SZFKM v Minister for Immigration
[2006] FMCA 1333
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFKM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1333 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Egypt – whether the RRT gave sufficient notice or committed other jurisdictional errors considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425A, 426A, 427 |
| Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 SZCZX v Minister for Immigration & Anor [2006] FMCA 786 SZEFM v Minister for Immigration [2006] FCA 78 SZFKF v Minister for Immigration [2005] FMCA 1152 |
| Applicant: | SZFKM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG43 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Lewis Law |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG43 of 2005
| SZFKM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 17 December 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Egypt and had made claims of religious persecution. Relevant background facts are conveniently set out in the parties’ written submissions. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 11 of the applicant’s written submissions filed on 24 August 2005 and paragraphs 2 to 33 of the Minister’s written submissions filed on 31 August 2006:
The applicant is a citizen of Egypt. She arrived in Australia on 13 May 2004[1]. On 24 June 2004 she lodged a class XA protection visa application with the Department of Immigration, Multicultural and Indigenous Affairs (“Department”)[2]. The application included a two page statement in which the applicant again set out her claims[3].
[1] Court Book (“CB”) at 173.1
[2] CB at 1-33
[3] CB at 38-39
On 26 August 2004 a delegate of the Minister refused to grant the applicant a protection visa[4].
[4] CB at 62-77
On 15 September 2004 the applicant lodged an application for review with the RRT[5]. The application included a two page statement in which the applicant again set out her claims[6].
[5] CB at 79-84
[6] CB at 83-84
On 27 September 2004 the applicant notified the RRT it had appointed her migration agent ‘Raefat Soryal, East & West Enterprises Australia Pty Ltd, PO Box S196, ST CLAIR NSW 2759’, as her authorised recipient to receive all documents in relation to the applicant’s application to the RRT[7], and on 29 September 2004 the RRT acknowledged that appointment[8].
[7] CB at 89
[8] CB at 111
On 12 October 2004 the RRT sent a letter to the applicant (and her authorised recipient, her migration agent), by registered post, advising the applicant it had considered the material provided and was unable to make a decision in her favour on this information alone and invited the applicant (and her migration agent) to attend an oral hearing on Wednesday, 10 November 2004[9].
[9] CB at 112-113
On 21 October 2004 the RRT received a Response to Hearing Invitation, by fax, from the applicant’s migration agent advising, amongst other things, that she would bringing her migration agent to the hearing[10].
[10] CB at 117
By letter dated 1 November 2004, sent by registered post, the RRT advised the applicant (and her migration agent) that due to circumstances beyond the control of the RRT, the hearing was to be rescheduled to Wednesday, 17 November 2004[11]. On the face of the letter, it was “dispatched by pre-paid post”: see s.441C of the Migration Act 1958 (Cth) (“the Migration Act”).
[11] CB at 116
By fax dated 17 November 2004 (sent at either 5.02am or 6.01am) the applicant’s migration agent advised the RRT of two witnesses the applicant wished to call at the hearing before the RRT that day, 17 November 2004[12].
[12] CB at 119.
On 17 November 2004 the RRT conducted an oral hearing at which the applicant, the applicant’s migration agent, the applicant’s daughter and her daughter’s husband all attended[13]. Each of the applicant, the applicant’s daughter and the applicant’s daughter’s husband gave oral evidence at the hearing.
[13] CB at 177.3
On 17 December 2004 the RRT handed down a decision dated 23 November 2004 affirming the delegate’s decision not to grant the applicant a protection visa[14].
[14] CB at 172-182
The applicant’s claims
The applicant’s reasons for claiming to be a refugee are set out in her original application to the Department[15]. In that application she claimed she left her country, Egypt, because she was alone in Egypt without her family and that a Muslim neighbour annoyed her and encouraged others to physically attack her. She claimed if she returned to Egypt she feared an attack from her Muslim neighbour and she feared lack of justice by the Police who did not support her. She specifically named her neighbour (and the security guard in the building where she lived) as persons who might harm her[16].
[15] CB at 17-20.
[16] CB at 17-19.
In her initial application for a protection visa the applicant said she had ‘retired’ from the workforce prior to coming to Australia.
At the oral hearing on 17 November 2004 the applicant’s migration agent further elaborated on the applicant’s claims. Further, the applicant, the applicant’s daughter and the applicant’s daughter’s husband gave evidence in support of the claims made by the applicant.
The applicant’s daughter had moved to Sydney, Australia in 2000 where she now resides[17]. The applicant had travelled from Egypt to visit her daughter in Sydney previously, in 2002. After visiting her daughter in 2002 the applicant returned to her flat in Cairo to live until coming to Australia in May 2004[18]. The applicant also has sons living in Holland – whom she had also visited in 1998 and again in 2002.
[17] CB at 177.
[18] CB at 178.
The applicant is currently residing in Sydney with her daughter.
At the hearing on 17 November 2004 the applicant’s migration agent claimed that in 1995 a person moved into the apartment block where the applicant lived in Cairo, Egypt who shortly thereafter wanted to buy the applicant’s flat. The applicant refused to sell and the applicant’s migration agent claimed the person started to threaten her and insult her because she was a Christian. There were 90 apartments in the building, 8 of which were owned by Christians. The person who was threatening her was a Muslim man[19].
[19] CB at 176.
The applicant claimed her flat had been broken into. The applicant claimed her cat was killed upon her return from visiting Australia in 2002. She also claimed that in 2004 the building security guard pushed her down the stairs and she sustained some injuries. When this was reported to the police, the police interviewed the security guard but did not proceed with any charges against the guard. After this incident she was afraid for her life and decided to escape to Australia.
The applicant’s migration agent summarised the applicant’s claim as being a case where a powerful majority, namely Muslims, were harassing and terrifying a Christian minority[20].
[20] CB at 177.
The applicant gave evidence at the RRT of injuries she sustained from twice being pushed down the stairs by the building security guard (in July 2000 and in July 2001). The applicant also gave evidence at the RRT of legal proceedings commenced by her lawyer against the person who wanted to buy her flat and the security guard[21].
[21] CB at 177
In answer to a question about why the applicant returned to live in her flat after she visited her sons and daughters in 1998 and 2002 if she was afraid to live there, the applicant said she did not want to leave her country. While visiting her daughter in 2002 the applicant did not tell her about what was happening to her at her flat in Cairo[22]. When asked by the RRT if she though about moving elsewhere in Egypt, she said she was on her own and had no one to assist her.
At the conclusion of the applicant’s evidence the applicant’s migration agent wanted to elaborate on the applicant’s position as a Christian woman in Egypt. The RRT then asked some questions about this topic, and the applicant gave her answers. The migration agent then advised that the applicant’s response covered what he was concerned about, and did not seek to put any further submissions on that point[23].
On 19 November 2004 the applicant’s migration agent sent further submissions and independent country information to the RRT. Those submissions covered the issue of the difficulties the applicant had relocating in Cairo. The applicant asserted it would be difficult to move because of the cost and because her flat in Cairo had sentimental value. The applicant had lived in the flat since 1984/5, and with her husband until he passed away in 1992. The applicant also submitted that the police in Cairo treated Christians unfairly, or were corrupt.
The RRT’s decision
The RRT reviewed at length the claims and evidence, including a number of items of independent country information. It then reviewed the applicable law. It then set out the question it was required to answer and its reasons for coming to its decision, namely that the applicant was not a refugee.
The RRT accepted the applicant was a Christian. It accepted she was the subject of insults, harassment and threats (at her building where her flat was situated in Cairo) by a person who wanted to buy her unit and by the building security guard who was supporting the person who wanted her unit[24]. The RRT also accepted that the applicant’s flat was broken into as she claimed.
The RRT, however, did not accept that the insults, threats, harassments and injuries she suffered were because she was a Christian or Christian woman. Nor did the RRT accept she could not get reasonable protection from the Egyptian Police/authorities. The RRT concluded that the insults, threats, harassments and injuries she suffered were because someone wanted to put pressure on her to sell her flat in Egypt. Her Christianity, or the fact she was a Christian woman, so the RRT found, was not the reason for the insults, threats, harassments and injuries[25].
The RRT cited the fact that the applicant had lived in the unit for many years without harassment – until at least 1995. The trouble started when the person who wanted to buy her flat moved in to the apartment building.
The RRT finally noted that the police in Cairo (rather than ignoring the complaint because she was a Christian) in fact investigated her complaints against the security guard, interrogated the guard (who denied the complaint) and decided not to proceed any further because there were no witnesses.
The police did not proceed to charge the guard, so the RRT accepted, because there were no witnesses to the harassment. For this reason the RRT did not accept that if the applicant returned to Egypt her situation would be worse[26].
[22] CB at 178.
[23] CB at 179.
[24] CB at 180
[25] CB at 181
[26] CB at 181.
These proceedings began with a judicial review application filed on 7 January 2005. That application was amended on 13 April 2005.
The applicant now relies upon a further amended application filed in court by leave today. That application raises three grounds of review which are all said to constitute jurisdictional error. The first is that the RRT’s notice of invitation to appear at the hearing on 17 November 2004 failed to comply with the period of notice prescribed by s.425A of the Migration Act 1958 (Cth) (“the Migration Act”).
The second ground is that the RRT did not accept that the applicant suffered the insults, threats, and harassment and injuries that she describes for a Convention reason, namely, that she was a Christian, or Christian woman. In making this finding, the RRT is said to have focused on the motivation of the person who wanted to purchase the applicant’s unit and overlooked the motivation of the concierge.
The third ground is that the RRT did not accept that the applicant could not get reasonable protection from the police and authorities in Egypt from the essentially criminal activities that she describes.
The applicant asserts that this finding is inconsistent with country information accepted by the RRT that there is discrimination and threats, assaults sometimes against Christians in Egypt, and the police State security did not always protect Christians against such attacks and discrimination.
The oral argument at the hearing today centred upon the first ground of review. Although the parties’ written submissions dealt in detail with that issue, they relied upon only some of the relevant cases. The more recent and more relevant cases were dealt with during oral argument. In particular, the outcome as the law presently stands turns upon a consideration of the decision of Federal Magistrate Barnes in SZFKF v Minister for Immigration [2005] FMCA 1152, in particular at [47] and the decision of Bennett J in SZEFM v Minister for Immigration [2006] FCA 78, in particular at [12]. I dealt with both of those decisions earlier this year in SZCZX v Minister for Immigration and Anor [2006] FMCA 786, in particular at [4]-[7]. In essence, I found in that case that I was bound by the decision of Bennett J in SZEFM, which was a decision on appeal from this Court and indistinguishable. However, if I was not encumbered by that decision I would have been inclined to follow the decision of Federal Magistrate Barnes in SZFKF.
I have not changed that view, despite the strenuous and cogently argued efforts of Mr Zipser to convince me that Bennett J was wrong. That is not to say that the decision of the Federal Court in SZEFM is free from potential problems. Mr Zipser, in his oral submissions, pointed out that if only one hearing invitation is required for the purposes of s.425 of the Migration Act, and a hearing is subsequently adjourned, a tribunal may not be able to have resort to s.426A(1) of the Migration Act to proceed in the absence of the applicant if the applicant fails to appear at the adjourned hearing. Conversely, if a tribunal is entitled to rely on s.426A(1) at an adjourned hearing, that could logically be only on the basis that a second invitation was properly issued pursuant to ss.425 and 425A and was not merely notification of an adjournment[27].
[27] That proposition appears to be supported by Bennett J in SZEFM at [16]
Mr Zipser also pressed upon me the view that ss.425, 425A and 426A deal exhaustively with invitations to a hearing and the progress of a hearing, and that s.427, while it refers to the power of the RRT to adjourn a review, deals with the entire review process, and not in particular with a hearing. I think the better view is that put to me by Mr Cleary, for the Minister. Section 426A(2) does not empower a tribunal to rescheduling a hearing. Rather, it makes clear that the RRT is not prevented from rescheduling a hearing if an applicant fails to appear at the appointed time. That suggests that the power to reschedule or to adjourn a hearing is to be found elsewhere. Logically, that power resides in s.427(1)(b). A hearing is a component part of the review process with which that section deals.
Pending the outcome of the reserved judgment of the Full Federal Court in SZFML v Minister for Immigration on the issue of whether the minimum notice period in the Migration Act and Regulations is required to be given where a hearing is rescheduled, I consider that I must follow the decision of Bennett J in SZEFM. In consequence, the first ground in the application fails.
The second and third grounds also fail. Despite Mr Zipser’s efforts to present those grounds in terms of asserted jurisdictional error in his written submissions, those grounds do not appear to me to rise above a dispute over the merits of the RRT’s decision and the cogency of its reasoning. Even on that level, it appears to me from a fair reading of the RRT decision that the RRT did give consideration to the role played by the concierge and prejudice against Christians and did consider adequately the question of the availability of effective State protection. I agree with, and adopt for the purposes of this judgment, paragraphs 50-58 of the Minister’s written submissions:
The applicant’s second ground of review is really asking this Court to engage in an (impermissible) merits review of the RRT’s finding that the applicant was not a refugee. Such a ground is not a proper ground for establishing jurisdictional error: see S157/2002 v Commonwealth at [76].
Alternatively, the applicant’s submissions should be rejected for the following reasons:
The question to be answered by the RRT was whether, if the applicant returned to Egypt, the applicant had a genuine fear founded upon a real chance of persecution for a Convention reason. This question was set out at the commencement of the part of the RRT’s decision headed FINDINGS AND REASONS.
The RRT therefore asked the relevant and correct legal question based upon a correct analysis of the law;
Despite what the applicant, or some other person, might conclude, the RRT found that the applicant’s fear was not founded upon a real chance of persecution for a Convention reason. In particular the RRT found, relevantly, as follows[28]:
[28] CB at 180.
a)The RRT does not accept however on the evidence before it that the applicant suffered insults, threats, harassment and injuries that she described for a Convention reason, namely because she was a Christian or a Christian woman.
b)The RRT focused on whether the fear of persecution because she was a Christian or a Christian woman was well founded or not.
c)The RRT found that the fear of persecution was because she was the owner of a flat that some other person (albeit a Muslim) wanted to exert pressure on the applicant so that she would sell her flat to him. The building security guard was merely the agent of that person;
d)The RRT substantiated this conclusion by its finding that “it was only when the person in question moved into the building and wanted to buy the [applicant’s] flat that the harassment, threats and insults…started and developed.”[29]; and
[29] CB at 181
e)It was open to the RRT to make such a finding. It is not for this Court to supplant the RRT’s finding for its own finding on the issue.
The applicant’s second ground of review should also be rejected.
Third ground of review
The applicant’s third ground of review is again asking this Court to engage in an (impermissible) merits review of the RRT’s finding that the applicant was not a refugee. Such a ground is not a proper ground for establishing jurisdictional error: see S157/2002 v Commonwealth at [76].
Alternatively, there was no inconsistency in the RRT’s findings compared to the independent country information. The RRT did not conclude that there was no discrimination by the police of Christians or Christian women.
On the contrary the relevant question was whether or not the applicant could get reasonable protection from the police because she was a Christian or a Christian woman. The RRT found that the evidence did not support the conclusion that the Police would not assist the applicant in Cairo because she was Christian[30]. Indeed the evidence of the applicant was to the effect that the police did in fact investigate her complaints when they were made[31].
The RRT found (consistently with the evidence and independent country information) that the Cairo police “did what they reasonably could in the circumstances”[32].
It was open to the RRT to make such a finding. It is not for this Court to supplant the RRT’s finding for its own finding on the issue.
This ground is unmeritorious and should be rejected.
[30] CB at 181
[31] CB at 176
[32] CB at 181.
I find that the decision of the RRT is free from jurisdictional error.
I will in consequence order that the application be dismissed.
Costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,400. That order was not opposed by the applicant. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 September 2006
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