SQPB v Minister for Immigration - [2005] FMCA 1332

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SQPB v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1332

MIGRATION – Review of decision of Refugee Review Tribunal affirming a decision of a delegate to refuse a protection visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)
Refugees Convention
Refugees Protocol

Abdul Raheem v The Ministerfor Immigration & Multicultural Affairs (2001) FCA 940
M66 of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC112

Applicant:

SQPB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 144 of 2004

Judgment of:

Hartnett FM

Hearing date:

15 August 2005

Delivered at:

Melbourne

Delivered on:

15 August 2005

REPRESENTATION

The Applicant:

The applicant appeared on her own behalf

Counsel for the Respondent:

Mr W.S. Mosley

Solicitor for the Respondent:

The Australian Government Solicitor

ORDER

That the Refugee Review Tribunal is joined as the second-named respondent in these proceedings.
The application filed 19 June 2005 be dismissed.
The applicant pay the first-named respondent's costs of the application fixed in the sum of $6500.
Certify for Counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 144 of 2005

SQPB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant was born on 11 September 1958 and is a citizen of Egypt who arrived in Australia with her husband and their daughter on 7 November 1998. The applicant is of Arabic ethnicity and Muslim religion. She was born in Iraq, married in Egypt, having an Iraqi citizenship at birth and Egyptian citizenship at the time of the lodgment of her application for a protection visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 December 1998. The applicant's husband and daughter, being members of her family unit, were included in her application. That application was refused by a delegate of the respondent on 27 January 1999.
On 23 February 1999 the applicant lodged an application for review of the delegate's decision with the Refugee Review Tribunal (the tribunal) which affirmed the delegate's decision by decision handed down on 18 February 2000. A hearing had been held on 1 February 2000 and during the course of that hearing the applicant gave oral evidence to the tribunal.
The applicant made application for an order of review in the Federal Court of Australia on 19 June 2003. That application was amended by the filing of an amended application together with contentions on 12 January 2004. The proceedings had in the interim been transferred from the Federal Court of Australia to this Court.
The application to the Federal Court of Australia was not filed within 28 days of the notification of the tribunal decision as required by subsection 477(1) of the Migration Act 1958 (Cth) (the Act). In fact the application was filed some three years out of time.
The court has considered on the hearing of the review application whether the decision of the tribunal was affected by any jurisdictional error. The applicant said in submissions made this day that material provided by her to the tribunal had been lost by the tribunal. There is no evidence before me that the tribunal lost any of the material forwarded to it.
The applicant handed to the Court two receipts of the tribunal, one with a Refugee Review Tribunal date stamp received 23 February 1999, which was the date of receipt of the applicant's application, and further an acknowledgment of receipt of correspondence from the applicant dated 25 May 1999.
That correspondence was included in the court book and was correspondence advising of the new address of the applicant, being transitional housing obtained through Hanover Family Services. The applicant also handed up to the court at the hearing a bundle of papers which contained no new material that assisted the applicant in establishing the tribunal had committed jurisdictional error.
The material provided information as to the name of the applicant, her date of birth, location of birth, citizenship, children and marital status, and arrival in Australia and other like matters together with a complaint about the decision of the delegate, copies of the receipts to which I have just referred, a copy of the amended application being an order for review, and the following in relation to the tribunal decision which is the subject of these court proceedings:
The member accepted that the applicant had been in official trouble because of her Iraqi background.
As the decision made on four elements, which include the nationality reasons as refugee definition, being accepted by the members; being questioned and had official troubles so, the applicant complied with the main reason for being a refugee, having Australia as home for the past seven years.
NB: Evidence has been delivered to RRT on 23/02/1999 but the file was lost by RRT. The applicant was asked on 25/5/1999 to re‑apply. At that time, there was no evidence available to prove persecution while having Egyptian citizenship. Fear of being returned either to Egypt or Iraq is existent and found in the applicant’s case. Please accept our respect and appreciation, the applicant.
Following receipt of the applicant's review application by the tribunal on 23 February 1999, the tribunal wrote to the applicant advising her that it was unable to make a favourable decision on the papers alone and offering her the opportunity to give oral evidence before it on 23 September 1999. The applicant requested and was granted a postponement of that hearing, with the hearing being re-scheduled to 1 February 1999. The hearing was conducted with the assistance of an interpreter in the Arabic language.
The tribunal considered the relevant legislation and the Refugees Convention, including in its reasons Article 1A(2) of the Convention definition of a refugee as any person who:
Owing to well-founding 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 of 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 tribunal noted the applicant's claims to be set out in written submissions to the Department and written and oral submissions to the tribunal. The tribunal noted that it had also sought information from independent sources on the current situation as it then existed in Egypt and Iraq. The tribunal accepted that the applicant had acquired Egyptian citizenship and thus proceeded to assess her claims against that country. It accepted also that she had Iraqi citizenship at birth.
The tribunal accepted that the applicant was married to an Egyptian citizen and that she travelled on an Egyptian passport issued in Cairo in September 1992 and valid to September 1999. The tribunal noted that information obtained from DFAT and other independent sources was unclear as to whether the applicant would have lost her Iraqi nationality by taking up that of another country and by what means she could re‑acquire it.
The tribunal accepted the applicant's claim that she had problems in Egypt because of her Iraqi or foreign nationality. The applicant had told the tribunal that she went to Egypt hoping to study medicine or pharmacy but found that Egypt would not accept foreign students into their medical courses. She thought this prohibition was aimed mostly at Iraqis. She however did complete a commerce degree over a period of seven years.
The tribunal found it not uncommon for a non-citizen in another country to find herself not given access to all the educational opportunities or employment that was available to native citizens. The tribunal found however that “such discrimination does not always amount to or presage persecution.” The tribunal noted that the applicant's decision to go to Egypt was prompted by her wanting to get into a medical or pharmacy course.
The applicant was not admitted to a course of her choice in Egypt, claiming the basis for such lack of admission was her nationality. The tribunal found, if this was so, it might be discriminatory but not persecutory. The tribunal said:
No country is required by international law or human rights standards to educate the nationals of another country at tertiary level.
The tribunal considered the applicant's claim that she was prevented from taking employment in Egypt. The applicant had completed a degree in business administration at the University of Cairo in 1984 at a time when she was married and had one child. Another child was born in the following year. The tribunal was not satisfied that it was the Egyptian’s state which denied her the right to work in a persecutory way. The tribunal accepted that the applicant was not permitted to work for the Egyptian government.
The tribunal noted that such restrictions were in place in a number of countries and did not infringe on international human rights. The tribunal said:
Governments are not required to employ non-nationals and often have internationally acceptable reasons for this, including security reasons.
The tribunal accepted the applicant's inability to find employment in non-government sectors could have been at least partly due to her being a foreigner. The tribunal also found it plausible that it related to her personal circumstances. The tribunal accepted that she could then have been a victim of double discrimination as a foreign married woman. The tribunal noted that whilst this was unfair and unfortunate, it was not satisfied that it amounted to persecution in this case.
The tribunal noted that at the time the applicant first sought employment she was married to a wealthy Egyptian. She was not then dependent on her own income source for survival. The tribunal accepted that the applicant's personal economic circumstances were very difficult from 1985, following the end of her first marriage, until she married again in 1988. The tribunal accepted the evidence of both the applicant and her second husband that they encountered difficulties as a result of the failure of his family to accept their marriage.
The tribunal accepted that the applicant's husband's brother was able to make official trouble for her by using the fact that she was an Iraqi at a time of tension between Egypt and Iraq. However, the tribunal gave weight to the fact that in 1991 the applicant was granted Egyptian citizenship. It said:
Had there been serious doubts about her suitability to be granted that citizenship, it could have been withheld. The granting of citizenship came in the period of the Gulf War and its aftermath. The Egyptian authorities were under no obligation to grant it to her. The fact that she sought it also has been taken into consideration.
While it is understandable that she was reluctant to return to the country of her birth, given its very poor recent record on providing protection for its citizens and given its past economic state, the applicant could have continued to rely on her Iraqi nationality rather than seek to acquire that of the country in which she had been living for many years. The decision that it was preferable for her to change her country of citizenship was not forced upon her. It was a matter for her and her husband to decide on such a course of action, which was approved by Egypt in a relatively short time.
The tribunal accepts that the applicant's brother-in-law was able to make family life very difficult. It accepts that he, in his capacity as an officer of the intelligence service, was the possible source of official questioning of her on a number of occasions over an extended period. It rejects the early claim that she was ever detained for a period of days for questioning and accepts the later evidence, given at her hearing, that she was questioned at home.
Even if the brother-in-law was able to delay the granting of citizenship, this delay was not excessive. She stated that she applied in 1990, it was granted in 1991 and by 1992 she had acquired an Egyptian passport. The tribunal is satisfied that official contacts with her did not amount to persecution and that, having acquired Egyptian nationality, she now has all the rights and obligations which go with that citizenship. It is satisfied that the government is not an agent of persecution of her.
The tribunal concluded that the evidence before it indicated that the applicant and her husband had serious personal and family problems which made them decide they could make happier lives in a third country, but noted that the Refugees Convention did not extend to cover their situation.
Having considered the evidence as a whole, the tribunal determined that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. As the applicant did not satisfy the criteria set out in section 36(2) of the Act for a protection visa, her husband and daughter were also not refugees.
The tribunal's rejection of the applicant's claim against Egypt meant that the applicant had effective protection in that country. Accordingly the tribunal did not need to consider the claim against Iraq. Having found that the applicant did not have a well-founded fear of persecution in Egypt, it was unnecessary for it to proceed to consider Iraq. In any event the applicant's claims as against Iraq could not amount to persecution for a Convention reason.
As was said by Stone J in Abdul Raheem v The Minister for Immigration & Multicultural Affairs (2001) FCA 940 at 31:
Whether established claims are sufficiently serious so to amount to persecution is a question of fact and degree to be addressed by the tribunal and not by the court; Arumugam v The Minister for Immigration & Multicultural Affairs (1999) FCA 251 at 37 (on appeal, (1999) FCA 1285).
The tribunal's conclusion that the type of harm experienced by the applicant does not amount to persecution is one that was open to it. The ultimate question looks to the future and requires the decision‑maker to consider whether the fear of persecution in the future upon return, as in this case to Egypt, is well-founded. What does or does not constitute persecution is a question of fact for the tribunal (M66 of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC112, Heerey, Dowsett and Bennett JJ, paragraph 13).
The applicant has failed to show that the tribunal committed any jurisdictional error. The application should be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Hartnett FM.

Associate: Anna French

Date: 14 September 2005