MZYUH v Minister for Immigration and Border Protection

The length of extension 9 In this case, the 21 day period fixed by r 36.03 expired on 6 August 2012 and the applicant did not lodge his present application until 8 August 2014. The very length of the extension sought is a factor counting against the applicant.

The explanation for the delay 10 The applicant has deposed that he did not appeal against the decision of the FMC because he was not aware that he had any avenue of appeal, let alone that there was a limitation period in which to do so. However, he did not remain inactive during the two year period. On 9 August 2012, his Migration Agent submitted on his behalf a request for Ministerial intervention under s 417 of the Migration Act. Section 417 authorises the Minister, if he or she thinks in the public interest to do so, to substitute for a decision of the RRT another decision which is more favourable to an applicant. The applicant has deposed that he did not receive any response to his request until 23 June 2014 when the Minister rejected it. He then sought legal advice and became aware for the first time of an avenue of appeal. 11 By way of elaboration I note the following. Sister Patricia Sealey RSJ has been the applicant's Migration Agent since 11 February 2011. Sister Sealey, who has acted on a pro-bono basis, does not have legal qualifications and has deposed to a lack of familiarity with Court processes. The applicant was represented in the FMC by a Melbourne based firm of lawyers. When Sister Sealey learnt that the application for judicial review had been dismissed by the FMC, she suggested that the applicant authorise her to draft and submit the request for Ministerial intervention. That led to that request being submitted, in a timely way, on 9 August 2012. The material before the Court does not indicate the reason for the long period of time elapsing between 9 August 2012 and the provision of the Minister's response dated 23 June 2014. Nor does the evidence indicate whether the applicant took any steps in the period between 9 August 2012 and 23 June 2014 to expedite the Minister's decision. 12 The applicant has deposed that he did speak to his Melbourne based solicitor by telephone after the FMC decision of 16 July 2012. He said he asked for advice as to what he could do and was then told about the possibility of making a request for Ministerial intervention. The applicant acknowledges that the file of his former solicitor contains a file note which includes the words "already spoken to him about options re appeals and ministerials". Although that file note may suggest a belief by the solicitor that he had previously provided advice about an appeal option, the applicant maintains that he first learnt of the possibility of an appeal when speaking to his current solicitors on 23 July 2014. He then instructed them to lodge the present application as soon as practical. 13 Counsel for the Minister did not seek to cross-examine the applicant, Sister Sealey, or seek evidence from the applicant's former solicitor. He accepted, quite fairly, that it was appropriate for the Court to act on the truth of the matters to which the applicant and Sister Sealey deposed. I am satisfied that it is appropriate to do so. 14 Accordingly, I am satisfied that the present applicant did not know of his right of appeal and instead pursued the only means of review of which he was aware. Upon becoming aware of a means of appeal, the applicant has acted promptly. It is pertinent that this is not a case in which an applicant has sat idle and only belatedly sought to exercise a right of appeal about which he or she was aware all along.

Prejudice to the Minister 15 The Minister does not claim that he will suffer any prejudice if an extension of time is granted. I add that the RRT, which is the second respondent, filed a submitting notice and did not take any part in the hearing.

Prejudice to the applicant 16 If the extension of time is not granted, the applicant will have exhausted the means of judicial review of the RRT decision and, as noted, his request for ministerial intervention has been unsuccessful. In that event, he will have to leave Australia, whether voluntarily or involuntarily, and he has deposed to a continuing fear of persecution on account of his religion if he is returned to Egypt. Material to which I will refer shortly, and which was accepted by the RRT, indicates that there may be some basis for that fear. 17 I accept that these matters constitute a form of prejudice. However, the extent of the prejudice is closely connected to the assessment of the prospects of success of any appeal.

The merits of the proposed appeal 18 As previously noted, the applicant relied on two grounds in his application for judicial review before the FMC: namely, an alleged failure by the RRT to have regard to relevant considerations, and its taking into account matters said to be irrelevant. The applicant's first complaint presently is that the FMC did not, at least in substance, address those grounds at all. 19 In my opinion, there is substance in this submission. The then Federal Magistrate structured his judgment by setting out quotations from a series of judgments of the High Court and of this Court and then making findings by reference to the propositions contained in the quoted passages. This structure may have distracted the Magistrate from addressing directly the applicant's particular complaints. 20 After referring to W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, in which Tamberlin and RD Nicholson JJ referred to the decisions of the High Court regarding the difficulties for an appellate court in interfering with findings of fact based on an assessment of a witness' credibility, the Federal Magistrate concluded: [10] The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant. However, the Magistrate was not hearing an appeal against factual findings based on the RRT's assessment of the applicant's credibility, and this conclusion was of limited relevance on the judicial review. 21 Next, the Federal Magistrate said at [14] that he was not prepared to find that the RRT decision was so unreasonable "that no reasonable body could have come to it". However, the application had not framed his claim in terms of Wednesbury unreasonableness. 22 The Federal Magistrate referred to several authorities indicating that the weight to be accorded to the evidence of an applicant is for the RRT and not for the Court, and that it is not for the Court to review the merits of the RRT's decision. This was a pertinent observation as the manner of expression of the grounds of review, and the applicant's written submissions, did suggest in part that some form of merits review was contemplated. 23 However, none of the above matters went to the grounds in the application for review. The Federal Magistrate did refer in two places to those grounds. In relation to the alleged failure to have regard to relevant considerations, the Federal Magistrate said: [38] The court finds that the Tribunal took into account the matters in Particulars 4(a)(i) to (ix) of the amended application, and accepts the written submissions of the first respondent in paras [30] to [42]. It is clear that the Tribunal affirmed the decision not to grant the applicant a protection visa because it rejected much of his evidence and found him not to be a credible witness. That is an independent and unimpeachable basis for the decision of the Tribunal. 24 Later, in [47] of his reasons (which was the penultimate paragraph), the Federal Magistrate said: [47] Even if a relevant matter was not taken into consideration - and the Court rejects that assertion - or an irrelevant matter was considered - and the Court rejects that also - the court would withhold relief because of the Tribunal findings that the applicant was not a credible witness and that the applicant's claims are not true. 25 The Federal Magistrate did not in either of these passages engage in a detailed analysis of the particular matters said by the applicant not to have been taken into account and of the irrelevant matters said to have been considered, even though these were the grounds on which the applicant relied. Instead these seem to have been rejected in one line and without any analysis. The Federal Magistrate took the view that, because the RRT had found the applicant not to be a credible witness, this was "an independent and impeachable basis for the decision of the Tribunal". He referred to authority indicating that, in the exercise of a residual discretion, a Court finding error need not set aside the impugned decision if no useful purpose would thereby be achieved. 26 The applicant's present complaint is, in effect, that his application for judicial review was not considered on the basis upon which it was then put forward, with the consequence that he has not yet had the judicial review contemplated by s 476. Counsel for the Minister, accepted, quite fairly, that there was "some force" in this critique, and did not seek to rely at all on the Magistrate's reasons for his contention that the proposed appeal lacked merit. 27 In my opinion, the circumstance that the applicant's grounds for judicial review at first instance seem not to have been addressed properly is a strong factor counting in favour of the extension of time. Prima facie, the applicant has not had the judicial review to which he was entitled. However, if it is apparent that the application for judicial review is nevertheless doomed to fail, the applicant could not be said to be prejudiced by a refusal of the extension. Accordingly, I approach the remaining question of prejudice by considering whether some at least of the matters which the applicant wishes to agitate are arguable. 28 It is appropriate to note that several of the submissions made on the applicant's behalf raised matters which were not agitated before the FMC, or at least not agitated in the same way. It is appropriate to refer to these matters before returning to the significance of them being raised for the first time only now. 29 Some understanding of the background to the applicant's claim for a Protection Visa is necessary. The RRT accepted that the applicant is a Coptic Christian. Coptic Christians comprise about 10% of the Egyptian population. Although the RRT did not make an express finding to this effect, it seems to have accepted the applicant's claim that he was actively involved in his church and that he had become a deacon at the age of 18. 30 The applicant claimed that, when he was at university in Egypt, he had introduced a Muslim girl from his village to Christianity and to his priest (the Priest). He said that she had later converted to Christianity and had taken refuge in a convent. The applicant said that the girl's parents and twin brother (who is a policeman) had been angry at this turn of events and had threatened to kill him if they found that he had had anything to do with them. 31 The applicant said that the brother of the Muslim girl convert and other policemen had come to his home in 2007 at a time when he and others were preparing songs and hymns on a CD. He said that the police had barged in, smashed Christian items, and then beaten and arrested all of those present. They were kept in detention for four days. During this time he was beaten every day as the girl's brother sought to extract information from him as to her whereabouts. 32 Following these events, the applicant obtained the Student Visa which had enabled him to come to Australia. In September 2009, he returned to Egypt for five weeks to visit his mother who had had a heart attack and was hospitalised. 33 The applicant described an incident in October 2009 while he was in Egypt when he and about 30 other Coptic Christians were working on news and Mass sheets. They were arrested and jailed. He said that he was tortured, beaten, starved and had a baton inserted into his anus. He claimed that, with the assistance of a friendly guard, he had escaped and been able to leave Egypt returning to Australia. 34 In the proceedings before the RRT, the applicant gave oral evidence himself and adduced evidence from others, including an Egyptian lawyer, a psychologist and a mental health nurse. He also tendered a number of documents. These included: (a) A copy of the document said to be a record of his conviction, in absentia, on 30 October 2010 for an offence of soliciting the conversion to Christianity of four girls; (b) A statement from his mother in which she said that the applicant had been arrested in Cairo in October 2009 and that, after his escape from detention, she had taken him to Maghagha Hospital; (c) A statement from the applicant's uncle stating that the applicant had come to his home on a Tuesday in October 2009 "in a terrible condition", and that the applicant had told him that he had been beaten and tortured at a particular police station; (d) A letter from the Maghagha Public Hospital stating that the applicant was admitted as a patient for four days in October 2009. The letter stated that upon examination of the applicant, hospital staff had found him to be "deeply unconscious on his arrival at the hospital's Reception Area with an extensive anal haemorrhage and severe inflammation in the skin and we treated him accordingly"; (e) A number of reports and statements relating to the applicant's health and treatment. 35 In addition, the RRT on its own motion took evidence by telephone from the Priest who was at the time in the United States. 36 The RRT found that the applicant was not a credible witness. The RRT member attached significant weight to a number of matters. The first was its finding that the Court Record of 30 October 2010 was not genuine. The applicant said that he had been provided with the copy of the Court Record by his mother, who had obtained it by asking the Priest who in turn had made enquiries which led to the document being provided. In this respect the RRT relied on a report provided to it by the Department of Foreign Affairs and Trade (DFAT) relating to enquiries which it had made in Egypt in relation to the Court Record. DFAT was informed by a person described as "the Attorney President" that: (a) As at 30 October 2010, the named Egyptian Court did not have a Judge with the name recorded on the Record as the Presiding Judge; (b) That Court did not impose prison sentences of over three years, whereas the Record recorded a sentence of five years; (c) The case number shown on the Record exceeded the case numbers in the Court for the year 2010. The Attorney President informed DFAT that for these reasons he did not regard the Record as genuine and DFAT reported that to the RRT. 37 The second matter to which the RRT attached significance was the evidence of the Priest which, as noted above, it took from him by telephone. Although the Priest confirmed that the applicant had told him when he was living in Egypt that he was being harassed and abused by Muslim fundamentalists by, for example, threats on the telephone and by being bashed while walking around, he had no knowledge of the applicant having been arrested or jailed; that he had never converted a Muslim to Christianity because it would be "too dangerous"; that he had never assisted a young Muslim girl to go to a convent; that while he had heard the name of the girl whom the applicant was said to have assisted, he had never met her; and that he had not been asked by the applicant's mother to obtain a Court Record relating to the applicant. 38 Thirdly, the RRT considered that the applicant's claims of fear of harm were inconsistent with his having returned voluntarily to Egypt for a five week period in 2009 to visit his mother. 39 Finally, the RRT considered the applicant's delay in applying for a Protection Visa after returning from Egypt in 2009 to be significant. It considered that he made the application only after completing a TAFE course and as a way of extending his stay in Australia. 40 Having rejected the applicant's evidence as reliable, the RRT said that it gave no weight to the other evidence which the applicant had adduced in support of his claim. The RRT then concluded that, should the applicant return to Egypt, he would be able to continue to practice his faith as he has done in Australia and as he did before leaving Egypt. It did not accept that he would be at risk of physical harm or violence amounting to persecution "for going to and serving his church". On that basis, the RRT found that the applicant did not have a well-founded fear of persecution for a Convention reason. 41 Counsel for the applicant submitted first that the RRT had failed to consider the claims presented by the applicant on the evidence which it did accept. Counsel referred in particular to the statement of the RRT at [66] that it accepted the evidence of the Priest and gave it considerable weight. This meant, Counsel submitted, that the RRT should be taken to have accepted the evidence of the Priest that the applicant was "an avid and active church member, servant and Sunday School teacher"; that the applicant had endured "increased events of abuse and harassment ... during his last years at home"; that the applicant had been harassed on the telephone and bashed while walking in the street; that because of that harassment and violence, the Priest had advised him to seek refuge in another country such as Australia; that people who are involved in converting Muslims to Christianity in Egypt can face death; that he had heard about the Muslim girl said to have converted to Christianity but that "the person who did [it] kept the confidentiality"; and that it would be "too dangerous" even to attempt the conversion of a Muslim to Christianity. 42 Counsel contended that the rejection of the applicant's evidence regarding his involvement with the Muslim girl and the rejection of the authenticity of the Court Record did not relieve the RRT from considering the claim of the applicant by reference to the evidence which it did accept. 43 A failure by the RRT to consider the case which emerged on the submissions and on the evidence it accepted will constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[63]. Accordingly, I consider that this claim is arguable. 44 Next, Counsel referred to s 91R of the Migration Act. Section 91R(1) provides that, for the purposes of the application of the Act, the Refugees Convention does not apply in relation to the persecution of a person mentioned in Art 1A(2) of the Convention unless, amongst other things, the persecution involves "serious harm" to the person. Subsection (2) defines serious harm for the purposes of this provision: (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 45 Counsel drew attention in particular to sub-paras (b) and (c). She contended that the RRT had not considered at all whether the harm described by the Priest, which had prompted him to advise the applicant to leave Egypt, constituted serious harm as defined. 46 I do not accept that this contention is so arguable that the lack of an opportunity to present it on an application for judicial review can be regarded presently as constituting prejudice for the applicant. The RRT did consider expressly whether the applicant would face "serious harm" if he returns to Egypt now or in the reasonably foreseeable future because of his religion. It referred to the Country information available to it on this topic and concluded at [73]: The Tribunal accepts that should the applicant return to Egypt he would continue to practice his faith as he has done in Australia and as he did do before he left Egypt. That is, he would attend and participate in his local church. However, the Tribunal does not accept that he would be at risk of physical harm or violence amounting to persecution for going to and serving his church. In the light of this finding, I am not willing in the context of the present application to find that the RRT failed to consider appropriately the question of "serious harm". It may be, as Counsel for the applicant submitted, that the RRT did not give all the weight which could have been given to the evidence of the Priest on this topic and instead placed greater emphasis on the Country information. However, the weight to be attached to particular parts of the evidence was a matter for the RRT and is not a matter for the Court: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [95]. 47 Counsel also contended that the RRT had failed to have regard to the evidence that the applicant was not just a Coptic Christian and an attendee at his local church but was also an active church worker. It is true that the RRT did not refer expressly to the evidence of the Priest that the applicant was "an avid and active church member, servant and Sunday School teacher". However, on my understanding, the evidence did not suggest that, by reason of those activities, the applicant faced an additional risk of harm. Accordingly, I have not relied on this criticism of the RRT's reasoning in the determination of the application for the extension of time. 48 I record that the applicant's Counsel also contended in relation to this topic that the RRT had not engaged in "logically probative reasoning" and sought thereby to invoke FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1. However, Counsel did not develop this submission. In that circumstance, and because I consider that an independent basis supporting the extension has been shown, it is not necessary to address presently the possible application of FTZK. 49 Next, Counsel referred to [71] of the RRT decision. In that paragraph the RRT addressed two distinct subject matters: the applicant's claim that by reason of DFAT having contacted the authorities in Egypt, he would be targeted on any return to Egypt; and his submission that his mother and family members also face problems in Egypt because of his claims in support of his application for a Protection Visa. Counsel contended that there was no logically probative connection between these two matters. This meant, it was submitted, that the RRT had failed to engage in a logically probative reasoning process as required. Counsel referred again to the decision of the High Court in FTZK. I am not satisfied that this contention is reasonably arguable. On my present understanding, the issue seems to arise only because the RRT chose to deal with two distinct subject matters in the one paragraph of its reasons. 50 Next, Counsel referred to the failure of the RRT to address evidence from an Egyptian lawyer concerning the Court Record and the evidence provided by the Attorney President to DFAT in relation to that Record. The Egyptian lawyer gave evidence that the "Attorney President" contacted by DFAT did not hold a position of neutrality as he was a prosecutor and that this affected the reliability of what he had told DFAT; that he had asked a lawyer in Egypt to check the Egyptian Court case numbers but that lawyer had been unable to do so because the Court File Book had been taken to the Prosecution Office; that on any return to Egypt it was probable that the applicant would be arrested at the airport and later imprisoned because, if the record was authentic, he would have to serve the sentence imposed and, if it was not, he would be sentenced for a crime arising from his presentation of a false document; that there is a particular means of checking whether a sentence has been imposed in Egypt which had not been adopted by the Attorney President; and that, contrary to the assertion of the Attorney President, s 98 of the Egyptian Penal Code prescribed a maximum sentence of five years for the offence alleged to have been committed by the applicant. The Egyptian lawyer provided a certified translation of s 98 of the Egyptian Penal Code confirming that maximum sentence. 51 The RRT did include in its summary of the evidence at the hearing a summary of the evidence given by the Egyptian lawyer. Counsel submitted, however, that the RRT had failed to evaluate that evidence as the RRT member did not refer to it again in her reasons. The evidence was directly relevant and probative as it contradicted some of the evidence provided by DFAT on which the RRT relied. Counsel submitted that in this circumstance it could be inferred that the RRT had failed to have regard to a relevant consideration, which was indicative of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69]. 52 In relation to this submission in particular and to several other of the applicant's submissions, Counsel for the Minister drew attention to, and relied upon, the observations of Kenny J in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53; (2011) 119 ALD 534 at [24]: [A] failure to refer to, or adequately to consider, evidence, whether or not it might be probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. 53 Counsel also referred to the statement of McHugh, Gummow and Hayne JJ in Yusuf at [74]: What is important … is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 54 Counsel for the Minister submitted that the applicant essentially wishes to re-agitate matters of fact and evidence rather than matters which can establish jurisdictional error. Although these submissions may have some force, I do not consider it appropriate for them to be determined finally on the present application. It is arguable that the Egyptian lawyer's evidence about the Egyptian Penal Code stands differently from other factual matters, as it went in part to the legal framework in which the evidence accepted by the RRT was to be considered. It is also undesirable that, if a matter is at least arguable, the applicant's application for judicial review should, in effect, be determined in the context of an application for an extension of time in which to appeal. That is especially so given that the applicant has not, for the reasons given earlier, had the judicial review to which he was entitled in the former FMC. I also keep in mind that the submissions made by Counsel for the applicant were made in the manner of submissions proportionate to an application for an extension of time, rather than being the fully developed submissions which the Court would expect on appeal. 55 For these reasons, I consider that at least two of the grounds which the applicant wishes to agitate should be regarded as reasonably arguable so that he would suffer prejudice if shut out from putting them.

Any other considerations 56 I refer again to the very lengthy extension of time which the applicant seeks. It is well in excess of the contemplated limitation period for appeals. The rationale lying behind the limitation of period of 21 days counts against the extension but Counsel for the Minister did not point to any other disqualifying circumstance.

New points not argued at first instance 57 As previously noted, it is apparent that the applicant's present counsel wishes to raise matters which were not argued before the Federal Magistrate. An Appeal Court may allow an appellant to argue on appeal grounds which were not argued at first instance: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2000) 129 FCR 168 at [23] citing H v Minister for Immigration and Multicultural Affairs [2003] FCA 1348; (2000) 63 ALD 43 at [6]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. 58 Nevertheless, the circumstances in which the Court exercises this discretion so as to allow this to occur are confined. A pertinent consideration in the present case is that the appeal will be from a decision on judicial review and there is no suggestion that any of the proposed new grounds could be met by additional evidence. It is also the case that, by their nature, many of the grounds of judicial review overlap. In particular, the allegations that the RRT failed to have regard to relevant considerations have a close relationship with the contention that the RRT failed to consider and determine the case properly emerging from the submissions and evidence before it. 59 In these circumstances, I consider that the applicant should be permitted to raise the additional grounds and, to the extent necessary, I grant leave to the applicant to do so.

Conclusion 60 Although the period of extension sought is long, I am persuaded that an extension of time should be granted. The applicant has provided an adequate explanation for not commencing an appeal within time; he has pursued an alternative means of obtaining the relief which he seeks; he will be prejudiced if the extension is not allowed; and the Minister does not assert any countervailing prejudice. 61 In these circumstances, I grant the applicant an extension of time in which to commence the appeal. 62 During the course of the hearing, I raised with Counsel for the applicant a number of concerns about the grounds in the amended draft Notice of Appeal. The grounds are multiple, totalling at least 18 separate complaints and, on one view, even more. At the hearing, Counsel for the applicant identified some six principal grounds of proposed appeal. It is desirable that the Notice of Appeal be amended so as to crystalise those grounds. That being so, the extension should be sufficient to allow the applicant's advisors sufficient time to review the grounds of appeal in the light of the submissions at the hearing and in the light of these reasons. For that reason, I will extend the time for commencement of the appeal to 23 December 2014. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.