SZBBA v Minister for Immigration

[2004] FMCA 559

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBA v MINISTER FOR IMMIGRATION [2004] FMCA 559

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether unreasonableness.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZBBA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1466 of 2003

Delivered on: 11 October 2004

Delivered at: Sydney

Hearing date: 22 July 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Mr M. Jones

Counsel for the Respondent: Mr J.D. Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1466 of 2004

SZBBA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 October 2000 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of Egypt and a Coptic Christian, arrived in Australia on 13 June 1997 and lodged an application for a protection visa on 10 July 1998.  That application was refused on 27 August 1998 and on 16 September 1998 the applicant applied for review by the Tribunal.  The applicant claimed that he feared persecution as a Christian Copt and because of his involvement in the political party Hizb El Tagamo El Watani (HTW) also known as the Gathering Party.  He claimed in his protection visa application that these matters fell within the meaning of religion, race and political opinion in the Refugees Convention and that he feared persecution by the Egyptian authorities because of his Christian religion, his Coptic race and his political opinion.  In his application for review by the Tribunal he claimed that he also feared persecution on the basis of his membership of a particular social group, being Christian Copts. 

2. The applicant claimed that from 1993 on he had met with a group of four other Christians after Church each week to discuss general issues affecting Christians and that this group (referred to by the Tribunal as a “little group”) distributed newsletters.  The applicant claimed that the group joined the HTW in June 1996 following an invitation by the Party to all Egyptians to contribute to the rebuilding of the village of Kafr Dimiana following an attack on the village in February 1996.  The applicant claimed that he had been detained on three occasions in 1996 and that he was forced to close his hardware shop in January 1997 because it had suffered losses following attacks on the shop by Muslim groups.  He also made a general claim that the Coptic Christians in Egypt suffer persecution and that the authorities do not provide them with protection.

3. The Tribunal accepted that the applicant was a Coptic Christian and that he met weekly with the little group to discuss Christian issues.  It also accepted that the group organised a collection of funds for the villagers of Kafr Dimiana and that after a protest to the police in relation to treatment of the villagers the applicant was detained in February 1996.  Moreover the Tribunal accepted that the applicant spoke at a meeting of the HTW in June 1996 about what had happened in Kafr Dimiana and was detained following that meeting but not charged with any offence.  It accepted his explanation that he was arrested because the police were trying to scare them because they collected contributions for Kafr Dimiana.  The Tribunal did not accept that the applicant would be of any further interest to the authorities because of these activities if he returned to Egypt.  It had regard to independent information, to the fact that the applicant remained in Egypt for three months after he obtained his visitor’s visa and to the length of time that had elapsed since the events occurred in Kafr Dimiana.  It did not accept that the applicant would face a real chance of persecution if he returned to Egypt because of his past activities relating to Kafr Dimiana. 

4. In his initial application the applicant claimed that he had been arrested in June 1996 and in December 1996 because of his activities in the Gathering Party.  The Tribunal did not accept that the applicant would be of interest to the authorities if he returned to Egypt because of his past membership of the HTW or Gathering Party having regard to the nature of his activities for the Party, the inconsistencies and vagueness in his evidence about his activities, independent information in relation to the Party, the absence of evidence that the authorities discriminated against the Party or its members and the fact that the applicant’s arrest in June 1996 was not, on his own evidence, related to his membership of or activities in the Party.  The Tribunal did not accept that he was of any interest to the authorities because he was a lay member of the Party or that he would be of any interest to the authorities because of past membership of the Party if he returned to Egypt.

5. The Tribunal also had regard to the applicant’s claims in relation to the distribution of critical pamphlets by the little group and the attacks on his shop.  It accepted that he and his little group were involved in fund raising for the villagers of Kafr Dimiana but found his evidence relating to the distribution of critical pamphlets and the attacks on his shop inconsistent and exaggerated.  It accepted that the little group may have distributed newsletters that contained information about activities occurring in the Church but could find no independent evidence that the authorities had shown any interest in persons distributing Christian newsletters that did not attempt to discuss major issues or influence readers.  The Tribunal found that the applicant would be of no interest to the authorities for distributing such newsletters.  Because of significant changes in the applicant’s story relating to the type of pamphlets the group distributed, inconsistencies in his story as to when they were first distributed and as to what was written in the pamphlets in October 1996, the Tribunal did not accept that the group distributed pamphlets that were critical of Muslim groups. 

6. The Tribunal found that it followed from such finding that it did not accept that the applicant’s colleague was arrested in October 1996 for distributing pamphlets as claimed.  It also followed that it did not accept that this colleague had given the authorities the applicant’s name in December 1996 or that the applicant was arrested by the authorities in December 1996.  The Tribunal also did not accept that, had his colleague been arrested in October 1996 and mistreated, the applicant would not have been detained by the authorities until December 1996. 

7. The Tribunal did not accept that the applicant had to close his hardware shop in January 1997 because of attacks on the shop by Muslim groups.  It accepted that there was an isolated attack on the business during the 1995 elections by Muslim groups needing funds for the elections, but found that the applicant’s continued operation of the business for at least a year following this attack indicated that he did not consider himself or his customers to be at risk of serious harm and that he had no real fear of future attack. 

8. The Tribunal also considered the applicant’s general claim that he feared returning to Egypt because there were many Muslim groups who opposed and hated Christians and he feared attacks by such groups and police inaction.  The Tribunal found these claims to be inconsistent with independent information in relation to terrorist groups and government attitudes and action.  It was unable to be satisfied that the applicant faced a real chance of being attacked by Muslim groups.  The Tribunal had regard to the isolated incidents of violence in Kafr Dimiana in February 1996 and to more recent sectarian violence in al Kush in upper Egypt but, based on independent information, found these events were not indicative of the present circumstances of Coptic Christians throughout Egypt.  It accepted independent information that the quality of protection provided to Christian citizens of Egypt was no different to that provided to Muslim citizens.  It did not accept that there had been a failure of State protection based on the 1995 attack on the applicant’s shop and one incident of police inaction.  It was unable to be satisfied that the Egyptian authorities had tolerated violence or failed to protect members of the Christian community against attacks by Islamic groups.  The Tribunal did accept that Christian Copts had occasionally been victims of violence by Islamic extremists in the last decade but found on the basis of independent evidence in relation to government activities that Coptic Christians were afforded the same government protection against terrorist violence as other Egyptians and that the government had fought terrorism against the Copts aggressively.  The Tribunal accepted that protection was available to Coptic Christians in response to conduct from Islamic extremists and found that if the applicant returned to Egypt he would be able to access protection from the Egyptian authorities. 

9. The Tribunal also considered the applicant’s evidence in relation to his practice of his religion.  It noted that he did not claim, and the evidence did not suggest, that he was prevented from practising his religion in Egypt. 

10. The Tribunal accepted some aspects of the applicant’s claims of discrimination in past military service but did not accept that the treatment described was serious enough to amount to persecution within the meaning of the Convention.  It found that it would not in any event be conduct which the applicant was subjected to again as he would not have to repeat his military service.  The Tribunal aaccepted that Coptic Christians are discriminated against in particular ways but did not accept that the discrimination the applicant had experienced as a Coptic Christian was of sufficient seriousness as to constitute persecution.  It noted that since he had left Egypt the government had taken steps to reduce the level of discrimination faced by Copts.

11. The Tribunal found the fact that the applicant had remained in Egypt for three months after he obtained a visitor visa to Australia indicated that he did not consider himself to be of any interest to the authorities or at any risk of harm from the Muslim groups he claimed he feared.  It also found that the applicant had arrived in Australia in July 1997, renewed his visitor visa on two occasions in September 1997 and February 1998 and did not apply for a protection visa until July 1998.  The applicant had provided two explanations for this delay.  The Tribunal believed that if the applicant had a genuine subjective fear of persecution he would have sought Australia’s protection more expeditiously.  The applicant’s failure to do so led the Tribunal to conclude that the applicant did not fear that he was of any interest to the authorities or that he would be harmed by Muslim groups if he returned to Egypt. 

12. The Tribunal concluded that after considering all of the claims individually and cumulatively it was unable to be satisfied that there was a real chance the applicant would face treatment amounting to persecution for a Convention reason if he returned to Egypt.  It was unable to be satisfied that the applicant had a well-founded fear of persecution for any Convention reason.

13. In these proceedings the applicant relied on only two of the grounds in his application:  first that the Tribunal decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations and secondly that the Tribunal decision was affected by jurisdictional error in that the decision was so unreasonable that no reasonable Tribunal could have made it. 

14. The first aspect of the first ground is a claim that the Tribunal failed to take into account the applicant’s claims based on grounds of race and particular social group.  It was submitted that in the Tribunal reasons for decision the Tribunal failed to address or even mention these claims and that its findings in relation to religion and political opinion were not necessarily sufficient.  It was contended that the Tribunal should have had regard not only to evidence in relation to religion and government attitudes to Christianity but also to whether the actions of the government or those it was unwilling or unable to curb were directed to suppressing or wiping out racial or ethnic groups and that the failure to have regard to these claims amounted to a failure to take into account relevant considerations.  The applicant’s claim in relation to membership of a particular social group is raised in a written submission provided in connection with the application to the Tribunal.  The claim is that the particular social group is Christian Copts.  It was not asserted by the applicant that he was a member of any particular social group other than Christian Copts.  Nor does the material before the Tribunal raise such a claim.  The Tribunal accepted that the applicant was a Christian Copt.  The Tribunal considered his claims to fear persecution as a Christian Copt.  It dealt not only with his specific claims but also with his initial general claim that Coptic Christians in Egypt suffer persecution and that the authorities do not provide them with protection.  It also considered the general claim made by the applicant at the Tribunal hearing that “he feared returning to Egypt because there are many Muslim groups who oppose and hate Christians and he feared attacks by these Muslim groups”.  The Tribunal did not accept that the applicant had a well-founded fear of persecution for reason of his specific activities.  It accepted that Coptic Christians are discriminated against in Egypt in a range of official and unofficial ways but did not accept that such discrimination amounted to persecution.  Insofar as the applicant’s claims are based on the applicant being a Christian Copt (whether that is described in terms of race, religion or particular social group) such claims were considered at length by the Tribunal.  The claims based on his Christian religion were also addressed.  The Tribunal considered at length his general claim about fear of attacks by Muslim groups which it found to be inconsistent with independent information.  It considered independent information in relation to the quality of protection provided to Christian citizens of Egypt in relation to religious violence and attacks by Islamic groups as well as the particular situation of Christian Copts and the independent information in relation to violence by Islamic extremists as well as the availability of protection from the Egyptian authorities.  Moreover the Tribunal correctly understood and considered the fact that the applicant did not claim and the evidence did not suggest that the applicant was prevented from practising his religion of Christianity in Egypt.  It had regard to the particular difficulties he claimed to have experienced as a Christian conscript but found such treatment not to have been sufficiently serious to amount to persecution. 

15. The claim that the Tribunal failed to have regard to relevant considerations consisting of claims based on race, that is, that claims based on persecution as a Copt rather than as a Christian Copt, is not made out.  The applicant’s original claim was made on the basis of race, but no distinction is made, either in his claims or in the material before the Court, between the position of Copts and Christian Copts.  The written document provided to the Tribunal by the applicant referring to his race as “Coptic” puts his claims by reference to the position of “Christian Copts”.  Indeed he expressly refers to Christian Copts as not only a particular social group but also as a race or a “special race” being the Christian minority in Egypt and distinct from Muslim Egyptians.  In other words the claims based on race as a Copt are expressed as a claim that “Christian Copts” have their own culture, customs, traditions and religious beliefs.  There is no suggestion in the material before the Court that the applicant makes claims as a Copt as distinct from a Christian Copt.  This is consistent with independent evidence referred to in the Tribunal reasons for decision indicating that the term “Copt” is used “generically to distinguish Christians from Muslim Egyptians”.  Such independent material (the United States Department of State Annual Report on Religious Freedom for 1999) states that both Muslims and Copts share a common history and national identity and the same ethnicity, race, culture and language.  The distinction, in other words, is between Christians and Muslims so when the applicant claimed to fear persecution as a Copt this was put in the same terms as a fear of persecution as a Coptic Christian.  The Tribunal made the decision on the basis that it accepted that he was a Coptic Christian.  The Tribunal dealt with the claim that he feared persecution as a Coptic Christian.  The findings that the Tribunal made in relation to the position of Christians and Coptic Christians dealt effectively with each of the subcategories of reasons for which persecution was allegedly feared by the applicant being religion, race or particular social group.  The claims based on political opinion were also dealt with by the Tribunal.  It has not been established that there was any failure to take into account relevant considerations in the manner in which the Tribunal dealt with the applicant’s claims.  Moreover, the Tribunal finding that the applicant’s claims to fear persecution as a Coptic Christian or as a Christian did not satisfy it that there was a well-founded fear of persecution for a Convention reason addresses the claims made by the applicant, whether expressed in terms of race, religion or particular social group.  This claim and the claim that the Tribunal failed to have regard to particular evidence about government and other action does not establish a failure to have regard to relevant considerations in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Tribunal considered the integers of the applicant’s claims (Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244) and its findings dealt with all relevant Convention reasons raised by the applicant or on the material before it.

16. The second aspect of this claim is that the Tribunal took into account an irrelevant consideration when it found that the applicant’s second explanation of his reason for not applying for a protection visa shortly after his arrival in Australia meant that he did not have a subjective fear of persecution.  It was submitted that the question of whether an applicant has a real subjective fear of persecution must be addressed at the time of application and that an earlier “wait and see” attitude was therefore irrelevant to whether the applicant had formed such a fear by the time he decided to apply for protection.

17. It is necessary to have regard to the precise findings by the Tribunal in this respect and the context in which such findings were made.  First, the Tribunal considered the fact that the applicant had remained in Egypt for three months after he obtained his visitor’s visa.  It had regard to the applicant’s explanations for such delay, which it did not find plausible, and found that the fact that he so remained in Egypt indicated that he did not consider himself to be of any interest to the authorities or at any risk to harm from the Muslim groups he claimed he feared.  The Tribunal went on to state:

    The applicant arrived in Australia in June 1997, renewed his visitors visa on two occasions in September 1997 and February 1998 and did not apply for a protection visa until July 1998.  The applicant provided two explanations for his delay in applying for a protection visa.  First he claimed he was told that if he applied for a protection visa the Egyptian authorities would find out and his family would get hurt.  He then claimed he didn’t think of applying for a protection visa when he first arrived because he thought if he stayed for a period of time things would “cool off, get better and he would go back”.  The Tribunal believes that if the applicant had a genuine subjective fear of persecution he would have sought Australia’s protection more expeditiously.  The applicant’s failure to do so leads the Tribunal to conclude that he did not fear he was of any interest to the authorities or that he would be harmed by Muslim groups if he returned to Egypt.

1. The applicant’s legal representative submitted that the Tribunal had erred in drawing a conclusion based on an absence of evidence or an irrelevant consideration, which it was contended consisted of an inference by the Tribunal that the applicant had provided inconsistent explanations for his failure to apply for a protection visa.  It was contended that an inference of inconsistency between the two explanations should not have been drawn by the Tribunal. 

2. The Tribunal findings in this respect relate to the applicant’s claims that he feared he was of interest to the authorities and would be harmed by Muslim groups if he returned to Egypt.  The Tribunal had already considered whether there was a proper foundation for any such fear.  As described above, it had found in relation to each of the applicant’s specific claims that there was no objective or proper basis for his claims that he would face a real chance of persecution, be of interest to the authorities, be attacked by Muslim groups or face an absence of State protection if he returned to Egypt.  In other words there was no proper foundation or objective basis for any fear, which hence could not be seen to be well founded.  Such findings (which have not been shown to be affected by jurisdictional error) provide a discrete basis for the Tribunal conclusions.  Nonetheless the Tribunal also considered the subjective element of well-founded fear. 

3. Reading the Tribunal reasons fairly and as a whole it cannot be said that the Tribunal reason for finding that the applicant did not have a subjective fear of persecution was simply the fact that he gave two explanations (or even two inconsistent explanations) for the delay.  It was open to the Tribunal to regard the two explanations as inconsistent.  It made no express finding basing its rejection of the applicant’s subjective fear on the fact of two explanations (or two inconsistent explanations).  The first explanation was a claim that the applicant did consider applying for a protection visa but was worried that the authorities would find out and his family would get hurt.  The second explanation was that he did not think of applying for a protection visa when he first arrived because he thought things would get better.  It is clear from the Tribunal reasons (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) that the Tribunal correctly took the view that it was relevant to take into account the fact of the delay in applying for a protection visa as well as the applicant’s explanations for any such delay. As Heerey J stated in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 349 a delay in applying for a protection visa is a “legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. It is a rational consideration open on the material”. The proper time for assessing whether the applicant was a refugee was the time of decision but the applicant’s state of mind at the time of application was relevant to the determination. In this case the applicant’s fear was said to be based on events which occurred in Egypt prior to his departure from the country and the Tribunal properly took into account its conclusions, first that he had no fear before arrival in Australia and second his subsequent delay in applying for a protection visa. There was evidence of delay in Egypt and in Australia. The applicant’s delay in leaving Egypt and his delay in applying for a protection visa in Australia were logically probative of the conclusion that he did not have a subjective fear of persecution. The applicant’s two explanations for the delay in application for a protection visa did not persuade the Tribunal otherwise. The Tribunal’s failure to be persuaded that the applicant had satisfactorily explained the delay did not constitute taking into account an irrelevant consideration.

4. The second ground raised by the applicant was that the decision was so unreasonable that no reasonable Tribunal could have made it.  It was contended first that the Tribunal erred in finding an inconsistency in the applicant’s claims in relation to the content of pamphlets distributed by the little group as he did not claim that his group distributed pamphlets and that it unreasonably rejected the applicant’s claim concerning the arrest of his colleague in October 1996.  It was also submitted that the unreasonableness was compounded when the Tribunal then purported to assess the physical and psychological fortitude of the arrested man by determining that he could not have held out under police torture until December 1996 before giving the applicant’s name as an accomplice.  It was argued that the reasoning of the Tribunal was so faulty that it came within the concept of Wednesbury unreasonableness. 

5. However, contrary to the submission for the applicant, it is apparent from all the material before the Court that the applicant did claim that his group distributed pamphlets critical of Muslim groups as explained by the Tribunal.  There was an inconsistency in his claims.  It is not in dispute that the applicant claimed that he was involved in the distribution of pamphlets and that he claimed that it was this involvement which led to him being arrested in December 1996.  At the time of the original application the applicant had claimed in his written statement that the pamphlets called “to uncover those government supporters who were playing with the controlled supply of foods to the people”.  He claimed that his colleague was arrested, and “tortured and beaten until he confessed with the names of all his colleagues in HTW who were joining in similar activities.  I was one of them.  So I was arrested again by the end of December 1996 and also some members of the HTW were arrested”.  In his response to a s424 request for information, the applicant claimed that the pamphlets covered issues concerning the aims of the Gathering Party.  The Tribunal explored these claims with the applicant in the two Tribunal hearings.  The Tribunal reasons for decision (the only evidence of what occurred in the hearings) record that in the first hearing the applicant described the pamphlets as being about what was happening to Christians and as asking “questions like why can’t Christians practise their religion freely, repair their churches or reach high positions in the government”.  He said that the pamphlets were distributed from 1996 depending on what was happening and that his colleague was arrested for distributing pamphlets that exposed corruption.  In the second hearing held on 5 September 2000, the applicant initially claimed that the pamphlets distributed were news or information pamphlets containing information about what was happening at the Church consisting of three to four topics about Church meeting times, news of visiting speakers, the Saint of the week, a text from the Bible and similar matters.  He said that they were first distributed in 1993.  The applicant also claimed that the purpose of the pamphlets was not to attack or discredit any organisation or person and that there was nothing in the newsletters that was offensive or could hurt anybody and that what he wrote in the newsletter about what had happened in Kafr Dimiana was in the official media.  He had not written anything that really was not a well-known fact.  The Tribunal recorded that subsequently the applicant was asked about the claimed arrest of his colleague in October 1996.  The applicant then told the Tribunal that he was arrested for taking an active part in distributing leaflets.  He claimed that they had written about “how they were treating the Christians especially the rich or successful ones … and they wrote about the attack on one particular shop [in Zagazig] with a Christian owner and how there was a wave of hatred and persecution from Muslim groups”.  The reasons for decision record that the Tribunal asked the applicant why the newsletter in October 1996 contained critical things about Muslims when he had previously claimed they had never written critical things in their pamphlets or information sheets.  According to the Tribunal reasons for decision, the applicant responded that when they first established the newsletter there was nothing like this happening so there was no need to write critical things and that they first started to publish critical articles around the election in 1995 when Muslim groups started to attack Christian shops.  The Tribunal’s perception that there was an inconsistency in the claims about the content of the pamphlets was open to it and, moreover, was put to the applicant for comment.  The applicant’s adviser provided further comment in a submission after the hearing, describing the pamphlets as merely general newsletters with a strong religious lean covering Church activities.  No error is apparent in the Tribunal treatment of such claims.

6. It was contended that the Tribunal unreasonably rejected the applicant’s claim about the arrest of his colleague in October 1996.  In rejecting these claims the Tribunal first found the applicant’s evidence relating to the distribution of critical pamphlets by the group (discussed above) inconsistent and exaggerated.  It continued:

   The Tribunal accepts the little group the applicant belonged to may have distributed newsletters that contained information covering the activities occurring in the Church, for example, Masses and meetings and the text from the Bible.  However the Tribunal could find no independent evidence that the authorities have shown any interest in persons distributing Christian newsletters that did not attempt to discuss major issues or influence its readers.  The Tribunal finds that the applicant would be of no interest to the authorities for distributing such newsletters.

7. Such reasoning provides a separate basis for rejection of the applicant’s claims about the arrest of his colleague for distributing pamphlets.  However the Tribunal went on to deal specifically with that part of the claims that suggested that the pamphlets were critical of Muslim groups.  It is contended that the applicant made no such claims and merely asserted that the October 1996 pamphlet was about official corruption.  However there is no transcript of the hearing before the Court and the Tribunal account of what occurred records that such claims were made.

8. Because of the significant changes in the applicant’s story relating to the type of pamphlets his group distributed, the inconsistencies as to when they were first distributed and as to what was written in the pamphlets in October 1996, the Tribunal did not accept that the group the applicant belonged to distributed pamphlets that were critical of Muslim groups.  The Tribunal finding that the applicant would be of no interest to the authorities for distributing Christian newsletters as well as its failure to accept that the group distributed pamphlets critical of Muslim groups led the Tribunal to conclude that it did not accept that the applicant’s colleague was arrested for distributing pamphlets.  It followed from this that the Tribunal did not accept that this colleague gave the authorities the applicant’s name or that the applicant was arrested in December 1996 as claimed.  The Tribunal finding that the applicant was not arrested was open to it on the basis of such reasoning. 

9. The applicant takes issue with the Tribunal’s finding that it was implausible that if the applicant’s colleague had been arrested in October 1996 he would have been able to keep the applicant’s name from the authorities for two months.  However the Tribunal referred to inconsistencies in the claims, to the harsh treatment of detainees in Egyptian prisons (a matter to which the applicant had referred) and also to implausibilities in the claim that the authorities would not question the applicant about other members of the group given that they were all supposed to be involved in the production and distribution of the pamphlets, in reaching the conclusion that it did not accept that the applicant was detained by the authorities in December 1996.  It has not been established that the Tribunal reasoning was unreasonable in the manner contended.  Its reasons were based on the applicant’s own claims at various stages and on a rational analysis of the individual claims step by step.  The findings were open to the Tribunal on the material before it.  Hence it is not necessary to consider whether unreasonableness gives rise to jurisdictional error as contended.

10. The final ground is a contention that the Tribunal erred in accepting, without question, an assertion from the Department of Foreign Affairs and Trade to the effect that “the quality of protection provided to Christian citizens of Egypt is no different to that provided to Muslim citizens”.  It was contended that the Tribunal could not reasonably accept this DFAT opinion in the face of a document before it submitted by the applicant which consisted of a judgment of the Supreme Court of Egypt which held that non-Muslims cannot give evidence against Muslims in a court of law.  It was contended that unless the Tribunal queried and dealt with the authenticity of the report, which it did not, it was bound to accept the judgment as a correct statement of the law of Egypt.  The judgment of the Supreme Court of Egypt, which was part of the material provided to the Department in connection with the application for a protection visa, is described as a judicial case in which the Supreme Court decided that Christians are infidels and could not testify in the Court against Muslims.  The case concerned a dispute between a Christian charity and a Muslim man, the beneficiaries under the will of a Christian woman.  The Muslim man was the testator’s nephew.  Each party had supporting witnesses.  However the Court stated that all the witnesses of the Christian charity were non-Muslims, hence their testimony was invalid because they were infidels and no infidel can testify against a Muslim.  The Muslim nephew was given all the aunt’s property because according to Islamic principles no non-Muslim should inherit property from a Muslim.

11. It is necessary to have regard to the context in which the Tribunal reached its conclusion about the quality of protection provided to Christian citizens of Egypt.  The DFAT report relied on by the Tribunal, which dealt specifically with the risk to Christian citizens of violence from militant Islamic groups, was referred to by the Tribunal in the context of a consideration of the applicant’s claims to face a real chance of being attacked by Muslim groups and that the Egyptian authorities would be unable to provide protection.  The Tribunal found on the basis of the independent information that it was unable to be satisfied that the applicant faced a real chance of being attacked by Muslim groups.  It considered that isolated incidents of violence and sectarian violence in an area of Egypt away from the area in which the applicant had lived were not indicative of the present circumstances of Coptic Christians throughout Egypt.  It is clear that the Tribunal was considering the exposure of Coptic Christians to extremist or sectarian violence.  It is in that context that it accepted the independent information about the quality of protection provided to Christian citizens.  It discussed a human rights report into the incident in Kafr Dimiana which indicated that Muslim citizens were subsequently arrested and that in a later incident a large number of people were charged.  The Tribunal also considered the applicant’s claims about the attack on his shop but concluded that an isolated incident of local police inaction after the claimed attack in late 1995 did not amount to a failure of State protection.  The Tribunal concluded that it was unable to be satisfied that the Egyptian authorities had tolerated religious violence or failed to protect members of the Christian communities against attacks by Islamic groups.

12. As the respondent contended, that the fact that the Tribunal had found that it was unable to be satisfied that the applicant faced a real chance of being attacked by Muslim groups meant that strictly speaking it was not necessary for it to go on to consider whether the applicant would be able to access protection from Egyptian authorities as no persecution had been established.  In any event it is clear that it dealt with that issue in the context of the claims of religious violence and terrorist attacks (which were the claims made by the applicant in his protection visa application, in the accompanying documentation provided to the Department and to the Tribunal and in the Tribunal hearing).  It was in that context that the Tribunal was not satisfied on the evidence before it that the authorities had tolerated religious violence or failed to protect members of the Christian communities against attacks by Islamic groups. 

13. The fact or content of the Supreme Court judgment does not establish that it was unreasonable for the Tribunal to have accepted that the quality of protection available to Christian citizens of Egypt from violence from militant Islamic groups was no different to that provided to Muslim citizens.  The Supreme Court case involved Islamic inheritance principles.  The general issue of State protection of Christians from religious violence arose in quite a different context.  Moreover there was material before the Tribunal to indicate that in some contexts Sharia or Islamic law applies while in others it does not.  The DFAT information relied upon was not necessarily inconsistent with the Supreme Court case.  It was open to the Tribunal on the material before it to accept the DFAT information and to find the Egyptian government did not discriminate in protection against terrorist activities.  Such a finding of fact was open to the Tribunal on the material before it.  The ground of unreasonableness is not made out.  Moreover there is no obligation on the Tribunal to refer to every individual item of evidence before it.  In light of the nature of the claims made by the applicant in this particular case and the findings of the Tribunal it was not necessary for the Tribunal to deal specifically with the evidence about this court case.  The Tribunal obligation to give reasons is to refer to evidence or other material on which findings of fact were based (s430(1)(d) Migration Act 1958).  It did so.  The weight to be given to any particular item of evidence is a matter for the Tribunal.  Finally, the Tribunal did not take the view that the DFAT opinion was a broad opinion that Christians received equal protection under the law (as contended).  Rather it had regard to material dealing with the risk of Christian citizens of violence from militant Islamic groups (and the available State protection) in considering the applicant’s claims of that nature.

14. No jurisdictional error has been established.  Accordingly the application must be dismissed.  This makes it unnecessary to determine whether the applicant’s unexplained delay in seeking review of the Tribunal decision handed down on 18 October 2000 would justify refusing to grant relief. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: