SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
MIGRATION – appeal – relocation principle – whether Tribunal applied the correct test in finding that the applicant did not have a well-founded fear of persecution for a Convention reason – relocation – whether Tribunal considered the possibility of future persecution – ambit of the Tribunal’s obligations to consider future persecution upon relocation
SZCBT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD1682 OF 2006
STONE J 12 JANUARY 2007 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1682 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZCBT Appellant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
STONE J
DATE OF ORDER:
12 JANUARY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Refugee Review Tribunal be added as the second respondent to this appeal.
2.The appeal be allowed.
3.The orders made by the Federal Magistrates Court on 28 August 2006 be set aside and in lieu thereof, the Court orders that:
3.1there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal made on 15 October 2003 and handed down on 11 November 2003.
3.2there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision of the delegate of the first respondent to refuse the protection visa sought by the appellant.
3.3the first respondent pay the costs of the appellant before the Federal Magistrates Court.
4.The first respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1682 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZCBT Appellant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
STONE J
DATE:
12 JANUARY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a Coptic Christian lawyer, who is a citizen of Egypt. He claims that he was persecuted in Egypt because of his religion, because he was a member of a particular social group (namely Christian lawyers) and because he was a member of the liberal political opposition. His application for a protection visa was rejected by a delegate of the respondent and by the Refugee Review Tribunal. His application for review of this decision to the Federal Magistrates Court was dismissed.
In his evidence given to the Refugee Review Tribunal, the appellant made graphic claims of persecution in the form of beatings and threatened torture as well as more generally discriminatory conduct from both the community and police officers. The appellant claimed…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading SZCBT v Minister for Immigration and Multicultural Affairs
Sign in free to access the full text
Details
AGLC
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Case
[2007] FCA 9
Decision Date
CaseChat Overview and Summary
In the case of SZCBT v Minister for Immigration and Multicultural Affairs, the appellant, an Egyptian national and Coptic Christian, challenged the Refugee Review Tribunal’s decision to reject his application for a protection visa. The appellant argued that he faced persecution in Egypt due to his political activities and religious beliefs, particularly after he became active in an opposition political party and publicly complained about the inequality between Christians and Muslims. The appellant claimed to have been detained, beaten, and threatened by Egyptian authorities for his political and religious activities.
The central legal issues before the court were whether the appellant's activities constituted political persecution and whether he faced persecution on the basis of his religion. The Tribunal had found that the appellant's political activities were primarily focused on religious issues and concluded that any persecution he suffered was due to his religion rather than his political affiliation. The Tribunal rejected the appellant’s claims that he faced persecution because of his membership in a liberal political party or because he was a Coptic Christian lawyer. The court had to determine whether the Tribunal's findings were correct and whether the appellant had demonstrated a well-founded fear of persecution.
The court held that the Tribunal's decision was flawed in several respects. The court found that the Tribunal had dismissed the appellant’s claims without adequate consideration, particularly regarding the appellant’s experiences of persecution based on his religious beliefs. The court noted the Tribunal’s misgivings about some aspects of the appellant’s account but found that these did not justify rejecting the appellant’s claims outright. The court concluded that the Tribunal had not properly considered the appellant’s evidence and had failed to provide adequate reasons for its decision. As a result, the court allowed the appeal, set aside the Tribunal’s decision, and ordered the Tribunal to review the delegate’s decision according to law. The court also ordered the Minister to pay the appellant’s costs for both the original proceedings and the appeal.
Orders
Orders of the court
1. The Refugee Review Tribunal be added as the second respondent to this appeal.
2. The appeal be allowed.
3. The orders made by the Federal Magistrates Court on 28 August 2006 be set aside and in lieu thereof, the Court orders that:
3.1 there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal made on 15 October 2003 and handed down on 11 November 2003.
3.2 there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision of the delegate of the first respondent to refuse the protection visa sought by the appellant.
3.3 the first respondent pay the costs of the appellant before the Federal Magistrates Court.
4. The first respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
STONE J
In 2001, the appellant became active in an opposition political party and began to complain publicly, including by writing numerous letters of complaint about the inequality between Christians and Muslims in Egypt. He also lodged a complaint with the Minister for Religious Houses about the loudspeaker outside his home. In June 2001, the appellant claims he was detained by Egyptian police for three days without food or water and that he was periodically beaten in this period. The appellant claimed that following his complaint about this conduct to the Egyptian authorities a police officer called him and told him that the problems he was experiencing would stop if he would convert to Islam. The appellant claims that in July 2001 police took him from his home to a police station where they held him for some days and attempted unsuccessfully to torture him by electrocution. He said that he was released after he paid a bribe of five hundred Egyptian pounds and told the officer that he wanted to convert to Islam but needed some time so that he could persuade his parents to convert as well. The Tribunal’s decision The Tribunal accepted that the appellant is an Egyptian national and is a Coptic Christian. The Tribunal expressly noted that it considered the appellant’s application on the basis of the oral testimony he gave at the hearing. The Tribunal regarded the appellant as having given this evidence, ‘fully, frankly and coherently’. The Tribunal noted that the appellant did not mention at the hearing some matters referred to in his visa application however, because that application had been prepared with the assistance of a lawyer who no longer acted for the appellant, the Tribunal disregarded those claims. It is clear that the Tribunal had significant misgivings about some aspects of the appellant’s account of his experiences in Egypt, describing some aspects as ‘implausible’ and others as ‘quite incredible’. The Tribunal rejected the appellant’s claim that Coptic Christian lawyers were a particular social group in Egypt. The Tribunal also did not accept that the appellant faced persecution because of his membership of the liberal political party. From the appellant’s account of his experiences the Tribunal found that his political activities were generally directed towards religious issues and concluded that any persecution that the appellant may have suffered would have been because of his religion rather than his political affiliation or profession. For that reason the Tribunal stated that it would deal with the application on the basis that the appellant claimed to fear persecution based on his religion. The Tribunal accepted that the appellant had been assaulted in the street and that this incident could have been associated with the proposed purchase of land for the Church but was satisfied that this was an isolated incident. The Tribunal said:‘In the circumstances, I am not satisfied that this incident, of itself, constitutes Convention persecution, or demonstrates a failure on the part of the authorities to provide protection to the applicant, or gives rise to a well founded fear of persecution in the foreseeable future.’