MZWYM v Minister for Immigration and Citizenship

[2007] FCA 1032

FEDERAL COURT OF AUSTRALIA

MZWYM v Minister for Immigration and Citizenship
[2007] FCA 1032

Migration Act 1958 (Cth) ss 36, 61(1)(b), 65(1)(b), 91R

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
S395/2002 v Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473

MZWYM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 137 OF 2007

NICHOLSON J
10 JULY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 137 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWYM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	10 JULY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The description of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 137 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWYM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE:	10 JULY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate (McInnis FM) dated 30 January 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 19 April 2006.  On 16 February 2005 the Tribunal had affirmed a decision of a delegate of the first respondent made on 24 June 2004 refusing to grant a protection (class XA) visa to the appellant under the provisions of the Migration Act 1958 (Cth) (the Act). However, it had not provided the appellant with an invitation to comment on these inconsistencies as required by s 424A of the Act. On 6 December 2005 the Federal Magistrates Court made orders remitting the matter to the Tribunal for reconsideration. The result was the further decision of the Tribunal, differently constituted, dated 19 April 2006.

2. On 6 June 2006 the appellant applied to the Federal Magistrates Court for review of this second Tribunal decision. 

3. At the hearing of the appeal from that judgment this Court granted leave for the filing of an amended notice of appeal.

   Appellant’s claims

4. The appellant accepts the following paragraphs of the respondent’s submissions setting out the nature of the appellant’s claim:

   The appellant claimed to have a well-founded fear of persecution by reason of her race and religious beliefs.  The appellant, by further material filed with the Tribunal, also claimed to have a well-founded fear of persecution by reason of her membership of a particular social group.

5. The appellant’s claims, as stated in her protection visa application may be summarised as follows:

   1.whilst in Kuala Lumpur, the appellant was in a relationship with a Muslim man;

   2.her partner wished to marry her and was willing to convert and have a traditional Hindu marriage;

   3.her employer learned of their intentions and reported the matter to the police and religious officials;

   4.on 2 March 2004, the couple were arrested at their place of employment by the police and taken to a police station.  Her partner was assaulted in front of her, directed to end their relationship and to slap her and spit on her;

   5.she was detained in prison for two days and released on payment of a bribe;

   6.she lost her job and her relationship with her partner ended by reason of her religion;

   7.after being released, religious officials made frequent visits to her home and made her life unbearable.  She was threatened with being charged unless she became a Muslim; and

   8.she was fearful that if she returned to Malaysia she would be harassed by the police and religious authorities and possibly charged for attempted conversion of a Muslim.

6. Before the delegate of the first respondent, she expanded upon these claims and stated that her relationship with her partner had ended.

7. Before the Tribunal on 18 November 2004 and the differently constituted Tribunal on 27 February 2006, she gave a different account of the circumstances giving rise to her claims insofar as she gave evidence that:

   1.her employer came to know of her planned marriage after her arrest;

   2.her partner’s parents initiated the police involvement by making a complaint against her.  At the police station, her partner’s uncle (a police officer) pushed and slapped her;

   3.variously, she was charged with trying to convert a Muslim to another religion and for illegally keeping company with a Muslim man.  Or, she signed a typed statement and did not know whether she had been charged with an offence;

   4.she was monitored or ‘observed’ by religious officials following her arrest; and

   5.she had had further contact with her partner and wished the relationship to continue.

8. On 18 April 2006, in a response to an invitation to comment provided by the Tribunal and dated 24 March 2006, the appellant in commenting on apparent inconsistencies in her claims stated:

   ‘Please put my self in your shoe – [sic] A poor single Hindu woman surrounded by a hostile Police and Muslim fundamentalists basically accusing me of some thing closer to Blasphemy at a Police station in Malaysia.’

   Tribunal’s reasons

9. The appellant also accepted the following description by the respondents of the effect of the decision of the second Tribunal.  The Tribunal accepted that:

   1.the appellant was a citizen of Malaysia;

   2.the appellant may have been in a relationship with a Malay Muslim man, whom she met at work and they wished to marry;

   3.her partner’s parents learned of their plans to marry and opposed them;

   4.her partner intervened when his family attempted to end their relationship, because they did not want him to marry outside the Muslim faith or convert;

   5.the couple may have been taken to a police station by her partner’s parents and uncle, who was a police officer, and questioned by them about the nature of their relationship and their intentions;

   6.the appellant’s account was, in specified ways, inconsistent;

   7.the appellant’s relationship with her partner ended on 2 March 2004 and she has had no further contact with him.

10. The Tribunal did not accept:

    1.the questioning at the police station was instituted by the authorities;

    2.the appellant was of interest to the law enforcement authorities or religious authorities;

    3.the appellant was mistreated whilst at the police station, detained for 2 days, charged with any criminal offence or pursued by the religious authorities; and

    4.the appellant lost her job as a result of her relationship with her partner.

11. The Tribunal formed the view that the appellant’s response to its invitation to comment raised for consideration whether the appellant formed part of a particular social group, being Hindu single women in Malaysia.  The Tribunal accepted this might constitute a particular social group within Malaysia, but did not accept that any of the difficulties the appellant described were suffered ‘for reason of her membership’ of that particular social group.

    Federal Magistrate’s reasons

12. Before the Federal Magistrate, the appellant claimed inter alia that the Tribunal had erred in finding that her adverse treatment in Malaysia was not an act instituted by Malaysian authorities. The appellant challenged the Tribunal’s findings that there was no persecution consistent with s 91R of the Act or that she was not likely to suffer persecution based on her attempt to convert a Muslim to Hinduism in Malaysia. It was also claimed that the Tribunal did not adequately consider the appellant’s claim that she is a member of a particular social group, namely, a single Hindu woman in Malaysia.

13. The Federal Magistrate found that several of the appellant’s claims were an attempt to challenge factual findings of the Tribunal and were considered to be a review of merits, a course of action the Federal Magistrate correctly cited as being impermissible, stating:

    ‘I am satisfied, as submitted by the First Respondent, that these grounds fail, as they relate to factual findings made by the Tribunal reasonably open to it and free of jurisdictional error.’

14. The Federal Magistrate noted that since the Tribunal did not accept that the claimed abuse and detainment of the appellant had occurred, her challenge regarding the interpretation and application of persecution under s 91R of the Act could not succeed. Of those incidents that were accepted by the Tribunal, including the appellant’s loss of employment, the Federal Magistrate held that this could not meet the description of ‘serious harm’ pursuant to s 91R of the Act.

15. The Federal Magistrate also considered the appellant’s claim that the Tribunal had failed to recognise that she is a member of a particular social group, namely, a single Hindu woman in Malaysia.  His Honour stated:

    ‘It is clear from the Tribunal’s decision that it has properly identified the relevant social group and has otherwise properly considered its task… although it may have accepted the Applicant belonged to a particular social group, this did not mean that the Applicant could properly be regarded as a person who had suffered by reason of the membership of that particular social group.’

    First ground: whether Tribunal erred in the construction of persecution by requiring the acts alleged to be persecution to be undertaken by State authorities; that is, by failing to consider whether persecution was undertaken by non-State authorities.

16. In its findings and reasons the Tribunal found as follows in relation to the nature of the appellant’s detention in the police station:

    ‘The Tribunal accepts the applicant and her boyfriend may have been taken to the police station by her boyfriend’s parents and his uncle, who was a police officer, where they were questioned by them about the nature of their relations and their intentions.  The Tribunal does not accept the questioning of the applicant and her boyfriend at the police station was an act instituted by the authorities given on the evidence provided by the applicant, no other police officers were involved.  Rather it was the applicant’s boyfriend’s family using her boyfriend’s uncle’s position to pressure the applicant and her boyfriend to end their relationship. …’

17. In connection with this issue, the relevant question for the Tribunal was whether the incident of 2 March 2004 amounted to ‘persecution’ for the purpose of s 36 of the Act.

18. The concept of ‘persecution’ includes the absence of state protection; that is, where the persecution or harm is inflicted otherwise than by the State, including infliction by private citizens when tolerated or condoned by State authorities in a discriminatory manner:  see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 per Gleeson CJ at [25]-[26], [29]-[30]; McHugh and Gummow JJ at [79]-[80]; Kirby J at [114] and [118] and Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1. The appellant submits that the error which the Tribunal made was that it did not take into account the possibility of persecution having occurred in the circumstances as the consequence of persecution by non-state actors.

19. The appellant’s contention on this ground is that the Tribunal failed to consider whether the persecution the appellant claimed to have suffered was occasioned by reason of the acts of non-State authorities condoned or supported or not prevented by State authorities.  It is argued the Tribunal was in error in considering only persecution by State authorities on the one hand and by family on the other.

20. The appellant’s case accepts that in the opening portions of its reasons the Tribunal stated:

    The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable (sic) by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

    However, the appellant contends that the Tribunal failed to apply this approach when it reached its conclusion.

21. On the other hand the respondent relies on this passage as evidence that the Tribunal properly appreciated the approach which it should take.  It is submitted that when the Tribunal made its finding that there was no act instituted by the authorities and that it was the appellant’s boyfriend’s family using her boyfriend’s uncle’s position to pressure the appellant and her boyfriend to end their relationship, it is apparent that the Tribunal found, after questioning the appellant concerning all the circumstances, that the only people she condemned in her claims were the family of her boyfriend.  It was in the context of that evidence that the Tribunal found the persecution complained of lacked an official quality.  The position was that the Tribunal was not called on to consider the issue of non-State agents because it was satisfied that the only relevant evidence on the issue showed that the agents of the conduct were family members acting by reason of personal motivation.  There was no evidence upon which a finding of State toleration of the conduct or inability to control it could have been based.

22. I consider the respondent’s contentions in this regard correctly state the effect of the reasons of the Tribunal.  The ground cannot therefore succeed.

    Second ground: whether the Tribunal failed to ask whether the prohibition on the appellant marrying a Muslim man unless she converted to Islam and the enforcement of the prohibition by threats and detention at a police station amounted to serious harm constituting persecution.

23. The way the appellant put the ground was to commence with reliance upon S395/2002 v Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473 in the joint judgment of McHugh and Kirby JJ at [39] where it was stated that ‘the arguments and evidence of applicants or the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of a claim for a protection visa’. In the same paragraph their Honours said that ‘If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide – whether the appellants had a well-founded fear of persecution’. With this in mind the appellant submits that the question for the Tribunal was whether she had and whether she would in the future suffer some serious punishment or penalty or significant detriment or disadvantage. It is submitted that in addition to the issue of physical harm the Tribunal was bound to consider the harm the appellant may suffer by being prevented from marrying her boyfriend because of her religion. It is contended that was not an issue to which the Tribunal gave any consideration. Given the recognition of the right to marry in art 23 of the International Covenant on Civil and Political Rights it is argued that this was a significant failure by the Tribunal. The result is the ground is put by the appellant as a failure by the Tribunal to consider whether the harm the appellant may suffer in relation to marriage was serious harm.

24. The respondent contends that this chain of argument commences from a mischaracterisation of the findings of the Tribunal.  That is, the Tribunal had not found that the relationship ended by reason of any prohibition on the appellant marrying a Muslim male.  Rather, it is submitted, the Tribunal accepted the appellant’s evidence that after the incident of 2 March 2004 the couple went their separate ways.  The relevant finding of the Tribunal was:

    ‘The Tribunal is satisfied after this incident on 2 March 2004 the applicant’s relationship with her boyfriend ended and she had no further contact with him. …’

    Later it stated:

    ‘…  The Tribunal finds the applicant’s relationship with her boyfriend ended before she came to Australia and there is no real chance of it resuming in the future.’ 

    It concluded on this issue:

    ‘The Tribunal does not accept the applicant suffered serious harm prior to leaving Malaysia because of her relationship with a Malay Muslim male.  It is satisfied the applicant’s relationship with her boyfriend ended in March 2004 prior to her departing to Australia and therefore she does not face a real chance of persecution if she returned to Malaysia for reason of her religion, race, her membership of a particular social group “Hindu single women in Malaysia” or any other Convention reason.’

25. The consequence of the evidence and finding based on it was that the question whether the ending of the relationship between the appellant and her boyfriend amounted to serious harm did not fall for consideration.

26. Even if it had fallen for consideration, the appellant would face a further hurdle.  The Tribunal found that there was no persecution and that the claimed fear was not well-founded because on the appellant’s evidence the relationship had ended.  There would therefore be an issue whether any error was jurisdictional, given these binding findings of fact.

27. The second ground cannot therefore succeed.

    Third ground: whether the Tribunal, having found that the appellant would not resume her relationship with her boyfriend, failed to consider the reason why she would not do so and whether or not it was to avoid harm.

28. The appellant here returns to the issue of the cessation of her relationship with her boyfriend.  She contends that although the Tribunal made a finding of fact that the relationship would not resume, it did not analyse whether that had occurred because the appellant wished to avoid harassment and pressure and whether that could have amounted to persecution.  That is, whether the cessation resulted from conduct by her of the type referred to in S395 216 CLR 473 in the above quoted passage as a consequence of her acting discreetly: see S395 216 CLR at [39], [40] and [43].

29. The appellant contends that it is clear the finding of the Tribunal that the relationship had ended was a finding that it was caused by or was consequent upon the condemnation of the boyfriend’s family and the events of 2 March 2004.  Therefore it is said the Tribunal was obliged to consider whether that was serious harm and whether that prevented the resumption of the relationship in Malaysia.

30. I agree with the respondent’s contention that the principles recognized in S395 216 CLR 473 simply have no application to the facts of this appeal. The ratio there depends on some sort of continuing conduct about which it is necessary to be discreet and adopt avoidance of persecution. Here, the ending of the relationship removed the circumstance which might have given rise to avoidance conduct. The Tribunal was not satisfied that if the appellant returned to Malaysia there would be any continuation of the relationship.

31. In addition there is an absence of any findings of fact to sustain a behaviour modification claim.  There was no finding that the appellant ended the relationship to avoid persecution and no basis for impeaching the Tribunal’s finding that the relationship was over.

32. Consequently the third ground cannot succeed.

    Conclusion

33. For these reasons I consider that the appeal must be dismissed with costs. 

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:        10 July 2007

Pro Bono Counsel for the Appellant:	RM Niall
Counsel for the Respondent:	E Latif
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	4 May 2007
Date of Judgment:	10 July 2007