SZUOW v Minister for Immigration

[2016] FCCA 1003

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOW v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1003

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether findings Tribunal made were reasonably open to it for the reasons it gave – whether Tribunal failed to take into account medical conditions applicant communicated to the Tribunal before or during the hearing – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003]

FCAFC 126

NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983

Applicant: SZUOW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1733 of 2014

Judgment of: Judge Manousaridis

Hearing date: 19 May 2015

Delivered at: Sydney

Delivered on: 6 May 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr W Sharpe of Minter Ellison

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1733 of 2014

SZUOW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Egypt, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. In his application for a Protection visa, the applicant claimed he suffered serious harm in Egypt which led to the loss of his liberty to practice his political activities, and was denied the right to express his political views.[1] He claimed he was well known, was very active in his city, and was a member of the Egyptian national party that was led by former president Hussni Mubarak.[2]

   [1] CB49

   [2] CB49

2. Following the political changes in Egypt, the applicant and other active members of the Egyptian national party (also known as the National Democratic Party) were targeted and perceived as supporters of the old regime. They were named “Fulol”. Religious orders were announced to harm the applicant and other members of the Egyptian National Party. The Egyptian national party was banned, and its members were not allowed to practice any activity.[3]

   [3] CB49

3. The applicant participated in demonstrations against the Muslim Brotherhood and was mistreated by being bashed and sprayed with tear gas.[4] The applicant’s activities came to the attention of the Muslim Brotherhood and the applicant was threatened by one of the Brotherhood’s senior members.[5] The applicant reported the incident to the police, but no protection was available to the applicant because the police were part of the regime and supported the new president.[6]

   [4] CB49

   [5] CB49

   [6] CB49

4. Before he departed Egypt, the applicant received a letter containing a photo of him taken at a demonstration.[7] The letter was a warning to the applicant that he would face consequences if he continued supporting the old regime.[8] The applicant’s wife’s parents also received a letter telling them to have their daughter divorce the applicant.[9] The letter relied on a religious order which prohibited the applicant’s wife from continuing to be his wife.[10] The wife’s parents forced her to divorce the applicant.[11]

   [7] CB49

   [8] CB49

   [9] CB49

   [10] CB49

   [11] CB152-160

5. The applicant elaborated on his claims before the delegate.[12] As summarised by the Tribunal,[13] the applicant claimed he was branch president of a group with a membership of 300 for two years before the Revolution. He also claimed he was assaulted on two occasions by members of the Muslim Brotherhood. The first incident occurred around November 2011 when he was assaulted and humiliated in relation to his daughter’s dress while picking her up from school. On the second occasion he was beaten by four men while returning from work. The applicant managed to run away but his colleague, who was not a member of the National Democratic Party (NDP), was severely beaten. The applicant further claimed that about four months before he left for Australia the Muslim Brotherhood shot at him while he driving on a deserted road.

   [12] CB243, [11]

   [13] CB243, [11]

Tribunal’s reasons for decision

1. The Tribunal:

   a)accepted the applicant was a member of the NDP, and was involved in NDP activities, but did not accept the applicant held a senior or official role within the Party, and found that the applicant had exaggerated the significance of his role in the NDP;[14]

   b)accepted the applicant participated in political demonstrations, and that he may have been subjected to some violence, but the Tribunal did not find the applicant was a specific target of the violence;[15]

   c)accepted that during 2011 and 2012 the applicant may have experienced violence at the demonstrations, but considered that any such violence was in the context of the volatile political situation and security conditions which existed at the time;[16]

   d)accepted the applicant may have been subjected to minor harm during the demonstrations, but noted that there was no evidence before it suggesting the applicant was seriously harmed;[17] and

   e)accepted that the applicant may have been threatened and targeted by members of the Muslim Brotherhood because he was known as a “violent partisan of the NDP”.[18]

   [14] CB246, [20]-[21]

   [15] CB147, [22]

   [16] CB247, [22]

   [17] CB247, [23]; CB248, [25]

   [18] CB247, [23]

2. Further, the Tribunal:

   a)considered the applicant’s evidence did not indicate there was a real risk of serious or significant harm during 2011 and 2012: it found the applicant’s evidence regarding the incidents in which he claimed to have been assaulted and threatened to be “very unsatisfactory” because the applicant was vague about the dates of the incidents, and the applicant’s accounts did not match the documents he submitted;[19]

   b)did not accept the applicant’s evidence that he was shot: the applicant did not mention that incident in his application for a Protection visa, and the Tribunal did not accept the applicant’s explanation that his advisor had omitted the incident from the application;[20] and even if it did occur, the Tribunal found it difficult to accept it was politically motivated;[21]

   c)found the applicant did not suffer serious harm as a result of his claimed assaults because of the concerns it had about the credibility of the applicant’s account, and the discrepancies between his evidence and the applicant’s supporting documents;[22]

   d)did not accept the applicant’s wife was compelled by her family and the Muslim Brotherhood to divorce the applicant;[23]

   e)did not accept that there was a real chance the applicant would suffer serious or significant harm because of his political opinion;[24]

   f)found that the applicant’s having travelled outside Egypt, and returned to Egypt on three occasions during 2011-2012, when the applicant his life was in danger, was inconsistent with the applicant’s claimed fear;[25] and

   g)found that the applicant’s waiting to depart Egypt for one month after he had been issued with a visa was inconsistent with his claimed fear.[26]

   [19] CB247, [24]

   [20] CB247, [24]

   [21] CB247, [24]

   [22] CB247-248, [24]

   [23] CB248, [24]

   [24] CB247, [23]

   [25] CB249, [31]

   [26] CB249, [33]

3. The Tribunal also found that the political situation had substantially changed in Egypt since the applicant was last in Egypt. The Morsi government has been removed, and the Muslim Brotherhood had been declared an illegal organisation.[27] The Tribunal referred to country information that provided no support for the contention that former ordinary members of the NDP are currently targeted in Egypt.[28]

   [27] CB250, [34]

   [28] CB250, [35]

4. The Tribunal summarised its findings as follows:[29]

   As noted above, I find that the applicant has exaggerated the actual harm he faced in Egypt prior to his departure, and the risk of harm that he was under at that time. I consider that if the applicant had really been systematically and seriously targeted because of his past activities, it would have been easy for the MB to make good its threats at that time. His own conduct in returning to Egypt three times after trips overseas, and his delaying his departure for Australia for one month after his visa was issued also undermines his claims that he was at serious risk of harm, and fearful for his safety at the time. I consider that any harm faced by the applicant arose spontaneously in the context of violent and volatile demonstrations against the ouster of Mubarak, and later against the MB government. There is no reason to suppose, given the changed circumstances since then, that the applicant would be engaged in similar activities on return. I do not accept, based on the credible information before me, that the applicant would now be targeted for serious harm in a systematic, deliberate manner, when he was not before. I find there is no real chance that he would face persecution now or in the reasonably foreseeable future, as a member of the former NDP, or indeed, as a perceived opponent of the MB.

   [29] CB251, [38]

5. Finally, after noting that the applicant had not made any specific claims based on complementary protection, but had relied on the same circumstances on which the applicant relied for claiming he was a refugee, the Tribunal found there was no real risk that the applicant would be subjected to significant harm if he returned to Egypt.[30]

   [30] CB252, [42]

Grounds of application

1. The application for review contains the following grounds of application:

   1.     The Refugee Review Tribunal accepted that I have been subjected to minor harm and did not accept that I will be subjected to harm when I return.

   2.     The tribunal did not take into account that my evidence was affected by my medical condition which was submitted to the tribunal on 17 May 2014.

2. In this part of his application, the applicant states that “I reserve my right to submit particulars when I receive a copy of my file”. That is not a ground of application.

Ground 1

1. The first ground of review does not disclose any jurisdictional error. It seeks to traverse the Tribunal’s findings. In making its findings, the Tribunal applied the correct legal criteria and made findings that it was reasonably open for it to make for the reasons it gave. Ground 1, therefore, is not made out.

Ground 2

1. The Tribunal referred in its reasons for decision that, before the hearing, the applicant had submitted medical reports relating to injuries he had recently sustained in a car accident.[31] The medical evidence consisted of the following:

   a)A psychologist’s report dated 17 May 2014 expressing the opinion that, as a result of a car accident on 7 May 2014, the applicant was suffering post-traumatic stress disorder.[32]

   b)Medical certificates which relate to the injuries the applicant sustained as a result of the car accident. [33]

   [31] CB243, [9]

   [32] CB208

   [33] CB209-217

2. The applicant provided these documents under cover of a letter dated 17 May 2014 in which he stated:[34]

   I hope that I will be able to give evidence with the assistance of an Arabic interpreter but I need the Tribunal’s patience during the hearing.

   [34] CB207

3. The Tribunal also recorded in its reasons for decision that, at the hearing, the applicant informed the Tribunal that he had taken “pain killing medication that made him dizzy”, but he was “able to give evidence”.[35]

   [35] CB243, [9]

4. There is in evidence a transcript of the hearing before the Tribunal. The following was said about the applicant’s dizziness:[36]

   [36] Tribunal hearing transcript, page 1.20-1.25

   Member: Mr [applicant] I just want to mention first of all that I received the medical documents that you sent in so I just want to have a bit of a talk about how the hearing should proceed today. Now are you in any pain at the moment?

   A through an interpreter: No I have taken a painkiller.

   Member: Ok what pain killer have you taken?

   A through interpreter: The doctor prescribed it for me. It’s called (inaudible).

   Member: And does that make you feel drowsy or confused or forgetful?

   A through interpreter: It does make me a bit dizzy.

   Member: Do you feel able to give evidence today?

   A through interpreter: Yes.

5. Shortly after this exchange, the Tribunal member said:[37]

   Ok now the hearing will probably go for 2 or 3 hours. If you would like a break at anytime please let me know. If you would like to stand up for a while rather than sitting or if you just want to get up and move around the room that is perfectly fine and if you need to take another painkiller please let me know. If at any point you fell unable to continue giving your evidence please say so.

   [37] Tribunal hearing transcript, page 1.30

6. In its reasons for decision, the Tribunal referred to the applicant’s having stated he felt dizzy, and to the applicant’s injuries as described in the medical reports the applicant had submitted to the Tribunal. The Tribunal recorded that the applicant informed the Tribunal that he had taken pain killing medication which made him dizzy, but that he was able to give evidence. The Tribunal also recorded that it explained to the applicant that if he felt his capacity to give evidence was impeded by his injuries or the medication he should inform the Tribunal. The Tribunal found that the applicant was capable of giving evidence at the Tribunal hearing, and that he was not prevented from doing so as a result of any medical condition or treatment. The Tribunal’s conclusion is supported by the transcript of the hearing before the Tribunal. The transcript reveals nothing occurred, or failed to occur, at the hearing that could reasonably have indicated to the Tribunal the applicant was troubled by his being a bit dizzy or by the injuries referred to in the medical reports he had submitted to the Tribunal, or that his being a bit dizzy or having suffered the injuries impaired or, at least impaired in any material way, his ability to effectively participate in the hearing.

7. That there was nothing that could reasonably have indicated to the Tribunal the applicant was affected by his dizziness or injuries does not, however, necessarily mean that he was not in fact affected by these conditions, and that the applicant was necessarily given the hearing he was entitled to be given under s.425 of the Migration Act 1958 (Cth).[38] The onus, however, is on the applicant to show he was unfit to take part in the Tribunal hearing,[39] or was otherwise impaired in his ability to fully and effectively participate in the hearing. There is no evidence before me that could permit me to make any such finding.

   [38] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [33], [37], [38]

   [39] NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 at [69] (Branson J)

8. Ground 2, therefore, fails.

Submissions made at hearing

1. The applicant, who is not legally represented, made a number of submissions at the hearing before me. The first submission was that the statement he provided in support if his application for a Protection visa was incomplete, but the account he gave to the delegate was complete. The applicant submitted “I did not say anything but the truth”.[40] Whether or not the applicant spoke the truth in his claims for protection, however, was a matter for the Tribunal, not this Court, to determine.

   [40] T6.25

2. The applicant’s second submission relies on the Tribunal having accepted that:

   a)country information indicated that general conditions of insecurity and political violence currently exist in Egypt;

   b)the applicant has been harmed in such circumstances before; and

   c)there is a small possibility the applicant may, in the future, be harmed in indiscriminate violence, or violence of which he was no an intended target.

3. The applicant submits that, notwithstanding the Tribunal’s having accepted these matters, the Tribunal did not consider that the country information indicates the risk of such harm occurring was real, rather than remote or insubstantial. The applicant submitted this was a legal error because “no one can predict in the future whether it’s going to be real danger or its real danger”.[41]

   [41] T7.30

4. I do not accept the applicant’s submission. The Tribunal was required to make an assessment of what was to occur to the applicant if he were to return to Egypt. The Tribunal applied the correct legal criteria for making that assessment, and the findings it made, based on its applying the correct legal criteria, were reasonably open to the Tribunal for the reasons it gave.

5. The third submission the applicant made was that the Tribunal erred in finding he was not specifically targeted. He submitted there was solid evidence to suggest he was targeted. He said he was a businessman and asked rhetorically why he would leave work, his country, and family if he were not afraid.[42] This submission, too, raises no jurisdictional error. It was for the Tribunal to assess the applicant’s claim that he feared persecution and harm. The Tribunal assessed the applicant’s claims by applying the correct legal criteria. Its conclusions were reasonably open to it, for the reasons it gave.

   [42] T7.40-T8.5

6. The applicant’s fourth submission is that his migration agent erred in the manner in which he presented the applicant’s case. As I understood the applicant, the complaint is that his migration agent did not include in his application for a Protection visa the applicant’s claim that he was shot at.[43] This discloses no jurisdictional error.

   [43] T10.45-T11.5

7. The applicant gave evidence to the Tribunal that his agent had not included this part of the applicant’s claim in his application for a Protection visa.[44] The Tribunal, however, did not accept the applicant’s evidence. The Tribunal found it hard to believe that the applicant’s adviser would include details of less serious and less recent incidents in the application, but leave out the most serious incident that happened only months before the applicant left Egypt.[45] It was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons the Tribunal gave. In any event, the truth of the applicant’s evidence that he was shot at was not material to the Tribunal’s decision because the Tribunal found that, even if, as the applicant claimed, he had been shot at, the Tribunal did not accept the shooting would have been politically motivated.[46]

   [44] CB247, [24]

   [45] CB247, [24]

   [46] CB247, [24]

Conclusion and disposition

1. The applicant has not established the Tribunal made a jurisdictional error. I propose, therefore, to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  6 May 2016