MZYLA v Minister for Immigration and Citizenship
[2012] FCA 202
•9 March 2012
FEDERAL COURT OF AUSTRALIA
MZYLA v Minister for Immigration and Citizenship [2012] FCA 202
Citation: MZYLA v Minister for Immigration and Citizenship [2012] FCA 202 Appeal from: MZYLA v Minister for Immigration and Citizenship & Anor [2011] FMCA 499 Parties: MZYLA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 876 of 2011 Judge: GRAY J Date of judgment: 9 March 2012 Catchwords: MIGRATION – visa – protection visa – religion – conversion from Islam to Christianity in Turkey – whether fear of persecution well-founded – Tribunal found appellant had not suffered serious harm from his father – whether Tribunal regarded its finding that the appellant exaggerated his fear of his father as determinative of the question whether he had suffered serious harm Legislation: Migration Act 1958 (Cth) ss 5(1), 36, 91R, 91R(1)(b), 91R(2)
Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967Cases cited: MZYLA v Minister for Immigration and Citizenship & Anor [2011] FMCA 499, cited Date of hearing: 25 November 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the appellant: Mr C Fairfield Solicitor for the appellant: Victoria Legal Aid Counsel for the first respondent: Ms Emily Latif The second respondent submitted to any order the Court might make, save as to costs Solicitor for the respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 876 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYLA
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
9 MARCH 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 876 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYLA
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
9 MARCH 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature and history of the proceeding
In this appeal, the appellant has argued that the Refugee Review Tribunal (“the Tribunal”) misdirected itself in considering his claim that he had been the victim of serious harm at the hands of his father in Turkey, because of his conversion from Islam to Christianity. The argument is that the Tribunal regarded its finding that the appellant had exaggerated his fear of his father as determinative of the question whether the appellant had suffered serious harm. The Tribunal found that the appellant had not suffered serious harm. A favourable finding on that issue would have assisted the appellant’s claim for a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
The first respondent to the appeal is the Minister for Immigration and Citizenship (“the Minister”). The second respondent is the Tribunal, which has submitted to any order that the Court might make, save that it wishes to be heard if any order for costs is sought against it. The appeal is from the judgment of the Federal Magistrates Court of Australia delivered on 25 July 2011 and published as MZYLA v Minister for Immigration and Citizenship & Anor [2011] FMCA 499. The learned federal magistrate dismissed an application by the appellant for judicial review of the Tribunal’s decision and ordered the appellant to pay the Minister’s costs of that application.
The Tribunal’s decision was dated 21 January 2011 and handed down or forwarded to the appellant on 24 January 2011. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa.
By s 36 of the Migration Act, there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the “Convention”. For present purposes it is sufficient to note that, pursuant to the Convention, Australia has protection obligations 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
Section 91R(1)(b) of the Migration Act provides that the relevant provision of the Convention does not apply to persecution unless the persecution involves “serious harm” to the person. Section 91R(2) gives examples of what amounts to serious harm, including a threat to the person’s life or liberty, significant physical harassment of the person and significant ill-treatment of the person.
The appellant’s claims
The appellant claimed that he had a well-founded fear of persecution if he should return to Turkey, for the reason of his religion. He claimed to have renounced Islam and adopted Christianity in 1999. He said that he had engaged in missionary work in Turkey. He said that he feared for his life and feared harm from members of his family. He claimed to have received attention from the Turkish police and said that the authorities could not protect him as they had been unable to protect other Christians who had been killed in Turkey over recent years.
The appellant said that he feared his father would kill him. His father became very angry on discovering the appellant’s conversion. The father organised a meeting with the appellant’s uncles, who demanded that the appellant change his religion to protect the family name. If he did not, they threatened to go to the police and the Government and denounce him as a traitor. His father told the appellant’s boss that the appellant was a Christian and the appellant was dismissed from his job. The police often stopped the appellant in the street when he was trying to convert people. The appellant said that he had been detained and tortured by the secret police. He said that his father would hit him and, when his mother tried to protect him, his father would hit her as well. On two occasions, his father attacked him with a knife. The appellant left home after his father attacked him and threatened him with death.
At [53]-[54] of its reasons for decision, the Tribunal recounted an exchange it had with the appellant in the course of his hearing as follows:
I said to the [appellant] that his father had known that he (the [appellant]) was a Christian for about nine years before the [appellant] came to Australia and I asked the [appellant] about what his father had done over these years. He said that his father pressured him a lot and complained and accused the [appellant] of not being Turkish. The [appellant] said that his father swore at him, called him names and threatened him from around 2001 he thought. The [appellant] said that his father threatened to harm the church and that once, the [appellant] said in 2005, when the [appellant] went to Istanbul to go to church his father called him to come home and when he went home his father hit him.
As well, the [appellant] said that his father had bashed him (slapping, kicking, punching), he said countless times. His mother would sometimes be able to intervene in an attempt to protect the [appellant] from harm. It was after being mistreated by his father that the [appellant] left home, he said around 2001. His father as well attacked him with a knife twice, the [appellant] said the first time was around 2005 when he was living at home for a time. And it happened again just the week before the [appellant] left Turkey for Australia in 2009 that his father again attacked him
The Tribunal said that the appellant left the house and went back a few days later to collect his belongings. He said that his father’s threats and attacks had been worse when he was staying with the family than when he was living away from home.
The Tribunal’s reasons
The Tribunal accepted that the appellant had been converted to Christianity. It made specific reference to submissions that the appellant had “a high level of subjective fear of returning to his country”, but said that the law required it to make an objective assessment of the appellant’s fear to determine whether that fear is well-founded. The Tribunal drew specific attention to the requirement that persecution must involve serious harm.
The Tribunal accepted that the appellant engaged in missionary work, helping street children, giving bibles to people and talking with people who wished to listen. It found that he was harassed by the police. It accepted that there is discrimination in Turkey in relation to identity cards, with Muslim people being able to have their religion included whereas that is not straightforward for followers of other religions.
The Tribunal did not consider that the need to worship in an office or an apartment rather than a church amounted to serious harm. It did not consider that the appellant experienced more than rudeness and some harassment on account of his missionary work or that discrimination in relation to his identity card amounted to serious harm. Nor did it consider that his dismissal from his employment, after his father told his employer about his conversion, amounted to serious harm. It also found that discrimination against the appellant during his military service and limitations he felt in relation to employment choices did not amount to serious harm. Even when looked at cumulatively, and considered with the examples of serious harm provided in the Migration Act in mind, the Tribunal considered that the appellant’s experiences of discrimination or harassment did not amount to persecutory treatment.
The Tribunal then turned to dealing with the appellant’s issues with his family. At [136] of its reasons for decision, it said:
In considering the [appellant]’s account of his father’s treatment, the evidence about the degree of the [appellant]’s actual subjective fear of his father has been relevant. The [appellant] was living at home for periods after his conversion to Christianity at the end of the 1990s until his departure in 2009 to work on the cruise ship, so over some nine years, he said from time to time between university and working, on holidays, after his military service and between jobs. I understand that he may have gone home to see his mother but it is difficult to see that he would have done so as often as he did if he in fact believed that his father was going to kill him. While I accept that the [appellant]’s father pressed him to return to Islam and may have hit, threatened and verbally abused the [appellant] and told his employer about his son’s conversion, I consider that the [appellant] has exaggerated the extent of his fear of his father in his evidence, that his father did not have a real intention to seriously harm the [appellant], and the [appellant] did not fear for his safety when he was with his parents; had he done so, I do not consider that he would have been there as often as he was. It follows that I consider that the [appellant] has exaggerated the threat to his safety by his father. There is no evidence that his uncles did anything to him apart from criticising his actions to his father and pressing his father to seek the [appellant]’s return to Islam.
At [137], the Tribunal compared the kind of treatment described by the appellant with the examples in s 91R(2) of the Migration Act and concluded:
That he kept going home from time to time over some nine years following his conversion does not support the claim that the pressure or hurt he felt amounted to serious harm, or persecution as the term is applied in Australia’s refugee law.
At [138], after referring to evidence concerning shame brought on the family by the appellant’s conversion, and about honour killings, the Tribunal said:
For reasons already given, I have found that the [appellant] has exaggerated the extent of his fear of his family. The evidence does not show that they had an intention to kill the [appellant] because of this shame notwithstanding the threats which the [appellant] claims his father made.
The Tribunal then dealt at some length with matters that are not relevant to this appeal. It found that there was not more than a remote chance that the appellant would come to serious harm at the hands of extremist Muslims and that it was unlikely that the appellant would face criminal charges on account of his Christianity or his missionary work.
The federal magistrate’s reasons for judgment
The federal magistrate identified three grounds on which the appellant relied in his amended application for judicial review of the Tribunal’s decision. The first was that the Tribunal misunderstood or misconstrued the test for evaluating whether the appellant had a well-founded fear of persecution, by conflating the subjective and objective elements of the Convention test as modified by s 91R(2) of the Migration Act, and failed to consider whether objectively the harm inflicted upon the appellant by his father was “serious harm” within the terms of s 91R(2), or misunderstood or misconstrued the meaning of “serious harm” by failing to recognise that what was inflicted upon him constituted significant physical harassment or physical ill-treatment. The other two grounds are not the subject of this appeal. The federal magistrate rejected all three grounds.
Her Honour’s reasoning on the first ground of review is found at [30] of her reasons for judgment:
The Tribunal’s reasons read fairly and as a whole indicate the Tribunal had regard to all the surrounding facts and circumstances, including the [appellant] having, by his own account, repeatedly gone home to live with or visit his parents in the nine years since his father had learned of his religious conversion, without coming to any serious harm. That is, the Tribunal treated these indications of subjective fear as relevant to its assessment of credibility. The Tribunal found the [appellant] had been pressed to return to Islam by his father and may have been hit, threatened and verbally abused, but was not satisfied that such conduct amounted to serious harm. This was ultimately a factual finding which was open to the Tribunal to make.
The issue in the appeal
Although the amended notice of appeal contains three grounds of appeal, all are directed to the issues raised by the first ground of review of the Federal Magistrates Court. The appellant contended that the federal magistrate erred in the finding that there was no jurisdictional error on the part of the Tribunal in relation to the harm inflicted upon the appellant by his father, and in stating that the Tribunal’s conclusion on that issue was no more than a factual finding open to the Tribunal. The contention was that the Tribunal conflated the subjective and objective elements of the well-founded fear test and failed to consider objectively whether the harm inflicted on the appellant by his father was “serious harm” within the terms of s 91R of the Migration Act. Alternatively, it was contended that the federal magistrate should have held that the Tribunal misconstrued or misunderstood the meaning of “serious harm” as defined in s 91R(2) of the Migration Act, by failing to recognise that what was inflicted upon the appellant by his father fell within that definition.
The outcome of the appeal depends upon whether it is possible to accept the appellant’s argument that the Tribunal regarded the nature or extent of the appellant’s subjective fear as determinative of the issue of whether he had suffered “serious harm”. There is no doubt that, in its reasoning on the question whether the appellant had suffered serious harm, the Tribunal did regard the degree of his subjective fear as a relevant matter. It said so at [136] of its reasons for decision. That paragraph does reveal the Tribunal’s reasoning. In substance, the Tribunal was saying that the appellant would not have spent as much time as he did with his family if he really believed that his father was going to kill him. The conclusion that the appellant exaggerated the extent of his fear of his father occurs in the same sentence as the conclusion that his father did not have a real intention to inflict serious harm on the appellant. The two conclusions appear to be cumulative, rather than the second being consequential upon the first. This is a legitimate process of reasoning. It was designed to test not the evidence of the appellant’s subjective fear, but the true extent of the violence he suffered, and the true intention of his father. As the federal magistrate said, the Tribunal used the question of the appellant’s subjective fear as a matter going to his credit about those substantive issues. The reasoning of the Tribunal is further revealed in the conclusion to [137] quoted in [13] above.
The fact that the Tribunal referred again in the passage at [138] (quoted in [14] above) to the exaggeration of the extent of the appellant’s fear does not assist in establishing that the Tribunal regarded the extent of that fear as determinative of the actuality of the harm suffered by the appellant. Immediately following this reference, the Tribunal stated that the evidence did not show that the appellant’s family had an intention to kill him, notwithstanding the threats the appellant claimed his father made.
Counsel for the appellant attempted to make a comparison between the method of reasoning of the Tribunal on the issue of serious harm at the hands of the appellant’s father and the method of reasoning adopted by the Tribunal on other claims raised by the appellant. Such a comparison does not show that there was any error on the part of the Tribunal in the way that it dealt with the issue of serious harm. The way in which the appellant had behaved in relation to his family was relevant to the degree to which the appellant actually feared harm at the hands of his father, and to the question of the actual intent of his father. The Tribunal used the evidence of the appellant’s repeated returns to his family home to make findings as to both the extent of the fear and the reality of the expectation of harm. This was a legitimate process of reasoning.
The Tribunal made a finding of fact adverse to the appellant on the serious harm issue. As the federal magistrate said, it was a finding of fact open to the Tribunal on the evidence. It was legitimate for the Tribunal to use its finding about the appellant’s exaggeration of his fear as a stepping stone towards finding that there was no real threat from his family. The Tribunal did not misunderstand, misconstrue or fail to apply s 91R of the Migration Act. No jurisdictional error attended the Tribunal’s decision. The federal magistrate did not fall into error.
Conclusion
The appellant has not succeeded on the single issue he raised in the appeal. The appeal must be dismissed. In accordance with the usual principle that costs follow the event, the appellant should be ordered to pay the Minister’s costs of the appeal.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 9 March 2012
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