FEDERAL COURT OF AUSTRALIA Khatter v Minister for Immigration & Multicultural Affairs [2000] FCA 1338 KHATTAR EMER KHATTER and NADIA MIKHAIL SHAKER HANNA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS A 47 OF 2000 GYLES J CANBERRA 19 SEPTEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 47 OF 2000 DISTRICT REGISTRY BETWEEN: KHATTAR EMEL KHATTER FIRST APPLICANT NADIA MIKHAIL SHAKER HANNA SECOND APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 19 SEPTEMBER 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 47 OF 2000 DISTRICT REGISTRY BETWEEN: KHATTAR EMEL KHATTER FIRST APPLICANT NADIA MIKHAIL SHAKER HANNA SECOND APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 19 SEPTEMBER 2000 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision of the Refugee Review Tribunal ("RRT") affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs not to grant protection visas to Khattar Emel Khatter ("the applicant husband") and Nadia Mikhail Shaker Hanna ("the applicant wife"). 2 The applicants are husband and wife and citizens of Egypt. The applicant husband arrived in Australia on 16 September 1996. On 5 November 1996 he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). The applicant wife arrived in Australia in January 1997. On 21 January 1998 the applicant wife lodged a protection visa application, including the applicant husband as a member of the family unit. She completed part D of the application which is for a member of the family unit "who does not have their own claims to be a refugee". On 22 January 1998 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas, and on 25 February 1998 the applicants applied for review of that decision by the RRT. The adverse decision of the RRT was made on 24 May 2000 and was communicated to the applicants on 7 June 2000. decision of rrt 3 The essence of the reasoning of the RRT was as follows: 1. The applicants, as Coptic Christians, had suffered harassment over the years, which did not reach the level of persecution. 2. The harassment reached levels amounting to persecution because of a sexual relationship between the applicant husband and a Muslim woman. 3. That although some Coptic Christians in Egypt do suffer some degree of harassment and disadvantage, this was not general and did not amount to persecution. There was no finding of any persecution on the part of the Egyptian authorities. 4. That as the serious harassment amounting to persecution of the applicants was essentially a local matter, the applicants could settle in to other parts of Egypt and so avoid persecution. 4 The application for review is dated 5 July 2000, and the grounds were: "The Grounds of the Application are: 1. That there was no evidence or material to justify the making of the decision in that: (a) (i) The respondent's conclusions in relation to the applicant's financial status were drawn where there were no facts upon which to justify that decision; (b) (i) The respondent's conclusions that there was no real chance of persecution of the applicants in the foreseeable future was drawn where there were no facts upon with [sic] to justify that decision (c) (i) The respondent's conclusion that the applicants would not suffer persecution from Muslim extremists if they relocated to another area of Egypt was drawn when there were no facts upon which to justify that decision. 2. The decision involved an error of law." 5 The written submissions on behalf of the applicants proceeded upon rather different bases than the grounds of the application. At the hearing, the grounds of the application were amended in the following respect: "The Grounds of Application are set out in amended paragraph one hereunder, in substitution of the current paragraph one. 1. The decision involved: (i) a breach of section 430(1)(b) and (c) of the Migration Act amounting to a breach of section 476(1)(a) and/or (e) of the Act; (ii) involved a failure to properly apply the "real chance" test resulting in an error of law under section 476(1)(a) or (e)." 6 The applicants' arguments were directed to the manner in which the RRT dealt with the issue of relocation. In order to understand that issue, it is necessary to say something more of the finding of persecution. The applicants are Coptic Christians, which are a relatively small minority in a substantially Muslim country. The RRT considered the question of harassment on account of religion as such in the following way: "The Tribunal, on the basis of the applicants' accounts and the independent evidence of ongoing discrimination by the authorities and harassment by Islamic militants against Copts in Egypt, accepts that the applicants were subjected to harassment because of their religion up to about 1995, and accepts that such harassment became more serious as Islamic militants began to increase their activity, with some militants coming to live in the applicants' neighbourhood. However, the independent information does not support the contention that the discrimination suffered by Coptic Christians is generally of sufficient seriousness as to amount to persecution (see especially relatively recent information at page 16). The applicants themselves did not feel the need to leave Egypt because of their circumstances until after 1995, and according to the applicant husband's statement of 26 November 1997, incidents of discrimination were able to be overlooked because they were living "in reasonable comfort". The Tribunal is not satisfied in this case that the discrimination suffered by the applicants up to 1996 constituted persecution." 7 The RRT found that in 1995 the applicant husband had a casual sexual relationship with a Muslim woman. It rejected the applicants' case that this relationship was, in effect, instigated by Muslim militants to put him into a situation of forced conversion to Islam. There was material put forward by the applicants which showed pressure by the Muslim woman herself, her family and Muslim militants in the area directed to both applicants in an endeavour to force the applicant husband to convert to Islam and marry the Muslim woman. Another threat was to charge him with rape. The RRT broadly accepted the applicants' account of what happened to them after they returned from Australia in April 1996, and held: "The harassment of the applicant husband, and especially the applicant wife, following their return to Egypt from Australia in April 1996, taken together with the increasing discrimination and harassment they had experienced up to 1996 from Muslim extremists, is accepted by the Tribunal as amounting to persecution in a Convention sense." 8 In that context, the RRT found: "The Tribunal is obliged to consider whether there is a real chance that the persecution suffered by the applicants in the past will occur in the foreseeable future if they return to Egypt. In relation to the general level of harassment suffered by Copts in Egypt, the Tribunal has found that while this harassment, of the kind the applicants suffered prior to 1996, is extremely distressing for the applicants, it does not amount to persecution in a Convention sense. What caused harassment to escalate to persecution in the applicants' case were the very local circumstances of the consequences of the applicant husband's sexual relationship. While the applicant husband has claimed that he was pursued by Muslim extremists to Alexandria, this claim was raised only when it was put to the applicant that he and his wife might be able to relocate in Egypt in order to avoid problems, and the Tribunal does not accept it. The Tribunal is satisfied that there is not a real chance of the applicants suffering persecution from Muslim extremists if they relocate to an area of Egypt where the personal history of the applicants is not known." (emphasis added) 9 The RRT then went on to consider the reasonableness of relocation in the case of the applicants, and concluded: "In all these circumstances, the Tribunal considers it reasonable for the applicants to relocate in Egypt, in order to avoid possible serious harm from fundamentalists seeking revenge for the applicant husband's relationship with a Muslim woman. The Tribunal is therefore satisfied that the applicants' fear of persecution for reason of their religion, or for any other reason, is not well founded." 10 Particular complaint is made on behalf of the applicants about the non-acceptance by the RRT of the applicant husband's claim that he had been pursued by Muslim extremists to Alexandria. 11 In the course of the oral hearing which took place, the following occurred: "MS LEEHY (the RRT member): Okay. Now, in listening to what you have said to me, it seems to me that all the problems you have were very much related to the particular locality in which you lived in Cairo. Did you consider moving from there? THE INTERPRETER: There is two main issues here for the subject. If should I move to another suburb, the same treatment in every suburb in Egypt, the Christians are treated the same way, it doesn't matter, the Christians are treated the same way by the Muslims. The second point, they will find out where I've gone. See they insist. Once they want to find me they will find me, no matter what, because for instance I have to keep in touch with my family, and if all my family has to keep in touch with me, and if I contacted my family or my family contacted me they will find out where I am, so there is no escape. As a proof of this, when I went to Alexandria, which is another city far away, the priest said there was somebody here said they contacted us, and said "If you left Cairo and went to another city, we will know where you are and you cannot escape us, we will get you."" 12 The delegate of the Minister had said in the course of his reasons for refusing the protection visa: "Generally speaking Christians in Egypt do not face any greater threat of violence from Islamic fundamentalists than do Moslem citizens. An exception applies to Upper Egypt. The applicant lives in Cairo, in Lower Egypt. In a city that size, I also conclude it would be possible to relocate to a safer section. The applicant claims to want to change jobs to protect his wife. In an environment of employment difficulty, it would appear equally reasonable to move house." 13 In responding to the RRT to this statement by the delegate, a migration agent for the applicants, in a written submission, referred to various circumstances but not to the Alexandria event. In those circumstances, there was ample basis for the conclusion of the RRT that the evidence was an afterthought. In my opinion, contrary to the submission on behalf of the applicants, s 430 does not require that the RRT explain why it has rejected evidence on a particular point, provided that it has made clear that it has rejected that evidence (Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingam (1999) 168 ALR 407 par 66). In any event, the RRT did explain why the evidence was rejected. 14 It was argued for the applicants that the RRT failed to properly apply what has become known as the "real chance" test in determining that the fear of persecution of the applicants if they returned was not well founded, and that this was an error of law and a breach of s 430. In my opinion, the RRT explicitly considered the relevant question posed by the statute and answered it adversely to the applicants. The so-called "real chance" test was satisfied. The RRT squarely dealt with the question of persecution which was raised before it. The terms of this decision leave no room for introduction of the gloss on the statute known as the "what if I am wrong" test. 15 It was argued for the applicants that the RRT had a duty to inquire further into the question of relocation. Even if there might have been such a duty (cf Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277) it did not arise in the present case. The RRT had expressly rejected the notion that all Coptic Christians are the subject of persecution in the Convention sense in Egypt. It is not to be assumed that a local difficulty would be translated throughout Egypt (Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437). The applicants put what they could to convince the RRT, as the finder of facts, that the local difficulty would be repeated elsewhere, and they failed on the merits to do so. 16 I should make it clear that the correctness of the finding of the RRT that the persecution occasioned by the adultery was persecution for a Convention reason was not an issue before me. 17 The application is rejected, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 19 September 2000 Counsel for the Applicant: Mr S White Solicitor for the Applicant: Snedden Hall & Gallop Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 September 2000 Date of Judgment: 19 September 2000