AXA15 v Minister for Immigration
[2016] FCCA 2794
•2 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXA15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2794 |
| Catchwords: MIGRATION – Visa – protection visa – whether Tribunal erred in not considering integral part of applicants’ claim – ‘real chance’ test – ‘well-founded fear of persecution’ – ‘effective state protection’ – error demonstrated. |
| Legislation: Migration Act 1958 (Cth), ss.5A, 5J, 5J(5), 5LA, 36(2)(a), (aa), (b) & (c) and 91R |
| Cases cited: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 |
| First Applicant: | AXA15 |
| Second Applicant: | AXB15 |
| Third Applicant: | AXC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 193 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 16 May 2016 |
| Date of Last Submission: | 16 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 2 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr R Gray |
| Solicitors for the Applicant: | Camatta Lempens |
| Counsel for the Respondents: | Mr K Tredrea |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That there be an order in the nature of certiorari that the decision of the Refugee Review Tribunal (as it then was) dated 4 May 2015 affirming the decision of the delegate of the first respondent dated 9 May 2014 rejecting the first applicant’s application for a Protection (Class XA) visa is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal, differently constituted, review according to law the decision of the delegate of the first respondent dated 9 May 2014 rejecting the first applicant’s application for a Protection (Class XA) visa.
The first respondent do pay the first applicant’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 193 of 2015
| AXA15 |
First Applicant
| AXB15 |
Second Applicant
| AXC15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision made by the Refugee Review Tribunal (as it then was) (‘the Tribunal’) on 4 May 2015. That decision affirmed an earlier decision made by a delegate of the Minister not to grant the first applicant a protection visa.
The applicants lodged this Application on 1 June 2015. The Application set out 7 grounds. I gave leave for the applicant to file an Amended Application on 25 February 2016. That Amended Application abandons the initial 7 grounds and raises the following grounds:
“8.The Tribunal misconstrued the nature of the task required on the judicial review application and failed to consider the case advanced by the applicant, in particular:
8.1The Tribunal failed to appreciate the nature of the applicant’s claims which were either specifically advanced or which were implicit in the arguments advanced for the applicant or which clearly emerged on the material before the Tribunal.
9.The Tribunal fell into jurisdictional error by failing to deal with or properly understand claims which arose on the material before the Tribunal in a way which required the Tribunal to deal with them. In particular:
9.1The Tribunal at [61], [67] to [69] failed to deal with and consider all of the applicant’s claims which clearly emerged on the submissions or evidence the Tribunal accepted including the evidence accepted by the Tribunal at [31] and [42].
9.2The Tribunal failed at paragraphs [69] to [73] to consider and determine in accordance with law the applicant’s claim that he had a well-founded fear of persecution if he was returned to Egypt by reference to the evidence which the Tribunal accepted, including the evidence accepted by the Tribunal at [31] and [42].
9.3The Tribunal failed to identify and apply the correct legal test in relation to the determination of this issue, and failed to consider and apply the definitions contained in section 5J to the facts as found.
9.4By reason of the matters articulated in 2 and 2.1 to 2.3 above the Tribunal failed, to comply with the logical framework imposed by the Refugees Convention or the relevant statutory provisions, and to engage in logically probative reasoning.”
The first applicant relies on his affidavit of 1 June 2015, together with the materials in the Court Book filed by the first respondent. The first respondent relies on the materials in that Court Book.
Background and summary of claims
The first applicant is an Egyptian citizen and lodged an application for a protection visa on 8 August 2013. He had arrived in this country on 14 June 2013 on a visitor’s visa. The second and third applicants are the wife and child of the first applicant. Their claims are dependent upon his, pursuant to s.36(2)(b) & (c) of the Migration Act 1958 (Cth) (‘the Act’).
The first applicant is a Coptic Orthodox Christian. He claims to fear persecution on the basis of his religion. He claimed to be a Deacon for the Church, a role that involved him in pastoral duties. He claims the second applicant was also actively engaged with the activities of the Church.[1] In a Statutory Declaration submitted in support of his visa application, he detailed a number of separate episodes and their consequences, which he said supported his claim. He claimed that he had been arrested in January 2013 and questioned by security forces because he had been involved with assisting a girl called ‘Mona’ to convert to Christianity from Islam. He claimed that he had been detained overnight, during which period he was interrogated, beaten and then released the following day.
[1] Court Book (‘CB’) p 80.
A few days after this first incident, someone attempted to steal his car and he received a threatening phone call shortly after that incident. The caller told him that he had escaped “this time” but the next time it would be him or his wife.[2] Then on 4 March 2013, the applicant claimed to have been involved in a traffic incident in which his car was rammed by another vehicle. He stated that the vehicle reversed into his car and continued to hit it.[3] The driver of the other vehicle threatened him, he said, calling him an infidel and stating that they would not let him go.[4] A traffic controller at the scene took the registration number of the other vehicle. The applicant says that he attended at a police station and completed a report, but that the policeman on the scene did not put in his report that the incident had been a deliberate attack.[5] As a result of this incident, he claimed that he and his wife took a vacation for a period of a week in order to get away from things.
[2] CB p 81.
[3] CB p 82 at [20].
[4] Ibid.
[5] CB p 82 at [21].
On his return, he claimed on 26 March 2013, he was on a bus at night time when the driver accused him of being a person who encouraged Muslims to convert to Christianity. There were only two other passengers, and one of them threatened him with a knife.[6] The applicant claimed that the bus driver pulled over and he was beaten by the driver and the two other passengers. They questioned him about Mona and asked her whereabouts. They also asked him about other women. He claimed that they took his wallet, phone and a gold cross on a chain. He was eventually assisted by some men in a passing car. He claimed that when he went to a police station, they refused to make a report of the incident. Ultimately, he found a police station prepared to help him. He claimed that the report taken from him at that station did not accurately represent the incident.[7] They would not allow him to correct that report. As a result of this incident, he claimed that he moved to an apartment in El-Asher. He stayed there with his wife for three months. During that period of time, he had to take extended leave from work.[8] He claimed that about this time, a friend[9] who was a Deacon in the Coptic Church, was murdered by either Salafists or the Muslim Brotherhood, when he tried to prevent them from burning down a Church. This friend was a person with whom he said he had been involved in pastoral care.
[6] CB p 82 at [23].
[7] CB pp 82-83.
[8] CB p 83 at [27].
[9] Given that this is a protection visa matter, out of an abundance of caution, I will not refer to the friend by name in case it tends to identify the applicants.
He claimed that he attended at the funeral of his friend on 7 April 2013. Muslim extremists also attended at the funeral and a fight broke out between them and the congregation. He claimed to have been beaten by a Muslim extremist and handed over to the police.[10] The first applicant claimed that he was taken by police to a national security forces building, interviewed, and accused of insulting religion. He claimed that he was then beaten and left in a cell for two days. As a result of that incident, he claimed to have received a summons.[11] After he was released, he claimed that police attended at his parent’s house with a summons for him. His parents warned him of this by telephone, and for that reason, he booked tickets to Australia.[12]
[10] CB p 83 at [30].
[11] CB p 83.
[12] CB p 84.
In summary, he claimed that if he were required to return to Egypt, he feared that security forces would arrest him on charges of insulting religion. He did not believe that he would be safe from persecution from the Muslim Brotherhood, and that it would be very easy for Muslim extremists to either kill or kidnap him or his wife.[13] He claimed that police were against Christians and that the Egyptian authorities would be unable to protect him.
[13] CB p 84.
Because of the turmoil Egypt was in at the time he made his application, he claimed that he would not be able relocate safely to another area of Egypt.
Tribunal decision
A delegate of the Minister refused the first applicant a visa on 9 May 2014. The applicants applied for review of that decision on 26 May 2014. The Tribunal heard the application on 23 April 2015. The first applicant gave evidence on that occasion. The Tribunal also heard evidence from his uncle. The structure of the Decision Record makes the Tribunal reasons difficult to follow at times. With respect to some topics it is difficult to discern exactly what findings the Tribunal made.
The Tribunal identified the issue as follows:
“The issue in this case is that the applicants fear harm from Muslim extremists and also due to the applicant husband claiming to be subject to a charge of ‘insulting Islam’.”
The Tribunal found that it was not satisfied that the first applicant was of any ongoing interest to anyone in Egypt as a result of his encounters with Mona.[14] It found that it was possible that the first applicant had been subjected to “limited telephone threats” because of his pastoral care work in Cairo, but concluded that he must have been unconcerned about that because he had stayed living in Cairo.[15] With respect to the incident where the first applicant’s car had been rammed, the Tribunal found that it was not satisfied that this had occurred because of his limited involvement with Mona, finding instead that it was a mere traffic accident. It found that if he had been called an “infidel” that this was a comment that was made in the heat of the moment.[16]
[14] CB p 407 at [12].
[15] CB p 407 at [13].
[16] CB p 407 at [15].
At paragraph 17 of the Decision Record, the Tribunal member summarised his material findings. That summary included that the Tribunal accepted the first applicant had been detained for one day on 4 January 2013; it accepted that an attempt to steal his car was made on 8 January 2013; it accepted that he may have received limited telephone threats after that incident; it accepted that the first applicant was involved in a traffic accident on 4 March 2013; it accepted that he was assaulted on a bus on 26 March 2013; and it accepted that he was detained after a fight at a funeral on 7 April 2013.
The Decision Record then proceeded to consider the claims in more detail. With respect to the first applicant’s work for the Coptic Church, the Tribunal accepted that he engaged in pastoral care work. It further accepted that as part of his pastoral care work, he was involved in speaking with women who wanted to re-convert to Coptic Christianity.[17] It was not satisfied that the first applicant had a subjective fear of a real chance of persecution prior to early 2013.[18] The Tribunal was not satisfied that the first applicant preached to Muslims in Egypt.[19]
[17] CB p 410 at [22].
[18] CB p 410 at [23].
[19] CB p 410 at [25].
The Tribunal accepted that the Muslim Brotherhood may continue to be allowed to operate in Egypt, but it did not accept that ordinary Muslims felt that they could act with impunity.[20] On the basis of the country information, the Tribunal was not satisfied that Coptic Christians generally, or that persons engaged in low level pastoral work, had a real chance of suffering harm or persecution for that reason in the reasonably foreseeable future. The Tribunal noted that the country information suggested that “substantial improvement” had taken place.[21]
[20] CB p 411 at [26].
[21] CB p 411 at [28].
The Tribunal accepted that the applicant was detained and abused by Islamists before the removal of President Morsi in July 2013. Having noted that substantial improvement had taken place, the Tribunal observed:
“This is not to suggest the applicant’s may never suffer Refugee Convention harm in Egypt”.[22]
[22] CB p 411 at [28].
Having made the above observation, the Tribunal then referred to the judgment of the High Court in the Minister for Immigration and Multicultural Affairs v Respondents S152/2003[23] where three members of the bench observed that no country could guarantee that its citizens would at all times and in all circumstances be safe from violence. The Tribunal then went on to say:
“Given the claims that I have accepted and the country information considered, I am not satisfied the applicants have a real chance of suffering harm amounting to persecution for any Refugees Convention reason in the reasonably foreseeable future should they return to Egypt. This is because I am not satisfied the low level pastoral work in which they engaged, for the Coptic Christian Church in Cairo, gives rise to a real chance of persecution in Cairo.”[24]
[23] (2004) 222 CLR 1.
[24] CB p 411 at [29].
The Tribunal then proceeded to analyse and consider the various critical incidents which were at the heart of the first applicant’s claims.
With respect to the incident on 4 January 2013, the Tribunal set out in some detail the claims of the first applicant of having been taken from his house. The Tribunal then indicated that it accepted the first applicant was detained on 4 January “for the reasons he claimed”.[25] It appears that the Tribunal accepted the first applicant had been taken from his home in the early hours of the morning to a National Security Forces Building, his belongings were taken from him, he was questioned about his pastoral activities and asked about girls he had assisted, in particular Mona. It appears to have accepted that he was accused of helping her to convert from Islam to Christianity. I am not satisfied that the Tribunal found that he was beaten twice and forced to sign a piece of paper which he was warned might be used against him in the future. This is because of the finding in paragraph 35 of its reasons that it did not accept that he was important enough to have been subsequently harmed in Cairo. That observation seems most likely to be a reference to the harm claimed during the detention on 4 January 2013. That appears to me to be a straight forward and fair reading of the Tribunal’s indication that it accepted he had been detained on that date “for the reasons he claimed” when read in the whole context of that section of the Decision Record.
[25] CB p 412 at [31].
The Tribunal then proceeded to “reject most of the material claims about Mona as false”.[26] The Tribunal stated that it did not accept that the first applicant’s limited involvement with Mona would cause him to be of serious (if any) adverse concern. It made that finding in the context of a paragraph of its reasons in which it dealt with the background details of Mona’s claimed path to re-conversion. This is in spite of its finding several paragraphs earlier, accepting that he had been detained “for the reasons he claimed”. The Tribunal rejected the contention that the first applicant was of adverse interest because only he could tell those who were seeking Mona where she was. The Tribunal then said, “Even if the applicant husband did speak to a female named Mona, and even though I accept he was asked about Mona when detained on 4 January 2013, I do not accept he was sufficiently important to have been subsequently harmed for this reason in Cairo, as he claimed.”[27] (emphasis added) This sentence appears in the same paragraph where the Tribunal apparently accepted that the first applicant had met Mona “several times”. The paragraph concludes with the following finding, “I do not accept his limited involvement would have given rise to any ongoing adverse attention of him”.[28]
[26] CB p 413 at [35].
[27] CB p 413 at [35].
[28] CB p 413 at [35].
In the next paragraph, the Tribunal then indicates that it was not satisfied that the first applicant would have a real chance of persecution for the above reasons should he return to Egypt.
In dealing with the incident on 26 March on the bus, the Tribunal noted the claims of the applicant with respect to that incident.[29] The Tribunal indicated that it rejected that he was involved with converting Muslims to Christianity but it accepted that he worked with women who had converted to Islam and who wished to re-convert to Christianity.[30] This appears to be a fine distinction, but in any event, it was not satisfied that this activity was sufficiently significant for him to have gained notoriety throughout Cairo.[31] For that reason, the Tribunal found that if in fact the applicant had been accused by the bus driver of converting Muslims to Christianity, it was because he was recognised for his pastoral care work.[32] The Tribunal was not satisfied that the people on the bus mentioned Mona. It concluded that the attack on the bus took place at a time when Muslims believed they could attack Christians with impunity.[33] In the next paragraph, the Tribunal concluded, “if the attack occurred, and as stated above, then I am satisfied it was because some Muslims believed they could act with a degree of impunity at the time …”[34] (emphasis added) The Tribunal appears to have reached the conclusion that it doubted whether the bus incident occurred but being positively satisfied about the reason for it occurring and the motives of the attackers if it did. Once again, the Tribunal then referred to the previous exact from the decision of S152/2003 that I have mentioned above.
[29] CB p 414 at [37].
[30] CB p 414 at [40].
[31] Ibid.
[32] Ibid.
[33] CB p 415 at [40].
[34] CB p 415 at [41].
The Tribunal’s analysis of the bus incident concludes with a finding that the country information it had considered did not satisfy it that there was a real chance that the first applicant would again be subject to serious harm because of his pastoral care work should he return to Cairo.[35]
[35] CB p 415 at [42].
The highly qualified nature of the findings with respect to the bus incident appear to be inconsistent with the summary of findings at paragraph 17, where the Tribunal indicated “the Tribunal accepts the applicant husband was assaulted on a bus on the 26th March 2013”.[36]
[36] CB p 408 at [17].
With respect to the funeral incident on 7 April 2013, the Tribunal accepted that the first applicant was involved in a fight at a funeral on that date. It does not make any finding as to whose funeral it was. The applicant claims that he knew the person who he claimed had been murdered well because he had worked alongside him in pastoral care work. The Tribunal specifically accepted that the first applicant had been detained after a fight at a funeral.[37] No specific finding was made as to whether the applicant was caught by Muslim extremists, beaten and given to police by the Muslim extremists. It appears implicit in the reasons that the Tribunal accepted the matters claimed by the first applicant with respect to what occurred at the funeral and after his arrest as summarised by it at paragraph 44 of the Decision Record. Those matters were so pivotal to his version of events, I would expect the Tribunal to have specifically dealt with them if they were not accepted. The Tribunal did not accept that the first applicant was subject to a defamation of religion charge as claimed.[38] However, it does not appear to make any finding rejecting the claim by the first applicant that he was accused by the authorities, whilst in custody, of having insulted religion.
[37] CB p 416 at [45].
[38] CB p 416 at [45].
With respect to that part of the first applicant’s claims that detailed what occurred after he had been released by the authorities on that occasion, and the circumstances of a summons apparently being delivered to his father’s home, the Tribunal concluded, having considered what it regarded as his delay in leaving the country, “Again, this does not appear plausible if the claims are true”.[39] In other words, in my view, a fair reading of the Tribunal’s conclusions on this incident, is that the delay in leaving the country suggested that it was implausible that persons had attended at his father’s house seeking to serve a summons on him for the reason claimed. I do not read that finding as to implausibility to extend to the claims made by the first applicant about what had occurred when he was detained on 7 April 2013 or the events immediately prior to that detention.
[39] CB p 418 at [48].
In summarising the country information it considered, the Tribunal repeated that none of the country information had satisfied it that all Coptic Christians may be persecuted in Egypt. Whilst attacks against Coptic Christians may continue to occur “as stated herein, the High Court has said that no country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence”.[40] The Tribunal accepted that the applicant had continued his pastoral care work in Australia.[41] This did not alter the Tribunal’s view because on the basis of country information, it was not satisfied that Coptic Christians or low level pastoral care workers had a real chance of suffering harm in the reasonably foreseeable future.[42]
[40] CB p 420 at [56].
[41] CB p 420 at [57].
[42] CB p 421 at [59]
The Tribunal completed its consideration by stating that given the claims it had accepted and the country information considered, it was not satisfied that the first applicant had a real chance of suffering serious harm for any Refugees Convention reason in the reasonably foreseeable future should he return to Egypt.[43]
[43] CB p 421 at [60].
The Tribunal rejected complimentary protection claims pursuant to s.36(2)(aa) of the Act. It concluded that the applicant did not meet the refugee criterion in s.36(2)(a) of the Act. For those reasons, it affirmed the decision of the delegate not to grant the applicant a protection visa.
Submissions
I will summarise both the written and oral submissions of counsel.
Applicants’ submissions
Dr Gray for the applicants, submitted with respect to ground 8 of the Amended Application, that the Tribunal fell into jurisdictional error by failing to consider the case advanced by the first applicant. It was necessary, she submitted, to closely consider the factual findings made by the Tribunal with respect to both the first applicant’s circumstances and the country information, in order to appreciate the nature of the error. As a starting point, counsel submitted that a significant amount of the first applicant’s claims and evidence had been accepted by the Tribunal. The problem with the approach it took was that it ultimately determined the matter by reference to the evidence it rejected, rather than the evidence it accepted. It was required to consider whether there was a well-founded fear of persecution by reference to the evidence it accepted. This amounted to a failure to consider the case that emerged on submissions and amounted to a jurisdictional error.
Counsel illustrated this point with respect to each of the critical episodes.
The nub of her submission was that the Tribunal considered and determined the applicant’s claim by reference only to the issues it identified at the beginning of its reasons at paragraph 7, namely a fear of persecution because of a fear of harm at the hands of Muslim extremists and because of the charge of insulting religion. Having rejected the claim of insulting Islam, the Tribunal appeared to have in effect, regarded that matter as dispositive of his claims, rather than properly taking stock of the evidence it accepted and giving consideration to his claims. There was nothing in the reasons of the Tribunal to suggest that it considered and evaluated the evidence it accepted. In particular, Dr Gray submitted, given the acceptance by the Tribunal that he had been engaged in pastoral care work in Cairo and upper Egypt, it was required to consider what his behaviour would be if he returned to Egypt. Namely, whether he would continue pastoral care work and whether he would continue to counsel women seeking to re-engage with the church after having converted to Islam. It did not consider the likelihood of him suffering harm if he did so. This was a matter that it had to consider because it was raised on the evidence it accepted.[44] This was raised squarely on the case before it because the most reliable predictor of what was likely to occur in the future was what had happened in the past.[45] It was submitted that the country information accepted by the Tribunal did not obviate the need for it to consider the specific circumstances of the applicant on the evidence it accepted. In failing to do so, the Tribunal failed to have regard to relevant considerations and committed a jurisdictional error of the type identified in Yusuf’s[46] case. This error caused it to fail to make a finding integral to his claim.
[44] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at [58].
[45] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
[46] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
With respect to ground 9, it was submitted for the applicants that having accepted the matters it did, the Tribunal did not address why this did not amount to a well-founded fear of persecution given that it accepted matters within the non-exhaustive definition provided in s.5J(5) of the Act. The Tribunal failed to correctly articulate and apply the real chance test. In quoting selectively from S152/2003 (supra), the Tribunal member overlooked the following passage from the judgment of McHugh J:
“If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well‑founded[47] irrespective of whether law enforcement systems do or do not operate within the State. In Haji Ibrahim, all members of this Court recognised[48] that persons may be persecuted for a Convention reason although the State is unable to protect them because a civil war is raging in the country. No different view should be taken where in peace-time a State is unable to protect its citizens from harm inflicted for a Convention reason. As Gleeson CJ pointed out in Haji Ibrahim[49], “[p]ersecution and disorder are not mutually exclusive”. In the same case, Gaudron J said that persecution may exist for the purpose of the Convention “whether or not the conduct occurs in the course of a civil war, during general civil unrest or ... [where] it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution”.[50]
[47] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407 & 429.
[48] Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at p 5 at [7], p 7 at [18], p 24 at [73], pp 51-53 at [145]-[150], pp 65-66 at [185]-[188], pp 73-74 at [205]-[208] & p 80 at [227].
[49] Ibid at p 5 at [7].
[50] Ibid at p 7 at [18].
The error of the Tribunal was that it reasoned that simply because no country could guarantee that all of its citizens would be safe at all times and in all circumstances, this equated to there not being a real chance of persecution of the first applicant in the foreseeable future. It erred by elevating the dicta in S152/2003 to the status of the test to be applied. Dr Gray submitted that the first applicant had to satisfy the Tribunal that there was a real chance that he would suffer persecution in the future. The rejection that the first applicant had satisfied the ‘real chance’ was, it submitted, inconsistent with its own findings that the Muslim Brotherhood continued to operate in Egypt and that the government was unlikely to have the capacity or interest to effectively prosecute them.[51]
[51] CB p 411 at [26].
It was submitted that there was a further failure to apply the test with respect to effective protection measures. She submitted that the Tribunal did not consider the test set out in s.5LA in light of a consideration of the criteria set out in s.5J of the Act or at all. Dr Gray submitted that because the Muslim Brotherhood is a non-state actor, the first applicant could be found to be a refugee if the state is unwilling or unable to provide protection. Accordingly, it was submitted, the Tribunal failed to consider the first applicant’s claim that the state withheld effective protection from Coptic Christians. This occurred, she submitted, because of the joint failure to apply the correct test and to apply logically probative reasoning. It was submitted that there was no rational connection between the matters the Tribunal accepted and the rejection of his claim to having a well-founded fear of persecution. The Tribunal did not, having considered the country information, make a finding that the conditions had improved for Coptic Christians to the extent that should the first applicant be returned, he would not be subjected to harm. It was submitted that a lack of evidence of a deterioration in the situation in Egypt of Coptic Christians was not probative of the absence of a well-founded fear of persecution.
Dr Gray submitted that the irrationality in the Tribunal’s reasoning could be seen in the pathway of reasoning illustrated in paragraphs 56 – 58 of the Decision Record. The Tribunal relied upon relevant country information to find that the situation had not deteriorated. Critically however, the Tribunal did not make any finding that the situation had improved to such an extent that incidents of the kind the applicant had previously experienced in Egypt would not occur if he returned and conducted himself in the same manner as he had previously. It was submitted that it was not logically probative for the Tribunal to find that the first applicant did not have a well-founded fear of persecution simply because the situation for Coptic Christians in Egypt had not deteriorated since July 2013. It was integral to the first applicant’s claims that, as the Tribunal accepted, the applicant had in the past suffered harm because of his pastoral care work with the Coptic Church. Implicit in the findings of the Tribunal was that he would continue to engage in activities of the same nature that had caused him to suffer that harm. The first applicant had claimed that the state would not protect him from future harm of that kind. The applicant’s specific claims in this regard were not an integral part of the Tribunal’s reasoning. This amounted to jurisdictional error on the basis of a failure to properly apply the law and a failure to comply with the framework imposed by the Migration Act, as well as a failure to engage in logically probative reasoning.
Dr Gray submitted that it was no answer to say that the situation in Egypt had improved. What was relevant was whether it could find that the situation had improved for this person. In reality, on the findings made, for this man, persecution was likely to continue in the future. It was submitted that the first applicant was not seeking to have different factual findings made as to the country information. The error occurred in the failure of the Tribunal to consider what it accepted and then failing to apply the appropriate test as to a real chance.
First respondent’s submissions
Mr Tredrea, for the first respondent, submitted that it is apparent from the reasons of the Tribunal, that the first applicant failed in part because of the changed circumstances in Egypt after the fall of the Morsi government in July 2013. He submitted that a fair reading of the Tribunal’s decision showed that it had not failed to deal with or understand any of the applicant’s claims, but rather it considered those claims in light of the circumstances in Egypt as they existed at the time of the decision, and on the basis of country information determined that the first applicant could not establish a ‘real chance of persecution’ in light of the claims that he had made.
Mr Tredrea submitted that with respect to Coptic Christians generally, the Tribunal placed considerable weight on country information that suggested that governmental tolerance of the abuse of non-Muslims had diminished. It was a matter for the Tribunal as to what country information it regarded as relevant. Counsel referred me to the decision of NAHI[52] where the Federal Court held that the weight to be given to such information is a matter for the Tribunal as part of its fact finding function.[53] It was open to the Tribunal to use country information to assess the credibility of a claim of well-founded fear of persecution, which is exactly what it did in this case.
[52] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
[53] Ibid at [11].
Mr Tredrea submitted that with respect to the incident on 4 January 2013, the Tribunal only accepted that the applicant was arrested and detained, questioned and asked about girls he assisted, including Mona, and not that he had been beaten after having been accused of helping convert Mona from Islam. The acceptance of having been detained “for the reasons he claimed”[54] did not encompass the beating or accusation about re-conversion. It was necessary, he submitted, to look at the findings in paragraph 35 of the Decision Record, and in particular, the sentence:
“Even if the applicant husband did speak to a female named Mona, and even though I accept he was asked about Mona when detained on 4 January 2013, I do not accept he was sufficiently important to have been subsequently harmed for this reason in Cairo, as he claimed.”
[54] CB p 412 at [31].
The words “subsequently harmed in Cairo” are a reference, Mr Tredrea submitted, to the beatings and the accusation of helping re-convert Mona. As I have indicated earlier in these reasons, I accept that submission to the extent it relates to the beatings.
With respect to the incident at the funeral, Mr Tredrea submitted that there was no finding in relation to whether the first applicant had been beaten by the authorities after he was detained. He submitted that it accepted his account of events up to the point of detention, but it accepts his claims after the point at which he claimed that his belongings were taken from him. For the reasons that I have already indicated, I do not accept this analysis and find that the findings of the Tribunal fairly read are as I have summarised at paragraph 26 of these reasons.
It was accepted by the first respondent that a central aspect of the first applicant’s claim was the fear he held from non-state persons, such as the Muslim Brotherhood.
The first respondent referred the Court to the decisions in S152/2003[55] and Horvath.[56]It was submitted that whilst it was established that a state has an obligation to provide adequate laws and policing capable of providing an acceptable international standard of protection, Australian and international courts have recognised that this did not amount to an ‘absolute guarantee’ of protection. Reasonable measures were required, but such measures could not be expected to protect against ‘individual and random’ occurrences of harm. It was in this context that the references by the Tribunal to the quote from S152/2003 should be understood. An analysis of the effectiveness of state protection may require a consideration of how a state operates at the local level. It was accepted by the first respondent, as established by the authorities, that if a state condones, approves, tolerates, or is indifferent to the harm caused, or is unwilling or unable to provide protection against it, then the need for a Convention ground can be met by the actions and motivations of non-state actors.[57]
[55] Op cit at [27] & [119].
[56] Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at pp 510-511.
[57] Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [29]-[31].
It was submitted that the Tribunal did properly consider all of these factors when dealing with the ongoing presence of the Muslim Brotherhood. Counsel submitted that a fair reading of paragraphs 54 to 61 of the Decision Record established this.
Counsel submitted that as the Tribunal relied on country information that said the situation for Coptic Christians in Egypt had improved[58] it could not be plausibly asserted that its reasoning lacked a logically probative basis. Mr Tredrea referred the Court to the following passage from the Minister for immigration and Border Protection v WZAPN[59]:
“It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the Convention and s 91R of the Act are concerned to provide asylum. Both the Convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.”[60]
[58] CB p 411 at [26] and p 421 at [58].
[59] (2015) 254 CLR 610 at [71].
[60] Noting s.91R has now been repealed and its former provisions now restated (in effect) in s.5J of the Migration Act, to which the applicant refers.
Counsel submitted that the reasons of the Tribunal at paragraphs 28 and 29 of the Decision Record show that the Tribunal had properly applied the correct legal principles to the specific circumstances of the first applicant.
Mr Tredrea submitted that the Tribunal had made no error in its approach to the question of a well-founded fear of persecution and ‘serious harm’.
Consideration
Where a person is outside his or her country of nationality and owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country, the person is a refugee.[61] Pursuant to s.5J of the Act, the person will have a well-founded fear of persecution if:
“(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
[61] Section 5H of the Migration Act 1958 (Cth).
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(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.
(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.”[62]
[62] Section 5J of the Migration Act.
The question of whether a person has a well-founded fear of persecution is subjective as to the genuine fear held and objective as to the basis for the fear. In considering the meaning of a ‘well-founded fear of persecution’ the High Court has held:
“Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.
The term “persecuted” is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes “being persecuted”. The notion of persecution involves selective harassment.”[63]
[63] Chan op cit at p 429.
The objective aspect has to be determined by reference to an applicant’s circumstances and life history and if relevant, a reference to independent information such as country information. The assessment of whether a ‘real chance’ exists is not to be reduced to a mathematical formula, or by reference to the balance of probabilities. The question to be asked is if the risk is a substantial possibility. As the High Court has explained, the process to be undertaken requires an estimation of likelihood and for practical purposes, that requires findings as to what has occurred in the past, because that is likely to be the most reliable indicator of what will occur in the future.[64]
[64] Guo op cit at 575.
In this matter, I am concerned that the Tribunal failed to properly consider the findings that I have found it made against the terms of ss.5J and 5LA of the Act. I accept the argument of Dr Gray that having rejected the claim that the first applicant was subject to a charge of insulting Islam, or defamation of religion, it appears to have regarded that as dispositive of the claim for the protection visa. In doing so, it failed to consider whether those aspects of the claims it accepted did give rise to a well-founded fear of persecution in the first applicant’s circumstances, and failed to engage in a proper assessment of the likelihood of persecution in the future in the manner described in Guo’s case. Having made positive findings, it failed to evaluate whether effective protection measures, as defined in s.5LA of the Act, were available. The Tribunal did of course refer to country information relating to conditions in Egypt since the fall of the Morsi Government. But the Decision Record suggests that having found that conditions in Egypt had “improved” (to an unknown extent), and that ordinary Muslims no longer felt they could act with impunity, it applied to that finding the dicta referred to from S152/2003 as determinative of the ‘real chance test’. As Dr Gray submitted, this did not address the implications for the applicants of its own findings as to the likelihood of the Muslim Brotherhood continuing to conduct itself in a way that discriminated against non-Muslims.
Clearly the Tribunal referred to the test of whether there was a ‘real chance’ on a number of occasions in its reasons. I acknowledge that in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang[65] courts were warned against engaging in an overzealous examination of Tribunal reasons with a view to actively seeking out errors. I should not be concerned with mere looseness of language or unhappy phrasing.[66]
[65] (1996) 185 CLR 259.
[66] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, referred to by the High Court in Wu Shan Liang.
I am satisfied that this case involved more than looseness of language. The findings by the Tribunal on the country information amounted to a general proposition that conditions had improved for Coptic Christians and that low level pastoral workers were unlikely to come to adverse attention. A consideration was required of how that finding impacted on the specific circumstances of the first applicant in light of the findings it made. I am not satisfied that the use of the phrase “low level pastoral worker” with respect to the first applicant did that. Given the findings made, the Tribunal was required to consider whether the first applicant would be persecuted in the future if he continued his pastoral work in the manner he had in the past. In other words, what was the likelihood of persecution in the future by non-state actors such as the Muslim Brotherhood if he continued inter alia to engage with women who sought to re-convert from Islam to Christianity.
I am satisfied that the Tribunal failed to make findings on an integral part of the first applicant’s claims, at least in so far as it related to his likely future conduct. I am satisfied that the Tribunal failed to apply the correct legal test with respect to a well-founded fear of persecution and whether there was a real chance that the first applicant would suffer persecution in the future. This occurred because it did not consider those matters in light of the evidence it accepted. This led to the failure to properly consider the question of effective protection measures. I am satisfied that these errors amounted to jurisdictional error. Accordingly, I find that the applicants have established jurisdictional error as contended in grounds 8 and 9 of the Review Application and I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 2 November 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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