SZGKW v Minister for Immigration

[2006] FMCA 1819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGKW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1819

MIGRATION – Review of decision of RRT – credibility – where Tribunal makes findings that are consistent with the known facts.

Migration Act 1958, s.91R

Applicant: SZGKW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1389 of 2005

Judgment of: Raphael FM

Hearing date: 27 November 2006

Date of last submission: 27 November 2006

Delivered at: Sydney

Delivered on: 27 November 2006

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1389 of 2005

SZGKW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt.  He arrived in Australia on 28 September 2004 with his brother.  On 12 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 6 January 2005 a delegate of the Minister refused to grant a protection visa and on 26 January 2005 the applicant applied for review of that decision.  The applicant attended a hearing before the Refugee Review Tribunal together with his migration agent.  On 30 March 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 20 April 2005.

2. The applicant and his brother come from a Coptic Christian Egyptian family.  His parents are still alive and living in Cairo.  He had two sisters.  He claimed that one of his sisters had been kidnapped by Muslim fundamentalists and made to convert to Islam.  He claimed that his father was involved in their village in disputes between Christians and Muslims and had at one stage been charged with, but acquitted of, the murder of a Muslim woman.  Because of the problems involved in that accusation the family moved to Cairo where the father purchased a shop.  As the sons grew into manhood they became concerned at the charges that had been laid against their father and sought to discover more about them.  That, they say, brought them into conflict with the security authorities.

3. The applicant claimed that he and his brother had been called to internal security on a number of occasions during 2001 and 2002 and he had been detained for three days in July 2003 for involvement with his father’s attempts to support persons who had converted away from Islam to Christianity.  In September 2003 he claimed that one of his sisters was kidnapped by a fundamentalist group from their original village.  She contacted the family in January 2004 and told them that she had been forced to convert to Islam at a mosque in Cairo. 

   
   

   The applicant and his brother spent considerable time looking for their sister.  This activity came to the attention of the religious authorities and the police in July 2004.  The applicant and his brother were told that a case was to be brought against them for causing religious tension.  They left Egypt in September 2004.

4. The applicant told the Tribunal that he had travelled out of Egypt on two occasions before leaving for Australia.  In June 2003 he travelled to Russia for about a week and in June 2004 he and his brother travelled to Cyprus.  The Tribunal questioned the applicant closely about these visits and they formed an important part of the grounds and reasons that the Tribunal advanced for not being satisfied that the applicant had a well-founded fear of persecution for the Convention reason of religion. 

5. The visit to Russia, which took place in June 2003, took place before the kidnapping of the sister but after the problems that the applicant experienced as a result of his investigations of his father’s activities.  When the applicant was questioned about why he returned to Cairo he gave what some might consider to be a perfectly reasonable explanation, namely that he did not feel under such pressure at the time that he could not return to his homeland. 

6. The applicant was also questioned about his visit to Cyprus which took place in June 2004.  The applicant claimed that he went there with his brother to undertake legal research which might assist them to recover their lost sister.  The timing of the visit was only shortly after he claimed to have been detained by force and threatened, beaten and abused.  It was, however, before the applicant claimed that he was told that a case was to be brought against him and his brother. 

7. In its findings and reasons at [CB 75] the Tribunal says:

   “The applicant’s explanation for not leaving Egypt until September 2004 was that his sister was kidnapped in September 2003 and he and his brother were looking for her and could not leave without finding her.  He said that they only became afraid when Muslim fundamentalists threatened to commence a case against them, alleging that they were trying to get their sister to convert back to Christianity.  The applicant said that after they returned from Cyprus, which was about 3 July 2004 they were told a case was to be brought against them for causing religious tension.  In the Tribunal’s view these claims are not consistent with the evidence that the applicant did not leave Egypt until 28 September 2004; if the applicant was genuinely afraid for his safety, in the Tribunal’s view he would have departed earlier.  His explanation that he had a lot of things to attend to including the leasing of the family business is not accepted by the Tribunal as a plausible reason for this delay, given that he had already had a valid passport and his father remained in Cairo, where he still resides with the applicant’s mother and one sister.  The Tribunal does not accept that the father resides with the applicant’s mother and one sister.  The Tribunal does not accept that the father could not attend to matters involving the leasing of the family business.  In addition the applicant remained living safely in the family home in Cairo for about three months until the time he came to Australia; also he left his country legally without difficulty.  There is no persuasive evidence before the Tribunal that there is a case pending or commenced against the applicant in his country for the reasons he claims.”

8. In the written application for a protection visa it is stated that at the end of May 2004, when they were detained, the applicant and his brother were told that legal proceedings were to be brought against them for causing religious tension.  In the Tribunal’s view these claims are not consistent with the evidence that the applicant did not leave Egypt until 28 September 2004.  If the applicant was genuinely afraid for his safety in the Tribunal’s view he would have departed earlier.  His explanation that he had a lot of things to attend to, including the leasing of the family business, is not accepted by the Tribunal as a plausible reason for this delay given that he already had a valid passport and his father remained in Cairo where he still resides with the applicant’s mother and one sister.

9. The Tribunal does not accept that the father could not attend to matters involving the leasing of the family business.  In addition, the applicant remained living safely in the family home in Cairo for about three months until he came to Australia.  He also left his country legally without difficulty.  There is no persuasive evidence before the Tribunal that there is a case pending or commenced against the applicant in his country for the reasons he claims.

10. Whilst the Tribunal’s reasons do reveal a certain opacity, particularly in the paragraph that commences on page 74 and concludes on page 76 from which I have extracted the germane reasoning, it is clear that the Tribunal has based its failure to be satisfied upon an interpretation of the evidence which was open to it, even if in some respects it might not have been an interpretation that another Tribunal would have given it. Another Tribunal may have accepted the applicant’s argument that he did not fear persecution as defined by s.91R of the Migration Act 1958  (the “Act”) until it became clear to him that he was likely to be the subject of charges resulting from what the authorities may have considered to be his meddling in the affairs of his sister.

11. In the grounds contained in the application for judicial review the applicant cites four matters upon which he considers the Tribunal fell into jurisdictional error. The first relates to the Tribunal’s interpretation of the definition of persecution set out in s.91R. As Mr Reilly rightly points out, there are no particulars of this allegation and s.91R was not really discussed in the context of the applicant’s claims but only in one of the early paragraphs found at [CB 67] in which the definition of persecution is contained. I have considered the relevant sections of that part of the decision and I am unable to see any serious error in the way in which s.91R is described and persecution is defined.

12. The second matter refers to the weight placed by the Tribunal on the two occasions that the applicant left and returned to Egypt. 

    
    

    The applicant argues that the Tribunal did not consider the evidence in relation to the reasons for return, in particular the time frame when the applicant feared serious harm.  I do not think that this is an argument which the applicant can successfully make against the Tribunal. 

    
    

    There is no doubt that the Tribunal did consider the matters that he had raised.  It did not accept them. 

13. The applicant had told the Tribunal of a history of involvement with religious authorities and the police which presumably he had referred to as giving the background to the real fear that he claimed to have once the authorities threatened him with action.  But some of the events that he had described as having occurred to him were of considerable seriousness and so it was open to the Tribunal to have doubts about the applicant’s credibility on this score when he voluntarily returned to a country in which he had been the subject of the claimed discrimination.  The Tribunal, in the final part of the extract which appears above, also provides a logical and coherent reason for a lack of credibility about the applicant’s delay in departing Egypt which cannot be impugned by this court.

14. The third matter raised by the applicant in his application is that the Tribunal questioned the credibility of the applicant in the absence of any inconsistencies.  This is not a fair comment in the light of the matters raised by the Tribunal which did consider that there were inconsistencies in the applicant’s story.  The fourth matter is that the Tribunal did not consider all the evidence given in relation to the return from Cyprus.  The Tribunal did consider the evidence and having considered it came to the view that it did not indicate persons who had a well-founded fear of persecution.  Finally, the applicant argues that he gave consistent evidence with his brother yet little weight was attached to such evidence.  The Tribunal explains this at [CB 76] by relying on the fact that the applicant had agreed that he had listened to the tape of his brother’s interview.  

15. In the circumstances and having heard the applicant, who did not provide any new grounds or reasons other than those contained in the original application, I am unable to see that the Tribunal made a jurisdictional error in the manner in which it came to its decision in this case.  In those circumstances I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: