MZXAY v Minister for Immigration - [2007] FMCA 49

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXAY & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 49

MIGRATION – Conversion from Islam to Christianity – Tribunal’s doubts about conversion – ability to relocate within country – s.424A issues – no jurisdictional error – application for review dismissed.

Migration Act1958

SZBEL v MIMIA [2006] HCA 63
Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437
SZEEU v MIMIA [2006] FCAFC 2

First Applicant:

MZXAY

Second Applicant:

MZXAZ

Third Applicant:

MZXBA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 988 of 2005

Judgment of:

O’Dwyer FM

Hearing date:

13 April 2006

Delivered at:

Melbourne

Delivered on:

25 January 2007

REPRESENTATION

The Applicants:

First Applicant in person appearing for the Applicants

Counsel for the Respondents:

Ms Latif

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application filed on 17 March 2005 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 988 of 2005

MZXAY

First Applicant

MZXAZ

Second Applicant

MZXBA

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application filed on 17 November 2005 the applicants seek to review a decision of the Refugee Review Tribunal (the Tribunal) made on 27 June 2005, which affirmed an earlier determination by a delegate of the first respondent to refuse a protection visa. The claims made in support of the application for a protection visa are those of the first applicant only. The remaining applicants are the first applicant’s wife and children and their protection visas are dependent upon his claims. Accordingly, a reference to the applicant in this judgment is a reference to the first applicant.
The applicant appeared in person. His amended application set out five grounds for review. He was assisted in the drafting of those grounds by a lawyer friend. The applicant proved to be an intelligent and articulate individual, strong in his command of English. However, because of his lack of training he had some difficulty focusing upon the legal issues that were before the Court. As is often the case in circumstances such as his, much of his submissions to me were in effect a regurgitation of the facts as presented to the Tribunal with the expectation that this Court may come to a different conclusion on the facts than that reached by the Tribunal. As was pointed out to the applicant, this Court does not have jurisdiction to entertain a merits review of his application before the Tribunal.
It is fair to say that the five grounds set out in the amended application can be summarised under three basic headings. They are:
a)That there was a denial of natural justice based upon the applicant’s assertion that the Tribunal failed to invite comment from the applicant about the reasonableness or practicability of relocating to another part of Pakistan;
b)That there was a breach of s.424A of the Migration Act 1958 (the Act) in that the Tribunal failed to notify the applicants of information that was the reason, or part of the reason, for the decision; namely, to notify him about:
i)the Country information relating to the ability to relocate within Pakistan; and
ii)the information contained in the advertisement appearing in a Pakistani newspaper disowning the applicant which was placed by his father.
c)That the Tribunal took into account irrelevant considerations and it failed to take into account relevant considerations in that:
i)the Tribunal uncritically focused upon the possibility of relocation in Pakistan whereas the true focus should have been upon the safety to the applicant and his family of any such relocation;
ii)the Tribunal concluded that should the applicant relocate, in the new location no one would perceive him to be a convert as no one would be aware of his background. This, the applicant contended, is to ignore that the community in the new location would become aware of his conversion through his own family; and
iii)in reaching its conclusions the Tribunal took into account an irrelevant matter that the time taken so far by the applicant to convert to Christianity is, in effect, indicative of his lack of intention to do so and that should he return to Pakistan in the near future it was highly improbable that he would convert to Christianity whilst there having regard to his failure to do so in Australia to date.
In addition to the stated grounds set out in the amended application, I also cast a critical eye over the decision in light of the recent High Court determination in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 concerning the possibility of the Tribunal failing to give sufficient opportunity to give evidence or make submissions on what were decisive issues in the case.

Background

The applicant is a 36 year old national from Pakistan, being born in Lahore where his family continue to reside, save for his father who died whilst the applicant was in Australia. He married in November 1997. The marriage was an arranged marriage. He had not met his wife prior to the marriage, but after the marriage it became evident that his wife suffered a serious heart condition. When this discovery was made it caused considerable ructions between he and his own family and between his own family and his wife’s family. He was urged by his own family to divorce his wife, which he refused to do.
On receiving advice from close friends who are doctors he determined to come to Australia to assist his wife through surgery here to cure her medical condition. He received no assistance from his family for the cost of travel, nor any other support.
The applicant and his wife arrived in Australia on 2 August 1999 on a sub-class 675 Medical Treatment (short stay) visa, which ceased on

2 November 1999. His wife underwent surgery on 5 August 1999, which was successful and the wife’s medical condition was rectified. As at the date of the Tribunal hearing there were no issues revolving around the wife’s health. The applicant informed the Tribunal that as far as his family in Pakistan is concerned those earlier issues between himself and his family, and his family and his wife’s family over the wife’s health no longer exist.
The basis of the applicant’s protection visa application which was filed on 31 January 2001 is his claimed conversion to Christianity.

History of involvement with Christianity

The history the applicant gave the Tribunal in relation to his conversion to Christianity is as follows:
a)He began to challenge his Muslim religion as early as the 7th and 8th grade of schooling. Although he continued to partake in its practices, because of the rituals adopted by his family, it was not until the 9th and 10th grade that he ceased to actively practise his faith. Nonetheless, he would still go to the Mosque with his parents but he did not at this time perform the rituals as he was required. In 1992 after he graduated and went to work, his attendances at the Mosque were less and his excuse given was his commitment to his work. At this time he states his family were aware of his dissatisfaction with the Muslim faith.
b)He claims further that, because of the reaction to his wife's illness by his family, he was motivated to seek out an alternative faith, that being Christianity. He claims his family were aware of his interests in Christianity and this caused considerable friction with them.
c)Shortly prior to departing for Australia in 1999 the applicant joined the YMCA in Lahore, but apart from making a small financial contribution he did not partake in any of its activities. He did, however, attend a meeting conducted by a Canadian Christian Revivalist.
d)In Australia, he says, he adopted Christian practices in January 2001. Those practices saw him attending irregularly at a Catholic Church but over recent years at the Church of God in Thomastown and Box Hill South. It is to be noted that between 2001 and the time of the Tribunal hearing, some four years later, the applicant has not formally converted to Christianity. He also stated that over the last two years whilst being involved in the Church of God he has attended that church two or three times per month.
e)His explanation to the Tribunal for him not converting formally to date has been the internal conflict he has had with what he describes as 30 years of religious commitment to Islam and the emotional and intellectual conflict in turning his back on that. He also recites difficulties he has had with the members of the Church of God in that in his endeavour to, from his perspective, explain his position he has been ridiculed and laughed at by them.
f)He also confirmed to the Tribunal that his wife had not converted to Christianity and to his knowledge she was still a Muslim.

Evidence of family reaction

When filing his protection visa with the first respondent, the applicant included a copy of an advertisement placed in the Daily Jang, Lahore, on 17 May 2001. That advertisement read as follows:
“Because of his disobedience, I hereby bar my son [MZXAY] (son of [the applicant's father]) of any share of my movable or immovable property. In future I will not be responsible for any of his actions, commitments or dealings.”

This was said to be an expression of the strong views held by his family due to his entertainment of Christianity.

The Tribunal’s Findings

Many of the applicant’s claims were accepted by the Tribunal. That included the following:
a)the applicant had turned his back on his Muslim religion;
b)that the applicant had been questioning his faith for many years;
c)that the applicant may have attended an evangelical Christian meeting with a friend whilst he was in Pakistan;
d)the applicant joined the YMCA in Lahore in 1999;
e)when the applicant came to Australia he actively started looking for a new faith and explored various Christian denominations. It accepted he may have attended the Sacred Heart Church in Preston, another church in Thomastown and was currently attending the Church of God Revival Centre in Box Hill South;
f)the applicant’s family believed he has converted to Christianity and further accepted that the applicant’s family in Pakistan were aware of the his activities in Australia;
g)the applicant’s family, particularly his father who was stated to be a fundamentalist, would have been very unhappy and disappointed to learn of the his son’s activities in Australia. It accepted the family may apportion blame to him for any of the misfortunes they experienced because they believed he had converted from Islam. The Tribunal further accepted his father may have disowned him because he was aware of his activities in Australia;
h)that the applicant’s family may have been led to believe that he had converted to Christianity, despite this not being the situation, and they therefore perceived him to be apostate;
i)there is a real chance the applicant would be viewed by his family and those of his community who knew him in the past to be an apostate. As such the Tribunal found, on the basis of the Country Information cited by it in its decision, particularly information from the Department of Foreign Affairs and Trade, that there is more than a remote chance the applicant would face persecution at the hands of his brother or people who knew him or his family within his local community; and
j)the Tribunal was further satisfied that State protection would not be forthcoming by reason of religion.
The Tribunal, however, made the following further findings:
a)although the applicant had been questioning his faith for many years it did not accept the applicant’s claim that it was at the time that his wife was ill and he was having trouble with his family that he started questioning his religious beliefs. The Tribunal was satisfied, on the basis of the applicant’s evidence provided in the hearing, that the applicant’s frustration with the Muslim religion and his quest to find something else began much earlier than when he learnt of his wife’s illness;
b)although accepting the applicant's attendance at an Evangelical meeting in Pakistan and his membership of the YMCA, the Tribunal did not accept that this was reflective of any desire by the applicant to become a Christian at that time or start practising a different faith. Rather, the Tribunal found the applicant joined the YMCA in order to do something positive for people less fortunate, in the belief that in exchange for this act of kindness he would receive some good fortune in return. The Tribunal therefore found that the applicant’s membership of the YMCA was not because of any desire he had at that time to convert from Islam;
c)although the Tribunal was satisfied the applicant no longer practised his Muslim faith and was in search of some other religion, it did not accept that he had converted from Islam. In reaching that conclusion, the Tribunal cited the applicant’s own evidence that he had not been formally baptised into any Christian church. The Tribunal found that the applicant’s delay in formally converting to Christianity is a reflection of how committed he is in converting from his Muslim religion. The Tribunal went on to say that although the Tribunal accepted that converting from Islam may be a very difficult and complicated issue, it did not accept that if someone was truly dedicated in formally becoming a member of another religion it would take them over four years to do so; and
d)the Tribunal was satisfied the applicant’s wife was not a practising Christian or that she had converted from her Islamic faith.

The Tribunal’s decision

Having made the above findings, in particular the finding that the applicant was at risk from his family because of a perception of him as an apostate, it then considered the issue of whether or not he could relocate within Pakistan. The Tribunal recited the fact that even if an applicant has a well founded fear of persecution in the home region the Refugee Convention does not provide protection if they could nevertheless avail themselves of the protection of their country of nationality elsewhere within that country (see Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1).
The Tribunal also pointed out that this principle only applies to people who can genuinely access domestic protection and for whom the reality of protection is meaningful. If relocation is not a reasonable option in the particular circumstances, it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well founded (see Randhawa per Black CJ at 442-3, Beaumont J at 450-1).
The Tribunal went on further to say that although it found there is a more than a remote chance the applicant could face harm amounting to persecution from his family and those in his community who knew him, the Tribunal was satisfied his fear is localised to the area of Lahore where he previously lived. In reaching that conclusion, the Tribunal made note of the information from DFAT which it had cited in its reasons which stated that a person under threat in their own district, for any reason, would be free to relocate to another part of Pakistan and practise Christianity in that new location as there were no restrictions on such movements.
The Tribunal concluded that it did not accept the applicant would face a real chance of harm if he went to another part of Pakistan and practised Christianity as he would not be perceived to be a convert given no one would know his actual background. In reaching that conclusion the Tribunal had earlier canvassed the issue, raised again in oral submissions before me, about the introduction of electronic ID cards and the capacity of someone through that mechanism (that someone being an identified member of his family) to trace his whereabouts. Having considered that argument by the applicant, the Tribunal did not accept it. It was open, in my view, for the Tribunal to do so in the exercise of its statutory function based upon the evidence before it.
A principal reason for affirming the delegate’s decision was the Tribunal’s finding that the applicant could relocate safely within Pakistan, notwithstanding that the word “safety” was not specifically used. The Tribunal came to that conclusion after considering questions of State protection in the new locality, the clear inference being that protection would be afforded to secure the “safety” of the applicant and his family.
Significantly, however, the Tribunal also determined, independently of the issue of relocation, that the history of the applicant’s involvement with the Christian religion is one that is not reflective of someone with a commitment to conversion from Islam. In effect, the Tribunal concluded that he had not converted to the Christian faith over the four years he has been in Australia and would not do so should he return to Pakistan. The Tribunal was satisfied that the applicant is not really committed to Christianity and he would not be perceived as an active adherent of the Christian faith. These findings, in my view, were open to the Tribunal on the evidence before it and exhibit probative logic.
The Tribunal went on further to say that it did not accept the applicant would act or speak in a derogatory way about Islam if he returned to Pakistan. It noted that he had not claimed to have done so in the past and on the basis that he is not actually converted to Christianity the Tribunal found that the applicant’s commitment would not be commensurate to someone who would actively speak against the Muslim faith or who had actually converted to Christianity. The Tribunal found in those circumstances that the applicant did not face a real chance of persecution for abandoning his Muslim faith. The Tribunal concluded by finding it more than remote he would face a real chance of persecution for reasons of his religion if he relocated to another part of Pakistan, away from his family and community in Lahore and that the applicant’s fear of persecution is not well founded.

The contentions

In respect of the applicant’s first ground for review in respect of an alleged denial of natural justice, the applicant in his written contentions for consideration by the Court merely repeated the ground that was set out in his amended application. In his oral submissions to the Court the applicant restated, from my reading of the Tribunal’s decision, many of the matters that were canvassed at the Tribunal hearing.
Those matters involved the applicant’s concern that he was at risk of harm from his family or the Muslim community in general should he be required to relocate to Pakistan because of his Muslim faith and his entertainment of Christianity. He could not seek and expect State protection as the State and its police forces in practice were Muslim and discriminatory against those considered to be Christian by birth, but more so in respect of those who may have converted to Christianity from the Muslim faith.
Compounding this situation, the applicant argued, was the fact that now, because of the introduction of electronic IDs and passports, it would not be possible for him to hide in Pakistan from those who wished him harm, principally his family. He recited the capacity of people through corruption to avail themselves of access to the electronic data base to trace his whereabouts. He reiterated in his oral submissions the harm that someone in his position could expect to have inflicted upon him because of his rejection of the Muslim faith and the uptake of Christianity.

The first respondent, in her contentions, highlights that the Tribunal had complied with s.425 of the Act requiring the Tribunal to invite the applicant to appear before it and also complied with s.425A which required the notice to be given to the applicant of the day and place and time of hearing. In response to that the applicant appeared on 10 June 2005 where he gave evidence and where I am satisfied the Tribunal canvassed with him the whole of the issues said not to have been addressed with him by the Tribunal.
I am satisfied after reading the decision of the Tribunal that there has been no breach of the hearing rule, nor other issues raised by the recent High Court decision in SZBEL. The question of relocation was canvassed by the Tribunal with the applicant and he was afforded the opportunity of stating his case about being traced to his new location through the new electronic database. The Tribunal rejected this contention by the applicant, which in the exercise of its statutory function it was entitled to do. The applicant in oral submissions made before me sought to agitate the case on its merits which is something this Court does not have jurisdiction to entertain. This ground must fail.
The applicant argued on two grounds that there had been a breach of the process set out in s.424A of the Act. The first related to information used by the Tribunal in respect of forming a view about relocation and the second was something raised after the close of the hearing before me. It arose because of the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. It was not, of course, raised by the applicant, but in fairness to him it should be considered by me.
I shall deal with the second part first. On the face of the material before me, it is evident that the Tribunal gave consideration to a document which formed part of the information provided in support of the original application for a protection visa to the first respondent’s delegate. There is no evidence to say that that information, that is the copy of the advertisement in the Daily Jang wherein the applicant’s father publicly announced his disownment of the applicant, was resubmitted or adopted in the application to the Tribunal.
Be that as it may, however, I am satisfied that the information contained in that particular document was not something that was used as the reason, or part of the reason, for affirming the decision of the delegate. Because of that I am satisfied that the process in s.424A was not engaged.
In respect of the first aspect of the s.424A argument it is clear, in my view, that the information used by the Tribunal, which I am satisfied was the reason or part of the reason for its determination to affirm the delegate’s decision, comes within the exception in s.424A(3)(a). That subsection provides that the process of s.424A does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or the other person is a member. For that reason this ground must also fail.
In respect of the grounds relating to the Tribunal taking into account irrelevant considerations and failing to take into account relevant considerations the applicant set out in his written contentions of fact and law the following as being indicative of the Tribunal’s error in these regards:
a)The Tribunal uncritically accepted the Country Information before it, suggesting that the applicants could relocate to another part of Pakistan and practise their Christianity in that new location;
b)The Tribunal failed to consider whether the applicant could “safely” relocate to another area of the country;
c)The Tribunal found the applicant would not be perceived as a convert if he relocated without first considering the possibility that the fact of conversion would be discovered through the applicant’s family;
d)The Tribunal did not accept that a person dedicated to becoming a member of a particular religion would take four years to do so;
e)The Tribunal found the applicant would not convert, or seek to convert, to the Christian religion in the reasonably foreseeable future.
In oral submissions the applicant did not expand greatly upon these matters but again, it is fair to say, he put great emphasis on the fact that in the Muslim community someone who would denounce the Muslim faith and converted to Christianity was someone that the society as a whole would harm; but in particular, his family would harm him as he would have brought great shame upon them in the context of their Muslim society. The harm, he emphasised, could be so great as to bring about his death.
On the question of relocation the principal authority is that identified by the Tribunal; namely, Randhawa. It is a question of fact. The Tribunal explored in some detail the Country Information available on this issue, looked at the facts and circumstances as presented by the applicant to the Tribunal at the hearing and evaluated that evidence and came to the conclusion that relocation was available for the applicant in Pakistan. In doing so, it worked on two premises, the first being that should he convert to Christianity there is no reason, based upon the material before the Tribunal, to believe he would be harmed if he relocated to a different part of Pakistan. The second premise is that, because the Tribunal found that he was unlikely to convert to Christianity having regard to his earlier history, the chances of being persecuted for his Christian belief in Pakistan were remote.
In my view the conclusions and findings reached by the Tribunal on these matters were open to it and exhibit probative logic.
On the question of the Tribunal not focusing on the safety aspect of relocating, it is evident, on a reasonable reading of the Tribunal’s decision, that in reaching a determination that the applicant could relocate within Pakistan, it was implicit that the relocation would be safe for the applicant and his family.
In my view the Tribunal heard the applicant on each matter relevant to the issues set out in paragraph 29. The Tribunal simply did not accept the applicant's evidence on point, as it was entitled to do in the exercise of its statutory function, and otherwise its decision exhibited probative logic. It cannot be said that as a consequence of not accepting the evidence it is a failure to take into account relevant considerations or amount to taking into account irrelevant consideration. (See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J). In my view, it was open to the Tribunal to take into account the history of the applicant’s involvement with Christianity to form a view as to the likelihood of his conversion from Islam to Christianity. It was a relevant consideration which touches directly on the question of what the applicant is likely to do should he be returned to Pakistan.

Conclusion

The Tribunal’s decision was a privative clause decision pursuant to s.474 of the Act and as such unless the applicant can show that it was affected by jurisdictional error it is protected from review.
For the above reasons I am of the view that the applicant has failed to show jurisdictional error on the part of the Tribunal and as a consequence the amended application for review filed on 17 November 2005 should be dismissed with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: Marlene Dixon

Date: 25 January 2007