Efq17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 192
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 192
File number(s): SYG 2936 of 2017 Judgment of: JUDGE VASTA Date of judgment: 24 February 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth):s 91R(3) Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Division: Division 2 General Federal Law Number of paragraphs: 98 Date of last submission/s: 24 February 2022 Date of hearing: 24 February 2022 Place: Brisbane Counsel for the Applicants: Mr Bagley Counsel for the Applicants: Kinslor Prince Lawyers Counsel for the First Respondent: Ms Laing Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 2936 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFQ17
First Applicant
EFR17
Second Applicant
EFS17 (and others named in the Schedule)
Third Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
24 FEBRUARY 2022
BY CONSENT, THE COURT DECLARES THAT:
1.EFT17 never made a valid application for a protection visa on account of the operation of s 91P of the Migration Act 1958.
BY CONSENT, THE COURT ORDERS THAT:
2.The amended application of the Fourth Applicant, EFT17, be dismissed.
THE COURT ORDERS THAT:
3.The application filed on 21 September 2017 be dismissed.
4.The Applicants pay the First Respondents costs of and incidental to the application fixed in the sum of $5,600.
5.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
NOTATION:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 6 September 2017, the Administrative Appeals Tribunal (“the Tribunal”) affirmed decisions not to grant the Applicant, EFQ17, and his other dependants, being EFR17, EFS17, EFT17 and EFU17 protection visas. On 21 September 2017 the Applicant asked this Court to review the matter.
The matter came before His Honour Judge Dowdy on 26 October 2017. His Honour stood the matter over for, in effect, a callover and, on 12 March 2018, His Honour adjourned the matter generally. The matter became part of the National Migration Docket and was allocated to me to hear this morning at 10 o'clock Brisbane time, 24 February 2022. That is a period of well over four years since the Applicant first lodged his application. The Court must apologise to the Applicant for the inordinate delay in being able to finalise his matter, and that is part of the reason that I am giving ex tempore reasons today. The delay that the Applicant has suffered has been well and truly long enough.
There is also another aspect to the matter. Whilst the Applicant, EFQ17, is the primary Applicant, he is in this country with his wife and children who are the other Applicants, as I have already identified. His wife is EFR17 and his children are EFS17, EFT17 and EFU17. There is an issue with regard to EFT17 because it would seem that he does have dual citizenship and it may be that he has not made a valid application. I deliberately excise EFT17 from the consideration of this matter and the parties have indicated that they will soon forward me consent orders with regard to the disposition of the application by EFT17.
The background to the matter is that the Applicant is a national of Egypt. He holds an Egyptian passport. He was born in March 1974. He was, at the time of leaving Egypt, an IT manager in an energy company. The claim that he makes is that his troubles have all started from demonstrations that occurred in Egypt from January 2011 onwards. The Applicant said that he participated in demonstrations on 25 January 2011 and 28 January 2011. He said, with regard to those demonstrations, there were about 900 people who were killed and many more injured. He said that he and his friend, whom I will call Y, established a party called the Egyptian Street Movement.
He said the aim of the Egyptian Street Movement was to promote democracy, to educate people about civil governance and to oppose the military establishment. He said that this organisation organised many conferences and meetings, and he was very active in managing the demonstrations and conferences and the publication of pamphlets. He said that he had written some articles published in the local newspapers and the TV channels covered their activities. He said that there was a good response to their activities from the Egyptian people, but they realised that they lacked the necessary funding and experience. Whilst their aims were to participate effectively in a new government, they concluded that how they had structured the Egyptian Street Movement was not going to see them realise that goal.
The Applicant said that he and Y joined the Freedom and Justice Party, the FJP, but neither of them joined the Muslim Brotherhood, which I will note as being MB. The Applicant said that he and Y worked with the FJP in matters relating to the administration of the People's Revolution. He said that their role was to promote services such as medical teams, that they give free consultations and treatment to the poor or sell food products at reduced prices or cheaper medication or stationery for children. Whatever revenue they received went to the poor and needy. The Applicant said that he contracted with the hospitals to do cheaper medical operations.
He said that he was active in the distribution of food rations and gas bottles. He said that he had a special role in that he was responsible for the suburb in which he lived. He said he was the coordinator for exhibitions, for the maintenance of food, medical and substantial services, and he was responsible for the management of conferences and political gatherings. He said that he attended weekly meetings at the suburban level and monthly meetings at the provincial level. He said that high ranking party members of the FJP used to attend these meetings and it was there he meet Dr Mohamed Morsi. Dr Morsi would later go on to become elected President of Egypt.
The Applicant said that these meetings were to evaluate the services and assess the political situation in Egypt. He said that his role was to liaise with important people in Egypt; journalists, politicians and the like, and to invite them to the meetings that they were having. He said that some of these meetings were broadcast on TV. He said that he and Y continued their social and political work after the election in 2011 and that Dr Morsi was elected President in 2012. He said that once that had happened, he felt satisfied about the work he had done. He said that he and Y became popular. The people approached him to share their ideas about what was happening in Egypt and he felt close to achieving his goal of fighting corruption and establishing freedom.
He said, however, the results of the election were not accepted by the military, the judiciary and the police. He said that there were demonstrations against the government on 30 June 2013. He said,on 3 July 2013, there was a military coup led by Mr Sisi. He said that President Morsi was imprisoned and arrest warrants were issued for more than 300 members of the FJP and the Muslim Brotherhood. He said that he and Y organised a sit-in in the area called Rabaa Square on 28 June 2013. He said hundreds of thousands of people took part in the demonstration against the military coup calling for the restoration of the legitimate government and of President Morsi. He said that he and Y managed part of these demonstrations. He said that there was an agreement that the demonstration should be peaceful, but that events developed quickly and there were about 80 people killed and many more injured in clashes with the army. He said that he and Y helped get the injured to medical assistance.
He said that during that time, he used to meet with high-ranking leadership at Rabaa Square and he would obtain instructions about the management of the protests. He said that, on 14 August 2013, the defence minister, and the military, used force to end the protest. He said that he managed to flee the scene. He said that two days later, there was another demonstration in Ramses Square and he took part in that demonstration. He said that security forces attacked the demonstrators, killed nearly 160 people, and injured more than 1000 people. He said that he was injured in his head, but that he and Y were able to escape.
He said, on 6 October 2013, he participated in another demonstration. He said the security forces again used force to end the demonstration and, during his escape, he was shot and fell to the ground and he said he was carried away, bleeding from his back and his leg. He said that he and his family received telephone calls from unknown people threatening to kill him or torture him and his family unless he stopped his activities against the military regime. His family were so scared about the threats that his daughter became hysterical and needed urgent psychiatric treatment. He said that his children stopped going to school as they feared for their lives. He said that he did not stop his campaign because he believed that what had happened in Egypt was unacceptable.
He said that, on 11 September 2013, he received a telephone call from the wife of Y wanting to know if Y was with him. She was concerned because it was late and she did not know where he was. She said it was curfew time and he was not answering his telephone. The Applicant said that he rang many people to inquire about Y, but no one knew anything about him. He then said that someone that he knows received a telephone call from Y’s mobile telephone stating that Y’s body was found lying on the ground covered in blood with torture marks clearly visible on his body. The Applicant said he did not go to the hospital, but he contacted them by telephone and was informed that Y had passed away as a result of the beating and torture that he suffered. He said that he later found out that Y was stopped in the street and arrested by the military who tortured him.
He claimed that, in order to avoid the same fate as Y, he decided that he and his family should escape. He left his job and his home and he went into hiding at the home of his father-in-law. He said this occurred on 13 November 2013. He said his father-in-law was a former major general in the army and still had contact with some of his military colleagues and was able to protect him. He said that his own father told him that the police and intelligence agents were raiding his house. His father told him that he, the Applicant, was going to be arrested and that his name was added to the list of people that the government wanted to punish. His father told him that he, the Applicant, was prohibited from leaving Egypt and that they had evidence against him. They had photographs showing him in Rabaa Square with leaders and at gatherings and conferences which he organised against the government.
The Applicant claimed the security forces did not stop looking for him. He said that they sent an agent to investigate with his neighbours and work colleagues. He said that, on 11 February 2014, they raided his house. He said that one of his neighbours told his father about this and that civilians with machine guns damaged the contents of his house while police cars were waiting for them outside. He claimed that his father reported this incident at the police station and the police chief told his father that he had no idea who had done that, but, after making some telephone calls, he was told that the national security agency was looking for the Applicant because of his involvement with the FJP and the leaders of the FJP at Rabaa Square. The Applicant said that his father was also told that they had photographs of the Applicant with high ranking FJP leaders and they threatened his father that he, the father, would be punished if he knows where the Applicant is or if he hid the Applicant.
The Applicant said that his house was again raided on 29 May 2014 and his father did not go to the police this time. The Applicant said that his father-in-law passed away on 11 August 2014. He said that he decided to hide in another place. On 20 August 2014, his wife was fired from her job for security reasons. The Applicant said he then decided to leave Egypt but was prohibited from travelling outside Egypt. He asked one of his friends who had a friend in the police to assist him. This person facilitated their exit from Cairo with the assistance of another person who worked at Cairo airport. This person stamped their passports and that person asked for a bribe of 50,000 Egyptian pounds and they agreed to pay 40,000 Egyptian pounds. This had to be paid one day prior to his departure. The Applicant said he then applied to the Australian Embassy for a visitor visa and he left Egypt on 19 October 2014. He said that since he has been in Australia, he has partaken in activity that was critical of the government of Egypt.
The Tribunal was very thorough in assessing these claims. The Applicant had made these written claims when he first applied for the protection visa. The Applicant then was interviewed by the delegate. The delegate made a decision not to grant the Applicant and his family protection visas and gave reasons for that decision. The Applicant took the matter to the Tribunal and made submissions to the Tribunal that focused upon the criticisms that were made by the delegate in the delegate's reasons. The Applicant attended a hearing before the AAT and then the Applicant also made post-hearing submissions.
I can summarise that the AAT did not find the Applicant to be a credible witness and did not accept a vast majority of his claims.
There are two aspects of the examination by the AAT that I ought highlight. The first concerns the role that the Applicant had with the FJP. The Applicant had said that he and Y joined the FJP but not the Muslim Brotherhood, but that he, the Applicant, did a lot of the charity work that the Muslim Brotherhood was doing. But the Applicant was also organising high-level meetings. The decision record of the delegate noted that there were inconsistencies as to when it was that the Applicant had said that he joined the FJP. In explaining away those inconsistencies, the Applicant had stated that he joined the FJP as an ordinary member, but later became superior.
He was asked whether he was elected to, or appointed to, any position within the FJP and he answered no. The Tribunal noted that this was not consistent with his claim in his visa application that he had a special role in the FJP. The Applicant had said that he did not become a member of the MB and when asked why he did not, he said that religion and politics should not be mixed; that the religion is sacred, but in politics you have tactics and strategies and do not have to be honest all the time. He said that the FJP was not managed by the MB. He stated that the MB provided subsidised food and medication to people and operations and hospital services to the poor. Despite his claim that he was not a member of the MB and the FJP was not managed by the MB, he said that he was responsible for the charitable works that are usually the province of the MB.
The Tribunal found that it was implausible that the Applicant, as an ordinary member of the FJP, who was not a member of the MB, would be involved in activities carried out by the MB, particularly in view of his evidence that the FJP was not managed by the MB. The Tribunal also found it implausible that, as an ordinary member of the FJP or an ordinary superior member of the FJP who was not a member of the MB, he would have the power and authority to enter into contracts with the hospitals to provide cheap or free medical operations for those who are unable to pay for those services, or to be able to coordinate exhibitions.
The Tribunal also found it implausible that the Applicant as an ordinary member of the FJP, would have been given the role of liaising with important people in Egypt, including journalists and politicians, or be the person responsible for inviting them to meetings that were broadcast on TV, or host high ranking party members who were broadcast on different TV channels. The Tribunal said that they were of the view that the Applicant fabricated these claims and the nature of his role and involvement in the FJP.
The Applicant told the Tribunal during the hearing about his party membership. At page 15 of the transcript that has been provided, at line 5, the AAT asked the Applicant:
MEMBER: Are you still involved with the Freedom of Justice Party?
[The Applicant]: Yes, for sure, but you know that Freedom of Justice Party dismissed and all activities stopped, but I still know people there still, some people life, so I still know them and they know me.
MEMBER: So you're saying you know people in Egypt who were in the party?
[The Applicant] Yes, my colleagues, my supervisor. But the party officially should be stopped and dismissed.
MEMBER: So when did you - would you say you're still involved in the party or you’re not?
[The Applicant] Still involved with as a member, but nothing officially now in Egyptian because even they burn our buildings –they burned our main buildings, burned all documents but nothing on the paper say that except my membership cards, and I destroyed that before I came here, destroyed before, I destroyed it before I came here to Australia, I just photocopied and upload it to the Cloud.
The next aspect of the findings, that I should highlight, are to do with the death of Y. The Tribunal noted that the Applicant claimed that there was simply a phone call from the wife of Y on 11 September 2013. Before the Tribunal, the Applicant gave evidence that a work colleague of Ys received a telephone call from someone who had found Y on the street. Y had been beaten and tortured and he was taken to the hospital. The Applicant said that Y was found by an ambulance officer on the street with his body covered in blood. The Applicant stated that he informed Y’s family of this and they contacted the hospital. The Applicant said that he subsequently received a telephone call from a relative of Y to inform him that Y passed away after midnight. He said that Y’s family found out from people on the street that Y was injured by civilians with machine guns who left him on the street and got into two identical cars. The Applicant stated that these people were organised.
The inconsistencies in what is in the Applicant’s application, and the evidence that he gave, raised concerns for the Tribunal about the veracity of these claims. The Tribunal noted that the Applicant gave to the department a report from an examining doctor dated 12 September 2013, a death certificate dated 11 September 2013 in relation to Y, and a Coroner’s report dated 21 December 2013 and another report dated 24 December 2013. The Tribunal noted a number of problems with those documents.
The examining doctor’s report was dated 12 September 2013. It indicated that Y was transferred by the police department to the hospital check point at 1 o'clock. It indicates that a medical examination was conducted and that :
There was an allegation of assault, after performing the medical examination and the x-ray, we found that there are some fractures in the upper forehead above the right eyebrow, there were also many cut wounds in the face and in the forehead, the patient was in a comma (sic), during the CPR his heart stopped functioning, CPR resumed for the heart muscle and lungs but without response, he passed away under the mercy of God, the corps [sic] will be transferred to the coroner after 2 hours, under the supervision of the public prosecution.
The death certificate indicates that Y died on 11 September 2013 but it does not indicate the cause of death. The Tribunal noted that the delegate raised as an issue the authenticity of those documents and the veracity of the Applicant’s claims. In the submissions that the Applicant made to the Tribunal, he responded to the findings in the delegate’s reasons and, in relation to the issue of discrepancy and the date of death, the Applicant said that the death certificate is issued on the date of death regardless of any reports and that, because Ys death was the result of a criminal act and not by natural causes, it was possible that the report of the doctor or the hospital were delayed by a day or two after the date of death. The death certificate issued at the request of the deceased’s parents accompanied by witnesses and the doctors said the report was issued after more than a day, not only one day.
The Tribunal noted that the submission of the Applicant was not consistent with his own evidence, in his visa application, where he claimed that, on 11 September, he received a telephone call and that the telephone call was made around curfew time and that he received information later from a family member of Y that Y passed away on 12 September, after midnight, which was different to the date in the death certificate.
The Coroner’s report indicated that a doctor in the Coroner’s Office conducted a medical check and autopsy on the body of Y at 11 am on 13 September 2013. The report provides details of extensive injuries on the body including injuries to the scalp, face, chest, abdomen, elbows, groin, arm, knee, leg and face. That report is not consistent with the examining doctor’s report. The only injuries referred to, in the examining doctor's report, were all facial wounds which were cuts. The Tribunal said that they were of the view that it is implausible that the examining doctor at the hospital would only provide details of injuries to the patient’s face and not to his body in his report. The Coroner’s report referred to many wounds stitched with medical stitches, and whilst the examining doctor’s report did not indicate that any of the cuts were stitched, the Tribunal found it implausible that the examining doctor at the hospital would have stitched the cuts on the patient’s face prior to administering CPR or stitch the cuts on the patient’s face after he died and then not noted them in the report.
The Coroner’s report also indicates that the bruises observed on the body occurred by contacting solid surfaces of whatever kind, such as the use of “the sword”. That report also indicates part of the goods that were seized was a sword used by the accused KAI in the case number which was given. The Tribunal noted that the report also indicated that “we observe the sword. We conclude that it can cause the above mentioned injuries.”
This is not consistent with what the Applicant had claimed, that Y had been arrested by the military who tortured him to death. It was not consistent with his evidence that Y was injured by civilians with machine guns who left him on the street and got into two identical cars. The Applicant did not give any evidence in his visa application or give any evidence to the Tribunal that Y had been injured with a sword or that someone had been arrested and charged in relation to his death.
The Coroner’s report indicated that it was compiled at one day since the autopsy was performed, but the report was dated 21 December 2013, even though the autopsy was apparently conducted on 13 September 2013.
The Tribunal noted that those problems raised further concerns about the authenticity of the documents and the veracity of the claims made in relation to the death of Y. In submissions to the Tribunal the Applicant responded to the inconsistencies as follows:
I made copies of the original report but, (as happened before) many of the reports of the deaths contained incorrect information with the parents being forced to sign on the cause of death from suicide and always be manipulated reports.
The Tribunal noted that the submission made little sense as there was no suggestion in any report that the cause of Ys death was suicide. The response given by the Applicant did not explain the inconsistencies in the reports or do anything to alleviate the concerns of the Tribunal.
In those same submissions, the Applicant responded to the finding by the delegates that the claims in relation to Y’s death were fabricated because he failed to mention that Y had been attacked with a sword and the suspect had been accused of the crime. The Applicant submitted:
…the case officer [which I presume is a reference to the delegate] repeatedly said that we do not have time enough to discuss all the details and lets move forward. In addition, I did not care at all about the content of police reports as they are expert in changing facts and falsifying reports. Note the famous case of the Italian student Giulio Regeni, where the police issued several different and contradictory reports.
The Tribunal noted that this submission made little sense. The Tribunal reasoned that if the Applicant felt that he did not have sufficient time during his interview with the delegate to provide full details, he had the opportunity to do so in his submissions to the Tribunal. His submissions to the Tribunal were done with the assistance of a migration agent and with plenty of time to do so.
The second thing is that if the Applicant did not care at all about the content of police reports, it makes no sense that he would then provide reports to the department to support his case. Thirdly, the reports that he provided to the department were not police reports (which he claimed he does not care for): the reports were from an examining doctor at the hospital and a doctor at the Coroner’s Office. The Applicant made no attempt to explain the inconsistencies between these two reports that were prepared by doctors and not the police.
At paragraph 57 of their Reasons, the Tribunal said the above problems cause concerns for the Tribunal in relation to the authenticity of these documents and the credibility of the Applicant’s claims in relation to Y’s death.
The Tribunal went on to say that, in the visa application, the Applicant said that in order to avoid the same fate as Y, he decided that he and his family should escape and that he left his job and his home and went into hiding on 13 November 2013. And during the hearing the Applicant gave evidence that after the death, he feared for his life and the safety of his family and that he feared that what happened to Y would also happen to him too. He said that he was in shock and he was deeply fearful. He said that his wife and children went to live with his father-in-law while he remained at home and he said that he later thought it would be better for him to move to his father-in-law's house.
He was asked by the Tribunal why he continued living at his home until November 2013 if he were afraid he would be killed like Y was. He responded that he was not sure if it was the Egyptian authorities who killed Y. He said that they usually arrested people. He said it was the first time that someone was killed in the street. He said that Y’s family found out from people in the street that civilians killed Y and some of them were armed with machine guns and they left in two cars that were the same. He said that they were organised.
The Tribunal said that this explanation, as to why he delayed leaving his home and moving to his father-in-law’s home, was implausible and made no sense. The Tribunal said that if the Applicant truly feared suffering the same fate as Y, it would have made no difference to him whether Y was killed by Egyptian authorities or civilians with machine guns. The Tribunal said that if the Applicant feared for his life after the death of Y, he would have gone into hiding immediately and not waited until November 2013 to do so. The Tribunal said that the conduct was not consistent with his claims and it raises concerns in relation to the credibility of his claims.
There were other findings made about credibility matters and the claims that the Applicant made. I do not propose to go through them as they are not helpful in being dispositive of this application.
The Tribunal did, however, look at the Applicant’s activities in Australia. The Applicant gave evidence that he has attended demonstrations with people from MB and FJP in Lakemba in 2014, Bankstown in 2014 and York Street, Sydney in 2017. When he was asked what he or the organisers of these demonstrations were hoping to achieve, the Applicant responded that they wanted to make the Australian Government aware that what happened in Egypt is murder and a military coup. When asked whether he thought that the Australian Government was not aware of what happened in Egypt, he responded that they are trying to do their part to support families of the people who were injured or killed and to say that they will not forget. He said that they were not going to give up their cause or their political stance.
The Tribunal spoke to the Applicant about what had happened with regard to free elections in Egypt and the Applicant had answered that the government was still arresting thousands of people and shutting down TV channels. He was asked by the Tribunal what he was hoping to achieve from Australia and he responded that he wanted them to return to legitimacy. When he was asked how he was going to do that from Australia, he responded that they have a message to deliver to the people that democracy cannot be achieved through the army. He said that they had been filmed, they are on Facebook and that every country has a similar organisation. The Applicant had given to the Tribunal a number of photographs that he claimed were taken at these three demonstrations.
He also provided photographs of the man, which appear to have been taken whilst he was on a conversation program, with the Sydney skyline in the background. The Applicant said that he took these photographs to show that this man is high ranking. He also provided a photograph of him with this man in front of a house.
The Tribunal had to have regard to the provisions of s 91R(3) and raise with the Applicant their concerns in relation to his motivation for engaging in political activities in Australia. The Applicant responded that his participation in demonstration in Australia was real and genuine and based on his beliefs and principles.
The Tribunal discussed with the Applicant what he thought was likely to happen if he returned to Egypt. He said that the Egyptian authorities would figure out that he left Egypt unlawfully, that he would be charged in relation to that matter. He said that his passport has now expired and he will be asked how he was able to stay in Australia with an expired passport. He said they will figure out that he has applied for asylum from the length of his stay in Australia. He said he will be charged in relation to that. He was asked if he had any other concerns about returning to Egypt and he said that his name is on the watchlist and he will be asked how he got out. He will be asked about how he stayed in Australia for almost three years without a work contract.
He was asked if there was any other reason why he feared returning to Egypt and he reiterated that his name was on the watchlist and he will be asked how he got out of Egypt and how he was able to stay in Australia for so long. The Applicant did not mention any other fears or concerns.
After the hearing there was a statutory declaration given to the Tribunal from a person who was the President of R4BIA Australia. That person said that the Applicant is a regular participant in demonstrations in Australia against the military coup in Egypt, against Mr Sisi’s rule and his government and in support of the return of legitimacy by the return of former President Morsi. The person said that the Applicant was an active member of R4BIA Australia Facebook page and has many photographs of himself on that Facebook page.
He said that the R4BIA Australia Facebook page is monitored by Egyptian authorities and that he believes that the Applicant would face significant harm if he returns to Egypt. That person did not indicate how he is aware that the R4BIA Australia Facebook page is monitored by Egyptian authorities. The Tribunal had a look at that Facebook page itself. It did contain a large number of videos and photographs. The Tribunal was able to find a photograph and a video of the Applicant among a group of people participating in the demonstration.
A flash drive had been provided by the Applicant. That contained footage of a television reporter who appears to be interviewing people from around the world. It showed that there was an interview with the person who had provided the affidavit. That person was speaking about the activities conducted by R4BIA Australia, but there was no date stamp to show when this happened or what television channel it was on. The Tribunal then made a number of findings, as I have already indicated. The Tribunal commenced their findings at paragraph 102 by saying:
102. Having considered all of the first named applicant’s claims and all the evidence, the Tribunal finds that he is not a witness of truth. The Tribunal finds he fabricated some of his material claims and embellished others for the purpose of obtaining a Protection visa.
…
106. The Tribunal has doubts that the first-named applicant was a member of the FJP, but is prepared to give him the benefit of the doubt and accept that he was an ordinary member of the FJP. The Tribunal does not accept that he played a leadership role or an organizational role or had a “special role” in the FJP. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal accepts that he was not a member of the MB. The Tribunal does not accept he was involved in any charitable activities on behalf of the MB or the FJP. It follows that the Tribunal does not accept any of his claims that flow from that, including that he continued his social and political work after the election in 2011. The Tribunal is not satisfied that there was a real chance of serious harm or a real risk of significant harm because he was an ordinary member of the FJP if he returns to Egypt now or in the reasonably foreseeable future.
…
110. The Tribunal does not accept that the first named applicant’s friend [Y] was tortured and killed by the military or, alternatively, by civilians armed with machine guns. It follows that the Tribunal does not accept any of his claims that flow from this, including that he was in hiding since November 2013. The Tribunal is not satisfied that the documents provided in relation to [Y’s] death are authentic documents.
At paragraph 113, the Tribunal said that they accepted that, since coming to Australia, the Applicant has attended demonstrations organised by R4BIA Australia. The Tribunal accepted that R4BIA Australia has uploaded a large number of videos and photographs on their Facebook account and that the Applicant appears in the background in a few of them. The Tribunal was not satisfied there is a real chance that he will be identified from them. The Tribunal was not satisfied that his attendance at these demonstrations is otherwise than for the purpose of strengthening his claims to be a refugee and, therefore, is required under s 91R(3) of the Migration Act 1958 (Cth) (“the Act”) to disregard this conduct in its assessment of his well-founded fear of persecution. At paragraph 114 the Tribunal stated:
114. The Tribunal is not satisfied that the first named applicant will become involved in any anti-government political activities, attend demonstrations or wish to do so if he returns to Egypt now or in the foreseeable future.
115. The Tribunal is not satisfied that the first named applicant is at risk of serious harm or significant harm if he returns to Egypt now or in the reasonably foreseeable future because of the length of his stay in Australia and/or the fact that he did not have an employment contract in Australia and/or his passport has expired and/or he is a failed asylum seeker.
For those reasons, the Tribunal did not find that the Applicant met the refugee criteria.
The Tribunal went on to look at the complementary protection criteria. The Tribunal said because of the findings that they had already made, they were not satisfied that the Applicant is at risk of significant harm because of his actual or imputed political activities in Egypt if he returns to Egypt now or in the reasonably foreseeable future. The Tribunal was not satisfied he would become involved in any anti-government political activities, attend demonstrations, or wish to do so if he returns to Egypt now or in the foreseeable future. The Tribunal was not satisfied that the Applicant was at risk of significant harm if he returns to Egypt now or in the reasonably foreseeable future because of his length of stay in Australia or that he did not have an employment contract or that his passport expired or that he was a failed asylum seeker.
At paragraph 119, the Tribunal looked at the activities that the Applicant had made, notwithstanding that it had made a finding in regard to s 91R(3) of the Act. The Tribunal had to consider whether there was a real risk of significant harm to the Applicant because of his political activities in Australia. The Tribunal said that they have accepted that the Applicant participated in three demonstrations organised by R4BIA. The Tribunal accepted that R4BIA has uploaded a large number of videos and photographs on their Facebook account and that he appears in the background in a few of them. The Tribunal was not satisfied that there was a real risk that he would be identified from them. However, even if he is identified by the Egyptian authorities, the country information from DFAT referred to above indicates that only particularly high-profile cases who gain media notoriety in Egypt are generally of interest to the Egyptian authorities.
The Tribunal made some other findings which I do not need to go through, but found that the Applicant did not satisfy the complementary protection criteria.
Given that he did not satisfy any of the criteria, the Tribunal affirmed the decision not to grant him a visa.
The application proceeded today upon a proposed amended originating application. The proposed application has not yet been filed, but Counsel for the Applicant has undertaken that his instructors will attend to the filing of this application as soon as possible. The Minister had prepared to answer this new application and so did not oppose the leave being granted and I did grant leave.
The new ground 1 is that
2. The Tribunal failed to comply with s 425 of the Migration Act and the obligations of natural justice.
The Applicant identified two particulars of this breach. The first is that the Applicant's ability to be identified by Egyptian authorities from online pictures showing him protesting with R4BIA Australia in Australia was an issue for the Tribunal. The second is that the authenticity of the death certificate, Coroner's report and the medical certificate remained issues for the Tribunal following the Applicant's submissions about those matters.
The basis for the ground is what was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. The facts of that matter are somewhat instructive. The matter involved a person who was employed as a seaman on a ship that belonged, in effect, to the Islamic Republic of Iran Shipping Line. The Applicant jumped ship in Port Kembla and 10 days later applied for a protection visa. His claim was that he had become interested in Christianity. He said that the ship had docked in Dubai and a person that he knew there invited him to a Christian church. He went there and he liked it.
He said that at other ports that the ship stopped, he took the opportunity to go to Christian church services. He said that when the ship had docked at a port in Argentina, he went to a church service and was seen by one of the crew members coming out of that church. He came back to the ship, but that a crew member had reported him to the captain. The captain, in effect, told him that he was not to do that and that he was allowed to leave with a warning, but if he displayed any interest in Christianity, it would lead to the termination of his employment. He said that, before the last trip he had taken on the ship, he was at the home port in Iran. He said that he met four of his friends over coffee and he told them what he had read in the Bible and that he had spent time in Argentina with other Christians and he had been to churches in Brazil and South Africa and that he told them everything he had learned and how different it was to Islam.
The Applicant in that case said this these people were disturbed by what he was telling them and urged him to renounce the heresy and to embrace Islam and he started to receive threatening phone calls at home accusing him of apostasy. He said that he returned to the ship as it was getting ready to sail, but he said that the captain had heard about rumours that were circulating in his home town and that one of the other crew members had told him about what had happened and how the Applicant there had been ostracised. The captain wanted to know why the Applicant was continuing to behave like a deviant and whether he was now a Christian. The Applicant said that he denied that he was a Christian, but the captain did not believe him and said that, as soon as the ship returned to Iran, he would be dealt with accordingly, and until they returned to Iran he would continue with his duties, but he would be supervised at every moment.
He said that he grew fearful for his safety because the crew were angry at him and could not understand why he was not locked up on the ship. He said, about a month later, the ship was now in Port Kembla. He said that he was feeling very sick because of the psychological and mental harassment. He said he was in pain and he sought permission to get medical attention, and he said that he thought that the captain only allowed him to leave because he might die on board the ship and, therefore, the captain might be responsible. He said he was granted permission to get medical attention in Australia and he said that he knew he had to find a way off the ship and he was petrified that he would be dead by the time the ship returned to Iran.
Now, what occurred was that the delegate, in the hearing of the matter, did not consider that the Applicant was truly committed to Christianity. The delegate had said that the decision to return to the vessel on 6 April 2001 was not consistent with the actions of a person who feared being seriously mistreated, or even killed, by a crew angered by his alleged interest in Christianity. The delegate did not make any mention in his reasons about the account of the Applicant telling friends in his home town about his interests in Christianity or being called before the captain soon after this.
Having received the delegate's decision, the Applicant put in a further statutory declaration for the Tribunal. In that declaration, and then in oral evidence before the Tribunal, the Applicant said that one of the crew members was a person who came from the same home town and that is how he surmised that that person knew about the meeting with his friends and what had happened from there and that was how the captain found out.
He also said that when he left the ship for medical treatment, he was sent to the medical treatment with someone accompanying him and then he returned to the ship. The Tribunal had said that they did not accept the claim because there were key aspects of the claim that lacked credibility, and those matters were so tenuous as to be implausible.
The Tribunal considered that it was implausible that a personal conversation would attract the attention or interest persons in the town and become public knowledge so that a crew member from the same town had knowledge of it. Further, it was implausible that the captain would have acted in the way that he did and just told the Applicant that he would be supervised. And then further, that there would have been more stringent measures put in place when the ship was in dock.
What the High Court ended up saying at paragraph 47 was this:
But whereas here, there are specific aspects of an Applicant's account that the Tribunal considers may be important to the decision and it may be open to doubt, the Tribunal must at least ask the Applicant to expand upon those aspects of the account and ask the Applicant to explain why the account should be accepted:
The High Court was at pains to point out that having been, as it were, put on notice that the delegate did not accept his version because of his return to the ship, it may very well be that the Applicant believed that there was no issue with the other aspects of his claim; that is the talking to his friends and the captain’s talk to him after learning about what had happened in the town. The High Court said that the Applicant had a right to be heard on those issues, but if he does not know that those issues are, in fact, issues, he would not be given that right to answer them. This is a breach of procedural fairness.
Where the Tribunal went wrong in this SZBEL (supra) matter, was that they did not let the Applicant know that there was issue with what he had said in his claim regarding his friends and what the captain had said to him.
In this case, the Applicant argues that something similar has occurred with regard to the present Tribunal. The first particular being the Applicant’s ability to be identified by Egyptian authorities from online pictures. If one looks at the court book at CB 217, the delegate in their reasoning, said the following:
I could not locate country information that people were being monitored overseas for participating in protests against the removal of Mohamed Morsi or the election of General Sisi. Although, I have accepted that the Applicant was involved in two protests in Australia, I am not satisfied that attendance at these demonstrations would have come to the attention of Egyptian authorities. Consequently, I am not satisfied these activities will put him [at] a real risk of being targeted for serious harm upon return to Egypt. Furthermore, the Applicant’s limited engagement in political activity in Australia, leads me to conclude he would not feel compelled to engage in a political protest in Egypt.
The Applicant then put on some new evidence. That new evidence was the affidavit of the person in charge of R4BIA. The other new evidence was the existence of the Facebook page which the Tribunal looked at itself.
The Applicant claims, as part of this ground, that the Tribunal made a finding that the Applicant would not be identified. Because the Tribunal made a finding that he would not be identified, it behoved the Tribunal to have at least asked him about that matter as per the ratio decidendi in SZBEL (Supra).
There are a number of flaws in that argument. Firstly, there was no finding made that the Applicant would not be identified. What was actually said by the Tribunal was that the Tribunal was not satisfied that there is a real risk he will be identified from them. That is not a finding that he will not be identified from them.
The statement by the Tribunal that they are not satisfied that there is a real risk that he will be identified from them is consistent with their findings, that being that the Tribunal looked through the Facebook page and noted that it did actually see the Applicant in some of the photographs in the background where they, the Tribunal, were actually looking for him. That is perfectly consistent with their statement that the Tribunal is not satisfied there is a real risk he will be identified from them. So in that respect what occurred in SZBEL (Supra) is quite different. There has been no finding made about which the Applicant was not given an opportunity to speak.
Secondly, by the finding made by the delegate, it was obvious that the issue that was before the delegate was whether he could be identified because the government were monitoring the protests. The delegate was not satisfied that attendance of these demonstrators would have come to attention of Egyptian authorities. That was an issue of which the Applicant knew. It is quite a different issue to that which occurred in SZBEL (Supra).
The other aspect is that the Applicant provided the new evidence, being the Facebook page, and the mischief that the Applicant now identifies is that, having provided the new evidence, the Applicant was not asked any questions about it and did not know that the new evidence would not be accepted. That is not the case in SZBEL (Supra). SZBEL (Supra) is where there was nothing to allow the Applicant to know that the matters not mentioned by the delegate would be matters of concern for the Tribunal.
In this case it was obvious that the whole question of the consequences of the Applicant attending those protests and being filmed or identified was very much an issue. The Applicant chose to put more evidence before the Tribunal. The principles of SZBEL (Supra) then do not apply because that matter was well and truly the subject of notice to the Applicant.
And, in this matter, in any event, the Tribunal clearly said as their final sentence in paragraph 119 “However, even if he is identified by the Egyptian authorities the country information from DFAT referred to above indicates that only particularly high-profile cases who gain media notoriety in Egypt are generally of interest to the Egyptian authorities.”
In that situation where there is no finding made, the Applicant has been put on notice, the claim being made is based on new evidence, and, even if there were some error, there is no materiality because the Tribunal has looked at an alternate finding, it would seem to me that there has been no jurisdictional error established.
With regard to the documents, at CB 202 and 203, the delegate made findings. The delegate spoke of the discrepancy in the medical report saying:
a) that Y died on 12 September 2013, whereas the death certificate recorded the date of death at 11 September 2013;
b) That the Coroner’s report dates are inconsistent and contradictory;
c) That the Coroner’s report does not contain consistent information concerning the injuries sustained by the victim when one looks at the medical report and compares and contrasts;
d) That the Applicant failed to mention that the Coroner concluded that Y had been attacked with a sword and a suspect had been accused of the crime, but maintained a claim that Y had been arrested by the military who tortured him in a very cruel way.
The delegate said that:
…If the applicant had obtained the coroner’s report in the manner claimed, I am of the opinion that this important information contained in it would have been presented at the time of application. The fact that details related to a sword attack only came to light when the Coroner’s Report was submitted at interview, leads me to conclude that it is fabricated.
With regard to the other reports, the delegate said:
Consequently, I am of the opinion that the inconsistencies support a finding that the reports are fabricated.
The Applicant submits that he responded to those concerns in the submission given to the AAT before the hearing; that is, as I have already indicated, that they could have been mistaken or something could have gone wrong. The Applicant says that the Tribunal’s failure to ask any questions about this issue meant that the Applicant was not fairly on notice that the Tribunal would consider the issue of whether the documents were inauthentic. It seems to me that the Applicant was very much on notice, and just because he gave an explanation, this did not mean that the Tribunal were obliged to accept that explanation. It did not mean that they were prohibited from accepting that explanation unless they actually asked questions during the Tribunal hearing.
It seems to me, again, somewhat strange for an Applicant to come to the Tribunal hearing believing that the authenticity of those documents was not an issue. He was well and truly made aware that they were in issue. The provision of his answers does not mean that the issue is now totally new and that the issue is deemed to be resolved unless the Tribunal asks questions otherwise. That is not what SZBEL (Supra) is about at all.
In any event, what the Tribunal said was that they were not satisfied that the documents provided in relation to Ys death are authentic documents. They did not go as far as the delegate had. The delegate made a positive finding that they were inauthentic. The Tribunal simply said that they were not satisfied that the documents were authentic documents.
The aspect of Ys death was a matter where the Tribunal looked at the Applicant's account that it was Ys death that prompted him to take the action that he did. It was the examination of what action he did take that also led the Tribunal to make the conclusion that they did not accept that Y was tortured and killed by the military or, alternatively, by civilians armed with machine guns.
So, again, because there was no finding made that the documents were forged or fabricated, because the Applicant was on notice, and, because he was relying on new evidence and not what evidence was before the delegate, SZBEL (Supra) does not have application here.
It was said to me, by Counsel for the Applicant, that in SZBEL (Supra), new evidence was given. But the new evidence that was given had nothing to do with the matters that had not been the subject of adverse complaint by the delegate. If the delegate had made adverse criticisms of the three aspects of the Applicant’s tale in SZBEL (Supra), then there would have been no unfairness by the Tribunal.
The unfairness in SZBEL (Supra) stemmed from the tale that was told before the delegate not being the subject of adverse criticism, and yet it was the subject of adverse criticism by the Tribunal without the Tribunal telling the Applicant that it felt that it would be a matter of concern to them. That is quite different to the situation that has occurred here, where the delegate has well and truly put the Applicant on notice. For those reasons I find that there has been no jurisdictional error illustrated by ground 1.
With regard to ground 2, the ground is that “The Tribunal failed to actively intellectually engage with the Applicant’s complementary protection claim” as a concern of his involvement with R4BIA Australia. The submission was that given what the Tribunal accepted regarding the Applicant’s dealings with R4BIA, that the Tribunal failed to consider the consequence of that evidence being the real risk of harm on return to Egypt by reason of the Applicant's imputed association with the Muslim Brotherhood.
In the submissions, the Applicant referred to evidence that was before the Tribunal from the DFAT report. That evidence was at 3.44 of the DFAT report and it reads:
DFAT assesses that Muslim brotherhood leadership figures and members who continue to pursue political activities actively either within or outside the party structure are highly likely to be arrested and prosecuted. Ordinary inactive members, party supporters and those with family links to members face a lower risk of being targeted from arrest but may be subject to arbitrary arrest during wider security actions. They are likely to come under the close attention of authorities and be subject to surveillance and monitoring of their activities.
As I went through the reasons for the Tribunal affirming the action, I spoke at some length as to what the Tribunal had said about this matter with regard to the complementary protection criteria which also followed on from findings that were made when assessing the refugee criteria. The Applicant claims that the Tribunal’s findings still mean that the Applicant is a person who could have fitted into what the DFAT report said at 3.44 and that, therefore, such was not considered properly.
There is no doubt that the Tribunal looked at what the actual and imputed beliefs of the Applicant may have been, and so they have actually engaged in an active intellectual process, but it seems to me that, on the findings that the Tribunal had made, the Applicant could not fit within the sort of person spoken about in the country information at DFAT 3.44.
Firstly, the Applicant was not a member of the Muslim Brotherhood. Even the Applicant acknowledged that. The Applicant attempted to put himself into the category of being an ordinary inactive member or a party supporter. There was nothing that could put him as an inactive member of the Muslim Brotherhood because he was never a member of the Muslim Brotherhood. He could not be said to be a party supporter because the party is, according to the evidence of the Applicant, non-existent. There is nothing that shows that the Applicant, however, was ever a member of the party because, and it was according to the Applicant's own evidence, everything was all burnt, and the only evidence there is a photocopy of a membership card that the Applicant himself has put up in the Cloud.
It is very difficult to see how it is that, in this situation, the Applicant could fit into the category of being a party supporter, especially where the party that he speaks of is not the Muslim Brotherhood.
It seems to me when going through what the Tribunal has done, that they have covered all that they should have covered and have answered all the claims of the Applicant. Therefore, I do not find that any jurisdictional error has been established.
Having come to those conclusions on the two grounds, I dismiss the application with costs in the sum of $5600.00
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 28 March 2022
SCHEDULE OF PARTIES
SYG 2936 of 2017 Applicants
Fourth Applicant:
EFT17
Fifth Applicant:
EFU17
0
1
0