MZYUH v Minister for Immigration

[2016] FCCA 2468

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYUH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2468

Catchwords:
MIGRATION – Visa – protection visa – interlocutory application – notice to produce.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.15A.17

Migration Act 1958 (Cth), ss.36(2)(a), 499(1) & 499(2A)

Cases cited:

SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34

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: 3 May 2016

Date of Last Submission: 3 May 2016

Delivered at: Adelaide

Delivered on: 29 September 2016

REPRESENTATION

Counsel for the Applicant: Mr S Ower

Solicitors for the Applicant: Camatta Lempens Pty Ltd

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The first respondent produce to the applicant copies of the Department of Foreign Affairs and Trade country information report in relation to Egypt published on or about 28 January 2014 and the Department of Foreign Affairs and Trade Thematic Report on Egyptian Copts published on or about 28 January 2014.

2. The question of costs is reserved.

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

1. This is an application by the applicant for interlocutory orders pursuant to Notices to Produce served on the first respondent under r.15A.17 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The applicant seeks orders that the first respondent produce the following documents and materials:

   a)DEFAT Country Information Report in relation to Egypt published on or about 28 January 2014;

   b)DEFAT Thematic Report on Egyptian Copts published on or about 28 January 2014;

   c)All documents evidencing any request made by Mr Luke Hardy to any person during the relevant period to obtain a copy of the DFAT Country Information Report in relation to Egypt published on or about 28 January 2014;

   d)All documents evidencing any access during the relevant period by Mr Luke Hardy to any computer database containing a copy of the DFAT Country Information Report in relation to Egypt published on or about 28 January 2014; and

   e)All documents evidencing Mr Luke Hardy’s possession, during the relevant period, of the DFAT Country Information Report in relation to Egypt published on or about 28 January 2014.

2. The applicant is an Egyptian citizen and a member of the Coptic Christian Church in Egypt.  He claims to fear persecution on the basis of his religion. 

3. The applicant’s substantive application is for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 August 2015, which affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

4. The grounds of the Amended Application dated 4 March 2016 are 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 Direction 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 its 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)(a) 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.”

5. Mr Ower, for the applicant, submits that given the terms of s.499(1) and s.499(2A) of the Migration Act 1958 (Cth) (‘the Act’) and the Ministerial Direction No. 56, dated 21 June 2013, the Tribunal was required to have regard to any country information prepared by the Department of Foreign Affairs and Trade (‘DFAT’) relating to protection status determination processes where relevant in making its decision.

6. Copies of DFAT reports are not publically available.  The applicant is aware of the existence through another decision of the Tribunal of a country information report for Egypt dated 28 January 2014. 

7. The applicant asserts that the Tribunal failed to have regard to this document when making its decision and for that reason it fell into jurisdictional error.  Mr Ower referred the Court to a number of authorities to support this proposition.  It is sufficient for me to refer to the following statement of Perram J of the Federal Court in SZTMD v Minister for Immigration and Border Protection[1]:

   “[15] It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [69] (Yusuf). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.

   [16] If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.

   [17] It might be possible to argue that the concept of materiality under s 430(1) and relevance under Direction No 56 were in some subtle way different and that the guidelines were immaterial whilst relevant. However, such a submission was not made. Had it been made, I would not have been inclined to accept it because I doubt the stability of the distinction.

   [18] It follows then that if the inference suggested in Yusuf is drawn then it will be open to this Court — indeed probably required of it — to conclude that the Tribunal did consider the question of the relevance of the guidelines and the country information and decided that they were not relevant.

   [19] The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.”

   [1] (2015) 150 ALD 34 at [15]-[19].

8. In opposing the application, Mr Tredrea, for the first respondent, submits that on the face of the Ministerial Direction, the Tribunal was only obliged to take into account the contents of any DFAT country information report if it concludes that such information is relevant to the proceedings before it.  The first respondent points to the fact that the Decision Record made specific reference to the DFAT Thematic Report – Egyptian Copts (‘the Copts Report’) which was also dated 28 January 2014.  Mr Tredrea submitted that on the reasoning in SZTMD the silence of the Tribunal with respect to the Egypt Report permits an inference that the Tribunal did not consider it to be relevant.[2]  Mr Tredrea submits that the “Yusuf” inference should be drawn in this matter.  He contended that this submission was strengthened by a clear reference to the Egypt Report in the body of the Copts Report.  It is inconceivable, he submits, that the Tribunal was not aware of the Egypt Report and the inference should be drawn that it at least turned its mind to the existence and potential relevance of it.

   [2]     SZTMD op cite at [15].

9. In this matter, the Tribunal had regard to a large amount of country information.[3]  I am prepared to draw an inference that the Tribunal had regard to the Egypt Report and that it did not regard the contents of that report as relevant to the issues it had to determine.  For this reason, I decline to make an order that the first respondent produce any documents evidencing a request by the Tribunal for a copy of, or obtaining access to, or having possession of, the Egypt Report.

   [3]     Court Book (‘CB’) pp 562-566.

10. I see the request for production of a copy of the Copts Report and the Egypt Report as a different matter.

11. As Mr Ower correctly submits, an applicant is largely dependent on the first respondent’s own assessment of what materials are relevant for inclusion in a Court Book. In most cases, this is not a contentious issue. The applicant seeks to argue irrationality and illogicality in the decision making process and in the alternative a misconstruction of the relevant test under s.36(2)(a) of the Act. Those grounds are properly particularised and potentially raise issues of substance. In the circumstances, I am of the view that the production of the two reports sought would be likely to materially assist the applicant, or potentially refine the issues the applicant seeks to agitate. For that reason, I make the orders to be found at the beginning of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 29 September 2016