CRP16 v Minister for Immigration

[2017] FCCA 2957

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2957

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to address the reasons for why the applicant had modified his behaviour in the past or would do so in the future – whether the Tribunal erred in its application of country information to the circumstances of the applicant – whether the Tribunal failed to consider the applicant’s conduct in Australia – jurisdictional error – writs issued.

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45

Applicant: CRP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2553 of 2016

Judgment of: Judge Smith

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Sydney

Delivered on: 15 December 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 23 August 2016.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 21 November 2014 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2553 of 2016

CRP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt who arrived in Australia on 3 July 2008. On 31 March 2014, he lodged an application for a protection visa. On 21 November 2014, a delegate of the Minister decided not to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision. On 1 July 2015, the Administrative Appeals Tribunal (Tribunal) took over the functions of the RRT and on 23 August 2016, the Tribunal affirmed the decision of the delegate.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicant seeks judicial review of the Tribunal’s decision. He relies, in essence, on two grounds: first, the Tribunal failed to consider why the applicant had modified his behaviour in the past; and secondly, the Tribunal failed to consider whether the applicant would modify his behaviour in the future and the reasons for such modification.

Background

1. The claims made by the applicant in support of his protection visa application were accurately summarised by the Tribunal at [14] of its statement of reasons as follows:

   a.He is from a moderately Sunni Muslim family and was expected to conform to all aspects of Sunni Islam. While in college he was reported to the Principal on several occasions for doubting Islam and accused of being a kafir (infidel) but remained a moderate Sunni Muslim.

   b.When he returned to Egypt in 2012, he noticed a significant difference in the religious attitudes of people and was shocked that his sister was wearing a niqab.

   c.On his return to Australia he started to give religion more thought, read the Quran more closely and started to talk to people at the mosque. By mid 2013 he started to become convinced that he could not believe in or practice Sunni Islam and met people who shared his ideas and told him there was only one type of Islam and the Quran was the only book.

   d.When he returned to Egypt at the end of 2013 to marry his fiancé, she and her family refused him after he discussed his religious beliefs with them. In his last 2-3 weeks in Egypt he ‘became vocal and unable to accept Sunni traditions’ and many arguments developed between him and his family, friends and neighbours especially when he refused to pray. The local sheikh tried to correct his thinking but he refused and his parents tried to seek medical help for him.

   e.He now considers himself a true Muslim who follows only the Quran.

   f.He fears that if he returns to Egypt he will be forced to practice Sunni Islam or be harmed or killed by his family, the community and the authorities because he does not believe or practice Sunni Islam so is considered a kafir (infidel).

   g.He does not think the authorities in the country will protect him as only Sunni Islam is accepted in Egypt.

   (Emphasis in original)

2. In addition to his own evidence, the applicant relied upon statements from a number of people in Australia concerning the applicant’s religious beliefs and conversations with the applicant about them.

3. The applicant attended a hearing conducted by the Tribunal on 16 August 2016.

4. The reasons of the Tribunal contain a summary of the key relevant points made by the applicant at the hearing: [16]. Those key points included the following:

   a)The applicant “owes it to the Quran to tell people the right way to practice religion and about ‘true Islam’ ”: [16.c].

   b)The applicant talked about the “true Islam” in Australia with his friends at home, on the train and at work as well as everywhere he went ([16.f]). He did not do that in Egypt because after he spoke to his parents and fiancé about it, they told him that he was crazy and that he had to leave. The applicant also feared that if he talked too much in Egypt, that his life would be exposed to danger: [16.g].

   c)When the applicant was asked about what would happen in Egypt if he did not attend Friday prayers, he said “nothing will happen” but that it was not just about Friday prayers. The applicant also had to tell people what “true Islam” was all about. This would result in there being conflict all the time. When the applicant was asked how he proposed to tell people about “true Islam”, he said that “he was not intending to stand on a soapbox and say he was bringing true religion”, but that he would start with his family, friends and neighbours: [16.k].

   d)The applicant said he feared that, as a result, his parents would say their son had gone crazy and might take him to a mental hospital; the neighbours would not be accepting of him and might report him to the government; and that he might be assaulted by someone such as the strict radical Muslims. When asked if this had happened in the past, the applicant responded “no”, as he had not remained there long enough: [16.l].

5. The Tribunal made its decision on 23 August 2016, affirming the decision of the delegate to refuse to grant the applicant a protection visa.

Tribunal’s decision

1. The Tribunal accepted that, after living in Australia for eight years, the applicant had adopted a different lifestyle and mentality to that which he had in Egypt. It accepted that he had questioned and no longer strictly adhered to the beliefs and practices of Sunni Islam and only believed in the Quran, and that this may have resulted in arguments with his family, friends and neighbours; and even the breakdown of his relationship with his fiancé.

2. However, the Tribunal was not satisfied that the applicant’s claims that he would be forced to practice Sunni Islam and may be harmed or killed by his family, neighbours, the authorities and extremists in Egypt because he believes only in the Quran and no longer believed or practiced Sunni Islam were well-founded. It found that the applicant’s evidence regarding his claims was vague, speculative, implausible and unsupported by country information from independent sources.

3. First, on the applicant’s own evidence, he did not suffer any harm in Egypt when he refused to go to pray and became vocal and unable to accept the traditions of Sunni Islam. The Tribunal found that the applicant’s suggestion that that was only because he did not stay in Egypt long enough to be speculative, and questioned in any event how vocal he actually became, given that he said to the Tribunal that he did not go around talking about the “true Quran” because he feared that if he did he would expose his life to danger.

4. The Tribunal noted that the applicant avoided giving a response and often changed the subject, when asked how he would be forced to go to the mosque against his will and what would happen to him if he did not attend. It noted that he clarified his evidence to say that he did not intend to tell the people publicly about the “true Islam” but that he would start with friends, neighbours and his family. The Tribunal then stated, at [24]:

   … Based on his past behaviour in this regard during his last visit to Egypt (paragraph 16.g), the Tribunal considers that the applicant would be unlikely to act in such a way as to expose his life to danger and is not satisfied that this would result in serious harm to the applicant.

5. The Tribunal found that the applicant’s beliefs made his situation comparable to that of the Quranists (who believe in the Quran alone) and accepted an assessment by the Department of Foreign Affairs and Trade that Quranists were not persecuted in Egypt. Further, based upon country information, it found that since the removal of the Morsi government and identifying of the Muslim brotherhood as a terrorist organisation, the government of President el-Sisi had cracked down on militant Islamic extremists and was making a deliberate effort to promote a version of Islam which was more moderate and less politicised.

6. The Tribunal found that this information suggested a greater tolerance of more moderate Islamic practices and beliefs than that which existed under the influence of the Muslim Brotherhood when the applicant was last in Egypt. In light of that, it was not satisfied the applicant’s claims that neighbours might report him to the government; and that strict radical Muslims might label him an infidel and therefore assault him were plausible in the new environment. It then stated, at [27]:

   … Moreover, in view of his confirmation that he was not planning to defame Islam and the caution he has shown in Egypt as discussed at paragraph 22 above, the Tribunal does not believe that the applicant would publicly say anything wrong against the Hadith that might lead to a prosecution.

7. For those reasons, the Tribunal was not satisfied that the applicant would be forced to practice Sunni Islam and attend the mosque against his will, or that he would be harmed or killed by his family, neighbours, extremists and the Egyptian authorities because he believes only in the Quran and not Sunni Islam and so is considered a kafir (infidel). On the basis of that conclusion, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate to refuse to grant him a protection visa.

Consideration

Grounds 1 and 2

1. The first 2 grounds in the application are, in essence, that the Tribunal did not properly address the reason for which the applicant had in the past modified and would, in the future, modify the expression of his religious beliefs.

2. The first ground focuses on [23] of the Tribunal’s reasons. The applicant argues that this paragraph reveals that the Tribunal did not consider that being forced to modify behaviour for safety might, itself, constitute persecution. At [23] of its reasons the Tribunal stated:

   By his own evidence, the applicant did not suffer any harm in Egypt from his family, friends and neighbours during his last visit there in 2013, when he refused to go to pray and ‘became vocal and unable to accept Sunni traditions’ (paragraph 14.d). The Tribunal considers speculative his suggestion that this was because he did not stay in Egypt long enough (paragraph 16.l) and questions how ‘vocal’ he actually became, given his statement to the Tribunal that he did not go around talking about the ‘true Quran’ in Egypt because he feared that if he talked too much there, it would expose his life to danger (paragraph 16.g).

3. The second ground focuses on [24] of the Tribunal’s reasons. The relevant part of that paragraph is set out at [11] above. The applicant argues that the Tribunal only considered what the applicant would “start” doing, and not what he would then do. He also argues that the Tribunal did not consider his evidence in this respect in the context of his earlier evidence, that he had modified his behaviour to avoid harm.

4. The Minister correctly identifies that these two grounds are based on the majority judgments in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (S395). He argues, however, that the Tribunal did not fall into the error identified in those judgments for two reasons:

   a)first, the Tribunal found what the applicant would do rather than what he could be expected to do; and

   b)secondly, the Tribunal found that the applicant had no well-founded fear of persecution in any event.

5. The first of those submissions is correct at a factual level; however, it does not mean that the Tribunal did not fall into any of the errors identified in S395.

6. The second argument is not correct. In S395, the majority found that the Tribunal had erred by determining the claim on the basis that the harm feared could be avoided by the applicants if they acted discreetly. McHugh and Kirby JJ said, at [43]:

   … In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

   (Emphasis in original)

7. Gummow and Hayne JJ said, at [88], that the Tribunal had erred by failing to “ask why the appellants would live ‘discretely’ ”[2]. They explained that, by failing to ask that question:

   … the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. …

   [2] Emphasis in original.

8. The majority of the High Court in Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 at [17]; [2014] HCA 45 (SZSCA), stated:

   The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.

   (Citation omitted)

9. These passages reveal that S395 stands for a broader proposition than that relied on by the Minister. While it is true that the Tribunal will fall into reviewable error if it decides an application for review on the basis of what the applicant would be reasonably expected to do, it will also fall into error if it decides the review on the basis of what the applicant would do without considering whether that was affected by a fear of persecution.

10. Gageler J made this broader proposition clear in SZSCA. At [35], his Honour explained that there are four cumulative elements in the definition of a refugee. The third of those elements is that the fear of persecution must be “well-founded”. His Honour then said at [36]:

    Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:

    “If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him.  The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.”

    (Emphasis in original/citations omitted)

11. This explanation of S395 shows that the principle in that case is not limited to findings about expectations, but also goes to circumstances where a putative refugee “would … hide” some characteristic that is protected by the Convention. For that reason, the Tribunal here did not avoid error simply by finding what the applicant would do. The problem with its finding, is that it was clearly based on what the applicant had done in the past, in circumstances where the applicant had explained that he had not spoken out in the past because he feared that he would otherwise be harmed. Subject to the Minister’s second argument, that brings this case squarely within the principle for which S395 stands.

12. The Minister’s second argument is that the Tribunal found that the applicant’s fear of persecution was not otherwise well-founded because of the change in circumstances in Egypt since the applicant had last visited there in 2012. After referring to country information about the changed circumstances in Egypt, the Tribunal said at [27]:

    In the Tribunal’s view, this suggests far greater tolerance of more moderate Islamic practice and belief than existed under the sway of the Muslim Brotherhood when the applicant was last in Egypt. While the applicant speculated at paragraph 16.l that neighbours might report him to the government and the strict radical Muslims might consider him an infidel and assault him for his beliefs, the Tribunal is not satisfied that this is plausible in the new environment. …

13. The problem with this argument is, that this reasoning deals only with the possible harm that might be inflicted on the applicant if he acts in a way, as he had done in the past, which was modified by a fear of persecution. That is made clear by the sentence in [27] of the Tribunal’s reasons that follows from the passage extracted at [26] above. This is set out at [13] above, but bears repetition:

    … Moreover, in view of his confirmation that he was not planning to defame Islam and the caution he has shown in Egypt as discussed at paragraph 22 above, the Tribunal does not believe that the applicant would publicly say anything wrong against the Hadith that might lead to a prosecution.

    (Emphasis added)

1. The reference to “paragraph 22” is mistaken and is, in fact a reference to [24] where the Tribunal stated:

   ... Based on his past behaviour in this regard during his last visit to Egypt (paragraph 16.g), the Tribunal considers that the applicant would be unlikely to act in such a way as to expose his life to danger and is not satisfied that this would result in serious harm to the applicant.

2. At [16.g] (read with [16.f]), the Tribunal noted the applicant’s evidence at the hearing that he did not go around talking about the “true Islam” everywhere he went in Egypt, because he feared that if he talked too much there,  his life would be exposed to danger.

3. The Tribunal’s reasons were based on the acceptance that the applicant’s future conduct would be similarly constrained. For that reason, it failed to address the question of whether the applicant’s fear of persecution was well-founded and so constructively failed to exercise its jurisdiction.

4. In light of that conclusion, it is not strictly necessary to consider the precise way in which the applicant framed the first two grounds of the application. While differently expressed, they essentially raise the error identified in these reasons.

Grounds 3 and 4

1. In the third and fourth grounds of his application, the applicant argues that the Tribunal erred in its application of country information to the circumstances of his case. First, he argues that at [25], the Tribunal wrongly applied information concerning Quranists to his claims; and secondly, he says that the Tribunal erred in [26] of its reasons by equating his beliefs with “more moderate Islamic practice and belief”. Neither error is made out.

2. At [25] of its reasons, the Tribunal compares the applicant’s situation to that of the Quranists because, like the applicant, Quranists believe in the Quran alone. Contrary to the applicant’s argument, this reveals that the Tribunal did, at least to some extent, compare the applicant’s beliefs with those of the Quranists. The Tribunal did not proceed on the basis that the applicant was in precisely the same situation as Quranists. In order to do so, it would probably have had to show greater similarity than belief in the Quran. However, the Tribunal’s reliance on the situation of the Quranists here was not the sole reason for its conclusion that the religious situation in Egypt had changed, and the similarity between their belief and that of the applicant provided a logical connection between their circumstances and those which might affect the applicant on return to Egypt.

3. At [27] of its reasons, the Tribunal considered the change in attitude of the government towards extreme or radical groups such as the Muslim Brotherhood. The Tribunal’s reference to “moderate Islamic practice and belief” must be understood in that context. The applicant did not expressly claim that his belief and practice was “moderate”. However, he did not claim that he was an extremist and he did claim that he would be attacked by extremists for the expression of his faith. Properly understood, the Tribunal’s reasoning was that the current regime was no longer aligned with the extremist Islamic group the Muslim Brotherhood and that it was cracking down on such groups. That meant both that there was a lower likelihood that the applicant would be harmed by such extremists, and that the government would tolerate such harm if it did occur. That reasoning does not reveal any misapprehension of the applicant’s claims or, subject to what I have found in respect of grounds 1 and 2, a failure to deal with any aspect of it.

4. These grounds are rejected.

Ground 5

1. In this ground, the applicant contends that the Tribunal erred at [27] of its reasons, by finding that the applicant would not say something wrong about the Hadith. The Hadith are accounts of the life of the prophet that are not contained in the Quran. They are part of the belief system of Sunni Islam the applicant claimed to have rejected when he said that he believed solely in the Quran.

2. The real point of this ground is that, because the applicant says that he believes solely in the Quran, the expression of his faith necessarily involves saying “anything wrong about the Hadith” and the Tribunal was wrong to find otherwise. The way in which this ground is framed goes only to the merits of the Tribunal’s finding about what the applicant would do on return to Egypt. For that reason, it does not support the relief sought by him. However, the Tribunal’s finding is affected by its reliance on the applicant’s past conduct which was modified by a fear of persecution. For that reason, this ground is another aspect of the error exposed in grounds 1 and 2.

Ground 6

1. The applicant argues that the Tribunal did not take into consideration the applicant’s conduct in Australia. The Tribunal expressly referred to the witness statements which referred to the applicant’s conduct in Australia (at [15]). It also expressly referred to the applicant’s evidence about his conduct here: [16.f]. Contrary to the applicant’s suggestion, the Tribunal appears to have accepted what the applicant said he had done here. This ground is rejected.

Conclusion

1. The Tribunal’s decision is affected by jurisdictional error. Its decision must be quashed and the matter remitted to it so that it may complete its duty to review the decision of the delegate of the Minister.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 December 2017