FEDERAL COURT OF AUSTRALIA

DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCA 495

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1    Before the Court is an application for review of a decision of the Assistant Minister for Immigration and Border Protection, made on 20 June 2017, refusing to revoke the cancellation of the applicant’s protection visa. The applicant held a protection visa, which was cancelled on 9 June 2015, under s 501(3A) of the Migration Act 1958 (Cth) (the Act), for the reason that the applicant failed to pass the character test on grounds that he was serving a sentence of imprisonment of a period of 12 months or more. The Assistant Minister considered whether to revoke the cancellation, under s 501CA(4) of the Act.

2    The argument in the application for review concerned the application of s 501CA(4)(b)(iii) of the Act. The applicant contested the Assistant Minister’s conclusion that there was no other reason why the cancellation decision should be revoked.

3    The applicant lodged a request for revocation to the Assistant Minister, dated 22 September 2016. The Assistant Minister considered the submissions made by the applicant that the original decision should be revoked because of the hardship and harm he would suffer if he were to be returned to Egypt, his rehabilitation and reduced likelihood of reoffending, and his length of residence in Australia. The Assistant Minister, in his statement of reasons for decision, considered the application under the headings: claims of harm if returned to Egypt; strength, nature and duration of ties; extent of impediments if removed.

4    Then, under the heading Protecting the Australian Community, the Assistant Minister considered the nature of the applicant’s criminal conduct and the risk to the Australian community.

5    It is unnecessary to detail the reasoning of the Assistant Minister on all of these subjects, because the argument of the applicant in the application before the Court related only to his claims of harm if returned to Egypt.

6    The Assistant Minister’s reasons, on this subject, were as follows:

14.    As part of his current revocation request, [the applicant] submits that he will face harm if returned to Egypt as he is homosexual.

15.     I am aware that [the applicant’s] fear of being harmed due to his claimed sexuality was addressed in an International Treaties Obligations Assessment (ITOA) that was finalised on 5 September 2016. It was determined that [the applicant] did not engage Australia's protection obligations as his claims of having a well-founded fear of persecution on the basis of being homosexual lacked credibility.

16.     [The applicant] was provided, via his agent, a copy of the ITOA. In response, [the applicant’s] agent submits that [the applicant] disagrees with the finding regarding his sexuality and is not currently in a position to provide further evidence to support his claim.

17.     I am aware that [the applicant] also raised concerns regarding his fear of persecution in Egypt based on his religion as 'Christian Orthodox' which he states is also referred to as Coptic Christian. The ITOA concluded that as a non-practising Christian, [the applicant] would face a 'remote rather than real risk of persecution' due to his religion and found him to be not owed protection obligations.

18.     In light of the conclusions of the ITOA, which I accept, I am not satisfied that the claims made by [the applicant] in his request for revocation that he will suffer harm if returned to Egypt constitute "another reason" why the original decision should be revoked.

19.     I accept that if I decide to not revoke the mandatory visa cancellation decision of [the applicant’s] Protection visa, he will be prevented by s. 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration regulations). Also, in terms of a Protection visa, [the applicant] will be prevented by s. 48A of the Migration Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines that s48A of the Act does not apply to him - s48A(1B) and s48B of the Act refer).

20.     I note that a consequence of not revoking the cancellation of [the applicant’s] visa is that he will be liable for removal from Australia under section 198 of the Act.

7    The applicant filed this application on 21 July 2017, and set out the grounds of his application as follows:

I seek to get back my permanent visa and protection of Australia as my lif [sic] is at risk and I fear harm from my own family members and from the people and the army and the Government of Egypt if I have to be returned back to Egypt.

I feel the decision of the Assistant Minister is unfair, because I believe the Assistant Minister did not look at my application closely and thoroughly, especially about my homosexuality and religion.

The Assistant Minister did not consider the fact that I did not leave this country since I entered it, in 2006. And the reason why I could not go back to Egypt since 2006 was because of my homosexuality as it is not allowed in Egypt and it is not allowed by anyone, not by my family members, not be neighbours, not by Army, not by Government and not by anyone at all. And if any homosexual person is reported to the authorities, that person will be tortured and humiliated and executed or killed.

And because of my homosexuality, my immediate family members have disowned me already and I have no one else left for me in Egypt to trust them or get support from them or to confined [sic] in them. I will also have extreme difficulty in finding employment and accommodation without support from family, friends or relatives. I’m considered an outcast to my own family and the whole people of Egypt. To my family and the whole people of Egypt I don’t deserve to be alive and I should be dead because of my homosexuality.

As for my religion being Coptic Christian Orthodox regardless of practicing my religion or not, like all other Christians in Egypt, will always be persecuted by Muslims. As for Muslims in Egypt, they do not only care if a Christian is practicing their religion or not, but also they look for other signs or marks to see if the person is Christian so that they can persecute them. These signs or marks could be the name of the person, or the cross the person is wearing or a tattoo mark of a saint or a church or a cross on the body, especially cross on the right wrist of the hand of the person. These signs or marks on the body are enough to indicate the religion of a person and be persecuted for that reason and regardless of the person is practicing the religion or not. For this reason my life is at risk and I fear harm and persecution on the basis of my religion.

Finally, I’d like to say I’m extremely sorry for whatever wrong and pain I have caused to anybody including myself, as I was under a lot of pressure being on drugs and under pressure of life from losing my family, my people to losing myself because of my homosexuality. And now I have learned from this experience to try to get rid of drugs and stay away from it, and I have also learned to accept myself as a homosexual and it is up to people to accept me or not and all I have to do is to stay calm and take things easily [sic], from now on. And Australia, not Egypt, is the home for me to live safely and to be myself, homosexual and Christian, without being killed [illegible] or persecuted.

8    The applicant appeared, on the hearing of the application, with the assistance of an Arabic interpreter, but was not legally represented. It was explained to the applicant that the function of the Court was restricted to the correction of legal error. The Court does not have jurisdiction to reinvestigate the facts of the claimed harm if the applicant were returned to Egypt. The applicant said that he understood that explanation and explained that he had come to the Court wishing to contest the facts. He wanted to say that the Assistant Minister was wrong in concluding that he was not homosexual and that he was wrong in coming to the conclusion that, as a non-prasticing Christian, he would face a remote, rather than a real risk of persecution due to his religion. The arguments which the applicant sought to raise amounted to a merits review, and consequently are not available to him on such an application.

9    The Court, however, raised with counsel for the respondent the apparent incongruity between the grant of a protection visa in 2009 to the applicant on the basis which he explained to the Court was because of his homosexuality, and the rejection in the International Treaties Obligations Assessment dated 5 September 2016, which found that the applicant was not a homosexual.

10    On the face of it, it seemed curious that the Assistant Minster did not advert to the different conclusions on the same subject matter. However, it is clear from a careful reading of the International Treaties Obligations Assessment that part of the reason for the difference in conclusions was the inconsistencies between the claims made in 2009 in support of the protection visa application, and the information provided by the applicant in 2016 in the course of the assessment relating to the same facts and circumstances. A further explanation for the difference in outcomes between the 2009 application and the 2016 assessment related to events which occurred after the grant of the protection visa in 2009, and which cast doubt on the applicant’s claim of homosexuality.

11    It follows that the applicant has not made out any case of legal error on the part of the Assistant Minister. The application must be dismissed.

Associate:

Dated:    13 April 2018