SZEBG v Minister for Immigration - [2005] FMCA 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBG v MINISTER FOR IMMIGRATION

[2005] FMCA 9

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection (Class XA) visas – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.424
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
R v Home Department State Secretary; Ex parte Sivakumaran [1998] AC 959
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112
SFKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 142
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

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

Applicant:

SZEBG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2359 of 2004

Delivered on:

11 February 2005

Delivered at:

Sydney

Hearing date:

10 November 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr R B Wilson

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2359 of 2004

SZEBG

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 June 2004 and handed down on 30 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 February 2003 to refuse to grant the applicants protection (Class XA) visas.

Background

The applicants in these proceedings are not to be identified pursuant to the provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and the applicant husband has been given a pseudonym “SZEBG”.
The applicants are husband, wife, son and daughter. They are citizens of Egypt who arrived in Australia 3 November 2002. On 20 December 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under Act. On 11 February 2003 the delegate refused to grant protection (Class XA) visas and on 4 March 2003 the applicants applied for a review of that decision.
Only the first named applicant (the husband) has made specific claims under the Refugee Convention, his wife, son and daughter rely on the membership of his family. For convenience, therefore, the first named applicant will be referred to as “the applicant”.
In his application for a visa the applicant stated that his date of birth was 15 January 1954. He is married with two children and stated that his occupation before coming to Australia was engineer. The applicant stated he came to Australia in November 2002 as a visitor, travelling on a passport issued in May 1998 in his own name which is valid until May 2005. He stated he left Egypt legally and did not have any difficulty in obtaining travel documents. The applicant stated he had visited Australia on two previous occasions in August 1999 and August 2001. He stated he spent the year of 1976/1977 in the army and then was employed as an engineer and manager until he came to Australia. The applicant claimed he resided in Alexandria, Egypt (Court Book p.99) (“CB”).
The applicant claimed to fear persecution in Egypt for reasons of his religion. He claimed to be a Coptic Christian and to have convinced another man to re-convert from Islam to Christianity. As a result his house was visited by Muslims in August 2002 who threatened him and his family with harm. The applicant stated his wife had held a high profile job with the public library and he had had a position with the Government Department of Agriculture and he and his wife were well known in their area in Egypt. The applicant stated he participated in assistance schemes for the local church and visited families with financial and other problems to talk and pray with them. He stated he would accompany the local priest on visits to local people in need (CB p.99).
The applicant claimed his problems started when the local priest chose him to visit a family that needed assistance. The family were affluent but needed assistance because the “man of the house” had had a sexual relationship with one of the Muslim house maids. Pressure was put on the man to convert to Islam and marry the maid, which he did. The applicant’s task was to try and convince the man to return to Christianity and his family. The man was willing to do this but was threatened with death if he converted from Islam. The applicant claimed the local Coptic priest minimised his assistance in this matter so it would not seem to be a church organised attempt to convert a person to Christianity which would cause problems. A lawyer refused to take the case of forced conversion because it was too dangerous and the local priest advised that he did not want to turn the case into a legal battle. The applicant stated he was at the man’s house when the local sheikh visited and had a discussion in which the applicant stated that religion should not be by force. The sheikh then warned the applicant to spend less time with the man or else he (the applicant) would be in trouble (CB p.99).
The applicant continued to visit the man and convinced him to visit his (the man’s) family and went with him on a number of occasions. When the applicant returned from a brief absence, the man’s family told the applicant that they had been threatened by elders from the mosque. The applicant continued to visit the man to try to convince him to return to his family. He was warned by his priest to keep a low profile and contact with the man was ceased. The applicant claimed he was visited at his home by the sheikh who told him he had committed a crime because the man had divorced his Muslim wife. The applicant stated he became angry with the sheikh and argued with him that the man’s forced conversion to Islam had destroyed the man and his family. During the following months the applicant claimed his family was terrorised and because of the continued harassment by members of the mosque, the applicant arranged visas to Australia. During the last month in Egypt the applicant claimed he and his family lived in a church house because it was too dangerous for them to remain in their own home (CB p.100).
The applicant stated he feared to return to Egypt because he and his family would be in danger and his wife and daughter could easily be raped and forced into Islam. He feared he and his family would be harmed by mosque elders and members of the Islamic group if they returned to Egypt because they believed he assisted a man to leave Islam. The applicant stated that leaving Islam was considered a major crime in Egypt and that the authorities could not help him against the Islamic fundamentalist groups as they were too numerous (CB p.100).

The Tribunal’s findings and reasons

In the Tribunal’s decision under the heading “Findings and Reasons” (CB p.107) the Tribunal accepted that independent country information generally supported the applicant’s claim that there were assaults and violence against Coptic Christians in Egypt and that they are not always protected by the police and state security against such assaults. The Tribunal also noted that the country information indicated that from time to time converts from Islam were harassed and detained by authorities in connection with the falsification of documents. The Tribunal accepted the following:
a)The applicant and his family were members of the Coptic Orthodox Church;
b)The applicant and his family were threatened by local sheikhs and local Islamic group members;
c)The applicant and his family were told that local police would only assist if an incident of rape was reported;
d)The applicant left Egypt and fears to return there because he has fears for his safety and the safety of his family;
e)The harm feared by the applicant amounted to persecution for the purposes of the Convention definition in that it amounted to “serious harm” pursuant to s.91R(1)(b) of the Act and was systematic and discriminatory conduct pursuant to s.91R(1)(c);
f)The persecution feared was for a Convention reason, namely the applicant’s religion;
g)The applicant and his family, as Coptic Christians, may not be able to get protection from local police against the local sheikh and Islamic group members in relation to threats of harm against him and his family members;
h)In light of the past persecution suffered and the lack of state protection offered to the applicant in his local area, there was a real chance the applicant would suffer further persecution should the applicant and his family return to that local area.
The Tribunal concluded, however, that the applicant had a well-founded fear of persecution in his local area, Alexandria, only and the issues raised above did not apply to other areas of Egypt (CB pp.107-108).
The Tribunal made the following observation:
“While the Tribunal considers that the applicant has a well founded fear of persecution in his local area the Tribunal considers that the applicant and his family could relocate to other areas of Egypt and live reasonably and safely now and in the reasonably foreseeable future.” (CB p.108)
This observation was put to the applicant by the Tribunal to which he responded that the threat to him and his family would continue if he moved to another part of his country because notice would have been given by those people in his local area who were convinced he had caused a person to convert from Islam. The applicant stated that notice would be given to others to look for him and members of the Islamic group would eventually find him. The Tribunal considered the country information available to it as well as further material provided by the applicant’s adviser on 16 June 2004 which addressed the issue of the extension of police influence of the Muslim Brotherhood in Egyptian politics. This material did not in the Tribunal’s view establish that there is a real possibility that the applicant and his family would be traced and hunted down because of the local incident which occurred prior to his departure (CB p.109).
The Tribunal was not satisfied that the family could not live in another part of Egypt without being searched for, located and persecuted or otherwise threatened and harmed by Islamic fundamentalists or by the local sheikh and his supporters because of the incident that took place in the applicant’s local area. When this question of relocating to another part of Egypt was put to the applicant the only concern raised by the applicant was that he would be found by the local sheikh or other Islamic fundamentalists who had infiltrated society.

Application for review of the Tribunal’s decision

On 26 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 9 November 2004 the applicant filed an amended application which contained the following grounds:
“1.The incident in Alexandria was but an example of what could occur if the Applicant, anywhere in Egypt, continued to practice his Christian role of speaking with others about his faith, particularly those who had converted to Islam. Thus even if he should live outside Alexandria if he continues to practice his faith in the manner he has done in the past, the risk of harm could well arise. The past incident shows this to be the case. The Tribunal has not considered this possibility.
2.The Tribunal has an inquisitorial function. It should have asked questions, given that it is considering whether the Applicant can move to another area, designed to elicit whether it was reasonable for him and his family to move, given that they had always lived, worked and gone to school in, Alexandria. The Tribunal did not investigate this adequately.
3.The only aspect the Tribunal in fact considered, in relation to relocation, was whether the Applicant could relocate safely in relation to the muslims in Alexandria who had threatened him in the past. It did not consider other aspects involved in relocation, such as work and schooling and moving away from the local church congregation and family and friends. The question here is whether moving would mean that the Applicant has to give up so much of their existing lives that is persecution for them to do so.
4.The Tribunal imposed an incorrect onus on the Applicant when it said that it was not satisfied that other suitable areas in Egypt are not safely, practically and legally accessible to the Applicant. The correct test is whether the Tribunal is satisfied that the Applicant can reasonably move to some other area. It is only where the Tribunal is actually satisfied of this that the risk of persecution is negated. This is the correct application of the relocation principle.
5.The Tribunal held that the evidence did not establish that there is a real possibility that the Applicant will be traced and hunted down. In fact the evidence did show that this was a possibility and it further shoed that this was not a far fetched possibility. Consequently, the Tribunal’s decision was unreasonable.” (Errors included)

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 (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a 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 South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Applicant’s Submissions

Mr R B Wilson of Counsel, appearing for the applicant, filed written submissions prior to the hearing. The applicant Counsel tendered and applied for an affidavit of Teresa Nicolas sworn on 8 November 2004 (“the affidavit of Ms Nicolas”) to be admitted into evidence.
Counsel noted that the Tribunal held that the applicant and his family had a well-founded fear of persecution for Convention reasons. Counsel also noted, however, that the Tribunal held that the applicant could avoid the risk of persecution, should he and his family return to Egypt, by relocation within his country of origin.
It was submitted that the Tribunal’s decision making process, involving both the procedural steps taken in order to give the applicant an adequate opportunity to present his case and its reasoning in reaching its decision, must be assessed by the Court on the materials before it. It was further submitted that with respect to the latter, the Tribunal’s written reasons for decision must be given a fair reading and whilst it was not correct to dissect its reasons minutely in a way that diverges from a fair reading, a special responsibility lay on the Court in the examination of the Tribunal’s decision making process when the result of an allegedly flawed decision may imperil life or liberty: see R v Home Department State Secretary; Ex parte Sivakumaran at 997.1.
It was submitted that the Tribunal accepted the applicant had a well-founded fear of persecution and consequently, if the decision was wrong, the life and liberty of the applicant and his family were at risk. Counsel contended that the independent country information before the Tribunal and accepted by it clearly demonstrated the existence, in Egypt, of the type of religious persecution of which the applicant gave evidence. Counsel submitted that the applicant’s acts in furtherance of his religious beliefs brought persecution to bear upon himself and his family and this was also accepted by the Tribunal.
Counsel submitted that the correct issue was whether the Tribunal failed to address an issue before it, had made proper enquiry, had reached an unreasonable decision in the Wednesbury sense or had applied incorrectly a standard of proof which led to a fundamental error of law and that these were not merits issues.
It was contended that country information showed this type of persecution was possible throughout Egypt even where Moslems and Christians coexisted, and that coexistence did not mean there would necessarily be persecution, only that persecution was possible. It was further submitted that coexistence is a necessary ingredient and as the applicant is Christian in a predominantly Muslim Egypt, it is inevitable that wherever he chooses to live this ingredient would be satisfied.
Counsel submitted that the applicant and his family had lived safely and enjoyed a comfortable lifestyle until August 2002 and it was the applicant’s active engagement in assisting troubled families as an expression of his religious life that brought about subsequent threats and physical violence.
It was submitted the Tribunal reasoned as follows:
a)It held that there was a real chance that the applicant would suffer persecution, for a Convention reason (here religious or social group), should he (and his family) return to the area in which they formerly resided;
b)However, it further held that this well-founded fear of persecution was “in his local area, Alexandria, only”.
Counsel submitted that what the Tribunal meant by these statements was expressed in its reasons as follows:
a)The persecution was only “local” in nature (CB p.108);
b)The evidence submitted did not establish there was a real possibility that “the applicant will be traced and hunted down because of the local incident which occurred prior to their departure” (CB p.109);
c)The Tribunal “cannot be satisfied on the evidence before it that other suitable areas in Egypt are not safely, practically and legally accessible to the applicant and his family now and in the reasonably foreseeable future” (CB p.109);
d)“There is no evidence to suggest that the applicant and his spouse could not find a livelihood in a new region in Egypt, indeed their education and experience would assist them in doing so” (CB p.109); and
e)“Although the applicant has suffered past persecution in his local area, because he can relocate and live safely in another part of his country the Tribunal is not satisfied that he will suffer persecution in the foreseeable future” (CB p.109).
It was submitted that the incident in Alexandria was an example of what could occur anywhere in Egypt if the applicant continued to practice his Christian role of speaking to others about his faith, particularly those who had converted to Islam, and helping families in need. It was further submitted that, despite country information, the Tribunal did not consider the possibility of the risk of harm could arise even should the applicant and his family relocate.

Counsel submitted the Tribunal had an inquisitorial function and should have asked questions designed to elicit whether it was reasonable to consider the applicant and his family should relocate, given that they had always lived, worked and attended school in Alexandria. It was submitted that this issue was not adequately investigated by the Tribunal and consequently, on the facts of the case, it did not discharge its inquisitorial function.
It was argued that it was frequently said that an applicant must put forward his or her case and that the Tribunal should therefore be alerted to engage its inquisitorial function and investigate the evidence before it thoroughly giving actual consideration to issues relevant to an applicant’s request for refugee status. It was submitted that the Tribunal’s position was quite different from that of the Court where a party, by not raising an issue, was taken to have waived it or to have treated it as no moment.
Counsel submitted that once the Tribunal had embarked upon the question of whether relocation was reasonably possible it was required to give that matter proper consideration and referred to the authority of Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (“Randhawa”) per Black CJ, Beaumont and Whitlam JJ at 443.C.
On the evidence before the Tribunal, it was submitted, that it must have been aware or ought to have been reasonably aware, that there were factual issues for determination in relation to residence, employment, schooling and moving from an established network of friends and fellow congregational members. It was contended that the applicant’s furtherance of his religious beliefs in assisting others was clearly of most value and effectiveness if practised in a social milieu in which he was already well known. Counsel submitted that the focus of this argument was upon the Tribunal’s inquisitorial function and the special responsibility that is engaged where there is a finding of an applicant’s well-founded fear. It was submitted that the facts of this case would raise these considerations in the mind of any reasonable adjudicator.
Counsel submitted that the only aspect considered by the Tribunal in relation to relocation was whether the applicant could safely relocate in relation to the threats made against him by the local Moslems in Alexandria and it did not consider the other aspects of relocation such as work, schooling and moving away from family, friends and the local church congregation. It was submitted that it was unreasonable for the applicant and his family to give up so much of their lives by relocating and that the Tribunal failed to take into account relevant considerations
It was further submitted that the Tribunal imposed an incorrect onus on the applicant when it said it was not satisfied that other suitable areas in Egypt were not safely, practically and legally accessible to the applicant (CB p.109). It was contended that the correct test was whether the Tribunal was satisfied that the applicant could reasonably move to some other area, and only where the applicant is actually satisfied of this is the risk of persecution negated. It was submitted that this is the correct application of the relocation principle.
Counsel submitted that if safe relocation was reasonably possible it negated the real chance of persecution in the same way as the ability of the local authorities to offer protection against persecution: Minister for Immigration & Multicultural Affairs v Prathapan per Lindgren J at 681:
“Rather, the question is whether the Government of the country nationality … will provide the Applicant with a level of protection sufficient to remove a real chance of persecution in the country in question …”
It was submitted that where a Tribunal has found that there is a real chance of persecution, this finding would only be removed where the Tribunal is actually satisfied that the Government is able to offer effective protection or, as in this case, relocation is reasonably possible. Counsel submitted that it was incorrect to reject the offer of refugee protection where the Tribunal’s conclusion was that it was not satisfied that reasonable relocation was unavailable.
It was submitted that the Tribunal held that the evidence did not establish there was a real possibility that the applicant would be traced and hunted down but did not give reasons for this finding. Counsel submitted that the evidence did in fact show risk to the applicant and further that the risk was not implausible. It was submitted that Moslem groups such as the Brotherhood were organised and well structured and occupied senior government positions and that re-conversion from Islam to Christianity was a serious matter in relation to persecution and it was difficult for Christians to avoid identification and abuse as they were unable to change identification cards (CB pp.118, 119 and 125). Consequently, Counsel submitted, the Tribunal’s decision was unreasonable.

Respondent’s Submissions

Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing. At the hearing the respondent Counsel tendered and applied for the affidavit of Catherine Jane Gray sworn on 10 November 2004 (“the affidavit of Ms Gray”) to be admitted into evidence.
It was submitted that the Tribunal accepted the applicant’s claim but found that he could relocate within Egypt such that his fears would not be well-founded, and it was reasonable for him to do so (see generally CB pp.107-110). This conclusion, correctly applying Randhawa, was a factual judgement for the Tribunal that was open to it for the reasons given. Counsel noted that the internal relocation principles discussed in Randhawa are not inconsistent with Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003): see SFKB v Minister for Immigration & Multicultural & Indigenous Affairs at [13].
It was submitted that the application did not properly particularise any area in the Tribunal’s decision and appeared to seek merits review. Counsel submitted, however, that the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) at 272, and there was no error of law in making a wrong finding of fact: Abebe v Commonwealth of Australia (“Abebe”) at [137]. It was submitted that the applicant had to establish jurisdictional error and while the application raised five grounds none of those grounds asserted what was a recognisable basis of jurisdictional error on the part of the Tribunal. It was further submitted that the applicant would have to show that any of those complaints would establish that the Tribunal did not exercise jurisdiction or that it exceeded its jurisdiction, bearing in mind that s.422B of the Act applied in this case.
Counsel noted that upon being asked by the Tribunal why he could not reside elsewhere in Egypt but rather travelled considerably further to Australia, the applicant’s only response was that he could not relocate in Egypt because the Muslim fundamentalists would track him down. It was submitted that the Tribunal’s task in considering relocation was guided by what the applicant said. No doubt it would be unfair of the Tribunal to decide on the issue of relocation without asking the applicant for his comments as to whether it would be possible. However, it was submitted, it would be equally unfair to criticise the Tribunal for dealing with the matters expressly raised by the applicant, as was the case here, as the issue of relocation has been raised during the hearing. It was further submitted that the applicant had the added input of his adviser’s written comments post hearing which supplemented the applicant’s answers.
The respondent Counsel referred to two passages in Randhawa. Firstly, from the decision of Black CJ at page 443.C-D where his Honour said:
“I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.”
Secondly, in the decision of Whitlam J at 453.E where his Honour said:
“Nonetheless, I think that it is worth emphasising that what Black CJ says about a decision-maker’s task being largely determined by the case sought to be made out by an applicant applies to all aspects of such a case, both personal circumstances and what might be called ‘country conditions’.”
It was submitted that the Tribunal was entitled to be guided by the case put as to whether relocation was impracticable and that the Tribunal had addressed that case and did not have to address a different case. It was submitted that the Tribunal responded to the facts articulated by the applicant and his adviser.
The respondent Counsel then made brief submissions on the five grounds raised in the application. In respect of the first ground which stated the incident in Alexandria was but an example of what would occur to the applicant elsewhere and that such risk of harm could arise if he moved elsewhere, it was submitted that the Tribunal concluded that it was not satisfied that this was or that there was ever a real chance that this was the case. Counsel contended that the suggestion that something else that would happen to the applicant if he moved elsewhere, was not a claim that was ever put by the applicant and could not now be raised as a ground of review.
In respect of the second ground, which stated the Tribunal had an inquisitorial function, Counsel submitted that the Tribunal had in fact asked the applicant why he could not relocate (see the affidavit of Ms Nicolas, p.14, Q.243 and A.244). It was submitted that the Tribunal was entitled to be guided by the case as put by the applicant and the applicant’s adviser.
In respect of the third ground, which stated that other relocation aspects such as work, schooling, moving away from local church congregation, family and friends were not considered by the Tribunal, it was submitted that the Tribunal noted that there was no evidence to suggest that the applicant and his family could not find a livelihood in a new region of Egypt and indeed their education and experience would assist them in doing so (CB p.109). The Tribunal stated in its decision:
“When asked by the Tribunal why he could not live in another place in Egypt, the only concern the applicant mentioned was that he believed that he would be found by Islamic fundamentalists put on notice by the local sheikh or other local Islamic fundamentalists who had infiltrated into the society. As mentioned above, the Tribunal does not accept that claim made by the applicant.”
It was submitted that to the extent that the matters were raised either explicitly or implicitly on the issue of relocation, they were dealt with by the Tribunal.
In respect of the fourth ground, which claimed the Tribunal imposed an incorrect onus on the applicant, it was submitted that the Tribunal was obliged to raise the possibility of relocation. It was submitted that the Tribunal considered the reasons given by the applicant as to why it was not reasonable for him to relocate within Egypt and the Tribunal ultimately did not accept those reasons. It was submitted that those were purely factual judgments for the Tribunal and there was nothing in the Tribunal’s reasons that would establish a reverse onus.
In respect of the fifth ground, which stated the Tribunal’s finding that relocation was possible was Wednesbury unreasonable, it was submitted that the evidence presented by the applicant orally and the country information presented by the adviser after the hearing did not go so far as to establish that every person who had any trouble with Muslim fundamentalists anywhere in Egypt would be tracked down or even that there was a real risk of harm. Moreover, the Tribunal noted the applicant lived in Alexandria for three months after the events of which he complained and did not move elsewhere and was not tracked down. Counsel found it surprising that the applicant would nevertheless suggest that he and his family would be tracked down if they returned to Egypt and lived in a different location.

Reasons

I was referred to the decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at [11] where the Full Court reaffirmed that the weight and interpretation to be given to country information by the Tribunal was purely a factual matter for the Tribunal and did not raise any issue in law which a Court could interpret.
I have had the benefit of detailed written and oral submissions by both Counsel for the applicant and the respondent. I have also been taken at length through the transcript of the Tribunal hearing. The gravamen of the applicant’s case was that the Tribunal fell into jurisdictional error in reaching its conclusion, had failed to address an issue properly before it, had not made proper enquiry, had reached an unreasonable decision in the Wednesbury sense or had applied incorrectly a standard of proof which led it into a fundamental error of law. This alleged error was based on the Tribunal’s finding that the applicant could avoid the risk of persecution, should he and his family return to Egypt, by relocation within his country of origin.
In order, however, to consider this question, it was necessary for the Tribunal to conclude in all circumstances that it would be reasonable to expect that an applicant could, would or should relocate to another part of Egypt. A decision should be made and material examined in order to determine this question of reasonableness in relation to relocation: Randhawa at 442-443:
“In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country 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. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality …
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.”
The applicant’s submission was that the country information showed that this type of persecution was possible throughout Egypt, anywhere where Muslims and Christians co-exist. The applicant did concede that coexistence did not mean there would necessarily be religious persecution but only that persecution was possible.
The material contained in both the transcript and the decision, indicate that the Tribunal did ask the applicant the right questions concerning the question of relocation and then proceeded to assess the practical aspects of undertaking such relocation. The practicability of relocation was considered in respect of each of the criteria raised in Randhawa.
As the respondent Counsel submitted (see above at paragraph 35), it is not the function of this Court to review the merits of the Tribunal’s decision: Wu Shan Liang at 272. Nor is it the role of this Court to assess whether there has been any wrong finding of fact in the Tribunal’s decision-making process: Abebe at [137].
The applicant’s Counsel made lengthy submissions in respect of the alleged failure of the Tribunal to exercise its inquisitorial function by undertaking a far more expansive questioning of the applicant as to aspects of relocation. The applicant’s contention was that the Tribunal did not engage in an inquisitorial function and by not raising an issue, it was alleged the Tribunal did not consider the issue and thereby had waived the issue and treated it as having no moment. The Tribunal did comment on the educational background and the work experience of both the husband and wife and made comment as to the enhanced mobility of the couple due to these attributes. The absence of a detailed explanation by the Tribunal in reaching its conclusions did not necessarily demonstrate that the issues were not raised, were not taken into account or were treated as insignificant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs per French, Sackville and Hely JJ at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
In respect of the educational and business experience of the applicant and his wife, I accept that inferences may be drawn from the Tribunal’s comments regarding the relocation which the applicant’s Counsel argued should have been put to the applicant as individual issues seeking his response.
In respect of the five grounds raised in the application, these are in effect sub-grounds of the substantive issue of relocation. I accept the submissions made by the respondent Counsel, Mr Reilly.

Conclusion

The substantive application does not raise any issue that indicates that the Tribunal’s decision was infected by jurisdictional error. Consequently, I dismiss the application.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 11 February 2005