SZFTV v Minister for Immigration - [2005] FMCA 1533

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTV v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1533

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Egypt on account of his Coptic faith.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10

Applicant:

SZFTV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 502 of 2005

Judgment of:

Emmett FM

Hearing date:

5 September 2005

Date of Last Submission:

21 September 2005

Delivered at:

Sydney

Delivered on:

18 October 2005

REPRESENTATION

The Applicant appearing for himself

Solicitors for the Respondent:

Mr A. Cox, Phillips Fox

ORDERS

That the Application filed 25 February 2005 is dismissed.
That the Applicant pay the Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 502 of 2005

SZFTV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 22 year old male who is a citizen of Egypt and is of Coptic faith.
The Applicant travelled to Australia legally from Cairo Airport, Egypt and under a passport issued in his own name.
The Applicant arrived in Australia on 17 July 2003.
On 5 September 2003 the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 8 September 2003 a delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention.
On 15 December 2003 the Applicant filed an application for review before the Tribunal. On 24 June 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 25 February 2005 the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision. The Applicant seeks review on grounds set out as follows:
“1. The Second Respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant.
2. The second respondent disregarded or did not consider documentary evidence specifically relating to the applicants claims.
3. The Second Respondent did no consider specifically relevant country information submitted.
4. The second respondent was not satisfied that rape or attempted rape did actually occur. This finding was based on a the fact that the Applicant claimed that he did not know for fact but disregarded all other related evidence rather than considering the facts on the balance of probability.”

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s claims

The Applicant’s claims centre around a Coptic girl (“S”) with whom the Applicant fell in love.
Essentially, the Applicant claims a well founded fear of persecution, by reason of his religion, from Muslims in Egypt who may seek to accuse him under Islamic law as the reason why S left her Muslim husband and disappeared.
The Applicant claimed that, sometime after meeting S in 2000, he commenced a relationship with her. In 2001 she disappeared for several days and returned to tell the Applicant that, although she wanted to marry him, she no longer could. S’s aunt told the Applicant that she was being forced to marry a Muslim man against her wishes.
The Applicant and his father then visited the local Sheikh who told them that S was to be married in a couple of weeks.
The Applicant stated that he and his father and S’s aunt then went to the police and told them that S was being forced into a Muslim marriage.
The police told them that there was no evidence of that assertion so there was nothing they could do.
S subsequently married the Muslim man (“K”). K’s father told the Applicant that S and K were very happy and that the marriage was their choice. The Applicant acknowledged that K’s father spoke to him about the matter “very gently”.
Sometime soon after, a member of the mosque attended by the Applicant told him that S’s marriage was forced after rape or attempted rape and provided the Applicant with S’s address. The Applicant attended several times at the address and was told by K to leave.
In March 2002, K and his father visited the Applicant at night demanding the return of S. The Applicant stated that he did not know S’s whereabouts. However, K accused the Applicant of kidnapping S.
The Applicant stated that the Sheikh, K and K’s father then visited his home and warned the Applicant’s father that hiding S was punishable in Islam. The Sheikh arranged for a more senior Sheikh to issue a similar warning.
Thereafter, the Applicant claimed that he and his father were visited frequently by unknown men from different mosques dressed as fundamentalists who threatened them. Shortly before Christmas, the unknown men introduced the Applicant to a lawyer who told the Applicant that “Islam requires that things are attempted initially without force…if that fails we then use the sword.” The Applicant stated that the lawyer warned him that if he did not return S then he would be “accused under Islamic law”. Thereafter the Applicant left his home and went to live with his cousins until he left for Australia, arriving there on 17 July 2003.
Following the refusal of the delegate to grant a protection visa, the Applicant filed an application for review on 15 December 2003 claiming that his case was based on “religious persecution” rather than a personal dispute as found by the delegate.
The Applicant then attended a hearing before the Tribunal and gave oral evidence and written submissions following the hearing.
The Tribunal accepted that the Applicant had fallen in love with S who later married K. It also accepted as plausible that S may have been influenced to marry K.
However, the Tribunal was not satisfied, on the evidence before it, that S had been forced into the marriage by reason of sexual assault. The Tribunal had regard to the source of the Applicant’s information on this issue, namely, a man the Applicant met at the mosque who claimed to know what had happened.
The Tribunal did not accept that the Applicant had suffered any serious harm as contemplated by s.91R of the Act, in that he had never been physically assaulted or harmed in any way.
The Tribunal accepted that the Applicant had been requested to attend an investigation hearing. The Tribunal found that such a request, in the circumstances, was part of a proper legal procedure. The Tribunal was not satisfied that the request to attend a hearing was harm as contemplated by the Act.
In considering whether there is a real chance of persecution in the reasonably foreseeable future, the Tribunal was careful to recognise that there need not be a finding of past harm to find that there is a real chance of future harm and that past harm is merely a guide to the future. However, the Tribunal noted that neither the Applicant nor any member of his family had suffered any Convention related harm. The Tribunal was not satisfied that “no Egyptian law can protect against charges of Islamic law”, as claimed by the Applicant.
The Tribunal noted that the independent country information before it demonstrated that, although there are areas of concern, the Constitution provides for an independent judiciary, fair trial and prohibits arbitrary arrest.
For those reasons, the Tribunal found that there was no Convention related reason for why the Applicant could not return to Egypt and, on the basis of the evidence as a whole, it could not be satisfied that the Applicant had suffered any Convention related harm, nor accept that there is a real chance of Convention related harm occurring in the reasonably foreseeable future. The Tribunal concluded that it was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason.

The proceeding before this Court

The Applicant represented himself before this Court with the aid of an interpreter.
He proceeded to address the Court on each f the 4 grounds identified by him in his Application for review filed 25 February 2005 in this Court.

Ground 1: The Second Respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s.91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant

The Applicant provided no further particulars in respect of this ground.
The Tribunal considered carefully the definition of persecution as set out in s.91R and made specific findings on the basis of the evidence before it in considering whether the Applicant had suffered harm as contemplated by the Act.
The Tribunal found that there had been no past physical harm to either the Applicant or members of his family. The Tribunal found that the requirement that the Applicant attend an investigation hearing was not sufficient to amount to the sort of harm contemplated in s.91R(2). The Tribunal noted that there need not be a finding of past harm in order to find that there is a real chance of future harm, and that the past is only a guide to the future.
The Tribunal also considered whether or not being suspected of kidnapping of S could lead to consequences amounting to serious harm. The Tribunal found that the Applicant had never been physically assaulted or seriously harmed in any way despite being suspected of kidnapping S. The Tribunal noted that the Applicant had been requested to attend a hearing which the Tribunal found to be “proper legal procedure in the circumstances”.
The question of whether or not the persecution feared by the Applicant involves serious harm is a question of fact. The findings made by the Tribunal were open to it on the material before it. Based on its findings, the Tribunal concluded that the Applicant’s fear was not well founded. Further, the Tribunal was not satisfied that the persecution claimed was for a Convention reason.
The Tribunal applied the correct test in considering whether there is a real chance of convention related harm occurring to the Applicant in the reasonably foreseeable future.
The Applicant claimed that no Egyptian charges can protect against charges under Islamic law. However, having considered the independent country information, the Tribunal found that the Constitution provides for an independent judiciary, fair trial and prohibits arbitrary arrest. It also noted that it appeared that an investigation had been commenced into S’s disappearance and found that such a procedure was appropriate in the circumstances.
The Tribunal concluded that there is no Convention related reason as to why the Applicant could not return to Egypt in that the Applicant had not suffered any Convention related harm, nor is there a real chance of Convention related harm occurring to the Applicant in the reasonably foreseeable future. These findings were open to the Tribunal on the evidence before it.
Accordingly, this ground is rejected.

Ground 2 - The Tribunal disregarded or did not consider documentary evidence specifically relating to the applicant’s claims

The Applicant did not provide any further particulars of this ground, nor written submissions prior to the hearing.
At the hearing before this Court, the Applicant tendered copies of 2 documents purported to be faxed by the Applicant to the Tribunal on 28 June 2004 and marked “Exhibit 1A” in the proceeding in this Court. These were the documents to which this ground refers. The documents are letters in similar terms to a letter considered by the Tribunal. The letter considered by the Tribunal was in the following terms:
“The Prosecutor
Bab Sharik
Mr Chief Police Station Bab Sharik
Greetings
For the purpose of the investigation of the case number 4212 in the year 2003 for misdemeanour Bab Sharik. We request Mr [APPLICANT SZFTV] resident [BLANK] for the purpose of a investigation hearing on 15 September 2003.
Thank you.
Signed and sealed”
Exhibit 1A refers to hearings on 1 September 2003 and 20 March 2004. The letter of 20 March 2003 concludes “Your attendance is compulsory”. Having regard to the sequence of the letters, those words in the last letter would seem to suggest that each further letter was sent because the Applicant did not appear on the date nominated in each previous letter for the investigation hearing. The case number and contents are otherwise the same as the letter to which the Tribunal did have regard.
It is common ground that Exhibit 1A was not before the Tribunal. A fax sent to the Tribunal on 28 June 2004 from the Applicant’s advisor stated that 11 pages including the cover page formed the fax and yet the fax only contained 9 pages. Further the front page of the fax identified 3 documents from the police station in Egypt and it is apparent that only one of those documents was attached. The Applicant’s advisor’s fax to the Tribunal referred to the 3 letters as attachments without any further reference or submission.
There cannot be jurisdictional error, or error of any sort, on the part of the Tribunal to have failed to give consideration to documentary evidence that it did not have before it.
On the other hand, there could be a denial of procedural fairness if the Tribunal knew that the Applicant had endeavoured to provide the Tribunal with further documentary evidence, knew that it had not received that further documentary evidence, knew or ought to have known that the Applicant believed that the Tribunal had received the additional documentary evidence, and the Tribunal failed to inform the Applicant that it had not received the additional documentary evidence. Had it done so the Applicant would have had a further opportunity to provide the additional documentary evidence. However, the documentary evidence was only evidence that the police required the Applicant to attend an investigation hearing in relation to case number 4212 of 2003 relating to a misdemeanour.
The Tribunal, on the basis of the documentary evidence it did receive from the Applicant, accepted that the Applicant had been requested to attend for the purpose of an investigation hearing. There was no unfairness simply because the Tribunal did not have further evidence that the Applicant had been requested to attend an investigation hearing.
The Tribunal was not satisfied that, by being requested by the authorities to attend an investigation hearing on 15 September 2003, the Applicant had suffered harm as contemplated by the Act. The Applicant contends that the Tribunal may have been satisfied that there was a risk of harm if it had been aware that the Applicant had received 3 requests, the last requiring the Applicant’s compulsory attendance, to attend an investigation hearing.
The Applicant did not provide any evidence as to how the documents came into the possession of the Applicant, to what “misdemeanour” they relate, any steps taken by the Applicant as a result of receiving the documents or to what legal process they relate. The Tribunal appears to have considered the letter requesting attendance at an investigation hearing on 15 September 2003, as relating to a police enquiry into the disappearance of S. Moreover, the Tribunal found that the request to attend an investigation hearing on 15 September 2003, was “proper legal procedure in these circumstances”.
The Applicant’s claim was of a well founded fear of persecution for reason of his religion and that the Applicant was required to attend an investigation hearing.
The Applicant’s claim was not that he received 3 requests to attend an investigation hearing, as opposed to receiving one request. This is consistent with the Applicant’s advisor not making any submission in respect of the 3 requests to attend.
Further, there is no evidence to suggest that the documents requiring attendance at an investigation hearing were in any way sent to the Applicant discriminatorily or for any other Convention related reason. Indeed the Tribunal found that “by continuing to attempt to see the young girl despite her marriage, the applicant gave an impression of not wanting to give up which would have raised reasonable suspicions that he may have had something to do with her disappearance.”
The relevant claim made by the Applicant was that, by being required to attend an investigation hearing, about which there is no other evidence, the Applicant suffered harm or that there was a real chance in the foreseeable future that he would suffer harm if he were to return to Egypt. The Tribunal did not accept that claim. The Tribunal noted that the investigation of S’s disappearance and the requirement of the Applicant to attend an investigation hearing was the only evidence the Tribunal had before it of any persecution of the Applicant.
Having considered and made findings with respect to both past harm and whether there was a real chance that the Applicant would suffer persecution in the reasonably foreseeable future were he to return to Egypt, it was open to the Tribunal to conclude, as it did, that “there is no Convention related reason as to why this applicant could not return to Egypt.”
The Applicant never made a claim before the Tribunal that, by receiving 3 requests to attend an investigation hearing, first on 1 September 2003, then on 15 September 2003 and then on 20 March 2003, in respect of the same matter, he suffered Convention related harm.
Accordingly, this ground is rejected.

Ground 3 - The Second Respondent did not consider specifically relevant country information submitted

The Applicant submitted that the Tribunal should have accepted the country information submitted by him in his post hearing submission and that the Tribunal erred in failing to make its findings in accordance with that material.

It is clear that the Tribunal considered the post hearing submission and referred with particularity to the material in its decision.
The Tribunal also had regard to other independent country information that it identified in its decision.
It is a matter for the Tribunal what independent country information it accepts (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
Further, the Tribunal was not bound to make findings in accordance with the material provided by the Applicant and was entitled to make findings on the independent country information before it.
The Tribunal had particular regard to the Applicant’s claim that if he were to return to Egypt, “no Egyptian law can protect against charges of Islamic law”. The Tribunal concluded that, although there are areas of concern in Egypt, that the Constitution provides for an independent judiciary, fair trial and prohibits arbitrary arrests.
It was open to the Tribunal to make the findings it made in respect of the Applicant’s submissions on relevant country information and make findings in accordance with the independent country information identified in its decision.
Accordingly, this ground is rejected.

Ground 4 - The second respondent was not satisfied that rape or attempted rape did actually occur

The Applicant claimed that the Tribunal erred by not finding that S was the victim of a rape or attempted rape. The Applicant contended that the Tribunal disregarded all other related evidence rather than considering the facts on the balance of probability. The Tribunal was not prepared to accept that the rape or attempted rape had occurred when the Applicant’s source was from a man from his mosque who told him that such had occurred and the Applicant himself had no first hand knowledge. The Tribunal was entitled not to accept that evidence, in the circumstances.
Again these are questions of fact. It was open to the Tribunal to make the findings that it made, on the evidence before it, in respect of the Applicant’s claim that the girl had been a victim of rape or attempted rape.
Accordingly, this ground is rejected.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act, it is a privative clause decision and this Court has no jurisdiction to interfere.
Pursuant to s.477(1A) of the Act an application for judicial review must be filed with this Court within 28 days of notification of the Tribunal’s decision. The Application in this case does not comply with this section and the Application is therefore incompetent.
The Application filed 25 February 2005 is dismissed with costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Riddle

Date: 18 October 2005