Al Zohary v Minister for Immigration & Multicultural Affairs [2000] FCA 1535

FEDERAL COURT OF AUSTRALIA

Al Zohary v Minister for Immigration & Multicultural Affairs [2000] FCA 1535 CITIZENSHIP & MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal ("RRT") affirming decision of delegate of Minister refusing grant – whether RRT erred in concluding that the applicant's fear was not well-founded – whether RRT failed to comply with procedures required to be observed in connection with the making of the decision – whether the RRT failed to set out reasons for its decision – where RRT did not give reasons for rejecting a particular report in evidence before it – whether RRT required to do so

Migration Act 1958 (Cth) ss 430, 476 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 referred to Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 referred to Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to HOSAM AL ZOHARY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 762 OF 2000 EMMETT J 18 OCTOBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 762 OF 2000

BETWEEN: HOSAM AL ZOHARY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 18 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 762 OF 2000

BETWEEN: HOSAM AL ZOHARY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 18 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Egypt who arrived in Australia on 6 September 1997. On 16 October 1997 he lodged an application for protection (class AZ) visa. On 16 March 1998 a delegate of the respondent, the Minister for Immigration & Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 7 April 1998 the applicant applied for review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 25 May 2000 the Tribunal affirmed the decision not to grant a protection visa. 2 The applicant then sought review of the Tribunal's decision by this Court. When the matter was called on for hearing today the applicant filed an amended application for an order of review without objection from the Minister. The grounds of the application, as amended, are as follows: "1. The Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal [s.476(1)(e)]. Particulars The Tribunal misunderstood or misapplied what was stated in MIEA v Guo (1997) 191 CLR 559. Given the Tribunal's findings, the reason why the authorities were looking for the Applicant was not 'mere speculation'. 2. Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a statement in accordance with s.430 [s. 476(1)(a)]. Particulars The RRT's decision turned on its findings about the profile of the people the Egyptian authorities are now targeting. The most comprehensive report before the RRT on this topic was that provided by the United States Department of State. The RRT erred by failing to reveal its reasons, explicitly or implicitly, for rejecting or giving no weight to this summary of how government opponents were being suppressed or, alternatively, for concluding that it did not support Mr Al Zohary's case." THE TRIBUNAL'S DECISION 3 In its reasons the Tribunal, after summarising the questions that arise in connection with the application of the Refugees Convention, dealt with the applicant's claims that he feared persecution for a Convention reason. The Tribunal then set out evidence under the heading "Information from external sources". After dealing with that material the Tribunal said as follows in relation to matters raised with the applicant during the course of the hearing: "…that after considering the above information, regarding the activities of Islamic militants and the government's response towards those suspected of being involved in such activities, the Tribunal had formed the view that the applicant did not have the profile of a person who would currently be of interest to either the militants or the government." 4 In its conclusions the Tribunal said that it had considered the applicant's claim that in 1995 he unknowingly became involved with religious militants in Egypt and that due to those activities he is now at risk of harm from the Egyptian authorities and the militants. The applicant had claimed that he would be mistreated as a militant by the authorities and harmed, possibly killed, by the militants because they would assume that he provided information to the police regarding their activities. The Tribunal accepted that the applicant genuinely fears that in Egypt he will be harmed by the government and the militants. However, as the Tribunal observed, for fears to be well-founded, there must also be a factual basis for that fear. 5 The applicant's case was that he is a devout Muslim. Prior to his departure from Egypt he had lived in Cairo and had been active at his local mosque. At the beginning of 1994 he started to attend lectures at the mosque. They dealt with keeping the moral and spiritual values of Islam, its tolerance and affection amongst the population of Egypt. After a lecture in December 1994 he was asked to accompany a security officer to the local security office. The security officer told him that the mosque was a meeting place for the Islamic Brotherhood. He was beaten and forced to make a written undertaking not to attend meetings at the mosque. The applicant continued to attend the meetings and participated in discussions about the application of Sharia law in Egypt. 6 In early 1995 the meetings were moved to a private residence to avoid further difficulties with the authorities. The applicant later learned that some members of the group were fundamentalists who were prepared to resort to violence to achieve their aims. It became obvious to him that he had inadvertently become associated with Muslim extremists and he decided to disengage gradually from the group. He received a scholarship to study for three months in Japan and left Egypt on 22 June 1995. After completing his training in Japan he came to Australia on a holiday. 7 After arriving in Australia he was told by his father that the police wanted to speak to him and that the other members of the group had been arrested and had disappeared. He was later told that those arrested were members of the Brotherhood and that some persons from the Brotherhood who were unknown to his family were inquiring about him. His father has told him that the police continue to ask for him. 8 At the hearing, the Tribunal put a number of propositions to the applicant. It said it had considered the information about the current status of the Muslim Brotherhood and had formed the view that he would not be of interest to the authorities simply because he may have come into contact with the Brotherhood in 1994 or 1995. The information indicated it was "active, prominent and outspoken members" of the Brotherhood who attracted the attention of the authorities. The applicant contended that he was implicated in the activities of fundamentalists who were prepared to use violence. In response to the claim that the applicant had inadvertently become associated with Muslim fundamentalists the Tribunal considered information about the more violent Islamic groups of Egypt. It said it had formed the view that he did not have the profile of a person who currently would be of interest to the government. 9 In subsequent submissions, the applicant stated that his fear was not based on assertion but it was based on evidence. He asserted that his family had continually stopped him from returning because the State security members were asking for him at the front door of his family residence. He said that they believed he was linked to the Muslim extremist groups. 10 The Tribunal accepted a number of the applicant's claims. The Tribunal accepted that the applicant genuinely fears that in Egypt he would be harmed by the government and that in 1994 he was questioned and assaulted by the police who accused him of being associated with militants in his local mosque. It accepted that the applicant and his associates were detained and mistreated in the mid-1990s and that the authorities have asked his father where he is. The Tribunal also accepted that inquiries by the authorities indicate that they may contact him on his return to Egypt. However, after considering the claims in conjunction with relevant information from external sources, the Tribunal was not satisfied that the applicant's fear is well-founded.

WHETHER TRIBUNAL ERRED IN DEtermining if the applicant's fear was well-founded 11 The first ground of review asserts, in effect, that the Tribunal misdirected itself as to the nature of the undertaking on which it embarked as to whether the applicant's fear was well-founded. The Tribunal, in the course of its conclusions, said the following: "Although the Tribunal accepts the applicant's claim that the authorities have asked his father where he is, the Tribunal is not satisfied from the information he provided that those inquiries demonstrate that the authorities consider him to be a militant. It is the Tribunal's view that it is 'mere speculation' by the applicant that the authorities in Egypt suspect him of being a militant." (Emphasis added.) 12 The applicant contended that the Tribunal's findings about what had happened to the applicant provided a substantial basis for the applicant's fear. It was not mere speculation. It was, so it was said, an inference to be drawn from what the Tribunal had accepted of the applicant's claims. 13 It is significant, however, that the Tribunal set out what it said was its understanding of the requirements for establishing a well-founded fear. No issue was taken with the Tribunal's statement of the law. Thus the Tribunal said the following: "A person has a 'well-founded' fear of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason." "…a well-founded fear 'requires an objective examination of the facts to determine whether the fear is justified'…whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear'…the Convention, 'in speaking of "well-founded fear of being persecuted", posits that there should be a factual basis for that fear'… 'Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it…But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.'" 14 The Tribunal referred to the reasons of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259. The applicant's contention was that, notwithstanding those statements of principle, the Tribunal in fact ignored them and that in the light of the short passage set out above it misdirected itself by concluding that it was mere speculation by the applicant that the authorities in Egypt suspected him of being a militant. 15 However, that contention, it seems to me, overlooks the detailed findings that the Tribunal made and the analysis that the Tribunal made of the evidence before it. Immediately after the passage to which I have just referred the Tribunal went on to say as follows: "Information from external sources, discussed above, indicates that the period of widespread and often indiscriminate repression of Muslim activists by the government has effectively ended. Militant activity by Muslim fundamentalists has also diminished sharply in the last two years and the government has responded by focusing its attention on the more prominent, outspoken and publicly active members of Islamic organisations or individuals who are implicated in terrorist attacks. The applicant's description of his circumstances in Egypt indicates that he has never been a prominent, outspoken or publicly active member of an Islamic organisation neither has he been involved in any activities associated with terrorism. Therefore, the Tribunal is satisfied that despite his earlier difficulties with the authorities in 1994, the applicant does not have the profile of a Muslim activists [sic] or a Muslim fundamentalist who would currently be of concern to the authorities in Egypt. If indeed the authorities in Egypt do contact the applicant on his return, and their inquiries indicate that they may, the Tribunal is not satisfied by the available information that it would be for a Convention related reason." That analysis indicates that the Tribunal reached a positive conclusion that there was no real substantial basis for the fear that the applicant has. Certainly the Tribunal accepted the claims that I have mentioned above. Had there been nothing further it may well have been erroneous for the Tribunal to say that the claims were mere speculation. However, the Tribunal's conclusion and finding was that, having regard to the evidence that was before it, there was no real ground for fear if the applicant now returned to Egypt. The Tribunal makes it clear that it accepts evidence before it that militant activity had diminished in the last two years and that the government had responded by focusing its attention on the more prominent, outspoken and publicly active members of Islamic organisations or individuals who were implicated in terrorist attacks. 16 I consider that on a fair reading of the Tribunal's reasons the Tribunal made findings of fact that the subjective fear of the applicant had no sufficiently well-founded basis to justify a conclusion that the definition of refugee applied to the applicant.

whether the Tribunal failed to set out reasons for its decision 17 The second ground concerns the alleged failure to comply with s 430(1)(b) of the Migration Act 1958 (Cth) ("the Act"). Section 430(1) provides as follows: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based." No complaint is made in relation to paragraphs (a), (c) or (d). 18 A requirement to set out findings on material questions of fact and refer to material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with – see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at para [56]. The applicant however relies on a possible qualification to such a principle to be derived from observations made obiter by McHugh J in Ex parte Durairajasingham (2000) 168 ALR 407. At paragraph 65 McHugh J said as follows: "…the obligation to set out 'the reasons for the decision' (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed to do so would be contrary to the direction in section 420 of the Act that: (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; (b) must act according to substantial justice and the merits of the case." 19 In the course of dealing with information from external sources, the Tribunal began by saying that, in response to the applicant's claims, the Tribunal had considered relevant information from external sources. Some information supported the applicant's claims, other information did not. The Tribunal stated that the latter category of information was discussed with the applicant during the hearing as indicated in the reasons. 20 The Tribunal recorded a number of findings concerning the Muslim Brotherhood. At the end of that section of its reasons the Tribunal said as follows: "The Tribunal discussed the above information with the applicant. However, the applicant appeared to have no knowledge of the Muslim Brotherhood or its activities. He repeatedly indicated that he knew nothing of these matters and that he only knew what his father had told him. He stated that he only knew that the Muslim Brotherhood was a secret and feared organisation with all its difficulties in Egypt relate to its association with the Muslim Brotherhood." The Tribunal then, under the heading, "Current status of the Muslim Brotherhood" indicated that it had discussed with the applicant the current status of the Muslim Brotherhood in response to his claim that the authorities would seek to harm him in the future because they assume that he was implicated with the organisation. The Tribunal noted that recent reports have indicated that the Government of Egypt has again targeted members of the organisation for harassment. The Tribunal referred to a number of documents and then indicated as follows: "The Tribunal indicated to the applicant that after considering the above information regarding the Muslim Brotherhood the Tribunal had formed the view that he is not a person who would be of interest to authorities because he may have had some contact with the Muslim Brotherhood in 1994/95. The Tribunal stated that the above information indicates that it is active, prominent, and outspoken members of the Brotherhood that have attracted the adverse attention of the authorities." 21 In the course of dealing with recent activities by militants in Egypt the Tribunal referred to a document entitled, "1999 Country Reports on Human Rights Practices" released by the Bureau of Democracy, Human Rights and Labour, US Department of State, February 25, 2000. The Tribunal referred to a statement in that report that in contrast to the previous year, and for the first time in ten years, there were no reports of terrorist incidents during 1999. 22 There was, however, no other mention of that document in the Tribunal's reasons. The applicant contends that the failure to refer to that document and to give reasons for rejecting it was a failure to comply with s 430(1)(b). It was said that the contents of that document are inconsistent with the findings made by the Tribunal that the applicant did not have the profile of a person who would currently be of interest to either the militants or the government and that the applicant does not have the profile of a Muslim activist or a Muslim fundamentalist who would currently be of concern to the authorities in Egypt. In section 1(d) of the report, headed "Arbitrary Arrest, Detention or Exile", the following parts were said to be of significance: "As part of the Government's antiterrorist campaign, security forces conducted mass arrests and detained hundreds of individuals without charge. Police also at times arbitrarily arrested and detained persons. ……………………… Arrests under the Penal Code occur openly and with warrants issued by a district prosecutor or judge. There is a system of bail. The Penal Code contains several provisions to combat extremist violence. These provisions broadly define terrorism to include the acts of 'spreading panic' and 'obstructing the work of authorities'. During the year, security forces and police arrested at least 249 persons allegedly associated with the Muslim Brotherhood, an Islamist opposition organisation. In August security forces arrested about 2 dozen students at Cairo and Zagazig Universities who were suspected of Muslim Brotherhood membership. The EOHR alleged that the security forces harassed politically affiliated students at the beginning of each academic year (see Section 2.a). In October and November security forces arrested 26 alleged members of the Muslim Brotherhood in the Delta region and 8 in Minya. Four more suspected members were arrested in Qena in December. An unknown number of Muslim Brotherhood members who were arrested during the year reportedly were released later. On October 20, security forces arrested and detained 20 professional leaders of the Muslim Brotherhood and accused them of membership in an illegal group and incitement against the Government. The Government referred the cases to the military courts. ……………………… In January Mahmoud Mohamed was arrested and detained for more than 30 days by security forces after he send a telegram to President Mubarak asserting that he would not support Mubarak in the presidential referendum held in September. After the media publicized the story, Mubarak ordered Mohamed's release. In March six members of the Tagammu opposition party were arrested by security forces, following a meeting in Cairo, for possessing pamphlets that criticized the draft labor law. ……………………… There were a few unconfirmed reports that several converts to Christianity were subjected to harassment by the security services, including temporary detention. (see Section 2.c) Human rights groups reported that hundreds, and according to one report, thousands of persons detained under the Emergency Law have been incarcerated for several years without charge. The courts have ordered the release of several of these detainees, but prison officials reportedly have ignored the orders. The Ministry of Interior frequently reissues detention orders to return detainees to prison. In April the Ministry of Interior reported that it had released 1,200 political detainees described as 'repentant extremists'. This group included persons who had served their sentences but had remained in detention, and persons who had never been charged or tried. The release brought the total number of detainees released in the past 2 years to more than 6,000. Following the releases, revised prison population estimates indicate that there are 10,000 prisoners who are registered and serving sentences and approximately 12,000 political detainees." 23 The applicant contends that that material is in direct conflict with the findings concerning the profile of the applicant to which I have referred. However, I do not consider that it is entirely clear at all that the State Department's report is inconsistent with the findings of the Tribunal that it is only those who are active, prominent and outspoken members of the Brotherhood that have attracted the adverse attention of the authorities. 24 An inference could be drawn from the material in the State Department report, for example, that because 249 persons allegedly associated with the Muslim Brotherhood had been arrested that anybody allegedly associated might be the subject of arrest. However, it is in my view clear the Tribunal was emphasising the lapse of time that had passed since the applicant had had any association with the Muslim Brotherhood. The Tribunal's view was that the applicant would not be of interest to the authorities simply because he may have had some contact with the Brotherhood in 1994 to 1995. That is emphasised by the Tribunal's reference to the information summarised by it as indicating that it is "active, prominent and outspoken members" of the Brotherhood that have attracted adverse attention. There is nothing in the State Department report to indicate that any of the people arrested had not had any association with the Brotherhood since 1995. Rather, the inference is that it is persons who currently have an association with the Brotherhood that have attracted the attention of the authorities. 25 The purpose of a provision such as s 430(1)(b) is to enable a party dissatisfied with a decision to determine whether some reviewable error has been committed by the Tribunal in making its decision. It is to enable a person dissatisfied to know why the Tribunal reached the decision it did – see Singh (above) atparas [36] and [62]. I consider that on a fair reading of the reasons the Tribunal did explain why it reached the decision it did. The applicant would, as a practical matter, be no better informed as to why the application has been rejected if the Tribunal had dealt expressly with the passages from the State Department report to which I have referred. Whether or not there was inconsistency, the Tribunal made it clear in its findings why it reached the findings that it did. I am not persuaded that there was any failure to comply with s 430(1)(b). 26 In the light of what was said by McHugh J in Durairajasingham(above), which was in turn accepted by the Full Court in Singh (above),it must be accepted that there will be circumstances where rejection of evidence is one of the reasons for a decision. In those circumstances s 430(1)(b) will require the Tribunal to state that it has rejected or failed to accept evidence. It is not appropriate for me to endeavour to formulate precisely what might fall within the qualification expressed by McHugh J. One possible circumstance might be where a Tribunal makes a credibility finding because of the rejection of evidence given by an applicant. That is not this case. The Tribunal was entitled to give such weight as it considered appropriate to all of the evidence before it. There was no obligation for it to give any reasons as to why it did not accept the State Department report insofar as that report was inconsistent, if it was, with the findings that it reached. 27 I do not consider that this ground has been established. It follows in my opinion that the application should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 31 October 2000

Counsel for the Applicant: Mr C Colborne

Counsel for the Respondent: Mr M Leeming

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 18 October 2000

Date of Judgment: 18 October 2000