Hanna v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 April 2000 affirming a decision of 31 January 2000 of a delegate of the Minister to refuse to grant a protection visa to Masoud Hanna ("the applicant"). 2 The applicant is a 33 year old Egyptian national who entered Australia on 28 November 1999. He was interviewed at Sydney airport and gave an account of his experiences in Egypt. On 30 November 1999 he applied for the protection visa. On 4 December 1999 he received a phone call from the Egyptian Consulate General or Egyptian Embassy concerning his position in Australia. On 6 December 1999 he was interviewed at the Villawood detention centre where he gave a more detailed account of his experiences in Egypt and explained why he sought asylum in Australia. After the delegate of the Minister refused to grant the protection visa, the applicant sought a review of the decision. Submissions were made to the Tribunal on 21 February 2000 on his behalf by the Refugee Advice and Casework Service. Those submissions canvassed the reasoning of the delegate and explained why the applicant should be granted a protection visa. The applicant later gave oral evidence to the Tribunal in support of his application. 3 The gist of the applicant's case, as it has been put on several occasions in furtherance of his application for a protection visa, contained several elements though they were, in some respects, related. The first arises from an event in or about 1994 when the applicant agreed to collaborate with an Egyptian intelligence service to spy on Islamic groups in Egypt. The applicant, who had been raised in an orphanage from the age of four, was then and remains a Coptic Christian. The applicant's case was that in about 1985, as a result of his having made this agreement, there had been two attempts by Islamic groups to kill him. In 1987 the applicant left Egypt for Greece where he remained (apart from one brief return to Egypt) until late 1993 when he left Greece to return to Egypt. On his return to Egypt in July 1994, the applicant was arrested and detained for a month. He claimed to have been tortured while in detention. He returned to Greece in 1994 where he remained until he travelled to Australia. 4 The essence of the applicant's claim for asylum was that he feared harm if he returned to Egypt because firstly he might attract the attention of Islamic groups because of the earlier activities he undertook for the Egyptian intelligence service, secondly he may suffer harm at the hands of the Egyptian government because of those activities and thirdly he might be detained by Egyptian authorities on his return because he had applied for refugee status in Australia and because he is a Christian. 5 The Tribunal did not accept all of these claims and it is unnecessary, given the grounds relied on in the application for judicial review, to set out at length the reasons the Tribunal gave. It is sufficient to refer, at this point, to those parts of the reasons concerning the detention of the applicant on his return from Greece in 1993 (though it appears he actually arrived back in Egypt in 1994) and his fear of detention if he was now to return. The Tribunal said: The Tribunal has considered the applicant's claim to have been detained and mistreated when he returned to Egypt in 1993. The Tribunal accepts the evidence of the US State Report cited above that abuse of detainees by the authorities has been common in Egypt. The Tribunal finds on the evidence before it that if the applicant was detained and mistreated on arrival back in Egypt, then the applicant was being detained [and mistreated] on laws of general applicability given his irregular status in Greece and his arrival without usual travel documentation. In any case there seems no reason to believe, and he does not claim, that the authorities linked him in any way with his claimed former role as a "spy " for the authorities. (Emphasised words added) 6 In this application for judicial review, several arguments are now advanced on the footing that prisoners in Egypt are a particular social group, for the purposes of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). It is contended that the Tribunal failed, in contravention of s 430 of the Migration Act 1958 (Cth) ("the Act"), to make findings on material questions of fact, namely whether prisoners in Egypt constitute a particular social group who may be persecuted by reason of the membership of that group and whether there was a real chance that on return to Egypt the applicant would become a member of that social group and be persecuted by reason of that membership. It is also contended that legal error can be inferred, for the purposes of s 476(1)(c) of the Act, because even if detention under a law of general application might attract the operation of the Convention, the same cannot be said of mistreatment of a person in detention. If the applicant was or became a member of the particular social group (namely prisoners in Egypt) and was mistreated then the Convention would apply. 7 There are, potentially, a number of difficulties in the submissions made on behalf of the applicant. However, the application can be dealt with on a fairly narrow basis. Counsel for the Minister accepted that circumstances may arise where, as a matter of law, prisoners may be viewed as a particular social group. This was accepted because of the observations of McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 257.7 to the effect that prisoners are arguable a particular social group. The solicitor appearing for the applicant, Mr Jones, drew attention to several instances in the relevant documents where the applicant raised the prospect of being detained and tortured on his return to Egypt. The general import of what the applicant had said was that he would be detained in Egypt if he returned because he entered Australia using a false Greek passport, because he had applied for refugee status in Australia and/or because he was a Christian. 8 Mr Jones also drew attention to independent country information which included an extract from a 1996 UN Committee against Torture Report, a 1996 US Lawyers Committee for Human Rights Critique and a 1999 US Department of State Country Report on Human Rights Practices. It is palpably clear from this material, and the Tribunal appears to have accepted that individuals in detention in Egypt can be mistreated or tortured even if they are not in detention as suspected terrorists. Mr Jones submitted that this material raised the question of whether the applicant might be detained and mistreated were he to return to Egypt. 9 Mr Jones accepted that at no point in the submissions made on behalf of the applicant nor at any point in his evidence or in other material the applicant provided, was it said that he had been, was or might become a member of a particular social group, namely prisoners in Egypt. Fear of persecution as a member of that group was nor expressly raised. However Mr Jones referred to the following passage in the judgment of Merkel J in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 63: Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Branson J, No NG 134 of 1998, 26 October 1998) at p 2 and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50 and submitted that the Tribunal should have addressed the factual questions identified in the applicant's case in these proceedings concerning prisoners as a particular social group notwithstanding that the existence or relevance of a particular social group was not expressly raised. It was submitted the material itself raised (at least indirectly) this question. 10 In my opinion, all the material before the Tribunal (including the various statements made by the applicant at the various stages of the administrative consideration of his application and the submissions made on his behalf to the Tribunal) did not render these factual questions material in the sense discussed in the authorities. The detention of the applicant in 1993 (though no express finding was made that he had been detained) was raised by the applicant as an incident of the persecution of him for other identified reasons. It was advanced as a manifestation of the harm he had suffered. In so far as he claimed to be at risk of detention (and consequential mistreatment and/or torture) on his return it was said to arise for the reasons identified in the last sentence in para 7 above. The Tribunal dealt with these matters in the following passages from its decision: The Tribunal has considered the advisor's claim that if the applicant is now the subject of Egyptian authorities' interest for having travelled abroad with false documentation, he might then be subjected to further harm because of his Coptic religion to be a matter that deserves consideration. However, the Tribunal finds nothing in the independent evidence that indicates that Copts suffer disproportionate harm when facing laws of general application and so finds this assertion to be speculative and lacking in evidential foundation. The Tribunal finds that his claim for refugee status might have very unfortunately become known to the Egyptian authorities while he was in detention. It must of course be known to the Egyptian authorities that there are Egyptians who make claims for protection visas when abroad and one must assume that that (sic) the identities of unsuccessful applicants have from time to time become known to the authorities. As research by the Tribunal revealed no evidence of such people facing harm on return to Egypt, a matter that would most certainly be of interest to human rights and other organisations abroad, the Tribunal finds that any fears the applicant has on this account are not well-founded. 11 These passages reflect, in substance, findings that the applicant will not attract adverse attention resulting in imprisonment, for the reasons given by the applicant, on returning to Egypt. I do not think it can fairly be said that the evidence of the applicant, the way he initially advanced his case and the way it was later advanced on his behalf, or the totality of the material before the Tribunal raised for consideration, in light of the findings made by the Tribunal, the question of the applicant being a member of a particular social group, namely prisoners in Egypt and having a well founded fear of persecution for that reason. 12 The obligation of the Tribunal under s 430 is to make findings on material questions of fact. Whether a fact is material is to be ascertained objectively. The way an applicant puts his or her case can, but need not necessarily, establish whether a particular fact is material: see Minister for Immigration & Multicultural Affairs v Zitoni [2000] FCA 1225 at paras 22 to 26 and, more generally, Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845. It was made clear in Singh that the approach adopted by the Tribunal and findings it makes can bear upon the question of whether a particular fact is a material fact that must be decided: see, in particular, paras 54 to 56 in the joint judgment of Black CJ and Sundberg, Katz and Hely JJ. In the present case the material before the Tribunal taken together with the findings actually made by the Tribunal did not render, as material facts, the facts now relied on by the applicant in these proceedings. 13 For similar reasons, no error of law of the type alleged can be inferred. I say that because the case of the applicant did not raise for consideration membership of a particular social group and necessarily therefore, in my opinion, did not raise an issue concerning the relationship, for the purposes of the application of the Convention, between detention under a law of general application and harm that has been or may be suffered while in detention. Moreover the submission made on behalf of the applicant entails reading the passage set out in para 5 above as if the words "and mistreated" are included in the text (which they are not in the Tribunal's reasons). I accept that the Tribunal does not really deal with why the applicant was mistreated (on the assumption that he had been both detained and mistreated). However, the point raised by Mr Jones, as I understood it, was that the Tribunal was adopting the approach that mistreatment should not be viewed as harm which might amount to persecution if the mistreatment occurred while a person was detained under a law of general application. In my opinion, this involves reading too much into what the Tribunal said though I accept that it is not entirely clear what the Tribunal actually meant. However, in my opinion, no error of law of the type identified by Mr Jones can be inferred. 14 I dismiss the application and order that the applicant pay the costs of the respondent. There has been a significant delay in determining this application resulting, in part, from the removal of the applicant from detention in Sydney and his subsequent detention in Western Australia. In referring to this matter, I do not imply that his removal was inappropriate, and it is unnecessary to detail what occurred. I mention this matter only as a prelude to expressing the Court's appreciation to Mr Jones who has appeared for the applicant, as I understand it, pro bono in what have been difficult circumstances.