MZZBD v Minister for Immigration
[2013] FCCA 1397
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZBD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1397 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – Protection (Class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 36(2A), 424A, 425 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Attorney-General (NSW) v Quin (1990) 93 ALR 1 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 56 ALD 43 SBMD v Minister for Immigration and Multicultural Affairs [2006] FCA 1344 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 |
| Applicant: | MZZBD |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1204 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the First Respondent: | Ms Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to ‘Minister for Immigration, Multicultural Affairs and Citizenship’.
The Application filed 27 September 2012 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1204 of 2012
| MZZBD |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application for judicial review was filed on 27 September 2012. The grounds of the Application are as follows:-
“1. The Tribunal says that there are inconsistencies about the applicant’s religious claims, but has failed to specify what the inconsistencies are given the necessary notice to the applicant in relation to those inconsistencies.
2. The Tribunal has failed to consider the evidence in relation to the harm that would befall her if she returned to Turkey to live with her family.
3. The Tribunal has substituted its own yardstick in relation to the applicant marrying two Muslim men in short succession without considering the evidence.
4. The Tribunal has erred in its interpretation of its complimentary protection obligations as also (sic) because the Tribunal has also failed to consider the cogent evidence before it.”
The First Respondent seeks dismissal of the application. There is before the Court evidence as contained in the Court Book filed by the First Respondent on 10 December 2012, and a transcript of proceedings before the Second Respondent as contained in a Supplementary Court Book filed by the Applicant on 14 May 2013. There are written submissions filed by both the Applicant and the First Respondent.
History
The history is as accurately described in the First Respondent’s Submissions filed 3 April 2013 at paragraphs 2 to 12 as follows:-
“2. The applicant was born on 24 October 1966 in Turkey. She first arrived in Australia on 5 November 2011 holding a class UL subclass 679 Family Sponsored Visitor Visa valid until 5 February 2012.
3. On 23 December 2011, the applicant married her second husband, an Australian Citizen Muslim, who was a relative of her older sister’s husband.
4. On 17 January 2012, the applicant lodged an application for a protection visa (class XA). In her application she claimed.
(a) Her family are strict Muslims and she converted to Christianity when she was around 30 years old.
(b) She had researched Christianity after watching many movies and documentaries on the religion and the Virgin Mary while in Turkey.
(c) She approached some nuns in Adana and they answered her questions and provided her with booklets and information on Christianity. Her mother later found this material and threw them out.
(d) On 15 August 1998, she visited the House of the Virgin Mary in Selcuk, Turkey and stayed overnight. This was when she decided to convert to Christianity. Her parents accused her of running away with a man. She told them she went to the House of the Virgin Mary and had converted to Christianity. They locked her in a room for a couple of days.
(e) Her father died of a heath attack in January 1999 and her family blame her for his death. She claimed that she was constantly tortured and given a hard time by her family and abused by neighbours, security forces and fellow countrymen until she left for Australia.
(f) Although there are Christians and non-Muslims in Turkey, the facts that she converted from Islam to Christianity is more serious and unacceptable.
(i) She cannot find a job and cannot marry and have her own family.
(ii) In September 2010, she met a man in Istanbul and married him on 1 October 2010. The next day he found out she was Christian and they divorced on 7 July 2011.
(ii) She wanted some time off and came to Australia to visit her sister. In Australia she met a Turkish Muslim and they married on 23 December 2011.
(iv) She is not allowed to apply for a spousal visa as she has a “No Further Stay” (8503) condition on her visitor’s visa.
5. On 16 March 2012, the Department of Immigration and Citizenship (the Department) invited the applicant to attend an interview for 17 April 2012.
6. On 30 April 2012, a delegate of the Department found that while the applicant’s interest in Christianity may be genuine, he was not satisfied that this interest led the applicant to such a point where the conversion was genuine…. Further, the applicant had not been seriously harmed or targeted in the last 15 years on account of conversion and there were no substantial grounds for believing that there is a real risk of significant harm on her return to Turkey.
7. On 1 June 2012, the applicant lodged an application for review with the Tribunal.
8. On 4 July 2012, the Tribunal sent an invitation to appear for 14 August 2012 to the applicant.
9. On 13 July 2012, the applicant provided a response to hearing invitation advising that she would be represented at the hearing and requesting a Turkish interpreter and that the Tribunal take oral evidence from the applicant’s sister.
10. On 10 August 2012, the applicants’ legal advisers provided written submissions to the Tribunal together with a statutory declaration from Muhsin Eskici dated 5 August 2012 and a letter from Father Sean O’Connell from St Paul’s Parish, Coburg.
11. On 14 August 2012, the applicant appeared before the Tribunal with the assistance of her legal representative and an interpreter. The Tribunal also received evidence from the applicant’s sister.
12. On 28 August 2012, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.”
Tribunal’s Findings
In its Decision Record dated 28 August 2012 (‘the Decision Record’), the Tribunal found the following:-
“71. Some aspects of the applicant’s claims appear to be genuine. The Tribunal accepts that she has visited the House of the Virgin Mary and has an ongoing interest in Christianity.
72. The Tribunal accepts that the applicant has been attending church in Australia. The Tribunal notes that section 91R(3) of the Act [Migration Act 1958 (Cth)] provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that she engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention.
73. The Tribunal has considered the evidence before it of the applicant’s involvement in attending church and the letter dated 31 July 2012 from Father Sean O’Connell, Parish Priest, St Paul’s Parish, Coburg. The Tribunal has considered the oral evidence before it. On the basis of this evidence the Tribunal finds that the applicant’s attendance at church in Australia is not for the sole purpose of strengthening her refugee claim.
74. Having considered the applicant’s claims overall, the Tribunal finds that the essential and significant reasons for the harm feared by the applicant, if she were to return to Turkey, are for the Convention reasons of her religion.
…
76. Whilst the Tribunal accepts that the applicant has an interest in Christianity, the Tribunal does not accept the applicant’s claims about the adverse consequences, or at least the extent of those consequences, which are said to have flown from that interest.
77. The Tribunal considers there are inconsistencies about the applicant’s religious claims. The Tribunal finds it inconsistent that whilst the applicant has claimed a commitment to Christianity since 1998 she has recently (in 2010 and in 2011) married twice and each time she has married a Muslim. When the Tribunal queried why she would choose to do this she stated that she did not tell her first husband about her religion and that when he found out about it he rejected her while her second husband was born in Australia and was not concerned by her religion, at least initially.
78. The applicant has claimed that her family and in particular her brother in law, will harm or even kill her if she returns to Turkey. As indicated above, the Tribunal has difficulty accepting this proposition not because it is inherently implausible, but because it is inconsistent with her evidence that she continued to live with her family in Adana for 13 years before coming to Australia in 2011. The applicant gave evidence that her family were well aware of her desire to be a Christian in 1998 and that in fact her father died of a heart attack in 1999 because of this. Given this, the Tribunal does not accept that her family would attempt to harm her if she returned to Turkey. They had 13 years in which they could have carried out these threats and did not do so.
79. Although past persecution is not necessarily determinative of the risk of future persecution, the Tribunal finds it to be a relevant consideration in the present case. The Tribunal has further considered the applicant’s claims that her situation with her family in Turkey has changed as a result of her regular Church attendance since being in Australia. Evidence was given at the hearing that her sister and people in the community in Australia have told her family in Turkey of her attendance. The Tribunal has considered this claim and whether it increases the likelihood of the applicant being harmed by her family in Turkey. The Tribunal finds that whilst her family may be upset at this information, it does not accept that this would be sufficient for her family to seek to harm her or kill her if she returns to Turkey.
…
81. Whilst the Tribunal accepts that the applicant’s family in Turkey may shun her upon her return there because she has been attending church in Australia, the Tribunal finds that such behaviour complained of does not amount to serious harm of the type envisaged in s.91R(2), for the purposes of s.91R(1)(b) of the Act.
82. The county information extracted above does not support the proposition that the applicant faces a real chance of persecution in Turkey simply for being a Christian, as the examples of serious problems being encounter in that country for that reason seem to be confined to those engaging in evangelism or proselytizing, and the applicant has not claimed to have been involved in any such activities, nor expressed any intention to do so.
83. The Tribunal does not accept that the applicant has suffered serious harm capable of amounting to persecution in the past in Turkey, for reason of her religion, or any other Convention reason.
84. Having had regard to all the evidence, the Tribunal finds that there is not a real chance that the applicant will encounter serious harm capable of amounting to persecution for the purposes of s.91R of the Act in the event that she returns to Turkey, whether for reason of her religion or for any other Convention reason, either now or in the reasonably foreseeable future.
…
88. The Tribunal has had regard to the claims and evidence put forward by the applicant as they apply to the complementary protection criterion. The Tribunal does not accept that the applicant’s family would seek to harm or kill her if she returns to Turkey.
89. The Tribunal accepts that the applicant’s family in Turkey may shun her upon her return there as a result of her interest in and involvement with Christianity. However having regard to the above findings the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that she will be arbitrarily deprived of her live (sic), that the death penalty will be carried out on her, that she will subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined. Accordingly the Tribunal is unable to be satisfied on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.”
Consideration
The complementary protection regime, which was implemented by amendments to s.36 of the Migration Act 1958 (Cth) (‘the Act’), came into force on 24 March 2012. It provides criteria for the grant of a Protection (Class XA) visa in circumstances where the Minister for Immigration, Multicultural Affairs and Citizenship is not satisfied that Australia has protection obligations to that non-citizen under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees. The Tribunal correctly set out and applied the legislative framework in its Decision Record. It determined that the Applicant would be shunned by her family on return to Turkey, however this did not amount to significant harm as defined by s.36(2A) of the Act.
Failure to put inconsistencies
There was no breach by the Tribunal of its obligations under ss.424A or 425 of the Act and this ground must fail. The Tribunal dealt with the factual evidence before it, as provided by the Applicant, and made an assessment and finding in relation to it, open to it on the basis of the material before it. The definition of “information” in s.424A of the Act does not encompass the Tribunal’s subjective appraisals, thought processes or determinations (Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at paragraph 25). The Tribunal was not obliged to issue a notice under s.424A of the Act as suggested by the Applicant, nor to request comments in relation to its concerns about the evidence of the Applicant. In any event, the Tribunal did provide to the Applicant an opportunity to know the decisive issues on the review and did put to the Applicant its concerns with some of the evidence; its implausibility in some instances and its inconsistency with other of the Applicant’s evidence. The Tribunal challenged the evidence of the Applicant and made clear to the Applicant that evidence which it considered relevant and determinative. The Court accepts the contention of Counsel for the First Respondent as contained in Written Submissions filed 3 April 2013 at paragraph 19(f)(v) that the Tribunal:-
“… sufficiently discussed with the applicant the relevant issues arising from the applicant’s claim to be committed to Christianity in circumstances where she married twice to Muslim men … and her claim to fear her family when she continued to live with them for 13 years … in the course of the hearing to satisfy the procedural fairness requirements under section 425 of the Act. As such, the Tribunal’s reasoning with respect to her claims should have been obvious to the applicant such that she was given the opportunity to make submissions against that finding: SGJB v MIMIA [2003] FCAFC 290.”
Failure to consider claims
The Applicant contends that the Tribunal failed to consider the evidence in relation to the Applicant’s claim of harm if returned to Turkey. This ground must fail. The Tribunal did not fail to take into account a relevant consideration that it was bound to take into account. The Tribunal’s Decision Record clearly set out a consideration by the Tribunal of the Applicant’s claim to fear harm on return to Turkey. There is no constructive failure to exercise jurisdiction and nor was there a failure to accord the Applicant procedural fairness.
Unreasonableness
In the context of Tribunals, in carrying out a task of review, the level of unreasonableness necessary to demonstrate some underlying jurisdictional error or failure to carry out its statutory obligation, “is a high level indeed” (SBMD v Minister for Immigration and Multicultural Affairs [2006] FCA 1344).
The Tribunal’s function is to make factual findings. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error (Attorney-General (NSW) v Quin (1990) 93 ALR 1 per Brennan J at paragraphs 35 and 36; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 56 ALD 43 at paragraph 146). The findings of the Tribunal in relation to the Applicant marrying two Muslim men in a short succession were open to the Tribunal on the available evidence given by the Applicant as set out in paragraphs 41 and 44 of the Decision Record and for the reasons given in paragraphs 77 and 80 of the Decision Record. There was no illogicality or irrationality attending the decision.
The application shall be dismissed and costs will follow the event.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 20 September 2013
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