SZHLO v Minister for Immigration - [2008] FMCA 1630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1630

MIGRATION – Review of decision of RRT – where applicant claims evidence was overlooked – where applicant claims Tribunal erred in concluding he had no subjective fear because of delay in making application.

NAJT v Minister for Immigration & Anor [2005] FCAFC 134
VAAD v Minister for Immigration & Anor [2005] FCAFC 117
WAIJ v Minister for Immigration & Anor [2004] ALD 568
Thuraisamy v Minister for Immigration [1999] FCA 1632

First Applicant:

SZHLO

Second Applicant:

SZHLP

Third Applicant:

SZHLQ

Fourth Applicant:

SZHLR

Second Applicant:

SZHLS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1753 of 2008

Judgment of:

Raphael FM

Hearing date:

19 November 2008

Date of Last Submission:

19 November 2008

Delivered at:

Sydney

Delivered on:

19 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr Zipser

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicants to pay the First Respondent's costs assessed in the sum of $4,700.00, to be paid by the First and Second Applicants only.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1753 of 2008

SZHLO

First Applicant

SZHLP

Second Applicant

SZHLQ

Third Applicant

SZHLR

Fourth Applicant

SZHLS

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for the review of a decision of the Refugee Review Tribunal signed on 30 April 2008 and handed down on 13 May 2008 affirming a decision of a delegate to decline to grant protection visas to a husband and wife and three children of Egyptian nationality. The matter had been before the Tribunal on a previous occasion. Reference to the earlier decision was made in the Tribunal's reasons. The issues involved in the review have been helpfully narrowed by Mr Zipser who appeared on behalf of the applicant in an amended application filed in court on 19 November 2008.
The convention grounds upon which the primary applicant, the husband, seeks the protection of Australia would appear to be that of religion. The family are Coptic Christians. In about 1998 they left Egypt where both the husband and wife were working to move to Kuwait where the husband's family were living. The husband told that he had two jobs in Kuwait. He was an electrician for a government organisation and ran an import/export business which required him to return to Egypt from time to time. He told that as Coptic Christians he and his wife organised regular prayer meetings at their home in Kuwait. In about 1998 he met a gentleman known as Youssef who confided to the applicant that he had become a Christian and wished to join them at their prayer meetings. The family allowed Youssef to do this but after a while the home was raided and the applicant was taken into police detention although released fairly quickly. He was then given a notice expelling him from Kuwait, first after a period of

45 days but this period was later reduced to seven days.
The family returned to Egypt where they settled in Alexandria. The address at which they settled is a matter of dispute between the husband and the wife as is much of the evidence. After a short period the husband complained that they were attacked by Muslim fundamentalists who had apparently heard from Kuwait about the applicant's prayer meetings. He was accused of trying to convert a Muslim to Christianity and there were allegations that his home was attacked and even that his wife had acid poured upon her.
The husband claimed that after these incidents he and his family moved into the home of his mother-in-law where they hid for approximately nine months before leaving for Australia, even though they had obtained a visitor's visa some many months beforehand. The wife does not refer to going into hiding at her mother's. She said that they had their own flat and they sold it and so moved into her mother's house whilst they made other arrangements for their departure.
When the applicants arrived in Australia they first set out to obtain temporary business visas. When their visas were refused an application to review the decision was made to the Migration Review Tribunal. On 3 January 2003 that application was withdrawn. However, it was not until 29 July 2004 that a protection (Class XA) visa was applied for. The applicant says that some attempt to apply for a protection visa was made earlier but no record has been found.
The Tribunal questioned both the husband and the wife and a considerable proportion of the Tribunal's decision letter is taken up with the discrepancies between their evidence. It is these discrepancies that led the Tribunal to conclude that the principal applicant was not a witness of truth and that much of his story had been made up in order to enhance his application. One example only need be given and that was that the applicant, who was by now telling his tale for the third time, mentioned the possibility of female genital mutilation of his daughters as a ground for him wishing to leave Egypt. This had never been mentioned before either in his application, before the delegate or before the first Tribunal. The Tribunal concluded that this was a very serious matter and it was unlikely that it would have been passed over.
Having found that the applicant was not a credible witness for the reasons given at some considerable length, the Tribunal concluded that it could not be satisfied that the family would face a real chance of persecution for a Convention reason should they return to Egypt now or in the foreseeable future. Before it came to that conclusion it had sent a letter under s.424A to the applicant. This letter is found at [CB 110-118]. It sets out in detail all the concerns that the Tribunal had about the evidence given and in particular the discrepancies between the evidence of the wife and the husband. Each particular element is headed. There are two headings of relevance to this hearing today found at [CB 117]. The first being, "Delay in leaving Egypt," and the second, "Delay in applying for a protection visa." The applicant did not respond to the s.424A letter.
The first ground of application found in the amended application is that:
“The Tribunal found that "the fact that the applicant did not leave Egypt until nine months after obtaining his visitor visa indicates that he has created certain claims.” The Tribunal in making this finding overlooked the applicant's evidence that they lived with the wife's mother in this period.”
Mr Zipser calls this the "overlooked evidence issue." He points in his written submissions to the fact that the applicant had given evidence before the Tribunal that he and his wife had left their home after the incidents which caused him to fear persecution and went into hiding at the home of his mother-in-law. Mr Zipser accepts that this evidence was noted by the Tribunal in the grounds of decision but he argues that it was not taken into account when the Tribunal came to make up its mind and made the finding at [CB 148] that:
“The Tribunal is of the view that if the applicant's home had been raided by the Egyptian authorities and if fundamentalist Islamic Groups have threatened him and attempted to burn his house and kidnap his wife and daughters he would have left Egypt as soon as he obtained his visitor visa. The Tribunal is of the view that the fact that the applicant did not leave Egypt until nine months after obtaining his visitor visa indicates that he has created his claims that he left Egypt because the Egyptian authorities had been told by the authorities in Kuwait that he had converted a Muslim to Christianity and that Fundamentalist Islamic Groups had threatened to harm him.”
Mr Zipser accepts that if a Tribunal does not make reference to a piece of evidence this does not necessarily mean it was overlooked and that the Tribunal set out the evidence in its exposition. But he believes that the evidence is so relevant and so important to the Tribunal's reasoning process that if it was not referred to then the inference is that it was overlooked.
I cannot accept that this is really what occurred. At [CB 148] the Tribunal says:
“The applicant obtained his visitor visa on 20 September 1998. He didn't leave Egypt until June 1999. At the hearing of the Tribunal presently constituted when the Tribunal asked the applicant why he had delayed leaving Egypt he claimed, "He was waiting for the right time." His wife claimed that their delay in leaving Egypt was because they had to sell their unit after getting their visitor visa, she had to finalise her resignation from her place of employment and her husband was waiting for his retirement money from Kuwait.”
To my mind it is fairly clear from what is said above that the Tribunal has taken into account what the applicant said including his claim that he went into hiding but has rejected it as providing sufficient ground for not leaving a country in which he says he was being persecuted for nine months after he was able to do so. The Tribunal felt that the real reason why the family had not left was that given by the wife.
Mr Zipser has made reference to NAJT v Minister for Immigration & Anor [2005] FCAFC 134 where the Full Bench of Hill, Madgwick and Conti JJ accepted that a failure to have regard to evidence could well constitute jurisdictional error. But in that case as in VAAD v Minister for Immigration & Anor [2005] FCAFC 117 their Honours were referring to a failure to look at documents which would corroborate the story and not to a piece of oral evidence by one applicant that had been contradicted by another and which had been clearly set out and referred to in the Tribunal's decision.
The second ground put forward by the applicant was:
“One reason the Tribunal rejected the applicant's claims was because of their delay in applying for a protection visa. There was a good reason for the applicant's delay in applying for a protection visa. The Tribunal erred in finding otherwise.”
The applicant infers that the good reason for the failure to apply was that the applicant was waiting to see if his application for a business visa would be accepted. In fairness to Mr Zipser he does not put the matter so plainly because that would be merely an application for merit's review. What he says is that the Tribunal should have applied the dicta settled by Lee and Moore JJ in WAIJ v Minister for Immigration & Anor [2004] ALD 568 at [30]:
“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 in 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 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 MIMA [1998] 86 FCR 547-558.”
I was also referred to similar views expressed by the Full Court in Thuraisamy v Minister for Immigration [1999] FCA 1632 at [10].In my view the Tribunal shows quite clearly in its findings and reasons that it did take the steps required by those decisions. The Tribunal says when considering this matter in its findings and reasons after setting out the history of the applications at [CB 148]:
“The applicant has provided a number of explanations as to why he delayed applying for a protection visa.”
The reasons are then set out before the Tribunal came to the conclusion that:
“The Tribunal is of the view that the fact that the applicant waited to see if his application for a business visa would be successful before applying for a protection visa indicates that his claims that he left Egypt because the Egyptian had been told by the authorities in Kuwait that he had converted a Muslim to Christianity and fundamentalist Islamic Groups had threatened to harm him have been fabricated.”
The fact that the Tribunal made reference in the s.424A letter at [CB 117] to the delay in applying for a protection visa reinforces the view that I have taken that the Tribunal complied with its obligations and I am unable to assist the applicant by accepting Mr Zipser's submissions.
I dismiss the application. I order the applicant to pay the First Respondent’s costs assessed in the sum of $4,700.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: