MZXGS v Minister for Immigration
[2006] FMCA 1053
•11 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1053 |
| MIGRATION – Refugee Review Tribunal – whether denial of capacity to earn a livelihood an integer of the applicant’s claim for protection – not found to be an integer – application dismissed. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| Applicant WAEE v MIMA [2003] FCAFC 184: [2003] 75 ALD 630 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263 |
| First Applicant: | MZXGS |
| Second Applicant: | MZXGT |
| Third Applicant: | MZXGU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG145 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 July 2006 |
| Date of Last Submission: | 25 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | John Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Richard Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 30 January 2006 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG905 of 2005
| MZXGS |
First Applicant
| MZXGT |
First Applicant
| MZXGU |
First Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed on 30 January 2006 seeking to review a decision of the Refugee Review Tribunal affirming a decision not to issue protection visas to the applicants. On 1 March 2006 the application was dismissed for non appearance pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001. On
27 March 2006 an interlocutory application seeking to reinstate the matter was filed with the court and the matter was reinstated on
18 April 2006.
In the application filed on 30 January, the applicants set out the following ground of review:
The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the application and its powers to conduct a review under s.414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that
PARTICULARS
i) it failed to address or deal with a claim raised on the material before it that the first applicant had a well-founded fear of persecution and/or discrimination amounting to persecution by reason of a denial of employment and/or denial of capacity to earn a livelihood by reason of the acts of non-state agents on the grounds of religion.
Background
The first applicant is a 48 year old male citizen of Egypt. The second applicant is the first applicant’s wife; and the third applicant their infant daughter who was born in Australia in 2004.
The applicant and his wife last arrived in Australia on a short stay business visa on 2 February 2004. On 10 March 2004 they lodged an application for protection with the department of the first respondent. The third applicant was included in the application after her birth.
In the application, only the first applicant made substantive claims for protection, whereas the second and third applicants claimed protection as family members of the first applicant. On this basis, I will refer to the first applicant as ‘the applicant’ throughout.
The applicant sought a protection visa on the basis that he feared persecution because of his Christian religion, specifically his membership of the Christian Coptic Orthodox Church. The applicant claimed that if he were to return to Egypt he would face a real chance of persecution at the hands of Islamic extremists. He also claimed that he would not be afforded adequate state protection from harm at the hands of Islamic extremists by the Egyptian authorities.
On 8 September 2005 a delegate of the first respondent determined that the applicant was not a person whom Australia had protection obligations and refused the application.
On 22 September 2005 the applicants lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. On
14 November 2005 the applicants’ representative lodged written submissions with the tribunal and on 6 December 2005 the applicant gave oral evidence before the tribunal.
On 3 January 2005 the Tribunal handed down a decision dated
13 December 2005 which affirmed the decision of the Minister’s delegate to refuse a protection visa. In its decision, the tribunal considered the claims of the applicant in detail, setting out the background to the applicant’s claims at page 5 of the decision:
In a statement, the husband applicant states that he lived most of his life in Alexandria where he was born. He states that he worked at a company which he names as an Electrician for a period of about 10 months from November 1998 until August 1999. He states that his work location was about 1000 km away from Alexandria in a town called Essna in Upper Egypt. He states that there was a personal manager, whose name he supplies, who was Christian and he did not allow the Moslem workers to leave work for prayers in the middle of the day. The applicant states that this man was a straightforward man and did not allow incompetence at work, He states that most Moslems were angry and did not like him for his attitude and started to gang up against him. He states that the Muslim workers started to insult the manager by calling him an atheist which in the Muslim Egyptian culture is a person who does not practice his religion. He states that ‘Kafer’ is a “very big insult” in Muslim countries. He states that they continued annoying him and targeted him because he was a Christian and he also was their boss.
The applicant claimed that one day the Christian manager was attacked by two of the workers who were Muslim extremists and a mob of others. He states that he tried to defend the employer as a result of which he was threatened by the Muslim extremists that he would be harmed unless he left Essna. The applicant claims that he tried to seek protection from the police but that he did not consider their solution, being to place him in jail indefinitely until the aggressors were found, to be adequate. He then sought assistance from the managing director of the company who asked him not to go back to Essna because of the aggression and offered him a month and a half in lieu of leaving the company. He then left Essna.
The applicant claimed to have then commenced a business exporting aluminium to Libya from 2000 for a period of two years. He states that in September 2001 he exported Aluminium worth US$120,000 to Libya and asked a person there to collect the money. He claims that the person only provided the applicant with US$30,000 and kept the remaining US$90,000 for himself. The applicant claimed that when he confronted the person about the unpaid monies the person refused to pay and started to harass the applicant.
The tribunal considered the specific details of the applicants claims regarding the harassment at pages 6 and 7 of its decision:
He states that when he did not receive the balance of his money, he contacted the company in Libya and they told him that they paid this person in full. He states that he contacted this person and asked him for the balance of the money giving him all the facts. This man refused and started to harass the applicant. He states that they had a meeting where the person told him that if he did not marry his daughter, he will not pay him the balance of the money. He states that in addition to that, this person informed the applicant’s clients in Libya that he is an enemy of Islam and they should not deal with him. He states that he was faced with:
a. Marrying a Muslim women, while he was engaged to the wife applicant,
b. Not being able to have further communication in Libya because of his Christian religion,
c. The US $90,000 had gone for good and he had been robbed of the working capital of his company.
He states that he travelled to Libya and he met his clients in Libya who told him that they would no longer communicate with him because they believed he was an enemy of Islam. He states that they will only communicate and pay money to Muslim.
The applicant states that upon his return to Egypt he reported the matter immediately to the Police but did not receive any assistance as he was making accusations against a Muslim. He states that he received a number of abusive calls asking him to convert to Islam immediately and marry the person’s daughter. He claims that the calls also threatened his life, his wellbeing and his company. In January 2002 the applicant said he changed addresses in Alexandria and married his wife. However, the harassment continued to occur despite the fact that the applicant was no longer chasing his money.
In January 2003 the applicant came to Australia hoping that things would be better after a ‘cooling-off’ period. However, upon his return in April 2003 the applicant claims that the insults continued and the insistence on marrying the daughter had become a demand.
In June 2003 the applicant returned to Australia with his wife, remaining until December 2003. Upon their return to Egypt the applicant claims that he remained only 10 days in Alexandria before they fled. The applicant travelled to Australia with his wife in February 2005.
After considering the country information submitted by the applicant as well as independent evidence, the Tribunal concluded in its finding and reasons at pages 24 to 26:
In light of the independent evidence that Upper Egypt is an area of particular Islamic conservatism, the Tribunal is prepared to accept the applicant father may have suffered in 1998-1999 as he claims while working in Essna. However, the Tribunal also accepts the applicant’s evidence that he has not had any evidence that those who intended to do him harm there, had pursued him to Alexandria and so finds that any fears he has in relation to harm from people in Essna is not well founded.
The Tribunal has considered his claims that, since September 2001, he has been under threat of death for refusing to convert to Islam and to marry the daughter of the man with whom he had a commercial dispute. The Tribunal finds these claims to be fabrications and does not believe the applicant’s evidence with regard to them for the following reasons…
…
The Tribunal finds the applicant’s claims of general harassment of Copts in Egypt, including his claim that he was for over two years credibly threatened with forced conversion and marriage, to be so fantastic as to be unbelievable.
…
The independent evidence cited above shows there has been continuing vigilance by the Egyptian authorities against violent Islamic militants. In the light of this, the Tribunal finds that the state provides adequate protection to Coptic Christians. In the light of the evidence before it, the Tribunal finds there is no real chance the applicant or his family might be harmed by the actions of Islamic militants aimed at Christians such as the applicants.
The reality in Egypt, as overwhelmingly indicated by the above independent evidence, is that the government has taken steps to curb Islamic militancy and to accord Egyptian Copts their rightful place in Egyptian society. The Tribunal acknowledges that there is evidence of some continuing low level discrimination and occasional societal prejudice. However, the Tribunal finds that any such harm the applicants, as Egyptian Copts, might suffer as Egyptian Copts, in the foreseeable future, is not as serious as to constitute persecution.
Given these findings, the Tribunal is not satisfied that there is a real chance the applicants might face persecution in the foreseeable future for their religion or any other Convention reason. Therefore the Tribunal finds the applicants’ fear is not well-founded.
Claim of denial of capacity to earn a livelihood
The substance of the case for the applicant in this application was that the tribunal failed to consider an integer of his claim, namely discrimination amounting to persecution by reason of a denial of a capacity to earn a livelihood. It is fair to say that the tribunal did not specifically address this issue. However, it is not at all clear that this issue was either squarely raised with the tribunal, or this was an issue advance on behalf of the applicant, or that arose as a result of the applicant’s submissions to the tribunal: see Applicant WAEE v MIMA [2003] FCAFC 184: [2003] 75 ALD 630 at [46]-[48].
Principally, the applicant relies upon three pieces of evidence to show that the issue was raised on the material before the tribunal:
a)In submissions attached to the original application where the applicant set out as part of his claim as follows:
11. I am forced with:
a. Marrying a Muslim women, while I was engaged to MZXGT,
b. Not being able to have further communication in Libya because of my Christian religion,
c. The US$90,000 is gone for good. I got robbed of the main working income for my company.
12.I travelled to Libya and I have met my clients in Libya who have told me that they will no longer communicate with me because they believe I am an enemy of Warn. They will only communicate and pay money to Muslim brothers.
13.I went back to Egypt straight to the police station and I reported the matter at ‘Moharam Bek’ Police Station. I did not receive any cooperation from the officers of this Police station. On the contrary, I got insulted and got kicked out of the Police Station when they realised that I was accusing a Muslim person.
b)These claims were repeated in evidence placed before the tribunal (see Court Book at page 85). In submissions in the original application (and repeated before the tribunal: see Court Book at page 155), the applicant set out:
Given the country information that we have cited and given the applicant’s claims and general issues, there is a substantial chance that if he returns to Egypt he will encounter serious harm that will affect his livelihood. Such harm would be for the reason of his religion.
In conclusion, I would like to ask the Australia federal government to accept the applicant and his wife and daughter as a refugee in Australia as if he goes back to his home country he may lose his life on the hands of rhe Muslim Extremists.
This was a submission made by the applicant’s advisor.
c)The applicant also relies upon a letter provided by the Bishop of Melbourne for the Orthodox Coptic Church which was in the following terms:
TO WHOM IT MAY CONCLEN
This is to certify that Mr MZXGS…, who is currently in Australia, is a citizen of Egypt, and his religion is Christian - Coptic Orthodox
I am writing this letter in support of his recent application for “Protection Visa”, as the applicant has suffered:
·Harassment and undue pressure to convert to Islam;
·Threat to his own life, liberty and security;
·Being denied the means of earning;
·Being under constant pressure to convert to Islam.;
I am also of the opinion that MZXGS, has suffered serious discrimination and offensive acts committed by the Islamic Extremists and was denied natural justice by the authorities (local police in Moharam Bek). The threats of causing serious harm to MZXGS by his workers in Essna, are knowingly tolerated by the authorities (local police in Essna and Moharam Bek), and it has shown that the authorities refused, or proved unable to offer effective protection to MZXGS.
Suriel
Bishop of Melbourne
It was argued that when one reads the claims with respect to the business deal where the applicant claims that he was robbed of the working capital for his company, together with the use of the word ‘livelihood’ in the advisor’s submissions and the terms of the letter from the bishop, that the issue of the capacity of the applicant to earn income to support himself in Egypt was an issue that required determination. The tribunal member clearly had regard to these three pieces of evidence or submissions in its decision (see, for example, the dot points from the Bishop’s letter set out at page 9 of the tribunal decision).
However, it is clear from the material that the thrust of the applicant’s case was always that he was at risk of harm by way of physical violence toward him or his wife, rather than being unable to subsist.
It is important to recognise that the applicant’s claims about the events which took place in Essna between 1998 and 1999 were accepted by the tribunal and provided a basis for concluding that the applicant could not continue to live and work in that city. However, the tribunal specifically found that those who had intended him harm in Essna had not pursued him to Alexandria. In these circumstances, the events of Essna do not appear to raise a question of whether the applicant could earn a livelihood after he had moved.
A number of other aspects of the applicant’s case tell against this being a real issue to be determined or an integer of his claim. For example, in the submissions referred to as the first item relied upon by the applicant there are further statements that go to his income and circumstances, including (at page 86 of the Court Book):
15.I shifted my residence in Alexandria to a new address. I married MZXGT on 20th January 2002. I thought my problems will go away as I got married, changed my address and was no longer chasing my money, but I was very surprised to learn that my hopes are not true and these people did not give up.
…
19.I packed my bag with my wife and went to Australia again on 15th June 2003. This time, I have taken my wife to Australia and I had the intention to go back to Alexandria. I had a cooling off period in Melbourne Victoria and I continued to do a number of commercial operations and returned back to Egypt on the 8th December 2003.
…
23.I simply cannot go back to Egypt with my wife as our lives are in danger.
In addition it is apparent from his visa application that he had employment in the periods following the events with respect to the business transaction in Libya as he sets out (see page 42 of the Court Book). At item 38 of his application form, the following employment history form was completed:
Period Employers name Position/Occupation Monthly Salary in Local Currency FROM Jan-1995 SELF EMPLOYED SALES PERSON FOR CIRCUIT BREAKER 3,000 TO
4,000 LCTO Jan-1997 FROM Jan-1997 BARAMOUS COMPANY SALES PERSON – SOCKS TRADING IMPORTS/EXPORTS 3,000 TO
4,000 LCTO Feb-1999 FROM Feb-1999 ESNA POSITION ELECTRICIAN 1,200 LC TO Sep-1999 FROM Jan-2001 BARAMOUS COMPANY ALUMINIUM IMPORTS/EXPORTS 7,000 TO
10,000 LCTO Jan-2002 FROM Dec-2002 BARAMOUS COMPANY FURNITURE IMPORTS?EXPORTS 4,000 LC TO Mar-2004
There is also information from a company in Egypt which provides aluminium profiles with respect to the applicant’s business dealings with that company, apparently through another corporation Paramous Co. A letter from the company confirms the following (at page 96 of the Court Book):
Certificate with volume of withdrawings
Client/Paramous Co “MZXGS”
We/International. Egyptian Co. for production for Aluminium, profiles (Ibal) certify that volume of our client’s withdrawings/Paramous Co. “MZXGS” within the period: 01-01-2000 to 31-12-2001 amounted 1365370.75 L.E. (only one million, three hundred sixty five thousand, three hundred seventy Egyptian pound and seventy five Piaster)
And his dealings during the period 01-01-2002 to 30-09-2002 amounted 1443099.43 L.E (only one million four forty three hundred thousand, ninety nine hundred Egyptian pound and forty three Piaster)
And his withdrawings in full are paid cash.
This certificate is issued by us, and has been given to them at their request, without any responsibility absolutely for us.
Dated on: 07-10-2002
Much of this trading was after the transaction concerning Libya that was the subject of the claim which was said to have occurred in September 2001.
Indeed, in submissions by the advisor for the tribunal, it was said (at pages 16-17 of the transcript):
Now, my client travelled several times to Australia and although he experienced several threats to kill, during this time, sir, he was making money. He is a successful businessman. He doesn’t need to live in Australia to make money. He has indicated in the past he makes money, he travels, he deals with aluminium, furniture and whatever, and the issue of settling in Australia was not an issue. It became only an issue when he got married, became an issue when he got married and he had a family, and he knew for a fact that his quick escape from Egypt or whatever could be in danger since he got married, and he might have a family. He thought several times, and that’s why he went to that country down – and he stayed in Egypt about 10 days. That’s why – in his mind no-one goes back to Egypt, stays 10 days and then leaves, even if that person is so rich. (emphasis added)
I am mindful of the discussions of the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263, Applicant WAEE v MIMA [2003] FCAFC 184: [2003] 75 ALD 630.
When considering the material before the tribunal it does not appear to me that any question realistically arises as to the applicant’s ability to make a living or obtain employment in Egypt, whilst living in Alexandria.
To the extent that it is arguable that the very limited references relied upon by the applicant raise some issues of this type, it is in my view so limited that it is in any event subsumed by the more general findings of the tribunal with respect to general discrimination of Coptic Christians in Egypt.
In the circumstances, I am not satisfied that there has been a failure to exercise jurisdiction or that there is a jurisdictional error shown with respect to the decision of the tribunal. I therefore refuse the application for review.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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