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MIGRATION - Review of decision of RRT - whether Tribunal erred in failing to consider if applicant's actions in pursuing justice on behalf of a client constituted imputed political opinion - whether Tribunal erred in its definition of `adequate state protection' whether Tribunal considered all required aspects of the current definition.

SZBBE v Minister for Immigration [2004] FMCA 753 (8 November 2004)

SZBBE v Minister for Immigration [2004] FMCA 753 (8 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBE v MINISTER FOR IMMIGRATION
[2004] FMCA 753




MIGRATION - Review of decision of RRT - whether Tribunal erred in failing to consider if applicant's actions in pursuing justice on behalf of a client constituted imputed political opinion - whether Tribunal erred in its definition of `adequate state protection' whether Tribunal considered all required aspects of the current definition.




Judiciary Act 1903 (Cth), s.39B

Minister for Immigration v Sarrazola [2001] FCA 263

Saliba v Minister for Immigration 159 ALR 247

Minister for Immigration v Y (Federal Court 15 May 1998 unreported)

Minister for Immigration v Respondent S152/2003 [2004] HCA

SHKB v Minister for Immigration [2004] FCA 545

MZRAJ v Minister for Immigration [2004] FCA 1261

MZRAJ v Minister for Immigration [2004] FMCA 91

Applicant:
SZBBE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1439 of 2003




Delivered on:


8 November 2004




Delivered at:


Sydney




Hearing date:


29 October 2004




Judgment of:


Raphael FM




REPRESENTATION

Counsel for the Applicant:


Mr L Karp




Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1439 of 2003

SZBBE



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt. Although he appears to be the sole applicant in these proceedings it should be noted that the Tribunal considered not only his case but also that of his wife and two children. At [CB 153] the Tribunal says:

"Only the first named applicant has made specific claims under the Refugees Convention. For convenience, therefore, the Tribunal will refer to the first named applicant as the applicant."

I was not addressed as to why the proceedings were only in the name of the applicant. Very possibly this was a procedural error. However, I shall refer in this judgment only to the applicant himself.

2. The applicant arrived in Australia on 10 April 1999. On 27 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural Affairs. On 4 April 2001 a delegate of the Minister refused to grant a protection visa and on 27 April 2001 the applicant applied for review of that decision. The Tribunal held a hearing on 31 October 2002 which the applicant attended. The Tribunal determined to affirm the decision not to grant a protection visa on 5 June 2003 and handed the decision down on 2 July 2003.

3. The applicant was represented at the hearing by Mr Karp who filed in court an Amended Application under s.39B of the Judiciary Act 1903 (Cth). The Amended Application contained two new grounds and these were the grounds that were argued by Mr Karp on behalf of the applicant before me. The grounds were:

(1) "The RRT constructively failed to exercise its jurisdiction in that it failed to ask the correct question, being whether the applicant's actions in pursuing justice on behalf of his client could have been perceived as a politically significant act.

(2) The RRT constructively failed to exercise its jurisdiction in that it failed to ask itself the right questions being:

(a) Whether the police and judicial system in Egypt could afford the applicant a level of protection which citizens are entitled to respect (sic) according to international standards;

(b) Whether the police and judicial system in Egypt have demonstrably failed to accord the applicant a level of protection that would allay a well founded fear of persecution on the part of the applicant."

4. The factual circumstances upon which the applicant relied to ground his well founded fear of persecution for a Convention reason were that he was a lawyer in Egypt who had been asked, and accepted that invitation, to represent a client who had been wrongfully convicted in absentia in certain criminal proceedings. The work which the applicant did in order to secure the release of his client led him into conflict with a group of people operating out of the vegetable markets in Cairo. It appears that these people were also involved in illegal drug trafficking. As a result of the applicant's activities on the part of his client his client was released and members of the vegetable market group were themselves arrested. The applicant claimed that he was a witness in the proceedings against these people, although the Tribunal did not understand why a lawyer should have been a witness in that type of case. The applicant explained that he had collected a lot of the evidence which led the police to arrest these people and which was important at their trial.

5. From about December 1998 when his client was released from custody, the vegetable market group began harassing the applicant. He claimed he received threatening notes, that he was attacked with a knife and wounded in January 1999 (although he could not identify his attackers), his office was smashed and his secretary attacked. Two days after his office was smashed shots were fired at his car causing an explosion. The police and fire brigade were called but the police report stated the incident was caused by an "unknown person". The applicant contacted relatives of his in Australia who recommended that he come to this country until things settle down in Egypt. He did this and travelled to Australia in 1999. Some eleven months later his wife and children joined him.

6. In the meantime the applicant had transferred his practice to another lawyer who had later contacted him and advised that the premises from the which the practice operated had been burned down. All his files and important documents had been lost in the fire. Around the same time he received news that his brother in law (his wife's brother) had been murdered. He was allegedly shot down whilst leaving the applicant's former home. It was suggested that the murderers had thought they were attacking the applicant rather than the brother in law.

7. The applicant complained that the police did not properly investigate the cases although he reported each matter to them. A number of documents were provided by the applicant to the Tribunal including documents which purported to evidence the complaints and investigations of them.

8. In its findings and reasons the Tribunal discusses the applicant's claims and at [CB 163] it says:

"The Tribunal has some doubts about the claims made by the applicant in his written statements and evidence at hearing. It also has some concerns regarding some of the documents submitted by the applicant in support of his case. However it is not necessary for the Tribunal to make findings on these claims because even if the claims were accepted the Tribunal is not satisfied that the applicant has established that the harm he fears is for any Convention related reason.

When this was put to the applicant at hearing he emphasised that his fear was based on his role as an important part of a prosecution of persons involved in drug dealing. He did not identify any Convention reason as the basis of his fear. The Tribunal has carefully considered all of the applicant's evidence, both written and oral evidence given at hearing, to determine whether on the factual material submitted there is any possibility of a Convention related claim."

At [CB 164] the Tribunal says this:

"He claims that the Egyptian police have been ineffective in providing reasonable protection against the mistreatment of his persecutors. On the applicant's own evidence the police received and made written reports of each complaint made by the applicant and provided him with a police guard for one week at (sic) following an attack on him. The applicant admits that he was not able to identify the perpetrators of any of the criminal incidents against him and was not even able to speculate on the names of persons who might be involved other than they were members of a group of vegetable traders. The documents provided by the applicant indicate that the police took the incidents seriously, investigated them and in most cases referred them to the Director of Prosecutions for further consideration. The test of reasonable state protection is not whether the state authorities can guarantee the safety of the applicant but whether there is a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders (see Minister for Immigration and Multicultural Affairs v Tas [2000] FCA 1657; Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980). The Tribunal is satisfied on the evidence of the applicant that the police acted reasonably to provide adequate state protection in circumstances in which the applicant was not able to identify his attackers or to provide any evidence to assist in establishing their identity." (emphasis added).

9. Mr Karp argues that the Tribunal erred by not considering whether the applicant's actions, particularly his refusal to decline to be a witness in the case on the grounds that "that this would be against God and against his principles" might have supported an argument that his actions were taken for an actual or imputed political opinion. The obligation for a Tribunal to consider all the possible claims that the factual matrix may reveal as opposed to just those that the applicant has put himself was emphasised in the Minister for Immigration v Sarrazola [2001] FCA 263 at [42]:

10. The obligation to consider the question of imputed political opinion was emphasised by Sackville J in Saliba v Minister for Immigration 159 ALR 247 at [256 - 257].

11. Saliba was a case that had some factual similarities with the one before me although it would be wrong to make too much of these. Mr Saliba was fighting to ensure the prosecution of his cousin's killers and when that succeeded was in danger from the guilty party who was still at large. But there was a political element to the organisation to which the killer allegedly belonged. The Tribunal noting that there was a potential political element in the claim (Mr Saliba's refusal to join or support Marada) compartmentalised the claim so that the one which arose out of his fight for justice was found not to have a Convention nexus. Justice Sackville believed that:

"The RRT erred in its assumption that the threatened persecution of the applicant could not have been for reasons of imputed political opinion. As I have explained, the authorities support the proposition that, for Convention purposes, a claimant's political opinion need not be expressed outright."

His Honour then went on to explain the factual circumstances which he believed the Tribunal should have investigated to come to a proper conclusion as to whether or not the fight for justice could form an imputed political opinion of the type found by Davies J in the Minister for Immigration v Y (Federal Court 15 May 1998 unreported).

12. The problem which the applicant in this case faces in securing review of the Tribunal's decision is that the extract from [CB 163] set out in paragraph 8 hereof indicates that the Tribunal was aware of its duty to look at the factual material to determine whether there was any possibility of a Convention related claim. The respondent argues that this statement includes consideration of the possibility of an imputed political opinion. That the Tribunal understood the concept of imputed political opinion is clear from the Tribunal's statement at [CB 152] that:

"People are persecuted for something perceived about them or attributed to them by their persecutors."

13. The political opinion which might be imputed to a claimant has to be imputed to him by the persecutors (who need not be a government or instrument of government). How the persecutor perceives the applicant's conduct is a matter which Sackville J indicated in Saliba would be required to be considered by the Tribunal. His Honour suggested that the Tribunal would also need to consider the applicant's own motivation for his fight for justice. In my view this is exactly what the Tribunal did in this case. The Tribunal comes to a firm conclusion at [CB 163-164] about the persecutor's motivation which excludes a political imputation. It also puts no weight on the applicant's claim that his reason for continuing with the case was that it would be against God and against his principles to withdraw. In other words the Tribunal appears to have covered those matters which a consideration of political imputation would involve and has by implication found no such political imputation.

14. Mr Karp, who appears for the applicant, accepts that because of the private nature of the persecution it is necessary to find both a failure to consider whether or not there was imputed political persecution and that the Tribunal erred in law by misdirecting itself as to the test of what is reasonable state protection. The test applied by the Tribunal is found in the passage set out in these reasons at paragraph 8 in the words emphasised. That test was expressed prior to the decision of the High Court in Minister for Immigration v Respondent S152/2003 [2004] HCA 18 which has been discussed by judges of the Federal Court in a number of cases. In SHKB v Minister for Immigration [2004] FCA 545 Selway J at [30] quotes from the Judgment of the majority in S152 at [21]:

"... The willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by 1A(2)."

At [26] to [28] of S152 the majority continued its discussion of state protection which Selway J interpreted in SHKB at [32] as:

"The relevant state is required to provide a reasonably effective police force and a reasonably impartial system of justice. If `reasonably effective' in this context is to be determined by `international standards' their Honours would not specify what those `international standards' are, but have made it clear that the Tribunal could not be satisfied that those standards had not been met unless there was evidence to that affect."

15. Mr Karp submits that the Tribunal erred in applying the test which it set out because that test restricted itself to a reasonable willingness on the part of the law enforcement agencies to detect prosecute and punish offenders. It did not include a consideration of whether the relevant authorities were able to do those things. He also argued the Tribunal did not make any attempt to assess the willingness or ability by reference to reasonable international standards.

16. These matters were considered by Heerey J sitting on appeal from a Federal Magistrate in MZRAJ v Minister for Immigration [2004] FCA 1261. This judgment is binding upon me. His Honour came to the view that:

"The ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, "international standards" of protection and matches the law enforcement machinery of the state in question against those standards."

That would appear to dispose of the second part of the applicant's submissions. But the first part is more difficult. Heerey J approved of the decision of the Federal Magistrate below and she said at [25]:

"It is clear that the state must be willing and able to provide effective protection. It is also clear that the Tribunal must form a conclusion about these matters - that is, all those material questions of fact raised by the material and evidence before it whether presented by the claimant or otherwise available to it (A v MIMIA (1999) 53 ALD 545). An explicit formulation is not necessary. The applicant's argument really hinges on submissions that the words "not condoned" cannot be equated with the word "willing".

17. MZRAJ was a case where the Tribunal accepted that "ability" was one part of the test and the real question in dispute was whether the use of the word "condone" could be construed as implying willingness. At [17] His Honour said:

"I agree with the learned Magistrate that the Tribunal adequately addressed the question of the willingness, as distinct from the ability, of the Sri Lankan authorities to provide adequate protection. The Tribunal twice recorded its lack of satisfaction that the authorities would (i) condone or (ii) be unable to prevent harm to the husband. Condonation necessarily involves an awareness of another's misconduct and a conscious decision not to inhibit or punish it. An express finding that the authorities would not condone any persecution of the husband by political opponents is quite inconsistent with the possibility that the authorities (in a state where his own party was now in power) might be aware of the persecution, able to prevent it, and yet (for some reason not suggested by the husband) not willing to do so."

18. If I adopt the approach taken by the Federal Magistrate in MZRAJ at [22] - [26] that the Tribunal's reasons should be read as a whole, which approach was approved by Heerey J at [20], it appears to me that although the word "able" was not used in the test defined by the Tribunal it did consider the ability.

19. At [CB 164] the Tribunal says this:

"He claims that the Egyptian police have been ineffective in providing reasonable protection against the mistreatment of his persecutors. On the applicant's own evidence the police received and made written reports of each complaint made by the applicant and provided him with a police guard for one week at (sic) following an attack on him. The applicant admits that he was not able to identify the perpetrators of any of the criminal incidents against him and was not even able to speculate on the names of persons who might be involved other than they were members of a group of vegetable traders. The documents provided by the applicant indicate that the police took the incidents seriously, investigated them and in most cases referred them to the Director of Prosecutions for further consideration. ... The Tribunal is satisfied on the evidence of the applicant that the police acted reasonably to provide adequate state protection in circumstances in which the applicant was not able to identify his attackers or to provide any evidence to assist in establishing their identity."

20. A finding by the Tribunal on the facts, most of which were provided to it by the applicant, that the police were not ineffective in providing reasonable protection encompasses both the elements of ability and willingness. The Tribunal found that the police were as effective as they could be given the lack of information. Mr Karp suggested that there were steps which the police did not take. He suggests that they did not thoroughly investigate the vegetable traders to see if they could ascertain the names of the instigators. That approach has a number of difficulties. Firstly, there is no clear evidence of what the police did or did not do. They told the applicant that they could not go very much further without details of the identity of his attackers but that does not mean that they did not make some of their own investigations. Secondly, there may have been many reasons why the police might have doubted the applicant's firm, and no doubt genuine, belief that those threatening him could be directly associated with the vegetable traders. What is known is that the police did take the claim seriously and even provided some physical protection for the applicant. I did not hear Mr Karp to suggest that reasonable state protection required a continual presence of this nature.

21. I am satisfied that whilst this Tribunal may not have articulated the test it applied with due precision it nevertheless did apply the correct test.

22. The applicant has not succeeded on either of his grounds to impugn the decision of the Tribunal. I dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 November 2004
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