SZSZN v Minister for Immigration

[2014] FCCA 404

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 404

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it was arbitrary and unreasonable.

Legislation:

Migration Act 1958, ss.36, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant: SZSZN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1431 of 2013

Judgment of: Judge Cameron

Hearing date: 4 February 2014

Date of Last Submission: 4 February 2014

Delivered at: Sydney

Delivered on: 12 March 2014

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Counsel for the First Respondent: Ms S. Cirillo

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1431 of 2013

SZSZN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Egypt who, as the holder of a student visa, first arrived in Australia on 13 December 2005.  On 13 December 2010 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Egypt because of his political opinion.  On 7 December 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out on pages 4-28 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Protection visa application

1. The applicant made the following claims in his protection visa application and in a statutory declaration accompanying that application:

   a)he was a committed member of the Sunni Muslim faith.  When he was eighteen years old he joined the Muslim Brotherhood because his father was ill and the brotherhood had provided them with medical and financial support;

   b)throughout his time at university he was an elected member of the Muslim Brotherhood student media group.  He was interrogated by internal security on more than four occasions and threatened with expulsion from university;

   c)after completing his university studies he undertook national military service.  After completing his service he was interrogated by internal security and warned that his political activities would continue to be monitored;

   d)he had continued to be a member of the Muslim Brotherhood and became the head of a regional branch of the group;

   e)he had worked in Libya between January 1997 and January 1999 and in Yemen between January 1994 and January 1997;

   f)between 1994 and 2004 he was detained on five occasions for periods ranging between twenty-four hours and seventy-two hours.  He was interrogated and beaten on each occasion;

   g)during the 2005 Egyptian parliamentary elections he was responsible for the political advertising campaign in three regions and was the head of the funding and organisational committee in those regions;

   h)during the election campaign he was detained on two occasions and forced to sign an undertaking that he would cease assisting the Muslim Brotherhood candidates.  Despite signing the undertaking, he continued to campaign and became the personal assistant to one of the candidates;

   i)on the day of the election, internal security went to his home while he was not there and destroyed some furniture.  The following day they detained him for a day, interrogated and beat him;

   j)he encountered no difficulties when he left Egypt in 2005.  When he returned in September 2006 he was detained at the airport for twelve hours.  He was released on condition that he report weekly and was continuously monitored during his six week visit;

   k)when he went to Egypt in November 2008 he was again detained at the airport for twelve hours and released on condition that he report weekly.  He remained in Egypt for three months and during that time he established a medical assistance program funded by the Muslim Brotherhood.  When the program was discovered he was detained for forty-eight hours, interrogated and beaten.  Returning to Australia in February 2009, he was detained by internal security at the airport in Egypt for two hours;

   l)when he returned to Egypt for a third time in July 2010 he was savagely beaten and detained at the airport for ten hours.  He was accused of being a member of the El Gabha group and of returning to Egypt for the sole purpose of participating in the 2010 elections.  He was released on reporting conditions and on an undertaking that he not participate in political activities.  His passport was confiscated and his lawyer had to make an application to have it returned;

   m)on one occasion, during his stay in 2010, the security forces raided his home at 2am, blindfolded him and took him to the local police station where he was detained for twenty hours and interrogated about his association with the El Gabha group;

   n)during the 2010 election campaign he was detained on five separate occasions.  He was also detained at the airport when leaving to return to Australia, receiving a heavy blow to his right ribs; and

   o)he feared returning to Egypt because of what had happened on his visits there.  He would suffer ongoing monitoring, detention, interrogation and physical abuse at the hands of the Egyptian authorities.

2. In support of his application the applicant provided an undated letter from a lawyer in Egypt who stated that the applicant’s life and those of his children were at risk from state security forces.  The lawyer stated that on each occasion the applicant entered or left Egypt he had been intimidated and prevented from exercising his political rights and freedoms.  The applicant also provided a copy of an email dated 7 June 2010 sent to him by the National Association for Change regarding his approval of a statement, presumably made by that organisation.

Delegate

1. The applicant made the following relevant claims at an interview with the delegate:

   a)in 1998 he was detained for three days during the period of his Islamic wedding ceremony because he had invited Muslim Brotherhood leaders to his wedding.  He was detained again in 1999;

   b)he had had no trouble travelling to Yemen;

   c)in 2004 he was detained on three occasions and during the 2005 elections he was detained about five times for periods ranging between twelve and seventy-two hours;

   d)in 2005 while travelling to Australia for the first time, he was detained at the airport in Egypt for three hours;

   e)when he returned to Egypt in 2006 he was detained for four or five hours and in 2008 he was interrogated for about three hours;

   f)between November 2008 and February 2009 he was arrested about three times;

   g)when he returned to Egypt in July 2010 he was detained at the airport for about ten hours and beaten on the right side of his ribs and on his hand.  He received treatment at home from his uncle who was a doctor;

   h)members of the Muslim Brotherhood had recommended that he participate in the National Association for Change.  Apart from receiving an email from them in response to an email he had sent, he had had no further contact with the association;

   i)he belonged to a social group of twenty-five people in Australia who sought to implement change in Egypt.  They were thinking of establishing a branch of the Freedom and Justice Party, the political section of the Muslim Brotherhood.  He kept in contact with members of the Muslim Brotherhood in Egypt but did not know if it operated in Australia;

   j)his wife was also in the Muslim Brotherhood and, through her father and his brother, had received warning letters from state security forces; and

   k)he had not applied for a protection visa in 2005 because the situation in Egypt had not then been as grave or dangerous as it went on to become.  He had not intended to seek protection but had done so when he found that his life was in danger.

Tribunal

1. On 13 March 2012 the Tribunal wrote to the applicant seeking his comments or response to information that he had not applied for a protection visa until five years after he first arrived in Australia and two months after his last arrival.  The applicant did not respond to the request.

2. The applicant attended a Tribunal hearing which was held over the course of two days. On the first hearing day, 15 May 2012, the applicant made the following claims:

   a)he did not have a Muslim Brotherhood membership card because they did not issue membership cards;

   b)he joined the National Association for Change in May 2010 but did not receive a membership card because he activated his membership while overseas;

   c)his social group in Australia opposed Hosni Mubarak and he was concerned about his participation in it because Egyptian intelligence operatives were monitoring him in Australia;

   d)he had participated in the November 1995 elections.  When it was put to him that he had claimed to have been in Yemen in November 1995, the applicant said that he had participated in the preparations for the elections a year before the elections and not the elections themselves;

   e)he had actively participated in the 2000 elections.  Because his area had not had any candidates he had helped in other areas;

   f)during the 2005 elections he had been the leader of a group in charge of selecting candidates and forwarding them to the Muslim Brotherhood for approval.  He had also organised more than fifteen meetings, invited people to the elections and checked the polling places;

   g)he was arrested in January 2008 in relation to the medical treatment programme.  He then said he had been arrested in January 2009 before saying it had been in December 2008.  He could not easily remember the dates because he had been arrested many times in a short period;

   h)in July 2010 (during what the Minister’s movement records of the applicant indicate was a three month visit to Egypt) he was required to report to the state security weekly but had only reported on eight occasions.  He thought the officer may have forgotten to telephone him and if the officer did not ring him, he did not go in to report.  He was also supposed to report weekly during his three month visit in 2008 but had only reported eight times;

   i)when the state security forces raided his home on his visit in 2010, they came at 2am.  He could not remember the exact date but thought it was a Thursday in August.  He had not mentioned the claim at his departmental interview because he had not been given an opportunity to answer questions and the interpreter had not understood him;

   j)he had extended his stay in Egypt in 2010 because it had taken his lawyer six weeks to get his passport back.  Although the passport had been returned in late August he had not returned to Australia immediately because his daughter had been sick.  Because he had been afraid he would be arrested, he had not lived at his home but had visited at safe times during the day;

   k)his wife had received verbal warnings from state security forces on two occasions.  On the first occasion, in November 2010, she was warned through his brother and on the second occasion in January 2011 she was warned through her father.  The state security officers could not approach his wife directly because it was not culturally appropriate;

   l)he had decided to seek protection after returning to Australia in October 2010 because of what had happened to him on his return visits to Egypt, what had happened to his family and because of his health;

   m)his evidence about the times he had been kept in detention was inconsistent because he had been arrested more than twenty times and the periods of detention varied so he became confused.  At forty-two years old his memory was also not good;

   n)the contents of the letter from his lawyer were broad because Egyptians generalised and did not include details;

   o)he had not been harassed when travelling to Yemen and Libya because the authorities had wanted him to leave Egypt; and

   p)if he returned to Egypt he would participate in Muslim Brotherhood activities.  If he was injured he would bleed to death because his blood was not thick.  He had started new treatment in Australia which would not be available to him in Egypt.

3. At the first hearing day the applicant submitted a letter dated 9 June 2011 from a doctor stating that he had a chronic Hepatitis C infection, likely to have been acquired during his childhood, and that he was on medication.

4. On 21 May 2012 the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered would be the reason or part of the reason for affirming the delegate’s decision.  In response the applicant provided a statutory declaration declared on 12 June 2012 in which he claimed:

   a)he had had relatively few problems travelling to Libya and Yemen between 1994 and 1999 because the Muslim Brotherhood had been focused on community and charity work and was not a major concern to the Egyptian government.  His problems began when the brotherhood became more political and the authorities realised the brotherhood’s strength and began using more effective ways of controlling it;

   b)he had advertised the National Association for Change in and outside Australia, communicated with other members in Egypt and attended meetings and protests during his 2010 visit to Egypt;

   c)he had been monitored, discriminated against and arbitrarily detained for many years but it was only after he returned from Egypt in October 2010 that he felt that the continued discrimination amounted to persecution and so he sought protection;

   d)it had not been possible for him to include every single claim in his first statutory declaration.  It was difficult for him to condense so many events into the statutory declaration and his agent had told him he could provide further details at the interview.  He had also failed to mention significant claims because what he considered significant was different to what the Tribunal considered to be significant, there was a difference in the interview techniques of the delegate and the Tribunal and he had been taking medication which made him highly confused and unable to concentrate; and

   e)he had not mentioned that he had extended his stay in Egypt in 2010 because his reason for doing so, that his daughter was ill, had nothing to do with his claims.

5. The applicant also submitted:

   a)letters from three Egyptian members of parliament (“MPs”) stating that he was an active member of the Muslim Brotherhood who had participated in elections, causing him problems with the authorities;

   b)the letter from his lawyer, previously submitted to the Department; and

   c)a further letter from his lawyer dated 20 May 2012, stating that he had been persecuted and beaten, including on 1 September 1998 immediately after his wedding, and on 2 December 2005 when he was taken at dawn during the 2005 elections.  The applicant’s lawyer stated that the applicant was detained on 25 December 2008 after he participated in a medical campaign organised by the Muslim Brotherhood, was beaten and injured at Cairo airport and his passport was confiscated on 26 July 2010 and arrested at his home and detained on 18 August 2010.

6. At the second hearing day on 5 February 2013 the applicant made the following additional claims:

   a)when he left for Yemen he lost his position in one of the political groups of the Muslim Brotherhood.  After his return he was monitored because he went back to the Muslim Brotherhood;

   b)during the 2005 elections he had been one of five assistants to one of the candidates; and

   c)even though one of the leaders of the Muslim Brotherhood had been elected as president, some people were trying to make him step down and things were not settled in Egypt.  The Muslim Brotherhood was being targeted by the liberals, communists and security.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal considered that the applicant had fabricated almost all his claims and found that he was not a witness of truth. In this connection, the Tribunal noted that:

   a)the applicant had failed to raise many significant claims at his departmental interview.  The Tribunal did not accept the applicant’s explanation that his age affected his memory and whilst accepting that he had received treatment for a Hepatitis C infection, it found that that did not account for the numerous examples of him failing to articulate significant claims in his first statutory declaration and at his interview with the delegate;

   b)the applicant gave inconsistent evidence about his periods of detention.  The Tribunal noted that in his first statutory declaration he claimed that he had not faced difficulties leaving Egypt in 2005 but at his departmental interview said he had been detained for three hours.  It further noted that at his departmental interview he claimed to have been detained on one occasion for seventy-two hours between November 2008 and February 2009 but did not mention a detention of such length in his first statutory declaration.  The Tribunal did not accept the applicant’s explanations for these inconsistencies because in his first statutory declaration he had provided detailed information about dates, arrests and detention, the periods he was detained and other details about his claimed activities in Egypt and it expected him to have been able to provide the same details when questioned.  The Tribunal found that the applicant’s claims were inconsistent because he had fabricated them to enhance his protection visa application;

   c)the applicant provided different dates for when he had been beaten on the right side of his ribs and in his initial statutory declaration failed to mention that he had received medical treatment for the beating.  The Tribunal did not accept the applicant’s explanations for those discrepancies, noting that as the applicant had claimed that he had been savagely beaten, evidence about any injuries or medical treatment was directly relevant to his claim.  It found that the applicant’s evidence on this issue cast doubt on whether he had suffered any injury or harm at the time of his arrival in Egypt in July 2010;

   d)although the applicant initially claimed that on his return to Egypt in November 2008 and July 2010 he was subject to weekly reporting conditions, in response to further questioning he claimed that the weekly reporting conditions were not enforced due to inaction or apathy by the authorities.  The Tribunal found that the applicant’s failure to provide details about how often he reported and the reasons why he did not report indicated that he had developed those claims over the course of his application.  It found that that cast doubt on whether the applicant was ever interrogated, tortured on arrival in Egypt, accused of being a member of any political group or required to report to the authorities on any occasion and on his claims to have been known to the authorities because of political activities in Egypt or Australia and persecuted on arrival or subjected to a weekly reporting condition;

   e)it was not until the first hearing session that the applicant mentioned that he had extended his October 2010 visit and had not been staying at his home.  The Tribunal did not accept the applicant’s explanation that he had not mentioned this because he had extended his stay because his daughter was sick, which had nothing to do with his claims.  It found that if the applicant had been forced to move in order to avoid the authorities, which it considered to be a significant claim, the applicant would have provided that information earlier than he did and his failure to indicated that he had developed the claim over the course of his application;

   f)the applicant did not raise his claim that he had attended National Association for Change meetings and rallies until his statutory declaration declared after its first hearing.  Based on that, the Tribunal did not accept that he had in fact attended them.  It also found it implausible that the applicant’s response to an email sent to him by that group would lead to him being interrogated by the authorities in Egypt.  Based on country information and the applicant’s low profile in the National Association for Change, the Tribunal found that the applicant did not have a well-founded fear of persecution because of his support or membership of that group; and

   g)the three letters from the MPs did not provide any real detail about the applicant’s participation in any of the election campaigns in which he claimed to have been involved.  Specifically, the Tribunal noted that although the applicant had claimed to have been the personal assistant of one of the MPs, the particular MP did not identify him as his personal assistant in his letter.  Because of the lack of detail in the letters and their failure to refer to significant claims made by the applicant the Tribunal gave them no weight.  The Tribunal also found that the lack of detail in the letters from the applicant’s lawyer in Egypt cast doubt on whether those letters genuinely reflected the applicant’s experiences in Egypt.  The Tribunal gave those two letters no weight.

1. Whilst accepting that the applicant was aware of political developments in Egypt and supported the electoral platform of the Muslim Brotherhood, based on his inconsistent evidence and the development of his claims over the course of the application, the Tribunal found that that all of the applicant’s claims relating to his fear of persecution associated with his claimed membership or political activities with the Muslim Brotherhood had been fabricated for the purpose of enhancing his application.  Consequently, the Tribunal rejected all of the applicant’s claims and found that he would not engage in any political activities with the Muslim Brotherhood or any other political organisation if he returned to Egypt.  It also did not accept that the applicant had been a member of any group in Australia which was under surveillance by the Egyptian authorities, that he had been conducting a mission in Australia for the Muslim Brotherhood or any political organisation or that he was in contact with people in the Muslim Brotherhood in Egypt.

2. Having found that the applicant was not involved in any political activities except as an ordinary rank and file supporter of the Muslim Brotherhood and was not a member of the group, the Tribunal did not accept that the applicant would engage in political activities in Egypt.  It accepted that since the fall of the Mubarak government there had been considerable uncertainty among the Egyptian community about the future and an increase in lawlessness.  However, it did not accept that ordinary supporters of the Muslim Brotherhood and their political party were being targeted in a selective or discriminatory manner by any group or individual in Egypt.  The Tribunal was not satisfied that there was a real chance that the applicant, either as a low level supporter of the Muslim Brotherhood or more generally as an Egyptian, would be affected by incidents of generalised violence or political instability and be harmed.

3. The Tribunal noted that the applicant had not sought protection until five years after his first arrival in Australia.  It also noted that the applicant had travelled to Egypt on three occasions and spent approximately seven and a half months there.  The Tribunal found that the applicant’s return to Egypt for extended periods was not consistent with his claims to fear persecution there.  The Tribunal also noted that the applicant had failed to seek protection when he returned to Australia in November 2006 and February 2009.  It found that if the applicant had held the fears he claimed to hold, he would have lodged his application sooner than he did.

4. The Tribunal noted the medical evidence submitted by the applicant showing that he had suffered from Hepatitis C from childhood and his claim that he would not be able to access proper medical care in Egypt. It accepted that the standard of medical care was likely to be better in Australia than in Egypt but was not satisfied that a lower standard of medical care constituted significant harm under s.36(2A) of the Act.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Tribunal decision was arbitrary or unreasonable, or both arbitrary and unreasonable with the result that the state of satisfaction required by s. 65 of the Migration Act was not achieved.

   Particulars

   (a)The Tribunal made adverse credibility findings because the applicant failed to mention, at his interview with the delegate, aspects of his claims about which he was not asked, such findings being arbitrary and unreasonable.

   Further Particulars

   (i)     Being released on reporting conditions subsequent to his being detained on arrival at Cairo Airport in July 2010.

   (ii)    That his house was raided by the “authorities” in the early hours of a morning and his being detained, taken to a police station and interrogated.

   (iii)   Information about his participation in previous election campaigns.

   (iv)   Moving from his apartment to another location in 2010.

   (v)     The extension of his stay in Egypt in October 2010.

   (b)The Tribunal made adverse credibility findings on the basis that the applicant failed to mention, at his interview with the delegate, aspects of his claims when he had in fact given evidence about them.

   Further Particulars

   (i)     That the applicant failed to mention being beaten by the security services at the airport upon his arrival in Cairo in July 2010.

   (ii)    That his passport was confiscated at the airport in Cairo in 2010.

   (c)The Tribunal arbitrarily and unreasonably expected that all details of the applicant’s claims, extending over a period of nearly 25 years, should be mentioned in his statutory declaration.

   (d)The Tribunal unreasonably based credit findings on the following;

   (i)     That in his statutory declaration the applicant did not refer to any medical treatment arising out of a severe beating that he claimed to have experienced in July 2010, and that in the delegate’s interview he said that his uncle who was a doctor treated him.

   (ii)    That in his statutory declaration the applicant claimed to have been released from custody on weekly reporting conditions, and in his Tribunal hearing he gave evidence that these reporting conditions were not enforced consistently.

   (iii)   That in his Tribunal hearing the applicant gave evidence that he was not living at his family home, but was living at a different residence for fear of his safety, before his departure from Egypt on 16 October 2010, whereas he did not make this claim in his statutory declaration or in the delegate’s interview.

   (iv)   That the applicant claimed in his statutory declaration that he was personal assistant to a member of Parliament during an election campaign, whereas a letter from the member of Parliament identified him as a member of his electoral campaign team.

   (e)The Tribunal arbitrarily and unreasonably assumed that information about most or all of the applicant’s past experiences would be included in letters from a lawyer in Egypt supporting his claims, and that in the absence of such detail the letter was to be given, “no weight”.

   (f)The Tribunal arbitrarily and unreasonably assumed that detailed information would be included in letters submitted in support of the applicant’s claim to have assisted in electoral campaigns in Egypt, and that in the absence of such detail the letters were to be given. “no weight”.

2. The second ground of the application was not pressed.

Ground 1

Particular (a)

1. In para.171 of its reasons, the Tribunal said:

   The Tribunal was concerned that in the delegate’s interview, the applicant failed to mention significant claims relating to his political activities: being savagely beaten on arrival at Cairo airport in July 2010 and released on a reporting undertaking, information about his house being raided by the authorities early in the morning which also psychologically affected his children, being blindfolded, taken to the local police station, interrogated and detained for approximately 20 hours.  The Tribunal was concerned that he failed to mention many other aspects of his claims relating to adverse dealings with the authorities or that he extended his stay in Egypt for reasons relating to claimed persecution from the authorities. … The Tribunal accepts that applicants may not know or recall every single detail of the claim … However, the Tribunal does expect an applicant to recall and raise significant events in their claims and one of these would be when he was detained and severely beaten on arrival at Cairo airport only a few months before his application was lodged.  The Tribunal would also have expected him to have been able to provide information about his participation in previous election campaigns, even if he was not engaged in his local area; the confiscation of his passport for approximately one and a half months after he returned to Egypt in July 2010; moving from his apartment to another location from where he travelled backwards and forwards to his residence when it was safe; and the extension of his stay in Egypt in August 2010.  The Tribunal does not accept that the applicant is so elderly, at the age of 42, or nearing 43 years of age, that this affected his memory and notes that the applicant has not advanced any medical evidence to support this claim.  The Tribunal accepts that the applicant has been receiving medical treatment for a hepatitis C infection but finds that this does not account for the numerous examples of failing to provide significant claims in his written evidence or delegate’s interview and all of this this leads the Tribunal to cast doubt on all the applicant’s claims for protection and his credibility as a witness of truth.

2. The applicant submitted that there was no evidentiary basis for those of the Tribunal’s credit findings which were based on his failure to articulate certain claims in his interview with the delegate.  However, the transcript of the interview with the delegate records that during that interview the applicant did not raise the matters which he has particularised in the context of this part of his case.  Consequently his allegation that the relevant credit findings of the Tribunal lacked an evidentiary basis is not made out.

3. The applicant also submitted that it was unreasonable of the Tribunal to have made adverse findings as to his credit because he had not mentioned to the delegate aspects of his claims about which he was not asked.  The relevant test was described in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611:

   … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.(at 646 [131] per Crennan and Bell JJ)

4. It was not arbitrary or unreasonable, in the relevant sense, of the Tribunal to conclude that the applicant’s failure to mention the identified matters to the delegate reflected adversely on his credit.  Specifically, the matters referred to in particulars (i), (ii) and (iii) could easily have been included in the applicant’s responses to, respectively, the delegate’s questions 317, 397 and 332, as appearing in the interview transcript.  I am not of the view that no reasonable Tribunal would have considered the omission of the information to have reflected adversely on the applicant’s credit.  Additionally, although no question asked by the delegate provided an obvious opportunity or reason for the applicant to raise the matters referred to in particulars (iv) and (v), none of which had been mentioned in the applicant’s original statement, the delegate did ask the applicant whether he wished to add anything to what he had said in that statement (Q.36) and also asked the applicant at the end of the interview if he had anything further he wanted to say (Q.409).  In the circumstances it was not unreasonable of the Tribunal to conclude that doubt was cast on the applicant’s credibility by his failure to raise with the delegate the matters referred to in particulars (iv) and (v).

Particular (b)

1. The allegation in particular 1(b) was also based on what the Tribunal said in para.171 of its reasons.  Its essence was that the Tribunal’s decision on the review was arbitrary and unreasonable because it was based, in part, on an erroneous understanding of the evidence.  In this regard, although the applicant is correct to say that he did mention to the delegate that his passport had been taken from him at the airport upon his return to Egypt in 2010 (Q&A 275), he did not volunteer to the delegate that he had been savagely beaten on that occasion, as he had alleged in his first statement.  It was only after the delegate questioned him about that allegation that the applicant addressed it in their interview.

2. As already noted, the test of whether the Tribunal’s finding as to the applicant’s credit was arbitrary and unreasonable is whether no reasonable or logical Tribunal would have reached that conclusion on the available evidence.  Given the various matters identified by the Tribunal in para.171 of its reasons as having been taken into account when concluding that the lacunae in the applicant’s evidence to the delegate cast doubt on his credibility, I find that that credibility finding was not arbitrary or unreasonable even if mistaken as to one fact.

Particulars (c) and (d)

1. In para.172 of its reasons the Tribunal identified inconsistencies between the evidence the applicant gave in his statutory declaration and to the delegate concerning the length of time he had been detained in 2005 and on one occasion between November 2008 and February 2009.  In that paragraph the Tribunal also recorded the applicant’s explanations of those inconsistencies.  In para.173 of its reasons, the Tribunal said:

   The Tribunal does not accept these explanations because in his statutory declaration the applicant provided detailed information about dates, claimed arrest and detention, the period of time detained and other details about his claimed activities in Egypt and the Tribunal would expect him to be able to provide the same details, when questioned.  Furthermore, there is no limit on the amount of information that can be given in a statutory declaration and the Tribunal considers that the applicant had sufficient opportunity to provide details about all his claims for protection. …

2. In his written submissions the applicant said:

   To say, as the Tribunal did at CB 285 [173] that there is no limit to the information that can be given in a statutory declaration, and that the applicant had sufficient opportunity to provide details of all of his claims for protection, assumes that all detail that the Tribunal subjectively considers significant should be set out in the initial statement. …

   In those circumstances the Tribunal has imposed an arbitrary requirement not supported by the Act, that all claims and detail which it considered significant should be included in an initial statement. To draw credibility findings as a result of inconsistency of evidence is of course entirely legitimate, but to do so from omission of subsidiary detail in an initial statement covering a period of 22 years is not. …

3. I do not agree that the Tribunal imposed on the applicant some unreasonable or arbitrary standard of perfection.  In para.173 of its reasons the Tribunal was making it plain that its concern was with the applicant’s inability to repeat to the delegate claims he had earlier made in his statutory declaration.  The second sentence in the passage quoted served no more than to note that the version of events which the applicant went on later to propound could have been set out in the statutory declaration if the applicant had chosen to include it.

4. It was open to the Tribunal to place weight on the consistency or inconsistency of the applicant’s account.  I conclude that the Tribunal considered the inconsistencies in question to be significant and came to the view that the lack of consistency on those important matters meant that the applicant was not to be believed.  That was not an unreasonable or arbitrary approach to take.

5. The applicant’s submission that the matters in question were merely ones of “subsidiary detail” was only a veiled and impermissible challenge to the weight which the Tribunal accorded to those matters.  The applicant’s further arguments, that the information particularised in paras.(d)(i) and (ii) of this allegation was merely peripheral, that the information particularised in para.(d)(iii) was detail that should not have been expected to be supplied and that the evidence he gave in relation to his election campaign involvement was not necessarily inconsistent, were also no more than disagreement with the weight which the Tribunal placed on certain matters as well as a disagreement with a finding of fact.  Such complaints do not serve to identify jurisdictional error on the Tribunal’s part.

Particulars (e) and (f)

1. Those two allegations contended the same thing, namely that it was arbitrary and unreasonable of the Tribunal to accord purportedly corroborative letters no weight because they did not mention certain information on which the applicant relied to support his claims. 

2. The applicant submitted that the Tribunal made an arbitrary judgment as to what detail should have been in the letters but that is not correct.  It is implicit in the Tribunal’s reasons for according the letters no weight that it believed that matters as serious as the ones described by the applicant would have been mentioned in letters of support supplied by persons seeking to assist him by corroborating his claim to fear persecution.  That was a reasoned and reasonable approach, not an arbitrary one.  Further in this regard, although a different Tribunal might have viewed the letters differently and given them weight in its deliberations, I am not persuaded that the Tribunal’s appreciation of and judgment on them was one which no reasonable Tribunal would make.  As the letters did not corroborate significant claims made by the applicant, it was open to the Tribunal to conclude that they provided no assistance and were to be given no weight in determining whether the applicant had been persecuted as alleged.

3. The applicant observed that the Tribunal did not find that the letters were forgeries or that their authors were not who they said they were.  The Tribunal did not need to make such findings in order to determine whether the letters would assist it. 

4. The applicant also submitted that the Tribunal could have called the letters’ authors but he did not ask the Tribunal to do that and the circumstances necessary for the Tribunal to be required to make its own enquires were not present.  Consequently the lack of such enquiries is not indicative of error.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  12 March 2014