SZWDL v Minister for Immigration

[2015] FCCA 644

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 644

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A, 476

MZAPO v The Minister for Immigration & Anor [2015] FCCA 96
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZWDL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 415 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr M. Alderton
Mills Oakley

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 20 February 2015, is summarily dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 415 of 2015

SZWDL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This an application of a constitutional writ in respect of the Court’s jurisdiction under s.476 of the Migration Act 1958 concerning a decision of the Tribunal on 21 January 2015 affirming a decision of the delegate not to grant the applicant a protection class (XA) visa.  The application identifies on its return date that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.

2. The grounds of the application in the present case are as follows:

   1. The Tribunal did not assess the serious harm under s. 91R(1)(b) of the Act for my circumstances being convert to Shi’a. It supported the satisfaction by providing country information about existing shi’a people in my country.

   2. The Tribunal erred in assessing my fear under s.36(2)(aa) based on its assessment under s.36(2)(a); whereas, my evidence provided no doubt to submit that I would be at least face significant harm if I returned to Egypt, despite the fact that I would subjected to serious harm under s. 91R(1)(b) of the Act. The Tribunal did not provide fair and independent assessment.

   3. That the Tribunal failed to properly consider article 1A(2) of the Convention relating to the status of refugees and, specifically failed to consider my claims as a member of a particular social group namely convert to Shiaisim. The Tribunal relied only on my religion which also has not well assessed under article 1A(2) of the Convention.

3. The Court raised with the applicant that it was concerned that the application failed to disclose any arguable error within the Court’s jurisdiction.  The applicant was asked to identify any reason why the Court should find there was an arguable error.  The applicant identified that his main problem was that he could not go back to his country and that he belonged to a small village and accordingly, would be at risk.

4. The Court identified, these were matters that were considered by the Tribunal and when asked whether there was anything further the applicant wished to put the applicant said, “No.” 

5. In considering the exercise of the Court’s powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 in particular, [24]-[25] and [59]-[60].

6. In relation to the alleged error in respect of serious harm it is clear that the Tribunal carefully considered the applicant’s conversion to Shiism.  It was a matter for the Tribunal to make findings of fact in relation to the question of whether the applicant faced serious harm and they were findings which I am satisfied were open on the material before the Tribunal.  In essence, the grounds identified by the applicant are an impermissible challenge to the findings of fact by the Tribunal. 

7. To the extent that it is suggested that there was not a fair and independent assessment I am satisfied that the Tribunal brought an impartial and independent mind to bear in its review and that there is no basis on which an objective observer might conclude otherwise.  The Tribunal noted that the applicant arrived in Australia on 5 November 2006 on a student visa and that the applicant was granted a partner visa on 29 October 2009 and that he departed Australia on 5 May 2010 and returned on 19 June 2010. 

8. The relationship with the applicant’s partner ended in February 2011 and his application for a permanent partner visa was refused on 2 July 2011.  The applicant then applied for a review of the decision to refuse him a partner visa but withdrew that application on 17 July 2013.  It was in those circumstances the applicant then applied, on 6 August 2013, for a protection visa.  The Tribunal noted the applicant claims he converted from Sunni Islam to Shia Islam in Australia and he would be harmed if he returned to Egypt.

9. The Tribunal carefully identified the evidence that was before it and noted the decision of the delegate on 14 February 2014 refusing to grant the application.  The Tribunal noted that the applicant appeared before the Tribunal on 12 September 2014 to give evidence and present arguments and was assisted by an interpreter as well as a representative for the applicant. 

   18. On 12 September 2014 the Tribunal wrote to the applicant under s.424A of the Act, inviting him to comment or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason or a part of the reason for affirming the delegate’s decision.

   19. The applicant responded to the Tribunal's letter on 22 September 2014. He also provided additional country information in relation to the situation of Shias in Egypt. This information has been considered in the Tribunal's analysis below.

10. The Tribunal carefully set out the relevant law and although the Tribunal identified that it had certain concerns about the applicant’s overall credibility it was prepared to accept that the applicant had converted his religion otherwise than solely for the purpose of achieving an immigration outcome.

11. The Tribunal set out the relevant country information and relevantly found:

    31. The Tribunal accepts that the applicant may not be able to practise his religion as freely as he has been able to do so in Australia and that he may face some limitation in practising his faith, such not being able to worship in a Shia mosque due to the absence of Shia mosques in Egypt. However, having regard to all of the evidence before it, including the applicant's circumstances and the country information referred to above, which the Tribunal considers to be independent and reliable, the Tribunal is satisfied that if the applicant were to return to Egypt he would be able to continue to practise the core aspects of his faith in a manner similar to how he has been practising his faith in [City 1] by worshipping, praying and celebrating Shia religious events in community. The Tribunal is not satisfied that in doing so the applicant faces a real chance of serious harm in the reasonably foreseeable future. The Tribunal is not satisfied that limitations or the religious discrimination he will face constitute serious harm under s.91R(1)(b) of the Act. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Egypt for the reason of his conversion to Shiism, his adherence to Shia faith, or his imputed political opinion if he returns to Egypt. 

    32. In his evidence to the Tribunal, the applicant stated that the general security situation in Egypt is bad. There are lootings and bombings and Shi’as are not safe. The Tribunal accepts that Egypt is currently experiencing some instability, political violence and deterioration of law and order. However, having considered all the applicant’s circumstances, The Tribunal is not satisfied that the general security situation in Egypt would expose the applicant to a real chance of persecution for a Convention reason in that country.

    33. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant has been harmed in the past in Egypt or that, if he were to return to Egypt now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in Egypt.

12. In those circumstances the Tribunal came to the finding of fact that the applicant did not have a well-founded fear of persecution for a convention reason in respect of returning to his country of nationality, being Egypt.

13. The Tribunal then turned to consider the complementary protection criteria and relevant the Tribunal found:

    36. Concerning general lack of security and violence in Egypt, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the lack of security and instability the applicant fears are faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Egypt as a result of general lack of security and instability.

    37. Having considered the applicant’s claims, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer ‘significant harm’, as that term is exhaustively defined in s.36(2A).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    39. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. It is clear that the Tribunal carefully considered the applicant’s claims in respect of conversion of his religion.  These were findings made by the Tribunal that were open. The grounds 1 to 3 are an impermissible challenge to these adverse findings of fact. It is in those circumstances that the proceedings are clearly doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 March 2015