EFS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1167
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1167
File number: SYG 2279 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 November 2024 Catchwords: MIGRATION – Immigration Assessment Authority - whether the Authority committed jurisdictional error by failing to lawfully consider essential evidence – whether the Authority denied the applicant natural justice and procedural fairness – whether the Authority failed to consider part of a claim – whether the decision was affected by legal unreasonableness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J(5), 473CB, 473DB, 473DC, 473DD, 473DD(b), 473DE, 473GA, 473GB. Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CRI026 v Republic of Nauru (2018) 92 ALJR 529
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 31 October 2024 Place: Perth Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Scott (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 2279 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs, fixed in the sum of $8,371.30.
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
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 12 July 2018. The Authority affirmed the decision of a delegate of the Minister of Immigration and Border Protection (delegate) to refuse to grant the applicant a Safe Haven Enterprise (class XE)(subclass 790) visa (SHEV)(“visa”) on 4 May 2018.
BACKGROUND
The applicant is an Egyptian national. He arrived in Australia on 2 May 2013 as an unauthorised maritime arrival.
On 22 March 2017, the applicant applied for the visa. On 4 May 2018, the delegate refused to grant the applicant the visa.
On 7 May 2018, the applicant’s application was referred to the Immigration Assessment Authority (the Authority) for a fast-track merits review. On 25 May 2018, the applicant’s representative provided submissions, various medical records and an acknowledgment letter for a Freedom of Information request to the Authority.
On 12 July 2018, the Authority affirmed the delegate’s decision not to grant the applicant the visa.
The applicant now seeks judicial review of the Authority’s decision in this Court. For the reasons set out below, the application should be dismissed.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
From [3] to [9] of the Authority’s decisions and reasons, the Authority notes the material before it, given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”). The material is as follows:
·Submissions provided by the applicant’s representative on 25 May 2018, which the Authority had regard to, to the extent that it engaged in argument with the delegate’s decision based on information before the delegate.
·The submissions included a patient health summary from the Bankstown Family Medical Practice, dated 8 February 2018, that indicated treatment the applicant had received for a number of conditions resulting from a motor vehicle accident. The applicant’s representative stated that this information was not before the delegate prior to the decision as the ability of the applicant to provide this information was affected by the mental health condition he was suffering. The representative argued that the delegate would not have drawn an adverse inference about the applicant’s credibility as a result of his vagueness, poor memory and inability to recall details as this was a result of the mental health condition he suffered and a side effect of the medication he was taking.
·The Authority considered the patient health information to be credible personal information in accordance with the requirements of s 437DD(b) and there were exceptional circumstances to justify the receipt of that information.
·The applicant requested for an interview however the Authority determined, after referring to s 473DB, 473DC, 473DD, not to invite the applicant to attend an interview as it considered that there were no exceptional circumstances that warranted this.
At [10] the Authority summarises the applicant’s claims as follows:
•The applicant fears persecution by the Muslim Brotherhood and the Iranian authorities for reasons related to his actual and/or imputed political opinions;
•After the Revolution in 2011, the Muslim Brotherhood had a stronghold in the applicant's village. During Friday prayers, members from the Muslim Brotherhood would pressure the applicant into joining their movement. The applicant refused and he was subsequently kidnapped with other people, detained, beaten and tortured by members of the Brotherhood. He continued to refuse to join and the Brotherhood threatened to start killing family members. Eventually the applicant escaped from the compound in which he was being held captive.
•Three or four months later the applicant fled Egypt with the assistance of his brother. He travelled between Korea, China, Macau and Hong Kong for more than a year. During this period his passport was stolen but he was able to obtain a new passport from the Egyptian Embassy in Hong Kong in 2013.
•The applicant fears that if he returns to Egypt, he will be considered a person who has been recruited by the Muslim Brotherhood, because he was forced to attend one of their training camps. He fears the information held by the Muslim Brotherhood about him was taken by the Egyptian military and will be used against him. He fears he will be arrested by the Egyptian government, tortured and killed.
•The applicant also fears that members of the Muslim Brotherhood will try and force him to join them again.
•Since his arrival in Australia his brother, Abdul, has been arrested by the Egyptian authorities under the new regime of President Abdel Fattah el-Sisi, after attending a political demonstration protesting the two islands over which Saudi Arabia was claiming ownership. Abdul was arrested at the family home and remains in an unknown detention facility. His family are unable to locate any information about his whereabouts or well-being. The applicant fears that his brother's arrest will create suspicion and draw attention to him.
•Also since his arrival in Australia in May 2013 the applicant has become "Westernised". He drinks alcohol and holds a liberal attitude towards relationships. He fears he would be perceived as a "Kaffir" by conservative religious people in Egypt.
•The applicant was in immigration detention on 31 January 2014, and his personal details were leaked on the Department's website during the data breach in February 2014. He fears the Egyptian government will be aware that he has made claims for protection.
•The applicant fears returning to Egypt as a failed asylum seeker.
The Authority set out that it had regard to ss 5H(1) and 5J in making a refugee assessment.
The Authority considered the applicant’s claim to fear persecution by Egyptian authorities for reasons of his imputed political opinion (being his imputed membership of the Muslim Brotherhood). The following findings were made by the Authority in relation to the evidence provided:
·The Authority noted that the applicant had made consistent claims about the Muslim brotherhood attempting to recruit him.
·As to the applicant’s fear of returning to Egypt, in light of his treatment, the delegate had noted inconsistences in the applicant’s account and raised concerns about the applicant’s vagueness about the period after he escaped the camp and before departing from Egypt. The Authority accepted that the applicant had provided evidence of significant mental health problems and, as such, his condition and medications may have affected his memory. Accordingly, no weight was placed on the inconsistences in the applicant’s account [25].
·The Authority noted country information about the situation in Egypt in the latter half of 2011 and was satisfied that in 2012, after the dissolution of parliament, the Muslim Brotherhood was extremely active in developing support of its party. The applicant claimed that he was targeted by the Brotherhood because of his regular attendance at Friday prayers, he did not drink and may have had an appearance of piety, which was attractive to recruiters. The Authority accepted that this was consistent with country information about the people selected for recruitment.
·Department of Foreign Affairs and Trade country information noted that there was an increase in violence in the wake of the 2011 revolution, however there was no information before the Authority to suggest that the Brotherhood recruited members by kidnapping, torture or threats to family members. The country information indicated the Muslim Brotherhood was attempting to appear moderate. In respect of this claim, the Authority accepted that the applicant could have been kidnapped by an Islamic extremist group, detained and tortured for two to three weeks, which could have occurred to him months before his departure in Egypt, but held concerns as to whether it was members of the Muslim Brotherhood [29]-[31].
·The Authority accepted, based on country information, that if the applicant was suspected to be a member of the Muslim Brotherhood by the government in Egypt, there existed a real chance that he could be questioned, detained and subjected to serious harm [33].
·The Authority noted that the applicant had obtained a passport in August 2011 prior to the incident that is central to his claim occurred and renewed his passport at the Egyptian embassy in Hong Kong in August 2013 without any difficulty. This suggested to the Authority that he was not of any interest to Egyptian authorities at the time.
·The Authority did not accept the applicant’s fear that information held by the Muslim Brotherhood had been taken by the military and could be used to accuse him of his involvement in the organisation.
·The Authority found that it was not plausible that five years after the applicant departed Egypt and three years after the Sisi government targeted Muslim Brotherhood members, that his brother Abdul was arrested and detained for affiliation with the applicant. The Authority was not satisfied that the applicant would receive adverse attention from the authorities due to his brother Abdul’s arrest for involvement in a ‘political’ protest [40].
·In his protection interview the applicant had stated that his lawyer had provided a document that was a “political arrest warrant issued after Sisi came into power in Egypt” [41] and he would try to provide this document to the Department of Home Affairs after the interview. On 4 May 2018, a copy of the document was provided to the Department. It was hand written on lined paper, stamped with a seal that is not translated. At [43] the Authority found that this was not an arrest warrant or formal conviction by the courts. Further the information in the letter contradicted the applicant’s evidence, as it stated that he was involved in politics with the Muslim Brotherhood. However, the applicant had stated that he was never involved in the Muslim Brotherhood or any other party. The Authority placed no weight on the letter, found that it had no probative value and was fabricated for the purpose of strengthening the applicant’s claim for protection [44].
·The Authority was not satisfied the applicant has ever been identified by Egyptian authorities as a member or affiliate of the Brotherhood or any other terrorist group, or been engaged in activities that would attract the adverse attention of Egyptian authorities, either in Iran or Australia [45].
·The Authority was not satisfied there was a real chance the applicant would suffer serious harm from government authorities, the military or another person for reason of his actual or imputed political opinion if he returned to Egypt now or in the reasonably foreseeable future [48].
·The Authority accepted that although the Muslim Brotherhood still existed in Egypt, the applicant did not have any religious or political profile which would identify him to groups in Egypt or the Muslim Brotherhood [49].
·The Authority was not satisfied that the applicant would be unable to seek protection from relevant authorities, despite his concern of being harmed by Islamic extremists, and any such harm he fears does not extend to all areas of the country.
The Authority also considered the applicant’s claim to fear persecution by Egyptian authorities for reasons of his imputed political opinion as a result of becoming ‘Westernised’. The applicant claims that since he arrived in Australia, he drinks alcohol and has liberal attitudes towards relationships, such that he fears being perceived as ‘Kaffir’ by conservative religious people in Egypt [52]. The following findings were made by the Authority:
·The Authority noted that there was no information before it to suggest that Muslims who drink alcohol would face arrest for doing so, unless they engaged in drinking to the extent of public drunkenness.
·The Authority noted that ‘Kaffir’ was a derogatory and racially offensive term, but even if he were verbally insulted, it did not amount to serious harm in accordance with the examples provided under s 5J(5) of the Act.
·The Authority was not satisfied that the applicant would suffer serious harm on the basis of his imputed political opinion or for any other reason as a result of him becoming ‘Westernised’ [56].
In regard to the applicant’s claim that he feared persecution as a consequence of the Department’s data breach in February 2024, the Authority did not accept that the Egyptian authorities would be aware of the applicant’s claim for protection as a result of the data breach itself [59]. In the Immigration Department data breach, information about detainees including date of birth, nationality and details of their detention was inadvertently released. The Authority found that if the applicant was returned to Egypt, this information would more than likely already be before the Egyptian authorities and as such this fear did not give rise to a real chance of the applicant facing serious harm [61].
As to the applicant’s claim of fear of persecution by reasons of being a member of a particular social group, namely failed asylum seekers, the Authority found was satisfied that there was no real chance of the applicant suffering serious harm for reasons of being a failed asylum seeker [62]. Although the Authority did consider that it will likely be evident to Egyptian authorities that the applicant applied for protection in Australia, if he returned to Egypt, the country information indicates that failed asylum seekers do not face any adverse attention [63]-[64].
As to the applicant’s claim of fear of persecution by reasons of being a member of a particular social group, namely people with a mental health condition, the Authority accepted that local mental health services will not reach Australian standards. However, the Authority found that no information was before them to suggest that people with mental health conditions suffered to an extent to which they would not be able to subsist or that the discrimination would give rise to serious harm [66]-[68].
From [72], the Authority then assessed the applicant’s claims in line with the complementary protection obligations that Australia owes to non-citizens who will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country. The Authority at [84] found that there are no substantial grounds for finding that the applicant meets the complementary protecting obligations.
Accordingly, the Authority affirmed the decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s four grounds of judicial review are contained in an Originating Application filed with the Court on 16 August 2018. The grounds are as follows:
1.The Tribunal/Authority committed jurisdiction error by failing to lawfully consider evidence essential to the resolution of the review.
Particulars
a. Making assumptions with regards to the Muslim Brotherhood and their current activities in Egypt. The assumption that the Muslim Brotherhood will not attempt to recruit me or harm me if I return to Egypt. Additionally, incorrect country information cited and relied upon by delegate.
b. Failure to consider mental health issues properly.
2.The Tribunal/Authority denied the Applicant natural justice and procedural fairness.
Particulars
a. Making assumptions and drawing conclusions relating to the Muslim Brotherhood without adequate information and consideration.
3.The Tribunal committed jurisdiction error by failing to consider a part of a claim.
Particulars
a. Failing to give adequate or proper consideration to physical and mental health issues.
4.The decision was affected by legal unreasonableness
Particulars
a. The acceptance of information that the arrest of my brother occurred, however, inconsistently making assumption and drawing conclusion.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The applicant told the Court that whilst many of the Muslim Brotherhood had been arrested and are in prison, others are free outside. He is quite certain he will be harmed by them.
The applicant also expressed considerable concern as to the data breach which is admitted by the Minister. He fears it will cause him considerable harm, and he will be arrested at the airport because the government will know what he has been doing in Australia. He claimed the government should take responsibility for the data breach.
The applicant reiterated that he has significant mental health and physical health conditions and that he will be unable to access the same level of care in Egypt as he will not be able to afford it. The applicant highlighted that in his view, his brother was arrested on the basis that the government assumed that the applicant was a member of the Brotherhood and when they could not locate him, they arrested his brother. His brother was held for a period of five years before being released. At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. He answered that he still had considerable concerns about the publishing of his personal information.
THE FIRST RESPONDENT’S SUBMISSIONS
As to ground one, particular (a) the first respondent submits that the Authority did not make an “assumption” about the Muslim Brotherhood, but rather arrived at their findings by setting out the applicant’s claims, evidence and considering relevant country information. The applicant argues that the country information relied upon by the Authority was incorrect. However, the first respondent relies on NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11] to argue that the choice, selection and accuracy of such information is for the Authority. Further, the country information relied upon was cited by the applicant in his submissions to the delegate and Authority, and was relied upon by the delegate, such that the applicant should have raised with the Authority why he believed the information was incorrect.
Particular (b) of ground one contends that the Authority failed to consider the applicant’s mental health issues properly. The first respondent submitted that the Authority accepted claims related to the applicant’s mental health at [5]-[8], [25], [34], [66], [68] and [82] of the Authority decision.
With regard to ground two, the first respondent maintains the argument set forth in relation to ground one particular (a), that the Authority made no assumption in regard to the Muslim Brotherhood claims and asserts that the Authority comprehensively identified and addressed each of the claims and evidence.
Ground two is a complaint that the applicant was not afforded procedural fairness. To this, the first respondent argues that there is nothing to suggest that the Authority failed to comply with its obligations under the Act. This was done in circumstances where, under s 473DB, a review by the Authority is conducted on the papers without an applicant being required to attend the hearing. Under ss 473DC and 473DD, the Authority received and considered new information despite, not being obliged to. Under s 473DE, there was no information that was required to be put to the applicant by the Authority. Further, in this regard under ss 473GA and 473GB there were no non-disclosure certificates in the matter, such that any procedural fairness requirements did not arise.
In reference to ground three the first respondent submits that the Authority did accept claims related to the applicant’s mental health and the considerations made of the applicant’s condition was “proper adequate and open to it” (First Respondent’s submissions, [27]).
By ground four the applicant alleges that the Authority’s findings were unreasonable and illogical with regard to the applicant’s brother’s arrest. By this ground, the applicant must demonstrate that the Authority formed a view that no rational or logical decisionmaker could have arrived at on the same evidence; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [128]-[131].The Authority found that the brother’s arrest was not related to the applicant being imputed as a member of the Muslim Brotherhood nor was the applicant at risk of harm as a result of the brother’s arrest for engaging in political activities. The Authority had found that it was not plausible to accept this, on the basis of inconsistent evidence and what evidence appeared more plausible.
The Authority had reasoned that the applicant would not come to the attention of the authorities in Egypt if the applicant’s brother was arrested for participation in a political protest three years after the applicant had departed from Egypt. Further, the applicant had never participated in political activities in Australia which would cause adverse attention from the Egyptian authorities. Ground four should be dismissed as the Authority made its findings based on a detailed assessment of the claims, and despite the applicant possibly disagreeing with its assessment, this does not constitute jurisdictional error.
The first respondent notes that the Authority committed typographical errors at [10] and [45] of its decision by referring to Iran instead of Egypt. It is submitted that this type of error does not demonstrate error within the decision. The first respondent relied upon CRI026 v Republic of Nauru (2018) 92 ALJR 529 to argue that upon a reading of the Authority’s decision as a whole, it is apparent the Authority was aware and understood, in this case, the applicant’s claims related to Egypt.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It is well established the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
It is well settled that the country information and the weight it gives to that information is a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Ground one
Ground one is first, a claim that the Authority failed to consider essential evidence with respect to the Muslim Brotherhood and the current activities in Egypt. This included an assumption that the Muslim Brotherhood would not attempt to recruit or harm the applicant if he returned to Egypt. At [17] and onwards, the Authority set out in some detail the applicant’s claims for protection due to him being kidnapped and taken to a Muslim Brotherhood training camp.
At [26], the Authority detailed country information which indicated that in the latter half of 2011, the Muslim Brotherhood was very active. At [29], the Authority noted that it was satisfied that in 2011, after the dissolution of Parliament and the announcement of elections that year, the Muslim Brotherhood were very active and there was a sizeable increase in violent crime, civil unrest and terrorist attacks [30]. At [31], the Authority was prepared to accept that indeed the applicant was kidnapped, detained and tortured for about two to three weeks and then escaped suffering some physical injuries.
However, at [32], the Authority noted that country information indicated that the current government in Egypt continues to ‘crackdown’ on members or suspected members of the Muslim Brotherhood. At [33], the Authority accepted that if the applicant were suspected of being a member of the Muslim Brotherhood, there was a real chance that he would be questioned, entertained and subject to serious harm on turn. At [34] – [36], the Authority noted that the applicant had been able to obtain a passport in August 2011 before the incident central to his claim. He was also able to the depart Egypt without issue. While the Authority noted a discrepancy in the timeline, it accepted this could be because of his mental health issues and resultant memory issues.
The Authority accepted at [40] that the applicant was never part of the Muslim Brotherhood. Whilst it accepted that the applicant had been kidnapped, it was not satisfied that the Muslim Brotherhood with the perpetrators of the incident.
The Court is satisfied that the conclusion at [46] – [48] that the applicant would not be of interest to authorities if returned to Egypt was available on the evidence that was before the Authority, and for the reasons it gave. The Court is not satisfied that the Authority failed to consider any essential evidence. It made reference to the applicant’s claims in a variety of places in the decision record.
The Court is satisfied that the Authority drew on a variety of country information reports, when considering the applicant’s claims and that it is a matter for the Authority as to which country information prefers and the weight that is given to it. No jurisdictional error arises in the circumstances.
The second part of ground one alleges a failure to consider the applicant’s mental health issues. The Authority accepted and received new information in relation to the applicant’s medical conditions. It expressly found and accepted that the applicant’s mental health and other issues affected his memory. The Authority expressly dealt with the applicant’s fear, although not explicitly identified, being unable to access appropriate medical treatment. At [68], the Authority acknowledge that mental health services and resources did not meet Australian standards, but health services were available. The Authority correctly, in the Court’s view, based on the evidence before it, found that health services were available such that the applicant would not suffer serious harm under s 5J(5). Given this discussion, the Court is not satisfied that the Authority failed to consider properly the applicant’s mental health issues. The conclusion reached was available to the Authority, based on the evidence that was before it and for the reasons it gave. No jurisdictional error arises. Ground one has no merit.
Ground two
Ground two is an allegation the Authority denied the applicant natural justice and procedural fairness by making assumptions and drawing conclusions relating to the Muslim brotherhood without adequate information and consideration. For the reasons given above, the Authority properly considered the applicant’s claims in relation to his fears of the Muslim Brotherhood. This part of the ground has no merit.
The allegation that the applicant was denied procedural fairness contains no particulars. The Court notes that the Authority followed the required procedures including conducting a hearing “on the papers” pursuant to s 473DB.
The Authority received and considered new information that was provided to it. There was no information that the Authority was required to put to the applicant under s 473DE. The Court is unable to ascertain any breach of any statutory requirement for procedural fairness by the Authority. Ground two has no merit.
Ground three
Ground three is a broader allegation that the Authority failed to consider part of his claim, being adequate and proper consideration as to his physical and mental health issues. As set out above, the Authority considered the applicant’s mental and physical health claims at [68] and [82]. Further, it received fresh information in relation to the applicant’s health history. The Court is satisfied that the Authority properly considered the applicant’s claims. The ground has no merit.
Ground four
Ground four is an allegation of legal unreasonableness based on the acceptance of information that the applicant’s brother was arrested but then alleges it inconsistently made assumptions and draw conclusions. This claim is unclear in that the particulars provided do not provide any insight as to what the precise jurisdictional error alleged in fact is.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
… The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The Authority concluded that the applicant’s brother was arrested for participation in the political protest three years after the applicant departed Egypt. The Court accepts the submission of the first respondent, that it was open to the Authority to conclude that the applicant would not come to the attention of authorities due to his brother’s activities. This was supported by the fact that the applicant himself had never engaged in political or other activities in Australia that would attract adverse attention, nor had he expressed any intention to do so.
Again, the Court is satisfied that these conclusions were open to the Authority based on the evidence that was before it and for the reasons it gave. There is nothing illogical or irrational in relation to the conclusions and there is a probative evidential base for the conclusions reached. As indicated above, this test for unreasonableness is stringent and will only arise in rare cases. This is not one of those rare cases. Ground four has no merit.
Finally, the Court notes the concession by the Minister that there are typographical errors in the decision record of the Authority at [10] and [45] where a reference is made Iran. The Court accepts these are typographical errors and indeed reference should have been made to Egypt.
Such typographical errors do not constitute jurisdictional error.
DETERMINATION
As the applicant is unrepresented, the Court has carefully perused the relevant Court book and other associated documentation but is unable to ascertain any unarticulated jurisdictional error.
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 November 2024
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