EZI20 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 412

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZI20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 412  

File number(s):	SYG 2739 of 2020
Judgment of:	JUDGE ZIPSER
Date of judgment:	25 March 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeal Tribunal to refuse protection visa – whether Tribunal misunderstood applicant’s claims - no jurisdictional error established – application dismissed.
Cases cited:	Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Division:	Division 2 General Federal Law
Number of paragraphs:	40
Date of hearing:	24 February 2025
Place:	Parramatta
Counsel for the Applicant:	Mr N. Poynder
Solicitor for the Applicant:	Gateway Law And Migration Australia
Counsel for the Respondents:	Ms F. McNeil
Solicitor for the Respondents:	Minter Ellison

ORDERS

SYG 2739 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EZI20

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	25 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the sum of $5,900.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 3 December 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 November 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. In July 2015, the applicant, a citizen of Egypt, first arrived in Australia on a visitor visa.

4. On 22 September 2015, the applicant lodged an application for a protection visa. The applicant claimed she was a Christian and, in connection with her work for her church in Egypt, she had been threatened with harm and now faced a real chance of serious harm if required to return to Egypt.

5. On 2 March 2017, a delegate of the first respondent, after interviewing the applicant on 15 February 2017, made a decision refusing to grant the visa. The delegate accepted that the applicant was a Christian of the Catholic faith who was involved with her church in providing services. The delegate did not accept that the applicant had been threatened with harm or faced a real chance of serious harm if required to return to Egypt.

6. On 30 September 2020, the Tribunal invited the applicant to attend a hearing on 15 October 2020.

7. On 15 October 2020, the applicant attended a hearing before the Tribunal.

8. On 6 November 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.

   TRIBUNAL’S DECISION

9. The Tribunal at [5] set out the applicant’s statement in her protection visa application which contained her claims. The applicant claimed that, as part of her work with the Salesian church in Cairo, she worked with and assisted poor families. She claimed that for a number of years she worked with a poor widow and her teenage daughter Mariam; that in 2013 the widow was pressured to marry Mariam to a Muslim man; that the applicant started taking Mariam to her church and involve her in church activities to counter the pressure on Mariam to marry a Muslim man; that Mariam then disappeared; that in February 2015 Mariam re-appeared, told the applicant that she had been pressured to marry a Muslim man and had converted to Islam, and now wanted the applicant’s help to leave her husband and return to Christianity; that the applicant then assisted Mariam leave her husband and return to Christianity; that the applicant was then threatened by some men for helping Mariam escape from Islam; and that this event caused the applicant to flee Egypt. More broadly, the applicant claimed that many young Christian women in Cairo were harassed to convert to Islam, that the applicant tried to help these women resist the pressure to convert to Islam, and that the applicant was threatened because of her work.

10. The Tribunal at [37] stated that the “assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application”.

11. The Tribunal at [40]-[44] set out country information on Christians in Egypt, with particular reference to the Salesian missionaries, which had a long-time presence in Egypt.

12. The Tribunal at [49] “accept[ed] that the applicant assisted the Salesians at their mission with children’s sport activities, bible teaching at Sunday school and assisting at the church”. However, in respect of the applicant’s claims about assisting young women resist pressure placed on them to convert to Islam:

    (a)The Tribunal at [54] was “not satisfied that the applicant was talking and provided advice to any families, kidnapped daughters or daughters of Salesian families”.

    (b)The Tribunal at [54] found that “the applicant’s involvement with the Salesians was such that it did not bring her to the attention of Muslim extremists or gangs”, and that “she was not perceived to be or accused of being a person assisting with conversions to Christianity or Islam”. The Tribunal also rejected the applicant’s claim that she was “arguing with non-state actors or police or that they were threatening her or that she threatened them”.

13. In relation to the applicant’s claims concerning Mariam:

    (a)The Tribunal at [56] did “not accept that Mariam, a member of the Salesian congregation, was forced to convert to Islam or convert back to Christianity from Islam” and the Tribunal “reject[ed] the applicant’s claim regarding Mariam’s forced conversion”.

    (b)The Tribunal at [57] did not accept any other part of the applicant’s claims concerning Mariam.

14. The Tribunal, having not believed many of the applicant’s claims, at [60] found that “the applicant is not a witness of truth”, and at [61] rejected the applicant’s claim that she “fled Egypt fearing any harm”.

15. The Tribunal then went on, at [64]-[76], to consider and reject any claim of persecution which might be faced by the applicant, more generally, as a Christian in Egypt.

    PROCEEDINGS IN THIS COURT

    Judicial review application and steps up to hearing on 24 February 2025

16. On 3 December 2020, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. On 1 October 2021, the applicant lodged an amended application (Amended Application) which contains two grounds as follows (reproduced as written):

    1.The second respondent (the Tribunal) constructively failed to exercise its jurisdiction and failed to carry out its statutory task under s 414 of the Act to review the decision of the first respondent by misconstruing the applicant’s claims as made.

    Particulars

    a.   The applicant’s claim of persecution arose from circumstances where the applicant, a Christian who worked at a Salesian Church in Egypt, had assisted a Christian woman in the community called Mariam, who had been forced by “fanatic Muslims” to convert to Islam and marry a Muslim man, from whom she later escaped. The applicant claimed that state authorities were unwilling to protect her.

    b.   The Tribunal, at [55]-[56], rejected the applicant’s account of her assistance to Mariam on the basis of its erroneous belief that the applicant had claimed that Mariam had attended the Church and was a member of the Salesian congregation. The Tribunal did not accept “that Mariam, a member of the Salesian congregation, was forced to convert to Islam or convert back to Christianity… as I have found no independent evidence to support forced conversions of members of the Salesian congregation” (emphasis added).

    c.   In fact, the applicant had not claimed that Mariam had attended the Church or was a member of the Salesian congregation, Mariam was the daughter of a poor and disabled person in the community who the applicant had visited as part of her outreach work with the Church.

    2.The misconstruction of the applicant’s claim led the Tribunal at [57]-[58] to err in rejecting all other claims made by the applicant about the persecution that she faced because of the perceived and actual assistance that she had provided to Christians who were facing forced conversion, including the applicant’s claim that the state authorities in Egypt were unwilling to protect her.

17. Following a period of inactivity, on 12 December 2024 the parties were notified that the matter was listed for hearing on 24 February 2025.

18. On 7 February 2025, the applicant filed a written submission (AS).

19. On 19 February 2025, the first respondent filed a written submission (RS).

    Hearing on 24 February 2025

20. At the hearing in this Court on 24 February 2025, Nicholas Poynder of counsel appeared for the applicant, and Fiona McNeil of counsel appeared for the first respondent. A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Poynder tendered an affidavit annexing a transcript of the hearing before the Tribunal. Counsel then made oral submissions which supplemented their written submissions.

    CONSIDERATION

21. Mr Poynder claimed that the Tribunal, by a finding in two sentences at [56], misunderstood the applicant’s claim concerning Mariam in a manner which involved jurisdictional error.

22. In relation to the claim concerning Mariam, the Tribunal at [55]-[56] made the following findings (footnote omitted):

    55.In regard to a girl called Mariam, the applicant claimed that Mariam attended the church and she was forced to convert to Islam. Mariam then left Islam, assisted by the applicant and the church.

    56.DFAT assessed that day-to-day life in Egypt is 'not overly affected by sectarian differences' and most Egyptians, particularly those in urban areas, have little regard to each other's religious identity. The applicant confirmed that advice stating that in her unit block she lived with Muslim neighbours. The applicant’s evidence regarding Mariam’s conversion back to Christianity was vague. When I asked the applicant if she spoke to the priest, the applicant said that the priest knew what the police told her, the priest did not do anything and later she said the priest assisted Mariam to go into hiding. The independent evidence indicates that the government recognizes conversion from Islam for individuals who were not born Muslim but later converted to Islam. Numerous Sudanese baptisms conducted in Cairo are referred to by Salesians on their internet site. I do not accept that Mariam, a member of the Salesian congregation, was forced to convert to Islam or convert back to Christianity from Islam because I do not accept that families and girls who attend the Salesian mission have been forced to convert to Islam or convert back to Christianity from Islam. As Salesians describe their baptisms and religious services in a public forum, the internet, and as I have found no independent evidence to support forced conversions of members of the Salesian congregation and I am of the view that some mention would be made in the independent evidence that reports extensively on Christian issues in Egypt, I reject the applicant’s claim regarding Mariam’s forced conversion.

23. It is contended in particulars (b) and (c) in ground 1 of the Amended Application:

    b.The Tribunal, at [55]-[56], rejected the applicant’s account of her assistance to Mariam on the basis of its erroneous belief that the applicant had claimed that Mariam had attended the Church and was a member of the Salesian congregation. The Tribunal did not accept “that Mariam, a member of the Salesian congregation, was forced to convert to Islam or convert back to Christianity… as I have found no independent evidence to support forced conversions of members of the Salesian congregation” (emphasis added).

    c.In fact, the applicant had not claimed that Mariam had attended the Church or was a member of the Salesian congregation, Mariam was the daughter of a poor and disabled person in the community who the applicant had visited as part of her outreach work with the Church.

24. The contention is explained at AS [19]-[21] as follows (emphasis added in applicant’s written submission):

    19.Nowhere was Mariam identified as a “member of the Salesian congregation”. Yet the entire foundation of the Tribunal’s rejection of the applicant’s claim to be at risk was because of her outreach work with people facing forced conversion. The Tribunal at [56] did “...not accept that Mariam, a member of the Salesian congregation, was forced to convert to Islam or convert back to Christianity from Islam”. It did not find any “independent evidence to support forced conversions of members of the Salesian congregation”. From this flowed the rejection of all the other claims; “it therefore follows” that the Tribunal did not accept the rest of the claims relating to Mariam and, at [57], “As I do not accept” the claims relating to Mariam, the rest of the claims regarding the other girls or families were also rejected.

    20.This critical finding by the Tribunal simply misconstrued the claim made by the applicant. There was no suggestion by the applicant that Mariam had attended the church at all, let alone as a member of the Salesian congregation. At most she may have accompanied the applicant on some of her outreach work, to distract her from the Muslim suitors. The applicant’s evidence was that she was not at risk while at the Church; “Inside the church I am safe, and I was safe, it’s all happen outside and because of the girls” (27:11-26).

    21.The word “congregation” has a specific meaning; here, “an assembly of persons for common religious worship”. Mariam was not part of this assembly of worshippers.

25. Mr Poynder’s contention focuses on the Tribunal’s description at [56] of Mariam as “a member of the Salesian congregation”. Mr Poynder contends that Mariam was not “a member of the Salesian congregation”, but she was instead “the daughter of a poor and disabled person in the community who the applicant had visited as part of her outreach work with the Church”: particular (c) in ground 1. Mr Poynder contends that the Tribunal, by describing Mariam as “a member of the Salesian congregation”, “misconstrued the claim made by the applicant”: AS [20].

26. There are three difficulties with Mr Poynder’s contention.

27. The first difficulty is that the contention overlooks multiple references in the applicant’s evidence to Mariam’s involvement with the Salesian mission in Cairo and its programs and activities. Some of the references, usefully collected in RS [6] and [8], are set out in the following paragraph.

28. The applicant, in her statement dated 22 September 2015, variously claimed as follows (emphasis added in first respondent’s written submission):

    (a)“Because of her mother’s inability to look after her, I became very involved with Mariam.  I started taking her with me to Church and to a lot of my Charity work.  I tried to keep her focused on the Church and God hoping that she would not be led astray or tempted by the Muslim groups with money or marriage.  Mariam was not a very attractive girl and she was socially very immature and as a result was not readily accepted by the youth in the Church” (CB 48-49).

    (b)“Eventually one of the parishioners told me that they had seen her in another area with 3 older Muslim men” (CB 49).

    (c)“… I received a private number call.  It was Mariam.  She was scared, stressed and asked for help.  I confirmed that she was the woman in nikab and she said she wants to return to Christ” (CB 50).

    (d)“Her story was heart breaking and she wanted to leave her husband and return to Christianity” (CB 50).

    (e)“After meeting with Mariam and Lidya for a period of time, I spoke to my priest about the situation.  It was arranged that both Mariam and Lidya will be taken by the Church to a safe place and the Church will take over” (CB 50).

    (f)“Two weeks after Mariam was taken by the Church, the same men who had fought with my husband came to our home.  At this time my husband knew that Mariam was with the Church but did not know the role I played” (CB 50).

29. As stated in paragraph 28(a) above, the applicant claimed that she “started taking [Mariam] to Church”, “I tried to keep her focused on the Church” and Mariam “was not readily accepted by the youth in the Church”. As stated in paragraph 28(f), the applicant also claimed that Mariam was “taken by the Church” and “Mariam was with the Church”. It is common ground that the “Church” was the Salesian church in Cairo. I consider that this evidence alone provided a basis for the Tribunal to conclude that Mariam had a connection and involvement with the Salesian church in Cairo such that she could be described as “a member of the Salesian congregation”.

30. Further, at the hearing before the Tribunal, the applicant, in explaining her claims orally, stated (see T16):

    … there were two girls with the church, and they forced them to change their religions, the two of them.

    The applicant stated that one of the girls was named Diana, and the other girl was Mariam. Again, I consider that the applicant’s claims that Mariam was “with the [Salesian] church” provided a basis for the Tribunal to conclude that Mariam was “a member of the Salesian congregation”.

31. Further, a review of the transcript of the hearing before the Tribunal suggests that the Tribunal member understood the applicant’s claims. For example, the Tribunal member did not say anything which suggested that she understood that the applicant claimed that Mariam’s association with the Salesian church was limited to attending prayer services. Mr Poynder did not identify any part of the transcript which suggested that the Tribunal member misunderstood the applicant’s claims concerning Mariam.

32. The second difficulty with Mr Poynder’s contention is that he asks the Court to construe the phrase “a member of the Salesian congregation” like words of a statute, and “make a fortress out of the dictionary”: Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23]. For example, he states at AS [21]:

    The word “congregation” has a specific meaning; here, “an assembly of persons for common religious worship”. Mariam was not part of this assembly of worshippers.

33. During the hearing, Mr Poynder repeated that the word “congregation” as used by the Tribunal at [54] meant an assembly of persons who meet and worship.

34. However, first, the phrase “a member of the Salesian congregation” are not words of a statute. Second, to the extent that dictionary definitions assist in considering the meaning of words used by the Tribunal, Mr Poynder at AS [21] relied on a definition of “congregation” from the Macquarie Dictionary. But, as pointed out by Ms McNeil, the Macquarie Dictionary lists seven meanings of the noun “congregation”, including “an organisation formed for the purpose of providing for worship of God, religious education and other church activities”. Even if Mariam did not attend the Salesian church on a regular basis to pray with an assembly of persons, based on the applicant’s claims, Mariam was associated and involved with “other [Salesian] church activities” such that she could be described as a member of the Salesian congregation. Third, in considering the meaning of the phrase “a member of the Salesian congregation” used by the Tribunal, it is necessary to consider the phrase in context. For example, the Tribunal at [50] and [52] stated:

    [50]The Salesian missionaries offer educational and social programs, vocational and technical training to assist refugees and vulnerable Egyptians in gaining the skills needed for employment … I am of the view that, were it the situation that refugees and others who attended the Salesian missionary parish, where the applicant assisted, were harassed or threatened or forced to convert to Islam there would be some mention in the independent sources who report extensively on instances of harm occasioned to Christians in Egypt.

    …

    [52]The applicant’s response to whether other workers at the Centre were threatened was vague … When put to the applicant again that helpers are being harmed and it was implausible that the priests would not report harassment of their helpers to the police and would not obtain assistance for their staff, the applicant then said that harassment does not happen in the Church, it happens outside … I do not accept as plausible that because harassment of members of a Church congregation occurs outside the Church that the Church authorities would not take any action. I prefer to rely on the information provided by the Salesians in their website that they have been in Cairo … for about 30 years where they have an oratory, a youth centre and now a parish … Sunday Mass lasts no less than two hours, songs and dances are accompanied by traditional drums. The street children that attend at the mission are Egyptians. I am of the view that were it the situation the workers at the Salesian centre were threatened at the church or outside the church and the applicant was threatened for the work that she was doing at the centre, there would be some mention in the independent evidence about threats of harm to Salesian workers and threats of harm to families who attend the Salesian mission in Cairo.

1. The Tribunal at [52] described “other workers at the Centre”, “helpers” and “staff” as “members of a Church congregation”. This indicates that the Tribunal gave the word “congregation” a broad meaning. Mr Poynder did not complain about, or disagree with, the Tribunal’s use of the word “congregation” at [52]. This point alone significantly undermines the limited and narrow meaning My Poynder seeks to give the word “congregation” at [54].

2. Further, the Tribunal at [50], as well as in other parts of its decision, described the activities of the Salesian missionary. The activities were not limited to conducting church services at which people prayed, but included “educational and social programs, vocational and technical training”. On a fair reading of the Tribunal’s decision, the “Salesian congregation” included persons involved with, or who participated in, these activities and not just persons who participated in prayer services.

3. Further, the Tribunal at [55] stated that “the applicant claimed that Mariam attended the church”. In light of the applicant’s evidence listed in paragraphs 28 and 30 above, it was open to the Tribunal to find that the applicant claimed that Mariam “attended the church”. The Tribunal’s description at [56] of Mariam as “a member of the Salesian congregation” is consistent with the Tribunal’s summary at [55] of the applicant’s claim “that Mariam attended the church”.

4. A third difficulty with Mr Poynder’s contention is that the contention does not consider other parts of the Tribunal’s decision which might shed light on whether or not the Tribunal understood the applicant’s claim concerning Mariam. For example, with reference to the finding in the last sentence of [50] (set out in paragraph 34 above), based on the applicant’s claims concerning Mariam, Mariam was a person “who attended the Salesian missionary parish” and was “harassed or threatened or forced to convert to Islam”.  

5. Ultimately, the question for the Court is whether the Tribunal, by describing Mariam as “a member of the Salesian congregation”, misunderstood the applicant’s claims concerning Mariam. The Tribunal at [19] summarised the applicant’s claims concerning Mariam. Mr Poynder did not complain about, or disagree, with the summary. The Tribunal at [55]-[56] made findings concerning the applicant’s claims about Mariam. The single complaint by Mr Poynder concerns the Tribunal’s use of the phrase “a member of the Salesian congregation”. As explained above, the applicant claimed that Marian attended the Salesian church to pray, was “with the church”, and attended and was involved in other programs offered by the Salesian mission in Cairo. For the reasons explained above, I consider that it was open to the Tribunal to describe Mariam as “a member of the Salesian congregation”. Further, for reasons explained above, I consider that, on reading the Tribunal’s reasons as a whole, the Tribunal did not misunderstand the applicant’s claims concerning Mariam.

   COSTS

6. At the conclusion of the hearing, there appeared to be agreement between the parties that costs should follow the event. Ms McNeil did not have instructions concerning an amount sought by the first respondent. I will hear submissions on costs at the delivery of judgment.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       25 March 2025