SZEBG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 474

FEDERAL COURT OF AUSTRALIA

SZEBG v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 474

SZEBG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD346 of 2005

WILCOX J
18 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD346 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEBG APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	18 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the costs of the respondent.

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	NSD346 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEBG APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	18 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal from a decision of Federal Magistrate Lloyd-Jones in relation to an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). The Chief Justice of the Court has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal shall be heard by a single judge.

2. The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse applications for protection visas lodged by four members of a family of Egyptian nationals.  The applications for the protection visas were based upon the claimed fear of persecution of the father of the family (‘the father’) if he returned to Egypt.

3. It is not necessary to set out in any detail the material before the Tribunal.  The Tribunal accepted the father’s evidence as to an incident that happened when the family were living in Alexandria.  The appellants are members of the Coptic Christian Church.  The father was involved in church affairs.  He gave assistance to the priest in relation to parish matters, including providing support and services to members of the congregation.  As a result of this work, the father became involved in a crisis of a family in the congregation after the head of that family entered into a sexual relationship with a servant, who was a Muslim.  As a result of this relationship, the man left his family and converted to Islam.  The man apparently told the father his conversion was the result of pressure.  The father endeavoured to persuade the man to reconvert to Christianity.  As a result of that action, some local people whom the father called ‘Islamic fundamentalists’ harassed the appellants.

4. In its reasons for decision, the Tribunal said:

   ‘The Tribunal accepts that the applicant left Egypt and fears to return there because he has fears for his safety and the safety of his family; he fears that he and his family will be harmed by Islamic fundamentalist groups and/or the local sheik and his supporters.  The Tribunal considers that the harm feared by the applicant amounts to persecution for the purposes of the Convention definition in that it amounts to serious harm for the purposes of paragraph 91R(1)(b) of the Act and is systematic and discriminatory conduct for the purposes of paragraph 91R(1)(c).  Further the Tribunal accepts that the persecution feared is for a Convention reason namely the applicant's religion.’

5. If the Tribunal had stopped there, one might have expected the applications for protection visas to succeed.  However, at the oral hearing, the Tribunal member had raised with the father the question of relocation to some other part of Egypt.  The Tribunal dealt with this possibility in its reasons for decision:

   ‘The Tribunal concludes however that the applicant has a well founded fear of persecution in his local area, Alexandria, only. …  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.’

6. It appears from the Tribunal’s reasons that, when asked by the Tribunal why he could not live in another part of Egypt, the father said the threat to him and his family would continue, if he moved to another part of the country, because notice would be given by those in his local area who were convinced he had caused a person to convert from Islam.  Notice would be given to others to look for him, and the members of the Islamic groups would eventually find him.

7. After referring to some statements and submissions made by the appellants’ adviser at the Tribunal hearing, the Tribunal noted there was no evidence that the father had been charged with any offence under the Egyptian penal code.  The Tribunal then said:

   ‘The Tribunal is not satisfied on the evidence available to it that the applicant and his family would be persecuted in any other area in Egypt either now or in the reasonably foreseeable future if they returned and relocated there.  Specifically the Tribunal is not satisfied that the applicant and his family would be searched for, tracked down, located and prosecuted or otherwise threatened/harmed by Islamic fundamentalists and/or by the local sheik and his supporters because of the incidents that took place in the applicant's local area, as the applicant claims would be the case, if he returns to Egypt and relocates within Egypt.’

8. Later, after referring to some country information, the Tribunal repeated its lack of satisfaction 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.’

9. The Tribunal concluded:

   ‘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 sheik or other Islamic fundamentalists who had infiltrated into the society.  As mentioned above the Tribunal does not accept that claim made by the applicant.  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.  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.’

10. Upon this basis, the Tribunal refused the applications for protection visas.

11. Although a number of grounds of appeal were set out in the notice of appeal to this Court, essentially, the appellants’ counsel, Mr R B Wilson raised three alleged jurisdictional errors by the Tribunal.  It is not clear from the record to what extent these matters were argued before the Magistrate.  Mr Wilson, who then appeared, assured me they were.  I accept his assurance, although I note some of them do not seem to have found their way into the Magistrate's reasons.  Be that as it may, I will deal separately with each of the three matters.

12. As will be obvious, the case before both the Magistrate and this Court turns upon the manner in which the Tribunal dealt with the relocation issue.  That issue was crucial to the Tribunal's eventual decision.

13. Mr Wilson's first argument is that the Tribunal should have considered what would happen to the father if he again attempted to persuade someone to reconvert from Islam to Christianity.  The argument was put to me that this should have been considered by the Tribunal notwithstanding, as Mr Wilson conceded, such a possibility was not raised by the appellant before or at the Tribunal’s oral hearing.  Mr Wilson accepted that, in its reasons, the Tribunal accurately stated that, when asked why the appellants could not live in another place in Egypt, ‘the only concern’ mentioned by the father was that he believed he would be found by Islamic fundamentalists put on notice by the local [that is Alexandria] Sheik or other Islamic fundamentalists.

14. Mr Wilson argued it was immaterial that this particular claim was not raised before the Tribunal; if a possibility of persecution, because of a repetition of the father’s Alexandria conduct, was something that fairly appeared on the evidence, then it ought to have been considered.  Had it been considered, Mr Wilson reasoned, the Tribunal would have concluded there is a chance - Mr Wilson would say a strong chance - that the father would be persecuted in the place of relocation.

15. It may be agreed that, if the Alexandria incident were repeated, there would be a chance of a similar outcome.  The country evidence before the Tribunal seems to suggest it is hazardous in Egypt for people to attempt to convert Muslims to Christianity, certainly by way of reconversion. 

16. However, I am not persuaded that the possibility that the father would take this course was something that fairly arose on the material before the Tribunal.  The father did not, himself, mention this possibility and that fact must be considered against the background that he is a person of mature age, now aged 50 years, and a professional person.  It cannot be postulated that attempted reconversion of others is an inherent aspect of being a practising Christian.  Engaging in worship, in accordance with usual Christian practices, is one thing.  To attempt to persuade somebody to change his or her religion, particularly in a country as religiously tense as Egypt, is another matter.  The Alexandria incident did not occur until the appellant was in his late 40s.  He has lived, and practised his religion, in Alexandria all his life.  He, himself, said he had no significant problems about religious persecution before the recent incident.

17. I do not think the Tribunal was bound to ask itself what would happen if this incident were repeated, and to treat that possibility as inherent in relocation elsewhere in Egypt.

18. The second argument raised by Mr Wilson is that the Tribunal improperly imposed, upon the appellants, an onus of proof in relation to relocation.  On two occasions, the Tribunal said it was ‘not satisfied’ of particular matters related to persecution. 

19. I do not think this language means that an onus of proof was improperly placed upon the appellants.  I note the way in which the matter of relocation was dealt with in the Full Court decision, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; in particular, the discussion by Black CJ at pp 442 - 443 about the task of the Tribunal in a situation where it is considering an applicant’s ability to relocate in his or her country of nationality. At 443, the Chief Justice said:

    ‘Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration.  However, I do  not consider that she was obliged to do this with the specificity urged by counsel for the appellant.  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.’

20. Whitlam J agreed with the Chief Justice’s views.  Beaumont J took an approach that, perhaps, put an even greater burden on a person who raises objections to relocation.

21. It seems to me inherent in the notion of relocation that one must consider what difficulties might arise if an applicant seeks to relocate his or her residence in order to avoid persecution in a particular area.  If possible difficulties appear, either because the relevant applicant raises them, or because they are inherent in facts before the Tribunal, it is incumbent upon the Tribunal member to consider each of those possible difficulties and determine whether they have any substance.  If any difficulty has substance, that will almost certainly be the end of any idea that relocation is an answer to the applicant’s problem.  However, if none of the possible difficulties, on analysis, are found to have substance, it might safely be concluded that relocation does provide an answer.  It follows that, in a real sense, the question for the decision-maker is whether he or she is satisfied about the validity of a particular possible difficulty. 

22. I think the Tribunal member followed this approach in the present case.  However, it is also worth noting that she made a positive finding about the feasibility of relocation in the last two sentences of the passage from the findings and reasons set out at para 9 above.

23. The third matter raised by Mr Wilson is that the Tribunal failed to take into account the size and structure of the Muslim Brotherhood.  Mr Wilson referred me to some country information that was before the Tribunal in which it was stated the Muslim Brotherhood is estimated to have approximately one million members throughout Egypt and is a highly organised and structured group.  These statements were made in a document dealing with the problems faced by the Muslim Brotherhood at the hands of the Egyptian government.  Reference was made to the fact that members of the Muslim Brotherhood were frequently harassed, arbitrarily detained and charged and often tried without due process.

24. Although the problems of members of the Muslim Brotherhood are not presently relevant, Mr Wilson says the Tribunal should have noted from the document the large number of members of the Muslim Brotherhood and inferred from that information that the father would be found and hunted down if he relocated elsewhere in Egypt.  Mr Wilson pointed to material before the Tribunal, apparently accepted by it, that Egyptian citizens have to hold an identification card, and it is illegal for the person to change the name on this card.  Mr Wilson submitted the father genuinely believed that he would, indeed, be hunted down and harassed if he returned to Egypt. 

25. I have no reason to doubt Mr Wilson’s assertion that the father genuinely believes that he and his family are at risk of being hunted down and harassed.  However, a person’s subjective fear is not a sufficient qualification for the grant of a protection visa.  The fear must be well-founded.  That requirement involves consideration of the question whether the fear is objectively justified.  Mr Wilson accepted this.  He agreed there needs to be a plausible scenario regarding possible persecution before the decision-maker can say such a fear is objectively justified.

26. The problem I have about Mr Wilson's third submission is that it seems the Tribunal could not identify a plausible scenario by which the fact that the father had returned to Egypt and relocated away from Alexandria would lead to him being persecuted.  No scenario was suggested to the Tribunal as to how the people in Alexandria who wished the father harm would come to know that the appellants had returned to Egypt and were living elsewhere in that country.  How would they obtain access to information about the father’s identification card?  Unless it is possible to hypothesise that such people would be alerted to his return, or there is some system whereby any entry in the computerised identification register would be transmitted to them, it is difficult to conclude they would learn of his return.

27. No material on this matter was put before the Tribunal.  No scenario was outlined for consideration.  Under those circumstances, it seems to me the Tribunal is not to be criticised for failing to come to the conclusion that this was a reason militating against relocation.  I agree it is not necessary for a protection visa applicant to spell out in detail, still less to prove by reference to any particular level of probability, how harm is likely to occur.  But if the risk of harm is to be regarded as objectively reasonable, there needs at least to be a scenario that warrants consideration.  In the present case, the Tribunal thought there was none, and it seems to me that conclusion cannot properly be attacked.  

28. None of the three grounds argued by Mr Wilson succeed.  I have sympathy with the appellants.  They have undoubtedly had a hard time in Alexandria.  It is not difficult to understand their wish to remain in Australia.  However, the appeal cannot turn on the Court’s sympathy with the appellants.  It must turn upon whether it is shown that the Tribunal fell into jurisdictional error.  I see no basis for coming to that conclusion.

29. I agree with the Magistrate that the application for review had to be dismissed. 

30. The order of this Court is that the appeal be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             3 May 2005

Counsel for the Appellant:	Mr R B Wilson
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 April 2005
Date of Judgment:	18 April 2005