SZVGU v Minister for Immigration

[2016] FCCA 3342

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3342

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal affirming decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa – whether Tribunal considered applicant’s explanation for discrepancies in the claims she made before the delegate and the claims she made before the Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa), 424A

Applicant: SZVGU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2840 of 2014

Judgment of: Judge Manousaridis

Hearing date: 25 November 2015

Date of Last Submission: 25 November 2015

Delivered at: Sydney

Delivered on: 21 December 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

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

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2840 of 2014

SZVGU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

Applicant’s claims of protection

1. The applicant claimed she is a widow, and a Coptic Christian. Before she entered Australia on a visitor visa, the applicant had lived all her life in Cairo. The applicant, her husband, three sons, and daughter, lived in an apartment block they owned. On the ground floor of the apartment block there was located a leather factory business which the applicant’s family owned. The applicant’s family lived in the apartment located above the factory.

2. In April 2011 a local sheikh (Sheikh O) found out one of the applicant’s sons (E) had an intimate relationship with the daughter of Sheikh O. Sheikh O then tried to force E to convert, but then began to threaten the applicant’s family. The applicant’s three sons were beaten and tortured in front of her, and the police refused to intervene. The applicant further claimed that in May 2011, women and children associated with Sheikh O broke into the family’s apartment, bashed the applicant, and stole the applicant’s gold and jewellery. Sheikh O also imposed a fatwa.

3. In August 2011 son E left Egypt for Brazil. The applicant’s two other sons moved from place to place to hide from Sheikh O. The applicant remained in the apartment until November 2011 when her husband died. After her husband’s death, the applicant did not stay overnight in the apartment. The applicant also said, however, that she would stay at home for a little while, and then leave. People, however, used to come to the door of the apartment, bang on the door, and shout insults to the applicant.

4. After the applicant arrived in Australia, and one week before her interview with the delegate, the applicant’s children’s friends had told her children that Sheikh O’s “people” had broken into the applicant’s apartment and “stolen everything”.[1]

   [1] CB12

424A Letter

1. After the hearing, the Tribunal sent a letter dated 11 August 2014 to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Act) in which the Tribunal identified three inconsistencies between what the applicant said before the Tribunal and what she said before the delegate:

   a)Before the delegate the applicant said Sheikh O issued the fatwa in May 2011 whereas before the Tribunal the applicant said the fatwa was issued in May 2012.

   b)Before the delegate, the applicant said that, after her husband’s death, she returned to the apartment for one or two nights now and then. Before the Tribunal, the applicant denied she ever stayed overnight at the apartment after her husband’s death.

   c)Before the delegate, the applicant said she was beaten in her apartment by a group of women and children between November 2011 and November 2012 during one of her short overnight stays after her husband’s death. Before the Tribunal, however, the applicant said she was beaten on 27 May 2011, before her husband’s death.

2. The applicant responded by letter dated 1 September 2014 in which she attempted to explain the inconsistencies identified in her claims for protection.[2] First, the applicant said she attended the interview before the delegate one week after she had been discharged from Concord Hospital, and the applicant was under “heavy medication and was unable to concentrate”. Second, the applicant referred to her having been tortured at the hands of Muslims. It may be the applicant was claiming she was unable to concentrate for that reason. In any event, the applicant said the interpreter that was available before the delegate was a Muslim, and the applicant “was not satisfied to be interviewed and have a Muslim interpreter for that interview”.

   [2] CB90-91

Tribunal’s decision

1. The Tribunal did not consider the applicant provided a truthful account of the reasons she departed Egypt, and her unwillingness to return.[3]. The Tribunal relied on a number of matters.

   [3] CB97, [21]

2. First, the applicant raised at the hearing before the Tribunal for the first time what the Tribunal considered to be significant claims.[4] Before the Tribunal, the applicant claimed her son, E, had been detained for fifteen days, beaten, and tortured to make him convert. The applicant also claimed her two other sons were arrested and imprisoned, during which time they were beaten to make them convert.[5]

   [4] CB97, [22]

   [5] CB97, [25]

3. Second, although the Tribunal accepted the applicant and her family may have had some problems with Muslims in their neighbourhood in April and May 2011, that the applicant may have been the victim of some opportunistic crimes, that the applicant’s family’s factory was damaged by fire in April 2011, that the applicant was subjected to some harassment in her apartment from local Muslims, and that she may have been robbed and possibly assaulted, the Tribunal found the applicant had substantially exaggerated the degree of harm she claims she and her family suffered between April 2011 and her departure from Egypt in November 2012.[6] The Tribunal did not accept that the incidents it was prepared to accept had occurred were part of a targeted campaign waged against the applicant’s family by Sheikh O because of E’s relationship with his daughter.[7] In that regard, the Tribunal found that the applicant’s claim that she and her husband continued to stay in the apartment up to November 2011 when the applicant’s husband died was inconsistent with the applicant’s claim that, in May 2011, Sheikh O’s supporters stole goods from the factory and set it on fire.

   [6] CB98, [29]

   [7] CB98, [29]

4. Third, the Tribunal did not accept a fatwa was issued against the applicant and her family. The applicant had given two different dates on which she claimed the fatwa had been issued, namely, May 2011 and May 2012; and the Tribunal did not accept the applicant and her husband would have been able to remain in the apartment between April and November 2011 without experiencing serious harm if the Sheikh family did in fact intend to inflict serious harm on the applicant’s family pursuant to a fatwa.[8]

   [8] CB100, [32]-[33]

5. Fourth, the applicant did not apply for a Protection visa until she arrived in Australia in October 2012, being almost 18 months after the events the applicant claimed gave rise to her fear of persecution had occurred.[9] The applicant said she came to Australia to see her daughter, whom she had not seen for a long time, and whom the applicant wanted to support because she was undergoing IVF treatment. The Tribunal did not accept that if an elderly woman genuinely feared for her life, had been harassed and assaulted in her home, and had been forced to live in hiding for over twelve months; and that no attempt would have been made to bring her to Australia for almost twelve months after she was able to travel following the death of her husband.[10]   

   [9] CB100, [34]

   [10] CB100, [35]

6. Fifth, the applicant “has repeatedly stated that when she left Egypt she intended to return, and that she intended to return right up until she applied for protection”. Given the applicant’s claimed fear of danger, the Tribunal found it implausible the applicant might have believed the situation in Egypt would improve.[11]

   [11] CB101, [36]

7. The Tribunal considered whether the applicant had a well-founded fear of persecution because she is a Coptic Christian. After reviewing country information, the Tribunal concluded it did not accept that Coptic Christians in Egypt are subjected to serious harm amounting to persecution with such frequency that it can be said that every Copt faces a real chance of persecution because of religion.[12]

   [12] CB103, [42]

8. Finally, the Tribunal considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal concluded there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that she will suffer significant harm arising from general insecurity or sectarian violence, or from any other cause.

Grounds of application

1. The application contains two grounds of application:

   1.The Tribunal accepted some harassment and robbery yet denied me protection of Australia.

   2.I ask the Honourable Court to take into account my submission of 1 September 2014 which was overlooked by the Tribunal.

2. The applicant, who is not legally represented, made submissions on three topics. One concerned the circumstances in which she attended the interview with the delegate, which I take to be submissions in relation to ground 2 of the application. The applicant repeated the substance of what the applicant said in her letter dated 1 September 2014, namely, that the interpreter was Muslim, and the applicant had difficulties concentrating because of her health and because of the medication she was taking.

3. This does not disclose any jurisdictional error. The Tribunal did consider the matters the applicant had raised in her letter dated 1 September 2014.

   a)First, the Tribunal noted the applicant had concerns about the provision of a Muslim interpreter before the delegate, and that the applicant made that clear to the delegate. The Tribunal also noted that, although it was unfortunate the interview proceeded, there was no objective basis for the applicant’s concerns about the interpreter, and the applicant was not disadvantaged.[13]

   b)Second, the Tribunal found that, even accepting the applicant felt uncomfortable at the interview before the delegate with a Muslim interpreter, and even if she was unwell and affected by medication, that did not overcome the problem arising from the applicant’s having omitted from her Protection visa application the claim that her three sons had been detained, imprisoned, beaten, and tortured by police.[14]

   c)Third, the Tribunal said it listened to the recording of the applicant’s interview by the delegate three times. The Tribunal said:[15]

   Having listened three times to the recording of the protection interview I do not consider that this discrepancy is the result of a misunderstanding or of confusion on the part of the applicant. I accept that the applicant was not well and was on painkilling medication on the day of the protection interview and that she was, at times, confused. It is clear that on at least one occasion she was confused about dates, when she stated that she left Egypt in November 2011. However, when it was apparent that there might be confusion about dates or claims, the delegate was careful to clarify her evidence. I do not see that any concerns about the interpreter could have impacted the applicant’s evidence about this matter.

   [13] CB97, [23]

   [14] CB98, [26]

   [15] CB99, [30] The discrepancy to which the Tribunal refers is between the applicant’s stating to the delegate that after her husband’s death in November 2011 the applicant used to return to her apartment for one or two nights now and then, whereas before the Tribunal the applicant denied that she ever stayed overnight in the apartment.

4. The Tribunal considered the concerns the applicant raised about the circumstances in which she appeared before the delegate. The Tribunal did not accept that those circumstances explained the discrepancies the Tribunal found existed between what the applicant said to the delegate, and what the applicant said to the Tribunal. It was reasonably open to the Tribunal not to accept that the circumstances in which the applicant gave evidence to the delegate explained away the discrepancies, and for the reasons it gave. This part of the applicant’s claims, therefore, fails.

5. The second matter on which the applicant made submissions is the matter stated in ground 1 of the application. The applicant submitted she could not understand why the Tribunal would not accept her claim in circumstances where the Tribunal accepted that the applicant was subjected to some harassment in her apartment from local Muslims, and that she may have been robbed and possibly assaulted. The question that submission raises is whether it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave, given the Tribunal accepted that some harm may have fallen on the applicant. In my opinion, it was reasonably open to the Tribunal to so find, and for the reasons it gave. That the Tribunal accepted the applicant may have suffered some harm did not compel the Tribunal to find the applicant and her family suffered the significantly greater harm the applicant claimed she and her family had suffered. That is especially so in the circumstances of this case where the Tribunal identified matters on which it was reasonably open to it to rely for concluding that the central aspects of the applicant’s claims were not true.

6. This part of the applicant’s claim also fails.

7. The third matter on which the applicant made submissions was the justice and fairness of the Tribunals decision. In this part of her submissions, the applicant repeated her claims that she feared harm if she were to return to Egypt. These submissions disclose no jurisdictional error; they appeal to the merits of the applicant’s case for a Protection visa. As I informed the applicant, the Court does not have jurisdiction to determine whether she is entitled to a Protection visa.

Disposition

1. I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 21 December 2016