SZNZQ v Minister for Immigration

[2010] FMCA 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZQ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 55

MIGRATION – RRT decision – Egyptian applicant claiming to fear persecution as conscientious objector to military service – secondary claim of fear of localised violence – Tribunal disbelieved objections to military service – finding of relocation – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.477(1)

Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150
SZMFJ v Minister for Immigration & Citizenship [2009] FCA 95

Applicant: SZNZQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2620 of 2009

Judgment of: Smith FM

Hearing date: 21 January 2010

Delivered at: Sydney

Delivered on: 21 January 2010

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 26 October 2009.

2. The application is dismissed.

3. The applicant must pay the first respondent’s costs in the sum of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2620 of 2009

SZNZQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant is a young man who is a national of Egypt.  He entered Australia on a student visa in October 2005 to follow tertiary studies.  He did not complete his studies, and his visa was cancelled in November 2008 for breach of conditions.  He was taken into immigration detention in April 2009, after a period of imprisonment arising from involvement in a serious crime.  There is reference in the evidence to his seeking other types of visas, before applying for a protection visa on 6 May 2009 assisted by a solicitor.

2. In a statutory declaration forwarded to the Department of Immigration in support of the application, the applicant made two claims to be qualified under the definition of refugee as adopted in the Migration Act. First, he claimed that “a significant reason for why I left Egypt was to avoid military service”.  He also said that he had “become increasingly opposed to serving in the military since becoming aware of reports, since I arrived in Australia of the military being used to suppress peaceful protests in Egypt.”  He said:

   When I return to Egypt I will definitely be approached by the military and required to undertake military service.  As I am opposed to the manner in which the military conducts itself, when this order is made I will try and avoid military service.  When I do this I will be detained.  In detention I will be seriously mistreated by the army because of my opposition to serving in the army.

3. The applicant explained his second ground for seeking Australia’s protection:

   Shortly before I was arrested in Australia there was an incident in Egypt where people from another area came into the area where my family lived.  The people from the other area started to shot and otherwise harm people in my area; a number of people from my area were killed in the violence.

   I understand that in retaliation for this attack a group of people from my area went to the other area and started to shoot people.  Again a number of people were killed.

   ....

   I believe that I will be seriously harmed and possibly killed by those people who are, as far as I understand, engaged in acts of violence against members of my area in Egypt.

4. The applicant was interviewed by a delegate of the Minister, who then made a decision on 2 June 2009 refusing the visa application.  The delegate said: “the sole reason for the applicant’s refusal to serve in the military is his dislike for military service.  Any punishment he may incur for his draft evasion is prosecution and not persecution.” The delegate thought there was no Convention reason for the harm that he feared, nor could he find a Convention reason in relation to the harms concerning violence in the applicant’s area. 

5. The applicant was represented by the solicitor on his appeal to the Refugee Review Tribunal, and the solicitor made a submission but did not accompany the applicant to the Tribunal’s hearing held on 19 June 2009.  The Tribunal provided a description of the hearing in its statement of reasons, and I have no reason not to accept its accuracy. 

6. According to the Tribunal, the applicant was given an opportunity to present his oral evidence, and he also presented a written statement, some country information, and a DVD showing violence in his home town.  The applicant was questioned about his claims, and about different versions of the events in his home town which he had given to the delegate and the Tribunal.  The applicant said that he had been relating different incidents which were part of the same course of events.  The Tribunal asked the applicant why he could not move elsewhere in Egypt, for example Cairo, and the applicant conceded that he could move to Cairo to avoid the violence in his home town. 

7. According to the Tribunal: “He said his real fear was that he did not want to go in to the Army”.  In relation to this claim, the Tribunal questioned the applicant about his statements about his reasons for coming to Australia and remaining here.  It put to the applicant that there were previous opportunities to make his claim to be a conscientious objector, which he had not taken.  It put to him, in particular, that when applying for a different visa the applicant had said “there was no reason why he could not return to Egypt”, and had said that he wanted a better life in Australia. 

8. According to the Tribunal, it put to the applicant other concerns about the applicant’s claims to qualify as a refugee, and it appears to me that all of the matters upon which the Tribunal ultimately decided the case were fairly put to the applicant in the course of the hearing. 

9. The Tribunal made a decision on 31 August 2009 affirming the delegate’s decision. 

10. In its statement of reasons, the Tribunal referred to the applicant’s wish not to undertake military service, and identified some inconsistencies concerning the applicant’s evidence about this.  The Tribunal said:

    I conclude on the evidence before me that the applicant’s claim that he is opposed to military service is a fabrication intended to provide a basis for an application for refugee status…..

    ……..

    I accept that, as the applicant said, if he returns to Egypt he will be required to do his military service.  However, since I do not accept that the applicant will refuse to undertake his military service or that he is genuinely opposed to undertaking his military service, as he claims, I do not accept that there is a real chance that he will be persecuted for reasons of his real or imputed political opinion or his membership of any particular social group in Egypt (such as ‘people who object to military service’ as the applicant’s then representatives suggested in their submission dated 6 May 2009) by being required to undertake his military service if he returns to Egypt now or in the reasonably foreseeable future.

11. In relation to the applicant’s other claim, the Tribunal referred to “significant inconsistencies in his account of the feuding between different groups in locality”.  However, it identified another reason for finding that these claims did not give rise to a protection obligation on Australia.  It said:

    As I put to the applicant, if I were to accept his original version of events, I would have to consider whether it would be reasonable to expect him to move somewhere else in Egypt.  The applicant conceded at the hearing before me that there was no reason why he could not go to Cairo.  I find on the evidence before me that it would be practicable for the applicant to move to Cairo and that, if he were to do so, there would not be a real chance that he would be persecuted for reasons of his membership of the particular social group constituted by people from his village (as the applicant’s then representatives suggested in their submission dated 6 May 2009)

12. The applicant now asks the court to set aside the Tribunal’s decision, and to remit the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant is a refugee, nor whether he should be given any permission to stay in Australia.

13. The applicant’s application to the court was filed outside the thirty-five day time limit provided under s.477(1) of the Migration Act. However, the delay was short and, in the circumstances in which it occurred, the Minister does not oppose the making of an order extending time pursuant to s.477(2). I shall make that order.

14. In relation to the merits of the matter, the applicant’s grounds of his original application were framed as follows:

    1.Procedural fairness.

    2.Jurisdictional error.

    3.New information not presented in Court.

15. These have not been explained with any particulars in any amended application or written or oral submissions of the applicant. 

16. For myself, I have been unable to identify any failure of procedural fairness in the Tribunal’s proceedings, insofar as such obligations are implicit in the procedural provisions of the Migration Act governing the Tribunal’s procedures. Nor have I identified any other jurisdictional error affecting the Tribunal’s decision.

17. I have considered authorities concerning the application of the Convention definition of a refugee in relation to conscientious objectors to military service.  In particular, relevant principles were discussed in the judgment of Gray J in Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150 at [28], which was recently cited by Jagot J in SZMFJ v Minister for Immigration & Citizenship [2009] FCA 95 at [4]. Gray J explained that the starting point is a finding that the applicant, in fact, has conscientious objections to compulsory military service.

18. The present Tribunal’s findings of fact, in my opinion, clearly failed to find such a foundation in the applicant’s case, and it was unnecessary for it to examine the further issues identified by Gray J when considering whether fears arising from compulsory military service are covered by the Refugees Convention.  In my opinion, the evidence before the Tribunal allowed it to have arrived at the factual conclusions that it arrived at, and I can detect no jurisdictional error in its reasoning.

19. The applicant today explained how he would prefer to stay in Australia, and he also tendered evidence that he has recently married.  As I have pointed out to the applicant, whether this circumstance gives rise to a basis for further applications to the Minister is a matter upon which he should seek urgent advice elsewhere.  It is not a matter which the Court can take into account.

20. For the above reasons, I am not satisfied that the decision of the Tribunal is affected by jurisdictional error.  Its decision is therefore a privative clause decision, and I must dismiss the application. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  3 February 2010