MZKAH v Minister for Immigration - [2004] FMCA 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZKAH v MINISTER FOR IMMIGRATION

[2004] FMCA 388

MIGRATION – Review from Refugee Review Tribunal – applicants in inter-racial and inter-denominational marriage – applicants in fear of their families – persecution for a Convention reason – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migation Act 1958 (Cth), ss.36, 91R, 474, 475A

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Indigenous and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant:

MZKAH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ1141 of 2002

Delivered on:

23 July 2004

Delivered at:

Melbourne

Hearing date:

16 September 2003

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr M. Belmar

Counsel for the Respondent:

Ms S. Moore

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

THAT the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ1141 of 2002

MZKAH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the principal applicant and his wife on 11 November 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 1 October 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant protection (class XA, sub-class 866) visas.

The applicants’ claims

The applicant is a male Muslim, who is a citizen of Egypt. He arrived in Australia on 30 August 2000 with his wife, who is a Christian (Greek Orthodox) and a citizen of Greece. The principal applicant lodged an application for a protection (class XA) visa on 15 September 2000. The wife lodged her application for a protection visa, which was connected to the principal applicant’s application, on 25 September 2000. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the principal applicant made specific claims under the Refugees Convention and for these reasons he has been referred to as the principal applicant by the Refugee Review Tribunal (“the Tribunal”).
The principal applicant claimed that he feared persecution from his family in Egypt and his wife’s family in Greece. The parties married in Athens on 22 January 2001 against the wishes of the wife’s family. The applicants claim that the wife’s family threatened to kill them whilst in Greece for religious and ethnic reasons and thus they cannot return to that country. In August 2000, the applicants fled to Egypt; the principal applicant’s family also threatened to kill both the applicants for religious reasons. The principal applicant was considered to be an infidel and was threatened with beheading, as was his wife.
On 9 October 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection (class XA) visas; the applicants applied to the Tribunal for review of that decision on 25 October 2000. In the Tribunal decision of 1 October 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class XA) visas. Specifically, the Tribunal held that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the applicants did not satisfy the criterion set out in section 36(2) of the Migration Act1958 (Cth) (“the Migration Act”).
On 11 November 2002, the principal applicant lodged an application in the Federal Magistrates Court of Australia, being MZ1141 of 2002, pursuant to section 475A of the Migration Act and section 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal’s decision. The principal applicant claimed that the Tribunal had erred in concluding that he and his wife were not entitled to protection visas. In the principal applicant’s contentions of fact and law, which were filed on 4 March 2003 in conjunction with an amended application, it was claimed, summarily, that:
(a) the Tribunal failed to properly consider whether the principal applicant had a fear of persecution for a Convention reason;
(b) the Tribunal did not consider each of the principal applicant’s claims regarding persecution, which consequently revealed that there was “an error in the construction of the Convention as it is incorporated into domestic law”;
(c) the Tribunal failed to consider whether the principal applicant was a “member of a particular social group” pursuant to the Convention (namely people in Greece who are involved in an inter-racial and inter-denominational marriage) and thus failed to exercise its jurisdiction and/or take into account a relevant consideration; and
(d) the Tribunal failed to exercise its jurisdiction in relation to the principal applicant’s entitlement to a protection visa.
The applicant’s arguments were rebutted in the respondent’s contentions of fact and law, filed on 30 April 2003. In summary, the respondent argued that the Tribunal did make a determination as to the applicant’s fear of persecution, finding that the applicant did not face a real chance of persecution for practising his religion in Greece. Further, the respondent argued that there was no evidence before the Tribunal to infer the existence of a particular social group (namely people in Greece who are involved in an inter-racial and inter-denominational marriage) and that membership to that group would lead to harm or persecution.

The law

Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).

Conclusions and findings

The essence of the applicant’s first complaint is that the Tribunal failed to properly consider or find whether the applicant had a fear of persecution for a Convention reason whilst in Greece. Counsel for the applicant contended that rather than looking at whether the persecution he was facing in Greece was for a Convention reason, the respondent simply couched what the principal applicant faced in Greece as “internal family strife” or internal family squabbles. It was submitted that the Tribunal did not make a finding in relation to whether the applicant feared persecution for a Convention reason.
Counsel for the applicant further submitted that the only place in which the Tribunal dealt with the applicant’s refugee status was at Casebook (“CB”) 107 when it dealt with the letter in finding that:
The Tribunal has considered the letter purportedly from a friend in Greece indicating that the father continued to search for his daughter and advising that it would be safer for the couple to remain in Australia. It does not find that the content of this letter undermines the finding that they would be safe from persecution, under the criteria of the Refugees Convention, in Greece. While having some doubts as to the authenticity of the account that the father managed to locate a friend of the principal Applicant, even if true, it maintains that the couple would not be unprotected by the State of Greece.
Counsel then went on to say that the Tribunal did not deal with the other grounds properly.
The Tribunal in my view considered whether the applicant’s rights to his religious belief and practice were protected in Greece and found that (CB 108):
While it is true that the Greek Orthodox Church is the established church and is intertwined with the very notion of being Greek, other religions, including Islam, are recognised and the rights of their believers to practice their faith is also recognised. Practitioners of Judaism and Islam are ‘legal persons of public law’ as are those of the Greek Orthodox persuasion (US Department of State Reports, op. cit., p. 1484). There is a large Muslim minority, a product of the Ottoman history of Greece, in the country. Although there are protests about the government’s close links with the Orthodox Church and petty and other discriminatory measures against Christians of other denominations and those of other faiths, the evidence does not point to there being persecution of the latter. The Tribunal is satisfied that the principal Applicant would not be in the foreseeable future a person who faces a real chance of persecution for reasons of his religion.
The Tribunal at CB 105 found:
The Tribunal accepts the account given by the Applicants on the situation that developed when they decided to marry against the wishes of family members, particularly the Applicant wife’s father. It accepts that their disapproval of him related to his ethnicity, as an Arab, but most particularly to his religion, as a Muslim. A question for the Tribunal is whether their disapproval is more than merely personal, whether, that is, it reflects something more serious across Greek society and government.
I am satisfied that the question was a relevant and appropriate question to ascertain in determining whether the applicant faced a real chance of persecution. In considering the question the Tribunal at various points concludes that it was simply his personal circumstances that gave rise to his fear.
The Tribunal at CB 106 stated:
The principal Applicant is from Egypt, a country with a long historical connection to Greece. Until he developed a relationship with his employer’s daughter, his experiences in Greece appear to have been satisfactory. He found a place to live, had a good job and earned well. He told the Tribunal that he enjoyed his life and his work there. It was his personal circumstances which altered that situation.
Further, in the third paragraph at CB 106, the Tribunal said:
It accepts the account of a distant relative who apparently informed the father of his daughter’s whereabouts. Again, it notes that this was a private family matter, not one in which the authorities were engaged to do the family’s bidding.
And again at CB 107 in the last paragraph, the Tribunal stated:
The Tribunal is satisfied that the matter was and has remained a matter of internal family strife.
The Tribunal then went on and appropriately looked at what protection was available in Greece. At CB 106, paragraph two, the Tribunal found:
The Tribunal accepts that the father used heavy-handed tactics to try and stop the relationship, including beating his daughter and sacking her fiancé. It accepts that the father had attempted to frame the latter on false charges of theft. However it notes that the local police were not misled by this and let the principal Applicant know this. No charges were laid and he was released.
Then at CB 107 the Tribunal, referring to the United States Department of State Country Reports on Human Rights Practices for 2001, said:
The Tribunal accepts the tenor of this report, that is, that Greece is in general a parliamentary democracy with respect for the rule of law. In the Applicants’ own particular circumstances, the Tribunal is not satisfied that they were denied protection by the authorities. This finding arises particularly from the situation they were in once in Athens. They were able to find accommodation and employment there. They were legally married after posting a public notice to the fact of their intention. The State then did not deny them the ordinary freedoms of daily life, freedom to move, to find employment and to marry.
In reaching its conclusion, the Tribunal also considered some country information which it recorded at CB 104:
The Tribunal discussed relevant matters from country information sources with the Applicants. Among the information was that in 1982, the Greek law was changed from one which recognised only religious ceremonies to one where civil marriages also were recognised.
In summary the Tribunal did not fail to make a finding as to whether the applicant had a fear for a Convention reason. It determined in fact that the threats which amounted to internal family strife were personal and did not have any official quality about them. It was not officially tolerated or uncontrollable. The Tribunal says that this was not the case in Greece (See Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559).
Accordingly the fear was not well-founded. The Tribunal set out at CB 99 that its an objective requirement and the fear must be founded upon a real chance. The Tribunal’s findings in the final paragraph (CB 106) support the conclusion that the fear was not well founded:
While threats were made, and these would have been disturbing, in fact no harm did come to the Applicants, even though there was time in which it could have been.
Finally at CB 107 the Tribunal said:
It accepts that this is uncomfortable and worrying to both the Applicants. However, it is not satisfied that the authorities would fail to protect them nor that those same authorities could be co-opted to harm the principal Applicant. It finds then that they are not refugees against Greece and that they could return to that country without facing a real chance of persecution.
Accordingly, I am satisfied that there was no failure by the Tribunal to make a finding in relation to whether the applicant faced persecution for a Convention reason and the decision did not evoke jurisdictional error.
The principal applicant’s second complaint was that the decision involved a jurisdictional error in that the Tribunal had failed to take into account a relevant consideration; that is whether the applicant was a member of a particular social group (people residing in Greece who are involved in inter-racial and inter-denominational marriages) for Convention purposes.
The applicant submitted to the Tribunal two reports on the situation in Greece from Human Rights Watch (CB 52–56). Neither of the reports provided evidence of the existence of the particular social group claimed by the applicant. At CB 109, the Tribunal found:
However, as found above, the Tribunal is satisfied that the Applicants are able to return to Greece and that they are not refugees under the Convention vis-à-vis that country. As indicated above, it has accepted that there was strong family disapproval of the marriage. However, it has taken into account the generally settled and lawful society of Greece, the fact that they were able to continue to live in that country, unharmed, for some months after their marriage and that there is no country evidence that Greece permits or has a current practice of “honour” killings or similar forms of persecution. It is satisfied that their marriage is a lawful one, recognised under Greek law. While marriage to a Greek citizen of itself does not result in the acquisition of Greek citizenship for the non-Greek party, the principal Applicant has and/or is able to apply to re-enter Greece on the same permit as that he held when he resided in Greece.
Accordingly there was no jurisdictional error and I am satisfied that the application should be dismissed

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate: N. Lane

Date: 24 July 2004