Hanna v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-02-12|Before: Moore J, McHugh J, Stone JJ

This is an appeal against a decision of a Judge of the Court (Moore J) dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent to this appeal, to refuse to grant a protection visa to

Mr Hanna is an Egyptian national who' entered Australia in November 1999. He immediately applied for a protection visa. The basis of his claim was his activities in

Mr Hanna told the Tribunal he had agreed in 1984 to act on behalf of Egyptian government intelligence services in spying on Islamic groups. He said that, as a result, he became a target of the groups. After two unsuccessful attempts on his life, he left Egypt in 1987 for Greece, where he remained (apart from one brief return to Egypt) until late

returned to Greece. He remained there until his departure for Australia.

Moore J summarised the appellant's claims before the Tribunal in this way:

"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."

Moore J noted that the Tribunal accepted that abuse of detainees was common in Egypt. However, the Tribunal also found it was common for persons having irregular status to

be detained and that the appellant was detained because he returned to Egypt without

It appears that, at the hearing before Moore J, the case for the appellant took a new path. The solicitor for Mr Hanna, Mr M Jones, argued the evidence placed before the Tribunal suggested that prisoners in Egypt are a particular social group, for the purposes of the Convention Relating to the Status of Refugees, but the Tribunal had failed to make findings on that point or to determine whether there was a real chance that, on return to Egypt, the appellant would become a member of that social group and be persecuted on account of that membership. Mr Jones contended that, in failing to do those things, the

Tribunal failed to comply with s 430 of the Migration Act.

Moore J noted that counsel for the Minister accepted that circumstances may arise where, as a matter of law, prisoners may be viewed as a particular social group: cf. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257 per McHugh J. Nevertheless, Moore J held there was no contravention of s 430 of the Migration Act. He

"Ja my opinion, all the material before the Tribunal (inchiding 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 [that is, whether prisoners constituted a particular social group] 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 he claimed lo 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."

Those reasons were the appellant's irregular documents, the fact that he had made an

application for refugee status in Australia and/or that he was a Christian.

Moore J quoted the relevant passages in the Tribunal's reasons for decision and went on:

"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."

We agree with those observations. We make some additional comments.

An underlying difficulty in Mr Jones' argument is that of identifying the relevant "particular social group", of which Mr Hanna is now a member. In the course of argument, Mr Jones defined the group for us as being "persons likely to be detained on return to Egypt". There is no finding that Mr Hanna is in that category; indeed the Tribunal expressly rejected the contention that Mr Hanna risked detention on return to Egypt for the reason that he was known by the Egyptian authorities to have made an application for a protection visa in Australia. However, Mr Jones sidesteps the absence of a relevant finding by saying this is where the Tribunal failed to carry out the task imposed on it by s 430 of the Act.

We accept that the Tribunal ought not to regard itself as limited to the precise manner in which a claimant for refugee status puts his or her case: see Paramamanthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63. However, for the Court to find there was a failure to comply with s 430 of the Act, it must be apparent that

the facts placed before the Tribunal raised a real possibility of a valid claim on a

particular basis and that the Tribunal failed to make findings relevant to that possibility.

In the present case, nothing was put before the Tribunal to suggest that Mr Hanna was outside Egypt because of a fear of being detained and mistreated. According to his claims, he was detained for a month in late 1993 because of his irregular travel documents, but he was then released and it was some months later that he left Egypt. He did not explain his reasons for leaving Egypt but they seem to have been unconnected with his detention, or his mistreatment in detention, or any other Convention reason. There was no suggestion before the Tribunal that, if Mr Hanna were returned to Egypt by the Australian Government, he would travel under irregular documents. Nor, before the Tribunal, did Mr Hanna contend, either expressly or implicitly, that there existed a particular social group consisting of persons who might be mistreated on future detention in Egypt. The existence of such a group was immaterial to the issues fairly raised by the

In our opinion, the Tribunal did not fail to comply with s 430 of the Act. The appeal

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Weinberg and Stone JJ.

Associate: Dated: ebruary 2001 Solicitor for the Applicant: Mr M Jones

Solicitor for the Respondent: - Australian Government Solicitor

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Judgment (28 paragraphs)

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Cases Cited (2)

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