SZDEL v Minister for Immigration - [2006] FMCA 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDEL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 343

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474

Yo Han Chung v The University of Sydney & Ors [2002] FCA 186

Craig v State of South Australia [1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs
[2003] HCA 26
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 10
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 241
NAOO v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 26
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] HCA 24

SBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 587
SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant:

SZDEL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG965 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

8 March 2006

Delivered at:

Sydney

Delivered on:

3 April 2006

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of an Arabic interpreter

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG965 of 2004

SZDEL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), evoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 2 April 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 4 February 2004 and handed down on 18 March 2004. It affirmed the decision of the delegate of the Minister (“the delegate”) made on 18 February 2003 refusing to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been granted the pseudonym “SZDEL”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs at [43], [91], [153] and [180].
For the purposes of this application the respondent’s solicitors filed an affidavit of Jonathan Christian Willoughby-Thomas sworn on

20 February 2006 (“affidavit of Mr Willoughby-Thomas”).

Background

The applicant, who claims to be a citizen of Egypt, arrived in Australia on 13 November 2002. On 16 January 2003, he lodged an application under the Act for a protection visa with the Minister’s Department. On 18 February 2003, the delegate refused to grant the applicant a protection visa. On 4 March 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (Court Book (“CB”) 70).
The applicant was born in Alexandria, Egypt in November 1979. He is Christian and speaks, reads and writes Arabic and English. He completed 12 years of education in 1998 and worked as a cook from 1998 to 1999. He then worked in sales from 1999 to 2001 and stated he was self-employed from 2001 to 2002 (CB 72).

Applicant’s claims

The applicant claims to fear persecution because of an association with a Muslim woman who converted to Christianity. He made a number of specific claims in his protection visa application which was recorded in the Tribunal decision under “Claims and Evidence”. I reproduce those claims for the purpose of this judgment (CB 72-74):
(a)The applicant’s friend who is called Sameh had fallen in love with a young woman called Fatima. Fatima is a Muslim. She is also a long term friend of the applicant’s sister.
(b)The relationship between Sameh and Fatima continued for a long time and about one year ago Fatima decided to become a Christian and to marry Sameh.
(c)At first the applicant and his sister helped Fatima and tried to teach her their religion.
(d)Fatima tried to tell her parents that she wanted to marry Sameh and they became very angry. The applicant tried to mediate and became involved in discussions with the parents.
(e)Fatima’s parents arranged for her to meet with the Sheikh. The applicant also attended the meeting. The Sheikh said that Fatima could not change her religion and he warned the applicant not to become involved in the matter.
(f)Fatima became a baptised Christian without her parents’ knowledge. According to the applicant they sensed something and they bashed Fatima. Fatima had no place to go and the applicant allowed her to sleep at his shop for a couple of nights. Her family learned where she was and forced her to return home.
(g)A couple of days later Sameh rang the applicant to advise him to meet them at the church to be a witness to their marriage.
(h)The couple married and left Egypt for overseas just after Easter in 2002.
(i)The applicant faced the anger of the girl’s family. Her father threatened that the applicant would be in trouble if he did not reveal which priest had married the couple.
(j)The applicant would not say and about one month after the marriage his shop was raided by two men from an Islamic group. These two were in the company of another man who was a lawyer. The lawyer told the applicant that he had committed a crime and a case would be initiated against him if he did not reveal the whereabouts of Sameh and Fatima.
(k)The applicant went to the police to report the damage to his shop and goods. The police took a statement but the applicant was not able to identify the assailants.
(l)The applicant has been told that he could be in a serious situation if it were proven that he had knowledge of Fatima’s conversion.
(m)On 1 July the two men returned to the applicant’s shop as foreshadowed seeking information about the marriage. He asked for more time and the two men agreed to this.
(n)In the meantime the applicant searched without success for lawyer to take his case on. He could not find a Christian or a Muslim lawyer who was prepared to assist him in the matter.
(o)The lawyer who had accompanied the two assailants on the first visit returned to see the applicant and told him that he would instruct the public prosecutor to commence a case against the applicant.
(p)The applicant fled Egypt to Australia.

Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Ms Wong and I adopt paragraphs 10 to 15 of those submissions:
10.The RRT commenced its reasons for decision by summarising the legal principles applicable to determining the Applicant’s claims: CB 70-72. The RRT then referred to the evidence provided by the Applicant in his original visa application and oral evidence given at the hearing before the Tribunal: CB 72-81. The RRT next summarised independent country information regarding religious freedom in Egypt: CB 81-85.
11.The RRT found the Applicant to be a credible witness and accepted that the Applicant was the target of harassment by unknown persons acting on behalf of the family of Fatima: CB 86-87. The RRT also accepted the Applicant’s account of being friendly with Fatima and that he gave Fatima shelter in his shop for a couple of days: CB 86.
12.The RRT noted the Applicant’s account of being harassed by persons acting on behalf of Fatima’s family. The RRT referred to country information which indicated that generally the police were able and take all reasonable steps to protect Christians when they have been attacked or threatened and that Christians enjoy the same protection from state authorities as the majority Muslim population: CB 87. The RRT was therefore satisfied that if the Applicant returned to Egypt and was threatened with harm from Fatima’s family or persons acting for them he would be able to access protection from the Egyptian authorities: CB 87.
13.The RRT did not accept that there was a real chance that the Applicant faced charges under the Civil or Penal code for his part in the conversion: CB 87. In particular, the RRT considered it “most unlikely that charges would be brought against the applicant for what must be regarded as a peripheral involvement in the events leading up to the conversion and marriage”: CB 88.
14.The RRT considered the possibility that the lawyer who harassed the Applicant could raise a charge against the Applicant even as a third uninvolved party. The RRT found that if the lawyer had been of a mind to do this, then “action would most certainly have been initiated before the applicant departed”: CB 88. The RRT accepted that the Applicant closed his business, however the RRT also found that the Applicant continued to live in the family home and to move about the community without further incident from the end of July until he departed for Australia in November 2002: CB 89.
15.The RRT held that it would be reasonable for the Applicant to relocate within Egypt to a large city like Cairo, given that the Applicant is young, well-educated with technical skills, training and business experience: CB 89. The RRT found that the Applicant had not in the past suffered persecution for a Convention reason and that there was not a real chance that he would suffer persecution for a Convention reason in the reasonably foreseeable future: CB 90.

Application for review of the tribunal’s decision

On 2 April 2004, the applicant filed an application for review under s.39B of the Judiciary Act. This application incorrectly identifies the second respondent as the “Migration Review Tribunal constituted by Pauline Pope”. Consequently I will make an order to join the correct Tribunal as the second respondent.
On 23 November 2004, the applicant filed an amended application (which makes no reference to the second respondent as a party but makes claims against the Tribunal) setting out the following grounds:
1.The Tribunal committed an error of law, in that, its decision constituted a constructive failure to exercise jurisdiction and/or generally exceeded its jurisdiction.
Particulars
a)The Tribunal failed to have effective regard to information provided by the applicant’s advisor as it was required to do pursuant to section 424 of the Migration Act 1958 but in particular failed to consider and evaluate the information concerning the relationship between Islamic Sharia Law and the Egyptian Constitution and that how that relationship affects the circumstances of, and claims made by the applicant (pages 49 to 67 of the Green Book but in particular pages 64 and 65).
b)The Tribunal misconstrued the evidence put to it by the applicant’s advisor concerning a decision in the Personal Status Courts involving Nawal al Sa’adawi a feminist author (page 80 of the Green Book). The case was not simply dismissed after Ms Sa’adawi recanted in the face of a renewed of prosecution which was activated using ‘the Hisba’ which was activated under Sharia Law. The Hisba has been activated against the applicant.
c)The finding ‘that there is no law banning conversion’ (ie religious conversion from Islam) the Tribunal misconstrued the evidence and the underlying influence on the law that Sharia law has. Conversion is a criminal offence under Sharia law.
d)In finding ‘that neither the constitution nor the Civil and Penal Code prohibit proselytising’ the Tribunal made a factual error and/or misconstrued the relationship between the Egyptian Constitution and Sharia law (see paragraphs 2, 3 and 4 of page 104 of the Green book).
e)The Tribunal was not in a position to make a proper decision concerning the impact of Sharia law without the benefit of expert evidence.
f)The Tribunal made a decision relying on adverse information which was not put to the applicant for consideration and response prior to making its decision.
g)The decision of the Tribunal that the applicant would be afforded effective protection by the Egyptian authorities was contrary to the information obtained by the Tribunal DFAT and Centre for Religious Freedom.
h)The Tribunal used country information that was out of date.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 v Commonwealth of Australia at [76] and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia [1995] HCA 58 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

Reasons

The applicant is a self-represented litigant and appeared with the assistance of an Arabic interpreter. Through the interpreter, he confirmed that he filed an amended application on 23 November 2004. This was the document upon which he substantially relied in these proceedings. He confirmed that he had not filed any written submissions in accordance with the orders made by Registrar McIlhatton on 25 January 2005, but indicated that he wished to make oral submissions in support of his application.
The first issue the applicant drew the Court’s attention to was that Sharia Law overruled the Egyptian Constitution and he referred to independent country information contained in the Court Book (CB 56-65). In particular, the applicant referred to Article 40 of the Egyptian Constitution which states:
All citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed.
The Article goes on to indicate that the Constitution has been subject to qualifications and restrictions by other Constitutional Articles, legislation and government practice. Article 2 of the 1980 amendments to the Constitution states:
Islam is the religion of the state and the principal source of legislation is Islamic jurisprudence.
The applicant pointed out that due to the existence and wording of Article 2, only Islamic jurisprudence applies in Egypt because of the following elements of Sharia Law:
The Islamic Sharia:
(i)does not recognise any religion but Islam as the true religion;
(ii)recognises non Moslems as non-believers and infidels;
(iii)prohibits the conversion away from Islam;
(iv)requires all Moslems to convert non-believers to Islam;
(v)prescribes the use of force to convert non-believers;
(vi)instructs that a non-believer never rule over a Moslem; and
(vii)instructs that a non-believer can not inherit from a Moslem.
The applicant stressed that although theoretically the Egyptian Constitution offered equal protection to Coptic Christians, in reality this was not the case as the recognition of Sharia Law due to the 1980 amendments overruled that provision.
The second issue that the applicant raised was also contained in the country information contained in the Court Book, particularly, DFAT Circular No. 91/03, dated 8 July 2003 and entitled “Coptic Christian Conversion”. The applicant suggested that the contents of that document are incorrect. That although the information was provided in 2003, it appeared to overlook amendments to the Constitution.
The applicant raised a third issue and referred me a Freedom House document entitled “Centre for Religious Freedom” (CB 101-105). The applicant referred to the fact that while “Egypt has no explicit law against apostasy, the influence of sharia law on the civil code is creating a defacto law” (CB 104). The police, due to a fear of or sympathy with Islamic radicals, do not enforce the country’s civil code. While the Tribunal stated that the applicant would be protected by the civil code if he returned to Egypt, the applicant argued that that was not the case. He relied on the above three examples in support of his argument.
The applicant said that the Tribunal had made a mistake in suggesting that he was of the Coptic Christian faith due to conversion. He wished to point out to the Court that this was incorrect and he was Coptic Christian from birth.
Ms Wong, appearing for the respondent, indicated that all of the issues, except one, raised by the applicant in his oral submissions had been previously raised in his amended application. She relied on her written submissions in response to all the issues in the amended application.
The one exception was the applicant’s claim that the Tribunal member had made an error by suggesting that he had been converted to Coptic Christianity. Ms Wong submitted that there is no passage within the Tribunal’s decision that makes any direct reference or suggestion to this finding. She acknowledged that the only person identified in the judgment who converted from Islam to Coptic Christianity was a woman identified as Fatima, a friend of the applicant’s sister. The applicant in his oral submissions did not elaborate on this claim and made no attempt to identify the passage or any other evidence that this error had been made. I agree with the submission of Ms Wong and accept that this claim is of no substance.
The first particular of the applicant’s claim is that the Tribunal failed to have regard to country information:
1.The Tribunal failed to have effective regard to information provided by the applicant’s advisor as it was required to do pursuant to section 424 of the Migration Act 1958 but in particular, failed to consider and evaluate the information concerning the relationship between Islamic Sharia Law and the Egyptian Constitution and how that relationship conflicted circumstances of, and claims made by the applicant.
Ms Wong submitted that contrary to the applicant’s claim, the Tribunal did consider the information provided by the applicant’s advisor and did explicitly refer to submissions made by the advisor at the hearing in its reasons for decision (CB 80.6-80.10). The Tribunal also made the following comment about additional country information provided late to it:
The Tribunal received your letter and additional documents dated 15 March 2004. The member reviewing your case has considered this material. (CB 67)

Ms Wong submitted that the Tribunal evaluated the country information placed before it, having regard to relevant Egyptian law. It determined that there was no law banning conversion and that neither the Constitution, nor the Civil and Criminal codes, prohibited proselytising (CB 88). Some of those accused of proselytising were harassed or arrested by the police. They were charged with violating Article 98(F) of the Egyptian Penal Code (CB 88). The Tribunal concluded, however, that there was no evidence before it that the applicant had come to the notice of the police for proselytising, either in the time immediately following the marriage of Fatima and Sameh, or the subsequent eight months prior to his departure from Egypt (CB 88).
Ms Wong submitted that these findings addressed the issues raised in the country information provided by the applicant. She also rejected the proposition that such evidence demonstrated that the applicant would be persecuted for proselytising or assisting Fatima in converting to Christianity. Further, the Tribunal is not required to expressly refer to each and every factual assertion stated in the applicant’s submissions to it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 per French, Sackville and Hely JJ at [46].
Further, that the Tribunal made express findings regarding risk posed to the applicant, of persecution by the police or the lawyer representing Fatima’s family. The independent country information relied upon by the applicant therefore falls under the first category of evidence described in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs. That evidence, which if accepted, might only lead to a different finding of fact, rather than demonstrate that the Tribunal failed to address a contention which might establish that the applicant had a well-founded fear of persecution.
I accept the submissions of Ms Wong that the first particular of the applicant’s amended application does not establish jurisdictional error.
In particular two of the amended application, the applicant claimed there was a misconstruction of the evidence regarding a feminist author, Nawal al Sa’adawi:
2.…The case was not simply dismissed; it was dismissed after Ms Sa’adawi recanted in the face of a renewed prosecution which was activated using ‘the Hisba’ which was activated under Sharia law. The Hisba has been activated against the applicant.
This evidence concerned a decision of the Personal Status Court in Egypt and was provided by the applicant’s advisor. The Tribunal made the following comment in respect of this information (CB 90):
The advisor referred to the case of Nawa al Sa’adawi a feminist author who was accused of apostasy due to views expressed by her regarding Muslim customs and beliefs. The Tribunal noted that the case was rejected by the Personal Status Courts.
Ms Wong submitted that there was no evidence before this Court as to whether the advisor gave a fuller explanation of this claim at the Tribunal hearing. The applicant did not tender either the Tribunal hearing tape or a transcript of the hearing. Consequently, it is not possible for me to make a finding about whether the Tribunal, in reaching its decision, ignored any relevant evidence provided to it at the hearing: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 per Beaumont, Merkel and Hely JJ at [21]. Neither is there any evidence before me which demonstrates that the Tribunal made an incorrect finding of fact regarding the dismissal of Ms Sa’adawi’s case. The independent evidence before the Tribunal indicated that the Cairo Personal Status Court rejected a law suit against Ms Sa’adawi. This was consistent with observations made by the Tribunal during the hearing (CB 92).
I accept Ms Wong’s submissions that particular two of the amended application cannot be sustained.
In the applicant’s third particular he claims that the Tribunal misconstrued evidence by finding “that there is no law banning Conversion”, noting that conversion “is a criminal offence under Sharia law”. Ms Wong submitted that the Tribunal’s finding was based expressly upon a DFAT report (CB 97):
There is no law banning Coptic Christian conversions, there is no legal basis in Egypt for a formal complaint to be made to the authorities in relation to an individual’s conversion to Coptic Christianity.
Our first source advised that, in practice, where an individual’s conversion was brought to the attention of the authorities (usually by a family member) police would often intervene informally to counsel the individual to reconsider their decision to convert. Where a convert chose to ignore such counselling, however, further intervention by the authorities was unlikely. Our first source advised that, in rare cases individuals had been held by authorities in administrative detention, without charge, due to conversion. Our second source was aware of one such case.
Ms Wong submitted that the Tribunal was entitled to give greater weight to the DFAT report, than to other independent country information placed before it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [11]:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
I accept Ms Wong’s submission that the Tribunal relied on country information and made its finding in the absence of any law banning conversion. No jurisdictional error has been demonstrated in this particular.
In the fourth particular, the applicant seeks to challenge the Tribunal’s finding that “neither the Constitution, nor the Civil or Penal Code prohibits proselytising” (CB 88). Ms Wong submitted that this finding was taken substantially from a USDOS 2002 Annual Report on International Religious Freedom (CB 88, 91-94).
Ms Wong indicated that in response to the fourth particular, she relied upon her response to the third particular, in that no criticism could be made of the Tribunal for relying upon this portion of the independent country information in preference to any other. I accept this submission and agree that particular four does not identify any jurisdictional error in the Tribunal’s reasons.
In the fifth particular the applicant claimed that the Tribunal “was not in a position to make a proper decision concerning the impact of Sharia law without the benefit of expert evidence.” Ms Wong submitted that the Tribunal may request additional information request further investigation or summon a person to appear: ss.424, 427. However it is not obliged to do so. Ms Wong further submitted that:
Absent unusual circumstances, the Tribunal was not under any duty to actively assist the Applicant in putting his case, nor was the RRT required to carry out an inquiry in order to identify what that case might be: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36].
I accept the submission that the fifth particular does not demonstrate that the Tribunal fell into jurisdictional error.
In the sixth particular, the applicant alleged that the Tribunal failed to put adverse information to him for consideration. Ms Wong submitted that the Tribunal relied on two categories of information in reaching its conclusion:
a)Information provided by the applicant at the hearing; and
b)Independent country information.
In the case of the information provided by the applicant at the hearing, such information falls into the category of information “that the applicant gave for the purposes of the application”, pursuant to s.424A(3)(a). It is therefore exempt from the requirements of s.424A(1). Independent country information is not subject to any obligation under s.424A(1). It falls under a category of information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”, pursuant to s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.
I accept the submission by Ms Wong that the applicant failed to demonstrate any breach of s.424A of the Act, or breach of any other requirement of procedural fairness applicable to the Tribunal in the course of its decision-making.
In the seventh particular, the applicant claimed that the Tribunal, by finding that the applicant would be afforded effective protection by the Egyptian authorities, was doing so “contrary to the information obtained by the Tribunal DFAT and Centre of Religious Freedom”. The passage from the Tribunal’s reasons that the applicants complains of is as follows:
The country information indicates that generally the police are able and have taken all reasonable steps to protect Christians when they have been attacked or threatened and that Christians enjoy the same protection from state authorities as the majority Muslim population. (CB 87).
Ms Wong submitted that this finding relied upon independent country information that said police took action against Muslims who attacked Christians and caused damage to Christian property. For example, the USDOS 2002 Annual Report on International Religious Freedom, as extracted in the Tribunal’s decision, states:
In November 2001, a criminal court in Sohag began the retrial of 96 defendants suspected of crimes committed while participating in violence in the village of Al-Kush in January 2000, which resulted in the deaths of 20 Christians and one Muslim; the trial was ongoing as at the end of June 2002. Ninety-two of the 96 were acquitted in the first trial in February 2001, a verdict successfully appealed by the public prosecutor. In February 2002, Muslims in the village of Bani Walimss attacked a newly reconstructed church during the re-consecration ceremony, doing extensive damage by fire; the Government ordered the damage be repaired at Government expense. (CB 81)
The Tribunal also relied upon information provided by an academic specialising in Middle Eastern politics Professor Robert Springborg:
I have no evidence at my disposal to indicate that the police discriminate against Copts. In Upper Egypt, the police are juxtaposed against both Muslims and Christians. Some individuals in the police may be against Christians, yet there are also many Christian police officers. The government policy is to apply the law to those who break it. There is no systematic approach against Christians in Egypt. (CB 85).
This country information provided a sound basis for the Tribunal to make its findings regarding state protection, having regard to the Full Court’s observation in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at [11]. The Tribunal held that it would be reasonable for the applicant to relocate to another major city within Egypt, a finding that is not subject to any jurisdictional error: (CB 89). This finding provides a separate and independent basis for affirming the Tribunal’s decision: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965.
I accept the submission that the applicant’s claim in particular seven of the amended application cannot be sustained.
In the eighth particular, the applicant claimed that the country information used by the Tribunal was out of date. The applicant did not particularise which country information should not have been used and in what respect it was inaccurate. The Tribunal principally relied upon information published in 1999, 2002 and 2003, which could not be said to be out of date, given that the Tribunal’s decision was reached in early 2004. Ms Wong submitted that the applicant failed to demonstrate “that more recent information might have presented a different picture of circumstances against which the applicant's claims might have been assessed: SBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 587, per Mansfield J at [19].
No jurisdictional error is established by allegations that the Tribunal failed to make correct or proper use of independent country information or that the information was old or not current. NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26 per Beaumont, Lingren and Tamberlin JJ at [14] held:
(T)here is no ground for judicial review available, as the appellant now claims, because country information ‘was not actually utilized properly’. This is no more than a claim for ‘merits review’.
Also relevant to this argument is the decision of SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 per Hely J at [16] where His Honour held that:
(I)t was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
His Honour then referred to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at [11].
I accept Ms Wong’s submission that no jurisdictional error has been demonstrated in the eighth particular of the amended application.

Conclusion

As the applicant is not represented, this Court is obliged to independently consider whether any argument based on the material can be made out: Yo Han Chung v The University of Sydney & Ors [2002] FCA 186. Ms Wong, counsel for the respondent, has assisted the court with written detailed submissions supplemented by oral submissions. Aided by submissions of both parties, I am satisfied that none of the particulars pleaded in support of the single ground contained in the amended application show that the Tribunal made a jurisdictional error in its decision making process. Neither is it apparent that any other grounds of review exist. The applicant’s claim should be dismissed.
I am now satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 31 March 2006