MZZSA v Minister for Immigration

[2014] FCCA 1146

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1146

Catchwords:
MIGRATION – Whether RRT committed jurisdictional error – applicant claiming persecution on account of religion – whether RRT properly considered the claim.

Legislation:
Migration Act 1958 (Cth), s.36(2)(a)

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

First Applicant: MZZSA

Second Applicant: MZZSB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1442 of 2013

Judgment of: Judge Burchardt

Hearing date: 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Melbourne

Delivered on: 13 June 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 4 September 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1442 of 2013

MZZSA

First Applicant

MZZSB

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 9 August 2013.  In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Protection (Class XA) visas.  The applicants are a de facto couple and only the first named applicant is seeking protection.  The second named applicant applies effectively as a family member.

2. The originating Application filed 4 September 2013 lists the following under the heading Grounds of Application:-

   “1. The decision of the Refugee Review Tribunal (“RRT”) is affected by omission by the Tribunal in considering the persecutions faced by the applicants if returned to Malaysia.  In such circumstances the decision of the Tribunal of 9 August 2013 is one made outside its jurisdiction. 

   2. The decision of the RRT is affected by omission by the Tribunal in giving due regard to the facts and information submitted by the agent before the decision was made.”

3. The Affidavit of the first named applicant also filed on 4 September 2013 takes the matter no further. 

4. Orders were made by Registrar Caporale on 6 November 2013 which provided the applicants an opportunity to serve any amended application for review, supplementary court book and written submissions.  The applicants have not done so.  I mention this not in any way as a criticism of the applicants, who do not speak English, are presumably not really conversant with the law of this country and who, for present purposes, are self-represented.  The fact is, however, that the Court has but little to go on other than the first respondent’s written submissions and the material in the Court Book. 

5. From the Tribunal’s reasons for decision, which run from CB113-122, it is apparent that the applicants, who are Malaysian citizens, applied for protection visas, essentially because the first named applicant asserted persecution on the grounds of his religious belief.  The second named applicant has never made any protection claims.  The first named applicant (“the applicant”) is a member of the Yi Guan Dao Sect.  He stated that the local religious and council authorities harassed him and threatened him with a jail term if he continued to pray to his Yi Guan Dao deities.

6. The applicant had set up shrine in his front yard in early 2009.  Before that, he had practiced his religion at the homes of other adherents and never had any problems in doing so.  He initially asserted to the Tribunal that he had been asked by his area leader to erect a shrine in his own front yard, but later asserted that he was commanded to do so, an assertion that the Tribunal did not accept because of the inconsistency in the two ways the matter was put. 

7. On 13 May 2009, the applicant and others were practicing rituals at his home when a group of Malays rushed in, knocked over their holy table and abused them. Some government officials warned them that if they did not dismantle the shrine and stop worshiping in the front yard, they would be fined and the shrine would be forcibly removed.  The first named applicant dismantled the shrine out of fear.  Thereafter, the first named applicant indicated that he had continued to adhere to his religion at the homes of other members of the faith. 

8. The Tribunal observed (see paragraph 23, CB118) that before the May 2009 incident, the applicant appeared to have practiced his religion without impediment for some 11 years and the applicant responded, as the Tribunal put it, “by seeking to downplay the level of commitment he had shown in his earlier years, asserting that he hadn’t started formal worship until 2008 when he re-engaged and discovered just how good it was”. The Tribunal put country information to the applicant which did not suggest that Yi Guan Dao worshipers were prevented from practicing their religion in Malaysia. The applicant, by way of reply, said he was prevented from worshiping as he wished.

9. The Tribunal also put it to the applicant that the delay of some two months between him being granted an Australian visa and leaving Malaysia raised questions about the seriousness of the threat he faced.  The applicant responded by reiterating that he had visited Kuala Lumpur and, there, two people had been forced underground and had to worship in a private house.  The Tribunal also noted that the applicant’s representative in a post-hearing submission had contended that the delay in departing Malaysia was not unreasonable given that the applicant could not begin planning the trip until he obtained a visa, and otherwise explained the delay. 

10. The Tribunal accepted (paragraph 33 CB120) the applicant’s claim to be a Yi Guan Dao adherent and that he was prevented from practicing his religion by utilising a prominent shrine he had erected in the front yard of his family home.  The Tribunal also accepted that the applicant was told to dismantle the shrine or risk prosecution for breach of local planning laws and was subjected to offensive verbal abuse in the process, following which he did dismantle the shrine in fear of the consequences. 

11. The Tribunal also accepted, as the applicant claimed, that there is entrenched discrimination in Malaysia favouring the ethnic Malay population and the Islamic religion which can manifest itself in the inconsistent application or enforcement of local planning laws.  The kernel of the Tribunal’s finding is at paragraph 34 as follows:-  

    “However, in the present case this treatment has only extended as far as requiring the applicant to remove an outdoor shrine erected without authorisation.  While this action may well have involved a discriminatory application of the local planning laws it did not, in the view of the Tribunal, constitute such serious harm as to amount to persecution in all the circumstances. In response to this action the applicant reverted to the mode of religious practice he had employed before he built a shrine in the first place. In other words, he just went elsewhere to worship as he had formerly done, and despite some apprehension about the possible consequences, he continued to do so without incident for three more years before coming to Australia.  Indeed at the Tribunal hearing the applicant conceded that he would not even have erected the shrine in the first place if he had not been asked to do so by his area leader.  The applicant later asserted that he had been commanded to erect the shrine, but the Tribunal does not accept this given that he had earlier volunteered that he was simply asked to build it.  Bearing in mind both the country information extracted above at [24] and also the evidence showing that in Australia the applicant has worshiped at a public indoor temple in St Albans, the Tribunal does not accept that preventing the applicant from worshiping at an outdoor shrine in the front yard of his own home in Malaysia amounts to a significant imposition on his right to practice his religion, let alone a persecutory curtailment of that fundamental right of the sort envisaged in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. Furthermore, in light of that country information at [13] indicting that as the Yi Guan Dao religion became more firmly established in Malaysia they developed public halls as congregational sites, the Tribunal does not accept the applicant’s contention that he is unable to worship in Malaysia in the same way as he has been doing in Australia.

    In any event, the applicant has only provided specific evidence of only two localised examples of such conduct in connection with Yi Guan Dao shrine,  both dating from 2009. Given that the country information does not suggest that Yi Guan Dao followers generally experience any problems practicing their religion in Malaysia, then even if the Tribunal were to accept that the applicant were facing a real chance of religious persecution in his local district, which it does not, it would nevertheless find that it would be reasonably open to him to relocate to another part of Malaysia where he would not face such a risk, bearing in mind his youth and employment history which includes some years spent working in Singapore.” 

12. The Tribunal went on to find that the applicant did not meet the requirements of s.36(2)(a) of the Migration Act 1958 (Cth) because he did not have a well-founded fear of being persecuted in Malaysia for the Convention reason of his religion or for any other Convention reason. The Tribunal went on to consider the complementary protection criteria, but concluded it was not a real risk that the applicant would suffer significant harm if returned to Malaysia.

13. It should be noted that nothing in the applicant’s materials or in the Court Book suggests that the findings that the Tribunal made, to which I have referred above, were in any way inaccurate as to factual matters. 

14. In the circumstances, therefore, the first ground of the application to the effect that the Tribunal’s decision is affected by omission insofar as the Tribunal failed to consider the persecution the applicants would face if returned to Malaysia simply cannot be sustained.  The Tribunal analysed what it was that the applicant had experienced and concluded that there was not a risk of serious harm for a Convention based reason if the applicants were to be returned.  I note, further, the Tribunal additionally found that it would be reasonable for the applicant to relocate in any event. 

15. While minds might differ as to whether the restriction imposed on the applicant’s style of worship could amount to persecution, the test in judicial reviews, such as in this case, is whether the Tribunal committed jurisdictional error and failed, in substance, to actually exercise its jurisdiction at all.  The Tribunal was well seized of the task it was required to conduct and did not, in my view, have regard to any irrelevant considerations or otherwise misapply itself in the discharge of its function. 

16. The Tribunal’s decision was not affected by jurisdictional error and would be sustainable on the unchallenged ground of the applicant’s capacity to relocate in any event. 

17. The second ground of review is, in my view, a matter of merits review only and would be incapable of being sustained in any event. There seems to be nothing in the facts and information submitted by the Agent before the decision was made which the Tribunal failed to deal with. The applicant made no attempt in submissions in Court to identify any such admission.

18. I have not referred thus far to the helpful written submissions of the first respondent which, of necessity, follow fairly closely the style of the Tribunal’s decision itself. I should make it clear I accept the submission at paragraph 27 of the first respondent’s submission that the findings of fact made by the Tribunal were open to be made on the material before it and were not unreasonable, irrational, or illogical.  I also accept the submission at paragraph 28 that it was open to the Tribunal to find, while the action requiring the applicant to remove his outdoor shrine might well have involved the discriminatory application of local planning laws, it, nonetheless, did not amount to persecution in all the circumstances nor a real risk that the applicant would suffer significant harm. 

19. The application must be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date:  13 June 2014