AGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE AUTHORITY'S DECISION 3 The Authority began its decision by setting out the details of the appellant's visa application and the information it had before it. It then set out the details of the appellant's claims for protection as follows (at [5]): • The applicant fears he will be harmed by the Muslim Brotherhood who tried to force him to join them. He was threatened and harmed by members of the Muslim Brotherhood prior to his departure and believes they will continue to do so on his return and he may be killed. His family members have received threats since his departure from Egypt; • He cannot obtain protection from the authorities as they are unable to protect people from the Muslim Brotherhood; • The applicant fears harm from Salafists who threatened him because he owned a business selling women's lingerie and because they wanted him to join their group but he refused to do so. His business was burned down in December 2012 by people he believes were Salafists and he was also beaten by them; • The applicant fears he will be harmed because he will refuse to undertake his compulsory military service on his return to Egypt; • The applicant fears harm as there are constant human rights violations and general violence in Egypt and it has become worse since his arrival in Australia; • He cannot relocate to anywhere else in Egypt as he will be questioned by locals and turned away. 4 After setting out some factual findings and reviewing the apposite provisions of the Migration Act 1958 (Cth) (the Act) (ss 5H(1) and 5J), the Authority turned to consider the appellant's claims commencing with his "Claims of fear of harm from members of the Muslim Brotherhood and/or Salafists" (at [13]). In the course of that consideration, the Authority mentioned the Department of Foreign Affairs and Trade (DFAT) Country Information Report dated 19 May 2017 (the DFAT report) on a number of occasions, two examples of which are as follows: (a) At [19] and footnote 2, it set out the following quote from page 3, [2.4] of the DFAT report as follows: The Department of Foreign Affairs and Trade (DFAT) in its 2017 Egypt country report states that after President Morsi was elected in June 2012 "sporadic, large scale protests and violent clashes took place between Morsi's opponents and supporters, and led quickly to crippling political polarisation in Egypt. .... Egypt experienced a major decline in law and order in the wake of the 2011 Revolution leading to a sizeable increase in violent crime, civil unrest and terrorist attacks." … (Emphasis in original; footnote omitted) (b) At [22] and footnote 3, the Authority referred generally to the DFAT report concerning the surveillance and monitoring that was likely to have occurred with respect to inactive members or party supporters of the Muslim Brotherhood. 5 The Authority then turned to consider the appellant's "Claims of fear of harm for reasons of the applicant's membership of a particular social group, that is people who refuse to undertake their compulsory military service". This heading summarised the gist of the appellant's fourth and fifth claims (set out at [3] above). In the course of considering and rejecting that claim, the Authority again referred to the DFAT report on a number of occasions. Those references included the following: (a) at [27] and footnote 6, it referred to the details of the exemptions that may be obtained from military service in Egypt set out at p 23 of the DFAT report; (b) at [29] and footnote 7, it referred to the service conditions for military conscripts also detailed at p 23 of the DFAT report; (c) at [34], it stated that if the appellant refused to undertake military service: "DFAT reports that he is liable to pay a fine of up to EGP1000 (approximately AUD170) and/or to face a minimum of one year's imprisonment". The source of this passage is not cited, but it appears to have been taken from [3.88] on p 23 of the DFAT report as follows: If an individual is not able to renew his military service exemption and does not complete his military service, he is liable to pay a fine of up to EGP1000 ($AU170) and/or face a minimum of one year's imprisonment. It is unclear how many people have been imprisoned in Egypt for evading military service. Anecdotal evidence suggests that those imprisoned for not completing military service are not targeted or treated differently relative to other prisoners. (d) at [35] and footnote 12, it referred to p 23 of the DFAT report in respect of the number of people who have been imprisoned in Egypt for evading military service; (e) at [37], it came to the following conclusion which it stated was based on "the above information": … I am not satisfied that if the applicant were to be fined and arrested and imprisoned for refusal to undertake military service or if he were forced to undertake military service that this would amount to persecution within the meaning of s.5J(4), or that the reasons in s.5J(1) are the essential and significant reason or reasons for the persecution. (f) at [38], it referred again to the fine mentioned at (c) above and concluded: "… I do not consider the imposition of a fine equivalent to approximately AUD170 to constitute serious harm." (g) at [39] and footnote 15, it referred to p 32 of the DFAT report in support of the statement that "DFAT reports that in general prison conditions are poor and do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence". The Authority then went on to express the following conclusion: Given the country information about prisons in Egypt I accept that all inmates are at risk of violence in prisons, but the available information does not indicate or support a finding that there is a real risk the applicant will suffer serious or significant harm just as a result of his presence in a prison as an inmate without some additional factor. I am not satisfied that being detained in a prison with conditions that fall below international standards constitutes serious harm, having regard to the extensive examples of serious harm in s.5J(5) of the Act. 6 Next, the Authority considered the appellant's "Claims of harm for reasons of [his] membership of a particular social group, that is, returned failed asylum seekers". Having done so, it reached the conclusion that the appellant did not meet the requirements of the definition of "refugee" in s 5H(1) and did not therefore meet the requirements of s 36(2)(a) of the Act. 7 Finally, the Authority turned to consider the appellant's complementary protection claims under s 36(2)(aa). In the process of considering those claims, the Authority generally referred back to its review of the contents of the DFAT report as set out above as follows (at [54]-[58]): 54. I accept there is a real risk the applicant will be served with his papers for mandatory military service on his arrival or soon after his arrival in Egypt. In the event that he continues with his intention not to undertake military service and does not successfully evade the authorities until he turns 30, I accept that he will be subject to arrest, a fine and up to one year's imprisonment under Egyptian law. These are lawful sanctions. 55. I am satisfied the imposition of a fine of up AUD170 does not constitute significant harm for the purposes of s.36(2A) 56. I have given consideration to whether being detained in a prison with conditions that fall below international standards could constitute 'torture' or 'cruel or inhuman treatment or punishment' or 'degrading treatment of punishment as defined in the Act. I am not satisfied that there are substantial grounds to consider there is a real risk that being in such conditions would cause him severe pain or suffering, or pain or suffering that could reasonably be regarded as 'cruel or inhuman treatment or punishment' which is inconsistent with Article 7 of the [International Covenant on Civil and Political Rights]; or cause him extreme humiliation that constitutes 'degrading treatment or punishment' which is inconsistent with Article 7 of the Covenant; or cause him 'severe pain or suffering' that could be characterised as 'torture'. Further, I note that the definition of 'cruel or inhuman treatment or punishment' in s.5(1) requires that pain or suffering be 'intentionally inflicted' on a person and that the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation. I consider it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation. I do not consider this to be the case if the Egyptian state imposes a punishment of imprisonment on the applicant for his failure to undertake mandatory military service. 57. I am therefore satisfied there is no real risk the applicant will suffer significant harm if he either undertakes military service or is arrested, fined and imprisoned if he follows through with his intention to evade military service on his return to Egypt. 58. As discussed above, based on relevant country information I do not accept there is such a high level of generalised violence, lack of law and order or human rights violations such that there is a real risk the applicant will suffer significant harm if he returns to Egypt now or in the reasonably foreseeable future. (Errors in original) 8 With respect to this aspect of the appellant's claims, the Authority ultimately concluded that (at [60]): There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the [appellant] will suffer significant harm. The [appellant] does not meet s.36(2)(aa). 9 Accordingly, the Authority affirmed the decision of the delegate not to grant the appellant's visa application.

THE PRIMARY JUDGMENT 10 The primary judge began his reasons for judgment by setting out a detailed summary of the Authority's decision (see AGJ19 at [5]-[24]). His Honour then recorded the grounds of review before him (see AGJ19 at [26]), which are in substantially identical terms to the grounds of this appeal (see at [14]). After accepting the appellant's counsel's tender of [5.26] of the DFAT report, the primary judge recorded the appellant's contentions before him as follows (see AGJ19 at [27]): … in the circumstance of the present case where reference appears in the Authority's reasons only to the first sentence of paragraph 526 [sic - 5.26] of the country information report, that the Authority had failed to read the balance, or take into account the balance, of that paragraph which, in particular, refers to visits by relatives and lawyers being regularly banned or severely limited in time, food rations being severely limited and of poor quality and authorities denying prisoners basic comforts and hygiene, and that while it is technically possible for prisoners to complain internally about mistreatment, doing so is highly likely to result in a punishment for the prisoner. 11 With respect to [39] of the Authority's decision (see at [5(g)] above) where it apparently referred to [5.26] of the DFAT report, the appellant's counsel contended "that the second clause of the sentence referring to country information about prisons which referred to the need for some additional factor supported the contention that the Authority had not taken into account and had a real and meaningful engagement with the country information and, in particular, the balance of paragraph 526 [sic - 5.26] of the said report". She also contended that the information above was material at least in respect of the complementary criteria under s 36(2)(aa) of the Act relating to the definition of "cruel or inhumane treatment or punishment", or "degrading treatment or punishment", as contained in s 5(1) of the Act (see AGJ19 at [28]-[29]). 12 The primary judge rejected all of the appellant's counsel's contentions in the following terms (see AGJ19 at [30]-[34]): 30. The Authority's reasons refer to the relevant DFAT country information report in relation to a number of different matters throughout the reasons of the Authority. It is not necessary for the Authority to refer to every piece of evidence before it. Given the numerous references to the relevant DFAT country information report marked exhibit B, that alone is a sufficient basis upon which the Court would not be prepared to infer that the Authority did not have regard to the whole of the report. However, the Authority's reasons go much further. The Authority's reasons expressly refer to the relevant paragraph that the applicant complains that part of the content of which has allegedly been overlooked and that there has been no real and genuine engagement with the same. Given the express reference to the present conditions in respect of the detention of the applicant and imprisonment for failing to undergo mandatory military service, there is no proper basis to infer that the Authority did not have regard to and take into account the whole of paragraph 526 [sic - 5.26] of the DFAT country information report. 31. It is not apparent that there was any issue expressly raised referable to visits, food rations, basic comforts, hygiene and internal complaints so as to require an express reference to the same in the Authority's reasons. The Court does not regard the absence of express reference to support the conclusion that the Authority did not take same into account. The Authority's reasons under the Refugees Convention show a real and meaningful engagement with the issue of the significance of the imprisonment to which the applicant would be exposed. The Authority's reasons under complementary protection reflect the same real and genuine engagement with the applicant's submissions in relation to the consequence of his failure to undertake military service if that occurs and if he is located prior to turning to the age of 30. 32. The Authority's reasons expressly refer to the earlier reasoning of the Authority, picking up the references to the DFAT country information and refer to the requirements of s 5(1) of the Act. Further, the Court accepts the submissions of the first respondent that a reference to "given the country information" was not of itself confined to the DFAT report and nor was the reference to "the available information" in paragraph 39. 33. In these circumstances, the Court does not accept the submission that the reference to some additional factor supports any basis to conclude that the Authority failed to have regard to or a real and meaningful engagement with the country information in paragraph 526 [sic - 5.26] of the DFAT country information report. 34. Accordingly, there is no proper basis to find that the Authority failed to take into account a relevant consideration or to find that there is any other failure to have a real and genuine engagement with the country information in respect of complementary protection concerning the imprisonment for up to one year that the applicant may face for not undertaking military service. There is no basis to find that the balance of paragraph 526 [sic - 5.26] that was not set out in the Authority's reasons was not taken into consideration by the Authority. 13 His Honour therefore concluded that there was no jurisdictional error as alleged in ground of review 1 and dismissed the appellant's amended application for judicial review (at [35]).

THE GROUND OF APPEAL 14 While the appellant's sole ground of appeal set out below is stated in quite broad terms, it is supported by particulars (specifically, particulars (d) to (f)) that identify his central concern in this appeal: 1. The primary judge erred in failing to find that the Second Respondent (the IAA) failed to consider relevant evidence that was before it. Particulars a. The IAA referred to country information at [34] of its decision, which was to the effect that if the Appellant followed through on his intention to refuse to undertake his military service in Egypt, he would be liable to pay a fine of up to EGP1000 (approximately AUD 170) and/or face a minimum of one year's imprisonment. b. The IAA, at [38]-[39] and [56] of its decision, found that being detained in a prison with conditions that fall below international standards did not constitute serious or significant harm to the Appellant. c. In making the findings referred to above at (b), the IAA did not demonstrate any active, intellectual consideration of relevant parts of the "DFAT Country Information Report Egypt" dated 19 May 2017 (the 2017 DFAT Country Report), which was before it at the time it made its decision. d. Paragraph 5.26 of the 2017 DFAT Country Report states that among other things, "Visits by relatives and lawyers are regularly (and arbitrarily) banned, or are severely limited in time (often between five and ten minutes only). Food rations are severely limited and of poor quality, and authorities frequently deny prisoners basic comfort and hygiene items. While it is technically possible for prisoners to complain internally about mistreatment, doing so is likely to result in punishment for the prisoner.'' e. The primary judge erred in finding that the matters referred to above in (d) had been considered by the IAA in its decision. f. The matters referred to in (d) above were matters that were directly relevant to the assessment of whether the Applicant met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 and were germane to the claims advanced by the Appellant. These matters were not considered by the IAA in making its decision. Consequently, the IAA's decision was affected by jurisdictional error. (Emphasis in original)

CONTENTIONS ON THE APPEAL 15 On appeal to this Court, the appellant's contentions were in substantially identical terms to those that were before the primary judge. Those contentions were summed up in the penultimate paragraph of his written submissions in the following terms: In light of the findings that were made by the [Authority] and given the absence of any express reference to the matters referred to in the latter part of paragraph 5.26, these matters could not be said to have been considered by the [Authority], or otherwise subsumed elsewhere in its decision. On this basis, it is submitted that the primary judge erred in failing to find that the [Authority] had failed to give active, intellectual consideration to the latter half of paragraph 5.26 of the 2017 DFAT Report. Had the contents of paragraph 5.26 of the 2017 DFAT Report been considered in its entirety, the outcome of the IAA's decision may have been different such that the [Authority's] error was material to its decision to affirm the refusal of the Applicant's visa: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [48]. 16 For his part, the Minister contended that the Authority had expressly referred to the DFAT report on numerous occasions throughout its decision and, in particular, had referred to the contentious paragraph, namely [5.26], at [39]. Accordingly, the Minister contended that the Authority did have regard to the contents of that report and, it may be inferred, to the whole of the contents of [5.26]. Further, he contended that the Authority effectively repeated that exercise when it considered the appellant's complementary protection claims.

CONSIDERATION 17 There is no dispute in this matter that the Authority was required to apply an "active intellectual process" to its consideration of the claims made by the appellant (see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) at [46]). That obligation applies to a claim "raised by the evidence and the contentions before it which if resolved in one way would or could be dispositive of the review"; or to a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" (see Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [34]). However, it does not mean that the Authority is required to consider every piece of evidence or every contention advanced in support of a claim (see Minister for Home Affairs v Baudromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]-[49]). Furthermore, the appellant bears the onus to demonstrate that the Authority did not comply with this obligation and the Court will not lightly make such a finding (see Carrascalao at [48]). 18 In this matter, the material claim concerned the prison conditions to which the appellant would be exposed on his return to Egypt and the nature of the harm that he may suffer as a result of being imprisoned there. In considering that claim, the Authority specifically referred to the country information before it in the form of the DFAT report (see at [5] above) and, in particular, to [5.26] of that report where those conditions were described as "poor and do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence". However, with respect to the appellant's primary protection claims, the Authority did not consider that information supported "a finding that there is a real risk the applicant will suffer serious or significant harm just as a result of his presence in a prison as an inmate without some additional factor" (at [39]; see at [5(g)] above). Further, the Authority implicitly adopted the description of the prison conditions in Egypt above in disposing of the appellant's complementary protection claims in finding (at [56]) that it was not satisfied they: … would cause him severe pain or suffering, or pain or suffering that could reasonably be regarded as 'cruel or inhuman treatment or punishment' which is inconsistent with Article 7 of the [International Covenant on Civil and Political Rights]; or cause him extreme humiliation that constitutes 'degrading treatment or punishment' which is inconsistent with Article 7 of the Covenant; or cause him 'severe pain or suffering' that could be characterised as 'torture'. 19 Any attack on the above findings would "'slide' into an impermissible merits review" of the Authority's decision (see Carrascalao at [32]). In an apparent attempt to avoid this outcome, the appellant instead complained that the Authority did not refer to, and therefore, so he contended, did not consider, the latter part of [5.26] where further details were given of the prison conditions in Egypt as follows: … Egypt does not generally allow human rights bodies to visit prisons, and the NCHR must obtain approval from the Prosecutor-General to conduct prison visits. Visits by relatives and lawyers are regularly (and arbitrarily) banned, or are severely limited in time (often between five and ten minutes only). Food rations are severely limited and of poor quality, and authorities frequently deny prisoners basic comfort and hygiene items. While it is technically possible for prisoners to complain internally about mistreatment, doing so is likely to result in punishment for the prisoner. 20 Additionally, he contended that the banning of visits, the limitation of food rations and the denial of basic comfort and hygiene items could have comprised the "additional factor" the Authority mentioned in its conclusion with respect to the earlier part of [5.26] above. 21 There is, in my view, a number of reasons why these contentions cannot be accepted. They all revolve around the nature and content of the information in the later part of [5.26] above and each provides a sufficient reason in itself why the Authority did not commit any jurisdictional error. First, the statement in the Authority's reasons at [39] (see at [18] above) comprises a reasonably accurate summary of the information at [19] above thus permitting the inference that the Authority did in fact consider the latter information in coming to its conclusions about this aspect of the appellant's claims. It is certainly not sufficient to discharge the appellant's onus to establish the contrary. 22 Secondly, and relatedly, the information at [19] above is not of the kind that it would have been dispositive of the Authority's review. That is to say, given that the critical issue concerned the harm the appellant may suffer when imprisoned in Egypt, that passage did not relevantly take the information about the prison conditions in Egypt any further than the earlier description of those conditions set out at [39] of the Authority's reasons (see at [18] above). 23 Thirdly, and again relatedly, the information at [19] above was merely another piece of evidence in support of the appellant's claim about the prison conditions in Egypt that the Authority was not required to specifically mention in its reasons. 24 Fourthly, and in the alternative to the above, even assuming that the information in [19] above was not considered by the Authority, for the reasons set out above there is not a realistic possibility that its decision could have been different if it had taken that information into account (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [48]). 25 Finally, since the essence of most, if not all, of these reasons is incorporated in the primary judge's reasoning at [30]-[34] of his judgment (see at [12] above), it necessarily follows that the appellant has failed to establish appellable error in his Honour's judgment.

CONCLUSION 26 For these reasons, the appellant's appeal must be dismissed with costs. The orders will be:

1. The notice of appeal filed on 16 September 2019 is dismissed.
2. The appellant is to pay the first respondent's costs of the appeal to be taxed if not agreed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.