SZEAJ v Minister for Immigration - [2005] FMCA 1472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAJ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1472

MIGRATION – RRT decision – Egyptian lawyer threatened by litigants – Tribunal found his fear of future harm not to be well‑founded – not satisfied that effective protection was withheld due to perceived political opinions – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(b), 91R(2)(a), 474, 483A, Pt.8

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:

SZEAJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2282 of 2004

Judgment of:

Smith FM

Hearing date:

26 September 2005

Delivered at:

Sydney

Delivered on:

26 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Potts

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2282 of 2004

SZEAJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 June 2004 and handed down on 28 June 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
In the present case, the applicant arrived in Australia in August 2002. He was accompanied by his wife and children, but they have returned to Egypt. On 27 May 2003 he lodged an application for a protection visa assisted by a migration agent. A preliminary assessment of the application was that it was invalid because the history put forward did not show any relationship to the Refugee Convention. The applicant was allowed further opportunity to apply, and on 11 June 2003 a second application was lodged whose validity was accepted.
The applicant’s history upon which he sought protection from Australia was contained in two statutory declarations attached to the applications. It is unnecessary for me to detail it, since it is fully set out by the Tribunal in its reasons, and the Tribunal accepted that the events recounted had occurred.
In short, the applicant said that he was a national of Egypt who had obtained legal qualifications and commenced employment in 1995 with a bank. He was a successful solicitor and became the head of a legal team, but in the course of his duties he encountered two episodes which gave rise to fears of remaining in Egypt and of returning there.
In the first incident, which he told the Tribunal had occurred in September 2000, he and a colleague were kidnapped when taking documents to file in a court. They were released when the police arrived, but he was concerned that the police “pressured us not to file a complaint of kidnapping. Instead they registered it as an act of assault where the files were taken”.
A second incident occurred in January 2002, when acting for the bank against a person whom he said was notorious “for he had made his fortune before through drug smuggling and he was also well known as being very influential and ruthless”. The applicant received threats of death, but “as there was no concrete evidence against them concerning the threats, I could not go to the police or court. I informed my superiors of the situation who told me that they cannot help me in the matter”. He took leave, but heard that two persons had “shot at my mother” at an agricultural property owned by the family. This incident was reported to police and the prosecutor’s office, and was investigated, but “the report never went to court”. Fearing for his life, he left for Zambia and, after a return visit to Egypt, he obtained long leave from the bank and came to Australia.
In the statutory declaration accompanying his second application, the applicant sought to give his fears a Convention complexion, by pointing to reasons why he thought he would not receive state protection from harms from the individual concerned in the second incident. He said this was because:
4.Through out my employment with the bank I was known to have affiliation with the Islamic movement. I was a supporter of the Muslim Brotherhood members of the Law Society. …
5.I was also active in the election of the Union of Banks employees. …
6.Because of my activities in the Union and the Law Society as well as my rejection to cooperate with the State Security that the police was not willing to provide me with the protection I needed when I faced problems with those influential people as I stated before.
7.That fact was later confirmed when a crime was committed, that is firing towards my mother and damaging the agricultural equipment, the police did not do anything despite the fact that the damage and shooting was confirmed by them.
The applicant was invited by the Tribunal to attend two hearings, and he did so. The Tribunal set out at significant length in its reasons the evidence he gave at those hearings, and no criticism of its account has been made by the applicant in submissions to me. The applicant filed a transcript of both hearings, but has not taken me to any part in the transcript as giving rise as to an issue of concern as to the proceedings of the Tribunal.
When describing the incident involving the applicant’s mother the Tribunal said:
The applicant expressed the view that he has no doubt that no serious attempt was made by the local police to locate the two and to pursue the reported incident.
The applicant said that he believed that the attack on his mother and the family assets had been a warning to him and he did not believe that serious harm was intended to his mother. The applicant said that he believed that this attack was meant to serve as a warning to him for the action he had instigated and which was not going well for the defendant.
The applicant confirmed that his mother was still living at the same place.
Under the heading “Findings and Reasons” the Tribunal summarised the applicant’s claims:
I accept that the applicant is an Egyptian national.
The applicant claims that he fears serious harm at the hands of agents for one Mr X against whom the applicant acted in proceedings in the (City) Preliminary Court in January 2002. The applicant fears, based on his past experience that the state will not protect against this harm because they believe that he is a member of the Muslim Brotherhood and by his actions associated with that organization he has expressed a political opinion which opposes the government.
The applicant has stated that he fears harm because of a political opinion imputed to him because of his support for the Muslim Brotherhood and because of his perceived membership of a particular social group being the Muslim Brotherhood. Whilst I accept that members of the Muslim Brotherhood might constitute a particular social group in Egypt I consider that all of the applicant’s claims can be dealt with in terms of political or imputed political opinion.
This was an accurate summary of the history given at much greater length to the Tribunal, and which it showed earlier in its reasons that it fully understood. The Tribunal said that it found the applicant to be credible and, in effect, made findings accepting the history of past events which he had given.
However, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention based on its own assessment of that past history and, in particular, its opinion as to whether it gave rise to a well‑founded fear of persecution in the future. That assessment was the essential task of the Tribunal and, as I have sought to explain to the applicant, is not the task of this Court.
In my opinion, its significant principal reasoning is found in the following paragraphs:
I find that the harm that the applicant fears at the hands of private individuals is not related to any Convention ground but comes as a result of the applicant’s employment as a solicitor acting against a powerful and corrupt businessman who has used his connections to stifle the legal action against him. S91R(2)(a) of the Migration Act states that “a threat to a person’s life or liberty” is an instance of serious harm for the purposes of section 91R(1)(b). However the threat must be a real one. Notwithstanding the verbal threats made against the applicant and his wife no subsequent action was taken against either of them in relation to the threats. If persons acting for Mr X intended the applicant serious harm there was ample opportunity for them to do this in the time he was back in (City) from early July 2002 until the end of the month. I find that what the applicant has experienced in the past does not amount to serious harm and I find that there is no real chance that the applicant would face serious harm amounting to persecution should he return to Egypt now or in the foreseeable future. The matter against Mr X is now finished and the applicant has resigned from his position with the (Bank). Notwithstanding threats from unknown sources in 2002 the applicant did not experience serious harm amounting to persecution up until the time of his departure from Egypt in August 2002. On his evidence his mother has continued to live in (Town) without further incident. His wife and children are living in (City) and have not suffered harm.
Having found that there is no real chance of the applicant suffering persecution at the hands [of] private individuals if he returns to Egypt consequently I find there is no real chance that the state will fail to protect him from such harm for a Convention reason. The applicant has no well‑founded fear of Convention related harm if he returns. However given that the applicant has made the specific claims that state protection was denied him for the reason of his political opinion I will address those claims for completeness.
This reasoning contains two findings which separately support the Tribunal’s conclusion. The first is its finding “that what the applicant has experienced in the past does not amount to serious harm”. Counsel for the Minister raised for the Court’s consideration whether that finding showed an insufficient appreciation of the factual claims made by the applicant, in particular in relation to the experience of his mother. Counsel accepted that a threat to the applicant’s mother could provide an instance of serious harm for the purposes of s.91R(1)(b). However, I did not understand him to concede that on the evidence before the Tribunal that this was the only opinion open to the Tribunal as a matter of law. Given that the Tribunal had evidence from the applicant that he did not believe that serious harm was intended to the mother, I think it would have been legally open to the Tribunal to take the view that it appears to have taken. I am not persuaded that the Tribunal overlooked a claim made by the applicant or made any other error when making this finding.
In any event, I consider that the second reason given by the Tribunal was not affected by jurisdictional error. That finding was “there is no real chance that the applicant would face serious harm amounting to persecution should he return to Egypt now or in the foreseeable future”. The sentences that follow that finding make it clear that it was made with full appreciation of the history given concerning the mother.
As the Tribunal itself pointed out, the effect of that finding was that it became hypothetical whether the applicant could expect to receive a satisfactory level of state protection from harms from Mr X which had no Convention relationship in themselves, by reason of the applicant’s background or perceived association with the Muslim Brotherhood.

I therefore accept the submission for the Minister that any error by the Tribunal in its discussion of the issue of state protection would not vitiate the Tribunal’s decision to affirm the delegate’s decision.
Most of the applicant’s written and oral submissions to me have focussed upon the Tribunal’s reasoning concerning whether effective protection was denied in the past. He argued that the Tribunal made findings about this without properly appreciating the nature of his perceived association with the Muslim Brotherhood, and that it also failed to consider adequately country information concerning the state of the judiciary in Egypt.
In my opinion, the applicant’s submissions on both of these matters went no further than attacks on the factual merits of the Tribunal’s assessments. They did not demonstrate any serious legal error. The Tribunal’s conclusion on effective protection was:
I am not satisfied that the state or agents of the state have condoned the criminal conduct of private citizens against the applicant nor is there evidence that they failed to provide the applicant with protection for reasons of his actual or imputed political opinion or for any other Convention related reason.

I am therefore not satisfied that the applicant has a well‑founded fear under the Convention.
On this issue, the Tribunal declined to make findings about the applicant’s past history which, at a factual level, it was required to make before it could be satisfied that the applicant’s history showed persecution coming within the Convention definition. I consider that its findings were open to it. Moreover, as I have indicated, the Tribunal’s decision was supported independently by its earlier finding against the possibility of the applicant in the future suffering persecution at the hands of private individuals.
The applicant filed an application for review of the Tribunal’s decision in this Court on 21 July 2004. It is a document which I take to have been prepared by counsel acting “on a direct access basis” since that person’s name appears on the application. Unfortunately, the application provides as its only “particulars” the following obscure assertions that the Tribunal exceeded its jurisdiction:
1.The Tribunal erred in its application of the test of “persecution”.
2.The Tribunal erred in its application of the test relating to the failure of state protection of the Applicant.
The same barrister represented the applicant at the first court date before the Registrar on 21 October 2004, and it is regrettable that the Minister did not seek directions for further particulars to be provided. Directions were given for the filing of written submissions 14 days before the hearing set down for today. However, at some point the applicant ceased to obtain the assistance of legal practitioners, and no amended application has been filed, nor was any written submission filed in advance of the hearing.
The applicant attended today accompanied by two non‑legal friends, who sat at the bar table and gave him advice. His opportunity to take their advice included having a brief adjournment after hearing the submissions of counsel for the Minister. One friend had prepared a written submission which I received and considered. As I have indicated above, it sought to argue with the factual assessments of the Tribunal, and I was unable to identify in it an argument raising jurisdictional error. However, I have myself with the assistance of counsel for the Minister sought to find an argument which might have been put for the applicant, but have been unable to do so.
For the above reasons I consider that the Tribunal decision was not affected by jurisdictional error. It is therefore a privative clause decision within s.474 of the Migration Act, and the Court is barred from giving relief. I must dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty‑four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 October 2005