MZZXB v Minister for Immigration - [2014] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXB v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1466

Catchwords:
MIGRATION – Application for judicial review of decision not to grant a Protection Visa – whether Tribunal considered applicant’s membership of particular social groups – whether Tribunal misapprehended or failed to assess the applicant’s modified conduct and/or religious practice claim – whether Tribunal engaged in conscious evaluative assessment of the evidence – whether the Tribunal considered the applicant’s claims cumulatively – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA26
Khan v Minister for Immigration [2000] FCA 1478
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16
MIAC v SZQRB [2013] FCA FC 33
NABE v Minister for Immigration (No 2) [2004] 144 FCR 1
SXCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 102
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184

Applicant:

MZZXB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 2168 of 2013

Judgment of:

Judge McGuire

Hearing date:

2 July 2014

Date of Last Submission:

2 July 2014

Delivered at:

Melbourne

Delivered on:

1 October 2014

REPRESENTATION

Counsel for the Applicant:

Ms Karapanagiotidis

Solicitors for the Applicant:

PB & M Immigration Lawyers

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Australian Government Solicitors

ORDERS

The application filed 10 December 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2168 of 2013

MZZXB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant applies pursuant to the Migration Act 1958 (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) made 19 November 2013 affirming a decision of the Delegate of the Minister (the Delegate) not to grant a Protection (Class XA) Visa (“the visa”).
The applicant relies on his amended application filed 5 June 2014 and written submissions (applicant’s contentions of fact and law) filed the same day.
The first respondent filed written submissions (first respondent’s contentions of fact and law) on 23 June 2014.
The applicant seeks orders:
i)An order that the decision of the Tribunal be quashed;
ii)A writ of mandamus directed at the Tribunal requiring it to determine the applicant’s application according to law;
iii)A declaration that the decision of the Tribunal was not made in accordance with law by reason of the grounds of this application;
iv)An injunction restraining the Minister, by himself or his department, officers, delegates, or agents, from relying or acting upon the decision of the Tribunal;
v)Costs.

Background

The applicant is an Egyptian citizen born in 1951. She holds a current and valid Egyptian passport. She is widowed. She is of Coptic Orthodox Christian religion.
The applicant arrived in Australia in November 2011 on a visitor’s visa. She was visiting her son who holds a provisional spouse visa and lives in Australia.
The applicant is retired from her employment as an assistant manager of the Central Bank of Egypt in Cairo. She has two daughters, one son, and four siblings all living in Egypt.
The applicant says she has well-founded fears of persecution in Egypt at the hands of Muslim extremists because she is of Coptic Christian religion and is a woman. She says she has suffered discrimination and threats, both verbal and physical, at her work and in public because of her distinctive dress and adornments due to her religious affiliation. She claims to have often been forced to stop attending her church and is not free to practice her faith without fear of persecution. She cites attacks against Coptic Christians in Egypt. She says that she has faced many threats as an unaccompanied Coptic Christian woman.
The applicant previously visited Australia in 2010 but did not make an application for a protection visa. She further anticipates persecution if she returns to Egypt as a failed asylum seeker.
The applicant says that there is not adequate protection for her in Egypt.

Decision of the Tribunal

The Tribunal accepted the applicant as Coptic Christian and of Egyptian nationality. The Tribunal accepted that the applicant holds a subjective fear of returning to Egypt but did not accept it to be an objectively well-founded fear noting:
a)The applicant had stable employment for many years and receives a consequent pension. She was promoted in that employment. The Tribunal did not accept that the applicant retired because of harassment or discrimination to a degree amounting to serious harm, as envisaged by the Act. The Tribunal did not accept that the applicant will face risk of serious harm in the future from employment discrimination or harassment given the fact of her retirement and receipt of a pension;
b)As well as considering the applicant’s claims and her own evidence, the Tribunal also took into account country information which supported the view that there was “a wave of sectarian violence against Christians from Muslims disenfranchised by Morsi’s deposal”[1] but found the reports indicative of violence being concentrated or isolated to particular areas or cities, and concluded:
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. Even were it accepted that the shooting of a Coptic girl in Ain Shamps in early August (which is not soundly established by the reporting provided) was religiously-motivated, I do not find this incident in the close aftermath of the Morsi deposal is suggestive the applicant faces a real chance of serious harm now or in the reasonably foreseeable future;
[1] Tribunal Reasons, paragraph 26
The Tribunal also accepted the applicant’s evidence that a Muslim man indecently exposed himself to her and that there are credible reports of increased instances of sexual assault and rape in Egypt following the revolution. However, the Tribunal made a finding that the reports are “highly particularised” and could not be satisfied that women in Egypt generally, or of the applicant’s particular demographic, faced a real chance of being raped or sexually assaulted[2];
[2] Tribunal Reasons, paragraph 28
The Tribunal accepted the visibility of the applicant’s religion but did not accept that the applicant faced an elevated chance of being subjected to sexual harassment, sexual assault or rape by reason of her religion and/or age and/or status as an unaccompanied woman (or widow) to the level of “real chance” now or in the reasonably foreseeable future;
The Tribunal did not accept that the applicant would be required to wear Muslim dress to avoid attack in the context of sectarian violence given the findings elsewhere in the reasons that the applicant faces no real chance of being subjected to physical violence[3];
[3] Tribunal Reasons, paragraph 33
The Tribunal did not accept that the applicant has a genuine subjective fear of being kidnapped and forcibly converted to Islam or, if she holds such fears, that they are rational or well-founded. The Tribunal did acknowledge some credible reports of abduction and forcible conversion, including through marriage. The Tribunal considered the applicant’s personal circumstance together with the degree of alleged abduction/force to conversions from the reports and concluded that the risk to the applicant was negligible, insubstantial and remote;
The Tribunal accepted credible reports of church bombings, burnings, and attacks in Egypt but again concluded them to be relatively isolated and episodic and hence any chance of serious harm to the applicant being remote. In this respect, the Tribunal took into account that the applicant continued to attend her church and religious events until she left Egypt and was satisfied that she would be able to resume her regular church attendance in Cairo without a real chance of harm in doing so. The Tribunal took into account the country information, including the number of Egyptian Christians in the population.
The Tribunal accepted the applicant’s responses in isolating herself in her Cairo apartment post-revolution but noted inconsistencies such as her continued use of the Metro, and concluded that the applicant would not be confined to her apartment in the future out of any well-founded fear of persecution[4].
[4] Tribunal Reasons, paragraph 42
The Tribunal accepted credible reports of episodic violence against Christians but did not conclude that “ordinary Christians in Cairo are being seriously harmed in significant numbers (either by reason of imputed support for the interim government or imputed opposition to an Islamic government) such that – having regard to the applicant’s cumulative personal circumstances, she faces a real chance of harm for this reason – either directly or in the context of general sectarian violence – now or in the reasonably foreseeable future.”[5]
[5] Tribunal Reasons, paragraph 44
The Tribunal noted government statements endorsing protection for Christians in Egypt but also took into account country information suggesting that this protection can, in practice, “be patchy and unreliable, though not in-existent.” Nevertheless, the Tribunal cumulatively considered the applicant’s circumstances and evidence and concluded that she does not face a real chance of serious harm by non-state actors.[6]
[6] Tribunal Reasons, paragraph 46
The Tribunal took into account the applicant’s representative’s submissions in respect of the deterioration of rights of women, Coptic Christians and Coptic women under the new regime and constitution. It was argued that there is a clear tendency towards Sharia and Islamic dominant values. The Tribunal, however, found such argument to be speculative and unconvincing.[7]
[7] Tribunal Reasons, paragraph 48
The Tribunal considered the risks to the applicant upon the fact of her protection visa application becoming known in Egypt but found no real chance that it would become known to Egyptian authorities or others in Egypt, but if known, then no real chance that she would be seriously harmed as a result.[8]
[8] Tribunal Reasons, paragraph 52
The Tribunal considered and accepted that the applicant identifies as being of Coptic ethnicity. It considered this claim cumulative with other claims and found no basis that the applicant would be targeted or harmed by reason of her ethnicity alone.[9]
[9] Tribunal Reasons, paragraph 53
The Tribunal considered the question of complimentary protection pursuant to section 36(2)(aa). The Tribunal considered the applicant’s “accepted evidence” and the definition of “significant harm” in the Act, together with the interpretation of “real risk”.[10]
[10] MIAC v SZQRB [2013] FCA FC 33
The Tribunal concluded[11]:
Accordingly, I find the accepted evidence and country information provided by the applicant (or otherwise cited) offers no substantial grounds for believing the applicant faces a real risk of significant harm – in any form claimed – as a necessary foreseeable consequence of being returned to Egypt, for any of the reasons advanced. I find S36(2)(aa) is therefore not met.
[11] Tribunal Reasons, paragraph 59

Proceedings before this Court

The amended application discloses five grounds of review being:
Ground 1: The Tribunal failed to consider whether the applicant feared serious harm pursuant to S36(2)(a) for reason of:
a) her membership of a particular social group of (PSG) Coptic Orthodox women;
b)her membership of a PSG of unaccompanied Coptic Orthodox women;
c)as a failed asylum seeker.
Ground 2: The Tribunal misapprehended and/or failed to assess the applicant’s modification of conduct and/or religious practice claim.
Ground 3: The Tribunal failed to undertake it’s task of review pursuant to section 414 of the Migration Act in that it made findings without first engaging in any evaluative assessment of the evidence and/or made findings that were unreasonable and/or made findings without any evidentiary basis.
Ground 4: The Tribunal failed to apply the real chance test in its assessment of the effect of the Constitution upon Coptic Christian women.
Ground 5: The Tribunal failed to consider the applicant’s claims cumulatively.
Ground 4 was abandoned by the applicant at the commencement of the hearing.

Ground 1

Assertion that the Tribunal fell into jurisdiction error by failing to consider three claims by the applicant to fear persecution or serious harm pursuant to s.36(2)(a).

It is well established that failure by a Tribunal to consider he applicant’s claim, including each integer of the claim, will lead the Tribunal into jurisdictional error. As the Full Court in allowing an appeal in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[12] held:
If the Tribunal fails to consider a contention that the applicant fears prosecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty to conduct a review of the decision.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.
[12] [2003] FCA FC 184
The obligation in the Tribunal is in respect both claims expressly raised by the applicant or apparent on the material before the Tribunal.[13]
[13] NABE v Minister for Immigration (No 2) [2004] 144 FCR 1

Failed to consider her membership of a particular social group of Coptic Orthodox women.

The applicant’s claim in this respect was clearly before the Tribunal and acknowledged by the Tribunal.[14] The argument is articulated in evidence from the applicant’s representative set out in written submissions of 8 October 2012. The assertion of the applicant as a member of a “Coptic-Women in Egypt” is clearly made out in written submissions from the applicant’s representative dated 9 January 2012.
[14] Tribunal Reasons, paragraph 5
The applicant argues that the Tribunal’s reasons do not disclose that it considered the existence of that PSG and whether the applicant was at risk of harm because of her membership of that group. The intellectual requirement for the Tribunal is clearly set out by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs[15] as follows:
At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part, at least, involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follows the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
[15] [2003] HCA26 at [26]
The applicant refers to the Tribunal’s Reasons at paragraph 53 as demonstrative of a failure to determine and consider the existence of the PSG, the applicant’s membership, and whether the applicant was at risk of harm because of her membership. Rather, the applicant claims, the Tribunal considered only the particular of whether the applicant was at risk of harm due to her ethnicity. Paragraph 53 of the Reasons states:
I accept the applicant identifies as being of Coptic ethnicity, but I find no sound basis in the cumulative claims, evidence and arguments for finding the applicant would be targeted or harmed by reason of her race alone. I find the essential and significant Convention reasons for the harm claimed are the applicant’s religion and/or gender and these are considered elsewhere.

Unaccompanied Coptic Orthodox women

Similarly, the applicant’s material discloses her claim to be a member of this PSG. A clear example is the written submission of the applicant’s representative of 12 July 2013 included at page 423 of the CB as follows:
As a Copt and as an unaccompanied Coptic woman, the chance of her suffering serious harm, including physical attack or mistreatment or being forced to wear the Hijab to avoid attack by Islamic extremists in public, in a climate of violence and violence targeted specifically at Copts cannot be seen as remote or far-fetched.
The applicant says that the only reference in the Tribunal’s Reasons is at paragraph 30 of the Reasons, which say:
I accept the applicant’s religion is visible (through her wrist tattoo and the cross she wears), and that this may elevate the risks to her of occasional verbal harassment in the streets of Cairo – but nothing before me suggests an elevated pattern of sexual harassment or sexual assault or rape for Christian women, including of the applicant’s demographic – in Cairo. I do no accept the applicant’s religion and/or age, and/or status as an unaccompanied woman (or widow) elevates the chance of her being sexually harassed or assaulted or raped to the level of real chance, now or in the reasonably foreseeable future. I consider it elsewhere how these dynamics might interact in relation to religious harassment of Christian women in Egypt.
Essentially the applicant argues that the Tribunal’s consideration did not go far enough. It failed to consider whether she was at risk of all forms of harm, as claimed, rather than just of sexual harassment or assault.

Failed asylum seekers

The submissions from the applicant’s representative made 9 January 2012 clearly claim an alleged risk of harm for the applicant to be returned to Egypt as a failed asylum seeker.[16] The claim included risk of attack or being killed on account of an imputed criticism of Islam.
[16] CB, page 53
The applicant argues that the Tribunal dealt with this matter at paragraph 52 of the Reasons, which state:
At the hearing, the representative confirmed that the person (a client) who received a Departmental decision mistakenly naming the applicant, was a Coptic Christian woman who does not know the applicant’s claim. The representative conceded, in these circumstances, that the risks were low that the applicant’s protection application would become known in Egypt through this client. Given this, and on the material before me, I find there is no real chance the applicant’s protection application in Australia would become known to the Egyptian authorities or others in Egypt, or if known, that there is any real chance she would be seriously harmed as a result.
The applicant says that the above does not address the applicant’s claim to be at risk as a failed asylum seeker and the claim is not addressed elsewhere. The applicant says that the failure to consider a clearly articulated claim causes the Tribunal to fall into jurisdictional error.[17]
[17] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
The respondent acknowledges the various authorities setting out the process required to identify PSGs, membership of a PSG, and the steps required in assessing claims made by an individual member. The respondent argues, however, that regardless of any preferred approach, a Tribunal does not necessarily fall into jurisdictional error in first considering the issue of causation, being whether membership as a matter of fact caused the fear of persecution in the applicant. That is, the Tribunal is entitled to make a finding of fear of harm by reason of membership of another group or other groups, or not at all, and not specifically as to the group of which membership is asserted. Following this course, the Tribunal is not required to address the existence of the claimed PSG.

The respondent mounts an alternative argument that the Tribunal dealt with the substance of each asserted PSG. The respondent says that a reading of the Tribunal’s Reasons makes it clear that the Tribunal put its mind to the actual claims before it and made findings of fact demonstrative of a conscious consideration of those claims. The respondent says that the Tribunal recited the claims and that the three relevant particular social groups are referenced with reference to the submissions in the evidence. Essentially, the respondent argues that the Tribunal need not be specific as to detail but the Reasons should disclose that the Tribunal has understood the various claims, considered the evidence and made conscious considerations.
The respondent’s argument gleans as some force from the Act itself at section 91R(1) which provides:
91R Persecution
(1)     For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugee’s Convention as amended by the Refugee’s Protocol does not imply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)     the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
The wording of the section is important in its use of the word “unless”.
Selway J considered this issue in SXCB v Minister for Immigration and Multicultural and Indigenous Affairs[18]:
The applicant complains that the decision of the Tribunal was affected by jurisdictional error. Two grounds of error are identified. First, the applicant says that the Tribunal erred in failing to make a finding of the existence or otherwise of the claimed particular social groups. Plainly, if a decision is to be made that a person is a refugee by reason of his or her membership of a particular social group, then it is a necessary precondition of that finding that the decision-maker determine whether or not the particular social group exists. It may be advisable to answer that question first, as was suggested by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389 at 394, [26].
One obvious advantage in answering that question first is that it will alert the decision-maker to the possibility that other social groups may need to be considered. It will also assist in the subsequent factual enquiries. However, desirable as that course may be in a particular case, it is not a jurisdictional error for the decision-maker to proceed to answer the factual question of causation first.
[18] [2005] FCA 102 at [16] and [17]
At paragraph 53 of its Reasons the Tribunal made a finding of fact in respect of causation. That finding was:
I accept the applicant identifies as being of Coptic ethnicity, but I find no sound basis in the cumulative claims, evidence and arguments for finding the applicant would be targeted or harmed by reason of her race alone. I find the essential and significant Convention reasons for the harm claimed are the applicant’s religion and/or gender, and these are considered elsewhere.
Having made that finding of fact, it is not necessary for the Tribunal to move to consideration of the existence or membership of the other PSGs. That is, whilst a process of establishing the existence of a particular PSG might well be preferable in most cases, it is not mandatory.
It is not for me to determine whether the Tribunal was correct in its findings of fact. I am satisfied that the Tribunal was entitled to put its mind first to the issue of causation. Given that particular factual finding, it was not incumbent upon the Tribunal to determine the existence of a particular PSG. Consequently, I do not find that the Tribunal fell into jurisdictional error by reason of Ground 1 of the application.

Ground 2

The second ground of review is in respect of the applicant’s claims in relation to modification of her conduct due to religion or persecution on the basis of her religion and that the Tribunal either misapprehended and/or failed to assess the applicant’s claimed modification of conduct and/or religious practice.
Much of the thrust of submissions for the applicant were directed at paragraph 40 of the Tribunal’s reasons which are worthy of setting out here. Under the heading “Freedom of religion and freedom of movement” the Tribunal said at paragraph 40:
At the hearing, the applicant said she continued attending church and religious events regularly in Ain Shamps up until she left in late 2011. She said she was fearful but her faith compelled her to attend. Having regard to the cumulative findings in this decision, I find the applicant would be able to resume her regular church attendance in Cairo and would not face a real chance of harm in doing so.
There is nothing before me which suggests that the significant Christian minority in Egypt (estimated at around 8-10 million) are not generally able to attend church and express their religion. Nothing in the evidence suggests that the applicant modified her religious practice out of fear, or that she has been restricted in attending church freely. Having regard to my assessment of country information throughout this decision, I find there is no real chance the applicant would be required to modify her religious conduct out of well-founded fear, to any degree which might constitute serious harm, now or in the reasonably foreseeable future.
Contrary to the phrase in paragraph 40 “nothing in the evidence suggests that the applicant modified her religious practice …” the applicant has raised and particularised her alleged modification of her behaviour. Most evident is the submission of her representative in a letter of 8 October 2012 to the refugee Tribunal and found in the CB at page 176 and as follows:
Since the revolution, she has:
·    been physically threatened and mistreated on public transport;
·    faced sexual harassment and attempted rape;
·    been subjected to vitriolic messages against Copts from local mosques inciting hatred and violence against Copts.
As a result of her experience and fears, she has testified that, despite the prominence her faith has in her life, she has been forced to:
·    stop attending church services with the frequency she used to;
·    stop attending other church gatherings and pilgrimages including to Monasteries;
·    confine herself to her home to avoid harm;
·    avoid going out by herself in public other than for essential reasons;
·    modify her clothing and appearance in public in order to avoid risk of harm.
The applicant adduced evidence in the form of a letter dated 27 September 2011 from the bishop of the Coptic Orthodox Church, Melbourne diocese which says in part:
The applicant has had to remove all apparent Christian symbols from her body in public places and has reduced the amount of times she attends church services due to her fear of being further persecuted or harmed as a result of her religion.
The applicant relies on the phrase in paragraph [40] that “nothing in the evidence suggests that the applicant modify her religious practice …” as an indication that such, being a finding of the Tribunal, is factually incorrect and injects the Tribunal with a jurisdiction error in that it did not exercise its jurisdiction in determining the applicant’s claim, namely, the modification of her behaviour.
The applicant relied on the judgment of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 where their Honours observed at [45]:
In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for the visa is … The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons.
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s414, to conduct a review of the decisions. This is a matter of substance, not a matter of the Tribunal’s published reasons for decision.
In summary, the applicant says I should read the phrase “nothing in the evidence suggests …” as evidence of failure in the Tribunal to addressing the clear claims and supporting evidence before it.
The respondent argues that the phrase at paragraph [40] “nothing in the evidence suggests …” is a conclusion in respect of all of the relevant evidence, including contradictory evidence, and perhaps put inelegantly or, at least, ambiguously by the Tribunal. Paragraph 40 must be read within context. It appears in the reasons under the heading Freedom of Religion and Freedom of Movement” which sits above paragraph 39 (which, interestingly, also contains the phrase “nothing before me suggests …” used in the sense of a conclusion).
The applicant is correct in that the Tribunal clearly had before it evidence of her claim to have modified her behaviour in respect of religious practice. Equally, however, the Tribunal had contrary or inconsistent evidence including country information. Paragraph 40 itself contains the comment “There is nothing before me which suggests that the significant Christian minority in Egypt (estimated at 8-10 million) are not generally able to attend church and express their religion.”
Contrary to the submission of counsel for the applicant, I am satisfied that paragraph 40 shows the Tribunal to have both apprehended and assessed the applicant’s claim to a modification of her conduct and/or religious practice. The use of the phrase “nothing in the evidence…” is unfortunate but when seen in context and in its conclusive sense is not demonstrative of a failure to apprehend or address the applicant’s claim in that integer.
I am not satisfied that the Tribunal fell into error in the terms of ground 2 of the application. Consequently, I do not need to address the respondent’s alternative argument.

Ground 3

This complaint can be summarised that the Tribunal made three findings of fact where it did not engage or conduct “real or active consideration of the material that was before it”. Those three findings are:
a)A finding that violence was concentrated in certain areas of upper Egypt suggestive of a small number of a attacks in Cairo; [26]
b)A finding that the information reported only episodic violence and that ordinary Christians in Cairo were not at risk of serious in significant numbers; [44]
c)A finding that whilst there had been increasing numbers of church bombings, burnings and attacks, these remained relatively isolated, episodic and responsive to political circumstances. [39]
The reasons of the Tribunal must disclose a conscious consideration of the submissions, evidence and material before it. The reasons should demonstrate an evaluation by the Tribunal rather than a simple statement of the claim.[19]
[19] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38].
The applicant’s counsel distinguishes this argument from a simple veiled attack on the findings of fact of the Tribunal. The argument here is whether the review obligation of the Tribunal was properly undertaken and whether its findings were rational and supported by probative evidence?
The applicant concedes that this “reasonably open” argument has a high threshold so as not to lapse into an attempt at a merits review, which, of course, is not the function of this court. The test and the distinction are discussed by the High Court in Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16 where their Honours at [130] say:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision-maker could arrive on the same evidence. In other words, accepting, for the sake of the argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complainant that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been referred to another possible conclusion.
In this ground, the applicant concentrates on the findings of the Tribunal that certain violent activity is isolated or sporadic. Counsel refers to what she describes as “overwhelming country information” and argues that there was no conscious assessment by the Tribunal. Paragraph [40] of the Tribunal’s reasons as set out above are cited as an example. Similar argument is mounted in respect of the findings at paragraph [41] where the Tribunal says:
The applicant referred at the hearing to attacks on around 10 Christians in her area in [sic] by Muslims arising from ongoing efforts to convert the school into a church. She said the victims were taken to hospital and the police did not assist. Notwithstanding that she did not appear to mention this at all in detailed statements up to the hearing, and even accepting these events took place, I do not find the applicant – as on the evidence – someone not directly involved in the school or the efforts to build the chance – faces a real chance of serious harm arising from this situation, now or in the reasonable future.
The applicant refers to particular evidence before the Tribunal, including:
a)The applicant’s representative’s letter of 12 July 2013, which quotes an article from The Christian Post particularising violence towards Coptic Christians.
b)A further submission from the applicant’s representative dated 19 August 2013 referencing country information, including a quote from “The Morning Star”:
Violence or intimidation against Copts has become almost a daily occurrence in most parts of Egypt.
c)A media release from the Australian Christian Lobby dated 8 April 2013, which includes the quote:
… concern at the last attack on Coptic Christians in Egypt, which occurred at the epicentre of the international Coptic Orthodox community, and has urged the Australian Government to announce these attacks.
The Coptic community in Australia sees this as a symbolic attack on Christianity on [sic] Egypt, which is incomprehensible.
No minority in any country should be subjected to fear of expressing their faith. Sadly, violence against Copts has escalated since the Muslim Brotherhood came to power…
The Coptic community is in a minority position in a Muslin country. This is simply another incident in a long line of suffering for these people by attackers deliberately targeting them for their faith.
These examples, together with others, cause the applicant to argue that there was material before the Tribunal suggestive of violence and intimidation generally, and certainly not isolated or sporadic. The applicant says that the Tribunal’s reasons do not show a conscious consideration of this evidence in the process of arriving at a conclusion that, as a matter of fact, violence and intimidation is isolated and/or sporadic.
The respondent says there is no jurisdictional error in the Tribunal, as set out in ground 3. He says that the Tribunal’s reasons must be read within full and proper context. The initial application was lodged on 12 December 2011. The hearing before the delegate took place on 28 May 2012. The application for review by the Tribunal was lodged on 4 June 2012. A revolution took place in Egypt in June 2013, with President Morsi being deposed on 30 June. The applicant’s representative sent further submissions and country information to the Tribunal in August 2013. Paragraph [23], [24] and [25] of the Tribunal’s reasons clearly reference this additional material, which comprises substantially of country information, but accompanied further submissions from the applicant’s representative.
Paragraph [26] of the reasons demonstrates a conscious consideration of that material. The Tribunal hearing took place on 23 October 2013. The applicant was present, and gave further evidence. At paragraph [26] of the reasons, the Tribunal member says:
I find the material provided supports the view that there was a wave of sectarian violence against Christians from Muslims disenfranchised by Morsi’s deposal. However, I find the reports indicative that the violence was concentrated in 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 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 the episodic violence from political tensions in Egypt could occur in the foreseeable future. Even were it accepted that the shooting of a Coptic girl in Ain Shamps in early August (which is not soundly established by the reporting provided) was religiously-motivated, I do not find this incident in the close aftermath of the Morsi deposal is suggestive the applicant faces a real chance of serious harm now or in the reasonably foreseeable future.
The issue is whether the above-mentioned findings were reasonably open to the Tribunal on the evidence, including the evidence provided post-hearing. That evidence includes the letter from the applicant’s representative of 19 August 2013, which makes the statement
It is submitted that since President Morsi’s removal of violence against Copts and attacks against churches and property has become almost a daily occurrence throughout Egypt.
The quote from “The Morning Star” article is supportive and says:
Violence or intimidation against Copts has become almost a daily occurrence in most parts of Egypt.
That letter annexes further materials. Paragraph [25] of the reasons confirms that the reports were before the Tribunal and considered by it.

The first annexure to the letter of 19 August 2013 is a copy of the Morning Star news article which refers to:
A Coptic Christian girl walking home from a Bible class at her church was shot and killed this week in Cairo by an unidentified gunman, human rights activists said today.
That same article continues:
Amid a near-constant din or threats and scattered attacks against the Christian population in Egypt by militant Islamists…
Violence or intimidation against Christians has become almost a daily occurrence in most parts of Egypt. In the aftermath of the protests that led to the removal of Mohamed Morsi as president, militant supporters of Morsi have publicly scapegoated the Coptic Christian minority for the Islamic Brotherhood-backed president’s fall from power.
That same article then references specific examples of violence at (CB at 444) the Morning Star article continues:
Members of the Muslim Brotherhood on Aug. 2 distributed flyer (sic) threatening to attack church buildings and police stations in Minya in Upper Egypt, according to local residents…
On the same day Jessica was killed, masked gunmen burst into a grocery store in Jazeerat Al Khazendara village in Souhag and attacked a Coptic Christian family, according to the rights activists…
Along with the shootings, the towns of Minya and Assuit have been the sites of repeated attacks against Christians…
At the same time, Islamists have been roaming Christian areas of Assuit handing out anti-Christian flyer and intimidating any Coptic businessowner who keeps his store open, rights activists said…
On Saturday (Aug. 3), roughly 20 people were injured and five Coptic-owned homes were destroyed along with several Coptic-owned businesses in the village of Al-Sharqiya in Minya Governorate when a political dispute at a Coptic-owned café turned ugly. A fight that started over changing the channel from a news program quickly led to Islamist mobs rampaging through the village with clubs, swords and Molotov cocktails, according to humans rights activists.
Mina Thabet, spokesman of the Maspero Students Union, said things could get worse in Minya, “For the past few days, we have had many instances of attacks against Copts.” Thabet said. “Threats are widespread. In the Minya Governorate, I think it will be hard for the next few days.”
A second article was before the Tribunal, being from the Australian Coptic Movement. The article is headed “Coptic Churches Burn Across Egypt Whilst the World Turns a Blind Eye”. The article proceeds to provide a list of attached churches as of 14 August 2013. It discloses attacks on 13 towns or places. Multiple attacks are noted on some targets including Assuit, Souhag, Minya and Fayoum. Similarly, single attacks are noted at other targets including Cairo. It is referenced in the reasons, I am satisfied that the Tribunal had before it the above material in the form of the articles provided. I am satisfied that it addressed the contents of the articles. Whilst I am satisfied that there is material in the articles that can be interpreted as supporting a claim of widespread violence in Egypt, similarly, the particularisation of certain places, towns, and events leaves it open, in my view, for a finding that the violence is isolated and/or episodic. That the Tribunal considered the material supportive of the applicant’s argument is evidence in paragraph [47]. It may be, of course, that another tribunal or court would have reached a conclusion different than that of this Tribunal. That, however, is not the test. Rather, I am satisfied that on a consideration of all of the material before the Tribunal, that the determination and findings made were ones that were reasonably open to the Tribunal. A consideration of the evidence does not lead to any conclusion that the findings were illogical or irrational. Consequently, the Tribunal did not fall into jurisdictional error in the terms of ground 3 of the application.

Ground 4

Abandoned by the applicant.

Ground 5

The applicant here claims that the Tribunal failed to consider the applicant’s claims cumulatively. Matters of convenience and clarity might give a preference for the Tribunal in dealing with each integer of the applicant’s claim separately. However, there is also an obligation to consider the cumulative effect of the integers[20]. Counsel for the applicant acknowledges and concedes that the Tribunal’s reasons are littered with reference to the term “cumulative” in respect of its considerations. She says, however, that this alone is not enough. There is a need for the Tribunal to go beyond mere or token reference and consciously consider the cumulative effect, if any.
[20]Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [7]
It is clear that the Tribunal in its reasons made a number of findings sympathetic to the applicant’s argument. The applicant’s counsel helpfully summarised them as follows:
·That the applicant had been assaulted and harassed and the nature of being “spat on, verbally insulted by Muslims… had her hair pulled… told to go to the ladies’ carriage because she was not veiled, or had Muslim individuals in various contexts observe to her… that Salafists… would kill Christians.” (CB 465 [20]). She had also been looked at menacingly and been treated disrespectfully by Muslim neighbours and subjected to anti-Christian public broadcasts.
·People knocked on her door and she heard gunfire on one occasion and stayed barricaded indoors (CB 465 [21]).
·She was harassed for reasons of her gender in the form of a man indecently exposing himself to her while making verbal comments (CB 467 [27]).
·The applicant’s religion was visible which might “elevate the risk to her of occasional verbal harassment in the streets of Cairo” (CB 467 [30]).
·The applicant may, from time to time, receive verbal comments about her hair being uncovered (CB 468 [32]).
·The applicant may at times have isolated herself in her apartment out of subjective fear in the post-revolution period (CB 470 [42]).
The applicant’s representative in a written submission of 12 July 2013 (at CB 423) summarised her claims cumulatively as follows:
I ask that you also take my client’s particular circumstances into account as argued in submissions dated 26 February 2013 and submit that given the current conditions in Egypt, in which violence, insecurity and lack of State protection persists, in view of her gender, age and poor state of health, there is a real chance that she will experience serious harm amounting to persecution should she be returned to Egypt.
I accept that this paragraph represents an invitation to the Tribunal to consider the applicant’s case cumulative which, of course, is the obligation.
I accept the proposition that a consideration of particular claims individually might not reasonably support the existence of the necessary well-founded fear of persecution but when taken together could support that fear.[21]
[21] Khan v Minister for Immigration [2000] FCA 1478
Whilst I accept that the Tribunal does not discharge its obligation by simply using the word “cumulatively”, the use of that terminology can be indicative of the process and conclusion reached by the Tribunal. In this sense, the reference to the premise leading to the conclusion is relevant. For example, at [18] the Tribunal references a number of facts. It continues:
However, for the following reasons, and having regard to the individual and cumulative claims and accepted evidence and relevant country information…
In this case, the use of the word “cumulative” is a clear reference with an obvious nexus to the facts. Similar use of the word “cumulative” but with an obvious nexus to fact and conclusion is apparent at paragraphs [46], [49], [53], and [54]. The word “cumulative” does not sit incongruent, inappropriate, or unnecessary within the context. Rather, the use of the word is the means by which we can, indeed, observe the conscious consideration by the Tribunal of the collective claims of the applicant. As such, I am not satisfied that this ground is made out.

Conclusion

Given I have not been satisfied that any of the four argued grounds of the judicial review have been made out, the application is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 1 October 2014