had become exasperated with the applicant’s inability to answer the questions asked and to seek to obfuscate his answers. (See [47] of this judgment above).
This was not an isolated example of the difficulty faced by the Tribunal in eliciting a clear answer from the applicant. Amongst other things this provides the probative basis for the Tribunal’s finding that the applicant’s evidence was variously vague and evasive (see also in response to his answer about the FJP card, see [54] at CB 157).
The applicant’s complaint to the Court with its reference to wanting a predetermined “outcome” may have been a layman’s attempt to allege bias on the part of the Tribunal member.
If so given the seriousness of any such assertion it must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17 at [69]). Given what is set out above the applicant’s complaint is not supported by the evidence before the Court. No legal error is indicated here.
In submissions the applicant also made various references that the Tribunal member “ignored all the explanations” he gave. On the evidence the Tribunal did not “ignore”, or fail to consider, the applicant’s claims and explanations. Rather it did not accept them for the reasons that it gave. Again no legal error is indicated.
The applicant also took issue with what he said was the Tribunal’s acceptance that he would be at risk of harm if he were to return to Egypt because of the photographs he had provided to the Tribunal. These were said to be photographs taken when he and others were demonstrating at the Egyptian diplomatic missions in Australia. The applicant’s complaint was that the Tribunal’s finding in this regard was contradictory to its ultimate conclusion.
As with much of the applicant’s grounds and complaints before the Court, this misconceives the actual findings made by the Tribunal and misrepresents the Tribunal’s relevant reasoning.
The Tribunal did consider the applicant’s activities in Australia for the purposes of considering the criterion for the protection visa set out at s.36(2)(aa) of the Act (see at [90]–[98] and [113]–[119], and in particular [116]).
As part of this consideration the Tribunal did have regard to photographs of the applicant, and others, “…attending demonstrations/activities” in Australia and as these appeared “…on the Raaba Australian Facebook page” ([90] at the first dot point at CB163).
The Tribunal was prepared to accept that someone other than the applicant posted these photographs on the Facebook page. At the first and second dot points of [90] the Tribunal stated:
“Although the Tribunal has disregarded the applicant’s attendance at demonstrations/activities in Australia as a result of the operation of s.91R(3) of the Act in assessing the applicant’s refugee claims, the Tribunal cannot disregard other relevant evidence:
·The Tribunal accepts that there are photos of the applicant (and others) attending demonstrations/activities on the Raaba Australia Facebook page. The applicant said that his name does not appear online, and that there are many photos of many other people on the website. The Tribunal is prepared to accept that the posting of the photos was done by someone other than the applicant. The Tribunal has considered whether there is a real chance or real risk that the authorities are or will be aware of this.
·Further, the Tribunal notes the applicant’s assertion that he was photographed by the Egyptian authorities at demonstration(s), and in this regard, the Tribunal has considered whether the Egyptian authorities may have monitored protests in Australia where the applicant has been present.”
However, the Tribunal found that with reference to country information before it, that these photographs would not come to the attention of the Egyptian authorities. The Tribunal’s reasoning is at [91]–[97], and concludes at [98]:
“98. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance or a real risk of having come to the attention of the authorities or coming to the attention of the authorities for his minimal activities/demonstrations in Australia or the photos on the RAB4A Facebook page. The Tribunal is not satisfied that the applicant is, or faces a real chance or real risk of being of adverse interest to the Egyptian authorities because of his activities in Australia.”
The Tribunal’s finding was reasonably open for the reasons it gave. Again no legal error is revealed.
For the sake of completeness, and although the applicant did not raise any issue in this regard, I note the Minister’s submissions in relation to a certificate purportedly made pursuant to s.438 of the Act which referred to documents on the applicants Departmental file:
“48. Although not pleaded by the applicant, the first respondent notes there was a s 438 certificate on the applicant's offshore Student visa file requested by the Tribunal. Copies of the certificate and the folios in respect of which the s 438 certificate was issued are not available (see: Sangha affidavit). Despite this, the Tribunal's decision record expressly notes the s 438 certificate stated that disclosure was said to be contrary to the public interest because the documents contained information relating to "an internal working document and business affairs" (CB 161, [78]-[79]). The Tribunal found the certificate was invalid as it did not specify a reason that could form the basis of a claim for public interest immunity and discussed this with the applicant at the hearing (CB 161, [79]).
49. As the Tribunal disclosed the existence of the certificate and otherwise proceeded to treat the documents in "the usual way as if there was no certificate", MZAFZ11 and Singh12 are relevantly distinguishable.”
[Footnotes Omitted.]
I agree with the Minister that no legal error is indicated here in the Tribunal’s decision for the reasons set out in the Ministers submissions.
Conclusion
In all the grounds of the application and the applicant’s complaints to the Court do not reveal jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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