SZFPD v Minister for Immigration
[2006] FMCA 863
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFPD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 863 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and other persecution in Egypt – whether the RRT misunderstood corroborative evidence of the applicant’s claim or implicitly accused the applicant of fraud considered – whether the presiding member should have considered the possibility that she might be wrong in assessing the veracity of the applicant’s claims considered. |
| Migration Act 1958 (Cth), s.424 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v Rajalingham (1993) 93 FCR 220 Minister for Immigration v Rajamanikkam (2002) 210 CLR 222 SZFVL v Minister for Immigration [2005] FMCA 991 WADF v Minister for Immigration (2004) 80 ALD 568 |
| Applicant: | SZFPD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG216 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 16 June 2006 |
| Date of Last Submission: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Sedra & Associates |
| Counsel for the Respondents: | Ms S McNaughton |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 19 March 2004 and handed down on 8 April 2004.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG216 of 2005
| SZFPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 8 April 2004. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. These proceedings commenced with a judicial review application filed on 25 January 2005. By notice filed on 8 June 2006 the Minister objects to the competence of that application on the basis that it is out of time. That depends upon whether the RRT decision is vitiated by a jurisdictional error. Ms McNaughton, for the Minister, made clear at the trial of this matter on 16 June 2006 that, apart from objecting to the competence of the application, the Minister does not raise any issue of delay in bringing the proceedings.
I adopt the following information from written submissions filed on behalf of the applicant and the Minister. In August 2002 the applicant arrived in Australia (court book, page 234.1). In November 2002 the applicant lodged an application for a protection visa (court book, pages 1-99) The application included:
a)a 10 page statement in which the applicant set out his claims; (court book, pages 27-36)
b)a police officer’s report dated 9 February 2002 in relation to a complaint by the applicant on that day; (court book, pages 45-48) and
c)a variety of other documents.
In December 2002 the delegate made a decision refusing to grant the applicant a protection visa (court book, pages 109-121). In January 2003 the applicant applied to the RRT for review of the delegate’s decision (court book, pages 122-154). In November 2003 the applicant’s migration agent sent to the RRT, among other things, the statement of the applicant’s wife dated 25 November 2003 (court book, page 167).
On 9 December 2003 (court book, page 244.6) the applicant attended a hearing before the RRT. The following people gave evidence:
a)the applicant; (evidence summarised at court book, pages 244.10-250.10) and
b)his wife; (evidence summarised at court book, pages 251.1-252.2).
The applicant is from Egypt and his claims were set out in writing by him in a signed statement reproduced at pages 27 - 34 of the court book and were summarised in the RRT’s reasons at pages 236 - 241. He further referred to his claims in a document annexed to his review application at pages 126 – 132. The applicant expanded on his claims at the hearing conducted on 9 December 2003.
The applicant claimed to have been persecuted on the basis of his race, religion and membership of a particular social group by militant Muslims and the government which condoned the actions of the militant Muslims and failed to protect against them. In particular, he claimed to be of the Coptic Orthodox religion. He claimed members of his family and he himself had been subjected to various attacks and incidents of discrimination since 1981.
The RRT’s decision
The RRT accepted, to a large extent, the claims made by the applicant concerning incidents involving family members up to about September 2000 as set out at pages 257-258. However, in relation to the more recent incidents, it found that the applicant had invented or embellished claims to strengthen his claim for protection, and did not accept these more recent claims[1]. Specifically, the RRT did not accept that the applicant distributed Bibles and Christian pamphlets at his shop or that his shop was broken into and goods stolen for him doing so; or that he, his wife or children had been harmed by Muslims, or that his car was damaged by Muslims for reasons of religion, or that he was mistreated by the authorities as he claimed. The RRT did not therefore accept that the applicant was persecuted in the past because he is Coptic[2].
[1] Page 262.4
[2] Page 262.5
Further, given the independent evidence in relation to the steps taken by the Egyptian authorities to crack down on the activities of militant Muslims, the fact that the attacks on the members of the applicant’s family occurred years ago, and its lack of acceptance of the claims made by the applicant concerning himself or his immediate family, the RRT did not accept that the applicant faced a real chance of persecution in the future[3].
[3] Page 262.8
The application
At the trial of this matter the applicant relied upon an amended application filed in court by leave. The grounds of that application are:
(1)The RRT accepted “[a witness produced by the applicant – Ms M] as a witness of truth” (court book, page 260.7) and made no adverse credibility findings against her. Yet the RRT then made findings inconsistent with this position, indicating that it misunderstood or overlooked aspects of the evidence corroborating the applicant’s claims. In the circumstances, there was jurisdictional error.
(2)There is an important distinction between an applicant embellishing protection visa claims made following his or her arrival in Australia and the applicant taking steps to manufacture evidence before leaving his or her country of residence. The Tribunal did not recognise this distinction in dealing with the police officer’s report dated 9 February 2002.
Mr Zipser took up an invitation from me to further amend the application to add an additional ground. That additional ground is:
On the basis of the claims not rejected by the Tribunal, the Tribunal erred in its finding that “there is not a real chance that [the applicant] will be persecuted in the future” for reason of religion.
I invited that additional ground because of doubt in my mind whether the RRT could, on the material before it, conclude that there was not a real chance that the applicant would be persecuted in Egypt by reason of his religion should he return there. This doubt arose in my mind because the presiding member had accepted evidence of harm to members of the applicant’s family in the past which might have had a religious cause as asserted by the applicant. The presiding member was not satisfied that there was a religious cause of that harm but it was not clear to me that it was possible for the presiding member to be so sure of that finding that she did not need to consider what the position would be if she had been wrong. Further, the presiding member’s conclusion that there was not a real chance that the applicant would be harmed was also based upon country information of a government crackdown on militant Muslims which appeared to have involved only superficial consideration of that issue.
The evidence
The only evidence I have before me is the book of relevant documents filed on 17 March 2005.
Submissions
Both the applicant and the Minister filed written submissions prior to the trial on 16 June 2006. The Minister’s submissions were directed to the original judicial review application and hence were not on point.
I invited further written submissions from the parties. Relevantly, the applicant submits as follows:
Corroborative evidence issue
Paragraph 16 of the applicant’s first submissions provides in part:
First, in 2000, about 18 months before the applicant first contemplated coming to Australia and applying for refugee status (RD 240.6), [Ms M] found the applicant in a distressed state and the applicant told [Ms M] the cause of his distressed state, being “a serious incident of persecution [which had] occurred to his brother …”. While the Tribunal found that “the applicant was not being truthful” in relation to his claim in his protection visa application following his arrival in Australia, the Tribunal did not find that the applicant was manufacturing his evidence before he left Egypt. Such a finding is a serious adverse finding against an applicant. Such a finding cannot be implied or assumed in the Tribunal’s reasons for decision, but should be addressed expressly: …. The Tribunal did not make such a finding. It follows that, despite the Tribunal’s statement that it “has taken into account the evidence of [Ms M]”, the Tribunal must have failed to “actually consider what significance and weight [this aspect of [Ms M’s] evidence] deserved”: NAJT v MIMIA (2005) 147 FCR 51 at [212].”
Cases in addition to NAJT v Minister for Immigration which support this point are as follows.
First, in WAIJ v Minister for Immigration (2004) 80 ALD 568 at [26]‑[30] Lee and Moore JJ stated:
The tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]–[85] per McHugh, Gummow and Hayne JJ …
In regard to the tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558.”
A few points arise from this passage. First, Lee and Moore JJ stated that there “needs to be cogent material to support a conclusion that [an applicant] has lied”. In the present case there was no material to support the Tribunal’s apparently implicit conclusion that the applicant manufactured evidence before he left Egypt. Secondly, Lee and Moore JJ refer to the RRT’s obligation “to have regard to corroborative material before attempting to reach a conclusion on [an applicant’s] credibility”. In the present case, if the respondent contends that the RRT has implicitly found that the applicant manufactured evidence before he left Egypt, then the RRT has overlooked the evidence of Ms M in making this finding. Third, Lee and Moore JJ refer to the obligation of the RRT to “exercise considerable care” before determining that an applicant’s claims were invented. On the question of whether the matters witnessed by Ms M were manufactured by the applicant, the RRT has not exercised care.
Secondly, in Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [9] Gleeson CJ stated that the RRT has “a duty to act judicially” and must exercise its powers “according to law and not humour”. While the boundaries of this concept are unclear, they are likely to include the concept that where a tribunal wants to make a serious adverse finding against an applicant (eg that the applicant made false statements, fabricated documents or fabricated evidence), the RRT must make express findings on the point and give reasons for its findings.
Thirdly, in SAAK v Minister for Immigration (2002) 191 ALR 663 at [20]-[36] the Full Court collected authorities which emphasise the care a decision-maker in a refugee matter must take in assessing an applicant’s credibility. For example the Full Court approved a statement by Lee J in W168/00A v Minister for Immigration [2001] FCA 538 at [12] that “adverse decisions on credibility by the RRT should be restricted to the most obvious cases if the risk of injustice to applicants is to be avoided”. The Full Court continued at [32] and [34]:
Against this background it is necessary to consider whether the tribunal approached the task of assessing the credibility of the appellant’s claim to involvement with the Mojahedin with the necessary caution … The reasons of the tribunal should disclose whether the proper approach has in fact been taken …
In the present case the RRT member’s failure to expressly consider the relationship between the observations of Ms M when she visited the applicant and his family in Egypt (which evidence the RRT accepted as truthful) and the applicant’s evidence in relation to these matters indicates that the RRT overlooked this issue, and hence did not “approach the task of assessing the credibility of the applicant’s claims … with the necessary caution”. The “reasons of the tribunal … disclose [that] the proper approach has” not been taken.
Fourthly, in Kalala v Minister for Immigration (2001) 114 FCR 272 at [23] North and Madgwick JJ, after making some observations, continued:
The point of these observations is not that, upon assessment, the Member lacked the freedom to determine that there was no real and substantial chance that the events described in the article had occurred or that, if there was such a chance, they nevertheless did not provide a sufficiently real and substantial basis for concluding that the applicant had a well-founded fear of political persecution. The point is that, if the Tribunal Member had really examined whether there was a real and substantial risk that the events recited in the article had occurred, one would have expected to see reference to such examination. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, McHugh, Gummow and Hayne JJ said (at 17, citations omitted):
It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt8 of the Act, or by this court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the tribunal. It may reveal jurisdictional error. The tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took account some irrelevant consideration or did not take into account some relevant consideration.
In the present case the absence of reference in the RRT reasons for decision to the relationship between the observations of Ms M when she visited the applicant and his family in Egypt (which evidence the RRT accepted as truthful) and the applicant’s evidence in relation to these matters indicates that the RRT overlooked the issue.
The above cases also support the point made in paragraph 17 of the applicant’s submissions dated 16 June 2006.
Police officer’s report issue
The above cases also support the point made in the applicant’s first written submissions.
What if I am wrong issue
At the hearing on 16 June 2006 there was discussion about whether a reading of the RRT’s reasons for decision as a whole indicated that there was a need for the RRT to ask what if it was wrong.
In Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [55]-[67] Sackville J (with whom North and Kenny JJ agreed) stated:
If the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well founded fear of persecution … If on the other hand it appears that the RRT had no real doubt that its findings were correct, it is not bound to consider whether those findings might be wrong …
It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result … comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well founded fear of future persecution … The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring …
The question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had no real doubt ... claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong … Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take into account the possibility that the alleged events might have occurred …
In the present case there were some findings made by the RRT in relation to which the RRT’s reasons for decision suggest that “it is only slightly more probable than not that [the] alleged relevant event has not occurred”. Specifically, on a number of occasions the RRT asked the applicant a question, the applicant gave the RRT a non-responsive answer and the RRT commented that “it did not appear to the RRT that” the applicant did not understand the question (court book, pages 259.2, 259.7 and 260.4). The RRT then made adverse findings against the applicant in light of the applicant’s non-responsive answers. Specifically:
a)The RRT rejected the applicant’s claims in relation to leaving Bibles and Christian pamphlets around his shop for customers to take. (court book, page 259.3)
b)The RRT rejected the applicant’s claims generally because he left Egypt without his wife and daughter. (court book, pages 259.7 and 260.5)
It is noted that the RRT then found: (court book, page 260.5)
Taking into account the above problems with the applicant’s evidence collectively, leaves the Tribunal in no doubt that the applicant was not being truthful in relation to the incidents which he says occurred to him, his wife and children from September 2000.
The respondent may say that this finding indicates that the RRT “had no real doubt that its findings were correct” (Rajalingam at [56]).
However, this finding was based on the more tentative findings noted in paragraph 17 above. On this basis, it is open to this Court to conclude that “a fair reading of the reasons as a whole show that the RRT” had doubts that its findings were not correct.
The Minister’s written submissions were filed on 20 July 2006 and make the following points:
a)In relation to Ms M’s evidence, the first respondent invites the Court to look closely at the evidence of Ms M as summarised in the RRT’s reasons at court book, page 251, and her statement at court book, page 167. The first respondent contends that if this exercise is undertaken, it can be seen that Ms M does not give any evidence which shows that the applicant himself was claiming persecutory conduct whilst still in Egypt, or that the applicant was manufacturing such evidence whilst still in Egypt.
b)The evidence given by Ms M at the RRT hearing was summarised at court book, page 251. So far as it concerns the applicant’s point (that is, the RRT’s finding that the applicant was not being truthful in relation to the incidents which he says occurred to him, his wife and children from September 2000: court book, page 260.6) the relevant evidence of Ms M is set out by the RRT 251.5ff, as follows:
The Tribunal asked who told her about what happened to [the applicant’s brother]. She visited the applicant because she was told he had a lot of problems. He seemed like he was having a nervous breakdown, he was banging his head against a wall. The Tribunal asked what the applicant said had happened. [Ms M] replied that it was all about stealing, asking for protection money. The Tribunal asked who was asking for the money. [Ms M] replied that it was people from Islamic groups, they smashed the shop of someone and it could be the person who took the Bible from him.
The Tribunal referred to [Ms M’s] statement that she visited the applicant’s family and they were afraid the children would be kidnapped and his wife goes everywhere with the children. The Tribunal asked why she was afraid they would be kidnapped. [Ms M] said that she gets threatening phone calls but does not know who is speaking to her. The Tribunal asked what they said. [Ms M] said that they tell her that if she does not bring her husband back and they do not pay money and convert to Islam they will get one of their children. The Tribunal asked how they would know his wife had moved to live with the applicant’s mother. [Ms M] said she did not know, they have their way, possibly followed them. The Tribunal asked whether [Ms M] questioned why the applicant’s family had not come to Australia. [Ms M] replied that they could not because they could not get bookings. The Tribunal asked whether it seemed strange to her that they could not get tickets to Australia. She replied that she did not know but at the time they were trying to book from there, they could not book, it was difficult. When the applicant came here he tried to book from here as well but could not. She believes there is some incident with the airline but does not know exactly what happened.” [Emphasis added by counsel and retained]
c)Three important observations can be made:
i)First, of the above two paragraphs, only those portions emphasised actually corroborate the applicant in any critical sense. That is, only those passages link the particular problems faced by the applicant or his family to a Convention-based ground.
ii)Secondly, it is critical to note that it is not clear when Ms M came to learn of these matters within the emphasised portions. Given she was clearly in contact with the applicant when she prepared her written statement in November 2003 (after the applicant had come to Australia), it is open on the evidence that she learnt of these particular aspects of the applicant’s problems at that time.
iii)Thirdly, there is a difference between a truthful witness and an accurate witness. The RRT stated at p260.8: “The RRT accepts [Ms M] as a witness of truth. However, the evidence she gave about the applicant, his wife and children was based on what was conveyed to her by the applicant and his family. [Ms M] did not claim to have personally witnessed any of the harm allegedly inflicted upon the applicant, his wife or children”. When one examines what Ms M stated in the first of the two paragraphs extracted above at [2], it is clear that she has confused the incident involving the applicant’s brother and his factory with the incident involving the applicant and his own shop (see respectively court book, pages 28.6 and 30 – 31). [counsel’s emphasis retained]
d)Based on all these matters, the essential factual premise underlying the applicant’s first submission is not made out. This ground should be rejected.
Police officer’s report issue
e)At [5] of the applicant’s supplementary submissions, the applicant relies, inter alia, on the authority of WADF v Minister for Immigration (2004) 80 ALD 568 at [26] – [30]. In that passage, Lee and Moore JJ noted that the RRT had “disregard[ed]” the documents of the applicant. Within that passage, it was also stated: “However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims….. in such a circumstance the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility”.
f)Here, it is clear from the passage at court book, pages 260.9 – 261.1 that the RRT did have regard to the police report. It dealt with the police report in accordance with the authorities set out by the applicant in his supplementary submissions at [5], [7], [8] and [10] in that it dealt with it carefully, in some detail, and in a manner which was open to it at law. This ground must fail.
What if I am wrong issue
g)The first respondent submits that the applicant has relied on certain portions of the RRT’s reasons out of context. When court book, pages 259 and 260 are examined as a whole, it is clear that the RRT made findings which were based on matters well beyond the applicant’s non-responsive answers. As stated at paragraph 8 of the first respondent’s original submissions, the RRT noted not only that the applicant variously “did not directly respond” to certain questions[4], but also that he was “being evasive”[5], and that it found certain of his answers “implausible”, not convincing, “totally unconvincing” or “thoroughly unconvincing”[6]. Accordingly, there was a clear basis for the RRT’s unequivocal finding that it was in “no doubt that the applicant was not being truthful in relation to the incidents which he says occurred to him, his wife and children from September 2000” at court book, page 260.5 (emphasis added by counsel and retained). This ground must fail.
[4] page 259.2
[5] page 259.3 and 259.7
[6] Pages 259 - 260
Reasoning
In order to deal with the issues arising in this application it is necessary to consider in some detail the claims made by the applicant, the material he presented supporting them, the evidence given orally and the RRT’s reasoning based upon the evidence. The applicant’s claims in his protection visa application were specific and detailed. They are reproduced on pages 236-241 of the court book. I reproduce them in full below:
According to his application, the applicant is a 48 year old man who is married with two children, a son and daughter. He has nine years of education, was employed in his father’s shop for a period before becoming self employed in 1982. In summary, he claims to be a refugee because he has been persecuted on the basis of his race, religion and membership of a particular social group by militant Muslims and the government which condones the actions of the militant Muslims and fails to protect him against them. The specific claims made by the applicant in his protection visa application are as follows.
He had a strict religious Coptic Orthodox upbringing. In 1981, when his father died and a mourners’ tent was set up according to Coptic tradition, a group of Muslims broke in and started shouting that those who say Jesus is God are blasphemers. They beat the mourners and forced the removal of the tent. When they went to the El Ibrahima police station to report the incident, they were told it was their fault as they should not have put up a mourners’ tent in a suburb that had a Muslim majority. The police took no action.
In about 1985 his brother [R] was distributing Christian pamphlets at university. His brother was severely beaten until he bled by four persons claiming to be members of the Intelligence Forces but whom his brother recognised as members of an Islamic militant group. They warned his brother not to distribute Christian pamphlets. His brother suffered depression and had a nervous break down. His brother was admitted to hospital and stayed home three months for treatment.
In 1988 his brother in-law, [B] was discussing Christianity with a Muslim colleague at work and the colleague insulted Christ. His brother in-law replied in the same manner. The Muslim workers gathered and savagely beat up [B] resulting in three broken ribs. After two months of treatment his brother in-law stopped work and [e]mmigrated to Canada.
In 1991 his brother [G] was hit by a car whilst walking on the street and died as a result. The police investigated the incident but recorded the result against an unknown driver for lack of evidence. They found out that the driver was a leader of the Muslim Brothers but they were discouraged from pursuing the matter by all their friends and a priest who feared it would result in revenge from the Muslim Brothers against their family.
The applicant suffered serious business losses as a result of governmental discrimination. He dealt with two wool corporations owned by the government (Sita and Waltex) but since 1999 every tender for the purchase of their products that he submitted was refused. He came to know by one of his friends working there that it was because he was a Christian and that the tenders of many other Muslims were accepted.
At the end of 2000 three people obstructed his brother [S’s] entry into his factory in Cairo. They demanded a payment. They had a gun and threatened to kill [S] if he did not pay. [S] agreed and it was later arranged when and where he would make the payment. However, [S] reported the matter to the police instead. After a two week investigation they accused [S] of lying and defaming Islam. The militant responded after two months. The factory was burnt down by an unknown person. Previously, at the end of 1999, the militant Muslims had burnt down two factories in the area owned by Christian Copts.
He would give Bibles and Christian pamphlets to his customers or leave them around at his shop for them to take. In September 2000 a customer told him that he had taken a Bible but found it was forged and contained lies. The man said “you blasphemers forged the word of God. Where are the predictions about Prophet Mohammed. We as Muslims know that such predictions were contained in the original version of your Bible but you deleted it”. He told the man that was not correct and repeated to him what Jesus said, "many false prophets will appear and deceive many people." The man then hit him on the chest and ran out of the shop threatening him. That night his shop was broken into and goods stolen. He was sure that the thief was the man who had argued with him that day. He went to the police station. The officer took a statement from him in connection with the theft but refused to include anything about the militant Muslim and his threats. Therefore, he was sure again that the Egyptian police would never provide Christians with any protection.
After about a few weeks or a month, the telephone rang in his shop and he heard someone identifying himself as the one who discovered the forgery to the Bible and asked the applicant to leave one thousand pounds in a rubbish bin close to his shop at a fixed day and hour. The man said that he should pay this money to the Muslims as he was a blasphemer but added that they would drop the money if he confessed Islam. The man threatened to kill the applicant if he informed the police. As he was scared to tell the police, he paid the money as directed. Such money is taken from Christian merchants from time to time in favour of militant Muslims and no one can inform the police. He also did not inform the police because he feared their reaction and because he was convinced that they would use him as a bait to follow the militants so he would be killed either way - by the militant directly or by the militants if he was used as a bait to catch them.
A group of well-armed State Security policemen invaded his shop, searched it and arrested him. They took all the Bibles and Christian pamphlets. He was taken to the Province of Public Security in the suburb of Samouha. They started their investigations which were accompanied by savage beatings and painful insults. They accused him of attempting to destroy national unity and exposing the peaceful national harmony to danger. He was detained for three days and then released after he signed a written undertaking not to continue distributing the Bible or Christian pamphlets.
In about January 2001, when his daughter [C] was coming home from school, a woman tried to stop her to talk to her. In the meantime a car stopped near them and the woman tried to push his daughter into the car by force but his daughter ran away and shouted for help. Some passers-by responded but the woman quickly entered the car and left the scene. His daughter came home crying and seriously shocked from the incident. He took her to the police station asking for protection, but the officer in charge refused to believe the story and accused them of fabricating the incident and that they were just trying to defame Islam and Muslims. He was completely convinced that they could not live in peace in Egypt as Christians.
It is a Coptic tradition to print the cross on the right arm of a child but because of the well practised discrimination and persecution of Christians in Egypt by the State and militant Muslim groups, the applicant intentionally neglected to print the cross on the arms of his children.
At the beginning of 2001, his wife, who was wearing a cross, was confronted by a man whilst travelling on a tram. The man insulted her, calling her a blasphemer and telling her to take off her cross and not provoke Muslims with it. She ignored him but he stood up from his seat and tried to pull the cross off by force. When she tried to stop him, he slapped her face, she collapsed and started to cry. He then left her, warning her against wearing the cross again as it was a sign for blasphemy.
About one month after that incident, his wife was returning from church when an unknown person approached her and told her that he had been following her and wanted to marry her if she confessed to Islam. She told him that she was a solid Christian, was married and happy with her husband. The man replied that she would never escape from him and then disappeared. She arrived home shivering and completely collapsed. He accompanied his wife to the police station of Ibrahimia where they reside. When his wife told the officer in charge what had happened to her, the officer told her that she was exaggerating and that he did not believe her. His wife started to cry but the officer told her that her tears were those of a crocodile. The officer warned both of them not to defame Islam and refused to take a statement from his wife. They returned home afraid for their safety and future, as they could not find any protection against such attacks from the Egyptian police.
On 9 February 2001, as the applicant was about to enter his car, a group of bearded Muslims attacked him and broke the front and rear glass of the car, destroyed the front of the car and the doors and tore his clothes. While they were doing this he heard them saying that he was a Christian and hung a cross in his car and parked his car in front of their mosque. Then they escaped. He went to the police station again and asked the officer again and even begged for protection but the officer only recorded the incident of the attack and refused to identify the attackers as Muslims and neglected to complete his request for protection.
The applicant engaged in voluntary church duties such as helping Muslims who converted to Christianity. After his detention he was not aware that he was being supervised by the Secret Police. In about October 2001 he visited a convert whose name was Mustapha but was called Butrous after his conversion. He and Butrous were taken to the Public Security Province. They were detained in two separate places. They investigated him concentrating on the allegation that he was inducing Muslims to convert to Christianity. He denied completely that he knew Butrous before Butrous became a Christian or that he played a role in converting Butrous to Christianity. He told them he came to know Butrous from church only and hence became friends. He also denied that he helped financially. But they were not convinced and they subjected him to inhuman torture with savage beatings that continued day and night. They deprived him or [sic] normal food and instead used to offer him one meal a day and one cup of black tea each day. He was kept in detention for 28 days and was then released but Butrous was arrested under the emergency laws and at the time of [sic] he left Egypt, Butrous had still not been released and he did not know whether Butrous was dead or alive.
One evening in May 2002, while his wife was standing at the main gate of the building in which they reside, she was surrounded by two men dressed in white, as militant Muslims are usually dressed, and they asked her to follow them. When she refused they caught her and started to beat her until she fell on the ground. They tried to assault her. Suddenly one of the residents in the building lit the staircase lights and came down. The attackers fled quickly and the resident found his wife on the floor. He helped her to their residence. The applicant did not inform the police as he came to know very well their reaction and that they would not do anything to protect them.
As a result of all these incidents he decided that his children would not go to school preferring that they take private lessons at home. And since then he started to work hard to get out of Egypt to seek protection. He left his shop and leased it with the business to his workers. He lodged an application for visitor visas for himself, his wife and children. They were granted on 30 July 2002 but he only found a booking for one seat to Australia. He tried for his wife and children but without avail so he left his wife and children behind hoping that they could find future bookings. He arranged for his wife and children to stay with his mother for further protection and safety until they could join him.
After arriving in Sydney he saw more than one immigration agent to renew his stay in Australia and to get help to get his wife and children here but they all said that they could not help as his visa was closed and could not be renewed and they could not help in getting his family here. After hearing his story one of them told him that he could lodge an application for protection so he decided to lodge his application for protection.
He does not want nor wish to return to Egypt owing to a well founded fear of persecution because of his Christian belief and Coptic race. There is a real chance that he will be persecuted if he returns to Egypt and he does not want nor wish to avail himself of the protection of the Egyptian authorities anymore as it is a government that discriminates against Christian Copts and abuses their basic human rights without giving them the necessary protection.
The applicant also produced a number of documents in support of his claims.
The applicant raised additional issues in his review application. In particular, he took issue with the delegate’s decision in a number of respects. The applicant sought to emphasise the difficult position of Copts in Egypt and disputed that the Egyptian government has constrained the activities of Muslim groups in recent years to stop the persecution of Copts. The applicant asserted to the RRT that the Egyptian government is either incapable of protecting Christians or tolerant of the discrimination and persecution which occurs. The applicant presented additional documents to the RRT in support of his claims including letters from Australian Coptic religious figures and country information.
On pages 243 and 244 of the court book the presiding member set out the salient points of a witness statement prepared by Ms M. The presiding member said:
On 26 November 2003 the Tribunal received a facsimile from the applicant of a statement made by [Ms M] in which she stated that she knew the applicant “from Egypt from before 1987”. She said that she had worked with his father as an accountant and were rather close family friends. She stated that she witnessed the removal of the tent made for his father’s funeral which was caused by militant Muslims.
[Ms M] stated that whilst she was still working in the family business, the applicant’s brother [R], who was distributing pamphlets at a tram station, was arrested and taken by unknown people to a nearby place where he was beaten and tortured. He was seriously injured and it took him several months to recover.
She stated that she had visited Egypt several times since migrating to Australian in 1987. When she visited the applicant’s family in 1991 they were in a “distressful” situation as the applicant’s brother, [G], was “kicked with a car” and died. His family believed he was intentionally kicked by a leader of the Muslim Brothers. She stated that she also visited in 2000 and found the applicant in a “distressful” situation due to serious persecution which had occurred to his brother [S]. A militant Muslim had claimed protection money from them and although the applicant’s brother informed the police, the police offered no protection and instead said [S] was lying.
[Ms M] stated that she was in Egypt from 29 August until 15 November 2003 and visited the applicant’s wife and children. She said they were living in a horrified situation, afraid that the children may be kidnapped. His wife was keeping a close eye on the children and accompanying them everywhere.
The presiding member then discussed the evidence given at the hearing on 9 December 2003. The applicant’s evidence is discussed by the presiding member in great detail. The evidence of Ms M is set out on pages 251 and 252 of the court book. The presiding member said:
Whilst taking evidence from the witness, the applicant was not present.
[Ms M] told the Tribunal that she attended the applicant’s father’s funeral. She said she did not go to the police, the men went. The Tribunal asked how she knew that the persons concerned were militant Muslims. She replied, from their dress, and they stood in the middle of the ceremony and shouted anyone who says Jesus is the son of Miriam and son of God is an infidel.
The Tribunal asked if she witnessed what happened to [R]. [Ms M] said she was working with his father, his family was told that four men came and grabbed him. The Tribunal clarified that she did not see what happened but was told what happened. She said she was in the shop when people came in with the news that he had been tortured and beaten. The Tribunal asked who those people were. [Ms M] replied that she could not recall, she did not know. She saw him when he was sick.
The Tribunal asked whether she witnessed the incident involving [G] or was told about it by his family. [Ms M] stated that she went to Egypt for the funeral. She saw the family there and his sister said she saw the car and the person inside the car had a long beard.
The Tribunal asked who told her about what happened to [S]. She visited the applicant because she was told he had a lot of problems. He seemed like he was having a nervous breakdown, he was banging his head against a wall. The Tribunal asked what the applicant said had happened. [Ms M] replied that it was all about stealing, asking for protection money. The Tribunal asked who was asking for the money. [Ms M] replied that it was people from Islamic groups, they smashed the shop of someone and it could be the person who took the Bible from him.
The Tribunal referred to [Ms M’s] statement that she visited the applicant’s family and they were afraid the children would be kidnapped and his wife goes everywhere with the children. The Tribunal asked why she was afraid they would be kidnapped. [Ms M] said that she gets threatening phone calls but does not know who is speaking to her. The Tribunal asked what they said. [Ms M] said that they tell her that if she does not bring her husband back and they do not pay money and convert to Islam they will get one of their children. The Tribunal asked how they would know his wife had moved to live with the applicant’s mother. [Ms M] said she did not know, they have their way, possibly followed them. The Tribunal asked whether [Ms M] questioned why the applicant’s family had not come to Australia. [Ms M] replied that they could not because they could not get bookings. The Tribunal asked whether it seemed strange to her that they could not get tickets to Australia. She replied that she did not know but at the time they were trying to book from there, they could not book, it was difficult. When the applicant came here he tried to book from here as well but could not. She believes there is some incident with the airline but does not know exactly what happened.
The applicant presented additional documents at the hearing including another letter from a Coptic religious figure, an e-mail concerning treatment of Copts in Egypt and country information. The RRT invited the applicant’s adviser to make submissions on the applicant’s behalf at the end of the hearing and those submissions are also reproduced on page 253 of the court book. The presiding member also records that an invitation pursuant to s.424 of the Migration Act was sent on 16 January 2004 to Reverend Father Hanna about his letter which the applicant had produced in support of his claims dated 4 December 2003. The RRT wanted to find out whether Reverend Hanna had personal knowledge of discrimination or persecution of the applicant. The presiding member records[7] that Reverend Hanna had responded on 10 February 2004 to the effect that his statements had been based upon what he had been told by the applicant, as verified by a Coptic Orthodox priest in Egypt who served in the city where the applicant lived.
[7] court book, page 254
On pages 254 and 255 of the court book the presiding member records a further invitation issued by the RRT under s.424 of the Migration Act to the Australian Coptic Association. The presiding member records that the Association sought additional time to respond to the request but the RRT formed the view that no active steps had been taken to obtain the information sought and declined the request for more time. The RRT presiding member then finalised her reasons. After the reasons had been finalised a facsimile was received from the Association to the effect that further inquiries might be made by the RRT. It appears that that response did not raise anything new.
In her findings and reasons, commencing on page 256 of the court book, the presiding member stated:
Having had the opportunity to obtain oral evidence from the applicant, the Tribunal has concluded that the applicant was not an entirely credible witness. The Tribunal finds his evidence about more recent incidents particularly problematic.[8] (emphasis added).
[8] court book, page257
The presiding member then sets out specific claims that she accepted:
The Tribunal accepts that the applicant’s brother [R] was unwell because that claim is also corroborated [by] [Ms M] who says she saw that [R] was sick. Although the Tribunal has doubts about the cause of [R’s] ill health, it is prepared to accept that he was injured by militant Muslims for distributing Christian pamphlets. Above cited independent evidence indicates that in the 1980s there was a wide resurgence of Islamic consciousness in Egypt which included Muslim fundamentalists campaigning for the adoption of Sharia law. This led the government to ban Islamic rallies, arrest militant Muslim leaders and place all mosques under government control (Europa, pp.291-293). The Tribunal accepts that in such an environment, the public distribution of Christian pamphlets could have provoked an attack upon the brother by extremist Muslims.
The Tribunal is prepared to accept that the applicant’s brother-in-law was set upon at work. The applicant claimed that when his colleagues insulted Christ, he responded likewise. It seems plausible that in a country where religious tensions exist between Muslims and Christians as cited in the above independent evidence (US Department of State report), that a situation where individuals insult each others religion could escalate into a violent attack.
The Tribunal also accepts that the applicant’s brother [G] died because this is corroborated by [Ms M’s] evidence that she attended his funeral. Although [Ms M’s] did not witness the incident she claims she was told at the time the brother died that the driver of the car that killed him had a long beard. The Tribunal is prepared to accept that the driver was what the applicant considers to be a militant Muslim however that does not mean that the Muslim man intended to kill [G] or that he did so for reasons of religion. Unlike the earlier incidents involving members of the applicant’s family, [G] was not doing anything overtly related to his religion when he was harmed. Thus, it seems unlikely that [G] was killed for reasons of religion.
On the basis of the newspaper article provided by the applicant, the Tribunal is prepared to accept that [S’s] business was burnt down. However, the article reports that the incident was the result of an accident and that the applicant’s brother himself viewed it as such. When the Tribunal put this to the applicant at the hearing he was unable to explain the discrepancy but merely stated that the factories of two other Christians had also been burnt down. The Tribunal is not satisfied that this establishes that his brother’s factory was burnt down by militant Muslims in retaliation for his brother’s refusal to pay them money. The Tribunal considers that the applicant embellished the incident and therefore does not accept that his brother [S] had the problems with Muslim persons which the applicant’s claims he had.
The presiding member found the applicant’s evidence about his business losses due to government discrimination “unconvincing”. But she found his evidence in relation to his remaining claims “most problematic”. After reviewing the difficulties she had with the applicant’s oral evidence at the hearing the presiding member continued[9]:
Taking into account the above problems with the applicant’s evidence collectively, leaves the Tribunal in no doubt that the applicant was not being truthful in relation to the incidents which he says occurred to him, his wife and children from September 2000. In reaching this conclusion the Tribunal has taken into account the evidence of [Ms M], the documentary evidence supplied by the applicant and further information obtained by the Tribunal about that documentary evidence.
The Tribunal accepts [Ms M] as a witness of truth. However, the evidence she gave about the applicant, his wife and children was based on what was conveyed to her by the applicant and his family. [Ms M] did not claim to have personally witnessed any of the harm allegedly inflicted upon the applicant, his wife or children.
[9] court book, page 260
The presiding member then discusses the police officer’s statement of 9 February 2002 and concludes that the statement:
…simply conveys what the applicant reported to the police officer and the officer does not attest to the truthfulness of the assertions made by the applicant, specifically who damaged the car and tore the applicant’s clothes or why.
The presiding member also discusses the letter from Father Antonios (a Coptic priest) but, in effect, dismisses it as hearsay. The presiding member found the limited response received from the Australian Coptic Federation unhelpful. The presiding member accepted the contents of another letter provided by Reverend Father Hanna but again dismissed it as hearsay. The presiding member went on[10]:
The Tribunal accepts the statement made by a priest in Egypt but as already stated the Tribunal has accepted that the applicant’s claim about his father’s funeral and is prepared to accept that the applicant’s brother died as a result of a being hit by a car driven by a Muslim. The priest’s statement that the applicant is in danger if he returns to Egypt and his family is suffering is not specific about the nature of the danger or the suffering of the applicant’s family and cannot be elucidated any further because the priest wishes to remain anonymous.
[10] court book, pages 261-262
The presiding member concluded that while she did not draw any adverse inferences from the testimony of the applicant’s witnesses and the documentary evidence provided by individuals in support of the applicant’s claims, neither did that evidence assist the applicant’s case or overcome the problems the presiding member had with the applicant’s own evidence. The presiding member continued[11]:
These problems have led the Tribunal to conclude that the incidents [the applicant] claims occurred to himself, his wife and children from September 2000 were embellished or invented by the applicant to strengthen his claim for protection. The Tribunal therefore does not accept those claims. Specifically, the Tribunal does not accept that the applicant distributed Bibles and Christian pamphlets at his shop or that his shop was broken into and goods stolen for doing so; or that he, his wife or children have been harmed by Muslims; or that his car was damaged by Muslims for reasons of religion; or that he was mistreated by the authorities as he claims. Therefore, the Tribunal does not accept that the applicant was persecuted in the past because he is Coptic.
[11] court book, page 262
The presiding member then considered the risk of future harm. She found that the Egyptian government had taken steps in recent years to constrain the actions of militant Muslims and found that the incidents involving the applicant’s father, his two brothers and brother-in-law occurred “years ago before the government’s cracked down on militant Muslims” and were thus not indicative of a future risk of harm to the applicant. The presiding member concluded:
Given the independent evidence and the fact that the Tribunal does not accept that the applicant was persecuted in the past because he is Coptic, the Tribunal finds that there is not a real chance that he will be persecuted in the future for that reason. Therefore, finds that the applicant does not have a well-founded fear of persecution in Egypt for a Convention reason or reasons. [12]
[12] court book, page 262
A number of things are apparent from that survey of the reasons for RRT decision. First, the applicant had made detailed and well supported claims that required and received serious consideration from the RRT. Secondly, the presiding member accepted that the applicant’s family suffered serious harm in the past and that there was a religious motivation for at least some of that harm. However, the presiding member was unwilling to accept the claims of more recent harm or the claims relating specifically to the applicant, his wife and children. Further, it is clear that in considering all of the applicant’s claims corroborated by Ms M’s evidence, the presiding member took into account the evidence by Ms M. The presiding member drew a distinction between matters about which Ms M had direct knowledge and matters about which she did not. The presiding member accepted Ms M’s evidence but discounted her evidence to the extent that she was simply conveying what she was told or the emotions she observed, without personal knowledge of the cause. I see no error at all in this approach. The evidence of Ms M was in no sense overlooked. Neither did the presiding member misunderstand Ms M’s evidence. I reject the first ground in the amended application and agree with the Minister’s submissions about that ground set out above at [31].
Likewise, I reject the second ground in relation to the police officer’s report. The assertion that the report was misunderstood or overlooked is not supported by the RRT reasons. Again, I agree with the Minister’s submissions at [31] above. The applicant detracted from the usefulness of the police officer’s statement by stating in his oral evidence that the police report was presented for “insurance or tax purposes for defects in his car”. This appears to have suggested to the presiding member that what the applicant told the police at the time was not reliable. The presiding member accepted the police officer’s statement for what it was (evidencing the report made by the applicant) but did not accept that the report was evidence of the truth of the statements contained in it. It is true that the presiding member concluded that she did not draw any adverse inferences from the documentary evidence presented but ultimately, it came down to a question of weight. The presiding member was entitled to give greater weight to the applicant’s oral evidence (which supported the adverse credibility findings made by the presiding member), than the documentary evidence, which provided corroboration of the applicant’s claims. A different presiding member may well have reached a different conclusion but that it not the point. The manner in which the presiding member dealt with the police officer’s statement does not establish jurisdictional error.
The more significant question is whether the presiding member should have considered the applicant’s claims of recent harm to him, his wife and children as if they were true. The presiding member did not do so. The Minister contends that, having made an unequivocal adverse credibility finding[13] in relation to those claims, the presiding member did not need to do so. However, on a reading of the findings and reasons of the RRT as a whole, the presiding member has, in my view, adopted an ambivalent attitude to the reliability of the applicant’s claims. At page 257 of the court book the presiding member concluded that the applicant was not “an entirely credible witness”. In fact, the presiding member went on to accept a considerable portion of the applicant’s claims in relation to past harm suffered by his family. Secondly, on page 262 of the court book the presiding member states that her credibility concerns over the applicant’s oral evidence, which outweighed the supportive testimony of others and the supportive documentary evidence, led the RRT to conclude that the incidents the applicant “claims occurred to himself, his wife and children from September 2000 were embellished or invented by the applicant to strengthen his claim for protection”. This is an important statement. The presiding member was leaving open the question of whether the claims which she had earlier said the applicant gave untruthful evidence about were invented or merely embellished. If they were merely embellished they must have had some basis in fact. Importantly, while the presiding member clearly rejected the applicant’s oral evidence about the post 2000 claims, she did not clearly reject the claims themselves.
[13] at court book, page 260
The evidence of Ms M, the Coptic religious figures and the police officer’s statement were all supportive of the applicant’s claims of recent harm to himself, his wife and children having a basis in fact. This would support a conclusion that the claims were not invented although they may have been embellished. The embellishment of claims which have a basis in fact is to be expected where applicants are seeking protection in fear of their lives. Such embellishment is not in itself a reason for rejecting claims[14]. On a fair and complete reading the applicant’s claims were in part accepted by the RRT and in the remainder, somewhat inconclusively rejected. In my view, based upon the reasoning of the Full Federal Court in Minister for Immigration v Rajalingham (1993) 93 FCR 220 this is a case where the uncertain state in which the RRT ultimately left the applicant’s claims rendered it necessary for the presiding member to consider what the position would be if she had been wrong in rejecting the claims that she had found were embellished or invented. In my view, a fair reading of the reasons for decision of the RRT as a whole leads to a conclusion that the RRT must have had real doubt about the truth on material questions of fact. That explains the great effort taken by the RRT to test the supportive material, the inconsistent statements about the reliability of the applicant’s evidence, and the somewhat unsatisfactory manner in which the RRT dealt with the supportive and corroborative evidence. Looked at thoroughly and globally, a fair minded observer in my view could not conclude that the presiding member was so certain that the claims of post 2000 harm were fabricated that they could be discounted entirely. Rather, it was distinctly possible that the applicant’s claims had a basis in fact (as was evidenced by the applicant having complained about the harm he suffered whilst still in Egypt) and that those claims needed consideration on the hypothetical basis that they could be true. The error of omission by the RRT is sufficient to establish jurisdictional error warranting the provision of relief in the form of constitutional writs of certiorari and prohibition. I will so order.
[14] Abebe v Commonwealth (1999) 197 CLR 510 at [191] per Gummow and Hayne JJ; Minister for Immigration v Rajamanikkam (2002) 210 CLR 222 at [91] per Kirby J; SZFVL v Minister for Immigration [2005] FMCA 991 at [28]-[29].
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 September 2006
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