BGH16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-11-30|Before: Bromwich J

The appeal be dismissed.
The appellant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This appeal, which is from orders made by a judge of the Federal Circuit Court of Australia, concerns a single judicial review ground that failed before the primary judge. That ground of review is mirrored in the sole ground of appeal in this Court. It raises the issue of whether the refusal by the Administrative Appeals Tribunal (AAT) to make inquiries as to the authenticity of a document purporting to be an arrest warrant addressed to the appellant constituted a jurisdictional error in the particular circumstances of this case. 2 In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429, the High Court said the following on the topic of when a failure to make inquiries by an administrative decision-maker may constitute a jurisdictional error (at [25]-[26], footnotes and case-specific factual details omitted): Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. … The second reason is that the response made by SZIAI's solicitors to the tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. … For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error. 3 For the reasons that follow, the primary judge did not err in her Honour's application of the principles identified in SZIAI, or in finding that there was no jurisdictional error on the part of the AAT.

Background 4 In April 2008, the appellant, who is a 42-year-old citizen of Egypt, arrived in Australia on a student visa. On 23 November 2010, he lodged an application for a protection visa (PVA-1) based on claims of a fear of persecution on the Refugees Convention ground of religious belief for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth). As it transpired, those claims were entirely false. That visa application was refused by a delegate of the Minister for Immigration and Border Protection, now the Minister for Home Affairs. That decision was affirmed by the Refugee Review Tribunal (RRT, now a Division of the AAT) on 5 July 2011. 5 The appellant also applied for a partner visa on 5 December 2011, during which he maintained his false religious claims. That visa application was refused by a delegate of the Minister on 1 March 2013. The Migration Review Tribunal (MRT, also now a Division of the AAT) affirmed the refusal on 12 November 2013. 6 On 6 January 2014, the appellant lodged a further application for a protection visa based on complementary protection grounds, raising an entirely different basis for fearing harm based on his expression of political opinion (PVA-2). A second protection visa application based on complementary protection was valid in the appellant's circumstances following SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235; see also Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366. 7 A delegate of the Minister refused the grant of a protection visa on complementary protection grounds. That decision was affirmed by the AAT on 27 April 2016. The AAT only considered the appellant's claims against the complementary protection criteria under s 36(2)(aa) of the Migration Act, as he previously had protection claims assessed and rejected under s 36(2)(a). 8 The appellant sought judicial review of the AAT's decision in the Federal Circuit Court. That application was dismissed on 30 April 2018.

Before the AAT 9 The AAT summarised the appellant's grounds for first seeking a protection visa in PVA-1 in 2010 as follows (at [14], additional comments italicised): In PVA 1, the applicant swore a statutory declaration on 19 November 2010, gave oral evidence at a Department interview [D1] on 4 February 2011 and also gave oral evidence to T1 [RRT] on 6 June 2011. He claimed that he feared that he will be persecuted if he returns to Egypt because he has converted to the Korani [Qurani] faith from the Sunni Muslim religion, his family in Egypt would not hesitate to seriously harm him or kill him for that reason, he may be attacked and seriously harmed by Muslim community members especially the members of the hard line Islamic [Muslim] Brotherhood who seek to establish a Sunni Muslim state in Egypt, and he cannot practice the Qurani faith openly. He would have to practice the faith in a covert manner as he had done in the past. The applicant was refused a protection visa by T1. The [RRT] did not accept that the applicant was a Quranist who would suffer harm amounting to persecution for his Quranist faith on his return to Egypt. It may be seen that central to PVA-1 was a claimed conversion to the Qurani faith from the Sunni Muslim religion, which may conveniently be described as the Qurani claim. 10 The AAT summarised the appellant's grounds for seeking a protection visa based upon complementary protection as follows: (1) The claims made in his second protection visa application (PVA-2) were (at [16], footnotes omitted): • Egypt is not safe for humans. There are no laws and there are lots of bombings and killings every day • The Egyptian authorities hold information about the applicant that he will be arrested upon his return to Egypt • The applicant cannot leave his wife at home in Sydney • He is Qurani and the government arrests these people that have a different religion Thus in PVA-2, the appellant maintained the Qurani claim. (2) The claims made in a letter dated 30 May 2014 in support of PVA-2 were (at [17]): • at all times prior to his last departure from Egypt he did not express political opinions against the regime or officials of Egypt • here in Australia he started to worry about his future and started expressing his political opinion in the last 12 months or so [May 13]. He initially expressed his opinion at social meetings such as dinner but he made other Egyptians angry • expressing his opinion has resulted in having enemies as his political views are not welcomed by some Egyptians and this made him scared that they have reported him or will report him to the Egyptian government authorities. This is why he lodged a PVA • at the time of lodging his PVA he decided not to hire a lawyer because he had been previously unsuccessful at the MRT due to the negligence of his migration agent • early January 2014 his wife was very unwell and hence his application was incomplete • Egypt remains locked in a protracted process of political transition after the resignation of Mubarak in February 2011. The current situation is unstable, unsafe and very risky, he cannot go back there • political uncertainty and anxiety over the future of Egypt has generated ongoing political protests, labour strikes, deep distrust between Islamists and secular parties and there is more Christian tension • he has expressed and will express again his view that the military in Egypt should not have a lot of influence in the political life of Egypt. He is totally against the forming of the government • [h]e has also posted his political opinions against the regime of Egypt online and through Facebook. He has received threats. He is in no doubt that he will be persecuted if forced to return to Egypt • [t]he current Egyptian government does not accept the validity of any political party other than the army itself. He is against the Egyptian government • observing all the inhumane and unjust practices by the government of Egypt and its failure to protect its citizens against arbitrary detention and killings, he could not stand the situation anymore and he decided to fight back against the Egyptian government • there is a heightened threat of terrorist incidents which will also endanger his life and his Australian partner's life. It is not safe to return to Egypt The letter dated 30 May 2014 that was in support of PVA-2 did not refer to the Qurani claim, but also did not abandon that claim. 11 The AAT noted that after a 3 June 2014 interview with the second delegate, the appellant submitted a translation of an undated arrest warrant directed to him. That purported arrest warrant stated that the appellant had been "charged with writing [sic] and incitement against the institutions of the Egyptian State through the social media network". 12 On 18 June 2014, the delegate refused the grant of a protection visa. On 11 July 2014, the appellant applied for merits review by the AAT. In October 2015, he made a statement, which the AAT summarised as follows (at [24], verbatim, with additional comments in parentheses): • the applicant had been represented by Sam Issa, in his previous PVA • he told Mr Issa that he was a Muslim and Mr Issa told him that he could apply for protection based on being a committed Quarani • the applicant will not continue to practice as a committed Quarani if he were to return to Egypt • the applicant signed the documents prepared by Mr Issa, purporting that he is a Quaranist, the documents were translated in Arabic by Mr Issa as the applicant was unable to read English for himself • following Mr Issa's advice the applicant researched Quaranis on the Internet which he took to [the] departmental interview • the applicant, at the instigation of Mr Issa, researched Quarani faith on the Internet in preparation for T1 hearing and he attended the hearing with Mr Issa • after the hearing Mr Issa contacted him and told him he needed to get more evidence about his activities as a Quarani and asked him to find a friend who followed the Koran • the applicant spoke to a friend who suggested a 3rd person who could sign a statement to assist him. The applicant handed the statement to Mr Issa • Mr Issa provided the applicant with the name of Dr Mansour and told him he had a website. The applicant contacted him and they subsequently corresponded by email and the applicant provided the emails to Mr Issa. Dr Mansour forwarded him emails of Bassam Sabry who contacted the applicant. • The applicant submitted an application for a partner visa that was unsuccessful • the applicant lodged a complaint to MARA [The Office of the Migration Agents Registration Authority] • the applicant asserts that he explained to Mr Issa his problems in Egypt but the whole concept of the Quarani faith argument was created and put forward by Mr Issa and not himself 13 The above claims were supported by printouts from the internet and Facebook, a translation of the Facebook posts, his identity document, and a further copy of the undated arrest warrant. 14 The appellant's new migration advisor submitted on 26 November 2015 that: • the applicant's expression of political opinion against the Egyptian regime on social media has resulted in serious danger against his life • the applicant is not relying on any other ground that [sic] the political ground and he is upset/unhappy that his ex-migration agent made claims on religious grounds in the past • the applicant's psychological state of mind is unstable due to his fear of being returned to Egypt 15 The AAT set out the evidence that the appellant gave at the hearing, including as to the matters it raised and his responses, in particular as to: (1) the admittedly false Qurani claim; (2) country information that suggested that a person making Facebook posts of the kind that the appellant relied upon was not at risk of harm; and (3) the prevalence of document fraud in Egypt. 16 The AAT also recorded that it put information to the appellant, pursuant to s 424AA of the Migration Act, in relation to PVA-1, namely that he had claimed to be a Quranist, to have proselytised in Egypt and to fear harm on account of his religion - but that he now claimed to the AAT not to have ever been a Quranist. 17 The AAT's reasons for affirming the delegate's decision included the following: (1) The appellant's credibility and reliability was "of central importance" to the AAT's determination of the review. The AAT "[did] not accept that the applicant is a witness of truth", referring to the Qurani claims in some detail, including him obtaining false information from third parties to support his case, lying on oath to the RRT and making false statutory declarations in order to support his claims. (2) The AAT had "serious concerns about the degree of confidence [it could] have in the reliability of his evidence" and considered that the appellant would "do whatever he perceives is required to obtain the visa sought". (3) On the basis of the appellant's own evidence, the AAT was satisfied that he had no adverse religious or political profile in Egypt prior to departing for Australia in 2008. (4) In relation to the appellant's claims to have expressed views against the Egyptian government, the AAT found it implausible that, if he held such views, he would have waited until five weeks before the delegate's interview to begin posting them on his Facebook page, and did not accept that he was an anti-government activist on Facebook. It rejected his claim to have posted political comments online "in his 'own name'", as the Facebook page relied upon by the appellant did not identify his surname. The AAT also did not accept that the appellant posted anti-government cartoons or views on Facebook in the public domain. (5) The AAT further considered, on the basis of country information, that even if the appellant's Facebook page were perceived by Egyptian authorities to belong to him, it was implausible that he would be harmed by the authorities for his posting on Facebook. The AAT also did not accept that the appellant had posted anti-government views on the Facebook page of a friend, or that another person had threatened him on Facebook. (6) The AAT did not accept that the appellant held views adverse to the Egyptian government and military, or that he was perceived to have an adverse profile as an anti-government activist. It did not accept that he had expressed such views socially in Australia, or that he would do so on return to Egypt. (7) In relation to the arrest warrant provided by the appellant, the AAT stated the following, reproduced verbatim because this aspect is the centrepiece of his case on appeal (at [82]-[84], without footnotes): I have considered the arrest warrants that state that the applicant is charged with "writing and incitement against the institutions of the Egyptian state through social media". I discussed with the applicant information about fraudulent documents in Egypt [DFAT] that state that "although falsification of documents is prohibited by law in Egypt, DFAT advises that it is possible to obtain false copies of a range of official documents". I note DFAT advises that it is possible to also obtain counterfeit and/or bogus documents, as well as genuine documents that have been obtained by way of corruption. I have considered the applicant's request that the [AAT] and the Australian government verify the arrest warrants. DFAT has advised in 2011 that in relation to documents signed by the Office of the Public Prosecution the "Ministry of Justice would be required to see the name of the client and therefore post is unable to verify the document". Due to my concerns about the applicant's credibility, the need to identify the client to the authorities and the potential delays in waiting for a response and in light of DFAT advice that it is possible to obtain false copies of a range of official documents and genuine documents can be obtained by way of corruption, I do not propose to attempt to verify those documents. In light of the possibility of obtaining false/bogus documents in Egypt as discussed above, and the applicant previously obtaining bogus documents for PVA1, I place no weight on the arrest warrants. I therefore am satisfied that the applicant does not face a real chance of harm due to being charged with the offence of 'writing and incitement against the institutions of the Egyptian state through social media'. I am also not satisfied that the Egyptian authorities hold information about the applicant that he will be arrested upon his return to Egypt. The federal Department of Foreign Affairs and Trade is referred to by its well-known acronym "DFAT". (8) The AAT further found that because it did not accept that the appellant had an adverse political opinion in Egypt and there was no evidence suggesting his partner had such an opinion, the chance that he or his partner would suffer significant harm in Egypt was remote. (9) The AAT concluded that, because it found that the appellant was not a witness of truth and had no adverse political profile in Egypt, there was no real risk that he would suffer significant harm on return to Egypt.

Before the primary judge 18 The sole ground of judicial review before the primary judge, as reproduced by her Honour, was as follows (at [6] of her Honour's reasons): The [AAT] fell into jurisdictional error in its failure to make an obvious enquiry about a critical fact the existence of which could have been easily ascertained. 19 Thus, the appellant asserted, and continues to assert in this appeal by way of alleged error on the part of the primary judge, that the AAT had fallen into jurisdictional error by failing to "verify" the authenticity of the arrest warrant relied on by him in support of his claim of a fear of persecution if he were to return to Egypt. Reliance was placed on the following part of [25] of SZIAI: … It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. … 20 As will be apparent, there are hazards in relying on only a part of what the High Court said in SZIAI. The rest of [25], and also [26], are important in understanding the full scope of the principle identified in that case. 21 The primary judge considered the features of the arrest warrant and concluded that the AAT was correct to conclude that the arrest warrant was undated and stated the appellant's full name, relevantly including his surname. Her Honour noted that, as the AAT observed, the appellant's surname was not used or referred to on his Facebook page, or on any of the Facebook posts that he relied upon. Her Honour then considered [25] and [26] of SZIAI, noting in particular that the facts in that case had denied the operation of the principle that had been articulated. She also referred to authority relied upon by the appellant by which it was suggested that the scope of the application of the principle identified in SZIAI remained unsettled. However, the principle that found favour with her Honour was that articulated in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 at [33]. Immediately after quoting SZIAI, the Full Court in Kaur noted that the jurisdictional obligation to make an inquiry as part of the performance of the duty to conduct a review of the primary decision would only arise in "rare or exceptional circumstances", and that "the mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error".

Obvious inquiry 22 The primary judge noted that the appellant's Facebook page and the threats and posts he relied upon did not refer to him by his full name, including surname, and so on their face did not disclose his identity. In those circumstances, her Honour did not consider it open to the AAT, acting reasonably, to make an inquiry that required disclosure of the appellant's identity to the Egyptian Ministry of Justice. Her Honour further concluded that the evidence before the AAT was that the inquiry could not even be satisfied, as DFAT was unable to do so (see [17(7)] above). In those circumstances, the primary judge was not satisfied that there was an "obvious inquiry" that the AAT could have made to verify the authenticity of the arrest warrant. Her Honour also observed that the appellant was not able to identify any other inquiry that could have been undertaken.

Easily ascertainable facts 23 The primary judge further concluded that the fact as to whether or not the arrest warrant was authentic was not "easily ascertainable", not only in light of DFAT's advice as to its inability to do so, but also in light of the AAT's significant concerns about the appellant's credibility and the prevalence of document fraud in Egypt. In these circumstances, her Honour found that the present case was not one of the "rare or exceptional" cases where the AAT had an obligation to make inquiries, and the appellant's ground of appeal therefore could not succeed.

Critical fact 24 Finally, the primary judge observed that even though the findings, summarised above, rendered moot the issue of whether or not the authenticity of the arrest warrant was a critical fact, her Honour "for completeness" turned to consider whether the authenticity of the arrest warrant was a "critical fact" of the kind identified in SZIAI. Her Honour concluded that authenticity of the arrest warrant was not a critical fact because, even if that were established, the country information relied on by the AAT did not show that there was a real chance or real risk of the appellant suffering serious or significant harm on return to Egypt. On the AAT's findings, even if the appellant were arrested and charged upon return to Egypt, it was not established that this would of itself result in significant harm being inflicted on him such that the AAT would have found that the complementary protection criteria in s 36(2)(aa) would have been met.

Notice of appeal 25 The sole ground of appeal replicates the ground of review before the primary judge, but is cast in terms of an error on her Honour's part.

The appellant's submissions 26 The appellant submits that the primary judge erred in failing to find that there was an obvious inquiry because: (1) the appellant's failure to identify an inquiry that could be conducted was not fatal because the focus in SZIAI was on whether it was (or presumably should have been) obvious to the AAT, rather than to the merits review applicant before it. Jurisdictional error was possible even if a merits review applicant did not comprehend the inquiry options available to the AAT, and in this case, there had been a refusal to conduct such an inquiry by the use of the words, "I do not propose to verify those documents"; (2) while there may be cases in which the inability of a merits review applicant to identify any inquiry that could be made would mean that there were no obvious inquiries, this was not such a case because the inquiry options were identified but not pursued; (3) the reluctance of the AAT to disclose the appellant's name was of no moment because he had specifically asked that the inquiry be conducted without any indication that he did not want his name disclosed, and, in any event, that did not make the inquiry less obvious. This argument cannot be accepted as it entails DFAT being, in effect, required to disclose the appellant's identity to those he said would harm him, which itself could lead to a risk of harm; and (4) contrary to the primary judge's finding that it was not reasonable for the AAT to make the inquiry (or, even if reasonable, would not have been fruitful), had the inquiry been made and had it established that the arrest warrant was genuine, the AAT would have been obliged to consider the possibility (despite the possibility of it having been obtained as a result of corruption) that it was authentic, which then would have had a material bearing on his claim to be at risk of harm. 27 As to the issue of the fact of the arrest warrant being easily ascertained, the appellant submits that if the inquiry was obvious, then that denoted an ease with which the fact could be ascertained. It is not altogether clear what this submission meant. However, it appears to conflate two separate features: first, whether an inquiry is obvious; and, secondly whether the fact to which such an inquiry would be directed could, by that means, be easily ascertained. The appellant did not grapple with the distinction that, in order for an inquiry that might be made to meet the description of being obvious, any possible inquiries have to be reasonably capable of being both fruitful (as to the facts in issue that may be ascertained from the inquiry), and not futile (as to whether those facts in issue are critical to the outcome). 28 As to the fact in issue being critical, the appellant submitted that the very fact of an authentic arrest warrant being in existence and addressed to a person who had published anti-government material suggested that there was a real risk of significant harm. On this argument, while the primary judge said it was open to the AAT not to accept as plausible that the Egyptian authorities would harm the appellant, on his case that was the very reason why he was wanted, which in turn gave rise to a real risk of significant harm. 29 The central problem with the appellant's case as summarised above is that it does not sufficiently engage with either the principles in SZIAI or with the application of those principles by the primary judge. 30 While the statements of principle in SZIAI are not to be read in the manner of a statute, they nonetheless suggest that certain features are ordinarily going to be indispensable before failure by the AAT to make an inquiry might constitute a jurisdictional error by way of failure, in the circumstances, to perform the review that it was duty-bound to conduct. The review task will usually only be capable of being regarded as falling short in that jurisdictional sense if a critical fact can be easily ascertained by an obvious inquiry and that fact be capable of being sufficiently linked to the outcome to make the review task incomplete. There may be some overlap between the concepts of the fact being critical, and being sufficiently linked to the outcome. 31 In SZIAI, the principles outlined were not engaged on a factual level because there was nothing to indicate that the suggested further inquiry could have, using the language deployed by the High Courtat [26], yielded a "useful result", or that any further inquiry would not be futile. In that way, the necessary linkage to the outcome was absent. Thus, even if the hurdles of the obviousness and the ease of the suggested inquiry could be overcome, it would still not be a jurisdictional error. 32 By parity of reasoning, and in relation to the primary judge's reasons and the appellant's submissions: (1) the fact in issue, here the authenticity of the arrest warrant (and not just whether it was genuinely issued by the Egyptian Ministry of Justice), has to be capable of being easily ascertained. However, her Honour correctly concluded that the fact of authenticity could not easily be determined from a combination of: (a) the AAT's reliance on DFAT's advice as to its inability to ascertain from the Egyptian authorities that the arrest warrant was genuine; (b) the AAT's significant concerns about the appellant's credibility; and (c) the AAT's finding as to the prevalence of document fraud in Egypt, meaning that even if the possible inquiry by DFAT could be carried out successfully, an inquiry as to genuineness would not be enough to establish authenticity; and (2) the fact in issue has to be critical to the outcome, and yet, as the primary judge made clear, even if the arrest warrant was shown to be not just genuine, but also authentic, that would not have affected the outcome because of independent findings that meant that the test of significant harm could not be met. The country information relied on by the AAT did not show that there was a real risk of the appellant suffering significant harm on return to Egypt. This rendered the fact sought to be ascertained by the proposed inquiry as something less than critical, because it lacked a sufficient link to the outcome. 33 In those circumstances, this case did not engage the principles in SZIAI, and the primary judge did not err in effectively so finding. 34 The appellant has therefore failed to establish error on the part of the primary judge.

Conclusion 35 The appeal must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Migration Act 1958(Cth)ss 36(2)(a), 36(2)(aa), 424AA

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