SZMGW v Minister for Immigration & Anor [2009] FMCA 88 (13 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMGW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 88

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to have regard to information it obtained or to take into account relevant considerations – whether Tribunal constructively failed to exercise its jurisdiction.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s.10 Migration Act 1958 (Cth), ss.54, 91R, 424, 424A, 430, 496, 501

A v Pelekanakis and Another [1999] FCA 236; (1999) 91 FCR 70 Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430; (2001) 114 FCR 186 Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and Others [1996] FCA 1509; (1996) 67 FCR 40 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NBKT v Minister for Immigration and Multicultural Affairs and Another [2006] FCAFC 195; (2006) 156 FCR 419 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 24; (2005) 228 CLR 294 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 763 SZKCQ v Minister for Immigration and Citizenship and Another [2008] FCAFC 119; (2008) 170 FCR 236 SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938 Tickner and Others v Chapman and Others (1995) 57 FCR 451 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 WAFP v Minister for Immigration & Multicultural Affairs [2003] FCAFC 319 Wen v Minister for Immigration and Multicultural Affairs [2000] FCA 320; (2000) 61 ALD 653

Applicant:

SZMGW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1261 of 2008

Judgment of:

Barnes FM

Hearing date:

30 October 2008

Delivered at:

Sydney

Delivered on:

13 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr J Smith

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1261 of 2008

SZMGW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 20 March 2008 and handed down on 1 April 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
2. The applicant, a citizen of Egypt, arrived Australia in August 2006 and applied for a protection visa in October 2006. The application was refused and he sought review by the Tribunal. The applicant attended two Tribunal hearings on 5 March 2007 and 1 May 2007.
3. The applicant claimed to fear persecution for reason of his religion and activities or suspected activities as a Coptic Christian in Egypt. He claimed that he came from a very strict religious family which contained a number of priests and others who were heavily involved in church activities, including teaching religious converts, and that the family’s religious activities had led to numerous unfortunate “events” with the authorities. The applicant claimed that he had not had any trouble with the Egyptian authorities until late 2004, despite his involvement with a church youth group from the end of 2002, although he had experienced unfair treatment by school teachers and some harassment and discrimination by Muslim members of the community.
4. The applicant claimed that in September 2004, at the request of his uncle who was a priest, he and his cousin had assisted in the education of two Islamic converts to Christianity over a two week period. He claimed that some time later, after the converts’ families had complained to the police, he and his cousin had been detained for three days, questioned about the converts and beaten by police. He claimed the family solicitor managed to get them released as there was no proof against them.
5. The applicant claimed that in February 2005 he and his cousin had been very active participants in an organised protest his church youth group took part in, in relation to the kidnapping of two Coptic Christian girls and their forced conversion to Islam. He claimed that another uncle of his was involved in investigating this matter. Two days after the protest he was asked to attend the police station, as were his uncle and cousin. He claimed that they were questioned and then released the same day, but that two days later he and his cousin and two other boys from the church youth group were again taken to the police station, questioned at length about their understanding of the girls’ case and accused of spreading false propaganda and creating unrest. He claimed he was detained and released after three days, while his cousin was detained for five days.
6. In addition, the applicant claimed that in May 2005 the same cousin was questioned by police about a Muslim girl who had converted to Christianity and was hiding in the area. He claimed that three family homes, including his home, were searched. Although he did not know anything about this girl (and neither did his cousin), he claimed that his uncle had told his cousin that the girl was studying Christianity at a particular well known monastery. He claimed that after his uncle died the police had searched the family home again looking for false documents prepared for the Muslim girl. He did not know who was involved in falsification of such documents.
7. The applicant claimed that in December 2005 a sheik from a local mosque told him and his cousin that the Muslim girl’s father (who was a member of the Muslim Brotherhood) wanted his daughter back and had threatened that if they did not return the girl one of the Christian girls would be taken. A similar warning was given to his father by another sheik. The applicant claimed that the family solicitor advised him and his cousin to flee Egypt.
8. The applicant claimed that he stayed at a monastery from February to June 2006. He came to Australia after his visa was issued. He claimed that during that time the police had gone to his home searching for him and his cousin. His parents did not know if the police wanted him in relation to the case of the Muslim girl or for another reason.
9. The applicant claimed to fear being arrested or falsely accused by the police and at risk of harm from some members of the Islamic community if he returned to Egypt. He claimed that the authorities and members of the Islamic community suspected that he was involved in assisting Muslim converts to Christianity, in the alleged 2005 conversion of the Muslim girl and in falsification of documents to record a change in her religion.
10. The applicant claimed that in Australia he attended church and a youth group and that he wanted to continue the work that he did assisting converts to study Christianity.

The Tribunal decision

11. In its reasons for decision the Tribunal recorded in detail the applicant’s original claims, his oral evidence at hearings on 5 March 2007 and 1 May 2007, submissions made on his behalf, documents provided in support of his application and the response to information it put to him pursuant to s.424A of the Migration Act 1958 (Cth).
12. In its findings and reasons the Tribunal described the applicant’s claim as a claim to fear harm from Egyptian authorities for reasons of his involvement or perceived involvement in the conversion of Muslims to Christianity and in local church affairs and that he had suffered discrimination throughout his life because he was a Coptic Christian.
13. The Tribunal accepted that the applicant was a Coptic Christian from a family of committed Coptic Christians and that he was a committed and active member of the congregation of a particular church in Egypt, in which several relatives and friends were also heavily involved. The Tribunal also accepted that the applicant assisted in youth groups, Sunday school and other parish activities of the church and that members of his family were well known as supporters of the Church and as active members of the congregation.
14. The Tribunal addressed the applicant’s claim to have experienced and to fear persecution as a Coptic Christian. It accepted that Coptic Christians were a minority religion in Egypt and often subject to some discrimination for reasons of their religion. It found that while the US Department of State International Religious Freedom Report 2007 (the 2007 Report) referred to continuing sectarian tensions in Egyptian society and some level of discrimination against Coptic Christians in Egypt, the Report did “not suggest there is evidence of persecution of Coptic Christians.”
15. The Tribunal did not accept that the claimed unfair treatment of the applicant by school teachers and discriminatory treatment by members of the community, consisting of inequitable treatment and service in shops and public offices, amounted to persecution involving serious harm, albeit it accepted that this would have been upsetting and was unjust. It had regard to the fact that the applicant had completed school, had worked in various jobs and had attended church freely in Cairo and in his home town. The Tribunal accepted that (as described in the 2007 Report) there was some discrimination in public sector and high level military and intelligence services employment, that religious tensions existed and individual acts of prejudice and incidents of sectarian violence occurred, but had regard to the fact that the 2007 Report also noted the timely and effective response of state authorities to recent incidents in Egypt. The Tribunal did not consider that if the applicant returned to Egypt now or in the foreseeable future he would suffer discrimination amounting to persecution for reason only of his Coptic Christian religion.
16. The Tribunal then considered the applicant’s claims to fear persecution based on his particular circumstances and the series of incidents he had described. While it accepted that the applicant had an active role in the local Coptic Christian congregation and that his family members had a high profile in the Church, it did not accept that he was involved or was perceived to be involved in conversion activities for the Coptic Church or that if he returned to Egypt he would face persecution from state authorities or members of the community for either of those reasons.
17. The Tribunal did not accept the applicant’s claims that he and his cousin had been involved in educating two Islamic converts to Christianity in 2004, having regard to the fact that they were not members of the clergy and would only have been about 21 at the time of the alleged events. It found that it was not plausible that in a highly structured religious organisation such as the Coptic Church “such a sensitive and important task would be entrusted to two young boys even had they been committed members of the congregation”. While the Tribunal had regard to the applicant’s submission that he and his cousin were young church assistants because of their family connections and their commitment, it did not accept that they would have had “any significant role in conversion activities” which would bring them to the attention of the authorities. Hence it did not accept that the applicant was arrested and detained by police on suspicion of being involved in conversion activities in 2004.
18. The Tribunal found that the applicant had embellished and exaggerated his knowledge and involvement in relation to the conversion of two Coptic Christian girls to Islam in February 2005. It had regard the fact that while he claimed to have particular personal knowledge of and involvement in this incident through family members, he had difficulty in recalling the girls’ names and had asserted quite firmly, and contrary to a 2005 US State Department report which stated that the girls had kept their Christian faith, that the girls had converted to Islam. It addressed his explanations for these aspects of his evidence.
19. The Tribunal accepted that the applicant was part of a group of young Coptic Christians who may have protested after this incident and that he may have been questioned and mistreated by the police as a result of his protest activities following the demonstration, having regard to country information about the response of the authorities to potentially violent sectarian incidents. However it did not accept that the police targeted the applicant because of his profile or his family’s profile in the Church or because of any suspicion he was assisting converts. Nor did it accept that he faced any further risk of arrest and mistreatment in relation to the February 2005 protest.
20. The Tribunal then considered the applicant’s claim to fear harm because the authorities and members of the Islamic community suspected he was involved in the alleged 2005 conversion of a particular Muslim girl and falsification of documents for her. The Tribunal accepted country information to the effect that conversion from Islamic to Christianity was a sensitive matter in Egypt, that some such converts had experienced harassment and extreme social hostility and that while conversion was not illegal in Egypt, in practical terms the authorities had made it difficult or impossible for converts from Islam to gain legal recognition of such conversion (by a change of religious status on the person’s identity card), affecting matters such as marriage, divorce and inheritance. It also accepted that to overcome these difficulties some converts had been involved in forgery of identity documents to obtain documents showing their status as Christians and that when discovered “these converts and others involved in these activities” had been charged with falsifying official documents.
21. However the Tribunal did not accept that the applicant was at particular risk of harm due to a suspicion that he was involved in the conversion of the named Muslim woman and the alleged falsification of her identity documents. The Tribunal found that the applicant’s evidence as to the details of this woman’s conversion was “vague and lacking in detail in contrast to other evidence he had given” which it described. It also had regard to the fact that while he claimed that this woman had stayed at a monastery in a particular place, country information that had been put to him for comment indicated that “such a monastery does not exist as described by [him].” It addressed his explanation for this anomaly and the assertion by him and in a supporting letter from his uncle, a priest, as to the location of the monastery. It preferred the country information to the contrary.
22. The Tribunal accepted that there may have been a local controversy or rumour regarding the conversion or possible conversion of a local Muslim girl and that she may have been resident at a monastery in the wider area. However it found that the applicant’s “uncertainty and lack of clarity on this aspect” indicated that he did “not have any direct or reliable knowledge surrounding the alleged set of events he has claimed.” It also had regard to his evidence that he had never met the girl in question and had not had any involvement in activities relating to her conversion, but had only heard or been told things by others in his community and family. The Tribunal reiterated that when the applicant was asked for specific details “he gave vague evidence and clearly did not know where [the girl] was located or what had happened to her.” The Tribunal found that there was no reason to link the applicant with the alleged conversion. It considered that the applicant had embellished and exaggerated his involvement in sensitive Church matters involving conversion.
23. The Tribunal considered the copy of an identity card said to be that of the Muslim girl and a business card said to be that of her father provided in support of the applicant’s claim. However the Tribunal found that the identity card simply showed the name and religious status of a person living in Cairo. It did not accept that the applicant “would be perceived as having a particular involvement in this matter which would make him the target of the local Islamic community and State authorities.” It did not accept that the identity card showed that the person named in the identity card had had her identity details falsified or that the applicant had or would be suspected of having any role in the creation of a false identity card. The Tribunal found that the applicant “could not satisfactorily explain why he would be a suspect in the alleged falsification of identity documents when he had no contact with [the girl] and no role in the alleged conversion.” The Tribunal found the applicant’s explanation that the state authorities would be suspicious and target him because his late uncle had had a particular involvement in this matter and was regarded as a “senior servant” and that he would be expected to take on this role after his uncle’s death was “tenuous speculation” unsupported by evidence. The Tribunal found that there was no evidence it accepted to give rise to such a finding.
24. The Tribunal did not accept that the applicant would be arrested and mistreated by the authorities if he returned to Egypt in the foreseeable future. The applicant claimed he had lived in a monastery for some months before leaving Egypt and that it was common for young people to spend time in monasteries as part of their religious development. The Tribunal did not accept that if the applicant had been of any adverse interest to police or security authorities or subject to arrest he would have been able to remain in Egypt without being arrested or that he would have been able to depart Egypt using his own passport without some restriction, questioning or detention. It did not accept his claims that members of his family had been approached by police seeking his whereabouts. It found that if the police had a serious adverse interest in the applicant they would have taken action to approach him prior to his departure or, if his whereabouts had been unknown, that he would not have been able to depart Egypt on his own passport, given country information about rigorous departure controls.
25. The applicant explained the ease of his departure by suggesting that the police took some time to act on issues such as the falsification of documents. While the Tribunal accepted that this may be so while the police were collecting evidence, it found that as it accepted the applicant’s claim that he was not in fact involved in the alleged conversion or falsification of documents, there would be no evidence on which the police could properly act. It was of the view that if it was the applicant’s case that the police did not need any evidence to act against him, then it followed that the police or security authorities would have taken “immediate action on their suspicions” and either arrested him while he remained in Egypt or not allowed him to leave through the international airport.
26. The Tribunal addressed other material submitted by the applicant. It found that the oral evidence given by a supporting witness (Mr S) who had converted from Islam to Christianity and had been involved in forging documents was lengthy, detailed and compelling regarding his own circumstances, arrest and imprisonment, but that the applicant was in a quite different situation as he was a Coptic Christian who was not a convert from Islam and was not involved in the falsification of documents. It did not find Mr S’s evidence relevant to the applicant’s claims. Nor did the Tribunal accept that the circumstances of a person (Ms E) who was married to a Christian convert and who claimed to have been charged with offences relating to alleged involvement in forgery of identity documents was relevant to the applicant’s particular claims.
27. The Tribunal found that country information provided by the applicant on kidnappings and forced conversion of Christian girls in Egypt provided contextual background to his claims and perceptions, but that it did not support his specific claims of persecution. The Tribunal stated that it had made findings about the situation of Coptic Christians in Egypt. It had “weighed” the information in an article from a Christian TV news channel which expressed opinions on the general situation of Coptic Christians in Egypt together with information from other sources.
28. The Tribunal accepted supporting written information from an Egyptian priest that the applicant came from a religious family with an active involvement in the Coptic Church, but gave little weight to a “generalised statement” from his uncle, another priest, that the applicant was an active servant of the church, that he and his family had been detained and badly treated by the intelligence services “because they had been assisting persons in Bible study and for involvement with converts” and that the applicant hid in a monastery because it was dangerous to him. The Tribunal observed that there was no explanation of how the priest was aware of such incidents and that the letter did not give any details or the basis for such evidence. For the reasons given it did not accept that the applicant had been detained and badly treated by the intelligence services because of his activities with the Church, although it accepted that he may have been questioned over his involvement in the February 2005 demonstration. It did not give the statement that the applicant’s family had been mistreated any weight given the absence of specific detail.
29. The Tribunal did not accept the applicant’s claim that he had a well-founded fear of persecution because his family members had a high Coptic Church profile and had assisted converts. It considered that this was a speculative claim and that there was no evidence to satisfy it that the applicant would be targeted for such a reason.
30. The Tribunal concluded that on all the evidence before it, it was not satisfied that the applicant faced a real chance of persecution for reasons of religion should he return to Egypt now or in the foreseeable future. It was not satisfied that he had a well-founded fear of persecution for any Convention-related reason.

This application

31. The applicant sought review by application filed in this Court on 28 April 2008. He relies on an amended application filed on 30 October 2008. There are four grounds in the amended application. Ground two was not pressed.
32. Counsel for the applicant contended generally that the Tribunal had erred in the process of fact-finding in a manner which could be classified as jurisdictional error in a number of ways, consistent with what was said in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 to the effect that if a decision-maker such as the Tribunal:
    • falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
33. In particular, the applicant contended that the Tribunal’s failure to make findings on particular items of evidence indicated either that it mistakenly overlooked such evidence in making its findings or that it deliberately overlooked it on the basis that it thought that it could not bear on the issues at hand. Either way the Tribunal was said to be in error.
34. It was submitted that the applicant’s case rested on three propositions. First that the statement prepared by the Tribunal in accordance with s.430 of the Migration Act revealed what the Tribunal did and did not have regard to, and what it did and did not consider material; secondly that in order to properly fulfil its obligations under the Act to review the decision the Tribunal must have regard to all of the material before it and must consider all of the claims as they arose on the material it had so considered; and thirdly that the statement of reasons in this case prepared by the Tribunal revealed an incomplete consideration of the claims as they arose on the material.
35. It was acknowledged for the applicant that the basis for the grounds in the amended application was that the Tribunal erred in the process of fact-finding. As submitted, this does not of itself exclude the possibility of jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1175 – 6, [53] – [60] per McHugh and Gummow JJ).

Section 424 of the Migration Act

36. Ground one in the amended application is that the Tribunal breached s.424 of the Migration 1958 (Cth). The particulars are:
    • (a) The Tribunal obtained information contained in the United States Department of State International Religious Freedom Report 2007 but failed to consider that information:
      1. Contrary to the Tribunal’s finding [167.9] the report did suggest that there was persecution of Coptic Christians in Egypt: see pages 1.2, 2.6, 3.6, 4.8 – 4.10, 6.3, 6.6, 6.9, 7.8 – 7.9;
      2. Contrary to the Tribunal’s finding at [168.1] the report does not “note the timely and effective response of state authorities”. Rather, it noted that those responsible for the violence were released without charge: United States Department Report p7.8.
37. The applicant submitted that it was apparent from the Tribunal reasons for decision that the Tribunal did not engage in any active intellectual process in relation to the 2007 Report and hence that it did not have regard to this report as required by s.424 of the Act.
38. Counsel for the applicant referred to the fact that the applicant’s claims to fear persecution for a Convention reason were based on the fact that he was a Coptic Christian in Egypt as well as on the specific factual claims he made about what had happened to him in the past. In this respect, while it was acknowledged that the 2007 Report had to be read as a whole, it was pointed out that among other things the Report contained information to the effect that:
    • a) the status of respect for religious freedom by the government declined during the period covered by the report;
    • b) there continued to be abuses and numerous restrictions and some improvements;
    • c) tradition and some aspects of the law discriminated against religious minorities, including Christians and particularly Baha’is;
    • d) the Embassy and other State Department officials raised concerns with the Egyptian Government about ongoing discrimination faced by Christians in building and maintaining church properties;
    • e) the approval process for Church construction continued to be hindered by lengthy delays often measured in years. ... Others suggest unequal enforcement of the regulations pertaining to church and mosque projects;
    • f) local authorities have also closed down unlicensed buildings used as places of worship;
    • g) Hala Helmy Boutros, a Christian activist and blogger based in Qena, had reported that authorities in Qena ordered her to suspend her blog (which discussed complaints of persecution by the Copt minority) and had accused the authorities of complicity in sectarian violence against Copts in January 2006 in the village of Udayssat.
39. The applicant acknowledged that the Tribunal had looked at the report or at least extracts from it and had apparently accepted it. In the reason for decision the Tribunal noted that the Report “discusses and gives a general overview of the situation for Coptic Christians”. The Tribunal continued:
    • The report notes that there are continuing sectarian tensions in society and there is some level of discrimination against Coptic Christians however the report does not suggest there is evidence of persecution of Coptic Christians. The report states that there is some discrimination in hiring in the public sector and staff appointments to public universities and there are few Christians in the upper ranks of the military and intelligence services. In relation to social pressures the report states that “Christians and Muslims share a common culture and live as neighbours throughout the country. However, religious tensions exist and individual acts of prejudice and violence occur.” The report mentions some of the incidents of sectarian violence but also notes the timely and effective response of state authorities to those recent incidents.
40. It was submitted that this was the total of what the Tribunal said in relation to information about the current situation for Copts in Egypt, except that it later addressed an article submitted by the applicant from a Christian TV news channel expressing opinions on the general situation of Coptic Christians in Egypt.
41. When the Tribunal considered the applicant’s individual situation it accepted that he had had experienced unfair treatment by school teachers and discriminatory treatment by members of the community and that such treatment would have been upsetting and unjust, although it did not accept that this amounted to persecution involving serious harm.
42. It was submitted that the Tribunal’s lack of satisfaction that if the applicant returned to Egypt now or in the foreseeable future he would suffer discrimination amounting to persecution for reasons only of his Coptic Christian religion must have been based on its findings about the general situation in Egypt as well as its findings about the applicant’s background of personal experience of discrimination. There was said to be a large body of material in the 2007 Report about the situation in Egypt that was not considered from the perspective of what claims it gave rise to or what claims should have been dealt with by the Tribunal. This material was said to consist of the matters set out at [38] above, information in the Report to the effect that officials suspected of responsibility for personal injuries or damages due to sectarian-based violence were normally not prosecuted and the reference to instances of individual acts of prejudice and violence.
43. It was pointed out that the 2007 Report referred to a particular incident on 11 May 2007 when a group of Muslim citizens attacked a Christian village (reportedly because they believed the Christians were planning to build or enlarge a church without a licence), leading to violence, arson and looting of Christian-owned shops and homes and injuries to Christians. While the 2007 Report stated that police responded quickly to contain the violence and detained approximately 60 mostly Muslim villagers, it also stated that by the end of the reporting period most detainees had been released. Further, while the Report described the fact that local authorities sought to arrange reconciliation meetings, it recorded that formal charges had not been pursued against those responsible for violence.
44. It was said that these particular matters were relevant to the applicant’s claims to fear persecution as a Coptic Christian, but that they had not been dealt with by the Tribunal, which had simply concluded that the 2007 Report did not suggest that there was evidence of persecution of Coptic Christians in Egypt. The applicant conceded that it was not enough that the Tribunal’s factual finding was false, but submitted that as the 2007 Report contained evidence of what might constitute persecution, the Tribunal’s statement that there was no such evidence revealed either that it did not read the Report at all or properly or that it read it and did not understand what persecution meant.
45. It was submitted that if the Tribunal was aware of this evidence, it did not engage in any actual intellectual process in relation to it and hence did not have any regard to it and breached s.424 in the sense considered in Tickner and Others v Chapman and Others (1995) 57 FCR 451 at 462.
46. The first respondent contended that this ground appeared to take issue with the Tribunal’s conclusion that the 2007 Report did not evidence persecution of, as opposed to discrimination against, Coptic Christians in Egypt. It was submitted that the interpretation of country information was a factual issue for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142 at [1] and [8] per Gleeson CJ and NBKT v Minister for Immigration and Multicultural Affairs and Another [2006] FCAFC 195; (2006) 156 FCR 419 at [81] and [84]).
47. The first respondent submitted that it was plain that the Tribunal “had regard” to the 2007 Report in the sense discussed by Sackville J in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 and that there was no breach of s.424(1) of the Act as alleged.
48. Section 424(1) of the Migration Act relevantly provides: “In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”
49. It is not in dispute that the 2007 Report was information obtained by the Tribunal of its own initiative and that the requirements of s.424(1) were enlivened (see Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430; (2001) 114 FCR 186 at [20] – [21], Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 and SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 763 at [24] – [27] per Stone J). It was not suggested that the s.424(1) obligation to have regard to the 2007 Report in making its decision did not apply (see SZKCQ v Minister for Immigration and Citizenship and Another [2008] FCAFC 119; (2008) 170 FCR 236 at [40] per Buchanan J). Rather the issue is whether Tribunal did “have regard to” the information in making its decision.
50. In Tickner v Chapman the Full Court of the Federal Court considered the requirement in s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that before the Minister for Aboriginal and Torres Strait Islander Affairs made a declaration in relation to an area sought to be preserved or protected as of particular significance to Aboriginals, he or she must receive a report in relation to the area and must have “considered the report and any representations [provided in response to an invitation] attached to the report.”
51. Black CJ stated (at 464) that compliance with this provision was a necessary step in the exercise of power to make such a declaration. His Honour referred to the meaning of “consider” in the sense of the consideration of some thing in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’” and stated that consideration of a document such as a representation or a submission “involves an active intellectual process directed at that representation or submission.”
52. The applicant submitted that it was apparent from the Tribunal reasons for decision and the fact that it was said not to have referred to or made findings on the matters referred to in the 2007 Report relied on under this ground that it had not engaged in such an active intellectual process directed at the 2007 Report.
53. I note first, that in addition to referring to the need for an active intellectual process, Black CJ also suggested in Tickner v Chapman (at 462 – 463) that “The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.” Burchett J expressed the view (at 476) that to “consider” material such as a report or representations, the Minister was required “to apply his own mind to the issues raised” by those documents. Kiefel J stated (at 495) that the “intellectual process” of considering representations requires that the Minister “have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them.” Her Honour continued: “From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.”
54. Tickner v Chapman turned on the need for the personal involvement of the Minister in consideration of representations attached to a report as a prerequisite to the making of a declaration. Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 is more directly in point. The statutory requirement in question was in the Migration Act (s.54(1)). It provides that the Minister (or delegate under s.496) must “have regard to” certain information in a visa application (albeit not information the decision-maker “gets”) in deciding whether to grant or refuse to grant a visa. What was in issue in Singh was whether the Minister had had regard to six written character references in refusing to grant a visa to the applicant on the basis that he did not pass the “character test” in s.501(6) of the Act.
55. In determining the meaning of the concept “have regard to” in s.54(1) Sackville J commenced by considering the language of the relevant statutory provision. His Honour observed the use of mandatory language and accepted that s.54(1) imposed a duty on the Minister, a breach of which would lead to invalidity of the decision (at [53]). The relevant part of s.424 is similarly worded. It imposes an obligation on the Tribunal if it gets information that it considers relevant, in that it states that the Tribunal “must have regard to that information in making the decision on the review”. It was not suggested that a failure to comply with such a procedural requirement of Division 4 of Part 7 of the Migration Act would not constitute jurisdictional error (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 24; (2005) 228 CLR 294 at [77] per McHugh J, [173] per Kirby J and [206] – [208] per Hayne J and SZKCQ at [52] – [58] per Buchanan J).
56. Sackville J pointed out (at [54]) in Singh, that the expression “have regard to” was capable of different meanings depending on its context. In the context of a broadly-worded provision which required a decision-maker to have regard to all the information in a visa application, his Honour (at [57]) rejected a construction which would have required the decision-maker to take such information into account as a fundamental element in the decision-making process (cf R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J). Sackville J accepted (at [54]), that the expression “have regard to” in s.54) simply means to give consideration to something, so that “In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than to treat them as fundamental elements in the decision-making process.”
57. Moreover, as Sackville J pointed out (at [55]), the information that a Tribunal “gets” during a review may range “over a wide field and may take many different forms. It may go to the heart of the applicant’s case or may be of marginal relevance.” Notwithstanding the rather different statutory context of s.424(1), which requires a Tribunal member to have regard to information it gets in conducting a review “that it considers relevant”, the notion of “an active intellectual process” directed at such information is also apposite in relation to the concept “have regard to” in s.424(1).
58. Section 424(1) gives the Tribunal power to get “any information that it considers relevant” and then provides that if the Tribunal does get such information it must have regard to it in making the decision under review. Information which a Tribunal obtains in conducting a review of an application for a protection visa that it considers relevant may also take many different forms and be of varying degrees of relevance. The generally expressed requirement in s.424(1) that the Tribunal have regard to information in making a decision can be distinguished from a provision which requires a decision-maker to have regard to one matter only (see R v Hunt) or which specifies a list of factors to which regard must be had (see for example s.501(6)(c) of the Migration Act discussed by Sackville J in Singh at [55]). Further, as Sackville J noted in relation to s.54(1), s.424(1) is not a provision applicable to a power to be exercised by a particular person (such as the Minister). It applies generally to all Tribunal reviews by all Tribunal members where the Tribunal gets any information it considers relevant. The degree of relevance of such information (or, indeed, of particular parts of a source of information) may well differ. In those circumstances it cannot have been contemplated by the drafters of s.424 that any information, no matter how marginal its relevance, must be treated as a “fundamental” element in making the determination.
59. Nonetheless, in the context of s.424 (as in s.54), the expression “have regard to” requires more than that the decision-maker is merely aware of the information. The first respondent did not suggest otherwise. Rather there must be “a process of consideration” of the information which requires more than mere knowledge that the information exists. In Singh Sackville J (at [59]) expressed doubt that much was to be gained by attempting to be more precise about the extent to which the decision-maker was bound to consider the information in a visa application. His Honour referred with approval to the suggestion by Weinberg J in A v Pelekanakis and Another [1999] FCA 236; (1999) 91 FCR 70 at 82 that the duty would not be discharged “if no realistic regard is had to that information” (and also see Wen v Minister for Immigration and Multicultural Affairs [2000] FCA 320; (2000) 61 ALD 653 at [56]). The same may be said in relation to s.424(1). For consideration to be “realistic” or “genuine” (cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J), there must, as the applicant contended, be “an active intellectual process” directed at the information as Black CJ discussed in Tickner v Chapman and as Sackville J accepted in Singh. However, as acknowledged in both Tickner v Chapman and Singh, in a particular case “The extent of the required intellectual process must depend on the nature of the information and its degree of relevance” (Singh at [59]).
60. Hence it is necessary to consider whether the evidence before the Court is such as to establish on the balance of probabilities that the Tribunal failed to engage in an active intellectual process in relation to the 2007 Report. It is relevant to have regard to the Tribunal’s statement of reasons as evidence of its decision-making process and whether it had regard to the information in question, as well as to the content of the Report itself. The fact that the Tribunal stated that it had regard to the material available to it is not of itself such as to establish that it “had regard to” the particular information in question (Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and Others [1996] FCA 1509; (1996) 67 FCR 40 at [60]) and cannot be conclusive (see Sackville J in Singh at [61]). However, having regard to the whole of the evidence before the Court, including the Tribunal reasons for decision and the relevant Report, it has not been established that the Tribunal failed to “have regard” to the information contained in the 2007 Report as required by s.424(1) of the Act.
61. In its reasons for decision, in referring to independent country information, the Tribunal set out extracts from the 2007 Report under the heading “Independent Country Information” and the sub-heading “General Background”, stating that the report “reported on the situation on Egypt regarding matters relating to religion.” It summarised aspects of the 2007 Report including: its reference to estimates of the Coptic Christian minority in Egypt as between 6 – 10 million in a population of 79 million; the fact that Christians were dispersed throughout the country, although concentrated in particular areas; the fact that Islam was the official state religion in Egypt, although the Constitution provided for freedom of belief and practice; and that members of the main religious minorities, such as the Coptic Christian Church “worship without restriction” and maintain links with co-religionists in other countries.
62. The Tribunal also recorded that the Report stated that the Coptic Church experienced some “restrictions and delays” in gaining approval for building and renovation of church buildings. It noted that the Report indicated that, while the Egyptian Constitution provided for equal rights and duties without discrimination, in practice there was some discrimination against non-Muslims and that there were no Christians serving as presidents or deans of public universities and that they were rarely nominated (by the Government) to run in election as candidates of the National Democratic Party. It recorded that although a Copt had been appointed as a governor in Qena, he was only one of 26 governors, that Christians held less than two per cent of the seats in the Peoples’ Assembly and the Shura Council and that there were few appointments of Christians to public universities or in the upper ranks of the security services and armed forces.
63. The Tribunal also summarised information in the 2007 Report to the effect that family law was based on an individual’s religion; that the government only recognised Islam, Christianity and Judaism; that there were occasional reports that police harassed converts from Islam to Christianity; and that the security services maintained regular and sometimes hostile surveillance of Muslim-born citizens who had converted to Christianity. The Tribunal also referred to the Report in relation to the treatment of Muslim converts to Christianity, noting that the information in the Report was that the law did not prohibit conversion by Muslim-born citizens to Christianity, but that it did not recognise such conversions and that resistance by local officials constituted a prohibition in practice. It described information about the absence of legal means for converts to register a change of status and the fact that some converts had become involved in obtaining illicit identity papers, using fraudulent supporting documents and bribing public officials. The Tribunal also referred to information in the Report that authorities had periodically charged converts with breaking the law relating to falsification of documents.
64. After referring to a more recent (2008) press report about a decision of an Egyptian court that 12 Christians who had converted to Islam and then reconverted to Christianity could have their Christian faith officially recognised on their identity cards, the Tribunal again referred to the 2007 Report in relation to the issue of forced conversions. It observed that the 2007 Report noted that there were no reports of forced religious conversions carried out by the Egyptian government, but that there were reports of forced conversions of Coptic Christian women and girls to Islam by Muslim men. These reports were said to be disputed and to often include inflammatory allegations and categorical denials of kidnapping and rape. The 2007 Report stated that observers, including human rights groups, found it extremely difficult to determine whether compulsion was used, as most cases involved a female Copt who converted to Islam when she married a Muslim male and reports of such cases almost never appeared in the local media. The Tribunal’s description of this independent country information concluded with a reference to the statement in the 2007 Report that Christians and Muslims shared a common culture and lived as neighbours throughout the country, but that religious tensions existed and individual acts of prejudice and violence occurred from time to time.
65. The Tribunal went on to refer to other country information (about the 2005 alleged conversion of two Christian girls, the location of monasteries in the relevant area of Egypt and exit procedures) before the findings and reasons part of its decision summarised above.
66. It is important to note that the applicant claimed that until the specific incidents from September 2004 to 2005 involving converts, he did not have any problems with the authorities due to his religious beliefs. This was so notwithstanding his involvement with running youth group and prayer meeting activities for his church from the end of 2002 on. He claimed to have experienced unfair treatment by teachers and some harassment and discrimination by Muslim members of the community.
67. In its findings and reasons the Tribunal addressed the applicant’s claim to fear persecution as a Coptic Christian. In so doing it had regard to the 2007 Report in the sense required under s.424. This is apparent from its references to the Report, its acceptance, consistent with the Report, that Coptic Christians were a minority religion in Egypt and, importantly, and consistent with parts of the Report referred to under this ground, that they were “often subject to some discrimination for reasons of religion.” It recognised that the 2007 Report gave a general overview of the current situation for Coptic Christians in Egypt. It was also open to the Tribunal and appropriate for it (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 and SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938) to refer to more recent independent country information about a court decision that took a different approach to decisions discussed in the 2007 Report and that was said to have been a victory for freedom of religion in considering whether there was tolerance of conversions or discrimination against Christians such as to constitute persecution.
68. It was open to the Tribunal to find that, despite the reference in the 2007 Report to evidence of sectarian tensions and discrimination, the Report “does not suggest there is evidence of persecution of Coptic Christians.” Insofar as the applicant’s submissions in effect amount to a contention that the Tribunal could not have reached this conclusion had it given active intellectual consideration to the Report and hence could not have read the Report properly, that is not made out. The Tribunal recognised that the Report indicated that there was some discrimination against non-Muslims and that the Coptic Church experienced some restrictions and delays in gaining approval for building and renovation of Church buildings. It addressed discrimination against non-Muslims in light of the claims of the applicant and his past experiences. The 2007 Report did not state or compel a conclusion that there was evidence of “persecution” of Coptic Christians in Egypt by reason of their religion. It was open to the Tribunal to find that the Report did not “suggest” that there was evidence of persecution of Coptic Christians, having regard to the fact that under s.91R(1) (to which the Tribunal referred in its summary of the law) it is clear that discrimination does not of itself constitute persecution in the absence of serious harm.
69. The Tribunal had regard to the information in the 2007 Report about continuing sectarian tensions in Egyptian society. It accepted the description in the Report of some level of discrimination against Coptic Christians, which it described in relation to employment. In this respect, however, the Tribunal also had regard to the applicant’s education and employment history and to the fact that he had attended church freely in his home town and in Cairo, as well as to the fact that, as the Report stated, Christians and Muslims lived as neighbours, although religious tensions existed and individual acts of prejudice and violence occurred.
70. In relation to the second particular to this ground, while the Tribunal accepted that, as the Report stated, there were instances of sectarian violence, it also found that there was information in the Report that the response of state authorities to recent incidents was timely and effective. In light of the information about the response of the authorities to the September 2006 and May 2007 incidents, such a conclusion was open to the Tribunal on the material in the Report (notwithstanding the reference to the on-going investigation of the blogger who accused the authorities of complicity in sectarian violence against Copts in a particular village in January 2006).
71. The Report recorded that after the September 2006 incident involving a clash between Muslim and Christian villagers when land claimed by Christians was designated by local authorities as a Muslim cemetery, members of Parliament and local officials “worked quickly to resolve the problem and an SSIS official reportedly brokered a deal that resulted in the land being equally divided between Christians and Muslims.”
72. It also recorded that in May 2007 a group of Muslims attacked Christian villagers, reportedly because they believed the Christians planned to build or enlarge a church without obtaining a licence. According to the Report “Police responded quickly to contain the violence and detained approximately 60 mostly Muslim villagers”. While the Report stated that “most” detainees had been released by the end of the reporting period and that formal charges had not been pursued, it noted that the local authorities sought to arrange several reconciliation meetings.
73. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court of the Federal Court considered a Tribunal’s reliance on particular items of country information. While to some extent the material in question could have been considered helpful to the appellants’ case, the Tribunal had relied on parts of the material in making findings adverse to the appellant (at [11]). Gray, Tamberlin and Lander JJ noted that the Tribunal was not bound by the rules of evidence. It referred to the fact that in conducting a review by s.424(1) the Tribunal may get any information that it considers relevant and continued (at [11]):
    • There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, [as the appellants had submitted]. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court
74. The applicant’s submission is not that the Tribunal relied on country information that was not true, but rather that given the contents of the 2007 Report, even though the Tribunal acknowledged it was aware of it, it could not be said that it had engaged in any intellectual process in relation to it. However the Tribunal did not merely refer to having regard to material before it, it also extracted and applied particular aspects of the 2007 Report and considered its overall relevance to the situation of Copts in Egypt. Insofar as this ground contends that the Tribunal did not expressly address particular aspects of the Report, it was open to the Tribunal to give little or no weight to particular aspects of the Report, consistent with the well-established principle considered in NAHI that the interpretation of country information is a factual issue for the Tribunal (also see Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142 and NBKT).
75. The fact that the Tribunal referred specifically to some aspects of the Report and not to other aspects of the Report in its findings and reasons is not such as to establish that it did not engage in the requisite active intellectual process in relation to the Report. In particular, the content of the Report is not such as to establish that had the Tribunal had regard to it, it must have found that all Copts in Egypt were persecuted and that hence that the applicant as a Copt was entitled to a protection visa. It considered whether the applicant had a well-founded fear of persecution as a Copt and in that respect considered the report. The parts of the Report referred to in the particulars are not such as to establish that had the Tribunal had a “genuine” or “realistic” regard to the whole of the report it would necessarily have found that there was evidence to suggest that there was persecution of Coptic Christians in general in Egypt so that it would be compelled to conclude that all Copts in Egypt were persecuted. It was also open to the Tribunal to regard the report as indicating a timely and effective response by state authorities to sectarian violence (notwithstanding the absence of formal charges against those responsible for the incidents discussed). Its views in that respect do not establish that it failed to engage in an “active intellectual process” directed at the report or to have realistic regard to it. The Tribunal was not in light of the applicant’s claims and its consideration of the report required to refer specifically to whether each matter relied on under this ground was indicative of persecution of Copts in Egypt.
76. Even if the Tribunal erred in its actual analysis of country information that of itself would not amount to jurisdictional error (see NAHI). Nor would it establish that the Tribunal failed to “have regard to” that information as required by s.424 of the Act.
77. It has not been established that the Tribunal failed to have regard to the Report or parts thereof in the sense required by s.424(1). On the contrary, and as considered further in relation to ground three, its decision reveals that it engaged in an active intellectual process, appreciated what was in the Report and attributed such degree of relevance and “weight or pervasive quality” (Kiefel J in Tickner v Chapman at 495) it thought appropriate to that material.
78. Ground one in the amended application is not made out.

Relevant considerations

79. Ground two is not pressed. Ground three is that the Tribunal failed to take into account relevant considerations. The particulars to this ground are as follows:
    1. The applicant repeats the particulars to Ground 1 above;
    2. The evidence of Mr [S] was excluded from consideration by the Tribunal as irrelevant to the applicant’s circumstances even though Mr [S] gave evidence that:
       1. he had very little specific contact with the Priests of the Church during his conversion except when he was baptised [88.2].
       2. ordinarily his conversion involved people his age (see transcript [of Tribunal hearing]);
       3. although he was on probation after release from gaol he was able to leave Egypt by air; and
       4. people who had not assisted in his conversion were persecuted merely on suspicion of such assistance.
    100. The evidence of [E] was excluded from consideration by the Tribunal as irrelevant even though she gave evidence that she was able to leave Egypt by air at a time when she was wanted for questioning by the authorities.

The 2007 Report

80. Particular (a) to ground three raises the issues considered in relation to ground one, albeit from the perspective of whether the Tribunal failed to have regard to relevant considerations. As set out above, the Tribunal did have regard to the 2007 Report and the interpretation of such country information was a factual matter for it. It has not been established that the Tribunal failed to have regard to relevant considerations in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, by failing to refer specifically to particular parts of the Report relied on by the applicant in these proceedings or that it failed to consider any claim to protection raised squarely on the Report (albeit not expressly relied on by the applicant) in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. As indicated in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] relevant considerations do not “encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed” (and see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42]). This is not a case in which there was “an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review” such as was considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (at [47]).
81. The fundamental issue for the Tribunal in this case was whether the applicant had a well-founded fear of persecution by reason of his religion as a Coptic Christian (and in light of specific activities in which he claimed he had involvement or would be perceived as having involvement). The Tribunal’s treatment of the particular item of country information consisting of the 2007 Report was not such as to amount to a failure to have regard in its reasons to important “relevant material” going to a central consideration which was so fundamental that the failure to refer to such material went to jurisdiction in the sense considered in WAFP v Minister for Immigration & Multicultural Affairs [2003] FCAFC 319 (and see Yusuf at [82] per McHugh, Gummow and Hayne JJ).
82. In WAFP the Tribunal had failed to refer to or have regard to the fact that in a Departmental interview the appellant had said that he left his country illegally and had given corroborative evidence of surrounding facts. The Full Court of the Federal Court observed that the Tribunal had placed great importance on its conclusion that the appellant left his home country legally (at [18]). It was in that context that the Court found that the Tribunal had failed to have regard to relevant material (the applicant’s evidence in the interview) going to a central consideration in the matter, namely the legality of the appellant’s departure from his home country (at [19] – [21]). The parts of the 2007 Report relied on under particular (a) are not of this nature.
83. In this case the Tribunal attached particular weight to particular aspects of the information before it, including the 2007 Report, in a manner that was open to it on the material before it. The Report was not such as to raise a claim of persecution on a basis beyond that considered by the Tribunal. The Tribunal considered whether the applicant had a well-founded fear of persecution as a Coptic Christian. It addressed the current situation of Coptic Christians in Egypt as described in the 2007 Report but, while acknowledging that there was issues of sectarian tension and discrimination (as discussed in the Report) found that the report did not suggest that there was evidence of persecution of Coptic Christians. It addressed, insofar as was necessary, possible bases on which the applicant might have a well-founded fear of persecution. It did not have to deal expressly with each aspect of discrimination or restriction outlined in the Report, given its consideration of the whole of the Report.
84. Particulars (b) and (c) to ground three relate to the Tribunal’s treatment of supporting evidence from witnesses for the applicant. The Tribunal recorded that at the second hearing the applicant asked it to hear evidence from Mr S, an Egyptian Muslim who had converted to Christianity. Mr S gave what the Tribunal described as very lengthy, detailed and “compelling evidence” at the hearing regarding his own circumstances in Egypt and how he came to be arrested, detained and imprisoned for involvement in forging identity documents. The Tribunal referred to Mr S’s statutory declaration in which he set out an account of his conversion from Islam to Christianity and also indicated that he had no personal knowledge of events in Egypt involving the applicant. The Tribunal found Mr S’s oral evidence to be quite detailed and truthfully recalled from Mr S’s own experiences. It also observed that Mr S’s evidence about his awareness as a young child that his father was involved in the conversion of Christian girls to Islam was vague and qualified in contrast to the evidence he had given about his own experiences of conversion and his subsequent mistreatment.
85. In its findings and reasons the Tribunal referred to Mr S’s account of his conversion and subsequent mistreatment in Egypt and to a press report provided by the applicant repeating some of the information Mr S had given, as well as to a letter from a named doctor confirming his own involvement in Mr S’s case. It also accepted the applicant’s evidence that Mr S had no direct knowledge of his situation in Egypt, because they first became known to each other in Australia.
86. The Tribunal considered the applicant’s claim that Mr S’s evidence was relevant to his own claims because it showed the treatment by state authorities given to converts and persons assisting them in their conversion. However the Tribunal found “the applicant is in a different position than the witness in that he gave evidence that he was born into a Coptic Christian family, is not a convert from Islam and was not involved in the falsification of documents. As previously stated there is no evidence which satisfies me that the applicant would be suspected by authorities of falsification of documents. The applicant’s situation is quite different from that of [Mr S] and I did not find his evidence to be relevant to the applicant’s claims”.
87. Counsel for the applicant contended that Mr S’s evidence was particularly relevant to the applicant’s claim, being the other side of the conversion coin, but part of the same story. It was pointed out that Mr S’s evidence was that he had come from a very religious Islamic family and had converted to Christianity many years ago, but in 2001 had arranged for a false ID to reflect his Christian religion. People who assisted him were deported. People who helped him but had nothing to do with the conversion or forging papers had been interrogated by security and fled overseas and sought protection. On return to Egypt one person had had his passport confiscated. Mr S’s evidence was that during the period of his conversion he had little specific contact with the priests of the church (other than meeting at most once a month with a particular priest) except when he was baptised and that he did not know who in the church was involved with the forged documents, other than that it was a process involving many people. The priest introduced him to other people his own age he could converse with and visit at their homes. He stated that converts and their assistants were at risk.
88. It was contended that such evidence gave colour to the applicant’s position, as he and his family had a particular background of being closely involved with the church and he was involved with, and wished to continue to be involved with, assisting the conversion of Muslims. It was suggested that the Tribunal failed to consider these aspects of these claims (although I note in that respect that counsel for the applicant did not seek to rely on grounds other than those contained in the amended application).
89. The applicant submitted that while Mr S’s evidence was not rejected by the Tribunal, it was found to be irrelevant and hence not taken into account. Mr S’s evidence is now said to be relevant to the applicant’s claim, which the Tribunal rejected as implausible, about his involvement in the education of two converts from Islam. It was submitted that as Mr S was a convert the story of his conversion was relevant to the applicant’s claims. In particular, he had said that he had very little contact with priests except when he was baptised and that he was mostly involved with people his age.
90. However the Tribunal considered the applicant’s claim that he assisted in the education of two Islamic converts. The Tribunal did not fail to have regard to relevant considerations in finding Mr S’s evidence not to be relevant to the applicant’s claims as set out above.
91. As the first respondent submitted the Tribunal explained why it did not regard Mr S’s evidence as relevant to the applicant’s claims. In that sense it cannot be said to have failed to have regard to it. Nor, more generally, is it apparent that the Tribunal’s approach to Mr S’s claims is such as to establish that it failed to have regard to integers of the applicant’s claims, as seemed to be contended for the applicant. The fact that the Tribunal reached a conclusion that the evidence of Mr S (which it clearly considered and had regard to) was not relevant to the applicant’s claims does not mean that it did not have regard to that evidence in a manner constituting jurisdictional error.
92. Particular (c) to ground three refers to evidence before the Tribunal about the case of Ms E. The applicant provided the Tribunal with an email from Ms E, who claimed that she had been charged with offences relating to forgery of identity documents in relation to her husband’s conversion to Christianity in Egypt. In response to a s.424A letter the applicant also provided the Tribunal with translated documents relating to charges of forgery of official documents against Ms E and her husband, indicating that the reason for the forgery was that Ms E married a Muslim who wanted to change his Muslim identity to be identical to her in religion.
93. The applicant’s adviser informed the Tribunal that although not involved in the forgery, Ms E and her husband had been charged, that she thereafter managed to leave Egypt (with assistance from the Barnabas Fund), they had been sentenced (in absentia) to terms of imprisonment and her husband was “less fortunate” and was in hiding unable to leave Egypt. This was said to show that a person, although innocent, may find him or herself the subject of attention by the authorities, the harsh sentences and charges applicable, and that individuals suspected of serious crimes were not restricted in any way, including travel, until after the court verdict.
94. The Tribunal summarised the evidence about Ms E, who was said to have been charged with offences relating to forgery of identity documents. In its findings and reasons it found that it appeared from this evidence that Ms E was married to a Christian convert from Islam and that she left Egypt before she was arrested and detained for her alleged involvement in the forging of identity documents. The Tribunal did not accept that Ms E’s circumstances were relevant to the applicant’s particular claims.
95. The applicant submitted that the Tribunal had erred in finding the evidence about Ms E irrelevant, in particular in relation to whether people of interest to the authorities were nonetheless able to depart Egypt as the applicant had claimed.
96. Insofar as reference was made to Ms E’s ability to leave Egypt despite having previously been arrested, this issue was said to have been referred to by the Tribunal in its account of the evidence. The Tribunal set out Ms E’s circumstances. It also described the applicant’s claim (in response to the s.424A letter) about his ability to depart Egypt: that at the time of departure he had not been charged with any offence, that it was possible that the authorities were preparing for his return and that he could be further monitored, interrogated or arrested after his return. It addressed this claim. The first respondent also submitted that as the Tribunal specifically referred to Ms E’s claim it could hardly be said not to have had regard to it and that it was entitled to prefer the independent country information it cited concerning exit procedures from Egypt.
97. The Tribunal’s findings in relation to Ms E’s evidence were open to it. Insofar as this ground is intended to take issue with the applicant’s claim that Ms E was able to leave Egypt despite having been arrested, the issue of the applicant’s ability to leave Egypt was put to him in the Tribunal’s s.424A letter. The Tribunal specifically referred to this claim and took the applicant’s response into account. It is also notable that while Ms E had been charged with involvement in forgery of documents, the applicant’s adviser claimed that she had managed to depart Egypt with the assistance of the Barnabas Fund (while her husband was “less fortunate” and remained in hiding in Egypt unable to leave the country). There was no claim that the applicant had been charged with any offence. Nor was it claimed that he had such assistance to depart Egypt (which he did legally on his own passport). In considering whether the applicant was of any adverse interest to the police or security authorities, it was open to the Tribunal to find that Ms E’s circumstances were not relevant to the applicant’s particular claims and to prefer independent country information concerning exit procedures and rigorous departure controls in Egypt to the applicant’s claims in this respect. It has not been established that the Tribunal failed to have regard to relevant considerations in a manner constituting jurisdictional error.
98. More generally, I note that the Tribunal did not reject the possibility that persons actually involved in forgery of identity documents would be subject to charges. Indeed, in its reasons for decision it accepted that some converts had been involved in the forgery of identity documents and that when their activities were discovered these converts and others involved in these activities have been charged with falsifying official documents. However, for the reasons which it gave, it did not accept that the applicant was at particular risk of harm due to a suspicion that he was involved in conversion (in particular of the Muslim girl) or the alleged falsification of her identity documents.
99. Ground three is not made out.

Whether constructive failure to exercise jurisdiction

100. The fourth ground in the amended application is that the Tribunal constructively failed to exercise its jurisdiction. The particulars are as follows:
     1. The Tribunal failed to consider the impact of all the evidence before it relating to the treatment of Coptic Christians as well as the treatment of the applicant when considering whether Coptic Christians in general faced persecution in Egypt. In particular, it failed to consider the impact of the discrimination as a whole upon the applicant’s future conduct and whether the fear of such harm might lead to a change of behaviour and demonstrate persecution. The overall picture of the material before the Tribunal was that religious freedom in Egypt existed as a matter of form but not in substance and that, in effect, Christians and adherents to other minority religions face ongoing daily discrimination from both private citizens and all levels of government such as to possibly amount to serious harm, for example:
        1. restrictions on building, having an indirect impact on freedom to worship;
        2. restrictions on expressing religious views: see for example US State Department Report, p3.5 par.(c);
        3. reports that the government was complicit in sectarian violence: US State Department Report, p.35;
        4. reports that after such violence perpetrators were not persecuted (sic);
        5. when the applicant was involved in a demonstration he was detained and questioned for three days;
        6. the involvement of the security forces and Police enforced conversion of Christian women and girls to Islam.
101. It was contended for the applicant that if the Tribunal was of the view that the 2007 Report (other than the parts it referred to) was irrelevant, it misunderstood the law, as restrictions on religious practice, state complicity, condonation of or unwillingness to protect against private harm all had the potential to constitute “persecution” or to impact on the well-foundedness of a fear of persecution within the meaning of the Refugees Convention (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1). It was submitted that there was evidence of all these things before the Tribunal, but that its failure to make reference to them in its findings indicated that it did not consider them material and that this constituted a constructive failure to exercise jurisdiction.
102. Insofar as this is a contention that the Tribunal was required to, but did not, deal with claims that arose on the material before it, merely because the country information suggested particular ways in which Coptic Christians in Egypt may, in particular instances, be discriminated against (such as restrictions on building churches and achieving high office in universities or the public service), the Tribunal was not bound to address each of these matters expressly in its findings and reasons or to make a finding as to whether or not the applicant would be persecuted for reason of any of these matters. As the first respondent submitted, the applicant did not claim that he feared persecution on such bases. Rather, apart from claims based generally on his religion and past experiences of discrimination and family membership, he made specific claims as to why he feared harm based around his involvement (or suspected involvement) in three incidents involving conversions. Given the nature of the applicant’s claims, the matters arising in the Report were adequately dealt with by the Tribunal in its findings and reasons. The Tribunal was not bound to go through each part of the country information and make findings as to potential claims which the applicant did not make given that it considered the impact of the whole of the 2007 Report, finding that while the Report noted continuing sectarian tensions in society and some level of discrimination against Coptic Christians (which would encompass those aspects of the report in issue under this ground) “the report does not suggest there is evidence of persecution of Coptic Christians.” As indicated above, any contention that the Tribunal erred in that it should have found that the country information before it established that Coptic Christians were persecuted in Egypt, fails for the same reasons that ground one fails.
103. The specific claims made by the applicant were addressed by the Tribunal. For example, in addition to his general claims based on his religion and the three specific incidents, the applicant claimed he would be persecuted upon return to Egypt in that his representative had claimed that he would be detained (because he had been in a western country and had overstayed his initial visa) and then handed to security services who would be aware of him because he had been sought by them before he left Egypt. However the Tribunal found that the applicant was not of any interest to the Egyptian authorities or subject to arrest prior to his departure from Egypt. Nor did the Tribunal accept that members of the applicant’s family had been approached by police seeking his whereabouts as claimed, finding that if the police had a serious adverse interest in him they would have taken action to approach him prior to his departure from Egypt and that if his whereabouts had been unknown he would not have been able to depart Egypt on his own passport, given country information about rigorous departure controls. In making those findings the Tribunal had regard to the applicant’s explanations in relation to the ease of his departure, but did not accept such explanations. Such findings addressed the applicant’s claim to be wanted by the Egyptian authorities.
104. Insofar as the country information addressed the issue of religious conversion and the possibility of forced conversion, that was not a claim made by the applicant. His claim was that he was a Coptic Christian from a religious family involved in the Church, that he had experienced discrimination, that he had assisted other young men converting to Christianity and that he was suspected of being involved to the conversion of and production of documents for a young Muslim woman.
105. In relation to the Tribunal’s treatment of the applicant’s claim of involvement in looking after converts (which the Tribunal rejected), it was open to the Tribunal to find that Christian conversion was an extremely sensitive topic in Egypt and that the Coptic Church was a highly structured religious organisation and would not have entrusted such an important and sensitive task to two young boys, even if they were committed members of the congregation. The applicant’s challenge to this finding does not establish jurisdictional error.
106. As contended for the applicant, it is necessary for the Tribunal to consider claims that could be said to arise squarely from the nature of the independent country information before it in the sense considered in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. However it cannot be said that simply because independent country information referred to particular aspects of discrimination or even mistreatment of some Copts in Egypt, that claims by the applicant of a fear of persecution on each of those bases arose on the material such that each issue addressed in the Report had to be addressed in the findings and reasons part of the decision and that a failure to do so amounted to a constructive failure to exercise jurisdiction. The Tribunal’s general findings sufficiently addressed the particular kinds of discrimination detailed in the Report. It considered, but rejected the possibility that the Report suggested that there was persecution of Coptic Christians in Egypt. Ground four is not made out.
107. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 February 2009