SZKLR v Minister for Immigration
[2008] FMCA 548
•1 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 548 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to consider claims made by the applicant – whether the Refugee Review Tribunal made findings in the absence of any evidence – whether the Tribunal was obliged to consider the what if it is wrong test. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 75 ALD 630 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 Federal Court in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455; 68 ALD 69; [2002] FCA 455 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCR 719 |
| Applicant: | SZKLR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1111 of 2007 |
| Judgment of: | Emmett FM |
| Hearing dates: | 31 March 2008 & 2 April 2008 |
| Date of last submission: | 2 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Ms E. Biok, Legal Aid Commission |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Mr P. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1111 of 2007
| SZKLR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 February 2007 and handed down on 8 March 2007.
The Applicant claims to be from Egypt and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 14 September 2006 having departed legally from Borg El Arab Airport on a passport issued in his own name and a visa issued on 20 July 2006.
On 22 September 2006, 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 Act.
On 7 November 2006, the Department received a statement from the Applicant in support of his visa application. The Applicant stated that on 14 April 2006 in Alexandria he witnessed his neighbour killed outside the local church. The Applicant stated that he informed police he was a witness, however, when they asked him to go with them to the police station he declined. He stated he was told “not to talk and to go home.” The Applicant refused to obey the police orders and yelled at the top of his voice because of the “injustice inflicted on the Copts”. The Applicant stated that state security then approached him and an officer hit him in the face with the handle of a pistol causing him “permanent damage”. The Applicant stated that police told him “not to talk so the Copts in Alexandria do not get stirred up.”
The Applicant stated that armoured cars and police then arrived and isolated the area until the day of the funeral. The Applicant stated that a police officer told him that if he spoke he would be arrested and that he was forbidden from taking part in the funeral or he would be considered as a leader of the demonstration. The Applicant stated that about an hour later, the Governor of Alexandria and police declared that the neighbour who had been killed had died as “a result of angina pectoris and that the killer was mentally disturbed”.
The Applicant stated that the following day was the funeral and that the Applicant demonstrated “as an objection against the injustice inflicted on the Copts and the security and psychological stability and because of my grief for my neighbour”. The Applicant stated that the Egyptian government and the police tried to disburse the Applicant and the large number of supporters.
The Applicant stated that, following the funeral, he returned to the street where he lived to find police occupying the street and making enquiries about the Applicant and his place of work. The Applicant stated he proceeded to his place of work. However, before he reached his work 100 metres away, he met an employee of his office who told him the police had “totally broke into the office then closed it and sealed it with red wax to prevent entry into it.” The Applicant’s business was a customs clearing house.
The Applicant stated that “large numbers of Christian men were arrested” and the Applicant’s photo shown to neighbours.
The Applicant stated that the following day he left his home and rented a furnished a furnished flat outside of his area. The Applicant stated he “was overcome with fear and anxiety.” The Applicant stated that he then left the flat and moved to another area, following which, he arranged with a relative to leave Cairo and arranged to come to Australia. The Applicant stated that, between 16 April 2006 and when he arrived in Australia on 14 September 2006, he changed residences several times.
In support of his protection visa application, the Applicant had provided a newspaper article showing him at the entrance of the church.
On 29 November 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate noted that country information supported the Applicant’s claims of the killing of his neighbour.
The Delegate noted that both Muslims and Coptic Christians were arrested following the incident, however, found that there was no targeting of a specific group. The Delegate found there was evidence to suggest that the Applicant was being searched for reasons of his religion. The Delegate noted that the Applicant was able to leave Egypt unchallenged and, accordingly, found that the Applicant was not a significant adverse interest to the authorities.
The Delegate was unable to be satisfied that there was any “Convention based reason for persecution of the Applicant.”
On 20 December 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 26 February 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 April 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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. However, if the decision-maker is not so satisfied then the visa application is to be refused.
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.
Australia has protection obligations to a refugee on Australian territory.
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 Tribunal decision
In support of his review application, the Applicant provided further information in letters dated 29 January 2007, 6 February 2007 and 21 February 2007; and by facsimiles dated 5 February 2007 and 15 February 2007.
The Applicant’s claims before the Tribunal and the Tribunal’s reasons are accurately summarised by counsel for the Applicant in his written submissions as follows:
“4. The above claims were expanded upon in a statutory declaration of 25 January 2007 (CB 99-115-, in which the applicant also detailed abuse and discrimination to which he had claimed to have been subject throughout his life for reason of his Christianity. He also attended the Tribunal hearing where gave evidence consistent with that in his initial statement and statutory declaration.
5. At the hearing he produced two witnesses. One, a Mr Gayed, is a volunteer social worker, albeit unqualified (Transcript (T) 13) with the Coptic Christian Church in Australia. He gave evidence that he had made enquiries of people in Egypt who had told him that the applicant’s office had been sealed with wax, and a police stamp was imprinted on the wax (T 14-15). He also gave evidence that those who were witness to mistakes of the police are in danger (T 17).
6. The applicant’s advisor also made submissions to the effect that the applicant would remain of interest to the police because there could be charges of negligence against them, based on his evidence (T 45).
7. The Tribunal also had the benefit of detailed submissions and supporting documentation. In one of these submissions On 15 February 2007 it was submitted that (CB 189),
“… it is clear that [the applicant] fears harm from state forces against whom he spoke out following their failing to take action against the man who attacked Copts leaving Church on 14 April 2006. He fears that they will harm him because of his political opinions as evident from his public expression and protest in relation to the events of 14th April and 15th April 2006 and because of his religion.
We submit that the evidence concerning the ongoing negligence charges brought against police who failed to take action against the attacker does not negate the threat that remains to [the applicant] of harm by other police or state security members who may seek to harm him because of both his past involvement during the 14th and 15th April 2006 and for the potential for him to give further evidence in relation to these charges in the future…”
THE TRIBUNAL DECISION
8. The Tribunal accepted that the applicant witnessed an attack on 14 April 2006 during which an elderly parishioner was stabbed (CB 252.6). It did not make any finding on the cause of the man’s death and speculated that the authorities wished to minimize the effect of the stabbing lest further damage be caused to the already fragile relationship between Muslims and Coptic Christians (CB 252.8). It was also not persuaded that the attacker was not mentally ill, as his actions could easily suggest that he did have psychological problems (CB 253.1).
9. The Tribunal also accepted that the applicant tried to “get hold of” the attacker and was threatened by the officer guarding the church (CB 253.2). It was not however convinced that the guard took this action because he was a Muslim. It speculated that there could be many reasons for the officer’s conduct, “…including incompetence, fear, judgment, security, etc.” It did not accept that the essential and significant reason for the officer’s conduct was based on religion (CB 253.5).
10. Also accepted was the claim that the applicant was asked to attend a police station to file a report, that he refused to do so and was hit by a police officer. He also refused police orders to go home as directed. However, the Tribunal found that the applicant had refused to assist legitimate police investigations (CB 253.8). It did not accepted that the harm that he suffered was essentially and significantly religiously based, or based on any other Convention ground (CB 253.9).
11. It also accepted that he took part in a demonstration on 15 April 2006, despite being “asked” by the police not to (CB 253.10). It was satisfied also that Muslims threw objects at demonstrators and that Christians were arrested. It was not satisfied, however, that the arrests were Convention related (CB 254.1).
12. It continued (CB 254.1),
“Whilst the Tribunal has serious doubts, the Tribunal accepts as being plausible that the applicant’s office had been sealed by the authorities. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that the harm suffered by the applicant was essentially and significantly religious based or related to any other Convention ground. The Tribunal is of the view that it is entirely plausible that this was for security reasons, not because of his religion and/or actual or imputed anti-authorities opinions. Arguably he disobeyed legitimate police orders.”
13. Having accepted the applicant’s essential claims it rejected the claim that he had moved from place to place after the incidents of 14th and 15th May 2006 (CB 254-5). It found itself not to be satisfied, at CB 255.7, that he was of any continuing interest to the Egyptian authorities.
14. Having made this finding the Tribunal rejected what it called, “peripheral claims” (CB 255-6). In its conclusion it said,
“Although the Tribunal has not been satisfied that the applicant is of any adverse interest to the authorities, the Tribunal accepts as being plausible that he may be called as a witness to give evidence in relation to the events of April 2006. However in consideration of the evidence as a whole, the Tribunal is satisfied that being called to give evidence under these circumstances does not constitute persecution, or serious harm, or is essentially or significantly related to a Convention ground. In consideration of the evidence as a whole the Tribunal is satisfied that if called to give evidence, it is not because the applicant is a Coptic Christian or is perceived to have any anti authorities political views, but because he had witnessed an incident. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant would be arrested simply for having witnessed the events of April 2006.”
15. It continued by saying that he could be arrested, but that would be for disobeying legitimate police orders (CB 257.7). Not was it satisfied that he would be persecuted for demonstrating or speaking out against the treatment of Copts.
16. It affirmed the decision under review”
The proceeding before this Court
The Applicant was represented before this Court by Mr Karp, of counsel. Mr Karp confirmed that he relied on grounds 1, 2, 3 and 5 of the amended application filed on 27 June 2007. Those grounds are as follows:
“1. The second respondent (the Tribunal) committed jurisdictional error by failing to address the applicant’s claim that he feared persecution at the hands of the police for because he was a witness to police negligence or incompetence – and thus for a political opinion that may have been imputed to him.
2. The Tribunal committed jurisdictional error by failing to consider claims that emerged on the evidence accepted by the Tribunal.
Particulars
(a) The applicant was assaulted by a policeman who was investigating the death of the elderly parishioner for reason of a political opinion, being one opposed to the police, which had been ascribed to him on the basis of his refusal to attend a police station, his refusal to go home when ordered to do so, and his insistence on attending the funeral.
3. The Tribunal made a finding that was not open to it and was made in the complete absence of evidence.
Particulars
(a) The finding that the sealing of the applicant’s office by the authorities could have been for security reasons
(b) That the actions of the police officer who threatened the applicant at a time when the applicant was seeking to apprehend a man who had just used a knife to attack members of the applicant’s Coptic Christian congregation could have been because of incompetence, fear, judgment or security.
5. The Tribunal failed to complete the exercise of its jurisdiction by asking itself whether it was wrong in suggesting that the reason that a police officer threatened the applicant at a time when the applicant was seeking to apprehend a man who had just used a knife to attack members of the applicant’s Coptic Christian congregation was because of incompetence, fear, judgment or security.”
Ground 1
Counsel for the Applicant did not proceed to make submissions clearly in accordance with the grounds as pleaded. I have endeavoured to set out below the various contentions and submissions made by counsel for the Applicant. I understand that the grounds as pleaded are subsumed in those contentions and submissions.
Counsel for the Applicant commenced his submission by first contending that the Tribunal had failed to consider a claim expressly made by the Applicant that he feared persecution from “other police officers or state security members who may seek to harm him because of both his past involvement during the 14th and 15th April 2006 and because of the potential for him to give further evidence in relation to these charges in the future.”
Counsel for the Applicant contended that the claim was articulated in the adviser’s submission dated 15 February 2007 and identified it as follows:
“The evidence concerning the ongoing negligence charges brought against police who failed to take action against the attacker does not negate the threat that remains for the applicant by other police officers or state security members who may seek to harm the applicant because of his involvement during the April 2006 incident and because of potential for him to be called to give evidence in relation to charges. Five officers are “proving their innocence” in relation to charges.”
Counsel for the Applicant also referred the Court to a transcript of the hearing where the adviser stated in relation to the newspaper article in respect of the events of 15 and 16 April 2006, that the Applicant is still of interest to the authorities and “At the second paragraph on the second column [the newspaper report], “Any one who believes that the strife on 54th Street ended last April had better reconsider.” We point to the fact that there is still this antagonism, and the fact that this antagonism continues suggests that [the Applicant] would remain of interest to the police officers, who perhaps would remain threats with further charges of negligence based on his evidence.”
Counsel for the Applicant submitted that the evidence of negligence charges by the police in failing to take action against the attacker who killed the Applicant’s neighbour was conduct witnessed by the Applicant and therefore is knowledge of the police of a fact known by the Applicant. Counsel for the Applicant submitted that such knowledge by the Applicant is capable of being construed as “a political opinion” (Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173 (“Ranwalage”)).
In the case before this Court, it is common ground, and I accept, that it was open to the Applicant to contend that he had made a claim of a well-founded fear of persecution by reason of his imputed political opinion arising from his knowledge of the negligent conduct of the police in failing to apprehend the attacker of his neighbour.
Counsel for the Applicant submitted that the Tribunal had erred by confining its consideration to a fear of harm by the Applicant that he may be called as a witness to give evidence in relation to the events of April 2006.
The Tribunal found that, if the Applicant was called to give evidence about the events of April 2006, it was not because he was a Coptic Christian or perceived to be imputed with any political opinion but because he had witnessed an incident.
The Tribunal was not satisfied that, in the circumstances, the Applicant would be arrested simply for having been a witness to the events in April 2006. The Tribunal found that, if the Applicant was arrested for refusing to cooperate with police and give evidence, that any such arrest would not be “essentially and significantly related to any Convention ground.” Further, the Tribunal found that being called to give evidence did not constitute persecution or serious harm.
Counsel for the First Respondent submitted that a fair reading of the Tribunal’s reasons discloses that the Tribunal was aware of such a claim and referred to it in terms. The Tribunal also referred to the Applicant’s adviser’s written submission dated 30 January 2007 in which the adviser stated that “the applicant has a well-founded fear of persecution on the bases of his religion and political opinions in relation to human rights issues affecting Copts Christians in Egypt, including his involvement in a demonstration against the lack of protection or recognition offered to Copts by the authorities against Islamic extremists, and “his political dissent and suspected anti-government position”.”
Counsel for the First Respondent submitted that a fair reading of the Tribunal’s reasons makes clear that the Tribunal was aware of the Applicant’s claim as articulated.
Counsel for the First Respondent submitted that the Tribunal addressed each of the factual matters underpinning the Applicant’s claims of a fear of persecution by reason of imputed political opinion and was not satisfied that any harm suffered was Convention related. Counsel for the First Respondent identified those facts and findings as follows:
“5. The facts relied upon by the Applicant to establish this claim were as follows:
(a) on 14 April 2006, the Applicant witnessed an attack on two Coptic Christians and spoke against state forces for their failure to take action against the man who perpetrated the attacks. As a result of his protests, the Applicant was hit by a police officer in the nose: CB 103-104;
(b) on 15 April 2006, the Applicant attended the funeral of one of the two Coptic Christians and participated in a further demonstration against the actions of the police. Christians participating in the demonstrations were attacked by Muslims: CB 107-108;
(c) after the Applicant returned from the demonstration, he found that the police officers and superintendents were occupying his street and was informed that the police had destroyed everything in his offices and taken all of the documents and money: CB108-109
(d) the Applicant then went into hiding. The Applicant also became aware that the police continued to make enquiries as to his whereabouts and to seek him for questioning: CB 109-114.
6. These four factual matters were the basis for the Applicant’s claim to have a well-founded fear of persecution arising from the alleged political opinion imputed to him by the police. They were each expressly dealt with by the RRT as follows:
(a) Paragraph (a); the RRT determined that the Applicant had clearly refused to assist in legitimate police investigations and did not accept that the harm suffered by the Applicant at the hands of the police were essentially and significantly religious based or related to any other Convention ground: CB 253.7-9;
(b) Paragraph (b): the RRT accepted that the Applicant had taken part in a demonstration on 15 April 2006 and that he did so despite being asked by the police not to. The RRT was not satisfied, however, that any arrests that had taken place of Christian protesters were Convention related: CB 253.10-254.1;
(c) Paragraph (c): the RRT accepted that the Applicant’s office had been sealed by the authorities, however did not accept that the harm suffered by the applicant was essentially and significantly religious based or related to any other Conventional ground. The Tribunal was of the view that it was entirely plausible that the sealing occurred for security reasons, in circumstances where the Applicant had disobeyed legitimate police orders: CB 254.2-3;
(d) Paragraph (d): the RRT was not satisfied that the Applicant had lived at different locations after 15 April 2006 in order to avoid harm, or indeed that he had continued to be of any interest to the Egyptian authorities, or that they had visited his home making enquiries or that they had sexually harassed his wife: CB 255.1-2.”
Counsel for the First Respondent referred the Court to WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 75 ALD 630 (“WAEE”) in support of her contention that the Court should not too readily draw the inference that the Tribunal had failed to consider the issue only from its failure to expressly deal with that issue in its reasons. In particular, “it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.” (per French, Sackville and Hely JJ at [47]).
In WAEE the Full Court of the Federal Court stated at [45] as follows:
“In conducting its review the tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is (s 36(2)(a) read with s 415(1)):
… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.”
In relation to ground 1, I accept as correct the submissions of the First Respondent. In doing so, I have considered the Applicant’s claims and the Tribunal’s findings in relation to these issues, as referred to below.
In considering the context of the conduct of the police it is helpful to set out in full the Applicant’s claims as made in his advisor’s letter dated 29 January 2007. This letter was referred to by the Tribunal in terms. Relevantly, it is as follows:
“27. We were proceeding out of the Church. Uncle Noshy and Uncle Gusman was in front of me because they were old men. I was behind them. We got outside the Church near the entrance onto the Street. We all saw a man running towards our Church, holding two swords, yelling “Allah Akbar, Allah is great, Mohammad is the messenger of Allah, you are the infidels!”. He was running straight for us, not targeting any particular person, just aiming at all of the Christians coming out of the Church. He made contact with Uncle Noshy and Uncle Gunsman who were two middle aged men, and they were very badly injured by his sword. I call these people ‘Uncle’ out of respect, although they are not my relatives. When they fell down I just got past and I was endeavouring to hold him. Next door to the entrance of the Church is the post for the policeman assigned for protection. I saw him getting out of his post. He took his gun from his holster and I thought that he would naturally be asking the man to stop. But instead he put the gun against my forehead and said to me “Stay where you are!” which allowed the attacker to run away.
28. At this point I started shouting. When they heard my voice yelling, a large crowd developed from the surrounding buildings and people started shouting. Also by this stage most of the congregation had gathered around the entrance.
29. A large crowd gathered and we took the injured people to the Hospital of St Mark which is next door to the Church. I helped lift Uncle Noshy to the Hospital and after he had been delivered there. On my way out of the hospital I saw that police and state security had arrived at the front door of the Church. One police officer asked whether there were any witnesses.
30. I spoke up and said yes that I had seen it happen. Two other young men who had been right behind me during the incident then also volunteered to be witnesses.
31. I told the officer about everything that I had seen and they asked me to go to the police station. As he offered this, however, he said to me “But I’m asking you to shut up”. I asked “Why should I?”. I asked why the security had threatened me with a gun rather than going after the attacker. I shouted out: “Our voice will be heard and I will keep telling the truth”. By this point I was crying and very distraught. I went into the street and lay down in front of the oncoming cars which stopped traffic. From there I rang my friends asking them to bring their friends to inform them about what happened. A big crowd developed.
32. When I was lying on the street two members of the state security came and grabbed me and carried me to the Church door. They said to me “I think you should come with us to get your statement”. At that point I knew if I went with them I might not be coming back, so I refused to go.
33. I knew myself that the most powerful security agency in the world is the Egyptian Police Service. I knew for certain that I would be beaten and tortured if I went to the police.
34. A picture of me surrounded by these Security men is attached. The man with his back to the picture said to me “Shut up or we will detain you!”
35. After that, while I was about to reply to him, he hit me in the face with the handle of his gun and a lot of blood started coming from my nose. He repeated his threat that he will be detaining me. I said to him “You can’t do that you need to detain all these people. You should be detaining the attacker – the one who killed us!”
36. I still have a scar on my nose from this blow to my nose that I received from the State Security member on this occasion. Every time I see myself in the mirror I see the blood, and the incident, and what happened.
37. Just after I had been hit by this officer, news came from the Hospital that Uncle Noshy had died. The officer after hitting me with the gun said to me “You should just shut up not to upset all these Christians and cause a not. The head of the province or the Mohafes will be making a statement soon and if you don’t want to come with us to the police station at least go home and be quiet.”
38. While I was still in front of the Church I heard the radio through my mobile phone radio, a statement made by the head of the province. I was very interested to hear what the statement would be because I had been there myself and seen it for myself.
39. The head of the province announced over the radio around one hour after the stabbing, that Uncle Noshy died as a result of a heart attack and not as a result of being stabbed by the attacker. The official announcement minimised the incident completely: the attacker was mentioned but there was no mention of the attacker with two swords. The statement declared that the situation was calm and peace was imminent and that everything was okay, and there were no issues with Muslims and Christians.
40. When I heard the statement, all the oppression that I had endured as a Christian for years, was brought home to me. I became very upset. I started to shout with all the strength in my lungs and all of the friends which I contacted before and the people who arrived, then for what felt like the first time in history of Coptic Christians in Egypt, we stood firm in front of the police.”
The Applicant’s evidence is that, following the guard’s threat to the Applicant that he not pursue the attacker and the police rifle butt in his face, the Applicant continued to disobey police instructions in that he refused to leave the area and go home; would not be quiet; attended the funeral the following day having been instructed by authorities not to attend; and, was disruptive at the funeral.
Prior to the police hitting the Applicant in the face with the handle of his gun, the Applicant had refused to go with the police to provide a statement; had shouted out “our voice will be heard and I will keep telling the truth”; had lain down in front of the oncoming cars which stopped traffic; had rung friends to ask them to ring their friends to inform them about what happened; and was crying and very distraught, and refused to be quiet when asked. In the circumstances, it was open to the Tribunal to find that it was “entirely plausible that the officer did what he thought was the best action to take under the circumstances.”
Further, the Tribunal found that “the applicant clearly refused to assist in legitimate police investigations.” The Tribunal noted that, as a witness, the Applicant could have provided “invaluable information” and noted the Applicant’s reasons for refusing to co-operate included alleged fear. However, the Tribunal found that such a fear was inconsistent with the Applicant’s own evidence that for years he had worked with police without any incident. The Tribunal found that the Applicant’s refusal was not motivated by fear and found that the harm suffered by the Applicant at the hands of the police was not “essentially and significantly religious based or related to any other Convention ground.”
Those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
In the light of those findings, and in the light of the reference by the Tribunal in specific terms to the adviser’s submissions, which identified the claim as articulated in ground 1, I accept the submissions of counsel for the First Respondent that the Tribunal addressed each of the factual matters that underpinned the Applicant’s claim of a fear of persecution by reason of an imputed political opinion, being his knowledge of the police conduct. The Tribunal determined that either the factual matters did not occur or that the harm suffered was not Convention related.
In the circumstances, the claim as articulated by the Applicant that it contends the Tribunal failed to consider, is subsumed in the Tribunal’s finding of greater generality that any harm suffered by the Applicant in the past or in the future would not be “essentially and significantly related to any Convention ground.”
Accordingly, ground 1 is not made out.
Ground 2
Counsel for the Applicant submitted that on the evidence and material before the Tribunal a claim was clearly raised that the Applicant had a well-founded fear of persecution by police if he returned to Egypt because of a political opinion imputed to him by the police resulting from his remonstrations with police and contravention of their instructions.
Counsel for the Applicant submitted that the Tribunal found that the police actions were legitimate in respect of the instructions they gave to the Applicant. Counsel for the Applicant submitted that, even if the police instructions were not legitimate, the Tribunal had not considered whether the Applicant may have faced harm by the police because of an opinion imputed to him for opposing their orders, legitimate or not.
Counsel for the Applicant referred to the Applicant’s protection visa application where the Applicant stated that he told police “that what they did is an international criminal against the human being and I’m going to report it to the whole world.” Counsel for the Applicant also referred the Court to the transcript of the Tribunal’s hearing where a witness called by the Applicant stated that if the Applicant witnessed any mistakes from police “it is very dangerous for him.” Counsel for the Applicant also referred to the Applicant’s adviser’s letter dated 15 February 2007 in which the adviser stated that the Applicant feared harm from police because of his political opinion “as evident from his public expression and protest in relation to the events of 14th and 15th April 2006 and because of his religion.”
Counsel for the First Respondent contended that no such claim clearly arose on the evidence and material before the Tribunal and at no stage did the Applicant expressly claim to fear persecution from police because he had remonstrated with them and contravened their instructions.
Counsel for the First Respondent submitted that the Applicant’s conduct from the time he witnessed the attack on his neighbour and his interaction with the guard and the police was not consistent with a fear of harm from police because of his confrontations with them. These events are largely dealt with above in these Reasons from paragraphs 42 to 46.
Counsel for the First Respondent further submitted that the Tribunal had not accepted the Applicant’s claims of having gone into hiding. The Tribunal was not satisfied that the Applicant had lived at the various locations after 15 April 2006 in order to avoid harm, or because he was of any continued interest to the Egyptian authorities. Nor was the Tribunal satisfied that the authorities had visited his home making enquiries about him and sexually harassing his wife.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to the Applicant’s evidence of having gone into hiding following the events of 14 and 15 April 2006, however, found the Applicant’s evidence in relation to that claim to be “vague and lacked significant details, raising serious doubts about the veracity of the claims.”
The Tribunal noted in detail those aspects of the Applicant’s evidence that caused it concern and noted the matters it put to the Applicant and the Applicant’s responses. The Tribunal found that it was not persuaded by explanations offered by the Applicant.
Ultimately, the Tribunal was not satisfied that the Applicant had lived at different locations after 15 April 2006 in order to avoid harm or because he continued to be of any interest to the Egyptian authorities.
The Tribunal rejected the Applicant’s evidence that the authorities had continued to visit his home and had sexually harassed his wife.
In particular, the Tribunal noted that the Applicant did not tell the relation who he said helped him escape to Australia the reason why he was seeking assistance. The Tribunal was not satisfied about the Applicant’s explanation that he did so because he did not wish to “spoil his cousin’s visit and that he also felt that his cousin would have helped him without knowing about those incidents.” The Tribunal found that “it is difficult to accept that the applicant who is claiming to have pursued and to fear harm, would not tell a person from whom he is seeking assistance.”
The Tribunal had found that the Applicant had exaggerated a number of his claims to enhance his application for a protection visa. In making that finding the Tribunal noted that it had regard to the oral and written evidence and material before it. The Tribunal had regard to witnesses called by the Applicant and identified its concerns with their evidence.
In those circumstances, the Tribunal’s findings in relation to the Applicant’s assertion of having gone into “hiding” were open to it on the evidence and material before it and for which it gave reasons.
In summary, the Tribunal found that it was not satisfied that the harm suffered by the Applicant was Convention related; the Applicant continued to defy police instructions the day after the event at the funeral; the Tribunal did not accept that the Applicant went into hiding for the reasons claimed; and, objectively the Applicant’s conduct did not suggest any fear on his part from police.
Accordingly, I am not satisfied that any claim of a fear of a fear of harm from police because of the Applicant’s remonstrations with them and his contravention of their instructions is a claim that clearly arises on the evidence and material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [60]).
Accordingly, ground 2 is not made out.
Ground 3
Counsel for the Applicant contended that the Tribunal’s finding that the sealing of the Applicant’s office by authorities could not have been for security reasons was a finding made in the absence of any evidence.
The text of the Tribunal’s finding is as follows:
“Whilst the Tribunal has serious doubts, the Tribunal accepts as being plausible the applicant’s office had been sealed by the authorities. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that the harm suffered by the applicant was essentially and significantly religious based or related to any other Convention reason. The Tribunal is of the view that it is entirely plausible that this was for security reasons, not because of his religion and/or actual or imputed anti-authorities opinions. Arguably, he disobeyed legitimate police orders.”
Counsel for the Applicant submitted that there was no relationship between disobeying police orders and the sealing of the Applicant’s office and therefore it was not open to the Tribunal to conclude that the office was “sealed for security reasons”.
Counsel for the First Respondent submitted that if there is no evidence to support links in a chain of causation then that is jurisdictional error. In support of that proposition counsel for the Applicant referred to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 (“SFGB”) at [19]:
“If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error”
Counsel for the First Respondent referred the Court to SFGB at [20] where the Full Court of the Federal Court went on to say:
“… If there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence.”
Counsel for the First Respondent submitted that a fair reading of the Tribunal’s reasons makes clear that the Tribunal’s finding was open to it on the evidence and material before it.
Counsel for the first Respondent referred to the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141, in particular, at [34] as follows:
“On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
Counsel for the First Respondent also referred the Court to WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 where Wilcox J stated that, although there is no doubt that any administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact that lacks any supporting evidence, “it is difficult to apply it to a rejection of evidence.”
Counsel for the First Respondent also submitted that the finding is more in the nature of an inference and that such inference was not so unreasonable that no reasonable Refugee Review Tribunal could have drawn it. Counsel for the First Respondent submitted that even if such a finding was unsound or illogical, it was not error going to the Tribunal’s jurisdiction (W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [33] per the Full Court of the Federal Court of Australia).
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that there is no link in the evidence before the Tribunal and its finding that the sealing of the Applicant’s office may have been for security reasons.
A definition of “security” in the Macquarie dictionary includes an intention to preserve the status quo.
There is sufficient evidence and material before the Tribunal for the Tribunal to find that the Applicant was disobeying lawful instructions. The Tribunal makes clear that such sealing may have been done because the applicant “disobeyed legitimate police orders.” The applicant’s office was a customs clearing house.
I am not satisfied that such a finding was based on a complete lack of evidence or that it was a finding that was so unreasonable that no reasonable decision maker could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).
Accordingly, ground 3(a) is not made out.
Ground 3(b) relates to the Tribunal’s finding that the police officer who threatened the Applicant when the Applicant was seeking to apprehend the attacker may have done so “because of incompetence, fear, judgment or security”. Counsel for the Applicant contended that this finding was made in the complete absence of evidence.
Counsel for the Applicant submitted that for the Tribunal to speculate that the guards threat to the Applicant could have been for “incompetence, fear, judgment or security” exceeded the limits of credulity. Counsel for the Applicant submitted that “it is inconceivable that a guard at a church could fail to try to apprehend a man who has just attacked parishioners and instead threaten a person who is attempting to apprehend the attacker for these reasons other than to protect the attacker.”
However, counsel for the First Respondent referred to the adviser’s letter in support of the Applicant’s review application, dated 25 January 2007. In that letter the adviser stated that the Applicant said that, immediately following the attack, the Applicant was endeavouring to hold the attacker and “next door to the entrance of the church is the post for the policeman assigned for protection. I saw him getting out of his post. He took his gun from his holster and I thought that he would be naturally asking the man to stop. But instead he put the gun against my forehead and said to me “stay where you are” which allowed the attacker to run away.”
In my view, such conduct on the part of the guard in threatening the Applicant in such a way and telling him to stay put, is quite capable of supporting speculation that the guard’s conduct may have been for the reasons of the guard’s “incompetence, fear, judgment or security”.
A fair reading of the Tribunal’s decision makes clear that the Tribunal rejected the Applicant’s assertion that the guard must have been a Muslim because he did not shoot the attacker. The Tribunal found that the guard’s conduct in respect of the Applicant was not Convention based.
Those findings were open to the tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, ground 3(b) is not made out.
Ground 5
Counsel for the Applicant contended that the guard’s motivation for threatening the Applicant to prevent him from chasing the attacker was a finding attenuated by sufficient doubt by the Tribunal that the Tribunal was required to consider what if it was wrong in respect of its finding of the motivation of the guard.
Relevantly, the Tribunal’s finding was as follows:
“The Tribunal accepts as being plausible that the applicant tried to get hold of the attacker and that the officer guarding the Church threatened the applicant. The applicant was adamant that the officer must have been a Muslim because he did not shoot the attacker. The applicant did not in fact know about the officer’s religion; he formed a conclusion on the basis of the officer’s perceived reasons for his actions. The Tribunal is not convinced and the Tribunal holds the view that there could be many reasons for the officer’s conduct, including, competence, fear, judgment, security, etc. Needless to say shooting a person is a very serious action to take and it is entirely plausible that the officer did what he thought was the best action to take under the circumstances.”
It is common ground that findings relating to motivation are relevant to the Tribunal’s determination whether the Applicant had a well-founded fear of persecution for a Convention related reason. In Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986 (“Djuraj”) at [61] the Court found that a Refugee Review Tribunal committed jurisdictional error where it was not prepared to identify “what the motive was or might have been” for a particular act of violence.
Counsel for the Applicant submitted that the Tribunal’s language suggested it was speculating about various motives for the guard’s conduct which counsel for the Applicant submitted should lead one to conclude that the Tribunal had some doubt about what precisely the guard’s motivation was.
Counsel for the First Respondent submitted that language used by the Tribunal that it “did not accept” or “did accept” particular facts did not suggest doubt on the part of the Tribunal (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220; [1999] FCA 719 at [67] – [70], [80]).
A fair reading of the Tribunal’s decision in the case before this Court makes clear that the Tribunal’s finding, that the officer’s conduct in threatening the Applicant was not for a Convention reason, was not a finding attenuated by doubt. The fact that the Tribunal went on to speculate as to other possible reasons for the officer’s conduct does not, to my mind, support a contention that the Tribunal’s substantive finding that the officer’s conduct towards the Applicant was not religious based or related to any other Convention ground attenuated by any doubt.
Counsel for the First Respondent sought to distinguish the decision of Djuraj where the Court referred to the failure of the Refugee Review Tribunal to make a finding as to motivation, on the basis that the Refugee Review Tribunal in Djuraj was found to have made so few relevant findings that one could not be satisfied about the Refugee Review Tribunal’s conclusions.
In the case before this Court, a fair reading of the Tribunal’s reasons makes clear that it identified carefully and specifically all claims made by the Applicant, both in writing and orally. The Tribunal referred with great specificity to all evidence provided by the Applicant in support of his application, both written and oral, including the Applicant’s two witnesses. The Tribunal noted with particularity exchanges that it had with the Applicant about concerns it had with his evidence and noted the Applicant’s responses. Ultimately, the Tribunal made findings that were open to the Tribunal on the evidence and material before it and for which it provided reasons. The Tribunal made conclusions based on those findings. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to its findings in reaching its conclusions.
In particular, the Tribunal’s finding that the guard did not threaten the Applicant or fail to pursue the attacker for any Convention related reason is not a finding that is attenuated by sufficient doubt that the Tribunal was required to consider what if it was wrong.
Accordingly, ground 5 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. As stated above in these Reasons, those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 1 May 2008
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