AFZ16 v Minister for Immigration
[2017] FCCA 2012
•23 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2012 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether Tribunal applied an active intellectual process to claims made by Second Applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa) |
| Cases cited: Chan Yee Kin & Minister for Immigration and Ethnic Affairs [1989] HCA 62 SYAZT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 |
| First Applicant: | AFZ16 |
| Second Applicant: | AGA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 213 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 15 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2017 |
REPRESENTATION
| Counsel for the Second Applicant: | Mr Bayly |
| Solicitors for the Second Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Petrie |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 213 of 2016
| AFZ16 |
First Applicant
| AGA16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 21 January 2016. By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicants protection (class XA) visas (‘the visas’).
The Second Applicant relies upon an amended application filed on 24 April 2017. Contained within that application is a single ground of review which is as follows:-
“1. The Tribunal failed to perform its statutory function according to law and that it:
(a) failed to properly consider the applicants’ claim that, in the event that they were to return to Egypt, they feared that the second applicant would suffer persecution or significant harm in the form of sexual harassment and/or sexual assault.
Particulars
The Tribunal failed to consider the following matters that form part of the applicants’ claim:
Sexual harassment, sexual assault and violence against women are pervasive in Egypt and are tolerated by the Egyptian authorities;
The second applicant experienced three separate incidents of sexual assault in Egypt before departing for Australia;
If the applicants were required to return to Egypt, it was likely that the second applicant would experience further instances of sexual harassment or sexual assault;
Because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the second applicant.”
The Second Applicant seeks the following orders:-
a)a writ of certiorari to quash the decision of the Second Respondent;
b)a writ of mandamus to compel the Second Respondent to remake the decision according to law; and
c)costs.
The First Respondent seeks that the application be dismissed with costs.
Background
The Applicants arrived in Australia on 24 April 2013 on Egyptian passports. On arrival, the Applicants were holders of Class TR (subclass 676) visas. Neither Applicant has departed Australia since their arrival. Both Applicants are Coptic Christians born in 1952 who lived in Cairo before coming to Australia. They have two children, a son who lives in Melbourne and another who lives in Cairo. The First Applicant worked as an engineer from 1979 until 2011. The Second Applicant worked from 1979 until 2012 as director of teaching at a school in Cairo.
The Applicants, who were accepted by the Tribunal to be citizens of Egypt, applied for the visas on 18 June 2013.
A delegate of the First Respondent refused to grant the visas on 13 June 2014. The Applicants lodged an application for review with the then Refugee Review Tribunal (now the Tribunal) on 3 July 2014. The Tribunal invited the Applicants to appear before it to give evidence and present arguments relating to the issues arising in the Applicants’ case at a hearing on 24 February 2015.
The Applicants appeared before the Tribunal on both 24 February 2015 and 6 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Applicants were represented in relation to the review by their registered migration agent, who attended the Tribunal hearing.
The Tribunal hearing
The claims of the Applicants, as summarised by both Counsel for the Applicants and Counsel for the First Respondent, were as follows:-
a)sexual harassment, sexual assault and violence against women are pervasive in Egypt and are tolerated by the Egyptian authorities;
b)the Second Applicant experienced three separate incidents of sexual assault in Egypt before departing for Australia. These caused the Second Applicant to suffer from anxiety and depression;
c)if the Applicants were required to return to Egypt, it was likely that the Second Applicant would experience further instances of sexual harassment or sexual assault;
d)because of her history and medical condition, experiencing further instances of sexual harassment or sexual assaults would cause serious harm or significant harm to the Second Applicant.
The Tribunal noted in paragraph 21 of its Statement of Decision and Reasons (‘the Decision Record’) the material before the Tribunal in relation to the review, which included the following:-
a)application for a protection visa with statutory declaration of the first named Applicant dated 13 June 2013;
b)copies of the Applicants’ passports;
c)agent’s submissions dated 12 June 2013;
d)statutory declaration of the second named Applicant dated 31 March 2014;
e)copy of translated marriage certificate;
f)copies of translated reports by a psychiatrist dated 15 April 2013. The Tribunal noted that such reports stated that the Applicant wife suffered from depression associated with fears and severe recurrent anxiety as a result of being exposed to extremely bad psychological and social conditions. The Tribunal noted the reports stated that the Second Applicant suffered a relapse on 14 April 2013 after being subjected to an act of harassment and of theft and violence. The reports stated that the Applicant wife had severe nervous tension and severe anxiety and depression;
g)translated copy of police report by the Second Applicant dated 14 April 2013 relating to an incident where two persons on a motorcycle stole her handbag and attempted to snatch her necklace and gold cross;
h)interview with the delegate dated 2 April 2014;
i)agent’s written submissions dated 17 February 2015;
j)statutory declarations of the Applicants dated 13 February 2015;
k)psychological report of the Second Applicant dated 12 January 2015.
Tribunal findings
By a decision dated 21 January 2016, the Tribunal affirmed the decision not to grant the visas, and in doing so made findings as follows:-
a)the Tribunal found that Egypt was the country of nationality for the purposes of the Convention of both Applicants and also their receiving country for the purposes of ss.5(1) and 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’);
b)the Tribunal did not find the Second Applicant to be a credible witness in regard to her claims of being threatened and harmed by a fellow employee, Magda, and a neighbour due to the promotion of Magda and the conversion of one of the Second Applicant’s students (named Rania). The Tribunal set out in paragraphs 34 to 39 its reasons for not accepting those claims as put before it by the Second Applicant. The Tribunal said thereafter at paragraph 40 the following:-
“In making my findings, I have taken into account the Tribunal’s guidelines on the assessment of credibility (including the effects of anxiety and trauma on Applicants and the passage of time). I have also taken into account the psychological report relating to the Applicant wife dated 12 January 2015, which states, inter alia, that she experiences extremely severe depression and anxiety and severe levels of stress, and the psychiatrist report of 15 April 2013 that says she suffers from psychological depression with fears and severe recurrent anxiety. However, these do not overcome the highly significant concerns I have about the Applicant’s credibility set out above.”
The Tribunal went on to consider the three instances of sexual assault which the Second Applicant claimed to have suffered. The Tribunal referred to these claims in its Decision Record at paragraphs 27 and 30 when setting out the Applicant’s claims. Those paragraphs are as follows:-
“27. One day, the Applicant was walking down a public and busy street when she noticed a man following her. He pulled up her dress and was forcibly trying to undress her. He said as she was a Christian, she deserved it. She managed to escape and made it home. This happened twice, in January 2013 and March 2013. She had to seek psychiatric help and received tranquillisers.
…
30. On 14 April 2013, the Applicant wife was walking home from Tahrir Square. Two men on motorcycles sped up and assaulted her. They ripped her cross necklace and clothing and grabbed her breast. The men had long beards and were Muslims. They said to her, “let the cross help you infidels.” She escaped and went to a police station. After two hours arguing, an officer agreed to make a report. However, he left out the part of her being assaulted and that she was being followed. She again received psychiatric treatment and her medication had to be intensified.”
The Tribunal said:-
“I have some concerns about the credibility that the applicant wife would so regularly be the subject of attacks in such a short period of time (January, March and April 2013) but I am prepared to accept these incidents occurred as claimed.”
The Tribunal also noted that the Second Applicant’s claims were broadly consistent with country information referred to by the Tribunal in the Decision Record, but indicated that violent incidents against Copts were more prevalent between the period after the January 2011 revolution and the July 2013 military intervention.
The Tribunal went on to find, at paragraph 43 of the Decision Record:-
“Whilst I have accepted that the applicants have been the victim of a number of assaults (including sexual assault of the applicant wife) and verbal insults on the streets of Cairo, I find on the Applicants’ evidence that each of these incidents were committed by different individuals who have not threatened them since and I consider the chance they will again be targeted for harm by these individuals or others is remote. In making this finding, I have taken into account that, since the incidents occurred in late 2012 and in early 2013, a substantial period of time has passed and there has been a change of government in Egypt, with the Muslim Brotherhood removed by the army from power in July 2013, as well as other country information set out below.”
The Tribunal set out, in the Decision Record relevant country information which it took into account as to the situation for Coptic Christians in Egypt. The Tribunal accepted the Applicants were Copts and the Tribunal noted that the Department of Foreign Trade and Affairs (‘DFAT’) had advised that Coptic Christians comprise about 10 per cent of the Egyptian population and number about 8 million. The Tribunal put reports of difficulties for Christians, including those as set out in the agent’s submissions, in this context.
The Tribunal also referred to the UK Border Agency Country Information and Guidance Egypt: Christians policy document of 30 June 2014 and other country information to the effect that the situation for Copts had improved, that attacks against them had ‘subsided’,[1] and that:-
“Although Christians do face personal and collective societal discrimination and repeated instances of sectarian violence, Christians in Egypt are not in general at risk of persecution or ill-treatment.”[2]
[1] Paragraph 48 of the Decision Record.
[2] Paragraph 48 of the Decision Record.
The Tribunal noted that it had given considerable weight to the DFAT country information, because:-
“…it is authoritative, recent and they have been particularly charged with providing this advice to the Australian government.”[3]
[3] Paragraph 50 of the Decision Record
The Tribunal concluded, at paragraphs 51,52 and 53 of the Decision Record, the following:-
“51. The country information above, discussed with the applicants, indicates that there is some low-level discrimination against Coptic Christians as described above, but that, generally, Copts and other Egyptians live side-by-side without difficult. Though the applicants have suffered incidents of significant and serious harm in the past, I note that the applicants, though now retired, have both been well educated and employed professionally for long periods. The country information indicates that, whilst Islamists may have been able to harass Christians during Morsi’s presidency, the Muslim Brotherhood is now out of power. The country information also indicates that an increase in violence against Christians in 2013 was linked to the overthrow of Morsi. I have taken into account that the applicants reside in Heliopolis, a middle class urban area of Cairo, and that the country information indicates that Copts generally are at a low risk of personal harm from sectarian violence in such areas and that most Copts lives peacefully with their Muslim neighbours. I have taken into account the reports referred to by the agent concerning violence against women (including sexual harassment and assault) in Egypt and that DFAT states there exists relatively high level of societal discrimination against all women in Egypt (including within the Coptic community). I have also taken into account information in the recent DFAT report on Egypt as it relates to women. This report notes that sexual harassment is a frequent occurrence across the socio-economic spectrum. It refers to a May 2013 study by UN Women that found that 99.3 per cent of women experienced some form of sexual harassment, whilst 91.5 per cent reported experiencing unwanted physical contact; however, I do not consider that such treatment necessarily amounts to either serious or significant harm. DFAT assessed that the majority of Egyptian women, regardless of their religion, faced persistent societal discrimination and threat of gender-based violence. However, the applicant wife is now retired and was able to have a long professional career and I consider the chance or risk that the level of societal discrimination against her would amount to either serious harm or significant harm to be remote. Furthermore, the country information also indicates that Coptic women are generally able to work and travel unaccompanied in most areas of Egypt. There are some reports of Coptic women being harassed or discriminated against after being identified as Copts (for instance, for not having their hair covered). However, such incidents are more likely to occur in rural and poorer areas, particularly in Upper Egypt, and I note the applicants come from a middle class urban area in Cairo. I have accepted that the applicant wife suffered three incidents of a sexual nature in early 2013, however, these incidents occurred within a short period of time when the Islamists were in power and the applicant wife has not claimed that she was the subject of this type of treatment prior to that.
52. In making these findings, I have taken into account the applicants’ ages and the applicant wife’s physical and psychological vulnerabilities. Whilst there are ongoing incidents against Christians reported, in view of the information above and the number of Christians in Egypt, I do not accept that the applicants face a real chance of serious harm now or in the reasonably foreseeable future in Egypt from Islamists or anyone else because of their religion or their membership of a particular social group (consisting of their family). Considering the country information as a whole and their individual circumstances, I do not accept that the applicant wife faces a real chance of persecution on account of her membership of a particular social group consisting of “female Coptic Christians in Egypt” or “women in Egypt”. Accordingly, I do not accept that they have a well-founded fear of persecution even when their claims are considered cumulatively.
53. Considering their individual circumstances and the country information cumulatively, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Egypt, there is a real risk they will suffer significant harm.”
The Tribunal found the Applicants did not satisfy the criterion set out in ss.36(2)(a) or (aa) of the Act for a protection visa.
Consideration
The Minister submitted that the Court should consider the following issues:-
a)whether the Tribunal engaged in an active intellectual process with the Second Applicant’s claim to fear persecution in the form of sexual harassment and/or sexual assault, including the component integers of the claim;
b)in circumstances where the Tribunal has found that there is not a “real chance” of an Applicant suffering serious or significant harm, whether the Tribunal is, in any event, required to consider how the harm could hypothetically subjectively impact upon the Applicant; and
c)whether the Tribunal was required to consider the question of State toleration or condonation of sexual harassment and gender based violence. If so, whether the Tribunal did consider that issue.
The Applicants submitted that the “cumulative ongoing significant harassment and discrimination” that the Second Applicant would face if she were required to return to Egypt would cause her serious or significant harm. The Applicants argued the claim was not one that had to be identified by the Tribunal. Rather, it was expressly, clearly and cogently put before the Tribunal by the Applicants themselves. The Applicants argued that the Tribunal, in properly considering the Second Applicant’s claim, was required to give consideration to each of the following matters:-
a)the incidence of sexual harassment and gender based violence in Egypt;
b)whether gender based violence and sexual harassment are officially tolerated or condoned by the Egyptian State in the sense discussed in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 at paragraph [30] and SYAZT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857, at paragraph [44].
c)the Second Applicant’s history of sexual assault and the effect that history had on the Second Applicant’s medical condition;
d)the likelihood that the Second Applicant would experience further incidents of sexual assault and/or sexual harassment if she were required to return to Egypt; and
e)whether in light of the Second Applicant’s medical condition further incidents of sexual assault or sexual harassment would constitute serious or significant harm to the Second Applicant.
The Applicants submitted the Tribunal failed to give consideration to the above matters. The Applicants argued that the Tribunal’s statement that it had “taken into account … the Applicant wife’s physical and psychological vulnerabilities” was not sufficient to discharge its statutory obligation to consider whether those “physical and psychological vulnerabilities” were such that exposure to Egypt’s pervasive sexual harassment and gender based violence would create a real risk (or a real chance) of serious or significant harm to the Second Applicant.
The Court in considering these matters notes the observation of Perry J in SZSZW & The Minister for Immigration and Border Protection (2015) FCA 562 at [17] wherein Her Honour said of the requirement to consider a claim made by an Applicant that it involved “the application of an active intellectual process”. It is a matter for the Court to determine whether the Tribunal, in fact, applied an active intellectual process to the claims made by the Second Applicant. In doing so, the Tribunal’s reasons should be read fairly and not with a fine appellate tooth-comb.[4]
[4] The Minister for Immigration and Ethnic Affairs & Wu Shan Liang [1996] HCA 6,291 per Kirby J
The Court is satisfied that the Tribunal did properly engage in this process. It considered the claims and components of claims of the Applicants, together with relevant country information, and set out that consideration in the Decision Record. The Tribunal clearly demonstrated an awareness and acceptance of the Second Applicant’s claim that sexual harassment, assault and violence against women was pervasive in Egypt and tolerated by the authorities.
Furthermore, the Tribunal accepted that the Second Applicant had been the victim of sexual harassment and sexual assault on three occasions as claimed, and the Tribunal, as detailed in its Decision Record, made express reference to the Second Applicant’s psychological condition, including in connection to her claims of sexual harassment and assault. The Tribunal considered the material put before it as to the Second Applicant’s past experiences of assault, and their impact upon her psychological condition, as set out in the reports which the Tribunal noted were before it.
The Tribunal considered carefully the claims as made by the Applicants, considered relevant country information which it discussed with the Applicants, and made findings open to it on the basis of the evidence before it.
The Tribunal did not accept that the Second Applicant faced a real chance of serious harm and, on that basis, did not accept that the Second Applicant had an objectively well-founded fear of harm. In Chan Yee Kin & Minister for Immigration and Ethnic Affairs [1989] HCA 62, Mason CJ at 389 observed that:-
“… I agree with the conclusion reached by McHugh J that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution.”
As submitted by counsel for the First Respondent, where the Tribunal is not satisfied objectively speaking that there is a real chance of persecution, it is not required to further consider an Applicant’s subjective fears. As Kenny J explained in NZWY & The Minister for Immigration and Multicultural Affairs [2006] FCA 506 at [14]:-
“This is because without a sufficient objective chance of persecution the Applicant cannot have a well-founded fear of persecution.”
Whilst there was no need for the Tribunal to consider how any future attacks would impact upon the Second Applicant’s psychological wellbeing because the Tribunal had found there was no real chance of any such acts occurring, the Tribunal nevertheless did consider the subjective aspects of the Second Applicant’s fears, as referred to in the passages cited from the Decision Record in paragraph 19 above.
As set out in paragraph 51 of the Decision Record, the Tribunal found that the sexual harassment that is a frequent occurrence across Egypt did not amount to “either serious or significant harm”, noting amount other things that “Coptic women are generally able to work and travel unaccompanied in most areas of Egypt… ”. In that circumstance, the Minister submits that the Tribunal was not required to expressly consider the question of whether the State tolerated or condoned sexual harassment or assault because the question of State toleration or condonation only arose where the harm inflicted by private citizens constituted “serious harm”. The Court accepts this submission.
The Court concludes that the application should be dismissed with costs. The Tribunal did engage in an act of intellectual process with the Second Applicant’s claims in relation to her fear of being sexually harassed and/or assaulted and concluded that the Second Applicant did not face a real chance of being harmed. There was no obligation on the Tribunal to thereafter consider how any such harm may subjectively impact upon the Second Applicant nor whether the State tolerated or condoned sexual harassment and/or assault, although, in fact, the Tribunal did consider those issues, as set out in the Decision Record. No jurisdictional error attends the decision of the Tribunal.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 23 August 2017
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