MZACO v Minister for Immigration

[2015] FCCA 5

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 5

Catchwords:
MIGRATION – Application for judicial review –whether the Tribunal made an error of fact that amounts to jurisdictional error – remitted to the Tribunal.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: MZACO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 563 of 2014

Judgment of: Judge McGuire

Hearing date: 11 November 2014

Date of Last Submission: 11 November 2014

Delivered at: Melbourne

Delivered on: 5 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: Ms Symons

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal dated 5 March 2014 is unlawful, void and of no force and effect.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 563 of 2014

MZACO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 5 March 2014 affirming a decision of the Minister’s delegate not to grant the applicant a protection (class XA) visa (“the visa”). 

2. The applicant seeks relief in the form of a declaration that the decision is unlawful and void, together with the issuing of writs of certiorari prohibition and mandamus.

3. The applicant is a 35 year old female Egyptian citizen of Coptic Christian religion.

4. On 2 December 2011 she applied for a protection visa. In an accompanying statutory declaration the applicant sought protection under section 36 of the Migration Act 1958 (“the Act”) and clause 866.221 of Schedule 2 of the Migration Regulations 1994.  She claimed a well-founded fear of persecution based on being a Coptic Christian with imputed political opinion and membership of a particular social group (“the PSG”) being a member of the Coptic Christian community in Egypt and/or a young, single Coptic Christian female.

5. The delegate refused the applicant a visa on 7 January 2013 and she sought a merits review in an application to the Tribunal filed 29 January 2013.  That application attached a copy of the delegate’s reasons.

6. The applicant was invited to appear before the Tribunal at the hearing on 27 November 2013 and did appear having filed various material and submissions.  The applicant’s solicitors filed post-hearing material on 24 December 2013. 

7. The applicant’s amended application for judicial review raised five grounds of complaint.  At the hearing, ground 1 was abandoned.  Grounds 2-5 are:

   (2) The Tribunal failed to take into account a relevant consideration or took into account an irrelevant consideration.

   Particulars

   the Tribunal dismissed the applicant’s claims that her neighbour was a member of a Salafist group on the basis that the claim was raised only at the Tribunal stage, when the applicant raised those claims before the delegate at the department stage.

   The Tribunal failed to assess the totality of the applicant’s claims in relation to harassment she suffered in Egypt.

   Particulars

   (3) The Tribunal only considered the chance that the applicant would face further harm from those individuals who had harassed her in the past but not consider her broader claims of being a target of similar harassment generally because of her religion and gender.

   (4) The Tribunal erred in law in concluding that there was not a real chance that the applicant might be the subject of harassment that would amount to serious harm when the Tribunal accepted that incidences of harassment that the applicant had suffered in the past had amounted to serious harm.

   (5) The Tribunal erred in finding that the applicant was not owed protection, and that S36(2)(aa) of the Act

   Particulars

   the Tribunal failed to assess the totality of the applicant’s claims in relation to harassment she suffered in Egypt in that the Tribunal only considered the chance that the applicant would face further harm from those individuals who had harassed her in the past but did not consider her broader claims of being a target of similar harassment generally because of her religion and gender against S36(2)(aa) of the Act.

8. The applicant was represented at the hearing before this court.  Grounds 3-5 were effectively argued together. 

The Tribunal’s Findings

1. The Tribunal made a number of findings of credit against the applicant.

2. The Tribunal accepted the following of the applicant’s evidence:

   i)that the applicant is a Coptic Christian and active in her faith and would be identified as a Christian in Egypt;

   ii)that the applicant had been assaulted by a Muslim taxi driver in 2011 but the likelihood that the applicant would face further harm from that taxi driver to be remote and not a real threat;

   iii)that the applicant had been harassed in the street by a group of Muslim men in 2008 but that the likelihood of further harm from that group was remote and not a real threat.

3. The Tribunal considered a range of country information, some of which was supplied by the applicant, including:

   i)that 10 per cent of Egypt’s population are Christian and a DFAT report was to the effect that not all Copts experience discrimination or harassment and mostly continue to live peacefully within the community;

   ii)US state department report that Copts continue to live peacefully within the general community and are an officially recognised religious minority;

   iii)reports of increased attacks on Christians by Muslims following political tension in 2013 but prominent in upper Egypt and relatively small number in Cairo;

   iv)changes in Egypt’s political situation in 2013 and since the applicant’s 2011 application and, in particular, a government crackdown on the Muslim Brotherhood.

4. The Tribunal accepted that the applicant might be subjected to sporadic harassment but that this did not amount to a real chance of serious harm now or in the reasonably foreseeable future.

5. Specifically the Tribunal did not accept the applicant’s claims in respect of fear of her neighbour Haitham and his alleged Salafist group membership and as a leader of that group.

6. The Tribunal, relying on country information, did not accept that the applicant faced a real chance of serious harm by reason of her imputed political opinion, her gender and/or her practice of the Coptic Christian religion.  Whilst accepting isolated incidents of abduction and forceful conversion to Islam of Christian females, the Tribunal considered such to be infrequent and thus not constituting a real chance that this would happen to the applicant.  A similar finding was made in respect of the applicant’s claimed fear of sexual assault.

7. The Tribunal considered S36(2)(aa) of the Act but, having not accepted that the applicant faces a real chance of harm on the basis of her Coptic religion or her imputed political opinion, did not accept there to be a substantial ground for believing there to be a real chance of her suffering significant harm as a necessary and foreseeable consequence of her removal from Australia.

Ground 2

1. This argument is based squarely on paragraph 47 of the Tribunal’s reasons where it states:

   Nor does the Tribunal accept the applicant’s claims at hearing that Haitham is a member and leader of an extremist Salafist group.  In making this assessment, the Tribunal notes that the applicant did not make such claims until the Tribunal hearing, rather in her statutory declaration made 30 November 2011, she describes Haitham only as a Muslim man.  Nor does she suggest Haitham to be a member or leader of an extremist Salafist group in her statutory declaration made 1 May 2013.  Her evidence that she stopped speaking to Haitham after he started wearing a white robe in 2009 is inconsistent with her evidence recorded in the delegate’s decision to the effect that their respective families were close until the marriage proposal in 2011.  Similarly, her evidence that as the leader of a Salafist group he considered it degrading to speak to a woman is inconsistent with her earlier evidence that they continued to exchange greetings after his proposal was rejected.

2. The context of this argument is that Haitham was the applicant’s neighbour in Egypt.  He is a Muslim and the applicant had rejected his marriage proposal.  The applicant says that Haitham and his associates are Salafist Muslim extremists and that Haitham is a member and leader of a Salafist group.

3. The applicant says that there is a straightforward error of fact in the Tribunal’s decision at paragraph 47 in the sentence “in making this assessment, the Tribunal notes that the applicant did not make such claims until the Tribunal hearing ...”

4. The Tribunal had before it an affidavit of Lauren Guercio sworn 25 May 2014 annexing a transcript of the hearing before the delegate on 24 July 2012.  On page 11 of the transcript, the delegate asks:

   D:  You mentioned that you have been requested to marry a Muslim person.  When did this happen?

   A:     End of June, last year.

   D:         How did this person approach you to propose to you?

   A:     So it’s the neighbours, we live across the road from these neighbours, who are Muslim and the son is a part of the Salafi group and they have friends.

5. Further, at page 23 of the transcript it is recorded evidence of a witness, “Jessica”.  The transcript shows: 

   J:  Can I add something?

   D:  Okay.  Jessica, please.

   J:  You know, I came from a Muslim and a Christian countries.  (M), she’s not against the Muslim culture as a Muslim because there is, you need to understand there is a nice kind of Muslim people and there is a fanatic one.  And she is scared from the fanatic, the Muslim themselves don’t like the fanatic people.  And she is, (M), here is scared – Haitham came from a fanatic sect and while she was staying with me, the problem is … but it is not about Islam, it is about these fanatic people who are really threatened many, many life, even threatened Muslim people.

6. The applicant says this constituted a mistake of fact in the reasoning of the Tribunal at paragraph 47 and infringing section 430 of the Act providing that the Tribunal must refer to the evidence or any other material on which its findings of fact are based. The applicant acknowledges that a pure mistake of fact does not of itself constitute an error of law but in this case the Tribunal specifically relies on its own mistaken fact in its determination and its decision was consequently infected and hence it fell into an error of law.

7. The respondent says that paragraph 47 must be read in context and not just in isolation.  The respondent says that the context is shown in the reasons from paragraphs 43-52 and under the heading “The Applicant’s Relationship with Haitham”.

8. The respondent says that the context is the applicant’s claim and assertion of fear of persecution on the basis of religion and membership of a PSG of Coptic catholic female and that these matters were considered generally and specifically in those paragraphs in total and including the particular and general findings of credit.  The respondent refers particular to paragraph 43 of the Tribunal’s reasons which state:

   As noted above, the Tribunal is concerned about what it considers to be very significant changes to the applicant’s claim over time, in particular those claims relating to her relationship as a neighbour and his friend’s or colleagues.

9. The respondent argues that the Tribunal’s determination was made on a number of bases including the applicant’s inconsistent evidence particularised in a number of paragraphs leading up to paragraph 47.

10. Secondly, and in the alternative, the respondent argues that it is open to find no error or mistake of fact in paragraph 47 of the reasons.  Counsel refers to the sentence “Nor does the Tribunal accept the applicant’s claims at hearing that Haitham is a member and leader of an extremist Salafist group.”  The argument comes from the use of the conjunctive “and”.  A strict reading of the material discloses no particular piece of evidence that uses the conjunctive in respect of “member” and “leader” of a Salafist group.  The respondent urges this Court, therefore, to find that the applicant’s argument fails on the basis that there was no error of fact.

11. In any event, the respondent says that if there was an error then it was an error within jurisdiction because, within context, there was other material which was capable of supporting the Tribunal’s finding and that the Tribunal was not diverted from its task by the error of fact in paragraph 47.

Consideration of Ground 2

1. I must first consider whether there was an error of fact and, if so, then whether that constitutes an error of law or jurisdictional error in the Tribunal.

2. The general principle seems well established from Minister for Immigration and Citizenship v SZRKT[1] at [19]:

   Which is when an Administrative Tribunal falls into an error of law which causes it to identify a wrong issue;  to ask itself a wrong question;  to ignore relevant material;  to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected.

   [1] [2013] FCA 317

3. The alleged error of fact that arose here was the finding that the applicant had not previously raised the assertion that Haitham was a member and leader of a Salafist group.

4. I am satisfied that this was an error.  I therefore reject the respondent’s argument from the use of the conjunctive “and”.  Firstly, paragraph 47 of the Tribunal’s reasons should be read in its own context.  That is, the Tribunal does not specifically raise or imply the conjunctive argument.

5. Secondly a reading of paragraph 47 does not support the “conjunctive argument” given the later sentence in that paragraph on the fifth line: 

   Nor does she suggest Haitham to be a member or leader of an extremist Salafist group in her statutory declaration made 1 May 2013.

6. I am satisfied that the Tribunal was not being so specific as to reference the evidence in respect of the conjunctive “and”.

7. Consequentially and being satisfied that the Tribunal was in error in paragraph 47 in saying “that the applicant did not make such claims until the Tribunal hearing” when in fact the claims were made before the delegate and that the Tribunal had the delegate’s reasons before it, I turn to consider whether that error was material to the Tribunal’s ultimate decision?

8. The respondent says that the findings in paragraph 47 of the Tribunal’s reasons are to be read within the context of paragraphs 43-52 which deal in all respects with the applicant’s claims in relation to Haitham and under the heading “The Applicant’s Relationship With Haitham”.  In taking up that invitation it is clear to me that the Tribunal throughout those paragraphs made a number of findings of credit against the applicant in respect of various factual assertions.  Paragraph 47 constitutes one such finding of credit but on this occasion was based on a false premise.

9. Courts and tribunals are regularly called upon to make findings of credit and often do so upon favourable or unfavourable matters of impression which are not in themselves necessarily determinative of the outcome.  In this matter, though, there is a clear mistake of fact by the Tribunal leading to a finding of credit against this applicant.  The reasons themselves do not show what level of importance or weight the Tribunal placed on that particular finding relevant to the other findings and hence it is not possible to say that the finding or error did not affect the Tribunal’s determination and outcome.  Certainly it is clear that the Tribunal relied on the finding of credit.  Nothing in paragraph 47 or elsewhere indicates minimal or lesser weight placed on the finding. This was not a statement as to general credibility.  It was a specific finding based on a mistake of fact and taken adversely to the applicant’s assertion.

10. Put simply whilst the Tribunal’s conclusion may have been open to it on other findings of credit, the finding in paragraph 47 cannot be said to be error of fact within jurisdiction given the unknown as to the weight accorded it in the general findings as to credibility.

11. I am of the view, therefore that the mistake by the Tribunal is of the type that constitutes a jurisdictional error and the applicant must succeed on her application and have the relief sought.

12. Having found for the applicant in respect of ground 2 of the amended application, I need not consider her argument in relation to ground 3-5.  There will be orders in terms of the applicant’s application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 5 February 2015