SZCBT v Minister for Immigration - [2006] FMCA 1194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1194

MIGRATION – Review of Refugee Review Tribunal decision.

Migration Act 1958, ss.65(1), 36(2), 91R, 474
Judiciary Act 1903, s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 2
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Applicant M155 of 2004 v Minister for Immigration & Ors [2006] FMCA 544
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259]
SZERD & Anor v Minister for Immigration & Anor [2006] FMCA 15

Applicant:

SZCBT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2685 of 2003

Judgment of:

O'Sullivan FM

Hearing date:

21 July 2006

Date of Last Submission:

21 July 2006

Delivered at:

Melbourne

Delivered on:

28 August 2006

REPRESENTATION

Counsel for the Applicant:

Ms. McManus (pro bono)

Solicitors for the Applicant:

Not applicable.

Counsel for the Respondents:

Mr. Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

All extant applications be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2658 of 2003

SZCBT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER

Respondents

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application dated

4 December 2003 under s.39B of the Judiciary Act 1903 (Cth).
This is an application to review the decision of the Refugee Review Tribunal (“The Tribunal”) handed down on 11 November 2003. The Tribunal affirmed the decision of the delegate of the first respondent to not grant a protection visa to the applicant.

Background

A convenient summary of the background to these proceedings was contained in the respondent’s written submissions filed 9 January 2006. I adopt the following paragraphs from the respondent’s written submissions for the purposes of this judgment:
“2. The applicant is a citizen of Egypt who arrived in Australia on 22 October 2000 and lodged an application for a protection visa on 9 January 2003. He claimed to fear persecution at the hands of the police and fanatical Muslims for reasons of his religion (Coptic Christianity), political opinion (he was a member of the Liberal Party) and membership of a particular social group (Coptic Christian lawyers).
3. A Delegate of the respondent refused to grant the Applicant a visa on 25 March 2003 and the Applicant applied to the Tribunal on 4 April 2003 for review of that decision.
4. By letter dated 6 May 2003 the Tribunal advised the applicant to attend the hearing on 18 June 2003 (CB 61). That hearing was rescheduled at the request of the applicant (CB 64) and the Tribunal sent the applicant a further invitation, this time to appear on 23 July 2003 (CB 67). That hearing was also rescheduled at the request of the applicant (CB 69) and the Tribunal invited the applicant to attend the hearing on 10 September 2003 (CB 71). The applicant attended that hearing and handed Tribunal a report by a clinical psychologist containing a diagnosis of major depressive disorder with a cluster of symptoms associated with chronic post-traumatic stress disorder (CB 76). The Tribunal considered this report and the applicant's general demeanour and was satisfied that he was competent to give evidence and present arguments in support of his case (CB97.3).
5. The Tribunal handed down its decision on 11 November 2003.”

Application for review of the tribunal’s decision

The grounds of the application filed on 4 December 2003 were:
a)that the Tribunal did not provide any weight to the applicant’s statement that he left Egypt to avoid a conspiracy on the part of local police to force him to convert to Islam;
b)the Tribunal did not place any weight on evidence and an international report that the applicant provided;
c)the Tribunal’s decision contained an error of law because it did not place any weight on the evidence that the applicant provided in relation to Coptic Christians suffering under the Egyptian police;
d)the Tribunal’s decision contained an error of law when it accepted a report from Mr Chaussivert that the applicant was suffering PTSD yet went onto to hold the hearing; and
e)the Tribunal’s decision was in error because it accepted the applicant’s evidence yet asked the applicant to relocate in Egypt.
The application was listed for directions on 29 April 2004 at which time orders were made for the filing of material and preparation for hearing. A call over was held on 20 January 2005 and the matter was listed for hearing on 25 January 2006 but subsequently changed, with agreement of both parties, to 27 January 2006.
When the matter came on for hearing, and as the applicant was at that time unrepresented, the proceedings were adjourned to enable inquiries to be made as to whether the applicant could obtain pro bono representation through the NSW Bar Association.
The proceedings were subsequently listed for hearing on 21 July 2006. The applicant was represented by Ms Mc Manus of Counsel and the respondent by Mr Smith. It is appropriate that to place on record the Court’s appreciation for the willingness of Ms McManus to appear pro bono.
On 21 July 2006 the applicant filed an amended application (containing amended grounds of review and joining the Tribunal) and an outline of submissions in Court.
The grounds contained in the amended application were:
“1. The Refugee Review Tribunal erred in failing to address the applicant's grounds of persecution
Particulars
The Tribunal failed to address the applicant's membership of the particular social group or political opinion, namely the Liberal Party.
The Tribunal failed to address the applicant's claims that he was accused by the police of apostasy and that he had actively defended members of the Coptic community.
2. The Tribunal misapplied the test for relocation.
Particulars
The Tribunal failed to address whether the applicant could relocate to another area and did not examine where the applicant could reasonably do so.
Ms Mc Manus, on behalf of the applicant, advised the Court that her client relied solely on the grounds set out in the amended application filed in Court on 21 July 2006 and abandoned those other grounds set out in her client’s earlier application of 4 December 2003.

The law

The law is conveniently set out by Connolly FM in a case Applicant M155 of 2004 v Minister for Immigration & Ors [2006] FMCA 544:
“23. Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
24. The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
“(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
b)    the persecution involves serious harm to the person; and
c)    the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
a)    a threat to the person's life or liberty;
b)     significant physical harassment of the person;
c)    significant physical ill-treatment of the person;
d)    significant economic hardship that threatens the person's capacity to subsist;
e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;
f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
25. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction.
26. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).”

Reasons

Ground 1: Failure to consider claim

The applicant in submissions claimed the Tribunal failed to address his claims.
The applicant claimed the Tribunal assessed his claims on the basis of religion only but did not assess the application for reasons of his membership of the particular social group or political opinion namely the Liberal Party.
At paragraph 15 of the applicant’s written submissions it was said:
“15. The Tribunal did not assess the application for reasons of his membership of a particular social group or political opinion, namely the Liberal Party: CB 98. This is despite a recognition that:
a) the applicant claimed that he was a member of the Liberal Party; CB 98
b) the applicant wrote letters of complaint to various government agencies concerning religious issues; CB 98
c) that his “evidence suggests that it is in the context of these religious issues that his subsequent problems emerged”; CB 98 and
d) The Tribunal stated “I accept that the applicant may have experienced harassment by police in Giza, motivated by his religion and or his political activities” CB 100 [emphasis added].
16. Despite the Tribunal not examining this aspect of the applicant’s claim came to the conclusion at CB 100 that:
“I do not consider that the applicant has established himself a national profile as a political or religions (sic) activist by his work in Giza, his membership of the Liberal Party, or his letter writing”
17. The Tribunal in declining to assess the applicant's claims in relation to the applicant's membership of the Liberal Party fell into jurisdictional error.”
Mr Smith began by reminding the Court that reasons for decisions of administrative decision makers were not to be read too closely, with an eye to perception of error. Mr Smith in submissions noted that the applicant’s argument overlooked the fact that the Tribunal dealt with each of the grounds claimed.
Mr Smith in submissions pointed out that the applicant focused on a single sentence in a detailed set of reasons which when looked at in totality dealt with all the applicant’s claims. The Respondent’s position was that the Tribunal in its reasons dealt with each of the applicant’s claims namely the political claim, the claim to be a member of a particular social group (i.e. Coptic Lawyers) and the claim to have a fear of persecution arising out of the fact that he had defended members of the Coptic community.
The Tribunal’s decision (at CB 98) does indeed contain the following sentence:
“Accordingly, I will deal with this application on the basis that the applicant claims to fear persecution for reason of his religion.”
The applicant complained that the Tribunal failed to address the applicant’s membership of a particular social group or political opinion, namely the Liberal Party. The applicant claimed that the Tribunal in failing to assess the applicant’s claims in relation to the applicant’s membership of the Liberal Party fell into jurisdictional error.
The Tribunal in its reasons said at CB 98:
“Although he claims that he was a member of the Liberal Party, and that in that context, he wrote letters of complaint to various government agencies, these letters concerned religious issues, and his evidence suggests that it is in the context of these religious issues that his subsequent problems emerged. There is no evidence before me to suggest that members of the Liberal party face persecution in Egypt for reason of their political opinion. The applicant also claimed in his application for review that he faced persecution as a Coptic Christian lawyer. However, there is no credible evidence before me to suggest that Coptic Christian lawyers comprise a particular social group in Egypt for the purposes of the Refugees Convention. Moreover, based on the evidence before me in this case, I am satisfied that any harm faced by the applicant as a result of his legal work was really directed at him for the essential and significant reason of his religion, rather than because of his legal work or his profession per se…”
It is clear from the extract at paragraph 19 above that the Tribunal dealt with the applicant’s claimed ground/s of persecution.
In relation to the applicant’s claimed membership of a particular social group the Tribunal deals with this issue and rejects the claim on the basis that “there is no credible evidence…to suggest that Coptic Christian lawyers comprise a particular social group”.
In relation to the applicant’s claim grounded on persecution on the basis of political opinion, namely membership of the Liberal Party the Tribunal deals with this ground and finds at CB 98 that the applicant was a member but that as a member he wrote letters of complaint “to various government agencies” and “these letters concerned religious issues”.
The applicant also claimed that the Tribunal failed to address his claims that he was accused by the police of apostasy and that he had actively defended members of the Coptic community.
The applicant’s claims in this regard are set out in the Tribunal’s decision at CB92 where it notes that:
“Following this, the police officer responsible for Giza police station called the applicant and said that if he wanted to stop these problems he had to convert to Islam. The applicant declined strongly. The police chief then threatened that he could get two witnesses to say that the applicant had said the Muslim creed. This meant that if he subsequently denied being Muslim, it would be permissible to kill him.”
At CB 93 the Tribunal notes that:
“The applicant said that on 20 July 2001 four police officers took him from his home by microbus to Giza police station. They took him to a room, pulled down his trousers, and tried to apply electric current to his genitals. However, they were unable to do so because the applicant was shaking uncontrollably. They put him in a room until the following day. The next day they took him again for electric shock torture. However, before it was applied, he told them that he wanted to speak with one of officers. He told the officer that he wanted to convert to Islam, but he wanted some time to convince his parents to convert as well.”
The Tribunal in its reasons deals with applicant’s claims in this regard as well. The Tribunal’s finding at CB 99 is relevantly that:
“…, I find the applicant’s account of the next events in the sequence to be not credible. The attempted electrocution, the release negotiated on the basis that he would convert to Islam and persuade his parents to do so as well, the four months between his release and his departure, during which he was able to keep stalling police – I find the applicant’s account of all of these events to be inherently implausible, and I do not accept that they happened as he claims.”
At CB 99 the Tribunal says:
“I accept that the applicant may have embarked on a campaign of letter writing after he joined the Liberal Party in 2001. It is possible that this led to his unlawful detention by Giza police for three days in June 2001. I accept that the applicant may have been beaten, as he claims, during his detention. However, I consider that the police were acting as rogue individuals, and not in a manner sanctioned by the state.”
The respondent said[1], correctly in my view, that the Tribunal (at CB 99) when dealing the campaign of letter writing and that it was possible this led to the applicant’s detention:
“..accepts the facts but does not accept that because it was police who did it that therefore, he was under threat of persecution by the State, or that there was some effective withdrawal [of] protection from the State for some reason of his religion or his political opinion.”[2]
[1]Transcript Hearing , SZCBT v Minister for Immigration SYG 2658 of 2003, Sydney 21 July 2006, p. 13
[2] Ibid
The Tribunal concluded at CB 100 that:
“[W]hile I accept that the applicant may have experienced harassment by police in Giza, motivated by his religion and or his political activities, I am not satisfied that the applicant left Egypt in order to avoid a conspiracy on the part of local police to force him to convert to Islam, or to make him appear as an apostate.”
The Tribunal said at CB 100 that:
“[W]hile there is independent evidence indicating that Copts can experience various forms of discrimination for reason of their religion, I am not satisfied that the level of discrimination is such that an individual Copt can claim a well founded fear of persecution for reason solely of their religion, without more.”
Accordingly, for the reasons set out above this ground is not made out.

Ground two: Relocation

The applicant claimed that the Tribunal misapplied the test for relocation. The applicant claimed that the Tribunal failed to address whether the applicant could relocate to another area and did not examine where the applicant could reasonably do so.
The applicant's written submissions at paragraph 21 note:
“21. The Tribunal dealt with this in the following way at CB 94
I asked the applicant whether he thought he might be able to relocate to another area of Egypt, and avoid any problems with the local police in Giza. He replied that the police and the law about conversion is the same all over Egypt. I suggested that this assumed that the police in Giza would find out where he was and notify the local police. He said that wherever he goes they will get him.”
Ms McManus for the applicant submitted that the Tribunal didn't look at whether or not the applicant could relocate to another area. Ms McManus said all the Tribunal asked was whether the applicant might be able to relocate not whether he could and whether he could reasonably do so.

The respondent’s submissions on the issue of the Tribunal's relocation finding were that the Tribunal’s finding in this regard was an orthodox application of the well-established principles set out in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.
Mr Smith in submissions said that the applicant's attack on the Tribunal's decision in this regard suffered from an overly close scrutiny of the Tribunal's reasons. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272
Mr Smith submitted that when those reasons are read as a whole, and in line with the claims in the material before the Tribunal, the finding on relocation was an orthodox application of the principles set out in Randhawa (supra).
In SZERD & Anor v Minister for Immigration & Anor [2006] FMCA 15, at paras 28 to 31, FM Lloyd-Jones noted that in relation to Randhawa that:
“28. In Randhawa v Minister for Local Government & Ethnic Affairs (“Randhawa”) at page 442 the Court laid down the “reasonableness” test with Black CJ noting that the reasonableness principle has been implicitly recognised in the UNHCR Handbook on Procedures and Criteria for Determining Refugee States (“the Handbook”). Paragraph 91 of the Handbook states:
"The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.”
29.    In Randhawa Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether or not he or she could “reasonably be expected to do so”. His Honour stated at p.442:
“… a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”
30.    His Honour, Beaumont J agreed that relocation must be a reasonable option at p.445:
“That is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”
If it is not reasonable for a person who has a well founded fear in a part of the country to relocate to another part, then a person’s fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicant to relocate to another part of the country, then the applicant’s fear is not well founded.
31.    If it is not reasonable for a person who has a well founded fear in a part of the country to relocate to another part, then a person’s fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicant to relocate to another part of the country, then the applicant’s fear is not well founded….”
In this case the Tribunal recognized there were problems albeit at a local level. At CB 100 the Tribunal said:
“At the highest, I accept that the applicant was the victim of some police harassment in his place of residence. I accept that his religion may have been an element in this victimization.”
The Tribunal had referred to independent country information by way of background at CB 95 and noted that a 1999 report said that “Copts are persecuted by radical Islamic groups and at times by local police and other security officials”. The Tribunal also noted however at

CB 96 that the most recent information indicated that “the Egyptian government is seeking to reduce the level of discrimination faced by Copts and has taken steps to promote and improve religious freedom and tolerance.”
It is clear from the Tribunal’s reasons that having found there was a problem in the local area the Tribunal appreciated it needed to consider whether there was a well founded fear in the country as a whole. It then went on to consider whether the applicant could safely relocate, whether it was reasonable for him to do so and whether he had the ability to do so.
The Tribunal at CB 100 and said:
“However, I am satisfied that the applicant could avoid any local problems by relocating to another area of Egypt, for example, Cairo or Alexandra. When I asked the applicant if there was any reason why he would not relocate to avoid his local problems, he identified no reason why he would be unable to do so, except to say that the law was the same everywhere and that the police would get him wherever he went. He did not suggest that he would attract new harassment by continuing to engage in the same kinds of activity as he had in the past. On the applicant’s own evidence, he has not broken any law, so no question arises of him facing any legal sanction applicable anywhere in Egypt. Given that the applicant is well educated, a lawyer, and a male with family support, and in the absence of any information put forward by the applicant as to why he would be unable to relocate within Egypt, I am satisfied that it would be reasonable for him to do so. I am also satisfied that he would thereby be able to avoid any problems he faced in Giza, which I am satisfied are locally based and confined to local individuals.”
The Tribunal said at CB 100 that:
“I do not consider that the applicant has established for himself a national profile as a political or religious activist by his work in Giza, his membership of the Liberal Party, or his letter writing. I find that he obtained a reputation, locally as a troublemaker. I do not consider that the local police or authorities would pursue the applicant to another city, or inform the authorities there of his presence. ”
The Tribunal at CB 100 said:
“I am satisfied that the applicant could relocate within Egypt and thereby avoid his difficulties with the police in his usual place of residence. The applicant does not claim to have experienced persecution as a Coptic Christian outside these specific events. ”
The Tribunal’s reasons disclose that it:
a)understood that the basis for the principal of relocation is that a refugee is somebody who has a well founded fear of persecution in his/her country rather than in any particular area of the country;
b)noted the applicant could relocate to another area of Egypt, for example Cairo or Alexandria;
c)considered the reasons for which relocation might not be reasonable including asking the applicant why relocation why he could not relocate;
d)weighed the issues as to whether relocation was reasonable – including that the applicant was well educated and a male with family support; and
e)concluded that it was reasonable for the applicant to relocate.
The Tribunal relied on the applicant’s evidence at the hearing in coming to its conclusion that the applicant could relocate within Egypt and that it was reasonable to expect that he could do so.
That was a finding open to the Tribunal on the facts and the material before it including that the applicant was well educated and that the events in the past had been isolated to “local problems”.
Given this, and for the reasons set out above, I am unable to find that the Tribunal misapplied the test for relocation (see Randhawa supra)
Accordingly, this ground is not made out.

Conclusion

For the reasons set out above I find that the decision of the Tribunal is a privative clause decision because there is no jurisdictional error in it. It follows that the judicial review application must be dismissed.
On the question of costs, I will hear the parties as to the appropriate order.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM

Associate: J. Naughton

Date: