Narooz, Amgad v Minister for Immigration & Multicultural Affairs

[1997] FCA 801

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY )  NG 947 of 1996
  )
GENERAL DIVISION  )

BETWEEN:             AMGAD NAROOZ
  Applicant

AND:  MINISTER FOR IMMIGRATION &
  MULTICULTURAL AFFAIRS
  Respondent

JUDGE:        DAVIES J
PLACE:        SYDNEY
DATED:       1 JULY 1997

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal, brought under s476 of the Migration Act 1958 (Cth). The two principal grounds of review available are s476(1)(a):-

"that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;"

and s 476(1)(e):-

"that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. ...".

Necessarily, as those are the grounds of review, the Court does not make up its own mind about the merits of  the application for refugee status.  The Court is not the arbiter of fact.  The Refugee Review Tribunal has the power to decide facts.  The function of the Court is to determine whether there was a breach of any of the procedures required to be observed and whether or not there was an error of law being an error in the approach adopted by the Tribunal to the question which it had to consider.

The issue before the Tribunal arose under Article 1 of the Refugees Convention which defines a refugee as any person who:-

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The task which a decisionmaker such as the Refugee Review Tribunal has under this Article is often a difficult task. There are problems in ascertaining what the circumstances are which prevail in overseas countries and there are often difficulties in determining just what happened in relation to the applicant in his homeland.  However, that task has to be undertaken and it is for the Refugee Review Tribunal to form its own mind on the points of fact that arise before it.

Mr Narooz arrived in this country in early 1995 and subsequently lodged an application for Refugee status.  He had a hearing before the primary decisionmaker and the substance of that decision appears in the following passages from the decision of the primary decisionmaker:-

“The applicant is a Coptic Christian who has been active in church activities as a deacon. The applicant’s late father was a priest in the church. The applicant has been subjected to severe harassment by Muslim extremists on several occasions, and his business has been burnt down while he has been living in Sydney. The applicant states that he reported these incidents to the police, but the police have taken no action. The applicant fears that, if he returns to Egypt, and doesn’t convert to Islam, he will be killed by Muslim extremists.

...

I have taken into account that the applicant suffered harassment and mistreatment from Muslim extremists in the area he resided. Apart from one incident in 1990 when the applicant was knifed as a result of a fight with Muslim extremists, the applicant has suffered verbal abuse, business threats and windows have been broken. The applicant indicated at interview that the area he lived in had a high rate of criminal activity. In consideration of this point, I find that the applicant would have been living in an environment of general danger and insecurity which would contribute to the applicant’s circumstances;

...

In considering that the applicant’s problems have been with Muslim extremists who were known to him, that he has never been harmed or mistreated by the authorities, that he was not denied the right to work or practice his religion, and that relocation remains a viable option for him as members of his family have successfully relocated to other parts of Egypt, I find that there is not a real chance that the applicant will be persecuted, upon return to Egypt.”

There was a further hearing when the matter came before the Refugee Review Tribunal.  That Tribunal set out Mr Narooz's case as follows:

“The Applicant was working in his own business in Egypt. He ran a repair and spare parts shop which also sold electronic appliances. The Applicant lived close to his shop. He claimed he had this shop for five years although he also worked elsewhere during this period.

The Applicant is a Coptic Christian. His father was a priest and the Applicant stated in the hearing that he was higher than a priest. The Applicant’s name ‘El Komos’ which was given to him by his father indicates that he is the son of a priest and a Coptic Christian. The Applicant also claimed that he was a deacon.

The Applicant stated in the hearing that he had countless problems before he left Egypt. He stated that he was chased, beaten and denigrated by Muslim fundamentalists. He stated that on one occasion he was injured when he was stabbed in a fight with fundamentalists. He stated that this occurred about six years ago. He had to be treated at the chemists. He reported the incident to the police but they could not find the culprit.

The Applicant also stated that he was stopped many times on the road by fundamentalists but that on one occasion he was told he had two choices - either to convert to Islam or be killed.

The Applicant also stated that he often went with the priest. He stated that the priest went around doing social work and that this included speaking to young Christian women to prevent them from being converted to Islam. It was because of this work that he was targeted by the fundamentalists. The Applicant stated that he made no mention of this activity in his application because the person who assisted him told him to be brief. The Applicant also named some fundamentalist leaders and stated that they had personally told him he must convert to Islam. The Applicant also claimed that he had tried to solve his problems by using Muslim mediators but they had just told him to convert to Islam.

Otherwise the Applicant was able to attend church as he wished and he stated in the hearing that he divided his time between church and his shop.

After the Applicant came to Australia his shop was burned down. He did not know the date but he thought it happened sometime in December 1993 or January 1994. The Applicant’s witness also stated that he visited the Applicant’s mother during a return visit to Egypt. The witness, a Coptic Christian himself, went to Egypt in November 1994 and stayed until February 1996. During this period the witness delivered some letters to the Applicant’s mother and gave evidence that he saw the Applicant’s shop had been burned down.

The Applicant stated that he was well known and could not avoid his problems by relocating to another part of Cairo or Egypt. His family has now moved to another location in Egypt and he does not have their current address.”

The Tribunal concluded:-

“Whilst the applicant may have been involved in a knifing incident some years ago and may have been told to convert to Islam the Tribunal does not accept that this indicates that the Applicant’s experiences were sufficiently ongoing to amount to persecution. This knifing incident occurred some years ago and as found above the Tribunal does not accept that there were subsequent violent acts of this type in which the Applicant was injured, although the Applicant may have experienced harassment in his travels with the priest when they were trying to prevent young Copts from converting, including threats that he should convert to Islam. Accordingly the Tribunal is not satisfied that the Applicant suffered persecution in the past. Also these acts in the Tribunal’s view do not indicate that there is a real chance of persecution should the Applicant now return. Further the Tribunal is of the view on the basis of Professor Springborg’s statement and the recent cable that the Applicant has police protection and therefore his fear is not well-founded.

If the Applicant’s shop did burn down after the Applicant left, again the Tribunal is satisfied that the Applicant would have the protection of the police. Further whilst the Applicant blamed this incident on Muslim fundamentalists, the Applicant was not in Egypt at the time it occurred. The Tribunal is not satisfied that this was part of a campaign against the Applicant rather than an isolated incident of lawlessness.

The reports from the police that the Applicant has provided in relation to the burning down of his shop do not indicate that the Applicant or his mother have any idea who was responsible. Accordingly such reports do not indicate to the Tribunal that he has been the victim of any vendetta by Islamic fundamentalists. In any event the fact that the Applicant’s mother was able to report this to the police indicates that the Applicant has the protection of the State. There is nothing in the reports to indicate that the Applicant’s mother’s complaint was not taken seriously.”

Information supporting the Tribunal's finding came from a report of the United States from the Department of State Country Reports on Human Rights of 1995, which reported that most Egyptians are Muslim but at least 10 per cent of the population, 5.5 million people, belong to the Coptic Orthodox Church, and constitute the largest Christian minority in the Middle East.  The report went on to say:-

"For the most part, members of the non-Muslim minority worship without harassment and maintain links with co-religionists abroad."

Professor Springborg, who is Professor of Middle East Politics at Macquarie University and who has written extensively on Egyptian politics, reported to the Tribunal:

“The applicant is and has been a resident of a safe part of Egypt. Manoufia is to the north of Cairo, it is densely populated, has a large percentage of migrants, is heavily policed, has a low level of inter religious conflict and a high level of educational achievement.

...

Are the Copts undermined? No. Copts would like the government to be more pro-active but the government has been somewhat accommodating towards religious extremism.

...

There is no systemic approach against Christians in Egypt.”

The Tribunal also had before it a cable from the Department of Foreign Affairs and Trade which included this information:

“Generally speaking Christians in Egypt do not face any greater threat of violence from Islamic fundamentalists than do Muslim citizens. An exception applies to Upper Egypt, which is the site of ongoing violence between Muslim extremists and security forces.

...

Christians are much safer in the Delta region, although there have been isolated incidents of violence.”

I do not think that I can conclude from the evidence which was before the Tribunal and from the reasons of the Tribunal that there was any error of law in the Tribunal's approach to the question which it had to consider.  The Tribunal did take into account Mr Narooz' circumstances.  It took into account what it understood to be the general position in the area where Mr Narooz lived and it formed the judgment that the allegation of persecution for a Convention reason was not well founded, that although Mr Narooz and other Coptic Christians suffered from some disabilities in Egypt, those disabilities did not constitute persecution as understood by the Convention.

Such a judgment can be a difficult one to make but, unless there is some error of approach adopted by the Tribunal in the question which it asks or the way it goes about its task, no error of law can be found.

One other matter was raised.  After the hearing, Mr Narooz submitted some documents which purported to be a police report of an attack upon Mr Narooz which occurred on 19 April 1994 and a document purporting to come from the Ain Shams University Hospital showing an examination of the patient for cuts and bruises and unconsciousness.

The police report recorded Mr Narooz as having said that:

"Today while I was returning home, four bearded persons met me and beat me excessively till I lost consciousness."

The Tribunal rejected that incident as being an incident which had actually occurred.  The Tribunal considered that, if it had happened, Mr Narooz would not have failed to tell the Tribunal about it during the hearing which had taken place.  Such a decision on a point of fact is obviously a decision for the decision maker of fact.  Mr Narooz had had a hearing before the primary decision maker.  He had a hearing before the Tribunal.  He failed on either of these occasions to say that, in April 1994, only a few months before he left for overseas, he was beaten unconscious.

The Tribunal was, I think entitled to draw the conclusion that those records were false.  There were also some other reasons for thinking the records in fact were false.  The police report for example did not contain the usual seal that one would expect on police reports and the hospital report is simplistic. 

So the position was that, when the Tribunal rejected this incident alleged in April 1994 and when it held that the burning down of Mr Narooz' shop might have been due to lawlessness just as easily as due to any other reason, the Tribunal was left with the situation where in its view, Mr Narooz had been living in an area where, although he had suffered from some disadvantage, Coptic Christians were not subject to any systematic or systemic persecution.

In my opinion, there was no error of law in the Tribunal's approach.  The decision which it made was open to it on the facts that were before it. 

I now turn to the question of procedure.   Section 420 of the Act provides that the Tribunal, in carrying out its function under the Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  It is to be fair and just but it is also to be quick.  Subsection 420(2) requires the Tribunal to act in accordance with substantial justice and the merits of the case.

If  the Tribunal did not give to Mr Narooz a fair chance to put his case, it would have failed to follow one of the procedures which the Act requires it to follow.  However, on 12 July 1996 the Tribunal directed Mr Narooz to send to it any documents or written arguments he wished the Tribunal to consider and stated further that any new material that became available could be provided, although no later than seven days before the hearing.

Mr Narooz sought an extension from 21 days to three months because he wished to obtain documents from Egypt.  I am not clear whether that request was formally responded to.  He wrote later to say that it was very difficult to obtain official documents from Egypt.  On 18 October he was granted an extension to lodge further documents till close of business, Friday, 18 October 1996.  The hearing went ahead on 12 September 1996.  Mr Narooz then made his request to lodge further documents.  That was answered by the direction that such documents be lodged in October.  Some further documents, copies of cables, were then provided to Mr Narooz and he was asked to comment in writing by Friday, 25 October. 

It seems to me that the time allowed to Mr Narooz to provide the information was sufficient to enable him to put forward his version of events. It must be borne in mind that the Tribunal is directed to be quick.  In this case, a period of three months was granted for the provision of information before the hearing occurred and further time was given thereafter.  Over all that period, Mr Narooz was able to submit documents, which he did, including a statement of 18 October 1996.

In his affidavit, Mr Narooz alleged that:-

“On 25 October 1996 a telephone call was made from AMI Migration Consultants to the RRT (Vic) requesting a further 2-week extension for submission of documents, in response to a request by the Tribunal for comments by the applicant on cables received from Egypt regarding ‘persecution of Christians’. AMI was told that that the member was being asked. AMI understood that this implied that the RRT would contact them with a reply. Annexed hereto and marked ‘C’ is confirmation of the said telephone call, together with a letter of rejection from the Tribunal dated 31 October 1996 and accompanying decision and reasons for decision.”

That affidavit was supported by a record from the telephone accounts of AMI Migration Consultants who were then acting for Mr Narooz.  Their records showed a call of two and a half minutes from their office to the Refugee Review Tribunal on 25 October. It was alleged in Mr Narooz's affidavit that, on 25 October, a request was made for a further two week extension for the submission of documents.

These documents were said to be documents in response to a request by the Tribunal for comments by the applicant on the cables received, but there is not in evidence before this Court any information as to what were the documents which Mr Narooz now states he was unable to tender.  Nor is there before the Court any affidavit from the officer of AMI Migration Consultants who it is said held the telephone call, or for that matter, any other first hand evidence as to what occurred.

It appears from subsequent letters and memoranda that there was no memorandum, no record in the office of the Refugee Review Tribunal which recorded the telephone call or the request.  Indeed, it was not until 4 November 1996 after the decision had been given that the Tribunal received by fax a form showing that AMI Migration agents were acting for Mr Narooz.  It also appears from a file minute that, when Ms Krongold of AMI Migration Consultants rang on 3 February 1997 about this matter and asked about the normal procedures that the RRT would follow if a request for further time to make submissions was received by telephone, she was informed:

“*normally ask for request in writing, though individual Members may not require this;

*if Member available ask them and advise caller of their response, follow up with written confirmation; and

*if Member not available at time, try to get written request - if not possible (eg no fax, language problem) ring back when Member’s response known, follow up with written confirmation.”

In my opinion, the evidence before the Court is insufficient to establish that there was any breach of fair procedure in this instance.  The cables which were given to Mr Narooz for his comments simply dealt with the general position in Egypt at the time when Mr Narooz had lived there and when he had left the country.  They dealt with matters which in effect had already been the subject of the hearing by the Tribunal.  The Tribunal was required to be expeditious.  The decision to proceed was not a decision which breached the procedure which the Tribunal was required to follow.

Furthermore, it is not clear that the member ever received any request for an extension of time or ever considered it.  It must be remembered we have no first hand evidence as to what was said in the alleged conversation.  There was no record that AMI Consultants was acting at that time and there was no written request for an extension of time. I would not draw the positive conclusion that the member was asked for an extension of time.  If the fact were that he was asked, I would not draw the conclusion that he was in error in rejecting the claim for an extension.  He had already had further documents put before him which had not been mentioned at the hearing and these were documents which he thought to be false.

For those reasons, there was no error in the procedures followed or in the reasons of the Tribunal. It follows that the application must be dismissed with costs.

I certify that this and the 10 preceding pages
are a true copy of the reasons for judgment
herein of the Honourable Justice Davies.

Associate:

Date:   1 July 1997

For the applicant:  Mr Narooz appeared in person

Counsel for the respondent:  Dr J. Renwick

Solicitor for the respondent:  Australian Government Solicitor