SZBBP v MIMIA

[2005] FMCA 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBP v MINISTER FOR IMMIGRATION [2005] FMCA 5

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Egypt – whether the RRT asked itself the wrong question – whether the RRT misapplied the Refugees Convention and s.91R of the Migration Act 1958 (Cth) – whether the RRT erred in considering the adequacy of state protection – whether the RRT hearing was procedurally fair.

Migration Act 1958 (Cth), s.91R

Applicant A99 of 2003 v Minister for Immigration [2004] FCA 773
Applicant M31 of 2002 v Minister for Immigration [2004] FCA 533
Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630
Chappel v Hart (1998) 195 CLR 232
Htun v Minister for Immigration (2001) 194 ALR 244
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Respondents S152/2003 [2004] HCA 18; 78 ALJR 678
Minister for Immigration v Singh (2002) 209 CLR 533
Minister for Immigration v VBAO of 2002 [2004] FCA 1495
MZRAJ v Minister for Immigration [2004] FCA 1261
Paul v Minister for Immigration (2001) 113 FCR 396
Sarrazola v Minister for Immigration [1999] FCA 101
Tran v Minister for Immigration [2004] FCA 509
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
VQAB v Minister for Immigration [2004] FCAFC 104
VTAG v Minister for Immigration [2004] FCA 447
WAEE v Minister for Immigration (2004) 75 ALD 630

Applicant: SZBBP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1492 of 2003

Delivered on: 18 January 2005

Delivered at: Sydney

Hearing date:

Date last submissions received:

25 November 2004

23 December 2004

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Counsel for the Respondent: Ms S Kaur-Bains

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1492 of 2004

SZBBP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 25 June 2002 and handed down on 17 July 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant made claims of religious persecution in Egypt.  I adopt the following background statements drawn from paragraphs 1-10 of the applicant’s initial written submissions prepared by Mr Karp and paragraphs 3-11 of the respondent’s initial written submissions prepared by Ms Kaur‑Bains:

   The applicant is an elderly Egyptian man. He is a Coptic Christian and a widower. He has one son in Egypt, who is a judge, and a son and a daughter in Australia.  Because the pages of the Court Book are unnumbered, reference is made, where at all possible, to the page numbers of the Tribunal decision (TD).

   [The applicant] arrived in Australia on 20 February 2001, and the application for a Protection Visa was lodged on 30 March of that year. The procedural history is set out at TD 2. A statement of claims, in very general terms was filed with the application[1], and it was not until the RRT hearing that these were elaborated upon.

   [1] What appears to be pp 18-16 of the DIMIA file.

   The RRT in its reasons sets out that “the applicant claims to fear persecution for reasons of religion.” 

   The RRT then summarised the applicant’s written claims as follows:

   a)The applicant says that he and his family enjoyed a reasonably comfortable life in Egypt however he did suffer some level of discrimination due to his Christian beliefs;

   b)He retired in the mid 1990’s after a successful career in a building company.  His wife was an official in the Attorney‑General’s department;

   c)One of his sons was a lawyer in Egypt who was well known for his efforts in defending Christians for reduced or no fees.  During this time there was opposition to the son representing Christians from within the lawyers Bar Association and Islamic members of the applicant’s neighbourhood;

   d)The applicant’s wife was given a position in the Attorney‑General’s Department, which required her to consider applications for detainees in various prisons.  In late 1995 the applicant’s wife refused an access permit to the friends of a particular detainee.  This person was somehow related to a case of the applicant’s son, which increased the problems faced by the family.

   (page 5 and 6 of Tribunal’s Decision (“TD”))

   The applicant elaborated on the above claims during the course of the hearing. 

   In relation to the claim based upon his son’s activities the applicant said the “bearded ones” sent letters of complaint to the Law Society and asked that the son’s licence be revoked.  On being questioned further about this matter the applicant told the RRT that his son’s licence had not been revoked and that he had now been appointed as a judge (TD 7).  In relation to that claim the RRT was not satisfied that the complaint made against the applicant’s son constituted “persecution of the applicant for reasons of religion or membership of particular social group.”  (TD 18, first paragraph).  The applicant does not challenge this finding.

   In relation to the claim based upon his wife’s job the applicant elaborated on this at the hearing and said the person seeking the permit was involved in court proceedings in which his son was acting for a Christian client.  The person applying for the permit took the view that the applicant’s wife had refused the permit because of her son’s involvement in his court case.  Following this, the person and his associates then continued to harass both the applicant and his wife by telephone and in person.  The purpose of the harassment was to persuade the applicant’s wife to grant the permit. Once it became clear that the request would not be granted the calls became threatening.  No harm came to the applicant or his family as a result of the calls.  The RRT found that:

   “There was no evidence that these actions were motivated for reasons of religion.  The person seeking the permit was motivated by a desire to obtain a visit permit and then by some acrimony against the applicant’s wife and the applicant who would not submit to the pressure. The reasons for the harassment were personal and individual to the applicant‘s wife and the applicant. The Tribunal is not satisfied that the applicant was harassed for any convention reasons.”  TD18

   The applicant does not challenge that finding (paragraph 7 of the applicant’s submissions).

   A distinct set of claims concerned the rising tide of Islam in Egypt and intolerance of Christianity. The RRT described the evidence as follows (TD 9);

   The applicant explained that one night in August 2000 he heard an explosion at about 11pm. He ran outside and found a picture of St Mary that he kept on his balcony ripped to pieces. He was very angry and started screaming and using abusive words against those people who damaged his picture. The next day he let his dog out at 6.30am in the morning. He let his dog out every morning at the same time. His dog did not return and he went outside to look for him. He found the dog dead with foam in his mouth. That evening he received a phone call from someone who said to him “we have killed your dog and we will kill you.” The caller also used abusive words and said, “how dare you swear and insult your superiors”. The applicant understood this to refer to his own abusive outburst when he found his picture of St Mary destroyed.

   [The applicant] related how when he walked the streets he was in fear of his life and was often spat upon. The callers threatened him and said, “You are the slaves of Islam”, and “why don’t you come back to the true religion?”. There were many telephone threats between 1995 and 2001, although [the applicant] was unable to say how often they occurred.

   The RRT’s reasons

   The RRT summarised this claim as follows:

   “One evening the [applicant] heard a terrible explosion and when he went to investigate he found a picture of St Mary which he kept on his balcony torn to pieces.  He became angry and went out and swore abuse at the members of the local community who he held responsible for the destruction of his picture.  Following this he had a succession of abusive and threatening phone calls including threats to kill.  He stated that these calls occurred from 1995 to 2001.  One morning he found that his dog had been poisoned and he received a phone call, which referred to the death of the dog and threatened him also with death.” TD19

   The RRT in relation to that claim accepted that:

   a)members of the local community destroyed the applicant’s picture of St Mary;

   b)the applicant became angry and swore abuse at the members of the local community;

   c)as a result of this incident members of the community made abusive and threatening telephone calls for a lengthy period of time and that someone in the community poisoned his dog.

   However, the RRT found that the above incidents arose out of:

   “….a neighbourhood dispute and that the persons who were responsible for the harassment, telephone calls and death of his dog were motivated by their anger at the applicant’s swearing and abuse when he discovered his torn picture and not for reasons of religion.  The destruction of the religious picture was a catalyst for the dispute between the applicant and members of the community and the content of some of the harassing telephone calls concerned matters of religious belief; however the Tribunal is not satisfied that the essential and significant reason for the harassment of the applicant was because of his religious affiliations. “ TD 19

   In this case there was no finding that the harm suffered by [the applicant] did not, or could not in the future, amount to persecution.

   The RRT also rejected [the applicant’s] more general claims to fear persecution because of his religion.

The judicial review application

1. I gave leave for Mr Karp to file in court on 25 November 2004 an amended application.  In that application, the following grounds of judicial review are raised:

   1.The Tribunal committed jurisdictional error of law in that it asked the wrong question.

   Particulars

   (a)The Tribunal asked whether the applicant has a well founded fear of persecution for reason of his religion being Christianity, rather than asking whether his fear was for reason of religion.

   2.The Tribunal committed jurisdictional error of law in that it asked the wrong questions, and failed to ask the correct questions, in relation to whether the applicant’s fear arising from the destruction of his picture of St Mary, was “for reason of” religion.

   3.The Tribunal misunderstood and misapplied the law as to the words, “for reasons of … religion” in Article 1A(2) of the Refugees Convention, in relation to the applicant’s fear arising from the destruction of his picture of St Mary.

   4.The Tribunal erred in failing to determine whether the Egyptian police provide a level of protection comparable with international standards.

2. In the light of what transpired on the hearing of the application on 25 November 2004 (two additional issues were raised by me and I also queried whether ground 4 was as well formulated as it might have been) I gave leave for a further amended application to be filed by 9 December 2004.  The further amended application filed in my chambers on that day asserts the following grounds:

   1.The Tribunal committed jurisdictional error of law in that it asked the wrong question.

   Particulars

   a)The Tribunal asked whether the applicant has a well founded fear of persecution for reason of his religion being Christianity, rather than asking whether his fear was for reason of religion.

   2.The Tribunal committed jurisdictional error of law in that it asked the wrong questions, and failed to ask the correct questions, in relation to whether the applicant’s fear arising from the destruction of his picture of St Mary, was “for reason of” religion.

   3.The Tribunal misunderstood and misapplied the law as to the words, “for reasons of … religion” in Article 1A(2) of the Refugees Convention, in relation to the applicant’s fear arising from the destruction of his picture of St Mary.

   4.      The Tribunal erred,

   a)in failing to determine whether the applicant had reasonable excuse for not seeking the protection of the Egyptian police and

   b)in failing to determine whether the Egyptian police could provide a level of protection to the applicant  comparable with international standards.

Submissions

1. Mr Karp made the following initial written submissions:

   [The applicant] complains about the RRT’s reasoning, as summarised above, for the following reasons.

   Firstly, Article 1A(2) of the Refugees Convention protects those who have a well founded fear of persecution for reasons of religion per se, which includes but is not limited to their own religion. If, as the RRT said, [the applicant] faces harassment (to use a neutral word at this stage) because of insults that he threw at those who destroyed his religious painting, and the repost was in part, ‘why do you insult your superiors?’ and ‘you should come back to the true religion’, his difficulty arises from his having insulted Muslims, and impliedly having insulted Islam. Assuming for the moment that the harassment that he experienced was not specifically directed at his Christianity, it was nevertheless “for reason of” religion because the persecutor’s appear to have seen connotations derogatory of their religion in [the applicant’s] comments. The RRT’s error was to ask the wrong question – whether [the applicant] feared persecution for reason of his Christianity, rather whether it was for reason of religion per se.

   Secondly, the line of reasoning utilised by the RRT to deny a causal nexus between [the applicant’s] Christianity and the harassment that he suffered is simply not open to it. According to the evidence that was accepted:

   ·    [the applicant] found his religious painting desecrated;

   ·    He shouted insults at those who caused the damage;

   ·    They murdered his dog;

   ·    They spat at him in the street and continually threatened him in terms that invoked the alleged superiority of Islam over Christianity.

   It is submitted that in this area of discourse, as in tort, causation is to be determined by common sense notions, and not solely by a “but for” test (see e.g. March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506, 515, 523; Chappel v Hart (1998) 195 CLR 232, 243, 256). This is so despite the fact that the decision to be taken by the RRT is one of satisfaction. It is also submitted that the test of causation is a question of law.

   There is at the very least an arguable difference between the immediate cause of the harm feared and the ultimate cause. In Sarrazola v Minister for Immigration [1999] FCA 101, Hely J said, discussing the facts of that case:

   43 The basis for RRT's finding that the applicant's well-founded fear of persecution was not for reason of her family membership was reproduced in its entirety at paragraph 18 above. The crux of that reasoning is as follows:

   "...the criminals' concerns were motivated by self-interest to recover the money they believe was owing to them by the applicant's deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house". [DRD p12]

   Put more succinctly, the Tribunal found that the reason for the applicant's well-founded fear of persecution was extortion associated with the recovery of her deceased brother's debt.

   44. This reason for the applicant's fear of persecution necessarily incorporates three notions:

   * A debt is owed to the criminals,

   * The debtor is the applicant's deceased brother,

   * The attitude of the persecutors (see paragraph 7 above) is that his relatives are now responsible for payment of the brother's debt.

   45. These notions are inextricably linked. It is only when regard is had to the combination that the reason for the applicant's fear of persecution emerges. Once this is accepted, it was not open to RRT to conclude that:

   "the Tribunal is...not satisfied that the harm feared by the applicant and her husband on return to Colombia arises (even in part) for a Convention reason." [DRD p13, emphasis added]

   Section 91R of the Migration Act 1958 (Cth) (“the Migration Act”) which is applicable here, requires the RRT to identify the essential and significant reason(s) for the harm feared. It does not require the RRT to create artificial distinctions between causes. In the case before the Court, each step in paragraph 13 above is dependent on the previous step. In the words of Hely J, those steps are “inextricably linked”. It is not, as a matter of law, open to the RRT to isolate the abuse hurled by [the applicant] at his neighbours, from the cause of that abuse (the destruction of his religious painting) or from the consequences (threats combined with and couched in religious terms).

   Putting this another way, the RRT has failed to ask itself whether the “neighbourhood dispute” to which it attributes the harm feared, has itself a nexus to religion.

   The RRT has misunderstood and misapplied the test of causation encompassed by the words, “for reasons of” in Article 1A(2) of the Refugees Convention. It has also failed to ask the correct legal question. These are jurisdictional errors.

   If either of the above arguments succeeds, the case should be remitted for reconsideration. The RRT did not make a finding as to whether the harassment suffered by [the applicant] in this respect amounted to persecution. Section 91R(3) does not place limits on the type of harm that must be suffered by an applicant if that harm is to amount to persecution. It refers only to the effect of the harm – that it be serious. Whether harm is serious will depend to an extent on the personal characteristics of the victim. I submit that for an elderly, frail and sick man, constant vilification could amount to serious harm, albeit mental or psychological harm.

2. Mr Karp also took the opportunity to make oral submissions.  Mr Karp drew attention to the fact that the incident on which this aspect of the RRT decision turned occurred on the feast of St Mary and began with an explosion and the destruction of the applicant’s picture of St Mary that he had displayed on his balcony.  Mr Karp tendered (exhibit A1) a transcript of a part of the hearing conducted before the RRT.  It is apparent that the relevant claim by the applicant was raised for the first time at the RRT hearing.  Nevertheless, the factual claims made by the applicant were accepted by the presiding member.  Mr Karp was not able to tell me definitively whether the transcript as tendered sets out the terms in which the claim was first raised by the applicant.  In view of that doubt, I gave leave for further evidence to be filed by 9 December 2004, which was to be an affidavit annexing any further relevant transcript.  I raised as a possible further issue whether the RRT had responded in any meaningful way to that part of the applicant’s claim which relied upon the destruction of his picture of St Mary.  I noted that the presiding member had accepted that the destruction of the picture was “a catalyst” for what followed but the presiding member did not find a Convention nexus with the applicant’s religion, in terms of what followed.  I suggested that it was arguable that the presiding member may have overlooked the significance of the destruction of the picture as, possibly, a religiously motivated provocation which drew a response from the applicant that may have been anticipated or even sought.  I gave leave for Mr Karp to make further written submissions on that point.

1. In his oral submissions Mr Karp submits that the conclusion reached by the RRT, namely that the RRT was not satisfied that the essential and significant reason for the harassment suffered by the applicant was because of his religious affiliation, was not reasonably open to the RRT on the material before it.  He further submits that the reasoning of the presiding member discloses a false dichotomy between the religious motivation of the applicant’s tormentors and the applicant’s own response to the destruction of his picture of St Mary.  Mr Karp further submits that the presiding member erred in limiting her consideration at the critical point in her reasons to the religion of the applicant rather than the issue of religion generally.

2. Mr Karp took me to the decision of the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[27]. He submits that the torment suffered by the applicant could not possibly have been for reasons other than religion, which was a combination of the applicant’s own religious affiliation and the religion of his tormentors.

3. In relation to the false dichotomy argument, Mr Karp took me to the decision of the High Court in Minister for Immigration v Singh (2002) 209 CLR 533 at [19]. He also took me to the decision of the Federal Court in Minister for Immigration v VBAOof 2002 [2004] FCA 1495 at [37]. Mr Karp took me to that case in anticipation of an argument that, even if there was a jurisdictional error in the decision of the RRT, it would be futile to require a further hearing before the RRT because the applicant did not suffer serious harm. Mr Karp sought to distinguish VBAO, which is binding upon this Court, on the basis that the issue of whether threats can constitute serious harm needs to be considered by reference to the facts and circumstances of a particular case.  In this case, the applicant is an elderly man in poor health and his susceptibility to threats would be considerably greater than that of a young and healthy person able to defend himself.

4. Mr Karp also dealt in his oral submissions with the issue of State protection, which appears on page 22 of the RRT’s reasons.  The presiding member said:

   The applicant’s agent states that the government cannot control persecution and protect its citizens.  The independent information suggests that whilst the police have been criticised by some in the community for an inadequate response to incidents of communal violence the government does not accept this criticism and has made genuine efforts to contain violence and protect the Christian community.  The independent country information suggests that the state has provided adequate protection to Christians (2002 International Religious Freedom Report, US DOS 2001).  The applicant does not claim that he sought the assistance of the police in relation to the threats made to himself and his late wife.  The applicant’s agent’s submission is not supported by any credible evidence and accordingly the Tribunal is satisfied that the state provides adequate and effective protection to Christians.

5. It is not clear whether this finding by the presiding member was determinative of the outcome of the protection visa application.  The presiding member had already found that there was no Convention nexus with the harm suffered by the applicant.  However, it appears that the finding on the adequacy of State protection may have been in part determinative of the outcome because, on TD 23, the presiding member stated:

   For all the reasons set out above, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason should he return to Egypt now or in the foreseeable future.

6. With this in mind, Mr Karp took me to the decision of the High Court in Minister for Immigration v Respondents S152/2003 [2004] HCA 18; 78 ALJR 678 at [26]. Mr Karp submits that the adequacy of State protection needs to be considered against an appropriate international standard. Mr Karp notes that this issue has been considered by the Federal Court several times[2].  The authority on the point is not consistent. 

   [2] Applicant A99 of 2003 v Minister for Immigration [2004] FCA 773; and MZRAJ v Minister for Immigration [2004] FCA 1261

7. I pointed out to Mr Karp that this issue could be addressed in two other ways.  An alternative way of addressing the issue was to consider whether the RRT considered the right question.  Arguably, the right question was not whether adequate State protection was available in Egypt but whether the applicant had advanced sufficient justification for not seeking State protection.  In addition, I pointed out that in making this finding the presiding member had relied upon country information and it was not apparent whether the information had been disclosed to the applicant.  Mr Karp agreed to address these issues by way of additional evidence and further submissions.

8. Ms Kaur-Bains made the following initial written submissions:

   The applicant alleges the RRT failed to consider whether the claim referred to in paragraph 9 gave rise to a well-founded fear of persecution for reason of religion and isolated its consideration to whether the fear was by reason of his Christianity.

   The RRT’s reasons disclose that:

   a)It was aware the applicant claimed to fear persecution for reasons of religion, as it specifically stated this in its reasons.  See for example TD5: fourth paragraph;

   b)Its consideration of the claim in question (as set out in paragraph 11 of these submissions) was on the basis of a claim to have a well-founded fear for reasons of religion arising from the factual circumstances alleged.

   “For reasons of” – causation

   In the respondent's submission, there would be no material difference in this case in considering whether the putative persecution was for reason of the applicant's religion (Christianity) or because he was a non-Muslim or because the putative persecutors were Muslims. The RRT has dealt with the substance of the issue.

   The words “for reasons of” appearing in Article 1A(2) of the Refugees Convention requires the decision maker to evaluate the connection between the persecution feared and the Convention ground. Section 91R(1) of the Migration Act requires that a reason specified in Article 1A(2) of the Convention is the essential and significant reason or reasons for the persecution.

   The applicant has cited Sarrazola v Minister for Immigration [1999] FCA 101. In order to analysis the reasons of His Honour Justice Hely the facts of that case need to be considered.

   In that case the applicant, Ms Sarrazola, was a  Colombian national.  The applicant’s brother was involved in trafficking drugs and he owed Colombian underworld figures $US40,000.  He was assassinated as a consequence of his failure to pay the debt. An individual who claimed to be owed the debt contacted the applicant and demanded she pay the money and made death threats.  The applicant, her husband and children left Colombia for Australia. The applicant claimed that she feared persecution by her brother’s debtors if she was compelled to return to Colombia and the persecution arose by reason of her membership of a social group constituted by her family group.

   Justice Hely held that the RRT erred in its consideration in that case because:

   “…once [the] RRT found that part of the reason for the applicant’s well-founded fear of persecution was the fact that she was the sister of the deceased brother, [the] RRT erred in law in deciding that the applicant’s fear of persecution was not for reason of her family membership without at least considering the extent to which membership of the family is a factor in the risk of persecution.” [47]

   The High Court cautioned that “it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term” Minister for Immigration v Guo (1997) 191 CLR 559. Therefore the particular factual circumstances of each case must be considered to ascertain if an error has occurred.

   In this case the findings referred to in paragraph 10 do not lead to the only conclusion that the conduct complained of amounts to persecution for a convention reason that is by reason of religion. The RRT found that the conduct complained of was by reason of a neighbourhood dispute and the persons involved in the conduct were angry at the applicant’s swearing and abuse. The RRT did not commit the error identified by Justice Hely in that the RRT went on to consider whether the cause of the conduct was for reasons of religion and found that it was not (TD 19). The RRT’s reasoning process discloses that it was aware of the need to evaluate the connection between the asserted persecution feared and the reason for the persecution and did so without error. Further, unlike the case considered by Hely J to which section 91R did not apply, the RRT’s task was to consider whether religion was "the essential and significant reason for the persecution" not simply one of the reasons.

   In any event the RRT found that the state provides adequate and effective protection (TD 22: last paragraph).  That finding is not challenged. Therefore, if any error is disclosed the ultimate decision was not affected and the decision should not be set aside.

9. In oral submissions, Ms Kaur-Bains submits that the finding made by the presiding member on page 19 of her reasons as to the absence of a Convention nexus with the harm suffered was open to her upon the facts.  In this regard, Ms Kaur-Bains submits that the applicant can only succeed on the issue of causation if there was only one conclusion open to the presiding member on the evidence before her.  She submits that this is clearly not the case. 

10. Ms Kaur-Bains also submits that the RRT did not fail to consider the issue of religion per se in relation to the harm suffered by the applicant.  She took me to the cautionary observations by the Full Federal Court in Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]. Ms Kaur-Bains also took me to various references in the RRT decision and reasons where the presiding member dealt generally with the issue of religion. It was only in relation to the consideration of s.91R of the Migration Act that the presiding member referred in a limited way to the applicant’s religion. She submits that it could not be said from that single reference that the presiding member had failed to consider the issue of religion generally and neither could it be said that the presiding member misunderstood that the issue of religion was the same under s.91R as it is under the Convention.

11. Ms Kaur-Bains asked to be heard separately on costs.  I gave her the opportunity to file further written submissions following further written submissions on behalf of the applicant.  I also gave the applicant the opportunity to file submissions in reply.

12. The following further written submissions were filed on behalf of the applicant on 9 December 2004.  Mr Karp submits as follows:

    These submissions address the following issues as raised at hearing:

    a)natural justice;

    b)the manner in which the RRT dealt with the fact of the destruction of the applicant’s religious picture, in view of additional evidence; and

    c)State protection.

The hearing tapes reveal that the RRT discussed relevant country information at length and in detail with the applicant and his migration agent. Although the RRT appears to have used a later version of one document in its decision, as opposed to that disclosed at hearing, the relevant information was disclosed and no issue of denial of natural justice arises.

Argument and conclusions from the further transcript

A further partial transcript of the RRT hearing is sent herewith. This includes the extract which is currently in evidence, and I seek leave to exhibit this document. It is abundantly clear from these extracts, and specifically from the passages underlined therein, that [the applicant] saw the abuse (“torment” in the words of the RRT) that he suffered as a continuum – that the religious aspect of this “torment” which stemmed from his son’s pro bono defense of Christian clients and his wife’s public duties flowed through to the incident of the destruction of the picture and the events which followed.

The RRT, as the finder of fact was entitled to categorise the claims as it saw fit – so long as it did address each “integer” of them (see Htun v Minister for Immigration (2001) 194 ALR 244; WAEE v Minister for Immigration (2004) 75 ALD 630). However, as was submitted at hearing it was not entitled to characterise them in a way wholly unsupported by evidence. That is because the question of whether facts fully found are within the terms of a statute properly construed is a question of law, although if different interpretations can be given to those facts, then the interpretation to be adopted is a question of fact (Vetter v Lake Macquarie City Council (2001) 202 CLR 439). In the present case the words, “for reasons of” in Article 1A(2) of the Refugees Convention look are the nexus between the harm feared and the reason for that harm. Whether the evidence as accepted, or not rejected, by the RRT supports the RRT’s conclusion as to the cause of the harm feared is a question of law.

Here I submit that the evidence contained in the partial transcript attached does not and cannot support the proposition that the desruction of the picture was merely a “catalyst” in the sense of simply precipitating the events which followed. There was a background to this event, and that concerned the activities of members of the applicant’s family and religious motives attributed to them by others. The applicant accepts that the events forming this background were capable of different characterisations, and the characterisation adopted by the RRT was one of fact.

However given the evidence as to the religious background to those claims partial though it may be, the destruction of the picture could bear no characterisation other than that of an act based on religion. Whether it was an attempt at provocation, an act of spite or simple religious intollerance is not clear. And it doesn’t much matter. The fact is that everything that happened from that point on had a religious character and it was simply not open to the RRT to dismiss the claim on the basis that it was a “neighbourhood dispute”. Absent an intervening event to change the character of the chain – and there was none – this conclusion was simply not open.

As pointed out in previous submissions, there is another way to put this error, and that is that the RRT failed to consider whether the neighbourhood dispute itself had a religious basis. That is a failure to ask the right question, being one necessary to ask if the true or “essential and significant” cause of the harm feared is to be ascertained. The word, “essential” in s 91R Migration Act looks at the underlying cause – not that which is superficial.

I submit that this particular argument is raised in the grounds of review currently before the Court. No amendment to them is necessary.

State protection

The relevant part of the RRT decision is as follows:

The applicant’s agent states that the government cannot control persecution and protect its citizens. The independent information suggests that whilst the police have been criticised by some in the community for an inadequate response to incidents of communal violence the government does not accept this criticism and has made genuine efforts to contain violence and protect the Christian community. The independent country information suggests that the state has provided adequate protection to Christians (2002  International Religious Freedom Report, US DOS 2001). The applicant does not state that he sought the assistance of the police in relation to threats made to himself and his late wife. The applicant’s agent’s submission is not supported by any credible evidence and accordingly the Tribunal is satisfied that the state provides adequate and effective protection to Christians. (decision pp 22-3).

The adequacy of protection must be adjudged in relation to the individual claimant in his or her circumstances, and not Christians as a generic group – it is he or she who claims a well founded fear of protection pursuant to Art 1A(2) of the Refugees Convention. In this case the applicant is a person specifically targeted for abuse – not a person who simply fears generalised violence.

In Minister for Immigration v Respondents S152/2003 (2004) 78 ALJR 678 at [21] the majority of the High Court referred to the willingness and ability of the state to discharge is duty to protect the citizen as relevant at various stages of the refugee assessment process. Their Honours continued, at [27]:

… there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. … It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (footnote omitted).

… The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards. It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards. The question of Ukraine's ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the Tribunal. Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the Tribunal's reasons. If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.

The Tribunal's finding that it was not satisfied that the Ukrainian government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art 1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and unco-ordinated, then its finding about the government's willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.

In the case before this Court the claim was not that the authorities were instigators of violence – it was that the state could not protect. Despite the RRT’s rejection of the advisor’s submissions, it was incumbent upon the RRT to decide, not whether the state could protect Christians, but whether it could protect this applicant. In the case of a person who has not sought protection, the measure of this is, as the High Court said, whether the state could provide a level of protection commensurate with international standards. This has not been decided by the RRT, and as a result the RRT either asked the wrong question or failed to ask the correct question. Either way, it committed jurisdictional error. 

The applicant applies to further amend the application as per the attached document.[3]

[3] see paragraph 3 above

1. Ms Kaur-Bains filed the following additional written submissions on 17 December 2004.  She submits as follows:

   These submissions are filed pursuant to the orders made by Federal Magistrate Driver on 25 November 2004 and in response to the applicant’s supplementary submissions.

   There is no objection to the further transcript or the applicant obtaining leave to amend his application in accordance with the further amended application served.

   Grounds for Review - Destruction of the picture of St Mary

   The essence of the applicant’s complaint appears to be that the destruction of the picture of St Mary was an act based on religion and everything that happened from that point on had a religious character and it was not open to the RRT to dismiss the claim on the basis that it was a neighbourhood dispute (paragraph 6 of the applicant’s supplementary submissions).

   The applicant does not assert the destruction of the picture of St Mary of itself amounted to persecution. If indeed that claim was asserted then it would clearly not amount to persecution under s.91R (1) of the Migration Act.

   A fair reading of the RRT’s reasons requires an understanding of the case the RRT was addressing. The applicant had a migration agent assisting him in the preparation of his statement dated 28 March 2001 in support of the application for a protection visa.  In that statement the applicant based his claim for a protection visa on his personal experience of being persecuted for reasons of his religion (Christian).

   The applicant claimed his fear of persecution started when his late wife was transferred to a new position within the Attorney General’s office in 1995 (RRT’s reasons, page 8, first paragraph).  The applicant then referred to other pieces of evidence to bolster his claim for persecution as follows: complaint to the Law Society as to the applicant’s son; destruction of the St Mary picture in August 2000; death of the applicant’s dog; harassing phone calls from 1995 to 2001.  The claim as to the destruction of the picture of St Mary was merely a piece of evidence to bolster the claim of persecution for reasons of religion. 

   The reasoning of the RRT read as a whole reveals that the RRT was aware the applicant claimed to fear persecution for reasons of religion and the applicant had claimed the picture of St Mary had been destroyed.  In that context, the RRT found that members of the local community destroyed the applicant’s picture of St Mary.  However, the RRT found the reason for the subsequent acts of harassment was not for the essential and significant reason of religion (TR, page 19, first paragraph), which finding was open to the RRT to make.

   The applicant, to succeed in his contention, must satisfy this Court that there was only one possible finding on the facts before the RRT, that is, that the harassment following the destruction of the picture of St Mary was for religious reasons. That conclusion is not possible as it is equally open on the facts before the RRT for it to have concluded, as it did, that the harassment was as a result of a neighbourhood dispute.  No error is disclosed.

   Legal significance in law if Court finds the RRT failed to make the finding as to the destruction of the St Mary picture.

   If the Court concludes the RRT failed to make a finding as to the destruction of the picture of St Mary then the Full Federal Court’s decision in VQAB v Minister for Immigration [2004] FCAFC 104 (4 May 2004) provides assistance as to whether jurisdictional error has occurred. In that case the appellant alleged that the RRT had:

   failed to deal with, and ignored, the appellant’s claim that he had been denied a passport by the Iranian authorities on account of his political activities. This claim was said to be integral to the claim that he had to obtain a false passport, and leave Iran under the guise of being an Iraqi. It had been submitted that if this first-mentioned claim had been dealt with, and found to be true, it bore upon the issue whether he needed to, and had obtained, a passport by other means. That, in turn, went directly to whether his fear of persecution was well-founded. [22]

   The Full Federal Court at paragraph 25 stated that:

   The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence.

   The Full Federal Court at paragraph 31 held that:

   The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

   The destruction of the picture of St Mary was a piece of evidence advanced by the applicant in support of his claim that he feared persecution for reasons of religion.  In any case any failure to make a finding on that matter did not amount to jurisdictional error because the inference that the RRT did not ask itself the right question, that is as to whether the applicant feared persecution for reasons of religion, is not open on the reasons.  No jurisdictional error is disclosed.

   State protection

   The applicant complains:

   a)The RRT fell into error in that it did not decide whether the state would protect the applicant but decided only whether the State could protect Christians;

   b)The RRT did not consider whether the state could provide a level of protection commensurate with international standards.

   This ground for review only arises if the Court finds the RRT made an error that amounts to jurisdictional error in considering the applicant’s claim to have a well-founded fear of persecution.

   In relation to the complaint referred to in paragraph 13(a) a fair reading of the RRT’s reasons requires an understanding of the case the RRT was addressing.[4]  The applicant claimed, “the government ignores the persecution that the Muslim Brotherhood and the general population take against the Christians” (TR, page 6, second paragraph).  It was in that context and the claim as to the harassment following the destruction of the picture of St Mary that the RRT considered whether the state could protect its citizens in the position of the applicant, being Christians who faced communal violence.  The RRT in the last paragraph on page 22 of its reasons stated that the state provided adequate and effective protection to Christians, which words must be read as referring to Christians in the position of the applicant who faced communal violence.  Therefore, no error is disclosed.

   [4] Respondents S152/2003, paragraph 14 , last sentence.

   As to the complaint referred to in paragraph 13(b) the applicant relies on the High Court case of Minister for Immigration v Respondents S152/2003.

   In Respondents S152/2003 the applicants were Ukrainian nationals, who claimed fear of persecution for reasons of religion, as one of the applicants was a practising Jehovah Witness.  The majority of the High Court (Gleeson CJ Hayne and Heydon JJ) stated that:

   “no country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence… the Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.  None of the country information …justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect. [26]

   The High Court in Respondents S152/2003 does not require the RRT in its reasons to expressly articulate that the state protection must be commensurate with international standards.  It is sufficient if the RRT’s reasons disclose it was aware that the level of state protection must be to international standards in that it considered the state of the criminal law, and the provision of a reasonably effective and impartial police force and justice system.  In this case there is no issue that the RRT did consider the country information as to the state of the criminal law (TR: pages 12, 13); the police force and legal system (TR page 16). 

   Therefore the RRT’s finding that the state provides adequate and effective protection must in the words of the High Court in Respondents S152/2003 “be understood as a finding that the information did not justify a conclusion that the government would not or could not protect its citizens in the position of [the applicant] with the level of protection which they are entitled to expect according to international standards.”[5]  This is so in the absence of country information that points to the state’s level of protection not being in accordance to international standards.  No error is disclosed under this ground.

   Orders sought

   No permissible ground for review has been identified and the amended application should be dismissed with costs. 

   If the applicant succeeds on a ground raised in the amended application then the applicant should only obtain costs limited to preparing the supplementary submissions.

   [5] Paragraph 28; Respondents S152/2003.

2. Mr Karp filed the following submissions in reply on 23 December 2004:

   Two points need be made of the respondent’s submissions in reply. The first is that the applicant’s case is not and never was that the claim of the destruction of the picture of St Mary was not addressed by the RRT. It was addressed, but it was addressed in a way that was simply not open on the evidence. In that respect I refer to previous submissions.

   Secondly, even if it were open to the RRT to characterise the events following the destruction of the picture as primarily a “neighbourhood dispute” (which it is not) the RRT has failed to consider the question of whether the “neighbourhood dispute” was itself religious in nature. That was necessary for the proper consideration of whether the persecution feared was essentially and significantly for reason of religion in terms of s 91R Migration Act. In that respect I refer to paragraph 7 of my supplementary submissions, and note that the respondent has failed to address this point.

   The state protection issue

   Contrary to the respondent’s submissions, para 15, the case that the applicant was putting was that the police could not and would not protect him (see pp 2-3 of the additional transcript). It is not in issue that the RRT found that it, “[is] satisfied that the state provides adequate and effective protection to Christians.” However, this applicant quite clearly had problems that stemmed directly from his family’s and his own conduct. He was not in the position of an ordinary Coptic Christian who may face communal violence.

   The High Court in Minister for Immigration v S 152 [2004] 78 ALJR 678 at [21] makes it clear that the issue of state protection is relevant to the question of whether the individual has a well founded fear of persecution, for that is the question posed by Article 1A(2) of the Refugees Convention. Contrary to the respondent’s submissions, the RRT’s general statement about protection of Christians does not, and cannot be taken to address the applicant’s particular circumstances.

   Because of the case being made by the respondent in S 152, that the police were a part of the persecutory apparatus of the state, the RRT did not have to consider whether adequate state protection existed in that case. In this case the accusation of the applicant was that the police would not protect. As such, an assessment of the issues raised in paragraph 4 of the further amended application was necessary. It was not carried out and that failure is jurisdictional error.

Reasoning

1. The further amended application raises two issues: first, whether the RRT asked itself the wrong question in relation to two aspects of the applicant’s claim of religious persecution, and secondly, whether the RRT erred in failing to make necessary determinations as to State protection for the purposes of the Convention.

Did the RRT ask itself a wrong question?

1. Mr Karp submits that the RRT misunderstood and misapplied the test of causation encompassed by the words “for reasons of” in Article 1A(2) of the Convention.  He submits that the RRT also erred by concentrating on the applicant’s religion, rather than the issue of religion generally.  To deal with those issues it is necessary to examine the RRT’s reasons for its decision.  In so doing I accept Ms Kaur‑Bains’ submission that one should not be too ready to draw inferences from particular passages of the decision.  The decision must be read fairly and as a whole.

2. On pages 3 and 4 of her decision the presiding member sets out accurately the general principles for consideration of whether asserted persecution is for one or more Convention reasons.  On pages 4-6 the presiding member gives a fair summary of the applicant’s claims.  On pages 6-10 the presiding member discusses comprehensively what occurred at the hearing.  In fact the presiding member puts the applicant’s claims concerning the destruction of his picture of St Mary and what followed from it rather more coherently than did the applicant at the hearing.  The transcript extract presented as evidence by the applicant shows that the issue came out in a disjointed and rather confusing manner.  The presiding member did well to extract the important points in the reasons.

3. On pages 11-17 of the reasons the presiding member sets out further submissions from the applicant’s agent and detailed country information concerning the treatment of Coptic Christians in Egypt.  That country information showed that while there is freedom of worship in Egypt and the government seeks to protect the Coptic minority, instances of religiously motivated violence against Copts and other violations of their human rights have occurred.

4. On pages 17-23 the presiding member dealt with the applicant’s claims.  The presiding member accepted that the applicant is a Coptic Christian and that he suffered harassment principally in the form of threats as a result of his son’s and his wife’s activities and also following the incident at his home on the feast of St Mary.  The presiding member carefully considered the applicant’s position as a Christian and also the activities of Islamists.  The presiding member found no religious motivation for the threats made against the applicant and the other harm suffered by him.  On page 23 of the reasons the presiding member considered that the applicant would not suffer harm “for any Convention reason” should he return to Egypt.  In making that finding it is clear from a fair reading of the reasons as a whole that the presiding member considered not only the applicant’s Christian religion but also the Muslim religion of his alleged persecutors.  The presiding member also considered the issue of religion generally in Egypt.  There was no error of law in this regard in the presiding member’s consideration and application of the Convention.

5. The next issue is whether the RRT erred in dealing with the claim arising from the incident at the applicant’s home on the feast of St Mary.  The presiding member dealt with that claim in the following way:

   The applicant then goes on to describe a series of events which took place between August 2000 and February 2001 before he departed Egypt for Australia.  He says that one evening he heard a terrible explosion and when he went to investigate he found a picture of St Mary which he kept on his balcony torn to pieces.  He became angry and went out and swore abuse at the members of the local community who he held responsible for the destruction of his picture.  Following this he had a succession of abusive and threatening phone calls including threats to kill.  He stated that these calls occurred from 1995 to 2001.  One morning he found that his dog had been poisoned and he received a phone call which referred to the death of the dog and threatening him also with death.  The Tribunal is satisfied that members of the local community destroyed the applicant’s picture of St Mary.  The Tribunal is satisfied that the applicant became angry and swore abuse at members of the local community.  It is satisfied that as a result of this incident members of the community made abusive and threatening telephone calls for a lengthy period of time and that someone in the community poisoned his dog.  The Tribunal is satisfied that these incidents arose out of a neighbourhood dispute and that the persons who were responsible for the harassment, telephone calls and death of his dog were motivated by their anger at the applicant’s swearing and abuse when he discovered his torn picture and not for reasons of religion.  The destruction of the religious picture was a catalyst for the dispute between the applicant and members of the community and the content of some of the harassing telephone calls concerned matters of religious belief; however the Tribunal is not satisfied that the essential and significant reason for the harassment of the applicant was because of his religious affiliation.  The applicant himself stated that this had all happened because he swore at somebody who smashed a picture of St Mary.  He had only reacted in this way because he thought something had happened to his house when he heard the large explosion.

6. There is no doubt that the RRT considered this claim as a claim of religious persecution.  There was no failure on the part of the RRT to consider the claim.  The only evidence supporting the claim was what the applicant said at the hearing, which was unfortunately disjointed and at times incoherent.  The presiding member did a good job in reciting that evidence fairly.  There is no substance to the assertion by Mr Karp, that the finding of a lack of a Convention nexus with the harm suffered and feared is “wholly unsupported by the evidence”.  Mr Karp submits that the only conclusion open to the presiding member was that there was a religious motivation for the threats made against the applicant and the killing of his dog.  I reject that submissions and accept the contrary submission of Ms Kaur-Bains.  The presiding member may have been wrong on the merits in finding no Convention nexus but it was a conclusion that was reasonably open to the RRT on the evidence.

1. Mr Karp makes an alternative submission that the RRT erred in failing to consider whether the destruction of the applicant’s picture of St Mary was religiously motivated.  The presiding member accepted that the destruction of the picture was the “catalyst” for what followed but did not accept that the destruction was the cause of what followed.  The RRT found that the applicant’s reaction to the destruction of the picture was the cause.  There is a certain artificiality in this approach.  As Mr Karp points out in his submissions in reply, if there was a religious motivation for the destruction of the picture of St Mary, then there was probably a religious basis to the “neighbourhood dispute” referred to by the presiding member.  The behaviour of the applicant was plainly a significant factor but he was provoked.  If the provocation was for reasons of religion then the presiding member was probably wrong in concluding that there was no Convention nexus.

2. There are two difficulties with this argument.  The first is that it is difficult to deal with it without addressing the merits of the RRT decision.  The second is that, on the evidence, it was impossible to say what the motivation was for the destruction of the picture of St Mary.  It may have been a religious provocation.  It may have been a personal act directed against the applicant motivated by simple dislike or jealousy.  It may have been a mere prank directed at no one in particular.  The applicant did not know himself and any finding by the presiding member would have involved a high degree of speculation.  While the conclusion of a lack of Convention nexus may have been wrong on the merits, I see no legal error in the approach taken by the presiding member.

State protection

1. The final issue is whether the RRT erred in failing to determine whether the applicant had a reasonable excuse for not seeking the protection of the Egyptian police and in failing to determine whether the Egyptian police could provide a level of protection comparable with international standards.  The applicant’s claim was that the Egyptian police were unwilling or incapable of providing effective protection.  The presiding member dealt with this claim in the following way:

   The applicant’s agent states that the government cannot control persecution and protect its citizens.  The independent information suggests that whilst the police have been criticised by some in the community for an inadequate response to incidents of communal violence the government does not accept this criticism and has made genuine efforts to contain violence and protect the Christian community.  The independent country information suggests that the state has provided adequate protection to Christians (2002 International Religious Freedom Report, US DOS 2001).  The applicant does not claim that he sought the assistance of the police in relation to the threats made to himself and his late wife.  The applicant’s agent’s submission is not supported by any credible evidence and accordingly the Tribunal is satisfied that the state provides adequate and effective protection to Christians.

2. The High Court has provided authoritative guidance on the proper approach to the issue of State protection in Respondents S152 of 2003.  As reported by the Australian Law Journal Reports, the High Court relevantly found that:

   (1) (by Gleeson CJ, Hayne and Heydon JJ; Mc Hugh J; Kirby J) The Refugee Review Tribunal did not fall into jurisdictional error in reaching its decision.  The finding that the respondent husband had not suffered persecution was available as a factual conclusion and was therefore not open to review by the Federal Court of Australia.  Having made that finding of fact, the Tribunal was not bound to determine whether the country of nationality had the ability to eliminate those acts or protect the respondent. [31], [32], [34], [46], [84], [123]

   (2) (by McHugh J; Gleeson CJ, Hayne and Heydon JJ agreeing; Kirby J agreeing) The Convention relating to the Status of Refugees operates against persecution, not persecutors.  The persecution to which the Convention refers may be carried out by the State or its agents or by one or more private citizens.  The terms of the Convention show that it is concerned with imposing obligations on the signatories to the Convention.  It specifies the criteria for determining who is a refugee and what obligations each signatory owes to refugees who seek asylum in that country. [18], [65], [67]-[69], [75], [110]…

   (3) (by Gleeson CJ, Hayne and Heydon JJ; McHugh J; Kirby J) When determining the issue of well-founded fear, the critical question is whether the evidence establishes a real chance that the asylum seeker, if returned to their country of nationality, will be persecuted for a reason proscribed by the Convention.  If the evidence shows that the persecutors have targeted the asylum seeker, the ability of the country to protect that person will be relevant to the issue of well founded fear.[21], [23], [33], [101] …

   (4) (by Gleeson CJ, Hayne and Heydon JJ; McHugh J; KirbyJ) If an asylum seeker is able to show that there is a real chance he or she will be persecuted, refugee status cannot be denied merely because the State and its agencies have taken all reasonable steps to eliminate the risk.  The Tribunal did not fail to consider such matters in the respondents’ case.  The Tribunal specifically rejected any suggestion that the authorities of Ukraine could be said to be unwilling or unable to protect their citizens.[23]-[25], [78], [79], [83], [118] …

   [5] (by Kirby J; Gleeson CJ, Hayne and Heydon JJ agreeing; McHugh J agreeing) There is no absolute obligation on the part of a State to “provide protection” to its nationals whatever the circumstances.  No reasonable interpretation of the Convention can expect the text to effectively oblige the fulfilment of such standards.  They are not standards against which the obligations to provide protection were written in the Convention.  The circumstances of the present case fell short of what would attract the operation of the Convention. [25], [26], [73], [82], [115]

   [6] (by McHugh J) The reference to the unwillingness of the applicant to avail him or herself of protection meant unwillingness to be returned to the country of nationality where the feared persecution would occur.  It was not directed to protection within the country of nationality but to seeking diplomatic or consular protection available to citizens who are outside that country. [63]

3. Based upon the above analysis by the High Court, in my view the RRT made two errors.  First, having regard to the observations by Mc Hugh J at [63] it was not relevant whether or not the applicant had sought the protection of the Egyptian police.  The question was not whether the applicant was unwilling to avail himself of State protection in Egypt but rather, whether the applicant’s unwillingness to avail himself of Egyptian protection provided a well founded basis for his unwillingness to return to Egypt.  In my view the RRT asked itself the wrong question.

4. Secondly, the issue of State protection cannot be considered in abstract by reference to country information.  Where State protection is in issue, the RRT must consider the ability of the State to protect the applicant from the risk of persecution that he faced.  There was a constructive failure on the part of the RRT to consider the issue of State protection.

5. However, as the High Court makes clear, if the RRT makes a factual finding reasonably open to it that an applicant has not been persecuted (and by logical extension is not at risk of persecution) then the issue of State protection does not need to be considered at all.  The RRT was arguably wrong on the merits in finding no Convention nexus with the events following the destruction of the applicant’s picture of St Mary, but, as I have already found, that conclusion was reasonably open to the RRT on the material before it.

6. The applicant does not contest the RRT’s finding that the other harm suffered by him stemming from the activities of his son and his wife had no Convention nexus.  The RRT also found that that harm (in the form of threats) did not constitute serious harm.  While there is support for that view in the decisions of VBAO and WAEE, in my view the RRT in this case erred in failing to take into account the applicant’s age and frailty.  Nevertheless, that error is of no consequence given the lack of any Convention nexus.

7. I find that the finding by the RRT on the issue of State protection was unnecessary given that the earlier findings by it that the applicant had not been persecuted were reasonably open to it.  It follows that the errors made by the RRT in dealing with the issue of State protection do not affect the exercise of its jurisdiction.  They are not jurisdictional errors.

8. I will dismiss the application.  In accordance with Ms Kaur-Bains’ request, I will hear the parties as to costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  18 January 2005