EFS18 v Minister for Immigration and Citizenship - Protection Visa Appeal

Original Word Document (82.7 KB) Federal Court of Australia

EFS18 v Minister for Immigration and Citizenship [2026] FCA 461

| Appeal from: | EFS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1167 |

| File number(s): | NSD 1729 of 2024 |

| Judgment of: | PERRAM J |

| Date of judgment: | 17 April 2026 |

| Catchwords: | MIGRATION – appeal from Federal Circuit and Family

Court of Australia (Division 2) – where delegate refused protection visa and the decision was affirmed by the Immigration Assessment Authority – where appellant claimed to fear persecution from the Muslim Brotherhood and as a failed asylum seeker – whether unwarranted assumption was made – whether relevant matters were not considered – whether the appellant was denied procedural fairness – whether the decision was legally unreasonable |

| Legislation: | Migration Act 1958 (Cth) ss 5H, 36(2) |

| Cases cited: | BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573

NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 31 |

| Date of hearing: | 16 March 2026 |

| Counsel for the Appellant: | The appellant appeared in person via audiovisual link |

| Solicitor for the First Respondent: | Ms S Frankel of the Australian Government Solicitor |

| Counsel for the Second Respondent: | The second respondent filed a submitting notice save as to costs |
ORDERS

| NSD 1729 of 2024 |

| BETWEEN: | EFS18

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent | |

| order made by: | PERRAM J |
| DATE OF ORDER: | 17 April 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as taxed or agreed.

3. The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

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

REASONS FOR JUDGMENT

PERRAM J:

Background

1 The appellant is an Egyptian national who arrived in Australia on 2 May 2013 as an unauthorised maritime arrival. He applied for a protection visa, but a delegate of the Minister refused the application and the Immigration Assessment Authority affirmed that conclusion on review. The Authority was not persuaded that the appellant met the requirements of the definition of refugee in s 5H of the Migration Act 1958 (Cth) (the ‘Act’) or the criteria for a protection visa under s 36(2) of the Act. The Federal Circuit and Family Court of Australia (Division 2) (‘Circuit Court’) then dismissed his application to quash the Authority’s decision: EFS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1167. The appellant now appeals.

2 There are four grounds of appeal which correspond with the four grounds of review pursued before the Circuit Court. They are, first, that the Authority failed to consider essential evidence; secondly, that the Authority denied the appellant procedural fairness; thirdly, that the Authority failed to consider part of his claim particularly as it related to his physical and mental health; and, fourthly, that the Authority had exercised its power of review unreasonably by reaching inconsistent conclusions.

3 The appeal in this Court was called on for hearing on the afternoon of Monday 16 March 2026. At that time, the appellant appeared on his own behalf from the Yongah Hill Immigration Detention Centre by an audiovisual link. He was assisted by an interpreter present in the courtroom in Sydney. Whilst this configuration was not ideal, I was satisfied that the appellant was able to make the points he wished to make and that he understood the nature of the hearing.

4 The appellant provided the Court with some written submissions in advance of the hearing together with a bundle of documents bearing upon the appeal. In his oral submissions, the appellant underscored how significant the decision was from his perspective and how much he feared repatriation to Egypt. He implored the Court to consider his position carefully which I have done.

5 Although the appellant’s notice of appeal raises four grounds some of the grounds contain disparate points and the appeal is more usefully assayed thematically than by individual ground number (although the relevant ground is set out below for ease of reference).

First argument: The Authority made an assumption that the Muslim Brotherhood would not attempt to recruit or harm the appellant if he were returned to Egypt (Ground 1 Particular (a))

6 This requires some explanation. Many of the appellant’s claims concern the Muslim Brotherhood and arise out of events said to have taken place after the fall of the Mubarak regime during the Arab Spring. The Authority referred to material to which it had access which indicated that the Muslim Brotherhood was a conservative Sunni Islamist religious, political and social movement established in 1928. Widespread protests against the Mubarak regime in January 2011 led to Mubarak’s resignation on 11 February 2011 and the installation of an interim military government. On 15 February 2011 the Muslim Brotherhood announced that it would form the Freedom and Justice Party to run in the upcoming elections. The elections were held in several stages between 28 November 2011 and 11 January 2012. In June 2012 Mohammed Morsi was elected President. The Authority accepted that the Muslim Brotherhood was very active in the latter half of 2011 in the lead up to the elections.

7 One of the appellant’s claims was that during 2011 (in the aftermath of the revolution) members of the Muslim Brotherhood in his village had tried to force him to join the movement. One evening members of the Brotherhood had grabbed him off the street, bound his hands, forced him into a car and then driven him to a remote farm where, over a period of weeks, he was beaten and tortured. The torture had included being burnt with a hot knife held to his leg and being hit on the forehead with the leg of a chair. The appellant also claimed that at the farm he had seen about a dozen other victims who had been kidnapped by the Brotherhood. Eventually he escaped and fled Egypt.

8 Returning then to how this relates to his visa application, it was the appellant’s contention that if he were returned to Egypt he would suffer persecution on a number of different bases. The important one for present purposes was that if he was returned to Egypt the Muslim Brotherhood would try once again to force him to join them.

9 The Authority did not accept this claim. It accepted that the Brotherhood still existed in Egypt but thought that it had been diminished by the arrest and detention of tens of thousands of its members including many of its senior leaders. Further, it reasoned that the appellant lacked a political or religious profile that could bring him to the attention of any of the remaining or active members of the Muslim Brotherhood.

10 Moreover, whilst the Authority accepted that the appellant had been kidnapped by Islamic extremists in 2011 it did not accept that these extremists had been members of the Muslim Brotherhood (who it thought in 2011 were attempting to garner the popular vote and were therefore perhaps unlikely to use such strong-armed and resentment inducing recruitment strategies). It therefore concluded that there was no real chance that the appellant would suffer serious harm from members of the Muslim Brotherhood if returned to Egypt.

11 The appellant’s contention in his notice of appeal is that the Authority made an assumption that the Muslim Brotherhood would not attempt to recruit or harm him if he were returned to Egypt. There are authorities which suggest that in certain circumstances an administrative decision-maker may err by making what are sometimes referred to as ‘unwarranted assumptions’. This is not an independent ground of review but rather a particular instance of rationality review. A party seeking to rely upon an unwarranted assumption to establish jurisdictional error will need to show that the assumption is not one which a reasonable decision maker could make or, perhaps to paraphrase, that it does not have an evident or intelligible basis. The authorities about this are collected in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [6]-[8].

12 Although the appellant’s notice of appeal does not invoke the language of unwarranted assumptions, I think it appropriate to proceed on the assumption that this is the kind of legal point he had in mind. I take his contention to be, therefore, that the Authority assumed that the Muslim Brotherhood would not seek to recruit or harm him if he were to be returned to Egypt and that the making of that assumption was irrational in the administrative law sense.

13 It is apparent from the Authority’s decision that the reason that it thought that the appellant faced no real chance of serious harm at the hands of the Muslim Brotherhood was because: (a) it was not satisfied that the incident in 2011 had involved the Brotherhood at all but, rather, other unidentified Islamic extremists (so that the appellant was of no interest to the Muslim Brotherhood by reason of an event in which they were not involved); and, (b) the capacity of the Muslim Brotherhood since 2011 to recruit or harm the appellant had been significantly curtailed by an effective government crackdown. Put shortly, the Authority reasoned that the Muslim Brotherhood had neither the motive nor the means to seek to recruit or harm the appellant.

14 The Authority then concluded that it was satisfied that the Muslim Brotherhood would not continue to seek to recruit or harm the appellant. Accordingly, I do not accept the appellant’s submission that the Authority had made the assumption suggested. Even if one accepts that it had, the question would then become whether that assumption was one liable to rationality review. In light of the other explicit findings which the Authority made I do not accept that such an assumption was irrational in the requisite sense. I therefore do not accept this first argument advanced by the appellant.

Second argument: The delegate relied upon country information which was incorrect (Ground 1 Particular (a))

15 Although the notice of appeal refers to this error as having been made by the delegate, it seems to me that I should proceed on the assumption that the appellant intended to refer to the decision of the Authority (since it is the decision-maker the subject matter of the underlying judicial review decision). On that assumption, one problem with this argument is that it does not identify which particular piece of country information the appellant says was incorrect.

16 This may well be sufficient to dispose of this argument. However, even if the appellant had identified some country information used by the Authority which was shown to be wrong it would not be possible to uphold this argument. For the reasons given by the Full Court in NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ the mere fact that country information is incorrect does not in itself give rise to a jurisdictional error.

Third argument: The Authority failed to consider the appellant’s mental health issues properly (Ground 1 Particular (b))

17 There is little substance in this contention since it is clear that the Authority specifically identified the appellant’s mental health challenges and, in fact, took them into account in its process of reasoning in a way which resulted in findings of fact which were beneficial to him.

18 For example, the appellant submitted to the Authority that as a result of a motor vehicle accident in January 2017 he had been treated for a number of conditions including depression, anxiety and panic attacks, and had required pain management. Although the Authority was prohibited from receiving new information which had arisen since the time of the hearing before the delegate it was permitted to depart from this rule in exceptional circumstances. In the present case, the Authority was satisfied that there were exceptional circumstances justifying its receipt of the medical records of the appellant.

19 The Authority then used this information to accept a part of the appellant’s account of his kidnapping which the delegate had been inclined to think suffered from inconsistencies. For example, the delegate noted that the appellant had, at one point, said that his escape from the farm had happened through a bathroom window but, at another time, that it had taken place over a wall. But the Authority did not think that these inconsistencies should be given any weight given the length of time since the events in question and because of the appellant’s ‘ significant mental health problems ’ which, together with his medication, ‘ may have affected h is memory for detail ’.

20 The argument that the Authority did not consider the appellant’s mental health issues properly cannot therefore be accepted.

Fourth argument: The Authority denied the appellant procedural fairness by making assumptions and drawing conclusions without adequate information and consideration (Ground 2 Particular (a))

21 There is an overlap between this argument and the appellant’s first argument to the extent that this argument is concerned with the making of assumptions. Insofar as it deals with assumptions, I reject it for the reasons I have given in relation to the first argument.

22 That leaves that part of this argument which concerns the appellant’s contention that the Authority had drawn conclusions about the Muslim Brotherhood without adequate information and without adequate consideration.

23 I do not think that either contention may be maintained. As to the suggested inadequacy of the information before the Authority, there is a threshold issue as to what is meant by inadequacy. I take it to mean that the information about the Muslim Brotherhood before the Authority was insufficient as a matter of law to sustain the inferences of fact which the Authority drew.

24 Such a contention is difficult to assess without an identification of the inferences of the Authority which are said to be impugned on this basis. I have read the Authority’s reasons carefully. All of the Authority’s findings about the Muslim Brotherhood seem to me to be open on the evidence; that is to say, the country information which it relied on is information which would permit the drawing of the inferences drawn by the Authority. I therefore reject this ground.

25 The appellant advanced a related submission that the Authority had failed to address or acknowledge: (a) the prejudice and danger he would face as a failed asylum seeker; and, (b) that he was put in greater danger due to a data breach which published certain of his personal information on the internet in February 2014. However, the Authority explicitly considered and addressed these matters. It concluded that they did not, individually or cumulatively, give rise to a real chance of the appellant facing serious harm after considering country information and the nature of the information published in the data breach: [57]-[65], [70]. I therefore do not accept this submission.

Fifth argument: The Authority failed to give adequate or proper consideration to the appellant’s physical and mental health issues (Ground 3 Particular (a))

26 This argument overlaps with the third argument concerning the alleged failure of the Authority to consider the appellant’s mental health issues. For the reasons I have given above I reject the fifth argument to the extent that it relates to the appellant’s mental health issues.

27 That leaves the contention that the Authority did not consider the appellant’s physical issues. Consideration of this argument is hampered to the extent that the appellant’s physical issues are not identified. However, it is apparent from the Authority’s reasons that it considered the appellant’s physical conditions at a number of points in its reasons. It accepted that he required pain management following the motor vehicle accident (at [5]), that he had a colostomy and large intestine resection in early 2004 (at [7]) and that he had been burnt on the leg with a hot knife by an unidentified Islamic extremist group (at [45]). I do not think that it can be said therefore that the Authority failed to consider the appellant’s physical issues.

Sixth argument: The Authority acted in a legally unreasonable way by accepting information about the arrest of his brother but then drawing a conclusion (or making an assumption) to the contrary (Ground 4 Particular (a))

28 The appellant mentioned two of his brothers at various points in the immigration process. One was called Ali and the other Abdul. The present argument concerns the position of Abdul. In his application for the protection visa the appellant said that Abdul had been arrested at his family’s home in Egypt in October 2016. This had occurred after Abdul had attended a demonstration protesting two islands over which Saudi Arabia was claiming ownership. After this, Abdul had disappeared and no-one knew whether he was alive or not. The appellant said that he feared that Abdul had been arrested because of his association with the appellant and hence was suspected of having ties to the Muslim Brotherhood.

29 The Authority did not think that this was plausible. This was because the arrest occurred almost five years after the appellant had left Egypt and three years after the new government had begun its crackdown on the Muslim Brotherhood. The Authority did not think that it was plausible that the government authorities arrested and detained the appellant’s brother because he was associated with the appellant who was in turn was suspected of being associated with the Muslim Brotherhood: [40].

30 To an extent, this reasoning seems to be a bit, although not entirely, garbled. If one assumes that the appellant was associated with the Muslim Brotherhood then the fact that the government had conducted a crackdown on the Brotherhood would logically make Abdul’s arrest more likely not less. However, the balance of the Authority’s reasons clearly shows that it did not think that the appellant was associated with the Muslim Brotherhood or even that he appeared to be associated with it. Thus, it seems me that the Authority’s conclusions about Abdul are rational.

Conclusions

31 The appellant’s application for judicial review in the Circuit Court was correctly rejected by that Court. The appeal will be dismissed with costs. I will order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

| I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. |
Associate:

Dated: 17 April 2026