DAC16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-05-15|Before: Thawley J

The appeal is 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.

THAWLEY J: 1 This is an appeal from orders of the Federal Circuit Court of Australia made on 30 November 2017, dismissing the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 October 2016. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection (Minister) not to grant the appellant a temporary protection visa.

background 2 The appellant is a citizen of Egypt. He departed Egypt on 5 June 2014 and, after spending some time in Malaysia, Macau and Hong Kong, arrived in Australia on 14 April 2015. The appellant held a transit visa and had an onward ticket to Samoa, but stated he always intended to apply for asylum in Australia. His visa was cancelled in immigration clearance under s 116(1)(a) of the Migration Act 1958 (Cth) (Act). He was refused entry and detained in immigration detention. 3 On 13 September 2015, the appellant lodged an application for a Temporary Protection (subclass 785) visa. On 9 August 2016, the Minister refused to grant the visa.

THE TRIBUNAL 4 The appellant applied for a review of the Minister's decision on 16 August 2016 and attended a hearing before the Tribunal on 13 September 2016. 5 The Tribunal summarised the appellant's case at paragraph [1] of its reasons in the following way: 1. [The applicant] is an Egyptian national, of Arab ethnicity and is a Sunni Muslim. He was born in Cairo. He claims to have disagreed with the removal of Morsi by the Military Council and to have participated in a protest march on 12 July 2013 and to have been beaten and detained and taken to a military prison where he was subjected to torture and beatings. After 5 months he was released. He was approached by men at his local mosque, including a Sheikh Rasoul, who tried to convince him to go to Syria to fight there in jihad. He refused and eventually went to Alexandria and then Matri Matrouh, but he then returned to Cairo. He then departed Egypt for Malaysia. On the way to the airport he called the Sheikh and told him he was leaving to Malaysia. The sheikh became very angry and threatened the applicant with death. 6 The Tribunal then analysed the appellant's claims in detail, dealing with: his participation in a protest on 12 July 2013 and his detention at prison and accounts of being tortured and interrogated: at [13] to [33]; being approached at his local mosque by Sheikh Rasoul and other men who asked him to fight in Syria in jihad and his phone call with the Sheikh who was said to have threatened the appellant with death: at [34] to [52]. 7 Over the course of the hearing, the Tribunal developed significant concerns with the appellant's evidence. It stated at [9]: 9. Over the course of the hearing I developed significant concerns with the evidence of the applicant. His evidence was at times contradictory, and often undetailed and vague. For the reasons below, I developed concerns with the applicant's credibility which lead me to doubt his general truthfulness and credibility as a witness. In particular his changing and inconsistent evidence about the claimed recruitment, his contact with the recruiters despite his claims to fear them, and his evidence about the protest lead me to have doubts about all of his claims and his claim to fear harm on return to Egypt. 8 The Tribunal set out the reasons for its concerns as to the appellant's credibility. The Tribunal rejected the core claims which had been made, finding that the appellant had been untruthful: at [52]. 9 The Tribunal was "willing to accept" that the appellant had the political views he expressed at the hearing, but did not accept that he expressed those views as he claimed, whether in protests including the protest of 12 July 2013 or in expressing his views on the Sisi regime to the men in the mosque. The Tribunal accepted "that the applicant may have sympathised with the Muslim Brotherhood and the Morsi government, but he was at pains to indicate that he was not a member or supporter, but a sympathiser who was outside looking at what was happening to the Brotherhood": at [53]. 10 At [54], the Tribunal stated: I note also that the applicant did not claim to have been harmed or threatened or to have had any interaction with the authorities prior to his claimed attendance at the 12 July 2013 protest march and detention at Al-Marg, and not to have had any interaction, harm or threat from the authorities after his release. Given that I have found above that he did not attend these protests, was not detained, I find that he has had no interaction with the authorities in the past, and I find that he did not modify or alter his behaviour and not express his opinion because of his detention, which I find did not happen. Given I have rejected his claim to have been recruited by the men, I also do not accept that he would be seen as pro-jihad or anti-government by the authorities for any reason connected to this claim. 11 The Tribunal found that the appellant faced no real chance of serious harm or real risk of significant harm on return to Egypt on the basis of his actual or imputed political opinion: at [56]. 12 The Tribunal also found that the appellant did not face a real chance of serious harm or a real risk of significant harm as a returning failed asylum seeker. This had not been expressly claimed, but arose on the material: at [57] to [60]. 13 The Tribunal affirmed the decision of the Minister: at [66].

THE FEDERAL CIRCUIT COURT 14 On 18 October 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision. The appellant's grounds were as follows: 1. The decision of the Tribunal: (a) is affected by an error of law; and (b) denied the applicant procedural fairness. 2. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision. 15 Relevantly to ground two of his judicial review application, the Federal Circuit Court stated, at [4] and [5] of its reasons for decision: 4. The Applicant further submitted to the Court that he required a lawyer and, essentially, that he could not proceed without one. The application before the Court indicates that the Applicant made an application for assistance through Victorian Legal Aid prior to the filing of the application on 18 October 2016. That was some 13 months ago now. The Court indicated to the Applicant that he had had ample time within which to secure legal assistance and that the matter was proceeding. 5. On 7 December 2016, the proceedings were listed for final hearing on 19 April 2017. That date was then administratively altered such that the Applicant obtained a further number of months in which to seek out and obtain legal assistance. The orders of 7 December 2016 required the Applicant to file and serve written submissions before the final hearing. He did not do so. He nevertheless was given an opportunity to make oral submissions at the commencement of the hearing and was assisted by an interpreter proficient in the Arabic and English languages. 16 The Federal Circuit Court set out the claims for protection which the appellant had made (emphasis in original): a) the Applicant went to the same mosque as some other men who asked him to fight in Syria; b) the men told him that, if he did not join the jihad, he would be "KAFER (not Muslim any more) who supports non-believer and accepts the dictators governing"; c) the men would have the right to kill him if he were KAFER; d) on the night he left Egypt, he rang one of the men (later identified as Sheikh Abd Et-Rasoul (the Sheikh) to tell him he was leaving the country. He also told the Sheikh to forget about him. The Sheikh "started to scream on the phone that I am KAFER now and/betray the message and I am coward"; e) the Sheikh told the Applicant that he would pay "a big price and that price would be my blood and life". The men would find the Applicant and kill him without warning; f) the Applicant did not seek protection from police because it might lead to the police finding the Applicant's family are Islamic Brotherhood sympathisers and his brothers might lose their jobs if exposed; g) the Applicant was arrested by military police at a protest on 12 July 2013 at Rabea-ah Square. He was taken to a prison in Almarj and subjected to abuse (including being sexually assaulted and electrified); h) the Applicant was released during the Alqeyamah festival on 9 January 2014. He had some injuries; i) the Applicant feared being investigated by the State Security Department if he reported his concerns to the police. He stated "this security force is the iron wall to protect the bloody regime in Egypt, which is distinguished by its brutality and controls all aspects of life in there."; j) he had suffered depression after his time in jail; k) he feared harm from the men from the mosque; and l) if arrested, he would be imputed with pro-Muslim Brotherhood beliefs and he did not deny he sympathised with members of the Muslim/Islamic Brotherhood. 17 It was also recorded at [9] of its reasons that the appellant claimed harm due to his political opinion being: a) opposed to fighting in Syria; b) opposed to extremist groups; c) anti-government; and d) imputed with pro-Muslim Brotherhood views. 18 The Federal Circuit Court concluded at [21] that the Tribunal "dealt with each and every [one] of the Applicant's claims with considerable care and in some detail"; it correctly interpreted and applied the relevant provisions of the Migration Act 1958 (Cth); its findings were open on the evidence before it and there was nothing illogical or unreasonable about those findings. 19 The Federal Circuit Court concluded at [22] to [25] (footnotes omitted): 22. There is no particularisation of the grounds of application. Neither of the grounds can succeed. There is nothing in the Tribunal's reasons that suggests the Tribunal made an error of law in considering the Applicant's claims and making its decision. Further, there is nothing to suggest the Tribunal failed to comply with its procedural fairness obligations and nor could the Applicant point to anything when asked specifically on the hearing of the application. 23. Part 7, Division 4 of the Act is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". On the material and evidence before the Court, the Tribunal complied with the obligations statutorily imposed upon it. It invited the Applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues arising in relation to the Tribunal's review of the Delegate's decision. The Tribunal brought the relevant issues that were before it to the attention of the Applicant so that he had an opportunity to respond. 24. There is no suggestion, as submitted by Counsel for the First Respondent, that the Tribunal failed to properly disclose information within ss 424AA and 424A of the Act. In the course of reaching its decision, the Tribunal relied on information before it as provided by the Applicant and independent country information not specifically relating to the Applicant. Both of those types of information fall within the exceptions specified in s 424A(3) and therefore are not subject to the particular requirements of s 424A(1). 25. The Applicant was not denied procedural fairness.

THE APPEAL 20 The notice of appeal filed by the appellant on 21 December 2017 contains three grounds of appeal (emphasis and errors in original): 1. Her honour did not consider the state of the of the Applicant's request to legal advice and/ or representation through the hospices of Victoria Legal Aid. Particulars a. Albeit not a ground of application in itself, at the time of hearing and in the initiating migration application, at paragraph 5 of Her Honour's judgement, the Applicant stated that he 'required a lawyer' and 'could not proceed without one' and, was waiting for a decision from Victoria Legal Aid for an Application for Legal Assistance respectively. b. Her Honour did not seek to ascertain the outcome of the Applicant's apparent Application for Assistance through Victoria Legal Aid. 2. Her Honour has erred in procedural oversight given the apparent omission of the First and Second Respondent's to file and service a Notice of Appearance. Particulars a. The First and Second Respondent's legal representative has not filed and served a Notice of Address for Service in accordance with the rules 5.02 and 11.07 of the Federal Circuit Court Rules 2011. b. The First and Second Respondent's legal representative has therefore infringed rule 11.06 of the Federal Circuit Court rules being 'A person who is required to file a notice of address for service in a proceeding must do so before the return date fixed in the originating application and before filing any other document in the proceeding'. 3. The First Respondent's delegate did not conduct an International Treaties Obligations Assessment as required and part of the Protection Visa (Subclass 866) Application assessment and therefore the Applicant was denied the required procedural fairness. 21 The notice of appeal was signed by a solicitor then acting for the appellant. A notice of ceasing to act signed by that solicitor was filed on 13 April 2018.

Adjournment application 22 At the hearing of the appeal, the appellant applied for an adjournment. This had been foreshadowed in correspondence to the Court the night before. The stated basis of the application was that the appellant wished to secure legal representation. He stated that he had found legal representation (being the firm of solicitors in which the appellant's previous solicitor practised) but that he had been asked to pay an amount of money before they would be prepared to represent him at a hearing. He stated that he had only recently started work. He stated that it would take him 6 months in order to save half the funds required. That is, it would take approximately 12 months in order for the appellant to afford legal representation. 23 There is no absolute entitlement in a party to be legally represented before the Court. Nevertheless, the fact that a party wishes to obtain legal representation is clearly a particularly relevant factor in considering the question of whether an adjournment should be granted. 24 In Singh v Minister for Immigration and Border Protection [2016] FCA 942, Charlesworth J observed at [37]: … The discretionary power to grant an adjournment is to be exercised judicially and consistently with the purpose for which it is conferred, having regard to all matters relevant to its exercise including the proper administration of justice, both in the extant proceedings and more generally. 25 The application for an adjournment was refused for the following reasons: (1) There is no evidence to the effect that the appellant would be able to secure the services of a lawyer within a reasonable time. I do not regard an adjournment for 12 months to be reasonable. I was asked to grant an adjournment of 5 or 6 months. However, according to the appellant's submissions, he would still not have saved enough to secure the services of a lawyer in that shorter time. In any event, I do not regard that shorter period as a reasonable period of time in the circumstances. (2) The grounds advanced in the notice of appeal were prepared with the assistance of a lawyer and, to that extent, the appellant has had the benefit of some legal advice. In particular, that lawyer evidently considered the decision of the Federal Circuit Court and the process that the case had taken in that court. That would have required, at least, a consideration also of the Tribunal's decision. The lawyer identified grounds of appeal. This Court has the benefit of that identification and the responsibility to consider those grounds fully and carefully. (3) The notice of ceasing to act was filed on 13 April 2018. The appellant stated that his lawyer required money at the "beginning of this month". The appellant has been on notice that he was likely to be unrepresented for some time before the hearing. (4) It was not suggested that there would be new grounds raised, and having reviewed the reasons of the Tribunal and the Federal Circuit Court, there did not appear to be any grounds which could be raised. In any event, if new grounds were raised for the first time on appeal, there would be an additional hurdle of needing this Court's leave to argue those grounds. (5) At the time of considering the application for an adjournment, the grounds of appeal appeared to be very weak. It seemed unlikely that legal representation for the appellant would have been of assistance in circumstances where this Court would carefully consider the material before it and, in particular, would consider the decisions of the Tribunal and the Federal Circuit Court, recognising that the appellant had experienced difficult circumstances, was unrepresented and not legally trained. 26 The matter was stood down to enable the Minister's written submissions on the substance of the appeal to be translated by the interpreter who interpreted at the hearing. This was perhaps unnecessary as the appellant had been provided those submissions in advance of the hearing.

Appellant's oral submissions 27 The appellant addressed the Court extensively and with considerable care and precision in oral submissions in support of his appeal. He also made submissions in reply. These submissions addressed a range of matters, including the factual circumstances which led to the appellant coming to Australia which were addressed by the delegate and the Tribunal in their respective reasons for decision. He also spoke about the circumstances he faced once in Australia, including the making of his visa application and his circumstances in immigration detention. He stated that he was encouraged to make a Temporary Protection (Subclass 785) visa application rather than a Protection (Subclass 866) visa application. He noted that he was in immigration detention at the time of the Tribunal hearing and that these circumstances made it difficult for him. He noted that he was released from immigration detention in July 2017. He stated that he considered the decision of the Federal Circuit Court not to grant him an adjournment involved error. He made other submissions which it is not necessary to summarise. 28 I mean no disrespect to the appellant in not summarising the further submissions or in not setting out in more detail the submissions I have summarised above. The appellant's submissions were delivered concisely and appropriately. However, for the reasons given below, many of the matters raised cannot affect the outcome of the appeal.

Ground one 29 The judicial review application to the Federal Circuit Court was filed on 18 October 2016. As noted above, paragraph 2 of the application stated as a ground: "I have made an application for assistance through Victoria Legal Aid and am awaiting a decision". 30 As disclosed by paragraphs [4] and [5] of the Federal Circuit Court's reasons (set out at paragraph [15] above), the Federal Circuit Court provided the appellant a reasonable opportunity to obtain legal representation. Whether or not it was obliged to do so, it did so by granting, administratively, what was in substance an adjournment of the original hearing date of 19 April 2017 for a further number of months, until 9 November 2017. The primary judge noted that the appellant had made an application for legal aid some 13 months before the date of hearing, which provided a reasonable time for the appellant to obtain legal assistance. 31 The Federal Circuit Court did consider the matter identified in ground one of the appeal. The time allowed to the appellant to obtain legal representation through Victoria Legal Aid or otherwise was adequate. The Federal Circuit Court is not shown to have erred.

Ground two 32 The Federal Circuit Court Rules 2001 (Cth) do not require the entry of an Appearance. Under rule 6.01, a party to a proceeding must give an address for service. The first and second respondents provided an address for service. In any event, any failure in this respect would not be a basis for concluding that the Federal Circuit Court erred in any relevant way.

Ground three 33 Ground three is a complaint concerning the decision of the delegate, namely, that the delegate did not conduct an international treaties obligation assessment. 34 This ground cannot succeed. The issue of whether the delegate failed in some relevant way in their task was not an issue before the Federal Circuit Court. The only issue before that court was whether the Tribunal had committed a jurisdictional error. In any event, it was not established that an international treaties obligation assessment had to be conducted by the delegate in respect of the visa application which the appellant made. There was no different obligation in this respect which would have arisen had the appellant applied for a Protection (Subclass 866) visa rather than a Temporary Protection (Subclass 785) visa. 35 As a ground not advanced in the court below, the appellant requires leave to raise this ground on appeal. I refuse leave for it to be argued on this appeal because it lacks sufficient merit. Even if I granted leave, the ground is not made out.

Other matters 36 In light of the oral submissions made by the appellant, particularly as to the factual merits of his claims, I make the following additional observations. 37 The Federal Circuit Court has a specific and limited jurisdiction. It did not have jurisdiction simply to correct mistaken findings of fact by the Tribunal or to conduct a general review of the merits of the appellant's claims with a view to substituting the decision in fact made with one it thinks should have been made: Craig v South Australia (1995) 184 CLR 163 at 175; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]. 38 The Federal Circuit Court could only interfere with the Tribunal's decision if it concluded that there was jurisdictional error. As Perry J recently observed in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [13]: … The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant's visa application must be assessed under the Act, the Tribunal's decision was illogical or irrational, or if the Tribunal failed to hear and determine the appellant's application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court). 39 There is scope for judicial review of findings of fact, but the scope is limited and was not applicable in respect of the findings in this case: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132] per Crennan and Bell JJ. 40 There is scope for judicial review of a decision which can be seen to be legally unreasonable for example because of a specific identifiable jurisdictional error, because of the reasoning process utilised or because of the outcome, whether or not there are expressed reasons for the outcome: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]-[12] (Stretton). Here, "the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful": Stretton at [12]. The factual analysis that is required in determining whether a decision is legally unreasonable is not necessarily confined by notions of whether the decision-maker ignored relevant material, relied on irrelevant material, identified a wrong issue or asked the wrong question. 41 This Court also has a limited and specific jurisdiction. This Court, as an appellate Court, has the role of deciding whether the Federal Circuit Court relevantly erred. It might have erred, for example, if it wrongly refused an application for an adjournment. I have concluded it did not err in this respect for the reasons given above. It might also have erred if it wrongly failed to recognise jurisdictional error on the part of the Tribunal, for example, because its decision was legally unreasonable. Like the Federal Circuit Court, this Court does not have jurisdiction simply to correct mistaken findings of fact by the Tribunal or to conduct a general review of the merits of the appellant's claims with a view to substituting the decision in fact made with one this Court might think should have been made. 42 The Federal Circuit Court did not err on the basis of the matters identified in grounds one to three of the appeal.

CONCLUSION 43 The appeal is dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

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