EHF17 v Minister for Immigration
[2019] FCCA 499
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EHF17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 499 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Egypt – Coptic Christian – whether unreasonable conclusion concerning whether the applicant has no well-founded fear of persecution – whether unreasonable and illogical conclusion having regard to extensive unrest and violence in Egypt and particular threats against Coptic Christians – whether conclusion unreasonable and illogical where Australian Federal Government recognises threat to Christian Copts of being persecuted in Egypt – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 417, 499 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 |
Commonwealth of Australia, Parliamentary Debates, House of Representatives, Official Hansard, No 8, 2017, Thursday, 1 June 2017
| Applicant: | EHF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 523 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 30 May and 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Draper |
| Solicitors for the Applicant: | D’Angelo Legal |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 523 of 2017
| EHF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 26 September 2017, the applicant seeks judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 7 September 2017. The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration and Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 333-354.
Background
The background prior to the Judicial Review Application is as follows:
a)the applicant is a citizen of Egypt who was born in Kuwait: CB 208;
b)the applicant applied for a visitor visa on 21 March 2013 to visit her sister who lives in Australia: CB 223;
c)the applicant was granted a TR-676 tourist visa on 26 March 2013 (valid until 23 July 2013): CB 223-224;
d)the applicant and her son arrived in Australia on 23 April 2013;
e)on 28 May 2013 the applicant applied to the Department of Immigration and Border Protection (“Department”) for a Protection Visa: CB 3-28;
f)on 17 July 2015, the Delegate refused to grant the applicant a Protection Visa: CB 221-240;
g)on 22 July 2015 an application was lodged with the Tribunal for review of the Delegate’s Decision: CB 242-243;
h)the applicant attended two hearings before the Tribunal, on 29 March 2017: CB 293-296, and 24 May 2017: CB 319-322, assisted on both occasions by an interpreter in the Arabic and English languages; and
i)on 7 September 2017 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 333-364, and the applicant was advised of the Tribunal Decision by letter dated 7 September 2017: CB 329.
Grounds of the Judicial Review Application
The Judicial Review Application as filed contained two grounds, but ground 2 was not pressed. In the applicant’s outline of submissions it was also indicated that the particulars in paragraph (b) of Ground 1 were discontinued. Ground 1, with the particulars contained in paragraphs (a) and (c), is as follows:
1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.
Particulars
(a) The Authority misdirected itself in concluding that the Applicant, a practising Coptic Christian, does not face a real chance of serious harm for reasons of her religion if she returns to Egypt when the Authority found that the Applicant faces [sic – does not face] a real chance of serious harm on her return to Egypt due to her being a Coptic Christian when Coptic Christians are subject to official and societal discrimination and persecution for blasphemy, which conclusion does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of her religion if she returns to Egypt.
(c) The Tribunal, having had regard to the country information before it found that there is unrest and violence in Egypt, unreasonably and illogically found that the applicant will not be targeted for serious harm if she returns to Egypt and unreasonably concluded, and failed to provide reasons for reaching that conclusion, that the Applicant does not face a real chance of serious harm for reasons of her Coptic Christianity when the Tribunal found violent incidents of communal violence continue to occur, that in December 2016 and April and May 2017 there were attacks on Coptic Christians, that in July 2017 the State of Emergency was extended throughout Egypt after two Coptic Church bombings, that ISIS had threatened further attacks against Christians and that tensions and the potential for sectarian violence continue to exist.
(The reference to the “Authority” wherever it appears in Ground 1 – particular (a) above must be taken to be a reference to the Tribunal).
Relevant affidavits
On 18 April 2018 the applicant filed an affidavit of Nathan John Draper, sworn on 18 April 2018 (“Draper Affidavit”). The Draper Affidavit annexes a copy of a transcript of remarks made at a mass at St Mark’s Coptic Orthodox Church by the then, and now former, Prime Minister of Australia, the Hon. Malcolm Turnbull on 25 June 2017 (“Former Prime Minister’s Remarks”): Draper Affidavit, Annexure NJD 1, which, relevantly are as follows:
…
One of the greatest tragedies of our times has been the persecution of Christians right through the Middle East. It is a devastating tragedy to see the persecution of Churches that were founded by the apostles, by men who knew Jesus, men who had walked with Jesus, worked with Jesus. His apostles foundations, these Churches, the most ancient in the world, as Bishop Daniel described, these have been threatened. And I am delighted to hear from Bishop Paula, how strongly President el-Sisi is standing up to defend the Coptics and standing up for the unity of Egypt, defying the Islamist scourge that is seeking to destroy Christianity in the Middle East. But also, is a disease within Islam itself.
… - I’ve discussed these matters with President el-Sisi and he has called it out for what it is. These terrorists, these people are blasphemers and heretics. They seek to destroy their own religion as they seek to destroy others.
They must be resisted, defied and destroyed. That is my commitment and the commitment of my Government. My friends, we stand with you to defy the terrorists.
…
Now as we have heard, we’ve heard today, and it is a sad tale, over the past six months, these Islamist terrorists in Egypt have targeted your community. Late last year Islamic State in Egypt claimed responsibility for the attack on St Mark Coptic Cathedral in Cairo. 27 worshippers were killed. Earlier this year, they drove 250 Coptics from north Sinai after ISIL threatened to kill them. In April as the Bishop described, ISIL attacked his church, your Grace’s church in Tanta and another in Alexandria, killing over 50 people. Of course, on the 26th of May, the ISIL terrorists attacked a convoy of Coptic Christians travelling to the monastery of Saint Samuel in Minya, killing nearly 30. Now I have written to his Holiness, Pope Tawadros II and offered the condolences of the Australian people, reaffirmed to him as I have to Bishop Daniel and I do again today, to this community, that Australia is united with the Coptic Christian community and all Egyptians and the President el-Sisi in the fight against these Islamist terrorists. They must be stopped.
…
Can I say just on that subject of leadership, ISIL Islamist terrorists - and of course there are other Al-Qaeda ... - but as you know, these are people that the vast majority of Muslims regard as blasphemers. In fact many leading Muslim leaders around the world have said to me: “They’re not Muslims at all. They are so vile, they are such terrorists, they’re blasphemers.” Our best allies in the battle to defeat ISIS are Muslim leaders of courage, who are prepared to stand up and defy them. To say that Islam is a religion that is compatible with democracy and moderation. That is what President Joko Widodo says in Indonesia. That is what President Sisi says in Egypt. Those leaders, moderate leaders of a moderate tradition, are vital allies in the war to defeat ISIL. Because it threatens, it seeks to destroy Islam, and undermine Islam, at the same time as it seeks to destroy other religions and of course, in particular in the Middle East, in this shocking, terrible tragedy, of the assault on the most ancient Christian churches in the world.
So I’m heartened to hear from Bishop Paula how strongly he your community sir, your Grace, is working with the President, with the government of Egypt, the armed forces of Egypt, in solidarity to defeat these terrorists.
Now you’ve noted the hard work of our ambassador in Egypt and you’ve thanked Julie Bishop as well for the great work that she and her Department have done. But I want to note, as you know I believe already, that in light of the recent terrorist attacks our Assistant Minister for Immigration and Border Protection Alex Hawke is now reviewing all of the protection applications by Coptic Christians that have been refused on administrative appeal, to ensure that our immigration decisions reflect the current situation in Egypt.
Since 2013, more than 550 protection visas have been granted to Coptic Christians fleeing persecution. We are, as the Bishop acknowledged, working with the Church in Egypt to assist with the victims of the Palm Sunday attacks which occurred earlier in the year.
…
We will defeat them.
We will stand with you. We will stand, 24 million Australians, determined forever to be free.
…
On 20 June 2018 the Minister filed an affidavit of Marie Therese Azar, sworn 20 June 2018 (“Azar Affidavit”), in which she deposed that the Department provided the Minister’s lawyers with a copy of the video recording provided by the applicant to the Tribunal, which is annexed to the Azar Affidavit, Annexure MTA-1, together with a copy of a transcript of the video: Azar Affidavit, Annexure MTA-2, which is of a speech to the Commonwealth House of Representatives by Mr Peter Khalil, MHR, the Member for Wills in Victoria, made on 1 June 2017 (“Khalil Speech”). The text of the Khalil Speech (which the Court has taken from the official record: see Commonwealth of Australia, Parliamentary Debates, House of Representatives, Official Hansard, No 8, 2017, Thursday, 1 June 2017, page 6119) is as follows:
I rise to welcome last night’s announcement by the Assistant Minister for Immigration and Border Protection that the government will be reviewing all protection visas applications made by Coptic Christians. I welcome the government’s reversal of their decision to forcibly send a cohort of 20 families back to Egypt and also welcome their acknowledgement of the escalating threat over the past 12 months faced by the Copts in Egypt, who have been under siege from Islamic State and their affiliates. I also want to thank many Liberal MPs on the other side whom I have lobbied and harassed over the past seven months to make representations to the minister on this point, particularly the members for Menzies and Deakin. I especially want to thank our shadow immigration minister Shayne Neumann, whose representations to the minister were of great importance and help to the government in reversing this decision. Of course, I received great support from the shadow foreign minister, Senator Penny Wong and the Leader of the Opposition, Bill Shorten. We all know that a small but a good thing has actually happened for these people. Their lives have changed.
Islamic State is an evil cult, since it emerged seven years ago it has wrought destruction and death across the Middle East and Africa. They have killed thousands of Sunni Muslims who would not fight for them, Shiite Muslims and Kurds. Minorities such as the Yazidis and the Assyrian and Chaldean Christians in Iraq and Syria have felt the full force of Islamic State’s bloodlust and lust for death, and of course in the past twelve months in Egypt the Coptic Christians have become their primary target. Over 100 Copts have been massacred in their places of worship during Christmas and Easter services, and just recently on 26 May we know that 28 people were relentlessly gunned down on a bus on its way to the Monastery of Saint Samuel. Some of the survivors have told their story. When the gunmen came onto the bus, they tried to force these people to convert. They asked them to recite the shahada and to deny their faith. The men said no, that they are not going to deny their faith and they were gunned down mercilessly. The women said no, that they would not deny their faith and they were gunned down mercilessly. And the children said no. Some of them, Sunday school kids, started to recite the Lord’s Prayer and were gunned down mercilessly. These IS gunmen, down the barrel of a gun, tried to force these people, at risk of death, to deny their own faith, but they refused.
For us in the West this kind of courage is inexplicable, but it is not unusual for the Copts because their whole church has been built on this article of faith. In fact, the Coptic calendar started on the day of the death of the first martyr and the whole church has been built on martyrdom and this very deep and strong faith. This is something that IS gunmen and Islamic State will never understand, because of their thirst for blood and their thirst for death. They will never understand the true courage of what real faith is about, because true faith comes from the heart and spirit, not down the barrel of a gun.
Submissions
Applicant’s submissions
The applicant’s submissions summarised significant parts of the Tribunal Decision, before submitting as follows:
a)the Tribunal found that although Copts face official and societal discrimination, the applicant only faces a remote chance of suffering such discrimination: CB 347 at [87] (at [6(c)(iv)] above). The Tribunal reasoned that:
i)the treatment of Copts varied depending on individual circumstance;
ii)the applicant is untruthful, and therefore does not accept she faced societal discrimination in the past, and therefore there is a remote chance she will face societal discrimination in the future; and
iii)the applicant faces a remote chance of suffering official discrimination in the future because she made no claims of suffering official discrimination in the past;
b)each of the “reasons” set out at [6(a)(i)-(iii)] above is unreasonable because each is illogical because:
i)the treatment of Copts, at [6(a)(i)] above, varies and as suggested cannot reasonably support the conclusion that the applicant faces a remote chance of societal discrimination when no consideration has been given either to the nature of those circumstances or the applicant’s circumstances;
ii)the applicant being untruthful about suffering societal discrimination in the past, at [6(a)(ii)] above, does not reasonably support the conclusion that she will not suffer societal discrimination in the future when it was found that there is societal discrimination; and
iii)the applicant never having claimed to have suffered official discrimination in the past at [6(a)(iii)] above, does not enable the Tribunal to logically conclude she faces a remote chance of suffering official discrimination in the future where the Tribunal finds that there is ongoing official discrimination in Egypt;
c)the Tribunal further reasons, at CB 348 at [90], that because “the Majority of incidences of communal violence” have taken place in Upper Egypt, with community violence continuing in 2016: CB 348 at [91], the applicant faces less risk of harm as she is from Alexandria, but it is not reasonable for the Tribunal to reach this conclusion as:
i)it has not provided any definition of, or information about, “the Majority of incidences” and there is nothing against which the reasonableness of this allegation can be measured or verified. An ordinary reading of CB 348 at [90] does not enable a person to reasonably conclude that Alexandria’s communal violence is necessarily so insignificant to prevent it being deemed a real risk of causing serious harm; and
ii)the fact that the applicant is from Alexandria cannot lead to the reasonable conclusion that she will necessarily return to Alexandria, and no reasons have been provided as to why the Tribunal concludes, as it seems to do, that she will necessarily return to Alexandria;
d)the Tribunal concludes at CB 349 at [94] that the police have restored their presence and that the Department of Foreign Affairs and Trade (“DFAT”) notes there have been “substantial improvements ... in terms of personal safety and freedom of worship for Copts”. The Tribunal has failed to reference the source of this information and it cannot be tested for reasonableness;
e)even if, as DFAT alleges, there “have been substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Copts”, and Copts live peacefully with their Muslim neighbours, the Tribunal is not able to reasonably conclude that Copts are not being persecuted or do not face a real risk of significant harm as:
i)the Tribunal has not made any reference to, and has not considered the standard of the improvements of the personal safety and freedom of worship for Copts with regard to the prior standards of the personal safety and freedom of worship of Copts. The assessment that “the standards have improved” can only be reasonably made if the standards of the particular circumstances are known and have been considered. Failure to provide any information as to those standards and to detail what the standards were that the Tribunal considered in arriving at the conclusion that the “standards have improved” fails to enable the reader to test the statement and to provide a reasoned response, which is contrary to the considerations of due process; and
ii)similarly, the allegation that Copts and Muslims live peacefully together cannot lead to the conclusion that Copts are not being persecuted. The persecution of Copts is occurring at the hands of militants and jihadists as detailed by the Tribunal. The existence of Coptic/Muslim neighbourliness is not a factor considered in the country information in determining the state of persecution of Copts in Egypt and it is therefore an irrelevant consideration. Finally, at CB 349 at [94], the Tribunal’s finding with reference to the peaceful neighbourliness of the Copts and Muslims, is contradicted by the Tribunal’s finding at CB 347 at [88], that “[i]ndividual Christians who attract the attention and antipathy of some Muslims in relation to their religion or religious activities continue to be subjected to violence and serious harm”;
f)in June 2017 the Australian Government announced that it would review the situation for Copts in Australia who await deportation: CB 350-351 at [103], as a result of what the Australian Federal Government described, in reference to Christianity and specifically the Copts in Egypt, as “[o]ne of the greatest tragedies of our times has been the persecution of Christians right through the Middle East. It is a devastating tragedy to see the persecution of Churches that ... have been threatened”: Former Prime Minister’s Remarks at page 2;
g)the Former Prime Minister’s Remarks are an unequivocal acknowledgement by the Australian Federal Government that the Coptic Church and Copts are being persecuted in Egypt, and the Tribunal’s conclusion that the applicant does not face a real chance of serious harm or persecution because of her religion is unreasonable; and
h)in respect of unreasonableness and illogicality cited:
i)Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [27]-[28] per French CJ;
ii)Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [37]-[38] per Gummow and Hayne JJ; and
iii)K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2009] HCA 4; (2009) 237 CLR 501; (2009) 192 A Crim R 501; (2009) 83 ALJR 327; (2009) 252 ALR 471 at [59] per French CJ.
Minister’s submissions
The Minister’s submissions were as follows:
a)the Tribunal Decision is a cautious and comprehensive consideration of all of the claims made by the applicant, weighed against available country information. The conclusions were reasonably open to the Tribunal, clearly had an evident and intelligible justification, and are within the Tribunal’s area of decisional freedom: Li at [28] per French CJ, [66] and [76] per Kiefel, Hayne and Bell JJ and ] and [105] per Gageler J; Minister for Immigration & Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) at [44]-[45] per Allsop CJ, Robertson and Mortimer JJ;
b)a decision or finding of fact leading up to that decision will not give rise to jurisdictional error by reason of irrationality or illogicality unless the decision or finding is one at which no rational or logical decision-maker could arrive on the same evidence, and a decision or finding cannot be said to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ;
c)a decision will only be vitiated by jurisdictional error based on illogical or irrational findings of fact or reasoning if “extreme” illogicality or irrationality is shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration & Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J;
d)the applicant’s claims were essentially rejected on the basis of adverse credibility findings. The Tribunal’s approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake. The Tribunal’s findings in relation to the credibility of the applicant was a fact-finding task within its jurisdiction. Any grievance as to the Tribunal’s conclusion in this regard, or as to the weight attributed to any piece of oral evidence, is a grievance as to the merits of the Tribunal Decision;
e)for the most part, Ground 1 appears to simply express disagreement with the Tribunal’s findings;
f)particular (a) to Ground 1 is somewhat confusing as it states (perhaps as a typographical error) that the Tribunal found that the applicant faces a real chance of serious harm due to her being a Coptic Christian. Whilst the Minister assumes this must be a typographical error, it is quite clear the Tribunal found that the applicant does not face a real chance of serious harm on this basis;
g)in any event, the Tribunal specifically considered the country information relating to Coptic Christians in Egypt and specifically:
i)accepted that some Copts can experience low levels of official discrimination, but noted that the applicant had completed qualifications and had not claimed harm in the workplace; and
ii)rejected, on the basis of country information, the applicant’s claim that she had faced societal discrimination in the past and found that the chance of societal discrimination in the future was remote;
h)the Tribunal’s findings in relation to this quite clearly reveal engagement with both the country information and the applicant’s claims, and there is therefore no merit to particular (a);
i)particular (c) selectively chooses parts of the country information referred to by the Tribunal without having regard to the entirety of the Tribunal’s findings in respect of the country information. In any event, the Tribunal specifically engaged with the question of the applicant’s individual circumstances in the context of available country information; and
j)as a whole, Ground 1 (and its various particulars) is an invitation to the Court to engage in impermissible merits review and reach different conclusions than those reached by the Tribunal.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Unreasonableness in the making of a decision by the Tribunal may also give rise to jurisdictional error. The relevant principles in relation to legal unreasonableness as explained by the High Court in Li at [68] per Kiefel, Hayne and Bell JJ, and subsequently by the Full Court of the Federal Court in Singh were summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine claims for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Ground 1 – particular (a)
In the following parts of the Tribunal Decision, which are relevant to Ground 1 – particular (a), the Tribunal:
a)found that reports provided by the applicant from Asetts do not address the applicant’s current medical condition and do not suggest that the applicant now needs ongoing medical assistance, and whilst the report dated 29 April 2014 opined that the applicant suffers from anxiety resulting in memory loss and concentration difficulties, the reports do not suggest that the applicant’s mental health affected her ability to provide information to the Department regarding her circumstances in Egypt, and, therefore, placed little weight on the reports from Asetts as they provided no prognosis or any suggestion for referral: CB 341-342 at[51]-[52];
b)referred to the large number of documents provided by the applicant and then set out its assessment of the applicant’s credibility. The Tribunal stated that it did not accept the applicant was a witness of truth: CB 342 at [55];
c)referred to a letter produced by the applicant from the President of the European Union of Coptic Organisations for Human Rights (“President, EUCOHR”) dated 5 January 2015. The Tribunal contacted the President, EUCOHR prior to and at the Tribunal hearing, and found that there were inconsistencies between the information provided by the applicant and the President, EUCOHR: CB 342-343 at [57]-[58], which the applicant sought to explain by saying that the President, EUCOHR has to deal with a lot of problems and knows many cases: CB 343 at [58]. The Tribunal found that the applicant’s explanation was a late invention made to overcome the inconsistent evidence given: CB 343 at [59];
d)over the course of the Tribunal hearing, the Tribunal developed significant concerns with inconsistencies in the evidence provided by the applicant and the supporting witness, the President, EUCOHR, who lives in Switzerland, and whose evidence was taken by telephone, and ultimately placed no weight on the evidence given by the applicant and the President, EUCOHR regarding claims about the kidnapping of the applicant’s son and acid attack on the applicant, due to the inconsistencies in the evidence: CB 342-343 at [57]-[60];
e)found that it was not plausible that if, as she claimed, the applicant was preaching the Bible in Egypt and was being threatened for doing so, she would not mention it in her Protection Visa application: CB 343 at [60];
f)ultimately found that the applicant was not credible or a witness of truth as her comments and responses to certain issues put to her were not plausible, and the Tribunal found that the applicant had created her claims in order to obtain the Protection Visa: CB 342 at [55], 343 at [60] and 344 at [65] and [67]. This rejection of the applicant’s credibility led to the rejection of the applicant’s key claims;
g)set out the activities that the applicant said she undertook “in the service of Christianising people”: CB 344 at [64], which the applicant claimed resulted in her having “lots of trouble” and being “famous in the area where she lived” and at the “police station” for those activities: CB 344 at [64], and found that as a person claiming to Christianise people, who sits and talks to them, gives them the Bible, makes sure that they want to be Christians and asks Muslims to be Christians, and who was known to people in her home area as a person behind returning people to Christianity, and who had lots of problems with the Muslims as a consequence, is a person who is proselytizing: CB 344 at [65];
h)put independent evidence to the applicant that proselytising was an offence for which people are imprisoned, and in reply to which the applicant resiled from her claims that she had lots of problems with the Muslims because she was Christianising people: CB 344 at [64]-[65];
i)put to the applicant that independent evidence indicates that her church was not involved in proselytizing activities, and that the activity in which she had engaged was illegal and against the law, to which the applicant responded by setting out the types of activities which she undertook, and her view that it was a service in the Coptic religion to do so: CB 344 at [66];
j)found that the applicant’s father-in-law had not converted to Islam and reconverted back to Christianity, or that the applicant and her husband were targeted as a result of the alleged reconversion: CB 344 at [68];
k)did not accept that relatives of converts are targeted by Government authorities, a position with which the applicant agreed: CB 344-345 at [68]-[71];
l)accepted “that there are extremists in the community who target persons who have converted and put pressure on people who change their religion”: CB 344 at [68];
m)on the basis of the Tribunal’s credibility findings, did not accept that:
i)the applicant’s father-in-law converted to Islam, that the applicant, and her husband, helped the applicant’s father-in-law convert back to Christianity, and that as a consequence the Muslim Brotherhood, or any other person or group, repeatedly threatened the applicant and her husband or sent messages threatening to kidnap their son: CB 346 at [79];
ii)the applicant proselytised, or was perceived to proselytise, in Egypt: CB 346 at [80]; or
iii)the applicant was threatened or harmed because of the reconversion of her father-in-law, or that her husband in Egypt has received more threats: CB 346 at [81];
n)upon consideration of all of the applicant’s evidence singularly and cumulatively, did not accept the applicant was a witness of truth and did not accept that the applicant fled Egypt fearing any harm. The Tribunal found that the applicant came to Australia as a visitor: CB 346 at [82];
o)was satisfied the applicant did not suffer any harm when she lived in Egypt and did not accept that anyone seeks to harm her on her return to Egypt: CB 346-347 at [83]; and
p)dealt with the question of official and societal discrimination, noting firstly that Egypt was a country with a population of over 92 million people, and is generally “unstable, unsafe and risky” with “lots of bombings and killings … and a heightened threat of terrorist incidents … [which] affect the majority of the population”: CB 347 at [84], and went on to note Coptic Christianity’s deep roots in Egypt (it having emerged approximately six centuries before the arrival of Islam), and the lack of legal barriers to Copts becoming prominent and influential in Egyptian life, and noting the existence of Coptic cabinet ministers (including a woman) in the Egyptian Government, and that Egypt’s most prominent business person is also Coptic, and that Copts hold varied professions and are represented across the socio-economic and education spectrum in Egypt: CB 347 at [85], before noting that:
i)Copts experience low levels of official discrimination according to DFAT, but can suffer some discrimination in the workplace, although workplace discrimination was not claimed by the applicant: CB 347 at [86];
ii)there are no legal prohibitions on Coptic rituals or practises, but there are reports of Copts facing official and societal discrimination depending on their individual circumstances: CB 347 at [87]; and
iii)because the applicant was not a witness of truth her claim to face societal discrimination in the past was rejected and it was found that the chance of societal discrimination in the future was remote, and that the applicant had made no claim to suffer official discrimination: CB 347 at [87].
The alleged jurisdictional error posited by Ground 1 – particular (a) is quite specific, and it concerns a claim that Coptic Christians are subject to official and societal discrimination and persecution for blasphemy, and, on that basis, the applicant’s claims with respect to her involvement in spreading the Coptic Christian message in her community in Alexandria, give rise to her having a well-founded fear of persecution if she returns to Egypt. The basis for this claim is the claimed activities (found by the Tribunal to be proselytizing activities) personal to, and undertaken by, the applicant: CB 344 at [65]. The Tribunal carefully set out and considered the evidence of the applicant’s alleged proselytizing activities: CB 344 at [64]-[66].
The Tribunal made adverse credibility findings against the applicant on the basis of what it found to be:
a)inconsistencies in the applicant’s evidence, and in and with the evidence of the President, EUCOHR;
b)implausibilities in the applicant’s evidence; and
c)evidence which relied upon false copies of documents from Egypt (as to the false documents, see CB 345-346 at [76]-[78]),
all of which appear to the Court to be findings that were open to the Tribunal on the evidence before the Tribunal. On the basis of the adverse credibility findings the Tribunal found that the applicant had not been engaging in the proselytizing activities as claimed, and did not believe the applicant’s claims with respect to attempts to kidnap her son or that she had been the subject of an acid throwing incident: CB 342-343 at [55]-[61].
With respect to the question of official and societal discrimination the Tribunal carefully set out relevant country information concerning the treatment of Copts in Egypt, and the level of official discrimination: CB 347 at [84]-[86], and further noted that the applicant made no claim to have suffered official discrimination: CB 347 at [87]. The Tribunal having set out the country information, and set out the fact that it considered that the applicant was not a witness of truth, rejected the applicant’s claim of past societal discrimination, and found the chance of future societal and official discrimination to be remote. On the basis of the applicant’s evidence, and the country information referred to, those findings were open to the Tribunal, and the Court observes that the fact that the country information suggested that Copts in Egypt experience low levels of official discrimination is not inconsistent with there being a remote chance of future official discrimination, as was found by the Tribunal.
In considering whether or not it was satisfied that a Protection Visa ought to be granted the weight to be given to material (including evidence, submissions and country information) that was before the Tribunal, was a matter for the Tribunal: Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48, (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 (“SZJSS”) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 at [31]-[32] per Sundberg, Emmett and Conti JJ; SZRTN v Minister for Immigration & Border Protection [2014] FCA 303; (2014) 63 AAR 243; (2014) 141 ALD 395 (“SZRTN”) at [81]-[82] per Katzmann J (from which an appeal was dismissed by the Full Court of the Federal Court and subsequently special leave to appeal was refused by the High Court: see SZRTN v Minister for Immigration & Border Protection [2014] FCAFC 129 and SZRTN v Minister for Immigration & Border Protection [2015] HCASL 12). In this case, the Tribunal dealt comprehensively with the applicant’s alleged proselytizing activities which were said to give rise to societal discrimination and possible persecution for blasphemy, and which might otherwise have given rise to official discrimination and, having regard to its credibility findings, disbelieved the applicant in relation to those matters. Thus, the factual premise upon which the applicant’s contentions rested had been rejected, and that rejection meant that the allegations with respect to discrimination and blasphemy were subsumed by the credibility finding which, as the Court has found, was open on the materials before the Tribunal: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ. It was, nevertheless, incumbent upon the Tribunal to consider the possibility of future societal and official discrimination: Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91 at [13] and [15] per Burchett J, and the Tribunal did so at CB 347 at [87] finding that the chance that the applicant would suffer societal or official discrimination in the future was remote, and as the Court has already observed that was a finding open to be made on the basis of the country information considered by the Tribunal (as to which see CB 347 at [84]-[86]).
The fact that the treatment of Copts was noted by the Tribunal as being one which varied depending upon location simply means that it was for the Tribunal to assess the evidence with respect to any relevant location and claims and determine whether or not the applicant had suffered societal discrimination in the past or might suffer societal discrimination in the future. It is evident that the Tribunal considered this issue. It took into account attacks on Coptic churches, property and individuals, within the context of where those attacks took place, the living conditions vis-a-vis non-Coptic Egyptians, and in particular Muslims, and the capacity of Copts to live safely in urban areas, including Alexandria from whence the applicant came: see CB 347-350 at [88]-[98], and [21], [27] and [28] below.
In all of the above circumstances, there was no evidence, or at least no sufficient evidence, for the matters complained of in Ground 1 – particular (a) to give rise to a real ground for believing that the applicant is at risk of persecution if returned to Egypt: Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
In all of the above circumstances there is no basis for a finding that the Tribunal’s findings with respect to whether or not the applicant had a well-founded fear of persecution on the basis of official and societal discrimination or persecution for blasphemy was unreasonable (having regard to the law on unreasonableness as set out in Pandey at [41] per Wigney J: see [9] above), and especially so where the Tribunal has carefully considered the claims made, the evidence and country information in relation to those claims, and the applicant’s credibility, before arriving at findings which the Court has found were open to be made by the Tribunal. Nor did the Tribunal consider the wrong question: at a general level it considered the question of whether or not the applicant had a well-founded fear of persecution or was at risk of harm (and, if so, to what extent), and at a specific level considered the elements said to give rise to a well-founded fear of persecution or risk of harm on the part of the applicant, and made findings in relation thereto. It is in relation to those issues and findings that the applicant seeks judicial review on the very question considered by the Tribunal. This is thus not a case of the Tribunal addressing a wrong question: rather, it appears to be a case of the applicant considering that she has received the wrong answer to a question properly considered by the Tribunal.
In all of the above circumstances, there is no jurisdictional error established in the Tribunal Decision by reason of Ground 1 – particular (a).
Ground 1 – particular (c)
In addition to the findings set out at [12] above, in the Tribunal Decision the Tribunal:
a)found that the applicant is a Copt who attends church in Alexandria and that she would continue to attend church in the future: CB 345 at [73];
b)found that there have been a number of churches attacked in Egypt: CB 345 at [74];
c)found that:
i)Christians who attract attention and antipathy of some Muslims in relation to their Christian religion or religious activities, continue to be subjected to violence and serious harm; and
ii)in addition to the targeting of churches and private properties by radicals or militants, violence in recent years has included community-level clashes and attacks against Coptic individuals, but that most Egyptians, particularly those living in cities and urban areas, work, live and socialise together with little regard to each other’s religious identity: CB 347 at [88];
d)referred to DFAT reports that the majority of incidences of communal violence in recent years has taken place in the provinces of Upper Egypt (that is in southern Egypt), and found that the applicant is not from Upper Egypt: CB 348 at [90];
e)found that the extent of the commitment of the Egyptian authorities in preventing communal violence varies between locations and individuals, and that occasional violent incidences of communal violence are likely to continue to occur as the result of small-scale localised disputes that take on a religious dimension, especially in Upper Egypt: CB 348 at [91];
f)found that recent events in Egypt show that there were two attacks on Coptic Christians in Egypt in May and April 2017, one in Cairo and another in Alexandria, where 45 Copts were killed: CB 348-349 at [89] and [92];
g)found that on 10 July 2017, the Egyptian authorities extended a state of emergency after the Coptic Church bombings in April 2017, because, amongst other things, the Muslim militant group responsible for church bombings threatened “further attacks against Egypt’s Coptic Christian community”: CB 349 at [93];
h)referred to DFAT reports that there have been substantial improvements under the administration of President Sisi in relation to the freedom of worship and safety for Copts, and widespread attacks on Copts have ceased, and most Copts in urban areas live peacefully: CB 349 at [94];
i)accepted that DFAT reports suggest that Christians continue to be prosecuted for blasphemy, however, as the Tribunal did not accept the applicant would proselytize, there was no risk that the applicant would be charged upon her return to Egypt: CB 343-344 at [60]-[71], 346 at [79]-[82] and 349-350 at [95];
j)considered various country information reports about Copts in Egypt which were attached to the applicant’s Protection Visa application: CB 335-336 at [11], and having reviewed that and other country information found that, while tensions and the potential for sectarian violence continue to exist, the overall situation for Coptic Christians has improved since the violence of August 2013 and it is relatively secure, particularly for those who reside in Cairo and Alexandria: CB 350 at [96], and that the applicant does not face a real chance of serious harm for reasons of her Coptic Christianity: CB 341 at [50] and 350 at [96] and [98];
k)having regard to the county information, did not accept that the applicant faced a real chance of serious harm because of her religion, or any other Convention ground on her return to Egypt: CB 350 at [98];
l)accepted that in June 2017 the Australian Government announced that it would review the situation for Copts in Australia awaiting deportation: CB 350-351 at [103]; and
m)concluded that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention under s.36(2)(a) of the Migration Act, nor was she a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act: CB 351 at [106].
The applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This is an objective requirement: the applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of being persecuted for a Convention stipulated reason. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412, CLR at 398 per Dawson J. Further guidance can be taken from Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where the plurality in the High Court said:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events… Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reasons if he were to return to the PRC.
In MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [94] per Keane CJ, Perram and Yates JJ, the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” The degree of speculation can be described as being that the Tribunal must not exclude reasonable speculation about the chances of a hypothetical future event occurring: Minister for Immigration & Multicultural Affairs v Rajalingam & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 at [32] per Sackville J, and in this case that would include the Tribunal’s drawing conclusions arising from the Egyptian Government’s commitment to reducing terrorism and sectarian violence.
In relation to whether or not a decision is illogical, irrational or unreasonable the Court refers to the principles outlined in Pandey at [41] per Wigney J as set out at [9] above, and SZMDS at [130] per Crennan and Bell JJ where it was said that:
... “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence ...
In SZOOR v Minister for Immigration & Citizenship & Anor [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 (“SZOOR”) at [15] per Rares J and [85] per McKerracher J it was observed that:
15. The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
85... Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision ...
The applicant’s argument in relation to Ground 1 – particular (c) falls into two broad parts. The first is that the Tribunal Decision is unreasonable and illogical when regard is had to the evidence and material before the Tribunal, and some of the findings made by the Tribunal, in particular as to the extent of unrest and violence in Egypt, and the impact of particular threats of further attacks on Coptic Christians in Egypt, especially as it relates to random attacks of terror from Muslim extremist organisations, and that the Tribunal failed to provide reasons for its findings (“First Part”). The second part is that the Australian Federal Government has unequivocally recognised the threat of Christian Copts being persecuted in Egypt because of terrorist attacks from Muslim extremists, and that the Tribunal’s failure to therefore find that the applicant has a well-founded fear of persecution is unreasonable and illogical (“Second Part”).
In relation to the First Part the Tribunal set out, evidently with some care, the relevant evidence and materials to which it had regard in determining that the applicant did not have a well-founded fear of persecution if returned to Egypt: CB 347-350 at [84]-[102], including:
a)the general instability in Egypt;
b)the societal position of Copts;
c)reference to the improved position of Christians generally since the post-coup violence of August 2013;
d)reference to the fact that individual Christians who act in a manner which attracts the attention of some Muslims may be subject to violence and serious harm;
e)that the majority of the Egyptian community – both Christian and non-Christian – live peacefully together;
f)that violence is more likely in poorer urban and rural areas, and that the majority of the violence has occurred in Upper Egypt, and that the applicant is from Alexandria, which is not in Upper Egypt;
g)the May 2017 bus attack resulting in the death of at least 28 Coptic Christians;
h)the April 2017 attacks on Christian Coptic churches, including the Palm Sunday attack in Alexandria, which left some 45 people dead;
i)that the Egyptian Government had extended a state of emergency after the attacks on the Coptic churches in April 2017; and
j)reference to the active restoration of police presence and authority following the July 2013 military intervention in Egypt and the election of President Sisi, and DFAT noting that there had been “substantial improvements” in relation to the personal safety and freedom of worship for Coptic Christians, who generally live peacefully with their Muslim neighbours, particularly in urban centres.
The country information considered by the Tribunal led it to find at CB 350 at [96] that:
… while tensions and the potential for sectarian violence continue to exist, the overall situation for Coptic Christians has improved since the violence of August 2013 and it is relatively secure, particularly for those who reside in Cairo and Alexandria.
(Emphasis added).
It is apparent that the Tribunal had regard to the material before it, and in arriving at its final conclusion that the applicant does not have a well-founded fear of persecution, and is not at risk of significant harm for complementary protection purposes, it has weighed that material, as it is required to do: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; SZRTN at [81]-[82] per Katzmann J. The material to which the Tribunal had regard contains material which might justify a range of conclusions, but in this case it can be inferred that the Tribunal placed more weight on the DFAT material which indicates that, not only have conditions improved for Coptic Christians in Egypt since the election of President Sisi, and that widespread attacks have ceased, but that most Coptic Christians are able to live peacefully, including peacefully with their Muslim neighbours, and that there has been a restoration of police presence and authority in Egypt, and that overall the situation for Coptic Christians is “… relatively secure, particularly for those who reside in … Alexandria”: CB 350 at [96].
Having regard to the DFAT reports, a conclusion that the applicant does not have a well-founded fear of persecution, and is not at risk of significant harm for complementary protection purposes, was open to be made by the Tribunal. The conclusion reached was neither unreasonable nor illogical on the basis of the principles outlined in Pandey at [41] per Wigney J in respect of unreasonableness, or in SZMDS at [130] per Crennan and Bell JJ and SZOOR at [15] per Rares J and [85] per McKerracher J in respect of illogicality. It is fair to observe, however, that it would have been open to a differently constituted Tribunal to arrive at a different decision, and that if the Court were engaged in merits review (which it is not) it too might have arrived at a different decision. But on judicial review that is beside the point in circumstances where the Tribunal fulfilled its statutory function by hearing the applicant’s case, setting out and plainly understanding the applicant’s claims, setting out the evidence and weighing that evidence, and then arriving at a conclusion which is reasonably and logically within the range of possible conclusions properly open on the evidence and materials before the Tribunal.
Two further observations in relation to the applicant’s submissions must be made, and they are that:
a)the applicant submitted that the Tribunal had assumed that the applicant would, if returned to Egypt, return to Alexandria, and said that no reasons had been provided by the Tribunal as to why that was so. The answer is a straightforward one: there was never any claim by the applicant that if she were to return to Egypt that she would live anywhere other than Alexandria, and this was not therefore a claim that the Tribunal was obliged to consider; and
b)the applicant submits that the reference at CB 349 at [94] to “substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Copts” is not referenced. The submission does not appear to go so far as saying that the words quoted do not appear in any DFAT report. There were only two DFAT reports cited in the Tribunal Decision, they being the DFAT Thematic Report Egyptian Copts, 24 November 2015 and the DFAT Country Information Report Egypt, 19 May 2017. The Court is entitled to infer that the Tribunal is referring to one of those reports when it refers to DFAT noting the matters set out above. It is arguably of some significance that there is no evidence in these proceedings from the applicant, or otherwise, which would entitle this Court to conclude that the words quoted, or words to that effect or substance, are not included in either of the DFAT reports, neither of which is in evidence before the Court. The mere fact that the words quoted are not referenced does not entitle this Court to draw a conclusion that reliance on those words is unreasonable. The Tribunal is entitled to have regard to, and weigh, country information (which the words quoted are) as it sees fit: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]-[11] per Gray, Tamberlin and Lander JJ, and particularly so where, as here, the country information is from a reputable and reliable source. It is not for the Court, as is implicit in the applicant’s submissions, to engage in an inquiry as to the reasonableness of the views expressed by DFAT. Indeed, to do so would require the Court to go beyond merits review of the Tribunal Decision, and to assess the merits of country information relied upon by the Tribunal in making the Tribunal Decision. That is not the function of the Court upon judicial review, as NAHI, and the many authorities cited above: see [8], [10], and [16] above, make clear. In all of the above circumstances, nothing turns upon the fact that the words quoted at CB 349 at [94] are not referenced, and the fact that they are not referenced does not establish jurisdictional error in the Tribunal Decision.
Having regard to the foregoing reasons the applicant’s claim that the Tribunal did not, or failed to, provide reasons for its conclusions in relation to the matters in the First Part cannot be made out, and in any event, it is self-evident from the Tribunal Decision that the Tribunal did not fail to provide reasons for its conclusions in relation to the matters the subject of the First Part of Ground 1 – particular (c).
In the circumstances, the First Part of Ground 1 – particular (c) does not establish jurisdictional error in the Tribunal Decision.
In relation to the Second Part the submission of the applicant appears to be that:
a)the Australian Federal Government has unequivocally determined that Christian Copts in Egypt are at risk of persecution, and therefore have a well-founded fear of persecution for Convention reasons, or are at a risk of significant harm for complementary protection purposes; and
b)the Tribunal ought to have had regard to the Australian Federal Government’s views in relation to the treatment of Christian Copts in Egypt, as expressed in the former Prime Minister’s remarks, and in the Khalil Speech, and, at least impliedly, as a consequence of the Assistant Minister’s review of Protection Visa applications made by Coptic Christians.
In respect of the Second Part the Court notes that the Tribunal’s findings with respect to credibility are not relevant. The Tribunal’s findings with respect to the credibility of the applicant are not relevant to the issues raised by the Second Part in relation to the Australian Federal Government’s views, and to the extent that these issues inter-relate with factual matters raised by the applicant before the Tribunal those matters, such as the fact that the applicant is a Christian Copt from Egypt who attended church in Alexandria, are uncontroversial.
It is plain that the Tribunal was aware of the Assistant Minister’s review, and also of the circumstances, particularly in relation to the bus attack in May 2017 and the church attacks in April 2017, referred to in the Former Prime Minister’s Remarks (although it is not immediately apparent that the Tribunal was directly aware of the Former Prime Minister’s Remarks). The Tribunal addressed this at CB 350-351 at [103]:
103. The applicant has provided a recording regarding Copts in Australia and the government actions. I accept that in June 2017 the Australia government announced that it would review the situation for Copts in Australia who await deportation. This is a matter for the Minister.
The Tribunal is an independent statutory body, that is, the Tribunal “is independent of any other part of the Executive and do not form part of a Ministerial department”: SZQPY v Minister for Immigration & Border Protection [2018] FCA 359 at [24] per Colvin J. The Tribunal is constrained by the Migration Act, and must determine the application in accordance with the statutory provisions and principles it is obliged to apply.
In Bread Manufacturers (NSW) v Evans (1981) 180 CLR 404; (1981) 56 ALJR 89; (1981) 38 ALR 93 at 429-430 per Mason and Wilson JJ it was stated that:
All that can be said is that the Act requires the Commission to make up its own mind, to come to a decision of its own, in fixing the maximum price of bread, without dictation from the Minister and without merely deferring to the Minister so that the decision ceases to be that of the Commission and becomes that of the Minister. The extent to which a tribunal or public official required by statute to make decisions which affect the rights of the citizen can take into account and act upon the views of the Government or a minister has been, and no doubt will continue to be, a vexed question… As these judgments tend to show, the problem is not one which admits of an answer having a universal application. So much depends on a variety of considerations, for there are few cases in which the statute explicitly provides that the tribunal is bound to give effect to, or to give weight to, a ministerial direction. One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government. What is permitted to one organization may be prohibited to another. What will be an extraneous consideration to a tribunal applying the law to the facts, e.g., the Court Martials Appeal Tribunal, may be a relevant consideration to a tribunal such as the Commonwealth Conciliation and Arbitration Commission which takes into account government economic policy
Albeit that it was considering an issue of apprehended bias, the Court notes the following comments in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [102] per Gleeson CJ and Gummow J and [284] per Callinan J have some resonance in the present matter:
102 … As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors…
284 … A Minister may, in his or her ministerial capacity speak freely about government policy, the operation of current law, and the government's desire and policy to change the law, without compromising his or her right and obligation to exercise a power conferred to decide a matter under current law, so long as he or she appreciates the different nature of his or her respective functions and legal obligations in discharging ministerial duties. Any obligations of restraint he or she may owe in speaking and acting are different from, and less onerous than, those owed by courts, judges and tribunals, the last of which may, I express no concluded opinion on it, be different again from the others.
The Former Prime Minister’s Remarks and the Khalil Speech were made in their respective capacities as Prime Minister and parliamentarian. The exercise of power conferred on the Tribunal was to determine, in accordance with relevant legal principles, if the applicant met the statutory requirements under the Migration Act for the grant of a Protection Visa. While the Former Prime Minister’s Remarks and the Khalil Speech may have been taken into account or considered, it is not apparent that they were specifically brought to the Tribunal’s attention. The Tribunal, correctly, found that any review was a matter for the Minister: see [44] below. Absent a statutory obligation or direction (such as that under s.499 of the Migration Act), there was nothing unreasonable in the approach of the Tribunal to the Assistant Minister’s review.
In Hneidi & Ors v Minister for Immigration & Citizenship [2010] FCAFC 20; (2010) 182 FCR 115; (2010) 265 ALR 292; (2010) 114 ALD 26 (“Hneidi”) at [42]-[43] per Spender, Emmett and Jacobson JJ the Full Court of the Federal Court stated:
42. Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
43. Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
The Court takes from Hneidi that it is not the role of the Tribunal to abandon the findings it has made, or shy away from those findings, which in this matter included adverse credibility findings and an assessment of chance and risk of harm on the basis of DFAT country information it was obliged to consider under s.499 of the Migration Act in order to conform to or implement the statements of the Prime Minister or the Member of Parliament. To do so would see the Tribunal usurp the “review” of the decision that is referred to in s.414 of the Migration Act.
In Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; (2000) 32 ALD 513 at [94] per Gyles J the Federal Court said:
94 …The Minister having the function of considering an application loses much of its force when the true extent and scope of s 415 is appreciated. It should also be borne in mind that, although the Minister does not participate in the review as an adversary, the Secretary receives a copy of the written statement under s 430(1) and any other document that contains evidence or material upon which the findings of fact were based, and is to be given notice of the handing down of the decision. The Minister, if he or she disagrees with the RRT decision, may substitute a decision more favourable to the applicant (s 417). Subject to that, the system makes the RRT rather than the Minister the final judge of the merits of the application.
The purpose of s.417 of the Migration Act is to enable the Minister to “intervene”, or to substitute a more favourable decision. In the Inquiry into Ministerial Discretion in Migration Matters conducted by a Senate Committee, the Committee’s Report published in March 2004 stated as follows with reference to s.417 of the Migration Act:
2.9 A subsequent bill introduced in the Senate in December 1989, amending Act 59 of 1989, established the limited context under which the minister is able to exercise discretion in immigration matters, especially in relation to humanitarian claims for visa applications which fall outside the visa categories codified in the Migration Act. The bill was supposed to provide balance for an otherwise inflexible set of regulations to allow the minister a public interest power to grant a visa in circumstances not anticipated by the legislation where there are compelling, compassionate and humanitarian circumstances for doing so. Ministerial discretion conceptualised in this way was to act as a safety net:
The Bill was welcomed by the opposition parties for its recognition of the need to restore a residual power of ministerial discretion in immigration matters, particularly in relation to applicants who do not meet the strictness of the new codified visa categories, but whose individual circumstances warrant humanitarian consideration.
(Emphasis added).
The Tribunal was obliged to review the Delegate’s Decision and make a determination as to whether the applicant satisfied the criterion to be granted a Protection Visa in the context of the “strictness of the…codified visa categories”. The question the Tribunal is required to ask is whether the individual, that is the applicant, met the criteria in s.36(2)(a) or (aa) of the Migration Act in her particular circumstances. The Minister (or Assistant Minister) is not so constrained. The lesser level of constraint that applies to the Minister (or Assistant Minister) is reflected in s.417 of the Migration Act, and at a political level, in the Former Prime Minister’s Remarks and the Khalil Speech.
The Tribunal must apply the same legal principles and standards to each matter before it, namely a “real chance” and a “real risk” of the respective harm in s.36(2)(a) and (aa) of the Migration Act. It must assess the circumstances of the individual and apply the relevant tests. If it were to do otherwise, or adopt a lenient approach on the basis of Ministerial statements or policy to a particular identified group, or otherwise outside of the parameters imposed under the Migration Act (including by s.499 of the Migration Act) this would cause unfairness to applicants not of this particular group, and call into question the integrity of the Tribunal as an independent review body and whether it was truly performing a review of the decision with a view to arriving at the correct and preferable decision on the basis of the materials before it and the statutory provisions it is mandated to apply. That point was brusquely made in in Mok v Minister of Immigration, Local Government & Ethnic Affairs & Anor (No 1) (1993) 47 FCR 1 (“Mok”), where the Federal Court considered whether comments made by then Prime Minister Mr RJL Hawke and a then current Senator concerning “Cambodian Boat People” were prejudicial and biased to such a degree that it influenced the administrative decision-maker to determine that the applicant was not a refugee. The Federal Court found there was not a policy, though noted a policy need not be formal but may be at a Departmental level, that “Cambodian Boat People” were not to be found as refugees: Mok at 32 per Keely J. Nevertheless, the Federal Court did find that the decision-maker was biased in finding the applicant was not a refugee because of the comments made by the then Prime Minister. In Mok at 20 per Keely J the Federal Court made the following observations:
In my view it was quite improper for Mr Hawke, as Prime Minister, to express publicly any opinion on the question of whether the Cambodian “boat people” were genuine refugees. It was however far worse for him to say “I will be forceful in ensuring that that is what’s followed” (i.e. he would take forceful measures to make sure that his opinion would be acted upon by Departmental decision-makers). In my opinion it was grossly improper for him to state publicly, with all the authority, prestige and influence of the office of Prime Minister, that he would “be forceful in ensuring that” his opinions would be “followed”. That statement was likely to intimidate the respondent Minister’s delegates and prejudice them against the Cambodian “boat people”; the obvious danger was that the merits of the cases of the Cambodian applicants for refugee status would not be fairly considered by the delegates and applicants would be wrongly denied refugee status. It should be inferred that Mr Hawke knew that applications by Cambodian ‘boat people’ for refugee status would be considered by “middle management” public servants. If he did not know, then he ought to have made enquiries before making those statements on national television in prime time; he should have borne in mind what Dr Flick called “a temptation on the part of the decision-maker not to needlessly offend potential future employers by controversial decisions” (Flick G A, Natural Justice (2nd ed, 1984), p 162). The temptation not to offend a “forceful” Prime Minister would have been stronger.
The Court considers the Tribunal was correct in the statement made at CB 350-351 at [103] of the Tribunal Decision that the Australian Federal Government’s review was a matter for the Minister.
The Tribunal was constrained to making a decision on the materials and evidence that were before it when determining if there was a real chance of serious harm or a real risk of significant harm to the applicant if she were returned to Egypt. That was the question before the Tribunal to determine on review, it was not required to take into account the Government or Minister’s policy, if it be that, unless it were in the form of a direction under s.499 of the Migration Act. The Tribunal was required by such a direction to have regard to the country information prepared by DFAT for the purpose of determining an applicant’s protection status: CB 353-354 at [122] The Tribunal did so, referring with some frequency to the two DFAT reports (as referred to at [31(b)] above): see CB 343 at [61] and footnote 3, 347 at [85] and [87] and footnotes 10 and 11, 348 at [90] and [91] and footnotes 13 and 14, 349-350 at [95] and footnote 17 and 350 at [97] and footnote 18. Having regard to the Tribunal Decision as a whole it is plain that the Tribunal was aware of incidences of, and the possibility of future incidences of, violence by Muslim extremists, in Egypt, but assessed, in the particular circumstances of the applicant, that she was not exposed to the requisite degree of risk to ultimately warrant the grant of a Protection Visa. The approach of the Tribunal was both reasonable and logical, and conformed with the law, and facilitated the Tribunal making an assessment as to whether it was satisfied, pursuant to s.65 of the Migration Act, that the applicant met the relevant criteria for the grant of a Protection Visa.
In the above circumstances, the Second Part of Ground 1 – particular (c) does not establish jurisdictional error in the Tribunal Decision.
It follows from the foregoing that there is no jurisdictional error in the Tribunal Decision on the bases asserted in Ground 1 – particular (c).
Conclusion and orders
The Court finds that no jurisdictional error as alleged in the Judicial Review Application is made out, and that the Judicial Review Application must therefore be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 March 2019
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