MZYUH v Minister for Immigration
[2019] FCCA 200
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYUH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 200 |
| Catchwords: MIGRATION – Visa – protection visa – whether decision of Tribunal unreasonable, illogical or irrational – whether failure to disclose s.438 certificate caused procedural unfairness to applicant – whether failure to disclose documents subject to the certificate caused procedural unfairness to applicant – no error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B), 424A(1)(a), (3)(b) & (ba), 438, 438(3)(b) and 476 |
| Cases cited: MZYUH v Minister for Immigration and Border Protection [2016] FCCA 2468 ABAR15 v Minister for Immigration and Border Protection (No.2) (2016) 242 FCR 11 |
| Applicant: | MZYUH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 359 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Ower SC |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the Respondents: | Mr K Tredrea |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant do pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 359 of 2015
| MZYUH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s.476 of the Migration Act1958 (Cth) (‘the Act’) of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 August 2015, refusing to grant the applicant a Protection (Class XA) visa (‘the visa’). That decision affirmed an earlier decision of a delegate of the Minister.
The applicant proceeded before me on grounds 4 to 6 of the Amended Application filed on 6 March 2018. Counsel for the applicant conceded that on the basis of an earlier finding by me[1] that ground 4 could not succeed and should be dismissed.
[1] MZYUH v Minister for Immigration and Border Protection [2016] FCCA 2468.
The grounds argued were as follows:
“4.The Tribunal’s decision dated 24 August 2015 was affected by jurisdictional error as, in making the decision, it breached subs.499(2A) of the Migration Act 1958 (Cth) by failing to comply with Ministerial Decision 56 of 21 June 2013. That direction required the Tribunal to take into account country information assessments prepared by the Department of Foreign Affairs & Trade, where relevant. It did not take into account such a report in relation to Egypt dated 28 January 2014, which stated that, since January 2011, an increase in beatings, harassment, stealing, extortion and kidnappings of Copts, mainly in Upper Egypt.
5.In the alternative, to the extent that the Tribunal did take into account that country information, its decision was affected by jurisdictional error as is finding at paragraph [208] that it was not satisfied on the evidence that the applicant faced a real chance of persecution in the future for reasons of being a Copt was:
(a)one at which no rational or logical decision maker could arrive on that evidence and the evidence in the DFAT Thematic Report also dated 28 January 2014; or
(b)alternatively, based on a misconstruction of the relevant test under subs.36(2) or failed to consider a relevant factor, as it has failed to make any findings, or alternatively consider, what this particular applicant would do if he returned to Egypt, and where he would reside, especially in light of the findings of the Tribunal in its reasons dated 15 December 2011.
6.The Tribunal failed to observe the requirements of procedural fairness, in that it failed to disclose to the appellant a certificate purportedly issued pursuant to s.438 of the Migration Act 1958 (Cth) that related to his application for review, being a certificate dated 1 May 2015, purportedly issued pursuant to para.438(1)(b).
7.In the further alternative, the Tribunals’ determination made under paragraph 438(3)(b) to not disclose the documents relevant to that certificate to the appellant during the course of the review was legally unreasonable.”
The background to these proceedings can be briefly stated and were not in dispute. What follows below has been paraphrased from both the applicant’s and the first respondent’s outline of submissions.
Background
The applicant is an Egyptian citizen.
He originally travelled to this country on a student visa in December 2007. He left Australia in September 2009 and returned in November 2009. In June 2010, his student visa was extended to 27 October 2010. On 22 October 2010, he applied for a protection visa.
A delegate of the Minister refused to grant him a protection visa on 6 April 2011. He applied to the Refugee Review Tribunal (‘RRT’) for a review of the delegate’s decision on 12 April 2011. The RRT affirmed the delegate’s decision on 15 December 2011. The applicant then applied for Ministerial intervention pursuant to s.417 of the Act.
On 3 March 2015, the Federal Court allowed by consent an appeal against the RRT decision. The matter was remitted to the Administrative Appeals Tribunal.
On 1 May 2015, a s.438 certificate was provided to the Tribunal. On 24 August 2015, the Tribunal affirmed the decision of the delegate.
The applicant’s claims were based on his involvement with the Coptic Christian Church in Egypt. He claimed to fear persecution on the basis of his religion. He asserted that, having become a deacon in that Church when he was about 18 years of age, he befriended a Muslim girl who later converted to the Coptic faith and had to go into hiding in a Coptic Convent. The applicant asserted that he was blamed by the girl’s family for this, they threatened him and police became involved. The police detained him and beat him over a period of four days. After his release he was told that criminal charges of proselytising had been brought against him. He then left for Australia. When he returned briefly to Egypt to visit his sick mother, he was told the charges against him were still pending. During that visit he was arrested at a Coptic youth meeting, and police took him to gaol, beat him and raped him with a baton. A Christian guard helped him to escape from gaol, after which he returned to Australia.[2]
[2] Court Book (‘CB’) pp 53 to 57.
Whilst it was accepted that he was a Coptic Christian who had been actively involved with his church in Egypt, the Tribunal rejected most aspects of his claims in findings that were based on an assessment of his lack of credibility. Those findings included that a document which was provided by the applicant and described by the Tribunal as a “court order” was not a genuine document.[3]
Submissions
[3] CB p 570 at para [220].
Applicant
Mr Ower SC formally submitted that ground 4 was pursued, but that on the basis of a finding previously made by me, conceded that it stood to be dismissed. I dismiss ground 4.
With respect to ground 5, the applicant submitted that the Tribunal made no generalised finding about the position of Copts in Egypt and that it provided no explanation as to why it concluded that the applicant did not face a real risk of persecution in the future by reason of his being a Copt. In the circumstances of this matter, the country information referred to by the Tribunal was not reasonably capable of supporting factual findings critical to the application of s.36(2)(aa) and (2B) of the Act. Counsel was at pains to stress that his submission did not amount to a request for an impermissible merits review. He accepted that it would be necessary to establish that the country information could not, on any reasonable view, support the conclusion reached by the decision-maker.
As a practical example of how the Court should approach the task of considering an argument based on unreasonableness, he submitted that the Court should be guided by the approach taken by Charlesworth J in ABAR15 v Minister for Immigration and Border Protection (No. 2).[4]
[4] (2016) 242 FCR 11.
In that matter, her Honour concluded that the decision of the Tribunal had been reached by impermissible reasoning from findings that were not reasonably open on the country information on which it relied.[5]
[5] Ibid at para [100].
It was submitted, in effect, that paragraphs 183, 184 and 186 of the Tribunal’s Decision and Reasons considered country information which supported a finding that Copts are at risk of persecution notwithstanding that there had been a crackdown on the Muslim Brotherhood after a military coup in 2013. Those findings then led directly into the findings at paragraph 188 of the Decision Record based on the DFAT Thematic Report: Egyptian Copts, (‘the Thematic Report’) as follows:
“The DFAT Thematic Report: Egyptian Copts, dated 28 January 2014, reports that, whereas some institutional and societal discrimination still exists, protection for Copts, particularly in Lower Egypt, has significantly improved since the ousting of the MB-backed Morsi government. Independent evidence indicates there is more optimism amongst Copts in Egypt, with the church welcoming protective provisions in the new draft constitution.[6] I note in referring to this particular report that F[7] comes from a village in Minya governorate, which is in Upper Egypt, and that the same DFAT report refers to instances involving vandalism of churches and kidnapping of Coptic women and girls having continued to occur in Upper Egypt.”[8]
[6] Egypt’s new constitution and religious minorities’ rights: Prospects of improvement?” European Parliamentary Research Service, 23 January 2014.
[7] Name redacted.
[8] CB p 564 at para [188].
It was that assessment that led to the conclusion of the Tribunal at paragraph 208:
“I have considered the independent evidence about the treatment of Copts in Egypt generally, both during and since the time F was last there. On the evidence before me I am not satisfied that he has been targeted by Muslim groups of any kind, let alone the MB. I am not satisfied on the evidence before me that D’s[9] family had any significant link to the MB or any other potentially relevant group. I am not satisfied on the evidence before me that F he (sic) has any profile with any Islamist groups. On the evidence before me I am not satisfied that he faces a real chance of persecution in the reasonably foreseeable future for reasons of being a Copt or for reasons of being an active member of his church or for reasons of being involved in youth or other day-to-day church activities. I am not satisfied on the evidence before me that there is a real chance he would face serious harm in the community at large in Egypt for reasons of being a Copt.”[10]
[9] Name redacted. This is a reference to the Muslim girl the applicant claimed had converted to Christianity.
[10] CB p 568 at para [208].
Mr Ower submitted that the question that must be asked is why the Tribunal reached that conclusion. Was it because the source and nature of the significant harm alleged by the applicant was insufficient to support the applicant’s claims to be at risk? Was it because the nature and degree of protection afforded by the Egyptian authorities was sufficient to negate the specific risks identified by the applicant? Would the applicant on obtaining protection from the Egyptian authorities still be at risk of significant harm?
There was no consideration, it was submitted, of how the country information could necessarily answer the above questions. In Mr Ower’s submission, the discussion at paragraph 188 of the Decision Record, taken at its highest, might point to the Tribunal concluding on the basis of the Thematic Report that State protection had improved to such a degree that the applicant would not be at real risk. For the Court to reach such a conclusion would be something of a leap of faith, he submitted, because the Tribunal did not address the type of questions he had posed. However, if the Court did reach that conclusion, it was his further submission that the Thematic Report simply did not support a finding that there was now a higher degree of protection for Copts.
The Thematic Report was before me, annexed to the affidavit of Ms Milutinovic. I will not summarise it in detail but will refer to it later in these reasons.
As to grounds 6 and 7, the applicant made joint submissions. Relying on the decision in the Minister for Immigration and Border Protection v Singh[11], he submits that the failure to disclose the s.438 Certificate was prima facie a denial of procedural fairness and indicative of jurisdictional error. Further, the decision under s.438(3)(b) not to disclose the documents themselves was legally unreasonable in the sense identified in the case of Minister for Immigration & Citizenship v Li.[12] No consideration appears to have been given to the question of whether it could disclose the documents in question, and there was a danger of a subconscious effect on the Tribunal in seeing those documents.[13]
[11] (2016) 244 FCR 305.
[12] (2013) 249 CLR 332.
[13] SZMKG v The Minister for Immigrationand Citizenship (2009) 177 FCR 555 at para [94] - [100].
Respondents
For the first respondent, Mr Tredrea submitted that ground 5(a) amounted to no more than an emphatic disagreement with the decision of the Tribunal and was, in effect, a request for a merits review. The country information, including the Thematic Report, demonstrated that the conclusion of the Tribunal was at least open to it.
As to ground 5(b), it was submitted that the question was subsumed by a finding of greater generality namely, the applicant not being at risk “in the community at large in Egypt”.[14]
[14] CB at p 568 at para [208].
As to grounds 6 and 7, the first respondent makes the submission that, given the material the subject of the notification was authored by Sister Pat Seeley who is a registered Migration Agent, and who was at all relevant times in respect to the earlier Refugee Review Tribunal application and the subject Tribunal application, his authorised representative, there could have been no substantive or practical procedural unfairness through non-disclosure. The material, having been put forward by his Migration Agent, was presumably believed by the applicant to be supportive of his claims. Through his Agent, the material was already known to the applicant. In that context, where was the unfairness or injustice? Further, Mr Tredrea submitted that the Tribunal was under no obligation to disclose the source of any information on which it may rely.[15]
[15] Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 at para [27] – [28].
Further, as the material was not adverse to the applicant, it could not have formed a part of the reason for affirming the decision under review.[16] Also, the material fell within the exceptions identified in s.424A(3)(b) or (ba) being material given by the applicant for the purpose of the application for review or during the process that led to the decision under review.
[16] Section 424A(1)(a).
It was submitted that, notwithstanding the decision of the Full Court in Singh, this was a case in which the documents not disclosed gave rise to no procedural unfairness.
Consideration
It is helpful to start by setting out some of the principles relevant to an application alleging unreasonableness, irrationality and illogicality.
It is well established that emphatic disagreement with a decision is not sufficient to ground a finding of irrationality or illogicality.[17] What is required is that the decision be one which no rational or logical decision maker could arrive at on the same evidence and which is akin to a decision that is clearly unjust, arbitrary or capricious.[18] That principle has also been expressed in terms of the need to demonstrate “extreme illogicality”:[19]
“… the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, 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 and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the tribunal.”
[17] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para [40]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; SZMDS op cit at para [129].
[18] SZMDS op cit at para [130].
[19] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at para [148]; See also Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.
It was a matter for the Tribunal to determine what country information it relied on and the weight to be given to it.[20]
[20] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para [11].
The applicant submitted that the Thematic Report could not have supported the finding made by the Tribunal and as I have said, that report was before me. The applicant directed the Court’s attention to paragraph 5.4 of the Thematic report which says:
“(1)On a day-to-day basis in urban areas the State has a capacity and willingness to provide protection to Copts and generally does so.”
Nonetheless, the applicant submitted this did not support the finding of the Tribunal at paragraph 188, that protection for Copts had significantly improved. That is so, because the independent evidence referred to in paragraph 188 was the European Parliamentary Research Service briefing paper of 23 January 2014,[21] which did not support a conclusion that there was no risk because of the adequacy of State protection.
[21] Exhibit A4.
Consideration
In my view, there is no reason to conclude that the conclusion of the Tribunal that protections for Copts had significantly improved was not a reference to State protection. Given the country information considered by the Tribunal, that was a conclusion reached in light of other matters referred to in the Thematic Report to which it clearly had regard. It is not to the point that the applicant emphasises other information before the Tribunal.[22] As I have said, it was for the Tribunal to determine what information to rely on and what weight to give to it.
[22] For example, Exhibit A3, the Al Jazeera news story “Security fears for Egypt’s Copts” dated 7 January 2011.
It is correct that the Tribunal did not in its reasons quote at length from the Thematic Report. However, a fair reading of that Report on which the Tribunal relied supports the conclusion that the findings of the Tribunal were at least open to it. For illustrative purposes, it is helpful to set out some extracts from that report:
“2.13 Notwithstanding the rise in the number of violent incidents (including some high-profile attacks), DFAT assesses that day-to-day life for most Copts in Egypt is not overtly affected by sectarian differences. Most Egyptians--especially those living in cities and urban areas-work, live and socialise together with little regard to each other’s religious identity. However, when small scale disputes arise (e.g. due to a neighbourhood disagreement) they can adopt a sectarian dimension and, infrequently, mushroom into community-level violence. This happens more frequently in poorer urban and rural areas. Spikes in sectarian violence can also occur in times of political tension and coincide with broader political upheavals (see 'Violence', below).
…
3.1 Copts experience low levels of discrimination at the hands of the state (i.e. ‘official discrimination’). Community prejudice (i.e. ‘societal discrimination’) against Copts is pervasive, but severity varies depending on geographic and socio-economic factors. In middle class urban areas, societal discrimination is low-level and infrequent. In poorer urban and rural areas, where Egyptians tend to be more conservative, discrimination and instances of harassment can be higher. Rural areas generally have lower levels of law and order and higher levels of Islamist activity (for instance in Aswan, Islamist parties received 78 per cent of the vote in the 2011-12 Parliamentary elections).
3.2 Most Copts in both urban and rural areas do not experience harassment in their daily lives and live alongside Muslims across all social classes, genders and backgrounds. Religious identity does not tend to be a factor in day-to-day life. However, underlying sectarian tensions exist and disputes have been known to tum violent (see ‘Violence’, below).
…
4.5 DFAT assesses that Copts are not at risk of targeted violence from the state or its institutions. There has been one high-profile incident of state violence against Copts in the past few years. On 9 October 2011, the military dispersed a Coptic protest outside the state radio and television building in Maspero, Cairo, resulting in at least 28 killed (the majority of whom were Copts) and over 300 injured. The protest followed the destruction, on the governor's order, of a church in Aswan Governorate. Military units sought to contain and then disperse the protesters. The military used live fire and their armoured vehicles to disperse demonstrators.
…
5.3 That said, despite the occasional failures (notably the 7 April 2012 clashes outside the Coptic Orthodox Cathedral in Cairo-see ‘The Morsi Government’, above), DFAT believes that a more substantial police presence in urban areas has enabled Copts to live there in greater security. DFAT assesses that the level of police presence, and consequent protection provided to Copts, in rural and poorer areas is generally less than in the cities.
5.4 DFAT assesses that on a day-to-day basis in urban areas, the state has a capacity and willingness to provide protection to Copts and generally does so. A Copt facing harassment could go to a local police station for protection in these areas. DFAT has observed that under the current Interim Government, the security services see it in their interest to be responsive to Coptic grievances, although societal discrimination could impact on the level of protection offered to Copts by an individual security official.”
Whilst reasonable minds may have differed on the implications of the country information, the findings made by the Tribunal were open to it. They cannot be said to have been unreasonable, illogical or irrational. Further, with respect to ground 5(b), I accept the submission of the first respondent that the Tribunal was not required to consider where in Egypt the applicant might reside should he return there. The Tribunal found that he would not be at risk in the community “at large”[23] by reason of being a Copt. The generality of that finding obviated the need for that question to be asked. I dismiss ground 5.
[23] CB p 568 at para [208].
Grounds 6 and 7
Section 438 of the Act provides as follows:
“438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1)This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.”
Since Singh was decided, a number of other decisions of the Full Court have dealt with s.438. In the Minister for Immigration and Border Protection v CQZ15,[24] the Court found that the documents covered by a certificate were relevant to judicial review proceedings in this Court.[25] It considered the implications of non‑disclosure of a certificate and said:
“It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ. The Minister did not contend to the contrary. It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined.”[26]
[24] [2017] FCAFC 194.
[25] Ibid at paras [64] - [65] and [77].
[26] Ibid at para [68].
If the documents contained material that could not have prejudiced the applicant’s interests and could not have undermined the prospect of a favourable decision by the Tribunal, then no procedural unfairness would arise.[27] In those circumstances:
“It would not be necessary, in such a case, for the reviewing court to speculate as to what the applicant might or might not have done had he or she known about the contents of the documents before appearing at the Tribunal. What the reviewing court would have to determine was whether the documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome.”[28]
(Citations omitted)
[27] Ibid at para [72].
[28] Ibid at para [73].
Further, the Court held that the fact of invalidity of a certificate was not always productive of jurisdictional error.[29]
[29] CQZ15 op cit at para [74]; see also Minister for Immigration and Border Protection v BJN16 (2017) 160 ALD 43 at para [63]; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198.
In this matter I received a copy of the certificate and the information and documents to which it related. The certificate covered three pages of material from the applicant’s departmental file. Those pages were information provided to the Minister by the applicant’s migration agent with respect to matters that appear to have been pending consideration of Ministerial intervention. Information is provided about the circumstances of five individuals other than the applicant. That information could not possibly have had any bearing on the applicant’s prospects before the Tribunal and a failure to disclose that information to him cannot have given rise to any procedural unfairness.
The document also sets out information about the applicant and his case. All of that information would have been known to the applicant personally or through his migration agent. It was the migration agent who prepared the document. A consideration of the document as a whole negatives the suggestion that non‑disclosure deprived the applicant of the possibility of a successful outcome. No practical injustice has been demonstrated by the failure to disclose that information. Jurisdictional error has not been established and I dismiss ground 6.
Similarly, as the information in the document the subject of the certificate was known to the applicant and was his own document, the determination under section 438(3)(b) not to disclose it cannot be said to have been legally unreasonable. No jurisdictional error has been established and accordingly I dismiss ground 7.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 8 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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