MZZXZ v Minister for Immigration

[2014] FCCA 1096

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1096

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visas – jurisdictional error found – application allowed – declaration made – writs issued – remitted to the Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.65, 414

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR  611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171
SZGUW v Minister for Immigration and Citizenship [2008] FCA 91

First Applicant: MZZXZ

Second Applicant: MZZYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2310 of 2013

Judgment of: Judge Hartnett

Hearing date: 27 May 2014

Delivered at: Melbourne

Delivered on: 26 August 2014

REPRESENTATION

Counsel for the applicants: Mr Lewis

Solicitors for the applicants: PB & B Immigration Lawyers

Counsel for the respondents: Ms Batten

Solicitors for the respondents: Australia Government Solicitor

DECLARATION

The decision of the Second Respondent dated 30 November 2013 was not made according to law.

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 30 November 2013.

2. A writ of mandamus issue remitting the matter to the Second Respondent to consider and determine according to law the application made to it by the applicants on 14 June 2012 for review of the delegate of the First Respondent’s decision.

3. The First Respondent pay the applicants’ costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2310 of 2013

MZZXZ

First Applicant

MZZYA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 23 December 2013, the applicants made an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 30 November 2013 (‘the Decision’).  By that decision, the Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds (of which there are five) of the application are set out in an Amended Application filed 6 May 2014 as follows:-

   “1. The second respondent’s finding that the applicants’ fears of persecution were not well-founded was so unreasonable that no reasonable decision-maker could have made that finding and/or the finding was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.

   2. The second respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it made findings for which there was no evidence or no probative material and/or misconstrued or failed to consider the applicants’ claims and/or made findings that were so unreasonable that no reasonable decision maker would have made them and/or the findings were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   Particulars

   The second respondent made the following findings for which there was no evidence and/or no probative material and/or were based on a misconception of the applicants’ claims and/or were so unreasonable that no reasonable decision maker would have made them:

   a. The second respondent stated that it did not find that the country information provided -including the post-hearing period as it relates to the post-Morsi period - supported the view that there were anything more than isolated reports of ordinary Christians in Cairo (or Christians of the applicants’ general demographic in Al Zaitoun or Cairo) being seriously harmed [paragraph 49 of the Reasons];

   b. The material provided supports the view that there was a wave of sectarian violence after President Morsi’s removal, however, the reports were indicative that violence was concentrated in El Minya, Assiut and other areas of Upper Egypt and suggestive of a small number of attacks in Cairo [paragraph 50 of the Reasons].

   3. The second respondent failed to undertake its task of review pursuant to section 414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence.

   Particulars

   The second respondent made the following findings adverse to the applicants:

   a. The second respondent did not find that the country information provided – including the post-hearing period as it relates to the post-Morsi period - supported the view that there were anything more than isolated reports of ordinary Christians in Cairo (or Christians of the applicants’ general demographic in Al Zaitoun or Cairo) being seriously harmed [paragraph 49 of the Reasons];

   b. The material provided supports the view that there was a wave of sectarian violence after President Morsi’s removal, however, the reports were indicative that violence was concentrated in El Minya, Assiut and other areas of Upper Egypt and suggestive of a small number of attacks in Cairo [paragraph 50 of the Reasons];

   The second respondent made the above conclusive findings without evaluation or assessment of the claims and therefore failed to properly determine whether the applicants’ fear of persecution was objectively well-founded.

   4. The second respondent failed to consider the totality of the applicants’ claims and in so doing failed to correctly apply the test outlined by the High Court in Chan v Minister for Immigration and Ethnic Affairs ((1989) 169 CLR 379) in relation to whether the applicants had a well-founded fear of persecution;

   5. The second respondent committed a jurisdictional error by failing to consider an integer of applicant’s claims in that the second respondent failed to consider whether applicant MZZXZ was a member of a particular social group namely Coptic Christian Women in Egypt.”

3. The applicants relied upon the Amended Application filed 6 May 2014, the Applicants’ Outline of Submissions filed 6 May 2014 and the Affidavit of Ms Maria Psihogios-Billington sworn and filed on 6 May 2014. The applicants seek a declaration that the Decision was not made according to law, an order quashing the Decision and a writ of mandamus. Such relief can only be granted where jurisdictional error attends the Decision.

4. The First Respondent filed a Response on 8 January 2014 seeking that the application be dismissed and the applicants pay the First Respondent’s costs of the proceedings. A Court Book was filed in the proceedings on 1 April 2014 and its contents are evidence in the proceedings. The First Respondent filed an Outline of Submissions on 20 May 2014.

Background

1. The applicants are husband and wife and are citizens of Egypt. They are aged 67 and 58 respectively. Both applicants are of Coptic Orthodox Christian religion.  The applicants’ two sons live in Australia.

2. The applicants arrived in Australia on tourist visas on 23 November 2010 and lodged their Protection (Class XA) visa applications on 20 October 2011 (‘the visa applications’).

3. On 6 June 2012, the delegate refused the visa applications.

4. On 14 June 2012, the applicants applied to the Tribunal for a review of the delegate’s decision.

5. The applicants were represented by their solicitor migration agent, Ms Maria Psihogios-Billington, at the Tribunal hearing on 17 December 2012. They were present to give evidence and present arguments. Both also sought complementary protection. An interpreter in the Arabic and English languages was made available to them.

6. The applicants claimed that they feared they would be harmed due to their religion as Coptic Christians, their ethnicity as Coptic Egyptians, their imputed anti-Islamic and anti-governing Egyptian regime political opinions and their membership of the particular social group of failed asylum seekers. The First Applicant wife additionally claimed that she feared she would be harmed due to her membership of the particular social group of Coptic Christian women in Egypt. These claims were made at the hearing and in other evidence provided in comprehensive pre and post-hearing written submissions.

The Tribunal’s Decision

1. On 30 November 2013, the Tribunal affirmed the delegate’s decision to not grant the applicants Protection (Class XA) visas.

2. As accurately summarised in the First Respondent’s Submissions filed 20 May 2014, the Decision was as follows:-

   “12. The Tribunal did not accept the applicants had subjective fears of harm to the level of persecution when they left Egypt. The Tribunal acknowledged significant shifts in Egypt’s political dynamics since November 2010 and accepted the applicants each had a (sic) strong subjective fears of returning to Egypt but, having regard to the individual and cumulative claims, the accepted evidence and relevant country information, did not accept the applicants’ stated fears of persecution were objectively well-founded.

   13. The Tribunal accepted the applicants were Coptic Christians who generally continued attending church and religious events regularly in Cairo before they came to Australia. However, the Tribunal did not accept the applicants face any real chance of serious harm from Muslims by the essential and significant reason of their religion. Further, the Tribunal considered the harm perpetrated by the army was particularised by time and events and was not ongoing.

   14. The Tribunal found the applicant wife embellished or overstated the frequency of alleged harassment from Muslims, and did not accept these instances occurred constantly or often. The Tribunal found that even accepting instances of “street-based harassment”, taken individually or cumulatively this did not amount to serious harm.

   15. The Tribunal found there was no real chance the applicants would be required to modify their religious conduct to any degree which might constitute serious harm. The Tribunal considered the attacks on churches remain “relatively isolated and episodic, including in response to political circumstances”, and rejected the applicants claim of serious harm on this basis.

   16. The Tribunal was not prepared to “extrapolate a real chance of serious harm to the applicants personally in Cairo” from the a (sic) wave of sectarian violence against Christians from Muslims disenfranchised by Morsi’s deposal, which it considered to be “isolated, small in number, and particularised by sectarian tensions and specific circumstances in the areas in which they occurred.”

   17. The Tribunal did not accept the information provided soundly supported any view that “all women or Christian women faced elevated risks of sexual violence by the essential and significant reason of their religion and/or gender”, and did not accept the applicant wife faces a real chance of sexual violence in any form, now or in the reasonably foreseeable future. The Tribunal found the applicant wife faced “no real chance of rape or sexual assault now or in the reasonably foreseeable future in the context of her daily life in Al Zaitoun or Cairo” Further, the Tribunal did not accept the applicant wife’s fear of being kidnapped, raped and forcibly converted to Islam to be well-founded.

   18. The Tribunal concluded that the applicant wife personally faced “no more than a very remote (and not real) chance as a woman in her daily life and accepted circumstances and demographic in Cairo of being subject to any instance/s of physical harassment. The Tribunal did not accept the applicant wife would be regularly harassed in her daily life sufficient to amount to serious harm.

   19. The Tribunal found there was no real chance the applicants will personally face any real chance of serious harm flowing from theft, looting or shop/damage destruction, even accepting on some occasions the perpetrators may be motivated by religion.

   20. The Tribunal found no sound basis in the cumulative claims for finding the applicants would be targeted or harmed by reason of their race alone.

   21. The Tribunal rejected the applicants’ claim based on their imputed political opinion. The Tribunal accepted the country information documented instances of episodic violence against Christians in Assiut, Aswan, El Minya, and other areas (most intensely in areas outside Cairo), but did not accept it supported the view that there were anything more than isolated reports of ordinary Christians in Cairo (or Christians of the applicants’ general demographic in Al Zaitoun or Cairo) being seriously harmed for this reason.

   22. The Tribunal rejected the applicants’ fear of serious harm on the basis of being failed asylum seekers. It did not accept the authorities or the applicants’ neighbours would presume the applicants had sought protection, or that the application would become known to the Egyptian authorities or to others in Egypt. There was no evidence to support the conclusion Christian failed asylum seekers faced serious harm.

   23. The Tribunal also considered whether the applicants met the complementary protection criteria but was not satisfied that there was a real risk that the applicants would suffer “significant harm” on their return to Egypt.”[1]

   [1] First Respondent’s Outline of Submissions filed 20 May 2014.

Consideration

Ground 1

1. In respect of ground 1, the applicants argue that the Tribunal’s finding that the applicants’ fear of persecution was not well-founded was so unreasonable that ‘no reasonable decision-maker could have made that finding and/or the finding was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.”[2] The argument was made on the basis of the Decision’s reference to relevant country information.

   [2] Applicants’ Outline of Submissions filed 6 May 2014 [15].

2. The Tribunal adopted as accurate the findings of the United States Commission on International Religious Freedom (‘the Commission’) in its 2012 Annual Report (‘the Annual Report’). The Tribunal stated, at paragraph 105 of its Decision, that:-

   “The available country information about the position of the Coptic Christian community in post-Mubarak Egypt is summarised in the United States Commission on International Religious Freedom 2012 Annual Report, in which Egypt was designated a Country of Particular Concern because of “systematic, ongoing and egregious violations of religious freedom”.” (footnote omitted).

   The Tribunal then went on to state, that whilst one commissioner dissented:-

   “… the majority of information from other sources, including media and human rights reports, supports the findings made by the majority of the Commission …”[3]

   [3] Refugee Review Tribunal Decision Record dated 30 November 2013 [105].

3. The Commission’s findings, as accepted by the Tribunal as an accurate assessment of the country information relating to post-Mubarak Egypt, are as set out in annexure ‘MPB-1’ at page 50 of the Affidavit of Ms Maria Psihogios-Billington and are as follows:-

   “Over the past year, the Egyptian transitional government continued to engage in and tolerate systemic, ongoing, and egregious violations of freedom of thought, conscience and religion or belief.  Serious problems of discrimination, intolerance, and other human rights violations against members of religious minorities as well as disfavored Muslims, remain widespread in Egypt. Violence targeting Coptic Orthodox Christians increased significantly during the reporting period.  The transitional government has failed to protect religious minorities from violent attacks at a time when minority communities have been increasingly vulnerable.  This high level of violence and the failure to convict those responsible continue to foster a climate of impunity, making further violence more likely.  During the reporting period, military and security forces used excessive force and live ammunition targeting Coptic Christian demonstrators and places of worship resulting in dozens of deaths and hundreds of injuries. …

   Based on these concerns, USCIRF again recommends in 2012 that Egypt be designated as a “country of particular concern” or CPC, for systematic, ongoing, and egregious violations of religious freedom. … Despite claims by the Supreme Council of Armed Forces (SCAF) that it dismantled the state security apparatus, partially lifted the state of emergency, and addressed some ongoing religious freedom concerns, discriminatory and repressive laws and policies that restrict freedom of thought, conscience and religion or belief in Egypt remain in place.  Religious freedom conditions have not improved in most areas and attacks targeting religious minorities have continued.  In 2011, violent sectarian attacks, targeting primarily Coptic Orthodox Christians, have resulted in nearly 100 deaths, surpassing the death toll of the previous 10 years combined ...”[4]

   [4] Annual Report of the United States Commission on International Religious Freedom March 2012.

4. The Tribunal, having adopted as accurate the findings of the Commission, then went on to consider very serious examples of persecutory acts against Coptic Christians and their churches and properties in support of those findings. There was not protection by the State and a likelihood of further persecution. Given the finding of the Tribunal in paragraph 105 of its Decision, I agree that the Tribunal had no basis to then rationally conclude that the applicants’ subjective fears of persecution were not well-founded. 

5. Counsel for the applicants relied upon the High Court decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR  611 at [135] where Crennan and Bell JJ held:-

   “a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”

6. Further, Counsel for the applicants relied upon the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] where Hayne, Kiefel and Bell JJ held that:-

   “… Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. The First Respondent argued that the Tribunal considered other, more recent, material when looking at country information being that contained in Department of Foreign Affairs and Trade (DFAT) Report 1490, released to the Tribunal on 5 April 2013, a Reuters article from 7 November 2012 and a 5 May 2013 Washington Post article. The First Respondent argued that the inclusion of such country information provided “probative material or logical grounds”.[5] However, none of these inclusions overrode the finding by the Tribunal as set out on paragraph 105 of its Decision, nor disturbed the significant weight attributed to the Commission’s findings by the Tribunal. Nor did the contents of such material necessarily logically lead to a conclusion that the applicants’ fears were not well-founded.

   [5] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 [40] per Gleeson CJ and Hayne J.

1. The applicants’ submitted, and the Court is satisfied, that the Commission’s, and consequently the Tribunal’s findings, are incapable of rationally or logically leading to any conclusion other than that the applicants’ subjective fears of persecution were well-founded. To find otherwise is unreasonable and irreconcilable with the finding made by the Tribunal at paragraph 105 of its Decision. As a result, jurisdictional error in the Tribunal’s Decision is made out.

Ground 2

1. The applicants’ argue that the Tribunal made two findings, being the findings contained in paragraphs 49 and 50 of the Decision, for which there was no evidence and/or no probative material and/or the Tribunal misconstrued or failed to consider the applicants’ claims and/or the Tribunals findings were so unreasonable that no reasonable decision maker would have made them and/ or the findings were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

2. At paragraph 49 of its Decision, the Tribunal stated that:-

   “49. It is argued the applicants face risks of persecution in Egypt because, as Christians, they will have anti-Muslim/Islamist/government views imputed to them. I accept there are credible reports of protesters with imputed anti-government views (both against the Morsi government and now the interim-government) being killed or seriously harmed in the post-revolution period.  I find the information provided credibly documents instances of episodic violence against Christians in Assiut, Aswan, El Minya, and other areas (most intensely in areas outside Cairo) occurring in the weeks after Morsi’s deposal, by disenfranchised Islamists. However, I do not find the country information provided – including in the post-hearing period as it relates to the post-Morsi period - supports the view that there are anything more than isolated reports of ordinary Christians in Cairo (or Christians of the applicants’ general demographic in Al Zaitoun or Cairo) being seriously harmed (either by reason of imputed support for the interim government or imputed opposition to an Islamist government) such that – having regard to the applicants’ cumulative personal circumstances - they face 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.”

3. And at paragraph 50 of its Decision the Tribunal stated:-

   “50. 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 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 small number of Christians murdered (outside Cairo) in the close aftermath of the deposal, I find these events are isolated, 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 applicants personally in Cairo 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 applicants face a real chance of serious harm now or in the reasonably foreseeable future.”

4. “The country information provided … in the post-hearing period”[6] is, although not specified, logically and by reference to paragraphs 47 and 48 of the Decision, the submission of the applicants’ dated 19 August 2013 (and being post President Morsi’s removal from office on 31 July 2013) which provided, in support, two pieces of country information: An Australian Coptic Movement article dated 16 August 2013; and a Morning Star News article dated 9 August 2013. The Morning Star News article stated that “violence or intimidation against Copts has become almost a daily occurrence in most parts of Egypt.” The same article referred to the murder of a Coptic Christian girl walking home from Bible class and its likely religious motivation. In the Australian Coptic Movement article, it provided a list of 45 churches and a further 11 Christian institutions which have been looted and burnt. The list related to cities and towns across Egypt, including Cairo. The applicants argue that the Tribunal’s finding from this information, that the violence was concentrated in El Minya, Assiut and other areas of Upper Egypt is unreasonable in the Wednesbury[7] sense and illogical. Equally so is the finding that the events in Cairo were “isolated” given the timeframe between President's Morsi’s deposal and the date of the applicants’ submission, and given the preponderance of evidence which was provided to the Second Respondent by the applicants through their legal representative. The applicants argue that none of the findings as set out in paragraphs 49 and 50 of the Decision above, were open to the Tribunal on the material before it. In response, the First Respondent argues there was probative evidence on which the Tribunal’s finding could have been based.

   [6] Refugee Review Tribunal Decision Record dated 30 November 2013 [49].

   [7] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

5. When regard is had to the totality of the country information and material relied upon by the applicants in their representative’s submissions before, during and after the Tribunal hearing, and the evidence and other material including country information that the Tribunal itself considered relevant to its findings, the Court concludes it was irrational, illogical and without proper foundation for the Tribunal to conclude that the country information only supported the view that there were isolated reports of Christians being seriously harmed in Cairo. The making of findings and drawing of inferences in the absence of evidence constitutes jurisdictional error.

6. The High Court has held that a Tribunal does not commit an error of law merely because it adopts unsound or questionable reasoning.[8]  However, the Court refers to and adopts the following passages in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [130]-[131]:-

   [8] see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

   “130…“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….

   131 … 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 preferred to another possible conclusion….”

7. The material and evidence before the Tribunal, and said to be relied upon by the Tribunal, supported the conclusion that Coptic Christians faced systematic and discriminatory conduct amounting to serious harm in the foreseeable future. No reasonable decision maker would have found otherwise.  There is no need to otherwise further consider this ground.

Ground 3

1. As a result of the Tribunal making the findings it did in paragraphs 49 and 50 of its Decision, that the Court accepts were not open to it on the material before it, ground 3 is consequently made out to the extent that such findings of the Tribunal were made without any proper evaluation or assessment of the evidence before it in respect of those matters. The Tribunal therefore failed to undertake its task of reviewing the decision as required by s.414 of the Act.

2. The Tribunal stated that it “had regard to the various reports provided by the applicants’ representative.”[9]  However, the finding made by the Tribunal at paragraph 49 of the Decision does not satisfactorily demonstrate that a “proper, genuine and realistic consideration” [10] of the entirety of the country information provided was given to such evidence. The Tribunal could not have reached the conclusions it did upon a proper evaluation of that particular claim in evidence before it.

   [9] Refugee Review Tribunal Decision Record dated 30 November 2013 [104].

   [10] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 [37].

Ground 4

1. The applicants argue that the Tribunal failed to consider the totality of the applicants’ claims.

2. The Tribunal accepted that the applicants had strong subjective fears of returning to Egypt but ultimately found, at paragraph 36 of its Decision, that:-

   “the applicants’ stated fears of persecution in Egypt are not objectively well-founded.”

3. In Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412, the High Court held that “well-founded fear” involves both a subjective and objective element. In particular, Dawson J held at page 423 that:-

   “The phrase “well-founded fear of being persecuted”… contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear.”

4. Further, the High Court held that the definition of “well-founded fear” would be satisfied provided there is a real chance of persecution. Importantly, Mason CJ held at page 418:-

   “If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

5. It is accepted that the Tribunal made particular findings in relation to each individual factual claim of the applicants in respect of whether there was a real chance of persecution now or in the reasonably foreseeable future.  The Tribunal made the following findings, as accurately summarised in the Applicants’ Outline of Submissions filed 6 May 2014, at paragraph 32:-

   “a. instances of street based harassment occurred occasionally to applicant MZZXZ and that these may occasionally occur in the future. These incidents would not occur more than sporadically [reasons paragraph 41];

   b. there are isolated, circumstance-specific examples of acid attacks and forcible hair-cutting of girls and women in Cairo and elsewhere [reasons paragraph 42];

   c. the chances were extremely remote that the applicant MZZXZ in all her personal circumstances will face any harm (such as acid attacks or forced hair-cuting) now or in the reasonably foreseeable future if she returns to Egypt [reasons paragraph 42];

   d. there were isolated and context-specific examples of harm to Christians in Egypt, such as the example of a Muslim cutting off a Christian man’s ear and of two boys being detained for insulting Islam [reasons paragraph 43];

   e. the chances were remote that the applicants would face the prospect of having their ears cut off or being charged with insulting Islam [reasons paragraph 43];

   f. there are credibly reported examples of theft, looting and shop damage/destruction where perpetrators on some occasions may be motivated either partly or wholly by religion [reasons paragraph 44];

   g. there are credible reports of protestors with imputed anti-government views (both against the Morsi government and now the interim government) being killed or seriously harmed in the post revolution period [reasons paragraph 49];

   h. the country information supported the view that there were isolated reports of ordinary Christians in Cairo (or Christians in the applicants’ general demographic in Al Zaitoun or Cairo) being seriously harmed [reasons paragraph 49];

   i. there are credible reports of a small number of Christians murdered (outside Cairo) in the close aftermath of the deposal, albeit the second respondent found these events to be isolated, small in number and particularised by sectarian tensions [reasons paragraph 50];

   j. the applicant MZZXZ faces no more than a very remote (and not real) chance as a woman in her daily life and accepted circumstances in Cairo of being subjected to any instances of physical harassment now or in the reasonably foreseeable future [reasons paragraph 54];

   k. the chances are remote that the applicant MZZXZ will be run down by a taxi driver or have her hair forcibly cut in the foreseeable future [reasons paragraph 58];

   1. applicant MZZXZ faces nothing more than a negligible, insubstantial and remote risk of abduction, rape and forced conversion to Islam [reasons paragraph 61]. At paragraph 62 the chance is described as very remote and insubstantial;

   m. the applicants do not face anything more than an extremely remote chance of serious harm as a result of church bombings, burnings and attacks on Christian churches [reasons paragraph 65];

   n. there is a remote chance that the applicants would face serious harm from occasional, isolated, location and context-specific examples of Christians being temporarily evacuated and relocated with state involvement to avoid episodic sectarian violence [reasons paragraph 68].”

6. The findings in essence were that there was not a real chance of a specific form of serious harm occurring but rather a remote chance of that taking place, alongside some positive findings. The Tribunal was under a duty to then consider the totality of the case put forward by the applicants and the consequence of the combination of matters.[11] The Court accepts the submissions of the applicants that the Tribunal failed to consider whether such findings in their totality established a “well-founded fear” of persecution for a Convention related reason. This constitutes a jurisdictional error.

   [11] SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 [53].

Ground 5

1. The First Applicant claimed that she feared persecution on the basis of her membership of the social group, Coptic Christian women in Egypt.

2. The Tribunal was required to consider whether Coptic Christian women in Egypt could be regarded, for the purposes of the Refugees Convention,[12] as a particular social group and whether the First Applicant was a member of that particular social group. It did not.  Rather, the Tribunal referred to the First Applicant’s social group as being “women in Egypt”.[13]

   [12] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

   [13] Refugee Review Tribunal Decision Record dated 30 November 2013 [52].

3. The Tribunal, at paragraph 53 of its Decision, stated that:-

   “… I do not accept the material provided soundly supports any view that all women – regardless of location and demographic and context in Egypt – face a real chance of sexual violence, or that Christian women face elevated risks of sexual violence by the essential and significant reason of their religion and/or gender, such that I find the first applicant faces a real chance of sexual violence in any form, now or in the reasonably foreseeable future.” 

4. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Gummow and Callinan JJ outline the task of the tribunal where an applicant relies upon membership of a particular social group. Their Honours said at [26]:-

   “…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 follow 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.”[14]

   [14] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 [26].

5. The Tribunal failed to engage in this process of reasoning and, as such, failed to consider an integer of the applicants’ claims, being that the First Applicant was a member of the particular social group Coptic Christian women in Egypt. Findings at a greater level of generality do not suffice here.

6. The Court accepts the arguments of the applicants and finds the Tribunal’s decision is affected by jurisdictional error and must be remitted to the Tribunal for reconsideration in accordance with law.  The Court makes the orders and declarations as sought by the applicants. Costs will follow the event.  

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 26 August 2014