SZSWK v Minister for Immigration

[2015] FCCA 1315

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1315

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant applicant a Protection (Class XA) visa – whether Tribunal failed to consider claims made by applicant – whether Tribunal committed jurisdictional error by limiting applicant’s claims to political grounds and not religious grounds – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(2)

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Ministerfor Immigration and Citizenship v SZRMA (2013) 219 FCR 287
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

NABE vMinister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Shumilov & Anor v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 487

Applicant: SZSWK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1118 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 21 February 2014

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Counsel for the Applicant: J.R. Young

Solicitors for the Applicant: Simon Diab & Associates

Solicitor for the First Respondent: L. Weston of Minter Ellison

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application, as amended, be dismissed.

3. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSWK.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1118 of 2013

SZSWK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed on 18 June 2013 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 17 April 2013 affirming the decision of a delegate of the Minister for Immigration and Border Protection (formerly the Minister for Immigration and Citizenship) (the “Minister”) not to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents that may be relevant to the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.  

3. The applicant was granted leave to file and serve an amended application and any evidence he wished to rely upon on or before 16 July 2013.  The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the date of the hearing.  An amended application and an outline of submissions were filed on 10 February 2014, pursuant to the Court’s leave.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a citizen of Egypt who arrived in Australia on 31 May 2011 (CB 2-3).  The applicant lodged an application for a Protection visa on 23 November 2011 (CB 1-28).

3. The applicant claimed to fear harm in Egypt from the Salafists, the Muslim Brotherhood and other fundamentalist Islamic groups on the basis of his political opinion (including his involvement with the El Watani Party (also known as the National Democratic Party (“NDP”)) (CB 7-10).

4. On 17 May 2012 a delegate of the Minister refused to grant the applicant a Protection visa (CB 39-63).  The delegate noted that the applicant claimed to have been attacked at El Watani protests, and to have been insulted and questioned by Salafists. The delegate had concerns about the applicant's credibility, but accepted that he had been a member of the NDP since 2007. The delegate was not satisfied that the applicant had a well-founded fear of persecution.

5. On 25 June 2012 the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 65-70).  The applicant appeared at a hearing before the Tribunal on 7 March 2013 (CB 93-94).   The Tribunal made its decision on 17 April 2013, affirming the delegate's decision not the grant the applicant a protection visa (CB 106-118).  

The Tribunal’s Decision

1. The Tribunal expressed credibility concerns regarding the applicant but accepted that he was a “low profile NDP supporter” (CB 114 at [52]), and that his support was for a relatively brief period before coming to Australia.

2. The Tribunal found that the applicant's low-level political activities were remote in time, and he had been in Australia since a short time after the resignation of Mubarak (CB 114 at [54]).

3. On consideration of the applicant's evidence, the Tribunal was not satisfied that the applicant had any particular political commitment consistent with his claims of having been a person with a political profile sufficient to bring him to the attention of his political opponents (CB 114 at [56]).

4. The Tribunal noted that the applicant had provided no documentary evidence of his NDP membership and had testified that he never had formal membership in documentary form (CB 115 at [57]).

5. The Tribunal was not satisfied on the evidence before it that the applicant had a role within the NDP which gave him a political profile in Egypt (CB 115 at [58]).

6. The Tribunal found that the applicant had “faced no serious harm prior to his departure from Egypt” (CB 115 at [59]).

7. The Tribunal found that there was no real chance that the applicant would face persecution in the future on the basis of his political opinion (CB 115 at [60]). The Tribunal could find no evidence of general members of the NDP being targeted for arrest or other mistreatment simply because of their party affiliation (CB 115 at [62]). The Tribunal noted country information to the effect that NDP members could participate fully in the political process (CB 115 at [63]).

8. The Tribunal noted that the applicant had not provided independent information supporting his claim that ordinary former members of the NDP are or have been, since the fall of the Mubarak regime, the subject of adverse attention in Egypt (CB 115 at [64]).

9. The Tribunal noted that the applicant's claims of having been insulted and harassed by Salafists are now also remote in time (CB 116 at [66]). The Tribunal was not satisfied that the applicant would face persecution at the hands of the Salafists. Considering whether the applicant would engage in political activity in the future, the Tribunal noted that the applicant had not demonstrated the strength of political conviction such as to draw him to the attention of the Salafists and/or the Muslim Brotherhood (CB 116 at [66]).

10. The Tribunal therefore rejected all of the applicant's claims in respect of having a well-founded fear of persecution (CB 116 at [68] and [69]). In light of those factual findings it also rejected the applicant's claims pursuant to the complementary protection criterion in s.36(2)(aa) of the Migration Act.

Current Proceedings

1. The amended application pleads the following six grounds of review:

   1. The Second Respondent made jurisdictional error in that at [59] it stated that the applicant faced no serious harm prior to departing Egypt without having considered the claims noted by the Second Respondent at [26] and [29] but not considered by the Second Respondent.

   2. Having failed to consider the Applicant's claims of past harm, the Second Respondent assumed that the Applicant was merely an 'ordinary former' member of the NDP.

   3. The Second Respondent made jurisdictional error by failing to consider the instances of past harm given by the Applicant at the hearing in relation to the Salafists.

   4. The Second Respondent made jurisdictional error by addressing the Applicant's claim of well-founded fear of persecution on the grounds of political opinion as being confined to his former membership of the NDP.

   5. The Second Respondent made jurisdictional error by failing to deal with claims or component integers of claims upon the basis that such claims were remote in time meaning that they had occurred before he left Egypt in 2011, 2 years prior to the Tribunal hearing.

   6. The second respondent failed to deal with a claim on [sic] a component integer of a claim namely that he had a well founded fear of persecution from Salafists on the Convention ground of religion.

Applicant’s Submissions

1. The applicant claims that credibility was not a factor in the Tribunal’s decision.  At [52] of the Decision Record (CB 114), the Tribunal stated that while it had credibility concerns it extended the applicant the benefit of the doubt.  At [66] (CB 116) the Tribunal described his evidence in relation to spreading awareness about the Islamists as being vague and lacking detail, but, as noted above, adverse credibility findings were not made against him.  He was extended the benefit of any doubt.

2. The applicant claimed that he had been a member of the NDP party.  He claimed to oppose the coming to power of fundamentalists.  He claimed to have been insulted, harassed and questioned on an increasing basis by the Salafists.  He feared persecution from, inter alia, the Muslim Brotherhood, Salafists and other Islamic groups.  The applicant claimed that the fears in relation to the Salafists extended to him being killed by them.

3. It is submitted however, that the summary at [53] (CB 114) is not accurate.  The fear relating to his political opinion was not confined to his membership of the NDP.  The applicant claimed that on return to Egypt, he would be forced by his political opinion to participate in anti-government demonstrations.

4. The applicant claimed that the NDP governed Egypt from 1978 until Mubarak was forced to resign in February 2011.  It was disbanded by judicial verdict in April 2011.  The applicant submits that the Tribunal misconstrued the claim in relation to political opinion.  The claim was that the applicant would be involved in political protest on his return to Egypt, he would participate in anti-government demonstrations and be killed. 

5. The applicant submits his claims were not frozen in time and he was entitled to point to the circumstances existing at the time of the decision.  He was plainly not simply submitting that his profile with the NDP prior to his departure was the only basis for his fear of persecution in the future.

6. The applicant submits the he made claims that there was a real chance that he would be persecuted in the future.  As was stated by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [58]:

   58.    … Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group".        

   (footnote omitted)

7. The applicant submits that the reasoning is equally applicable to the other Convention grounds.  It is an error to ignore the particular claims of the individual either because circumstances in the country have changed or because of a lack of evidence in relation to aspects of the new circumstances in the country.

8. The applicant made claims that he had been attacked many times during the January 2011 protests.  He claimed to have been insulted and questioned by Salafists in his area (CB 56-57).  The Tribunal noted these claims at CB 110.

9. The applicant claims that the Tribunal did not deal with these claims other than to say that the claims were “remote in time”.   The applicant submits that to say that the claim is “remote in time” is to say nothing.  A claim which is remote in time may or may not be relevant to providing a guide to the future.  However, most of the claims which the Tribunal hears are in the course of hearings about events which are “remote in time”.

10. The applicant submits that substantial changes occurred in Egypt in 2011, however, those changes may make the past events more, rather than less relevant.  For example, as is alleged here, the persecution or “one of them”, the Salafists, have increased their power.  The applicant submits that to ignore a claim because it is “remote in time”  is to fail to deal with it, yet the Tribunal sidestepped a number of the applicant’s claims with this formula:

    a)At [65] (CB 116) in relation to the applicant’s political activity in Egypt;

    b)At [66] (CB 116) in relation to having been insulted and harassed by Salafists.

11. The applicant claims that the Tribunal did not deal with his claims of being attacked by the Salafists.  The applicant did not claim serious harm and he did not suggest that the attacks occurred after 2011.  To state that the applicant had not suffered serious harm at [59] (CB 114) or that the claim was “remote in time” (CB 116 at [66]) was not to deal with the claim.

12. The applicant submits that to simply states that a claim of past harm does not of itself involve serious harm does not dispose of that claim.  Nor does characterising a two year old claim as “remote in time” deal with it.  The applicant did not confine his claim to the Convention ground of political opinion.  He plainly also raised the Convention ground of religion.  As noted by the Tribunal at [38] (CB 111) and by the delegate (CB 59.7) “fanatics” (the Salafists) were insisting on religious observance which, by clear implication, the applicant was stating that he would be unable to or would not comply with such edicts. 

13. The applicant submits that further in his Protection visa application (see CB 7), he raised matters of religious difference with the fundamentalists, stating that they implement “an incorrect interpretation of Islam”.  In its discussion of country information in relation to the situation of former NDP members in Egypt, the Tribunal noted that threats to former NDP members, whether Muslim or Christian, were “religiously motivated”.  The applicant submits that he was claiming that there was a religious motivation or basis in relation to his fear of persecution form Salafists.

14. The claim of religious persecution, while closely related to the political opinion ground, required consideration.  The Tribunal itself identified that such a claim had been made, given that the applicant was claiming to fear persecution from Salafists whose focus is a highly internal respect to the sacred texts and religious observance.

15. The applicant submits that it is accepted that at [69] (CB 116) the Tribunal referred to “any Convention reason”.  However, the claim of religious difference with the Salafists was so plainly made that to fail to deal with it was to fail to deal with a claim: NABE vMinister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.

16. The applicant submits that at [71] (CB 117), the Tribunal purported to give a “cumulative” consideration to the applicant’s claims.  However, without any consideration of the claim based on the Convention ground of religion, any such analysis had to be flawed.

17. At the hearing, Mr Young, representing the applicant, stated that he would focus on grounds 4-6 of the Amended Application, noting that grounds 1-3 were not abandoned, as such, just that he would not address them separately. 

18. In respect of ground 6 of the amended application, Mr Young submitted that the applicant’s claim involved both the Convention ground of political opinion and religion.  Mr Young noted that there is a linkage between the two grounds.   Mr Young took the Court to CB 7, where the applicant raised why he left Egypt.  The applicant stated:

    42.  Why did you leave that country?

    I have been a member of El Watani party for a number of years and active especially during elections.

    I believe there were some problems with the methods used by the Moubarak government but I believe I was necessary to stop many fundamentalist from taking hold in Egypt.

    During the January 25 protests I was assisting in the organization of Watani party and I was attacked many times.

    During the last few months there has been a significant increase in the influence and power of the Salafists.  I was insulted and questioned by the Salafists in my area and this began to increase before I travelled to Egypt.  I respect the ideals of El Watani party because we believe in a civil government that at the same time respects all the ideals of Islam.  A government ruled by Islamic fundamentalists will civil and human rights and implement a incorrect interpretation of Islam.

    I am will be persecuted for my views because there will be many people my views especially the Muslim Brotherhood and Salafists.

    (CB 7)

19. Mr Young stated that, obviously, the applicant referred to issues relating to the methods used by the Mubarak government and that circumstances have changed, specifically political, since the time that the applicant left Egypt to come to Australia.

20. Mr Young submits that the applicant raised issues relating to Islam, as well as purely political issues.  Mr Young then took the Court to the delegate’s decision, under the heading “Evidence and Reasons” (CB 59) where the delegate stated:

    In his protection visa application applicant the applicant claims that if he returns to Egypt he will be persecuted for his political views by the Muslim Brotherhood and the Salafists.  At interview the applicant further claimed that since Hosni Mubarak resigned, Islamic groups have spread their fanatic ideas all over the country, and he claims that in the post revolution environment all NDP members are persecuted, and when he walks in the street people say he is an NDP member, and he claims that NDP members are seen as terrorists responsible for bombings.  The applicant claims that fanatics told him that he now has to pray at the mosque five times a day and grow a beard.

    (CB 59)

1. Mr Young submits that this is a claim in relation to religion, over and above political opinion, with this claim having been made before the delegate and the Tribunal referred to it at CB 111 at [38], where it stated:

   38.  The Salafists insist on prayers five times a day, that men grow beards, that women are covered.  Those who oppose them or do not go to mosque face persecution.

2. Mr Young also argues that the Tribunal dealt with the significant aspects of the claims in relation to the religious grounds at CB 113 at [50], specifically the last paragraph, where it stated:

   In terms of the threat to former NDP members’ families from other groups, there is no information to suggest that violence or attacks in Egypt by groups such as the Salafists have specifically targeted former NDP members and their families.  Rather, alleged attacks by Salafists against Muslims and Christians appear to be religiously motivated. 

   (CB 113)

3. Mr Young submits that despite the Minister’s argument that it would be difficult for the Tribunal to discern such a claim, a claim in relation to a religious ground was clearly made and it was identified by the Tribunal at [38] of the Decision Record (CB 111).  Mr Young argues that the nature of the potential persecutor is not irrelevant and, in the current case, the alleged persecutors, it is Salafists, whose principal identification is religiously motivated.  Mr Young submits that the Tribunal has plainly identified the nature of the claim and the Tribunal did not need ‘creative activity’ for such a claim to be established. 

4. Mr Young took the Court to Minister’s argument that the applicant’s claim on the grounds of religion before the Tribunal was entirely isomorphic with the applicant’s political opinion claim and was, therefore, addressed and dismissed factually by the Tribunal.  Mr Young submits that when one looks at the Findings and Reasons of the Decision Record, the Tribunal has identified this matter.  Subsequently, one must look to the Tribunal’s analysis of the country information.

5. Mr Young submits that the Tribunal concluded that the attacks by the Salafists were religiously and not politically motivated, in other words, far from being isomorphic.

6. Mr Young contends that the failure by the Tribunal to factor in that the applicant is indeed claiming the Convention ground based on religion means that there is an error in relation to the consideration of whether he would face harm in the future.

7. Mr Young submitted, in relation to ground 5, being the manner in which the Tribunal dealt with some aspects of the claim in relation to political opinion and dismissing them on the basis that they were remote in time.  Mr Young argues that claims based on past events can inform the Tribunal in relation to the future, however, the test of whether a person faces a well-founded fear of persecution is a test that looks at the future. 

8. Mr Young argues that if the Tribunal considered whether some past events continues to be relevant, then the Tribunal has to consider the number of changes in that country which may make them irrelevant, or in the alternative, makes them more relevant.  In the current case the changes that had occurred in Egypt between the time of the applicant having been in Egypt and the time of the decision, being that the Salafists were more influential in Egypt.

9. Mr Young argued that this is a case where the applicant lodged his application in 2011 and the Tribunal was looking at the situation in the country of origin at 2011, not of the situation in Egypt as at April 2013.

Minister’s Submissions

Ground 1

1. Paragraphs [26] and [29] of the Decision Record (CB 110) set out claims recorded by the delegate that the applicant had been “attacked at El Watani protests” and “insulted and questioned by Salafists”.

2. The Tribunal's finding at [59] of the Decision Record (CB 115) is that the applicant “faced no serious harm prior to his departure from Egypt”.

3. To the extent that the applicant alleges that the finding at [59] (CB 115) was made without considering what is noted at [26] and [29], the Minister submits that:

   a)There is no inconsistency between the paragraphs because the conduct described at [26] and [29] (viz. insults and questioning) does not amount to “serious harm” of the level set out in subsection 91R(2) of the Migration Act; and

   b)The Tribunal makes explicit findings regarding the applicant being “insulted and harassed” by the Salafists at [66] (CB 116), but finds that these claims were remote in time, and there was no real chance that the applicant would face harm from Salafists in the future.

4. Consequently, on the terms of the Tribunal's decision, it cannot be said that the Tribunal failed to consider a claim made by the applicant.

Ground 2

1. To the extent that this ground is premised upon the failure alleged in Ground 1, it must fail for the reasons set out above.

2. To the extent that the applicant takes issue with the finding that the applicant was merely a “low level” or “rank and file” supporter of the NDP, this finding was open to the Tribunal for the reasons that it gave at paragraphs [52], [56] and [58] (CB 114-115) - that is, his claims were vague, and he claimed to have been involved in only one election, in a role that was not of any prominence. The Tribunal's findings were also informed by its credibility concerns.

Ground 3

1. As set out above, the Tribunal did consider the instances of past harm described by the applicant, but found them to be remote in time. The Tribunal gave reasons for finding that the applicant would not have a well-founded fear of persecution, and would not face serious or significant harm in the future.

Ground 4

1. This ground, as developed by the applicant's outline of submissions appears to allege that the Tribunal incorrectly confined its consideration of the applicant's claims regarding the well-foundedness of any fear of persecution on the grounds of political opinion to the applicant's (former) membership of the NDP.

2. In the submissions the applicant alleges that the claim, as put to the Tribunal, was that “on return to Egypt, he would be forced by his political opinions to participate in anti-government demonstrations”, and that he “would be involved in political protest on his return to Egypt, he would participate in anti-government demonstrations and be killed”.

3. The Minister submits that the Tribunal properly and fully addressed the claims as made by the applicant.

4. The applicant's claims, as made in his Protection visa application, state that he was a “member of the El Watani party [i.e., the NDP] for a number of years and active especially during elections”, that he was attacked many times in the “January 25 protests” while assisting the NDP, that he “respect[s] the ideals of [the NDP] because we believed in a civil government that at the same time respects all the ideals of Islam”, and that he “will be persecuted for [his] views because there will be many people against [his] views especially the Muslim Brotherhood and the Salafists” (CB 7).

5. The applicant maintained these claims before the delegate (CB 59-60), and before the Tribunal (CB 110-111).

6. The Minister submits that the Tribunal's summary of the applicant's claims at [53] (CB 114) of the Decision Record, impugned by the applicant in his outline of submissions, is a fair summary of the applicant's claims.

7. Specifically, the applicant's claimed former involvement with the NDP was central to his protection claims, and there can be no error in the Tribunal treating it as a central to his claims.

8. Moreover, the Minister submits that [53] (CB 114) of the Tribunal's Decision Record should not be read in isolation, nor with an eye keenly attuned to the perception of error.   Rather, this paragraph should be read with:

   a)Paragraph [55], in which the Tribunal summarised the applicant's evidence to be “that he fears the Salafists, other Islamists groups and thugs in general”, without specific reference to the NDP (CB 114);

   b)Paragraph [56], in which the Tribunal finds that the applicant's evidence, in its entirety, “did not demonstrate that he has any particular political commitment as consistent with his claims of having ever been an individual with a profile or interest to any potential agents of persecution as a supporter of Mubarak or in opposition to the Muslim Brotherhood or of the Salafists or other Islamist fundamentalist groups were he to return to Egypt” (CB 114);

   c)Paragraph [60], in which the Tribunal finds that “there is no real chance that due to the strength of his convictions as a former NDP supporter, or because of his opposition to the current government that the applicant would face persecution were he now to return to Egypt” (emphasis added) (CB 115);

   d)Paragraph [66], in which the Tribunal expressly considers “the applicant’s claims that he would not remain quiet if he returns to Egypt” (emphasis added), but finds that the applicant had “not demonstrated that the strength of his political convictions are such that he would draw himself to the adverse attention of Salafists in Egypt, or the Muslim Brotherhood regime” (CB 116); and

   e)Paragraph [67], in which the Tribunal considers the applicant’s claimed fear regarding generalised violence, and finds that there is “insufficient evidence before it to indicate that there is a real chance of serious harm were the applicant to return to Egypt were [sic] he to engage in low level political activity” (CB 116).

9. When those paragraphs are read together, and in the context of the Tribunal’s decision as a whole, it cannot be said that the Tribunal did not ask questions as to whether “on return to Egypt, [the applicant] would be forced by his political opinions to participate in anti-government demonstrations”, or whether he “would be involved in political protest on his return to Egypt, he would participate in anti-government demonstrations and be killed”.

10. Rather, the Tribunal did consider these questions, but concluded that he would not, on the basis that it was not satisfied that his claimed political opinion was genuine, for probative reasons which it stated.

11. Similarly, the above cited passages contradict the applicant's allegation in the applicant's outline of submissions that the Tribunal considered that the applicant to be submitting that his prior profile with the NDP (before his departure from Egypt) was the only basis for his fear of persecution in the future.

Ground 5

1. This ground, as developed by the applicant's outline of submissions, appears to take issue with the characterisation by the Tribunal of the past instances of harm described by the applicant as being “remote in time”.

2. Specifically, it is alleged that the Tribunal did not deal with the applicant’s claims to have been attacked during the January 2011 protests, and insulted and questioned by Salafists in his area, “other than to say that the claims were ‘remote in time’”.

3. The applicant contends that to say a claim is “remote in time” is “to say nothing”, as a claim which is remote in time “may or may not be relevant to providing a guide to the future”.

4. The Minister submits that it is not a fair or correct reading of the Tribunal’s decision to allege that the Tribunal did not deal with the applicant’s claims other than to say that the claims were remote in time. Rather, the Tribunal’s observations about the remoteness of described events, in combination with a number of other findings made by the Tribunal, informed its conclusions about how well-founded the applicant’s fear of persecution was.

5. Further, the Minister submits that the Tribunal’s observations regarding remoteness must not be deracinated from their context. Read in context, it is clear that the Tribunal properly understood the forward-looking nature of the well-founded fear test, and was properly assessing whether the past events claimed by the applicant were a relevant guide as to what may happen in the future.

6. It is accepted law that the Tribunal is permitted to use past events to draw inferences as to what may occur in the future:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v Commonwealth of Australia (1999) 197 CLR 510; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Relevant past events may include the conduct of an applicant or the absence of relevant conduct, and both instances of harm and the lack of instances of harm. It is submitted that the Tribunal's observations regarding remoteness ought to be viewed as falling within such use.

7. The Tribunal refers to the applicant’s political activities as being “remote in time” at [54] (CB 114), and at [65] and [66] (CB 116).

8. In the former case (at [54]), the Tribunal’s observation is coupled, in the same sentence, with an observation that the applicant’s political activities were “low level”. These factors (being the duration and extent of the applicant’s political involvement) were relevant to the issue of the applicant’s perceived political profile, and also the nature and genuineness of his political commitment (see [56]–[60] (CB 114)), both of which were relevant to the issue of whether he would be harmed were he to return to Egypt.

9. The Tribunal went on to make findings at [59]–[60] that the applicant “faced no serious harm prior to his departure from Egypt”, and that “there is no real chance that due to the strength of his convictions as a former NDP supporter, or because of his opposition to the current government that the applicant would face persecution were he now to return to Egypt”. It follows that the Tribunal’s findings are not limited to the remoteness of the attacks and harassment described by the applicant, but involve dispositive findings as to the nature of the attacks and harassment (including whether they amounted to serious harm within the meaning of the Convention), and the likelihood that the applicant would engage in conduct in the future of a kind that would attract persecution (to the standard required by the Convention).

10. In the latter case, for example [65] and [66], the Tribunal’s observations must also be viewed in the context of the Tribunal's application of the future-looking test. The Tribunal found (CB 116 at [66]) that the applicant never suffered serious harm in the past (including with respect to the incident he described), and had not demonstrated a strength of political conviction such that he would draw himself to the adverse attention of Salafists in Egypt, or the Muslim Brotherhood regime.

11. The Minister consequently submits that there is no error in the Tribunal:

    a)Making a factual finding that past instances described by the applicant were confined to a particular period of time in the past; and

    b)Using that factual finding to draw inferences as to the likelihood of the applicant holding an adverse political profile, and as to the likelihood of the applicant continuing to engage in political activity that would attract an adverse political profile.

12. Certainly, it is clear from the Tribunal’s reasons that the Tribunal did not unduly fetter its consideration of the applicant’s claims, or impose or purport to apply an incorrect test. Rather, it properly considered the forward looking test, informed by its assessment of past events and the applicant’s own conduct. In this process, it cannot be said that the remoteness of the events was an irrelevant consideration.

Ground 6

1. This ground, as developed by the applicant’s outline of submissions, alleges that the Tribunal confined its consideration of the applicant’s claims to the Convention ground of political opinion, and failed to deal with the applicant's claims with regard to the Convention ground of religion, despite the applicant “plainly” also raising that Convention ground.

2. Specifically it is alleged that claims based on the Convention ground of religion arose sufficiently on the evidence and contentions before the Tribunal that the Tribunal was required to have regard to them, pursuant to the principle in NABE (supra).

3. In response to this allegation the Minister submits that no separate claim to fear harm on the basis of religion was advanced by the applicant, either explicitly or implicitly. As such, the Tribunal did not fall into jurisdictional error by failing to consider a claim.

4. The claims for protection raised by the applicant in his Protection visa application (CB 7-10), in his interview with the delegate (CB 59-60), and before the Tribunal (CB 110-111) were couched only in terms of his political opinion. No separate claims, or integers thereof, on the basis of religion were advanced.

5. The applicant's claims possessed a religious dimension, to the extent that the applicant's political beliefs, as well as the political beliefs of his purported enemies, involve adherence to Islam, but the gravamen of the dispute as articulated by the applicant in his claims related only to the political dimension of Islam, and the applicant never claimed before the Tribunal (or elsewhere in the protection visa application process) that he would face harm because of his religious opinions as distinct from his political profile and involvement.

6. The Minister submits that any claim based on the Convention ground of religion would require “creative activity” on the part of the Tribunal, in view of the applicant's presentation of evidence in service of a claim based on the Convention ground of political opinion. The first respondent submits that the present case is analogous to that before the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 (see especially [62]–[72]), where the evidence in question was found by the Court to have been given by the applicant in service of the claim that was considered by the Independent Merits Reviewer, and not for the purposes of grounding a separate protection claim.

7. Alternatively, if a separate claim on the Convention ground of religion did arise on the material (which the Minister denies), the Minister submits that the claim was entirely isomorphic with the applicant’s political opinion claim, and was therefore addressed and dismissed factually by the Tribunal, such that there was no substratum of proven facts that the Tribunal failed to address: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [74].

8. In support of this argument, the first respondent observes that this was not a case in which the Tribunal accepted that the applicant would face harm in the future, but concluded that the harm would lack the requisite Convention nexus. Rather, it found that the applicant would not suffer serious harm.

Consideration

Ground 1

1. The applicant contends there has been a failure on the part of the Tribunal to consider two claims made by the applicant which have been noted at [26] and [29] of the Tribunal’s Decision Record (CB 110), namely that the applicant had been:

   a)Attacked at El Watani protests; and

   b)Insulted and questioned by Salafists.

2. At [59] of the Decision Record (CB 115) the Tribunal stated “The applicant faced no serious harm prior to his departure from Egypt”.

3. In the applicant’s application for a Protection visa, in response to the question “Who did you leave that country?”, the applicant stated:

   … During the January 25 protests I was assisting in the organization of Watani party and I was attacked many times.

   During the last few months there has been a significant increase in the influence and power of the Salafists.  I was insulted and questioned by Salafists in my area and this began to increase before I travelled to Egypt. …

4. Having read the rest of the contents of the Court Book, the two claims noted at [87](a) and (b) are not made again, other than those referred to directly above.

5. The section of the Decision Record appearing under the heading “Tribunal Hearing” (CB 110-113 at [32]-[49]) records the testimony of the applicant at the Tribunal hearing.  I note there was no attempt by either party to furnish a transcript thereof.

1. In respect of the two claims made by the applicant, the Tribunal stated at [44] of the Decision Record:

   44.    The applicant testified that he took part in demonstrations in Tahrir Square over the course of four days from 25 until 28 January.  When asked whether he faced any problems as a result of his participation.  He testified that he was very lucky and did not face problems, although police surrounded the demonstrations and no one was allowed in or out.  Later security forces used tear gas and beat people.  This took place during the four days he participated.  He claimed that he himself was beaten on 28 January by other protestors.  He did not have any problems with the authorities.  On the 28^th he went back to where he lived in Monofiya and spread awareness about the demonstrations among the people.  He claimed to have influence in the local area.  He confirmed he was still a Mubarak supporter at this time.  Up until Mubarak’s resignation he spread awareness about what Islamists could do if they took control.  He testified that members of Islamists could do if they took control.  He testified that members of Islamic groups started to oppose him and he was harassed to attend mosque.  The applicant claimed to spread awareness by going to clubs.  He remained in Monofiya until he left Egypt.

   (CB 112)

2. There are no other references in the Decision Record to specific claims being advanced by the applicant in the nature noted above at [90].

3. The Tribunal then stated at [51] of the Decision Record:

   51.    The Tribunal had some credibility concerns over the applicant’s claimed affiliation with the NDP and his participation in demonstrations over the course of four days as claimed, as well as spreading awareness regarding the NDP.  Despite these concerns, the Tribunal finds that the applicant was a low profile NDP supporter. …

   (CB 114)

4. At [54] of the Decision Record the Tribunal stated:

   54.    The applicant’s low level political activities are now remote in time.  He has been in Australia since a short time after the resignation of Mubarak.

   (CB 114)

5. At [59] of the Decision Record the Tribunal stated:

   59.    The applicant faced no serious harm prior to his departure from Egypt.

   (CB 115)

6. At [66] of the Decision Record the Tribunal stated:

   66.    The Tribunal finds that the applicant’s claims relating to having been insulted and harassed by Salafists, are now also remote in time. … Further in this context, the Tribunal notes that the applicant never suffered serious harm at the hands of Islamic groups who “started to oppose him” and that he claimed harassed him when attending mosque, and that he was warned about talking to anyone against anything.

   (CB 116)

7. At [67] of the Decision Record the Tribunal stated:

   67.    … Further it notes that demonstrations continue to occur in Egypt, and that there is insufficient evidence before it to indicate that there is a real chance of serious harm were the applicant to return to Egypt were he to engage in low level political activity.

   (CB 116)

8. The applicant’s claim is that, effectively, the Tribunal failed to consider those two claims which led the Tribunal into error.  However, for the reasons that follow, this is not the case.

9. On a fair reading of the Decision Record, the Tribunal asked the applicant about his claims in his Protection visa application which is noted at [44] therein.  It gave the applicant the opportunity to elaborate orally on what were brief statements of events he claimed occurred while he was in Egypt.  The applicant’s oral testimony was that he had been beaten during the protests in Tahrir Square by other protesters on January 28 and that he members of Islamic groups had started to oppose him and he had been harassed to attend mosque (CB 112 at [44]).

10. At [52] the Tribunal then addressed credibility concerns it had with the applicant’s participation in the protest where he claimed he had been beaten, as well as the applicant’s claims of having spread awareness regarding the NDP.  At [66] of the Decision Record the Tribunal had further regard to the applicant’s claims of being insulted and harassed by Salafists.  It found in respect of all of these claims that they were both “remote in time” and that he never suffered “serious harm” while in Egypt.

11. On a fair reading of the Decision Record, what occurred is that the Tribunal, favourably for the applicant, accepted these specific claims made by him, however, found that they did not amount to “serious harm” to satisfy s.91R of the Migration Act. Further, these incidents were found to be “remote in time”, and that he would not face persecution from Salafists in the future or serious harm from engaging in low level political activities in Egypt including political demonstrations.

12. In Applicant WAEE (supra) the Full Court of the Federal Court stated at [46]:

    46.    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87]–[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

13. On a fair reading, the Tribunal considered the written claims that were not detailed in nature advanced by the applicant in his original statement, then sought to crystallise these claims at the hearing by asking him questions relating to them.  Those more detailed statements made by the applicant at the hearing are what the Tribunal considered in its Decision Record and, accordingly, it was not necessary for it to refer to the original written statements made by the applicant.

14. Accordingly, the claim that the Tribunal failed to consider these claims advanced by the applicant cannot be sustained.

Ground 2

1. This ground is advanced on the basis that Ground 1 of the application is successful, however, for the reasons stated above and the reasons that immediately follow, it must fail.

2. The ground contends that the Tribunal “assumed” the applicant was merely an ordinary former member of the NDP.

3. The Tribunal’s findings in respect of the applicant’s involvement with the NDP are located at [52] and [58] of the Decision Record.  At [52] the Tribunal stated:

   52.    … Despite these concerns, the Tribunal has extended to the applicant the benefit of the doubt, and accepts that he supported the NDP for relatively brief period before coming to Australia to study.

   (CB 114)

   At [58] the Tribunal stated:

   58.    On the evidence before it, and for the reasons set out above the Tribunal is not satisfied that the applicant had a role within the party which gave or gives him any political profile in Egypt.  The Tribunal does not accept that the applicant had a profile other than that of a rank and file supporter of the NDP.

   (CB 115)

4. These findings made by the Tribunal are findings of fact.  The Tribunal gave reasons for making these findings at [52], [56]-[58] of the Decision Record.  These reasons include the vagueness of the applicant’s evidence and claims, his claim to have only been involved in one election in a role not of any prominence, his delay in applying for a Protection visa until a short time prior to his then visa ceasing to be in effect and its credibility concerns.  On a fair reading of the Decision Record, these findings were open to the Tribunal on the material before it and for the reasons it gave.

5. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 their Honours Brennan CJ, Toohey, McHugh and Gummow JJ stated at 272:

   … [T]he reasons of an administrative decision-maker are meant to be inform and not to be scrutinised upon over-zealous judicial review by seeking to glean whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

6. For the reasons stated above, this ground cannot succeed.

Ground 3

1. This ground claims the Tribunal made a jurisdictional error by failing to consider the instances of part harm the applicant suffered in relation to Salafists.

2. This claim is reproduced at [92] above and is found in the applicant’s original Protection visa application. No specific oral claim by the applicant appears to have been made by the applicant relating to harm he suffered at the hands of Salafists at the Tribunal hearing, though claims were made about the applicant being “opposed” by Islamists (CB 112 at [44]) and about him being “warned not to talk to anyone against anything” (CB 112 at [48]).

3. The Tribunal made findings at [66] of the Decision Record where it stated:

   66.    The Tribunal finds that the applicant’s claims relating to having been insulted and harassed by Salafists, are now also now remote in time.  It finds that there is no real chance that the applicant would face a real chance of persecution at the hands of Salafists in Egypt.  The Tribunal has considered the applicant’s claims that he would not remain quiet of he returns to Egypt.  It finds that the applicant has not demonstrated that the strength of his political convictions are such that he would draw himself to the adverse attention of Salafists in Egypt, or the Muslim Brotherhood regime.  His evidence relating to spreading awareness about Islamists was vague and lacked supporting detail.  He was given many opportunities to describe how he spread awareness about Islamists, but his evidence was superficial.  Further in this context, the Tribunal notes that the applicant never suffered serious harm at the hands of Islamic groups who “started to oppose him” and that he claimed harassed him when attending mosque, and that he was about talking to anyone against anything.

   (CB 116)

4. On a fair reading of the Decision Record, there is no claim advanced by the applicant in respect of harm he suffered at the hands of Salafists that was not considered by the Tribunal.  The findings made by the Tribunal were open to it on the material before it and for the reasons it gave.

5. Accordingly, this ground of review raises no error on the part of the Tribunal and cannot succeed.

Ground 4

1. This ground advanced by the applicant is premised upon the contention by the applicant that the Tribunal fell into error by incorrectly considering the applicant’s claim in respect of his political opinions.  The applicant contends the Tribunal limited its consideration of this claim to the applicant’s membership of the NDP when what he claimed was that he would be forced, on his return to Egypt, by his political opinions to participate in anti-government demonstrations.

2. The applicant’s submissions focus on [53] of the Decision Record.  His Honour Beaumont J stated in Shumilov & Anor v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 487 at [29]:

   29.    … [T]he tribunal's reasons must be read as a whole in order to understand properly the process undertaken by the tribunal. In my opinion, when those reasons are read as a whole, what emerges is that the tribunal has given careful and thorough consideration to, not only the individual claims made on behalf of the applicants, but has also considered each of those claims in the broader context of the general claim of persecution advanced on behalf of each of the applicants. …

3. Between [55]-[68] of the Decision Record, the Tribunal relevantly stated:

   55.    The applicant’s evidence is that he hears the Salafists, other Islamist groups and thugs in general.

   56.    His evidence, in its entirety, did not demonstrate that he has any particular political profile commitment as consistent with his claims of having ever been an individual with a profile of interest to any potential agents of persecution as a supporter of Mubarak or in opposition to the Muslim Brotherhood or of the Salafists or other Islamist fundamentalist groups were he to return to Egypt.

   …

   60.    The Tribunal finds that there is not real chance that due to the strength of his convictions as a former NDP supporter, or because of his opposition to the current government that the applicant would face persecution were he now to return to Egypt.

   …

   66.    … The Tribunal has considered the applicant’s claims that he would not remain quiet if he returns to Egypt.  It finds that the applicant has not demonstrated that the strength of his political convictions are such that he would draw himself to the adverse attention of Salafists in Egypt, or the Muslim Brotherhood regime. …

   67.    Although the Tribunal considered the applicant’s claims regarding generalised violence in Egypt, and actions of Islamist groups, the Muslim Brotherhood, the government or police, it finds that the level of generalised violence has not reached the extent that there is a real chance that the applicant would face persecution for a Convention reasons as a result of the general security situation in Egypt.  Further, is notes that demonstrations continue to occur in Egypt, and that there is insufficient evidence before it to indicate that there is a real chance of serious harm were the applicant to return to Egypt were he to engage in low level political activity.

   68.    … The Tribunal is not satisfied the applicant … holds any political views he intends to voice in the future which would give him a political profile giving rise to a real chance or real risk of adverse attention or treatment by the Egyptian authorities or population in the reasonably foreseeable future.

   (CB 114-116)

4. What follows is that the Tribunal did, in fact, have regard to the broader claim when the Decision Record is read not in isolation.  The Tribunal considered the applicant’s claim he would be forced by his political opinions to participate in anti-government demonstrations if he were to return to Egypt, but found that he would not draw himself to the adverse interests of the Salafists or Muslim Brotherhood regime.  Further, it found the applicant did not hold any political views he intended to voice in the future that would give rise to a real risk or real chance of adverse attention.  Even if he were to engage in low level political activity, the Tribunal found there was not a real chance of serious harm befalling the applicant.

5. The Tribunal did in fact consider the applicant’s broader claim, however, did not accept it.  It gave reasons for its findings that were open to it on the material before it and for the reasons it gave.  This ground cannot be sustained.

Ground 5

1. This ground contends that, in respect of two claims made by the applicant, namely being attacked many times during the January protests and being insulted and questioned by Salafists in his area, the Tribunal failed to deal with these claims other than to say they were “remote in time”.  The applicant’s contention is that to say a claim made is “remote in time” is to say nothing.

2. Again, this ground isolates aspects of the Tribunal’s findings.  What in fact occurred was that the Tribunal made these observations about the remoteness of the events claimed by the applicant and also made numerous other findings to support its ultimate finding in respect of whether the applicant’s claimed fear of persecution was actually well-founded.

3. The phrase “remote in time” appears at [54], [65] and [66] of the Tribunal’s Decision Record. 

4. The Tribunal stated at [54]:

   54.    The applicant’s low level political activities in Egypt are now remote in time.  He has been in Australia since a short time after the resignation of Mubarak.

   (CB 114)

5. At [59]-[60] of the Decision Record the Tribunal stated:

   59.    The applicant faced no serious harm prior to his departure from Egypt.

   60.    The Tribunal finds that there is no real chance that due to the strength of his convictions as a former NDP supporter, or because of his opposition to the current government that the applicant would face persecution were he now to return to Egypt.

   (CB 115)

6. The Tribunal stated at [65]-[66]:

   65.    The Tribunal finds that the applicant’s political activities with the NDP are remote in time.  He has not engaged in political activity in Egypt over a considerable period of time.

   66.    The tribunal finds that the applicant’s claims relating to having been insulted and harassed by Salafists, are now also remote in time.  It finds that there is no real chance that the applicant would face a real chance of persecution at the hands of Salafists in Egypt.  … Further in this context, the Tribunal notes that the applicant never suffered serious harm at the hands of Islamic groups who “started to oppose him” and that he claimed harassed him when attending mosque, and that he was warned about talking to anyone against anything.

   (CB 116)

7. The Minister contends that when read in context, it is clear the Tribunal properly understood the forward-looking nature of the well-founded fear test and properly assessed whether the past events claimed by the applicant were a relevant guide as to what may happen in the future.

8. The Tribunal is permitted to use past events to draw inferences as to what may occur in the future: see Minister for Immigration and Ethnic Affairs v Guo (supra).  Relevant past events may include the conduct or absence thereof by an applicant, as well as instances of harm or lack thereof.  The Minister submits the Tribunal’s observations regarding remoteness in time of a number of the applicant’s claims ought to be viewed as falling within such use by the Tribunal.  I accept that submission.

9. It is clear the Tribunal’s findings were not limited to these aspects of its decision. When read in context, the Tribunal has made findings of a dispositive nature as to these incidents and further found the applicant experienced no serious harm before leaving Egypt. It also considered whether the applicant would engage in conduct if he returned to Egypt that would satisfy the relevant test under s.36(2)(a) of the Migration Act, but was not satisfied there was a real chance he would.

10. The Minister’s submissions otherwise accurately address this ground.  The Tribunal did not apply the incorrect test or tests in respect of the applicant’s claims.  Rather, the Tribunal had regard to all of the applicant’s claimed conduct (including in respect of the remoteness in time of the relevant claims made by the applicant), past events, the applicant’s future conduct if returned to Egypt as against the relevant criteria and considered the forward-looking test when considering whether there was a real chance the applicant would suffer harm if returned to Egypt. 

11. Consequently, this ground cannot be sustained.

Ground 6

1. This ground alleges the Tribunal failed to consider the Convention ground of persecution based on the applicant’s religion, which was “plainly raised” by the applicant.  The applicant relies on [38] of the Decision Record where the Tribunal stated:

   38.    The Salafist insist on five prayers a day, that men grow beards, that women are covered.  Those who oppose them or do not go to mosque face persecution.

   The applicant also relies on his statement at CB 7 where he claimed “a government ruled by Islamic fundamentalists will civil and human rights and implement a incorrect interpretation of Islam”.

1. NABE (supra) is relied on by the applicant in support of this ground.  In NABE (supra), the Court observed at [58]:

   58.    It has been suggested that [an] unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it ... The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

2. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] his Honour Allsop J (as he then was) stated (referring to the word “apparently” in NABE):

   15.    Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

3. As correctly submitted by the Minister, the applicant’s claims contained a religious dimension, to the extent that his political beliefs and those of his purported enemies involve adherence to Islam.  However, the substance of these disputes, as expressed by the applicant in his claims before the Tribunal, were related to the political aspects of Islam.

4. The applicant did not claim he would face harm on the basis of his religion, religious beliefs, religious practices or religious opinions on a separate and distinct basis to his political profile, activities and involvement.  Rather, he expressed his disagreement with his alleged political opponents’ interpretation of Islam and the way they believed it should be adhered to in Egypt.  No separate claim, based on religion or religious beliefs, arose sufficiently from the material before the Tribunal to attract its review obligations. 

5. Accordingly, this ground cannot be sustained and should be dismissed.

Conclusion

1. None of the grounds pleaded by the applicant in his amended application can be sustained.  Further, a fair reading of the Court Book and, particularly, the Decision Record, reveal no error on the part of the Tribunal.  Accordingly, the application should be dismissed with costs awarded to the Minister.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 27 May 2015