SZVUX v Minister for Immigration

[2016] FCCA 166

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 166

Catchwords:
MIGRATION – Review of former Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 91R

Applicant: SZVUX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3434 of 2014

Judgment of: Judge Driver

Hearing date: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Stone of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3434 of 2014

SZVUX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 14 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions.

2. The applicant is a male citizen of Egypt. The applicant first arrived in Australia on 30 October 2005 as the holder of a student visa.  He departed Australia on 18 April 2007 and returned on 5 June 2007.  He departed Australia again on 30 September 2011 and returned on 30 October 2011.[1]  The applicant gave evidence that he had travelled to Egypt during these two periods.

   [1] Court Book (CB) 46-47.

3. The applicant applied for a protection visa on 8 March 2012.[2]

   [2] CB 1-37.

4. The applicant claimed to fear harm in Egypt due to his opposition to compulsory military service and because he would be forced into military service, and due to the general political and security situation in Egypt.  The applicant claimed that during his time in Egypt in October 2011 he was involved in a clash which resulted in his being detained for approximately four hours.   The applicant also developed a claim to have political opinions against the regime in Egypt, which he expressed at demonstrations in Australia and on his facebook page and which he would wish to express on his return to Egypt, which he claimed would cause him to be harmed by the government or the military.

5. The application was refused by a delegate of the Minister on 21 June 2012.[3]  The applicant applied to the Tribunal for review of the delegate's decision on 23 July 2012.[4]

   [3] CB 46-61.

   [4] CB 62-83.

6. The applicant appeared before the Tribunal at a hearing on 9 August 2013.[5]  On 23 August 2013 the Tribunal wrote to the applicant inviting his comment on or response to information which it considered would be the reason or part of the reason for affirming the decision under review.[6] The applicant's agent responded to the information in submissions dated 24 September 2013.[7] 

   [5] CB 123-125.

   [6] CB 145-190.

   [7] CB 191-197.

7. The applicant appeared before the Tribunal at a further hearing on 16 September 2014.[8]  At the hearing the applicant submitted photographs depicting his attendance at a demonstration in Australia.[9]  Following the hearing the applicant submitted evidence of his support for a petition against President El-Sisi attending the United Nations General Assembly.[10]

   [8] CB 205-209.

   [9] CB 209-218.

   [10] CB 224-225.

8. The Tribunal made its decision on 14 November 2014, affirming the decision under review.[11]

   [11] CB 236-281.

The decision of the Tribunal

1. The Tribunal accepted certain background factual matters, as set out at [131]. However the Tribunal found that apart from those matters all of the applicant's claims for protection had been fabricated or developed to enhance his application. The Tribunal found that the applicant was not credible or truthful, and rejected the applicant's explanations for his inadequate evidence.[12]  This lead the Tribunal to reject the bulk of the applicant's claims, as follows:

   [12] at [132] and [133].

   a)the applicant's claim of being detained when he was 15 or 16;

   b)the incidents the applicant claimed occurred on 15 October 2011, during his return to Egypt;

   c)the applicant's reasons for not studying upon his return from Egypt in October 2011;

   d)the applicant's reasons for his delay in lodging his application;

   e)the applicant's claim that he has any objection to compulsory military service;

   f)the applicant's claim that he will be treated as an evader of military service upon his return and detained or forced to serve in the army;

   g)the applicant's claim that he held strong political opinions which he would express if he returned to Egypt, including his attendance at demonstrations or expressing his opinions, and the applicant's claim that he would be viewed by the military as a supporter of the Muslim Brotherhood, a terrorist and a traitor, for which he would be arrested, imprisoned and may be killed;

   h)the applicant's claim that his political conduct in Australia, as demonstrated on facebook, would come to the attention of the authorities;

   i)the applicant's claim that he has been accused in Australia or Egypt of being a terrorist or supporter of the Muslim Brotherhood, or would be perceived as being an enemy of the army, a terrorist or supporter of the Muslim Brotherhood or any other political group if he returned to Egypt.

2. The Tribunal’s findings were based on the accumulation of all the inconsistent evidence, vague, evasive or implausible evidence, the nature and scale of the development of claims given by the applicant, and the nature and scale of the failure to provide significant claims at an earlier opportunity.[13] 

   [13] at [133].

3. With the exception of the applicant's attendance at a rally or demonstration on 25 January 2011, the Tribunal did not accept that the applicant had attended demonstrations or rallies in Australia or signed the online petition other than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention.[14] Accordingly the Tribunal disregarded this conduct, pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).[15]

   [14] at [137].

   [15] at [138].

4. The Tribunal did not accept that the applicant had any strong political convictions or beliefs, or that he had any political profile in Egypt, other than as one of millions of Egyptians who take an interest in political developments. Accordingly the Tribunal rejected the applicant's evidence that he would express his opinions on return to Egypt, engage in political activities and attend demonstrations. Further the Tribunal found that the applicant would not refrain from expressing his opinions to avoid persecution or significant harm. The Tribunal consequently found that the applicant did not have a well-founded fear of persecution for any Convention reason, in Egypt now or in the reasonably foreseeable future because of his claimed political opinions, profile, convictions or beliefs.[16]

   [16] at [139].

5. The Tribunal was not satisfied that on the evidence before it the applicant was a genuine conscientious objector or that he had any particular politically based objections to military service, or that he intended or desired to object to military service for the reasons he has claimed.[17]

   [17] at [141].

6. The Tribunal considered whether the applicant was at risk because of political instability and generalised violence in Egypt but was not satisfied that the applicant would suffer persecution for any Convention reason because of this.[18]  Nor was it satisfied that the applicant would suffer significant harm for this reason.[19]

   [18] at [142].

   [19] at [146].

7. Having rejected a substantial proportion of the applicant's claims, the Tribunal was also not satisfied that the applicant would suffer significant harm should he return to Egypt.[20]

   [20] at [144].

8. Based on country information, and the applicant's low profile, the Tribunal did not consider that the applicant would face significant harm as a result of his activities in Australia.[21]

   [21] at [145].

9. The Tribunal concluded that the applicant did not meet the refugee criterion in s.36(2)(a) of the Migration Act at [148] or the complementary protection criterion in s.36(2)(aa) at [149].

The present proceedings

1. These proceedings commenced with a show cause application filed on 11 December 2014.  The applicant continues to rely upon that application.  The grounds in the application are:

   1. The Tribunal made an error of law by misunderstanding my fears of persecution.

   2. The Tribunal member interviewed me 2 times and failed to understand my reasons for applying for refugee status.

   3. The Tribunal has no reasons to deny my political activities.

   4. I would like to get a copy of my hearing cd recording to show the Court that the Tribunal member misunderstood my claims.

2. The application is supported by a short affidavit made by the applicant and filed with it. 

3. I also received as evidence the court book filed on 5 February 2015.  Further, I received as evidence the affidavit of Toufic Laba-Sarkis, made on 21 March 2015.  There is annexed to that affidavit transcripts of the two Tribunal hearings conducted on 9 August 2013 and 16 September 2014.

4. The grounds advanced by the applicant are general in nature.  In the absence of particulars, they could not succeed.  To that extent, I agree with of the Minister’s written submissions. 

5. Grounds one, two and four to assert that the Tribunal’s findings and reasons did not accurately reflect the applicant's oral evidence given at the hearings before the Tribunal.  The applicant's oral evidence as given at the Tribunal hearings is evidenced in the affidavit filed by the applicant. 

6. The applicant has not particularised his allegation.  The Tribunal’s summary of the applicant's oral evidence, as appears in the Tribunal's decision and reasons, appears to be accurate.  At the hearings, the Tribunal put a number of concerns to the applicant, which the applicant sought to explain.  The Tribunal accurately recorded the applicant's explanations.  It was open to the Tribunal to reject those explanations, and the fact that it did so does not mean that the applicant's claims or evidence were not properly understood.  These grounds fail to raise an arguable case.

7. The third ground of review seeks impermissible merits review of the Tribunal’s conclusions, which were reasonably open to the Tribunal on the material before it.

8. In the course of oral argument, the applicant attempted to provide particulars in support of his application.  Those particulars relate to his political claims.  The applicant contends that the Tribunal did not understand or deal with the subtlety of his political claims.  His submissions were initially somewhat general.  I explained to him the difference between a failure to consider a claim and a failure to accept the claim.  The applicant then referred to particular parts of the Tribunal hearing transcripts, in particular in relation to military service at pages 31 to 33 of the first transcript and pages 16 to 18 of the second transcript.  He advanced those passages in an attempt to establish an argument that his claims in relation to military service in particular were not considered or properly considered. 

9. In reply, the Minister’s solicitor referred to the detailed consideration of the applicant’s claims in the Tribunal decision at [73]-[74] and [116]-[117], as well as the conclusions reached by the Tribunal at [140] and [141].  It does not appear to me that any of the applicant’s claims were overlooked by the Tribunal.  While the applicant contends that on the basis of his claims he is at serious risk should he return to Egypt, the Tribunal did not accept that he has a political profile that would put him at risk.

10. In my view, the Tribunal conscientiously and in some detail considered all of the applicant’s claims.  Two hearings were required because of the changing situation in Egypt and additional country information becoming available.  The Tribunal considered the risks to which the applicant might be exposed and in my view the conclusions reached by the Tribunal about those risks were open to it on the material before it. 

11. I conclude that the applicant has not been able to demonstrate an arguable case of jurisdictional error by the Tribunal. 

12. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant, while not opposing an order for costs in general terms, indicated that he would probably need to pay by instalments.  I will not require payment of costs by any particular time.

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  8 February 2016