MZACQ v Minister for Immigration

[2016] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1834

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal –failure to apply correct legal test – Tribunal decision quashed – writ of mandamus to issue.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; 222 CLR 1

Applicant: MZACQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 571 of 2014

Judgment of: Judge Riethmuller

Hearing date: 20 May 2016

Date of Last Submission: 23 May 2016

Delivered at: Melbourne

Delivered on: 25 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Guo

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Mr Tran

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The decision of the Refugee Review Tribunal made 24 February 2014 be quashed.

2. A writ of mandamus issue directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 571 of 2014

MZACQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 24 February 2014. The Tribunal refused to grant the applicant a protection visa. The Tribunal’s decision affirmed a decision of a delegate to this effect on 26 July 2012. 

2. The application has taken some time to come on for a final hearing as the applicant failed to attend on a previous occasion in 2015, following which the application was dismissed. The application was ultimately reinstated with the consent of the respondent and came on for hearing on 20 May 2016. 

3. The applicant is an Egyptian national and Coptic Orthodox Christian. He was born in Cairo and has an Egyptian passport and citizenship. He studied law at the University of Cairo before coming to Australia as a student in late 2006 (at around 38 years of age) and has not returned to Egypt since. Whilst his father is deceased, his mother and two siblings still live in Egypt. 

4. The Tribunal summarises the basis of the applicant’s claim as follows:

   7. He is “an active Christian and an adherent to core tenants of (his) faith, including proselytising. In light of the increasing levels of persecution of Christians in Egypt, (he views) proselytising as being an urgent and potent response to such enmity”. He was appointed a church deacon at St Mark Coptic Church aged 13, and continues to hold this role in the Coptic Church. He attends a Coptic church in Melbourne, and was associated with one in Sydney.

   8. In Egypt, he “engaged in outreach activities which included limited and discerning preaching activities to Muslims. This selective type of preaching was undertaken to “counter the perils” associated with such activities. Before Mubarak’s deposal, these activities were already extremely hazardous, but preaching has become an almost impossible task “given the current state of affairs in Egypt”, posing risks to the individual and the congregation. Coptic churches are increasingly targeted by antagonistic Muslims, to curb outreach activities. Independent evidence suggests a great deterioration of security arising from “a power vacuum left after the transitional government dismantled the police and intelligence services”.

   9. The ongoing antagonism towards the Christian minority (which is being manifested in a spate of attacks against individuals and churches) shows the peril to which active Christians like him are exposed. Proselytising and evangelising are exceedingly risky given the rise of fundamentalist Muslims such as the (Salafists) and the (Muslim Brotherhood). Religious conversions are considered matters of national security, so he would have no state protection if persecuted by Muslims. He would face a real risk of harm by the authorities, given their hostile attitude towards Christians who engage in preaching to Muslims. If he were arrested or detained, he would suffer serious mistreatment including torture, as he would be perceived as seeking to convert Muslims and therefore causing social discord.

   10. His fears are further compounded by the recent election of fundamentalists, whose agenda is to impose Sharia law. Such a regime would further erode Christians’ rights – including the right to engage in Christian activities without modifications or restrictions. As a devout Christian he is commanded to preach to all men and is precluded from being selective about who he preaches to. “In light of the current state of anarchy […] and rising religiosity” and lack of state protection, preaching will expose him to serious harm.

   11. In Australia, he is engaged in Christian outreach, Deacon duties, visiting the sick, assisting in youth programs and Sunday school and bible studies – without “self-imposed restrictions or any modifications to core tenants of (his) faith”.

5. Whilst the Tribunal member accepted that the applicant had been an active Coptic Christian in Israel and Australia, it did not accept that he had engaged in proselytising, concluding at [27]:

   27. Given the above cumulative matters and findings, I do not accept the applicant’s overall past account that he proselytised to Muslims in Cairo and faced indirect scrutiny and threats (including a bullet to his car in 2005) from a group of Muslims, including on instructions from a Salafist leader in the community who knew of the applicant’s proselytising activities. Accordingly, I do not accept that any members of these groups or this individual believe the applicant has proselytised in the past, or that they are motivated to harm him now or in the future.

6. With respect to his engagement in the church, the Tribunal noted:

   32. Having regard to the above matters and findings, I do not accept the applicant will advocate Christian values outside his church community. Even were it accepted that his activities involved visiting and supporting others outside the Coptic Christian faith, I find his evidence suggestive that his religious outreach is done selectively and privately. I find the chances remote that the applicant will face serious harm arising from ministering in this context.

   33. Having regard to the above matters and findings, I give the benefit of the doubt that the applicant, if he returned to Egypt, would continue to be involved with his church, including being involved as a deacon, and involved in activities such as Sunday school and visiting the sick and needy within his church community. I do not find his past activities in Egypt or his activities in Australia are indicative of a tendency to proselytise to Muslims or those outside the church community, and I do not accept he will do so on return to Egypt. The applicant told me at the hearing that, while he was known as a deacon in the church, this was not known to others and he was seen as a regular person to the outside community. In these circumstances, I find no sound basis for finding he faces more than a very remote chance of being targeted by Muslims for harm if he were to return to Egypt now or in the reasonably foreseeable future.

7. With respect to state-based harm towards Christians, the Tribunal accepted that around 20 Christians had been killed in late 2011 but did not accept that state-based harm to Christians had been repeated or was ongoing, ultimately concluding that the applicant did not face any real chance of serious harm in Cairo from state actors now or in the reasonably foreseeable future (see paragraph [36]).

8. In turning to the question of the possibility of harm to Christians in Cairo, other than at the hands of state actors, the Tribunal turned its mind to the deterioration of policing and law and order in Egypt (see paragraph [38]). The Tribunal member accepted that there were examples of deficiencies in state protection but rejected the proposition that there was a “complete absence of effective policing or lack of law and order in Egypt” (see paragraph [38]).

9. The Tribunal member concluded:

   38. ...Even accepting there may be deficiencies at times in the security response to some Christians in some circumstances, I do not accept policing and law and order  are so dysfunctional or  lax in Cairo so as to create an atmosphere of impunity whereby people who might not ordinarily be motivated to harm Coptic Christians may in fact do so.

10. The Tribunal member also accepted that some extremist Islamists and Muslim brotherhood supporters felt disenfranchised by Morsi’s deposal and identified the Coptic Pope and Coptic Christians generally as supporting the deposal of Morsi. However, the Tribunal member was not satisfied that this has resulted in more than isolated incidences of sectarian tension (see paragraph [41]).

11. The Tribunal member went on to state:

    42. I find the material provided supports the view there was a wave of sectarian violence against Christians from Muslims disenfranchised by Morsi’s deposal. However, I find the reports indicative that violence was mostly concentrated in areas such as El Minya, Assiut and other areas of upper Egypt, and suggestive of a small number of attacks in Cairo. Accepting that there are credible reports of a small number of Christians murdered (outside Cairo) in the close aftermath of the deposal, I find these events are very small in number, and particularised by sectarian tensions and specific circumstances in the areas in which they occurred. I am not willing to extrapolate a real chance of serious harm to the applicant from these events, or speculate that violence in the aftermath of the deposal will continue with equal intensity, even accepting that episodic violence from political tensions in Egypt could occur in the foreseeable future.  I do not find these incidents in the close aftermath of the Morsi deposal are ongoing (as I observed, I find the DFAT report supports this view). I do not find the material provided or cited soundly supports the view that harm to Christians in Cairo occurs in more than isolated and contextual instances. In these circumstances, I find the applicant, in all his accepted circumstances, faces a remote and not a real chance of serious harm from Muslim extremists in Cairo, now or in the reasonably foreseeable future. (emphasis added)

    …

    45. The representative provided links to a number of You Tube videos and a range of other reports which I accept demonstrate particular examples both of extremist Muslims making provocative sectarian comments, or inciting violence against Christians, or indicating examples of serious harm to Christians in Egypt. However, I do not accept that the material suggests these are other than isolated examples, or that they are represent majority approaches to Christians by Muslims in Egyptian society, or that to the extent that sentiments toward Christian harm are manifested in more than very isolated examples of actual harm. While these examples are reprehensible, I do not find they soundly support the view that there is a generalised anti-Christian environment where the applicant can be said to face a real chance of harm simply by being Christian. The representative also cited reports of Christians being kidnapped and extorted. The applicant has not himself said he fears such treatment, and regardless, I find nothing before me supports the view that such instances are other than isolated and contextual.  I find the applicant faces a remote and not a real chance of being kidnapped and extorted in the reasonably foreseeable future. (emphasis added)

12. The Tribunal also rejected the notion that Coptic Christians generally in Egypt meet the requirements for protection in Australia, a submission made on the basis of other decisions by Tribunal members (see paragraph [56]).

Ground One

1. In support of ground 1 the applicant argues that the Tribunal member failed to apply the correct legal test for determining whether or not the applicant would be afforded adequate state protection. The grounds particularised the applicant’s claim that there was a deterioration in policing and law and order and the applicant relies upon the High Court’s decision in Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; 222 CLR 1, where at paragraphs [27] and [28] the Court said:

   27. In fact, there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. According to the account of events he gave to the Tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers. The Tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom[1].

   28. The first respondent sought to explain and justify his unwillingness to seek the protection of the Ukrainian authorities, either at home or abroad, on the basis that they were the instigators, directly or indirectly, of the attacks on him. That case was rejected by the Tribunal. The Full Court found no fault with that part of the Tribunal's decision. The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards. It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards. The question of Ukraine's ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the Tribunal. Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the Tribunal's reasons. If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.

   [1] (1998) 29 EHRR 245.

2. The Tribunal did not apply that specific test in determining any outcome of these proceedings. The High Court went on to say:

   29. The Tribunal's finding that it was not satisfied that the Ukrainian government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art 1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and unco-ordinated, then its finding about the government's willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.

3. The applicant’s argument proceeds on the basis that the relevant test is whether or not a country is unable or unwilling to provide a “reasonably effective police force and a reasonably impartial system of justice”. The standard of protection is said to be that measured against “international standards” (see paragraph [8] of the applicant’s outline). 

4. It does not appear that the High Court were intending to set out a separate standard in these terms to be viewed in the abstract with respect to a country of anyone claiming a protection visa. Rather, the question is whether the police force and justice system provided by a country provided sufficient protection from the harm they feared. Thus, the wording of the Tribunal in paragraph [38] does not immediately lead to the conclusion that the Tribunal were in error or applied the wrong test.

5. The Tribunal were required to consider whether or not Egypt was able or willing to provide a sufficient level of state protection against non-state actors whom the applicant feared. The Tribunal member concluded that there was not a complete absence of effective policing or lack of law and order in Egypt, although accepting that there has been a deterioration in policing and law and order in Egypt in recent times. A fair reading of paragraph [38] indicates that the Tribunal member was mindful of the deterioration and the standard of policing and the justice system in Egypt, and assessed whether or not that decline was such as to leave the applicant without state protection such that there was a real chance of serious harm being committed against him in Cairo.

6. In the circumstances, I am not persuaded that the applicant has made out this ground.

Second Part of Ground One

1. Ground 1(c) raises the difficulties with respect to the use of the words “soundly” in paragraphs [42] and [45] of the decision.

2. The applicant sought to persuade the decision-maker that the Tribunal decisions in other cases indicated that Coptic Christians generally were at risk in Egypt and met the requirements for protection visas in Australia. The particular Tribunal decisions and the cases are not listed in paragraph [56] of the decision in this case. However, the Tribunal is not bound by decisions in other Tribunal cases, all of which must necessarily ultimately be determined upon their own facts and circumstances.

1. Under this ground, the applicant points to the findings by the Tribunal that material provided or cited did not “soundly” support any propositions put forward. This use of the word “soundly” appears twice, once each in paragraphs [42] and [45]. In addition, at paragraph [42] the Tribunal member said that they were “not willing to extrapolate a real chance of serious harm to the applicant from” the events set out in the paragraph.

2. It may be that the use of these words is simply a turn of phrase adopted by this particular decision-maker and that no significance should be placed upon that. However, the use of the phrase “soundly” is indicative of a standard of satisfaction greater than the balance of probabilities, for example, compare the phrases “soundly supports” with “on balance supports”.

3. As the decision must be focused primarily upon whether or not there is a real chance of serious harm to the applicant, it is difficult to see that adopting a test or mindset that focuses upon whether or not the material “soundly supports” various views is not helpful. Rather, the Tribunal member was required to determine the weight that should be placed upon the evidence, and the extent of the risk to the applicant in order to properly apply the real chance test. In the circumstances, I am persuaded that the Tribunal member has erred, applying a test that considers whether or not the material “soundly supports” the applicant.

4. In these circumstances, it is appropriate that the decision be set aside and the matter be determined by a different Tribunal member.

5. I have also considered whether or not in the material the use of the phrase “I am not willing to extrapolate” indicates a personal preference rather than a logical assessment of the evidence. It is an unfortunate phrase to use to set out whether or not the Tribunal member accepts a piece of evidence and whether they are able to draw an inference from that evidence as to the relevant state of facts. It is clearly a phrase to be avoided. Given that I have determined that the matter should be returned for rehearing for reasons set out above, I need not further deal with the effect of this phrase if it were to be viewed in isolation.

Ground Two

1. The second ground claims that the applicant’s case included an express claim that he would be imputed to be a proselytiser and therefore at risk on the basis of his imputed behaviour, even if the Tribunal did not accept that he engaged in proselytising (note paragraph [28] uses the word soundly).

2. The applicant’s primary case was that he engaged in proselytising Muslims in Cairo, however, that case was rejected. The Tribunal found:

   27. Given the above cumulative matters and findings, I do not accept the applicant’s overall past account that he proselytised to Muslims in Cairo and faced indirect scrutiny and threats (including a bullet to his car in 2005) from a group of Muslims, including on instructions from a Salafist leader in the community who knew of the applicant’s proselytising activities. Accordingly, I do not accept that any members of these groups or this individual believe the applicant has proselytised in the past, or that they are motivated to harm him now or in the future.

3. As to the future, the applicant did not satisfy the Tribunal that he would advocate his Christian values outside his community, the Tribunal found:

   32. Having regard to the above matters and findings, I do not accept the applicant will advocate Christian values outside his church community. Even were it accepted that his activities involved visiting and supporting others outside the Coptic Christian faith, I find his evidence suggestive that his religious outreach is done selectively and privately. I find the chances remote that the applicant will face serious harm arising from ministering in this context.

4. It appears to me that the question of imputed views of the applicant being a proselytiser were rejected in the last sentence of paragraph [27]. Clearly, the proposition that he was at risk because others believed him to be a proselytiser was rejected, but not simply on the basis that he did not proselytise. Arguably, paragraph [27] relates only to the past, however, the issue was specifically considered with respect to the future at paragraphs [28] to [33] of the Tribunal member’s decision, with the conclusion at [33]:

   33. Having regard to the above matters and findings, I give the benefit of the doubt that the applicant, if he returned to Egypt, would continue to be involved with his church, including being involved as a deacon, and involved in activities such as Sunday school and visiting the sick and needy within his church community. I do not find his past activities in Egypt or his activities in Australia are indicative of a tendency to proselytise to Muslims or those outside the church community, and I do not accept he will do so on return to Egypt. The applicant told me at the hearing that, while he was known as a deacon in the church, this was not known to others and he was seen as a regular person to the outside community. In these circumstances, I find no sound basis for finding he faces more than a very remote chance of being targeted by Muslims for harm if he were to return to Egypt now or in the reasonably foreseeable future.

5. In the circumstances, I am not persuaded that the applicant has made out ground 2.

Conclusion

1. As I am persuaded that the Tribunal member has erred with respect to the test to be applied, with respect to reasons at paragraphs [42] and [45], it is appropriate that I set aside the decision and remit the matter for rehearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 25 July 2016