SZAKC v Minister for Immigration - [2004] FMCA 57

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKC v MINISTER FOR IMMIGRATION

[2004] FMCA 57

MIGRATION – Review of RRT decision – where transcript of RRT hearing before the Court – where Tribunal found the applicant not to be a credible witness because of lack of knowledge and inconsistencies – where applicant claimed to be a member of the “Islamic Brotherhood” – where Tribunal referred to and asked questions about the applicant’s association with the “Muslim Brotherhood” – whether said terms were interchangeable and representative of the same organisation – where applicant delayed making an application for protection visa.

MIMA v Epeabaka (1999) 84 FCR 411
MIMA v Anthonypillai (2001) 106 FCR 426
Gamaethige v MIMA (2001) 109 FCR 424
NAMM of 2002 v MIMIA (2003) FCAFC 32
NABC v MIMIA [2003] FCAFC 235

Applicant:

SZAKC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 602 of 2003

Delivered on:

18 February 2004

Delivered at:

Sydney

Hearing date:

4 February 2004

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed
Applicant to pay the respondent’s costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 602 of 2003

SZAKC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Egypt. He arrived in Australia on 10 September 1998. On 24 December 1999 he lodged an application for protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 January 2000 a delegate of the Minister refused to grant a protection visa and on 15 February 2000 the applicant sought review of that decision from the Refugee Review Tribunal. On 8 October 2001 the Tribunal wrote to the applicant asking him to provide it with certain additional information. The letter appears to seek clarification of the applicant’s statement found at [CB 28] that was submitted to the delegate. In that letter the applicant states:
“I was a member of the Islamic Fundamentalist Group.”
The decision of the delegate notes that the applicant did not name this group but he refers to having suffered adverse consequences because of his association with three delegates of the group named Mr Saif El Islam, Mr Hassan El Basha and Mr Adel Hussein [CB 38]. The delegate identified Mr Saif El Islam as being Mr Saif El Islam Hassan El Banna “a strong man of the Brotherhood on the national board of the lawyer’s syndicate”. The letter asked for the following relevant information:
“What is the name of the Islamic Fundamentalist Group you claim to belong to?
When did you join this group?
Who were the leaders of this group?”
The applicant did not reply himself but his solicitor replied [CB 55].
“1The Islamic Fundamentalist Group is known as the Islamic Brotherhood.
2Our client joined this group in April 1994.
3The leaders of the faction which I belong to is Saif El Islam.”
The Tribunal arranged a hearing which was attended by the applicant and his solicitor together with an interpreter. There was produced to me and marked as Exhibit “1” a transcript of that part of the Tribunal hearing which the parties considered relevant. I was also given as exhibit “2” a copy of the tape of the Tribunal hearing and as exhibit “3” a digital disc of the hearing.
The applicant claimed to have a well founded fear of persecution for the Convention reason of political opinion/religion because he had been arrested and detained on one occasion by the Egyptian authorities in May 1997 whilst his group was organising a protest march to take place on 23 July in that year. He claimed that he was detained for two months although no charges were laid against him. He was beaten and woke up in hospital. After his release he returned to his university studies and he claimed to have continued his association with the group sporadically thereafter although he had been in hiding from September 1997 to September 1998 because he was scared that he would be detained again by the authorities and had to prepare to leave Egypt.
At [CB 219] the Tribunal states:
“The Tribunal found the applicant not to be a credible or truthful witness because of the shifts and changes to his story at the hearing, his lack of knowledge of the Muslim Brotherhood, and the fact that this claims were inconsistent with the independent information before the Tribunal.”
The main thrust of the attack on the Tribunal’s findings was that the applicant never claimed to have been a member of the Muslim Brotherhood and that he claimed from the time of his original application to be a member of an “Islamic Fundamentalist Group” which his lawyer named as the “Islamic Brotherhood.” The references to the Muslim Brotherhood came from the Tribunal which put into his mouth those words. The criticism of the applicant that there were significant shifts in his story was invalid. There was no real shift in the applicant’s story because he never claimed to have been a member of the Muslim Brotherhood but another group entirely. He gave the Tribunal information about the group to which he did belong and whilst the Tribunal found that this information conflicted with country information that it had about the Muslim brotherhood the Tribunal had made the wrong comparison. The Tribunal also put to the applicant that it had difficulty with the story he told at the Tribunal being different from the story in his initial application to the department but the difference was only related to the assumed membership of the Muslim Brotherhood which the applicant had not acceded to.
The transcript reveals a number of discussions relating to the Muslim Brotherhood. The exhibit commences with the following:
T: And you claim you were a member of the Muslim Brotherhood. When did you join the Muslim Brotherhood?
A: 1994
T: When in 1994?
A: In April 1994.
T: Why did you join the Muslim Brotherhood?
A: Because they believe in things … I … I think it’s …or I believe in it, which is equal opportunity and freedom of speech and all these things
T: I need a bit more than “all these things”. What does the Brotherhood believe in?
A: They want a fair government, a fair law. Not the current government, or not the current law.
T: Could you explain in more detail what the aims of the Brotherhood are?
A: The main aim of the Brotherhood are …which is I believe the true Brotherhood group to equality between people and freedom of speech, be fair to anyone and live in peaceful … I mean … peaceful life. That’s all.
The Transcript then proceeds to repeat some of the aims of the Brotherhood and at T-2:
T: Who was the founder of the Muslim brotherhood
A: The …the …the Brotherhood group, it’s been founded years and years ago
The applicant then indicates that the Muslim Brotherhood was founded in about 1930 and is asked who the Supreme Guide is today. The applicant says:
A: I don’t believe in these people or supreme guides which is show themselves on TV and paper and tell … and they are …they are with agreement of the government. We are a group of [inaudible word: youth?] people who really believe in the values they’ve … we’ve got and we try to work in our values which is equality and peaceful world.
T: Yes, but I am asking you who is the Supreme Guide of the Muslim Brotherhood.
A: I don’t believe in these people which is …
T: But he is the leader of the Brotherhood. What do you mean you don’t believe in …?
A: I don’t have to know him because I don’t believe in him. So…
T: I don’t understand. If you’re claiming to be a member of the Muslim Brotherhood and you don’t believe in the leader, I don’t understand that.
A: These leaders, the government put them. They are not real leaders to the gov … to our group.
T: Well, I’m sorry, they are real leaders to your group. The government didn’t put them there. Well, do you know who the Supreme Guide of the Muslim Brotherhood is or you don’t know?
A: No, I don’t know.
The Tribunal then goes on to ask the applicant questions about how many times he attended meetings of the Muslim Brotherhood. The applicant tells the Tribunal that he belongs to a group of approximately 10 people which met about twice a week whilst he was at university. He gave the Tribunal the name of his leader who was a lecturer at the university. The Tribunal asked him further questions about the Muslim Brotherhood and the number of members which he answers. The Tribunal continues with questions concerning the other persons who the applicant had mentioned in his original statement. At T-8 there is the following exchange:
T:I just find this all very, very vague and not really representative of what the Muslim Brotherhood is all about.
A: We are a youth group of people. We are slightl … I mean … totally different from the … the… faces of the Brotherhood group which is shown on TV. We don’t believe on the … how to deal with the government or talk with the government. So, we want something different.
T: Well then you need to explain to me how your group differs from the Muslim Brotherhood, because you’ve told that you are a member of the Muslim Brotherhood and now you are telling me that you are not a member, that you’re something somehow different. So, you’ll need to explain to me what exactly you are.
A: I just ask him to tell that in a …
T: Yeah, the …the …the name of Brotherhood … Just the government calls us the Brotherhood. We are a group seeking the fair … the freedom of speech and equal opportunity and democracy. The government just try to put us with … with any accident happen or any bomb. So, that’s basically why they related to us.
At T-9 to T-12 there is a further discussion between the applicant and the Tribunal concerning the membership of the Muslim Brotherhood in which the Tribunal attempts to ensure that the interpreter interprets the questions that it is putting in readily understandable pieces. At T-10 there is the following exchange:
T: I wrote to you and asked you what was the name of the group you belonged to.
T: You wrote back and said it was known as the Islamic Brotherhood.
T: Today you are telling me that it’s not really the Muslim Brotherhood, because you don’t believe really in the same things as the Brotherhood. You believe in equality and fairness.
T: But because you have had a relationship with a Mr Hassam, the government thinks that you belong to the Muslim brotherhood.
A: Yes
These questions are then repeated except that the word Muslim Brotherhood is not referred to at first only “the Brotherhood”. There is finally the following:
T: … that somehow the government thinks that your group is part of the Muslim Brotherhood.
A: I said the name or I mentioned the name because this is the reason which is why the governm … the Egypt government persecute me. So, because they think I belong to the Islamic Brotherhood group. That’s why I answer your question.
T: Yes, that’s what I am putting to you. So, that you don’t really belong to the Muslim Brotherhood.
At T-12 after discussion concerning his own group the following exchange occurs:
T: Okay. So you are telling me that your group has got no relationship with the Muslim Brotherhood?
A: We’ve got some similar values we believe in with the Islamic Brotherhood group. So, we are … because we think we are … we believe in values and equal, so we have any trouble with the people who believe in the same values where I believe in. That’s basically the idea.
T: Okay, is Mr Hassam and Mr Adel members of the Muslim Brotherhood?
A: Yes, they are member.
Finally the following exchange takes place between the Tribunal and the applicant’s adviser:
T: Could you explain to me why he said he belonged to the Muslim Brotherhood and now he is saying today he doesn’t belong to the Brotherhood?
Adviser: Well, what he’s … I believe … what his instructions to me are, is that he belongs under the umbrella of the Islamic Brotherhood. Yet under this umbrella of the Islamic Brotherhood there are many factions, many branches, who … who express views which may vary with the mainstream … leadership of the Islamic Brotherhood.
T: Obviously my difficulty, when he doesn’t have the vaguest idea about the leadership or the structure or the aims, it’s a bit difficult to see him being under even the umbrella.
The respondent argues that the use of the terms Islamic Brotherhood and Muslim Brotherhood are interchangeable and that they both represent the same organisation. If the proceedings are looked at in this light then the Tribunal was entitled to come to the view which it held about the applicant’s credibility based upon his responses to the Tribunal’s questions as compared with the country information that was put to him. The respondent argues that it has not been shown that there is a separate organisation called the Islamic Brotherhood to which the applicant belonged and which was completely independent of the Muslim Brotherhood so that the inconsistencies reported by the Tribunal could be understood.
Having examined the transcript I am of the view that all the parties in the room that day used the words Muslim Brotherhood and Islamic Brotherhood interchangeably. I accept that the applicant’s evidence is that his group was not a mainstream group but I believe that the references he makes to the difference between his group and the mainstream group and the reasons for it tend to emphasise that it was of the sub group of the Muslim Brotherhood and not a sub group of something different or a totally independent group. The applicant accepts that the two leading lights of his group were also members of the Muslim Brotherhood. Finally, the applicant’s own solicitors clearly uses the terms interchangeably in the exchange which I set out above. Whilst I can quite see that another Tribunal might have come to a different view about the alleged inconsistencies and the alleged “significance” to grant review on those grounds would be making a decision on the merits which this court is not empowered to. Even if it were argued that the Tribunal’s decision resulted from a want of logic by a decision maker in drawing inferences of fact, this would not constitute an error of law: MIMA v Epeabaka (1999) 84 FCR 411; MIMA v Anthonypillai (2001) 106 FCR 426 at 437; Gamaethige v MIMA (2001) 109 FCR 424 at 428 and 444; NAMM of 2002 v MIMIA [2003] FCAFC 32 at [44] –[46] and most recently in NACB v MIMIA [2003] FCAFC 235 at [22]-[30].
There is an additional reason why I would be unable to give review to the Tribunal’s decision in this case. That is because at [CB 225] the Tribunal made a finding that the applicant’s delay between 10 September 1998 and 24 December 1999 in making an application for a protection visa indicated that he did not have a subjective fear of persecution. This finding is, to my mind, entirely independent of the other findings which are based upon the applicant’s credibility. There is no credibility issue in an admitted delay. The Tribunal was entitled to disregard the applicant’s excuses for the delay and this court would not be able to interfere.
I must therefore dismiss the application, which I do. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Rapahel FM

Associate:

Date: