SZVFO v Minister for Immigration

[2016] FCCA 2344

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFO & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2344

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visas – whether the Tribunal’s finding was unreasonable – whether the Tribunal failed to apply the real risk test – whether the Tribunal’s decision lacked an intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

First Applicant: SZVFO

Second Applicant: SZVFP

Third Applicant: SZVFQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2779 of 2014

Judgment of: Judge Street

Hearing date: 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Sydney

Delivered on: 7 September 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. Leave to the Applicant to file in Court the amended application dated 2 December 2015.

3. The amended application is dismissed.

4. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2779 of 2014

SZVFO

First Applicant

SZVFP

Second Applicant

SZVFQ

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 September 2014 affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas.  All three applicants were found to be citizens of Egypt.  The first and second applicants are husband and wife, and the third applicant is their child. 

Claims for Protection

1. The second applicant made no independent claims for protection of her own and was included as a member of the family unit of the first applicant.  The first applicant claimed to fear harm by reason of his change in belief to that of a Quranist, which, in substance, was a departure from strict Sunni beliefs and practices.  The first applicant alleged there was a particular incident with a young Sheikh which resulted in an older Sheikh being told about the first applicant’s views. Allegedly, the older Sheikh became angry and threatened to report the first applicant to Salafists and inform his wife’s family. 

2. The first applicant alleged that he was forced to pretend that he had Sunni beliefs.  The first applicant allegedly feared that he would be killed or forcibly divorced from his wife and feared mistreatment from the Islamic community, his family, Sheikhs and Salafists.  The applicant made reference to the dominance of the practice of Sunni Islam in Egypt and that the authorities would not protect the applicant because they were Sunni. The first applicant also alleged that he fears harm as a result of not wanting to have his daughter circumcised.

3. The third applicant, being a child, had a claim advanced on her behalf as she feared that she would be subjected to female genital mutilation.  The fear advanced on behalf of the third applicant was that she would be circumcised and that her grandparents would want to take control of her upbringing as her grandparents believe her parents are not doing so in accordance with Islam and that they believe the first applicant is a Kafir. There is a further fear, that she would be taken from her parents and circumcised. The third applicant claims to fear harm or mistreatment from her family, the Islamic community, and Sheikhs. 

The Delegate’s Decision

1. On 25 February 2014, the delegate refused to grant protection visas to the applicants.  The delegate made reference to the first applicant’s migration history.  The first applicant travelled from Egypt to Libya in 2006 and had first arrived in Australia in 2007 on a TU-572 Student visa.  The delegate made reference to the fact that the applicant departed Australia three times since his return to Egypt.  The delegate noted that the first applicant married the second applicant in late 2011 and that their child was born in Egypt in 2012.  The delegate noted that the first applicant last arrived in Australia on 4 February 2013 and that he lodged an application for protection on 18 April 2013.

2. The applicant’s spouse and child were granted TU-572 Student visas on 20 August 2013 and arrived in Australia on 7 September 2013.  The second and third applicants lodged a Part D protection visa application on 1 October 2013 as members of the family unit of the first applicant. An independent application for protection was also lodged on behalf of the third applicant. 

3. It is apparent from the first applicant’s application that he had been issued with a further passport in Egypt on 14 January 2012, which is to expire on 13 January 2019.  The delegate made reference to the claims on behalf of the first applicant and third applicant and raised a concern as to the legitimacy of the applicant’s claims in relation to his family, given that the applicant continues to remain in contact with his parents in Egypt approximately twice a week.  The delegate found that it was clear the first applicant had not been ostracised by his parents.  The delegate noted this gave rise to questioning the seriousness of the claimed threats made to the applicant by his family.  The delegate referred to the alleged threats from the wife’s family and did not accept the applicant’s evidence that he had been threatened in that regard. 

4. The delegate then turned to the issue of female genital mutilation and the threat from the first and second applicants’ families to have the third applicant circumcised against her and her parents’ wishes.  The delegate noted that although there was wide social acceptance of female genital mutilation in Egypt, it remains the decision of the girl’s parents as to whether or not she is circumcised. 

5. The delegate also made reference to the fact that the first applicant had a sister who lived outside of Egypt for more than 10 years and also disagrees with female genital mutilation, and refuses to have her daughters subjected to it.  The delegate noted that there was no evidence that the applicant’s parents, uncles, or other family members had pressured the first applicant’s sister and her husband to have their daughters circumcised.  It was in those circumstances the delegate did not accept that the first applicant’s parents and parents-in-law will take the first applicant’s child from him and his wife in order to raise her their way and to have the child undergo female genital mutilation. 

6. The delegate was not satisfied that the applicants had a real chance of being persecuted for a Refugees Convention reason and was not satisfied that the applicants’ fears were well-founded.

7. The delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants will be subject to significant harm. 

The Tribunal Decision

1. The applicants lodged an application for review on 15 March 2014.  By letter dated 30 July 2014, the applicants were invited to attend a hearing at the Tribunal to take place on 28 August 2014.  The applicants appeared on that date, and the first and second applicants gave evidence and presented submissions.  The Tribunal identified the relevant law and identified the first and third applicants’ claims, including a new claim raised at an interview with the Department, on 22 November 2013, by the first applicant, that he would be forcibly divorced from his wife and killed because he refuses to have his daughter circumcised. 

2. The Tribunal did not find the evidence of the first applicant to be convincing or persuasive.  The Tribunal made adverse credit findings in relation to the first applicant.  The Tribunal found that the first applicant was not a witness of truth and was prepared to fabricate some of his claims and exaggerate others for the purpose of obtaining protection visas.  The Tribunal formed the view that the second applicant was prepared to support the first applicant’s claims and exaggerate the third applicant’s claims without regard to the truth for the purpose of obtaining protection visas. 

3. The Tribunal made reference to the first applicant’s migration history and the circumstances in which the he left his wife and daughter residing with his parents when he last left Egypt. The Tribunal referred to the first applicant’s evidence, in relation to his change in belief as a Quranist as well as to the claims concerning being forced to be divorced and the female genital mutilation of the third applicant. 

4. The Tribunal made reference to the communications the first applicant alleged he had with his parents and why he alleged that he had asked them to wait in relation to circumcising his daughter and that his parents were already aware of his views on female circumcision.

5. The Tribunal made reference to the alleged threats in relation to the third respondent and the circumcision of a five-year old niece.  It was in those circumstances that the Tribunal turned to identify that the first applicant had other family members living outside Egypt.  The Tribunal twice identified that the first applicant had a sister living in Austria.  The Tribunal identified that the sister opposes female genital mutilation and that she had four daughters, none of whom were circumcised. 

6. The Tribunal noted that the first applicant alleged that his father has nothing to do with his sister.  The Tribunal made reference to the proposition that if the first applicant’s sister was able to bring up her daughters as she wishes, the first applicant should be able to do so as well. 

7. In the context of the Tribunal’s decision read as a whole, it is apparent that the Tribunal was referring to the relationship between the parents and the children who allege opposition to circumcision.  It is apparent that the Tribunal was alive to and appreciated that the sister lived outside Egypt.  The Tribunal did not reason, by reference to the sister’s four daughters living in Austria who had not been circumcised, that there was therefore, no well-founded fear of persecution or no real risk of suffering significant harm.  Rather, the Tribunal was commenting on the nature of the relationship with the parents of the first applicant in circumstances where the Tribunal had found the first applicant and his wife not to be credible witnesses.  The Tribunal considered the country information in relation to female genital mutilation.

8. The Tribunal did not accept that there is a real chance that the first applicant will be persecuted and killed because of his actual or imputed religious beliefs.  The Tribunal did not accept there is a real chance that the first applicant will be harmed or mistreated by the Islamic community, his family, Sheiks or Salafists because of his actual or imputed religious beliefs. The Tribunal did not accept that the authorities would not protect the applicant because they are Sunni. 

9. The Tribunal found there was no real chance that the first applicant would be at risk of persecution on the grounds of religion or any other Refugees Convention reason if he returns to Egypt now or in the reasonably foreseeable future.  The Tribunal found that the first applicant did not have a well-founded fear of persecution for a Refugees Convention reason. 

10. The Tribunal identified further country information in relation to female genital mutilation.  The Tribunal did not accept that the third applicant’s grandparents would take control of her upbringing.  The Tribunal did not accept that the third applicant will be taken from the first and second applicants and circumcised against their wishes.  The Tribunal did not accept there is a real chance that the third applicant will be harmed or mistreated by her family, the Islamic community, or Sheiks, in relation to the issue of female circumcision. 

11. The Tribunal did not accept that there is a real chance that the first applicant’s parents or any other family member will circumcise the third applicant against the wishes of her parents. 

12. The Tribunal found that there is no real chance that the third applicant would be at risk of persecution on the grounds of religion, membership of a particular social group, or any other Refugees Convention reason if she returns to Egypt now or in the reasonably foreseeable future.  The Tribunal found that the third applicant did not have a well-founded fear of persecution.

13. The Tribunal made reference, in relation to considering complementary protection, to a finding that the first applicant’s claims had been fabricated. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Egypt there is a real risk the applicants will suffer significant harm. The Tribunal found that the applicants failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal found that the applicants failed to meet the criteria under s.36(2) of the Act and affirmed the decision under review.

Proceedings Before This Court

1. The grounds of the amended application are as follows:-

   1. The Tribunal’s finding that there was no real chance that the Third Applicant would suffer persecution or that there was no real risk that she would suffer significant harm constituted a failure to exercise its jurisdiction because it was capricious and arbitarty, lacked any intelligible justification and was so unreasonable that no reasonable Tribunal could have made such a finding.

   Particulars

   (a) The Tribunal’s reliance on that fact that the First Applicant’s sister had not circumcised her daughters as evidence that she was able to bring up her daughters as she wished lacked any evident and intelligible justification considering that the Tribunal was aware that the sister was living in Austria.

   (b) The Tribunal’s confidence that the Third Applicant would not be the victim of genital mutilation at some time in the future was arbitrary and capricious and lacked common sense. It could only have been arrived at by a failure to apply a real chance or real risk test to the evidence, including evidence that 74% of girls aged between 15 and 17 had suffered such mutilation.

   (c) The Tribunal’s finding that the Third Applicant would not suffer forced genital mutilation was based on an unfounded supposition about the parents’ ability to protect her against family and societal pressure and power in Egypt. The Tribunal failed to take into account the long-term risk to the Third Applicant as she grew older and approached puberty, and the instability and lack of effective protection for females in Egypt.

   (Errors and emphasis in original)

2. In relation to ground 1, the solicitor for the applicant, Mr Jones, contended that the Tribunal’s reasons in paragraph 39 and in particular, the last sentence, reflected a reasoning by the Tribunal as to whether or not the applicant would suffer significant harm and that, because the first applicant’s sister was in Austria, the reasoning was therefore irrational or unreasonable in relation to the third applicant’s fears in Egypt, as well as to the fears of the first applicant.

3. Mr Jones contended that the last sentence of paragraph 39 revealed that the Tribunal was taking into account the upbringing of the four daughters by the sister in Austria as a fact relevant to whether the third applicant faced the risk of female genital mutilation in Egypt.  The last sentence of paragraph 39 must be read in its context and by reference to the decision as a whole.

4. Reading the decision as a whole, without a keen eye for error, it is apparent that the Tribunal, in the last sentence of paragraph 39, was referring to the relationship between the children and the parents.  The observation by the Tribunal in relation to the sister’s relationship with the first applicant’s parents and ability to bring up her daughters cannot be said to be irrelevant to the evaluation of the applicant’s claims.  The delegate had also referred to the same topic as referred to above. 

5. The finding of the Tribunal, in relation to the sister’s ability to bring up her daughters, was relevant to the relationship between the first applicant and his parents and the alleged fears in relation to the third applicant.  The finding, in relation to the last sentence in paragraph 39, was open on the material before the Tribunal.  The adverse findings in respect of the claims of the first and third applicant cannot be said to lack an evident and intelligible justification.

6. The Tribunal did not, thereby, reason that the claims, in relation to the third applicant, did not give rise to a well-founded fear of persecution. Rather, the Tribunal identified that there was a credit issue in relation to the first and second applicants. The Tribunal took into account the country information and the claims and fears of the first applicant and third applicant and made adverse findings. The adverse findings made by the Tribunal were open on the material before the Tribunal.

7. In relation to ground 1(a), I do not accept that the Tribunal reasoned that there was no real chance that the third applicant would suffer persecution or that there was no real risk that she would suffer significant harm by reference to the sister of the first applicant and her daughters living in Austria who had not been circumcised. The Tribunal plainly understood that the sister and her daughters were living in a different country. The adverse findings by the Tribunal were open and were not capricious, arbitrary, or unreasonable. Ground 1(a) fails to make out any jurisdictional error.

8. In relation to ground 1(b), the Tribunal correctly identified the relevant law and, in its reasons, referred to the real chance test both in paragraphs 56 and 58.  It is apparent that the Tribunal took into account the country information in relation to female genital mutilation in Egypt.  The adverse findings were not arbitrary, capricious, or unreasonable. The adverse findings reflected orthodox reasoning that was open to the Tribunal. I reject the submission that the Tribunal failed to apply the correct test. Ground 1(b) is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 1(b) fails to make out any jurisdictional error.

9. In relation to ground 1(c), Mr Jones submitted that the reference to the reasonably foreseeable future in paragraph 58, was not in fact a reflection of what the Tribunal had done in relation to assessing the future risks concerning the third applicant. It is apparent from the Tribunal's reasons that it had focused on the country information, and relevantly, the Tribunal said that it did not accept that the first applicant had convinced his parents that he will allow the third applicant to be circumcised when she is older. The adverse findings in relation to the first applicant and the communications with his parents concerning the third applicant were open. Further, those findings are consistent with the Tribunal properly assessing the reasonable foreseeable future. 

10. It is clear that the Tribunal took into account and made a finding that was open in relation to the alleged risk of persecution. There was no unfounded supposition. The findings in relation to the third applicant’s parents’ opposition to circumcision and the adverse finding as to the third applicant as to the alleged risk of circumcision were open. Taking into account the reference to the reasonably foreseeable future as identified in paragraph 58, the Court is not satisfied that there was any failure to take into account the long term risk to the third applicant. The Court is not satisfied that there was any failure to take into account the situation in Egypt or the submissions as to lack of effective protection of females. Ground 1(c) is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 1(c) fails to make out any jurisdictional error. 

1. The amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 September 2016