SZMVL v Minister for Immigration

[2009] FMCA 82

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 82

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Egypt – applicant found to have suffered serious harm but did not genuinely fear future persecution – whether the Tribunal decision vitiated by an apprehension of bias considered.

LAW REFORM – Observations on the requirement that protection visa applicants sign an Australian values statement.

Migration Act 1958 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAOA v Minister for Immigration [2004] FCAFC 241
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SZMVL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2611 of 2008

Judgment of: Driver FM

Hearing date: 10 February 2009

Delivered at: Sydney

Delivered on: 10 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2611 of 2008

SZMVL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 9 September 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Egypt and claimed political persecution. Background to the applicant’s claims and the Tribunal’s decision on them are conveniently summarised in the Minister’s written submissions. I adopt as background for the purposes of this judgment paragraphs 2 through to 4 of those written submissions:

   The applicant arrived in Australia on 8 October 2007: court book (“CB”) 85 [2], and applied for the visa on 30 January 2008: CB 1-27.  The delegate interviewed the applicant on 6 March 2008: CB 31-34, and refused the visa on 23 April 2008: CB 36-47, and the applicant applied to the Tribunal for review on 26 May 2008: CB 48-51.  The Tribunal held a hearing on 12 August 2008: CB 64-65.

   The applicant claimed to fear persecution in Egypt for reason of his political opinion.  He claimed to be a supporter of the banned Islamic group Hizb al-Tahrir (HT), and that he was questioned by the police in 2002 and mistreated, and thereafter questioned on several further occasions when the applicant was in Egypt on breaks from his work as a seaman.  He claimed to have been detained for two days in October 2005, although not charged.  He claimed that the cumulative effect of these detentions amounted to persecution.  See generally CB 87-97.

   The Tribunal accepted the applicant’s claims in general, although it found the applicant had exaggerated his claims and was not questioned as frequently as he claimed: CB 102-103 [75], [77]. Having regard to the applicant’s voluntary returns to Egypt since 2003, and his failure to claim protection previously (including visits to the US and Australia), and his failure to relocate within Egypt, found that he did not fear serious harm in Egypt: CB 103 [78]. The Tribunal concluded that while the applicant had experienced serious harm prior to 2005, his treatment thereafter did not amount to persecution and as the applicant continued to return during this period he did not view his treatment as persecutory.

2. These proceedings began with a show cause application filed on 10 October 2008. The applicant has had the opportunity to file and serve an amended application, but he has chosen not to do so.

   
   

   I incorporate in this judgment the three grounds in the show cause application:

   1. The [Tribunal] claimed that I could have sought protection in one of the countries I had visited.  It was explained that the countries I had visited were not countries that offer protection apart from USA where I was not allowed [off] ship and in Australia which I visited before my issues.  The [Tribunal] did not accept my explanation.

   2. The [Tribunal] claimed that I could have relocated to another area in Egypt.  The [Tribunal] did not discuss the issue with me at the hearing.

   3.Due to the fact that I returned to Egypt and to the same area, the [Tribunal] found that I did not feel persecuted.  The [Tribunal] made this finding without discussing with me why I had returned to the same areas.

3. The application is supported by a short affidavit which I accepted as a submission. I received as evidence the court book filed on 5 November 2008. I made procedural orders in this matter on 11 November 2008.

   
   

   I gave the applicant the opportunity to file and serve evidence including a transcript of the Tribunal hearing. He has not taken up that opportunity.

4. The applicant has had the benefit of advice under the Minister’s Panel Advice Scheme. He was also assisted at the hearing before me today by Ms Therese Nicholas, a registered migration agent. Ms Nicholas attended in the capacity of a McKenzie Friend.

5. The applicant made lengthy oral submissions in support of his application. These were directed at the three grounds contained in the show cause application. Unfortunately for the applicant there is no legal significance in those grounds. He accepted that the Tribunal understood and accurately recited his evidence to the Tribunal in relation to the three issues. There is no doubt that the Tribunal considered the applicant’s explanations for the issues of concern to the Tribunal which were put to the applicant. The applicant’s concern is that his explanations were not accepted. As I explained to the applicant, however, that is simply to cavil with the merits of the Tribunal decision.

6. There is no issue of jurisdictional error arising from the application.

   
   

   I agree with and adopt for the purposes of this judgment, paragraphs 5 and 6 of the Minister’s submissions in relation to the grounds of review advanced by the applicant:

   On a fair reading (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291) the Tribunal has found that the applicant does not genuinely fear persecution in Egypt as at the date of its decision. This is a finding of fact that was open to the Tribunal for the reasons it gives, especially the applicant‘s voluntary returns to Egypt since 2005. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

   The application contains three grounds. The first claims that the Tribunal did not accept the applicant’s explanation of why he had not claimed protection elsewhere, but the Tribunal considered the applicant’s explanation: CB 103 [78]. It was not bound to accept it. The second ground claims that the Tribunal did not discuss the applicant’s failure to relocate (CB 103 [79]) during the hearing. It is not clear what error this alleges, but as the applicant has not filed a transcript of the Tribunal hearing this claim has no factual foundation: NAOA v Minister for Immigration [2004] FCAFC 241 at [21], and appears contrary to the Tribunal’s account of the hearing at CB 95 [56] and 96 [60]. The third ground claims that the Tribunal did not discuss the applicant’s returns to his home town (CB 103 [79]) during the hearing, and again there is no factual foundation for his claim in the absence of a transcript, and it appears contrary to CB 95 [54-56]. In any case, the Tribunal is not required to disclose its thought processes or preliminary reasons during the hearing: SZBEL vMinister for Immigration (2006) 228 CLR 152 at [48]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (HCA) at [54].

7. That is not to say that the Tribunal decision is necessarily the correct one. The applicant might well be a refugee within the meaning of the Convention and the Migration Act 1958 (Cth). He was accepted as a supporter of the Hizb al-Tahrir, a banned organisation in Egypt which seeks to overthrow by some means or other the Government of that country. The Tribunal accepted that the applicant has been detained and interrogated by the Egyptian authorities because of his political views on several occasions. The Tribunal accepted that the applicant suffered serious harm presumably amounting to persecution in 2002. It is notorious that the Egyptian authorities use torture to deal with political opponents in detention and interrogation. In the circumstances this applicant may well have a well-founded fear of serious harm amounting to persecution should he return to Egypt. That, however, is beyond the scope of this proceeding. It is a matter that the Minister could consider should he be so minded.

8. In my view, the only legal issue of significance in this case is whether the Tribunal decision is vitiated by an apprehension of bias.  I hesitate to say anything about that issue as the issue was not raised by the applicant.  However, I cannot ignore what is said by the Tribunal at paragraphs 44 to 46 of its reasons (CB 92-93):

   The Tribunal asked the applicant if he could explain the connection between Hizb al-Tahrir and the freedoms about which he had just spoken.  The applicant began to tell the Tribunal about the main aims of the Hizb al-Tahrir.  He said that they want to establish a caliphate regime for all Islamic countries.  He said that this is as it was in the previous ages.  He said that in this way they seek to protect the freedoms and rights of human beings.  They hold that the treasury should be shared by al.  again the Tribunal asked the applicant to explain the connection between Hiab al-Tahrir and the particular freedoms of which he had spoken and which he believes are rightfully his.  The applicant told the Tribunal that this government (referring to the government in Egypt) is not elected.  It is imposed upon the people.  He said that according to the opinions of Hizb al-Tahrir people should elect a caliph.  Rather in the last elections in Egypt the National Party used to gather people and provide them with voting cards and money to tempt them to vote for them.  He said it is not his will that elected these persons now in government.

   The Tribunal commented that in a democracy it is inevitable that not everybody is going to get the political outcome that they desire.  The applicant responded that Islam looks after all people and deals with everyone as a human being regardless of their religion. The Tribunal asked whether or not it is a fact, however, that in imposing a caliphate there would be some people who might not welcome or agree with the introduction of an Islamic state along with Sharia law.  The outcome that his group might desire might not be seen by all citizens as democratic and inclusive.  For example, the Tribunal suggested that in Egypt an Islamic state might not be embraced by people from other religions, or people who have no religious belief of any kind.

   The Tribunal put to the applicant that it would appear that the applicant’s view of democracy as that had been explained to the Tribunal may indeed be a very different concept to a democracy as this is construed by persons from Western countries, for example.  The Tribunal said that for the purposes of the hearing it is very important that the applicant and the Tribunal come to some common ground about what is meant by a democracy.  The Tribunal put to the applicant that the view he has enunciated is not the view that is consistent with the Australian political system, for example.  The Tribunal put to the applicant that in Australia there is a total separation of the powers of the church and state and indeed even in a democracy such as Australia not all citizens achieve the political outcome at the poll that they might desire.

9. I also cannot ignore the fact that the applicant was required to sign an Australian Values Statement referred to in the letter reproduced at CB28-30. I am troubled by the fact that a person is apparently unable to even seek protection in this country without subscribing to Australian values. I am also troubled by the fact that the presiding member felt it necessary to debate with the applicant his political views and to lecture him on the meaning of democracy as understood in the West.  From time to time persons with many shades of political opinion will claim protection under the Convention. Some who claim protection will have views which people in the host state may find unacceptable or distasteful. However, that is not a bar to the consideration of those claims. The Refugees Convention does not authorise a host state to require refugees seeking protection within its borders to subscribe to the values of the society in the host state before a claim for protection will be considered. Refugees necessarily arrive in the host state and seek protection by reason of their predicament: not by choice.  I doubt that the requirement that protection visa applicants sign the Australian values statement is consistent with Australia’s international obligations under the Convention.

10. All claimants are entitled to have their claims objectively considered.  The Courts should rigorously ensure that that expectation is met. On the material before me I am unwilling to conclude that a claim of apprehended bias, if it had been made, is established. However, I would caution the Tribunal to take care that the secular views to which nearly all Australians subscribe do not colour consideration of claims for protection.

11. I find that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.

12. Costs should follow the event in this case. The Minister seeks an order for costs in the sum of $4,500. The applicant did not wish to be heard on costs.  Scale costs in this instance would be $5,000. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 February 2009