FEDERAL COURT OF AUSTRALIA

EDV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 186

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Just over five years ago, a delegate of the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), refused an application by the appellant for a protection visa under s 65 of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal subsequently affirmed that decision on review. The appellant challenged the Tribunal’s adverse decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. That application, which was not heard until September 2019, was promptly dismissed by the primary judge. The appellant has filed an appeal in this Court against the primary judge’s dismissal of his application.

2    For the reasons that follow, the appeal is wholly without merit and must be dismissed with costs.

relevant Background to the tribunal’s decision

3    The appellant is a citizen of Egypt. He first arrived in Australia in 2007 as the holder of a student visa. He did not apply for a protection visa until 2014, having been granted a series of student visas in the interim. It is also worth noting that the appellant returned to Egypt on five separate occasions in the period between his first arrival in Australia and his application for a protection visa.

4    The appellant claimed, in his protection visa application, that he feared that he would be harmed, arrested or imprisoned if he returned to Egypt on account of his political beliefs and political activities in Egypt.

5    He claimed that he had been a supporter of the Muslim Brotherhood and that he had been involved in various protests and demonstrations against the army in Egypt. He said that he had been arrested by “the [a]uthorities” in Egypt and mistreated on at least two occasions.

6    The Minister’s delegate did not accept that the appellant’s claims were credible and was not satisfied that the appellant met the criteria for a protection visa. The appellant’s visa application was accordingly refused.

The Tribunal’s decision

7    The appellant repeated and elaborated on his factual claims when he appeared before the Tribunal to give evidence and present his arguments. He also claimed, for the first time, that he had been involved in activities, including protests and demonstrations, against the Egyptian government while he was in Australia.

8    Unfortunately for the appellant, the Tribunal did not believe the appellant. Indeed, it would be fair to characterise the Tribunal’s decision as a wholesale rejection of the appellant’s claims and his credibility as a witness. The Tribunal found that the appellant was not a witness of truth and that he had “exaggerated and fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims”: Statement of Decision and Reasons at [80]. The Tribunal gave lengthy and detailed reasons for so finding: Reasons at [35]-[79].

9    The Tribunal made a number of materially adverse findings against the appellant in respect of his claims. Those findings included that the Tribunal did not accept, or was not satisfied, that the appellant: held any of the political views he claimed to have held (Reasons at [82]); had come to the adverse attention of the authorities in Egypt, or had been detained, interrogated, beaten or threatened by the authorities in Egypt (Reasons at [83]); had attended as many protests or demonstrations in Australia as he had claimed, or that he was an organiser or was active on social media in relation to those activities (Reasons at [87]); faced a real chance or real risk of having his “minimal” activities in Australia come to the attention of the Egyptian authorities (Reasons at [98]); or has or would have any actual interest in engaging in political activities in Egypt should he return there (Reasons at [101]).

10    While the Tribunal accepted that the appellant had engaged in some demonstrations against the Egyptian government while in Australia, it disregarded those activities pursuant to s 91R(3) of the Migration Act (now s 5J(6) of the Migration Act). That is because it found that they were engaged in for the purposes of strengthening the appellant’s claims for a protection visa, not because of any genuine interest in political matters (Reasons at [89]).

11    The Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under the Refugees Convention, or that he was a person in respect of whom Australia otherwise had protection obligations. The appellant therefore did not satisfy the criteria in either s 36(2)(a) or s 36(2)(aa) of the Migration Act. The Tribunal accordingly affirmed the delegate’s decision not to grant the appellant a protection visa.

The Circuit Court proceeding and judgment

12    The appellant’s application filed in the Circuit Court contained five grounds of review upon which he relied in support of the relief he sought. That relief included an order quashing the Tribunal’s decision and a writ of mandamus directed to the Tribunal requiring it to determine his application according to law.

13    It is unnecessary to set out the appellant’s five grounds in full. It suffices to note, at this point, that the primary judge characterised or summarised them as “complaints about certain findings made by the Tribunal” which did not identify any “recognisable legal error”: EDV16 v Minister for Immigration & Anor [2019] FCCA 2698 (Judgment) at [26]. It would also appear that, in the course of his oral submissions to the primary judge, the appellant asserted that the Tribunal was biased: Judgment at [28].

14    The primary judge rejected each of the appellant’s grounds, including the ground that alleged bias. His Honour gave detailed and cogent reasons for rejecting each ground.

15    The appellant’s first ground of review related to a finding made by the Tribunal that the appellant had used the student visa system in order to remain in Australia (at Reasons [34]). That finding was primarily based on the Tribunal’s consideration of evidence relating to the appellant’s “study history” while he held student visas (see Reasons at [28]-[32]), though the Tribunal also noted that it was supported by its “credibility findings”. The Tribunal reasoned that the appellant’s misuse of the student visa system indicated that the appellant had a strong desire to remain in Australia and that this in turn indicated that he “may be prepared to make false protection visa claims to do so”.

16    The primary judge considered the arguments put by the appellant in relation to this ground, which included that the Tribunal should not have had regard to his study history and that the finding was a “mistake”. His Honour found, however, that it was open to the Tribunal to make that finding on the evidence which was before it, that the finding was relevant in assessing the genuineness of the appellant’s claims, and that it was by no means an arbitrary, capricious or unexplained finding: Judgment [29]-[40]. His Honour found that the balance of the appellant’s arguments in relation to this ground amounted to no more than impermissible merits review: Judgment at [41].

17    The appellant’s second ground related to a finding made by the Tribunal (at Reasons [45]) that the appellant had given vague evidence about his activities in Australia. The appellant argued before the primary judge that the Tribunal had not asked him questions about the number of demonstrations he had attended in Australia and that the finding was not open on the evidence. The primary judge found, however, that it was readily apparent from the transcript of the Tribunal hearing that the Tribunal had asked the appellant many questions about his activities in Australia and the finding that the appellant’s evidence on that topic was vague was open on the evidence: Judgment at [42]-[49].

18    The appellant’s third ground concerned the finding made by the Tribunal (at Reasons [68]) that it was not satisfied that a membership card from a political party, the “Freedom and Justice Party”, that the applicant had provided in support of his visa application was genuine. The appellant argued before the primary judge that it was wrong for the Tribunal to find that the card was not genuine, that the Tribunal did not provide evidence to prove that the card was not genuine, and that the Tribunal did not give any reasons for making that finding.

19    The primary judge rejected those contentions: Judgment at [50]-[60]. His Honour found that the Tribunal’s finding in relation to the genuineness of the card was based not only on country information that indicated that false documents can be obtained, but also on its adverse credibility findings. The primary judge indicated that the Tribunal’s process of reasoning was that the credibility of the appellant’s claims had been so weakened that it could not accept the corroborating evidence in the form of the card. His Honour found that the Tribunal did not err in taking that “approach”, citing Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404; FCAFC 83 at [68] and WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511; FCAFC 171 at [41] as authority for that proposition: Judgment at [58]. His Honour also found that the finding concerning the card and the key findings on credibility that informed it, were open to the Tribunal: Reasons at [60].

20    The appellant’s fourth and fifth grounds concerned the Tribunal’s findings relating to the fact that the appellant had not made any claims about his activities while in Australia when he was interviewed by the delegate: Reasons at [39] and [42]. The appellant did not dispute that he did not make any claims in respect of his protest activities in Australia when he was interviewed by the delegate. He argued, however, that he did not have the opportunity to raise this with the delegate. He claimed, in that regard, that he had not been “squarely” asked about his activities in Australia. The appellant also took issue with the Tribunal’s findings concerning his explanation for why he did not do so.

21    The primary judge rejected the appellant’s claim that he had not been given the opportunity to raise any claims concerning his activities in Australia when questioned by the delegate. The primary judge referred, in that regard, to the transcript of the hearing before the Tribunal which suggested that the delegate had directly asked the appellant whether he had been involved in any protests or activities relating to events in Egypt while he was in Australia: Judgment at [79]. The primary judge also found that the Tribunal was not bound to uncritically accept the appellant’s explanation for why he did not refer to his activities in Australia when questioned by the delegate and that the Tribunal’s findings were reasonably open to it and supported by logical and comprehensive reasons: Judgment at [81].

22    Finally, the primary judge rejected the appellant’s contention that the Tribunal was biased. His Honour found that the appellant’s contentions in that regard were unsupported by the evidence: Judgment [84]-[89]. It would appear that the appellant’s arguments before the primary judge were based primarily on what had occurred during the Tribunal hearing. The transcript of the Tribunal hearing had been tendered by the appellant. It is clear that his Honour had read and analysed the transcript and found that it did not support the appellant’s claim of bias on the part of the Tribunal.

23    The primary judge also considered and rejected various other submissions that were apparently made by the appellant concerning certain other findings made by the Tribunal. The primary judge found that the findings that were the subject of those submissions were open to the Tribunal and that the appellant’s submissions had misconceived or misrepresented those particular findings and the Tribunal’s reasons in relation to them: Judgment at [90]-[97].

24    The primary judge concluded that none of the grounds in the appellant’s application and none of the appellant’s submissions revealed any jurisdictional error on the part of the Tribunal.

The appeal

25    The appellant’s grounds of appeal were uninformative and did not identify any particular appellable error said to have been made by the primary judge. The grounds simply asserted that the primary judge erred in not accepting the appellant’s contention that the Tribunal’s decision was “affected by error of law” and expressed the appellant’s belief that it was not reasonably open to the Tribunal to find that there was a “genuine and real risk” that he had or would come to the attention of the authorities in Egypt.

26    The appellant did not file any written submissions in accordance with the directions made by the Registrar. The appellant did, however, appear at the hearing and made fairly lengthy submissions in support of the appeal.

27    It would be fair to characterise the appellant’s oral submissions in support of his appeal as amounting to a re-agitation or restatement of his grounds of review and the arguments he had advanced in support of those grounds in the Circuit Court. He referred to each of the five grounds of review and appeared to essentially repeat the arguments he had put to the primary judge. The appellant also repeated his claim that the Tribunal was biased. The arguments he advanced in support of that claim again appeared to essentially repeat what he had put to the primary judge. The appellant did not directly address the primary judge’s findings in relation to those grounds, beyond simply asserting that his Honour was wrong to reject those grounds.

28    It is readily apparent that the appellant strongly disagrees with a number of the critical adverse findings that were made by the Tribunal. He clearly believes that those findings were wrong, unsupported by – or contrary to – the evidence, and in some cases unfair. He also obviously feels aggrieved not only by the Tribunal’s decision, but also by the way he was treated by the Tribunal. He was, however, unable to persuade the primary judge that any of his complaints about the Tribunal’s findings and reasons amounted to jurisdictional errors.

29    More significantly, for present purposes, the appellant has been unable to demonstrate that the primary judge made any appellable errors in considering and dismissing his review grounds. It is readily apparent from the primary judge’s reasons that his Honour gave careful and comprehensive consideration to all of the arguments put forward by the appellant in relation to the Tribunal’s findings and reasoning and its conduct of his review application. His Honour also plainly had regard to the evidence that was before him in relation to the review grounds, including the transcript of the Tribunal hearing. The primary judge’s reasons for rejecting the appellant’s grounds and arguments are detailed, logical and compelling.

30    I am unable to discern any appellable error in the primary judge’s consideration and dismissal of the appellant’s application. I have considered again the appellant’s arguments concerning the various findings made by the Tribunal that are the main focus of his complaints. Like the primary judge, I am unable to accept that any of those arguments are capable of demonstrating jurisdictional error on the part of the Tribunal. The appellant’s arguments have no merit, essentially for the reasons given by the primary judge. The primary judge was also plainly correct to reject the appellant’s claim of bias on the part of the Tribunal. That serious allegation was wholly unsupported by any evidence. The transcript of the hearing before the Tribunal did not assist the appellant in that regard.

Conclusion and disposition

31    The appeal has no merit and must be dismissed with costs.

Associate:

Dated:    27 February 2020