MZZBD v Minister for Immigration and Border Protection

[2014] FCA 122

FEDERAL COURT OF AUSTRALIA

MZZBD v Minister for Immigration and Border Protection [2014] FCA 122

Citation:	MZZBD v Minister for Immigration and Border Protection [2014] FCA 122
Appeal from:	MZZBD v Minister for Immigration & Anor [2013] FCCA 1397
Parties:	MZZBD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 1076 of 2013
Judge:	NORTH J
Date of judgment:	10 February 2014
Date of hearing:	10 February 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	27
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Ms S Burchell
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1076 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	10 FEBRUARY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is 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 1076 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	10 FEBRUARY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Circuit Court, delivered on 20 September 2013.  The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal, made on 28 August 2012.  The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Protection (Class XA) visa. 

   THE APPELLANT’S CLAIMS

2. The appellant is a national of Turkey.  She was born in 1966.  The appellant has a sister who lives in Australia and who has lived here for 18 years.  The appellant claimed that if she returned to Turkey, she would suffer physical harm or death because she converted from Islam to Christianity.  She said that she converted in about 1996.  She said that her family responded adversely and harassed her to change her mind.  She said that they locked her in her room and left her hungry.  She said that by 1998, everybody knew of her conversion.  In January 1999, her father died of a heart attack, and she said that her family blamed her for his death. They said that her conversion created stress for her father, which caused his death. 

3. In 2010, she married a man in Istanbul.  Her husband was Muslim.  She said that when he found out that she had converted to Christianity, he divorced her.  Before the Tribunal, she said this occurred after three months of marriage, although in the statement accompanying her visa application she said this occurred after one day.  On 5 November 2011, the appellant arrived in Australia.  On 23 December 2011, the appellant married a Turkish man in Australia.  He is also a Muslim.

   THE DECISION OF THE TRIBUNAL

4. The Tribunal set out the history of the application for review, the relevant law applicable to the application, and the claims and evidence upon which the application was based.  Then, in a section headed Finding and Reasons, the Tribunal explained why it did not accept the appellant’s case.  The essence of the reasoning is contained in the following passages:

   75.The applicant claims that if she were to return to Turkey she would be harmed or killed by her family and that the Turkish authorities would fail to protect her. The Tribunal considers that such treatment of the applicant, if accepted as real, would amount to serious harm as contemplated in s.91R(2).

   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.

   80.The Tribunal is concerned that, given her evidence that in 1998 she wished to become a Christian, she would marry a Moslem not once but twice. She married a Moslem in Turkey in 2010 and they were divorced in 2011. She has claimed that they divorced because he found out she was a Christian after the marriage and he threw her out of the house. The applicant claimed that she married him just in order to escape from the family home in Adana. Given that, the Tribunal finds it implausible that she would come to Australia in November 2011 and within weeks of arrival enter into another marriage with a Moslem man if she was committed to being a Christian. Furthermore it is even more implausible that within weeks of this marriage she would apply for a protection visa upon the basis of being a Christian.

   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 behavior 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 country 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 encountered 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.

   …

   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 be 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.

   THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

5. On 11 September 2012, the appellant applied to the Federal Circuit Court for a review of the decision of the Tribunal.  The grounds of the application were 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 [sic] protection obligations as also because the Tribunal has also failed to consider the cogent evidence before it.

6. The Federal Circuit Court rejected each of these grounds. 

7. As to the first ground, the Federal Circuit Court said that there was no breach of s 424A or s 425 of the Migration Act 1958 (Cth) (the Act). The Court said that s 424A obliged the Tribunal to provide information to the appellant in certain circumstances. However, it said that the material about which complaint was made was not information within the meaning of the section, but was rather the subjective appraisal, thought processes or determinations made by the Tribunal. Then the Federal Circuit Court said that, in any event, the Tribunal had put to the appellant in the course of the hearing, in compliance with the Act, both the implausibility of some evidence and its inconsistency with other of the appellant’s evidence. In particular, the Federal Circuit Court referred to the issues of the appellant’s claim to be a committed Christian, 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.

8. In relation to the second ground, the Federal Circuit Court held that the decision of the Tribunal clearly set out the consideration by the Tribunal of the appellant’s claim to fear harm on return to Turkey.

9. In relation to the third ground of appeal, the Federal Circuit Court interpreted this ground as asserting that the reliance on the marriage to two Muslim men in short succession was so unreasonable that a reasonable Tribunal could not come to that conclusion, and that there was no evidence to support the reasoning.  The Federal Circuit Court said that there was evidence to support the marriage in short succession to two Muslim men and referred to evidence recorded by the Tribunal at [41] and [44] of its decision to this effect.  Those paragraphs provided as follows:

   41.The Tribunal asked her about her marriage in Turkey. She said that she got married in Istanbul because that was where her husband lived. The Tribunal asked her how she met him and she said that it was an arranged marriage, arranged through a relative.  He was Muslim. The Tribunal asked her why she married a Muslim given her evidence about wanting to be a Christian. She said that she did not know but wanted to get out of her family house. The Tribunal queried how marrying a Muslim man would help her situation and she said she just wanted to escape so she could go to Church. He saw her praying and told her she was a dirty Christian and threw her out of the house. She said she married him [in] 2010 and was married to him for 3 months. The Tribunal queried this given her statement that she was thrown out the day after the marriage. The Tribunal read this out to her. She insisted she was married for 3 months and that he took her to court in [2011] and they were divorced in [2011].

   …

   44.In relation to her marriage in Australia, she said that initially her husband accepted her but now he is not sure. She is indecisive so often goes to her sister. He is much younger than her. He told her he loved her and wanted to get married. The Tribunal asked her why, given her history and recent experience of marriage to a Moslem man, she would marry another Moslem man in Australia. She said he was born in Australia and not interested in religion. The Tribunal put to her that this did not seem to be consistent with her claim to be a Christian and given what happened previously in 2010, it seemed very strange that she would marry another Moslem man. She said it was not important that they got married; what was important was being able to practise Christianity in Australia. The Tribunal repeated that the marriage seemed inconsistent with that. She said she did not marry him to stay in Australia but he insisted on marriage. Religion was not important to him. She was advised about applying for a protection visa application at her Church and her uncle’s daughter filled out the form for her.

10. The Federal Circuit Court said that the Tribunal then dealt with these matters at [77] and [80] which are extracted at [4] of these reasons.  The Federal Circuit Court concluded that there was no illogicality in the observation that the marriage in succession to two Muslim men cast some doubt on the level of the appellant’s commitment to Christianity. 

11. Finally, the Federal Circuit Court said in relation to ground 4 that the Tribunal correctly applied the complementary protection provisions of the Act.  In particular, the Federal Circuit Court determined that the appellant would be shunned by her family on return to Turkey.  However, this did not amount to significant harm as defined by section 36(2A) of the Act.

    THE APPEAL

12. On 10 October 2013, the appellant filed a notice of appeal in this Court in which each of the conclusions by the Federal Circuit Court on the grounds of review were challenged.  The first ground of appeal provided:

    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.This issue was taken up at paragraph 6 of the learned judge [sic] decision without going into details and glossing over the relevant sections of the Migration Act.

13. The only inconsistency referred to by the Tribunal is at [77] of its reasons which is extracted at [4] of these reasons for judgment.  The inconsistency there referred to was between an asserted commitment to Christianity and at the same time the choice to marry a Muslim man, not once, but twice in succession.  It is not clear why the Tribunal referred to this inconsistency at all in view of the Tribunal’s view at [76] and [71] that the appellant did hold an interest in Christianity; see [76] and [71]. 

14. The fact of the asserted inconsistency plays no role in the reasoning of the Tribunal.  Ultimately, the reasoning of the Tribunal was that the appellant would not suffer harm amounting to persecution were she to return to Turkey to live with her family, and this conclusion did not depend on doubting the genuineness of the appellant’s claims. 

15. Consequently, it is not clear why the Federal Circuit Court thought it necessary to embark on an analysis of ss 424A and 425 of the Act.  The answer to this ground of appeal was that [77] of the Tribunal’s reasons played no part in the reasoning process of the Tribunal.  The ground of appeal was misconceived and should be rejected for the reason that the Tribunal did not rely on the supposed inconsistency. 

16. If the issue is one of compliance with s 424A and s 425 of the Act then the marriage to two Muslim men and the doubt which this cast on the appellant’s commitment to Christianity was clearly put to the appellant in the course of the hearing. 

17. The following exchange occurred in the Tribunal:

    I have to say it does seem very odd that you would come to Australia and you say that really you want to be here because you want to be a Christian and you can’t do that in Turkey, and then within weeks of being here, having had a bad experience in Turkey marrying a Muslim, marry another one in Australia.  It just seems – it doesn’t seem to be consistent with your claims? --- But that is not relevant, the most important thing is that I live my Christianity here.  I am decided and I am very decisive that I want to practice religion here, Christianity here, that’s why I came here.  That was my opinion, my wish.

18. The next ground of appeal was expressed as follows:

    3.The Tribunal has failed to consider in relation to the harm that would befall her if she return [sic] to Turkey to live with her family.

    4.This again was taken up at paragraph 7 of the learned judge [sic] decision without specifying the grounds under which the application was made.

19. The contention that the Tribunal failed to consider the harm to which the appellant would be exposed if she returned to Turkey is unsustainable.  The Tribunal at [83] and [84], which are extracted at [4] of these reasons for judgment, addressed this very issue in its reasoning.  Furthermore, it set out the evidence which had been given on this subject in its reasons including the following:

    40.She said she could not do anything about her religion during this time and that she was subject to physical abuse from her family including being locked in her room and left hungry. She said her family had taken away her freedom and that they thought that she had given up her beliefs during this period. The Tribunal asked her why she had stayed living with them and she said that she could not do anything else and that her brother in law threatened her. She said that at that time he lived in [town deleted] but would come back to Adana for 3 months each year and he would threaten her. He first threatened her in 1998.

    …

    53.The Tribunal put to her that country information suggested that Christians could freely practise their religion in Turkey and she said that was not her problem; her problem was that she had converted from Islam. The Tribunal queried this and asked her whether she had actually converted to Christianity while she was in Turkey. She said she became a Christian in her heart in Turkey. The Tribunal explained that whilst it might accept that she may suffer some harassment or discrimination in Turkey for being a Christian it may not amount to either persecution or significant harm which were the issues to be determined by the Tribunal. She claimed that there was a real risk her family would harm her.  The Tribunal said that for 13 years her family had not harmed her in Turkey so questioned why they would now. She said she did not go to Church in Turkey but did in Australia.

    …

    62.The Tribunal asked [the applicant’s sister] what she thought would happen to the applicant if she returned to Turkey. She said bad things would happen and that their mother would not accept her and her siblings would harm her. Her brother in law is a policeman and he will kill her. The Tribunal asked her why he would kill her when he did not do this for 13 years in Turkey.

1. These passages make it clear that the Tribunal considered the harm which would befall the appellant if she returned to Turkey to live with her family.  The fact that the Tribunal did not accept that the appellant faced the risk of murder was an assessment made from the facts which the appellant and her witness provided to the Tribunal. 

2. The next ground of appeal provided:

   5.The tribunal has substituted its own yard stick in relation to the applicant marrying to a Muslim man in short succession with out considering the evidence.

   6.This was taken up in paragraph 8 of the learned judge [sic] decision without specifying the grounds under which the application was made.

3. It is not clear what this ground seeks to raise.  As mentioned earlier, the fact that the appellant married Muslim men in short succession seems to have been used by the Tribunal as casting some doubt on the extent of the appellant’s commitment to Christianity, but, in the end, the Tribunal accepted that she was committed to Christianity.  The decision of the Tribunal was based on an assessment of the likely harm, or its absence, which was likely to flow from that commitment.  Thus, the ground of appeal, even if established, goes nowhere.  It should not be accepted.

4. The final ground of appeal stated:

   7.The Tribunal has erred in its interpretation of its complementary protection obligation as also because the Tribunal has failed to consider the cogent evidence before it.

   8.This was taken up in paragraph 5 of the learned judge [sic] decision without specifying the grounds under which the application was made.  Curiously the learned judge says the appellant would be “shunned by her family”.

5. Again, this ground is unsustainable.  The allegation is that the Tribunal failed to consider cogent evidence, presumably of significant harm within the meaning of s 36(2A), of the Act.  It is clear from the reasoning of the Tribunal that it assessed the evidence of the likely harm which the appellant would experience, but determined that it did not fall within the terms of the definition of “significant harm”. There was no misinterpretation of the statutory provision, but rather an assessment of the evidence.  That assessment cannot be challenged on an application for judicial review.  This ground is also not made out. 

6. At the hearing of the appeal, the appellant appeared without legal representation, but with the assistance of a Turkish interpreter.  She explained that all the information about her case was on the file.  After the Court explained to her the nature of the judicial review function, and asked for her response, she again said that all of the information has been given to the Court.  She said she didn’t want to return to Turkey, and wanted the Court to help her.

7. She then repeated the evidence which she gave to the Tribunal, that her second marriage to a Muslim man should be understood against the background that he was not a very knowledgeable adherent to the faith, that he did not know much about the religion. 

8. The Court is not in a position to provide assistance to the appellant unless she is able to make out the grounds of appeal, or at least indicate to the Court any jurisdictional error made by the Tribunal.  Whatever sympathy the Court might have for her position does not allow it simply to put aside the legal requirements.  The legal position does not assist the appellant and her appeal must be dismissed. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       21 February 2014