SZDVA v Minister for Immigration

[2005] FMCA 520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVA v MINISTER FOR IMMIGRATION [2005] FMCA 520

MIGRATION – RRT decision – Jordanian Muslim – claimed conversion to Christianity while in Australia – disbelieved by Tribunal – no jurisdictional error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Part 8

Abebe v Commonwealth (1999) 197 CLR 510
Paul v Ministerfor Immigration & Multicultural Affairs (2001) 113 FCR 396
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VAAM v Minister for Immigration & Multicultural Affairs [2002] FCAFC 120
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276

Applicant: SZDVA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1805 of 2004

Judgment of: Smith FM

Hearing dates: 15, 19 April 2005

Delivered at: Sydney

Delivered on: 19 April 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms K Morgan

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Objection to competency upheld.

2. Application dismissed.

3. Applicant to pay the Respondent’s costs in the sum of $4700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1805 of 2004

SZDVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 March 2004 and handed down on 27 April 2004. The Tribunal affirmed a decision of the delegate of the Minister made on 9 June 2003, refusing an application for a protection visa.

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the jurisdiction is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that the Court has power to give remedies only if it is satisfied that the Tribunal decision was affected by jurisdictional error. Unless I can find such an error, I have no power to set aside the Tribunal decision and send the case back to the Tribunal. I have no power to decide whether the applicant should be believed, whether he is a refugee within the Convention definition, or whether he should be granted a protection or any other visa.

3. In the present case, the applicant entered Australia on a visitor’s visa in February 1999.  According to the applicant, he came to Australia from Jordan to continue his law studies.  In June 1999 he applied for permanent residence on the grounds of marriage to an Australian citizen.  Proof of a marriage to “L” was shown by way of a marriage certificate dated 29 May 1999. 

4. However, his application was refused, and this was affirmed on appeal to the Migration Review Tribunal (“the MRT”).  The MRT found that an essential criterion for a relevant visa was not met because “the visa applicant was not in a spousal relationship with the nominator at the time of the visa application”.  It concluded the marriage of the nominator and the visa applicant was a sham to enable the visa applicant to stay in the country.  I shall return to other statements in the MRT’s decision later.  On evidence given to the Refugee Review Tribunal, it seems that the applicant, after losing in the MRT, sought a ministerial decision which was refused in March 2003.  

5. On 30 April 2003, the applicant applied for a protection visa, assisted by a solicitor.  Somewhat curiously, the application attached a statutory declaration of the applicant, witnessed by his solicitor, which said:

   I have also been vigorously advised against applying for refugee status as it is my solicitor’s opinion that I have very little chance of succeeding, and also I have been warned that in my solicitor’s opinion this application may be vexatious or grossly unfounded given the independent human rights reports which confirm that the human rights situation in Jordan has significantly improved.

6. Notwithstanding this, the solicitor continued to act for the applicant, and actively assisted him to appeal to the Tribunal and then to this Court.  He filed a notice of ceasing to act shortly before the hearing appointed for last week.  When the matter was called, there was no appearance for the applicant, and the Minister’s counsel informed the Court that her instructing solicitor had discovered that the applicant was in detention at Villawood and had not been brought to the Court. 

   
   

   I therefore adjourned the proceedings to today. 

7. In his visa application, the applicant described himself as a national of Jordan, and of the Christian religion.  A brief statement which was attached refers to his meeting L and being happy because she was of the Christian faith.  He said that in Jordan he was a Muslim and:

   I was not able to say I was a Christian and that I have adopted this faith, but when I came to Australia, the country of freedom, I started to frequent churches and pray in them because I am fully convinced of it.

   When I wanted to return to Jordan and told my family that I was coming back, they told me that they have heard from some of my friends that I had converted to Christianity and that I have married a girl of the Christian faith.  I told them that it was true and that it was my life not theirs, but my father and all the family replied to me and said, “Did you forget that Jordan is a Muslim state and that we are Muslims, and what is the punishment for apostasy from Islam?  I answered that I knew that.  This is my life and I wanted to change my religion from a Muslim to a Christian, so they told me that the whole family “the clan” was aware that I have changed my religion and have become a Christian and they were all angry with me and never imagined they would ever see me again.  And that if I was not punished by the Islamic law “the state” they will punish me with “death”.

   I have become confused as to what to do.  If I return to my country my destiny will be death.  All this because I have converted from my original religion to Christianity.  I ask your excellency to solve my problem.  I cannot go back now to Jordan or I would be killed by the extremist Islamists or by my family because I am adhering to this great religion, Christianity.

8. The delegate refused the application for the protection visa on 9 June 2003, and the applicant appealed, assisted by his solicitor.  No material in support of the claims made by the applicant accompanied the appeal, and the reasons given for the appeal were merely:  “I do not agree with DIMIA’s assessment of the human rights situation in Jordan”. 

9. The applicant attended a hearing before the Tribunal on 10 February 2004 accompanied by his solicitor and a witness.  The Tribunal’s reasons subsequently given contain a detailed narration of what happened at the hearing.  Although a transcript is not in evidence before me, I accept the accuracy of the Tribunal’s summary. 

10. It appears that the Tribunal questioned the applicant closely about the statement made in his visa application.  He confirmed his marriage, and said he had met his wife in March or April of 1999 and that they were married in a civil marriage on 29 May 1999. He said that they separated in August 2001. The applicant explained the subsequent delays before making the application for a protection visa. 

11. The Tribunal put to the applicant, possibly during the hearing but certainly in a subsequent letter, the inconsistency between his account of his conversion and marriage and his evidence given to the MRT in October 2002.  The MRT decision contains the following paragraph:

    34.    When asked when they decided to get married he stated the middle of May.  When it was put to him that he would have needed to give 30 days notice he claimed that they decided to get married on 18 March 1999 (this is the same day they allegedly met at the party).  They then had the Islamic marriage in April which was conducted by Fouad El Ashwah, the same person who conducted the marriage recognised under Australian law in May.  They had not started to live together at Doonside until after the May marriage as the nominator had wanted an Australian marriage as well as an Islamic one.

    In response to the written request for comments, the applicant’s solicitor said:  “[We] are instructed that our client never had an Islamic or religious wedding but was married by a civil celebrant”.  The Tribunal says that it “re-examined the text of the MRT decision and is satisfied that the discussion of the applicant’s claims about his wedding is such that a mistranslation in this case was highly unlikely”. 

12. When the Tribunal asked the applicant when he was baptised, he gave evidence that in fact he had not yet undergone a baptism and “gave a very rambling response to this question”.  He referred to seeing a priest of the Maronite Catholic Church, attending a Catholic Church, and sometimes going to other churches.  When the Tribunal asked what the sacraments were in the Catholic Church, “he made some attempts to answer this question, but it became apparent that he did not know what the sacraments were”. 

13. The Tribunal asked the applicant about his family in Jordan, and at that point the applicant produced a number of documents translated from Arabic.  These recorded events in June 2003 in which the applicant’s clan had passed resolutions to refer his case to an Islamic Court, and records of an Islamic Court proceeding in July 2003.  The Court ruled in his absence:  “In case [the applicant] is arrested, he is to be referred to the relevant court to apply the most severe punishment in force in case of apostatizing from Islamic religion” and “is considered stripped of all his civil rights and private properties as of the date of sentence”. 

14. The applicant told the Tribunal that these documents had been given to a brother of his witness and had only just been received by the solicitor.  The Tribunal says that it said to him that “it seemed extremely convenient for the applicant for documents to have been produced at the hearing, even though they had allegedly been created several months ago”.  The Tribunal refers to subsequent correspondence with the applicant’s solicitors in which he was asked to comment on a report from a Document Examination Unit (“DEU”) in relation to these documents. 

15. On 10 March 2004, the applicant’s advisers sent to the Tribunal a letter signed by a Maronite priest which said that the applicant had been a regular visitor to his home for spiritual reasons for two years, and that he had “referred [the applicant] on to [a priest at the local Catholic Church], who will baptise him shortly”. 

16. In its reasons, the Tribunal refers to independent country information concerning the situation in Jordan of people who have been converted to Christianity from the Muslim faith. 

17. Under the heading, “Findings and Reasons”, the Tribunal addressed the applicant’s claims.  It said that it found the applicant to be a very unreliable witness and had serious concerns about his credibility.  However, the Tribunal accepted that he had married a Christian woman, that he had attended Christian churches and that his family in Jordan believed him to be an apostate and had taken him to a Shari’a court which had passed adverse judgment on him.  It said:

    It does not accept that the applicant has a genuine interest in or desire to convert to Christianity, since he has had ample opportunity for several years to convert but has not done so to date, and finds that there is not a real chance that the applicant will be persecuted for a Convention reason if he returns to Jordan in the foreseeable future.

    On the basis of his evidence at the Tribunal hearing, the Tribunal finds that the applicant has little knowledge of Catholicism, despite having been married to a Christian, attending Christian churches sporadically, and speaking to a Maronite Catholic clergyman over an extended period.  He has not been baptised, though he implied at the hearing that he was to be baptised by (that priest), who, on his own evidence, does not have the jurisdiction to baptise him.  The Tribunal finds that the applicant is not presently a Christian, and has not demonstrated a genuine wish to convert to Christianity.

18. In relation to the documents submitted at the hearing and the applicant’s situation if he returned to Jordan, the Tribunal said:

    In the absence of evidence to the contrary, and in the light of the advice from the DEU, the Tribunal accepts that the documents submitted by the applicant are authentic.  However, the applicant has a record of unreliability in relation to his applications to remain in Australia.  The Tribunal finds it surprising that, despite the fact that the applicant married a Christian in 1999, and that his family were aware of this, the applicant’s clan did not meet to consider his apostasy until June 2003, after the failure of his Protection Visa application.  He does not appear, according to his evidence, to have advised his family that he was no longer married to a Christian, or that he had not been baptised as a Christian.  Indeed, he appears to have allowed his family to proceed with their actions in relation to a Shari’a court without any attempt to deter them.  The Tribunal finds it difficult not to conclude that the applicant in this matter, as in others, has acted in bad faith in order to secure permanent residence in Australia.

    However, the Tribunal accepts that the applicant’s extended family has secured a decision against him in the local Shari’a court, stripping him of his “civil rights and properties” and ordering him to be brought before a Shari’a court.  The US State Department says that “under Shari’a converts are regarded as apostates and legally may be denied their property and other rights; however, in practice this principle is not applied” (page 11).  The court has not ordered that the applicant be killed for apostasy.  The US State Department says that while Shari’a law prescribes the death penalty for Muslims who convert to another religion, such punishment has never been applied (page 11).  Given the unequivocal evidence of the State Department, the Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Shari’a court because of his religious opinions, real or imputed.

    The country information indicates that there is no penalty under Jordanian civil law for conversion to Christianity, even though it is not fully recognised as legal (page 12, DFAT advice of February 2002).  In these circumstances, the Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Jordanian authorities if he returns to Jordan in the foreseeable future, for reasons of his religious belief or for any other reason.

    While the applicant’s family are, according to the applicant, strict Muslims, they are not uneducated, or rural and remote people.  His father is an army colonel, two brothers attend university, as did the applicant.  The applicant’s home town is only half an hour away from the capital, Madaba.  The country information indicates that “honour killings” for reason or religious conversion are not common practice, and that such action is dependent on the conservatism of the family (“rural and Bedouin communities” are considered more conservative).  The cases reported by the solicitor (page 8) refer to females, who are overwhelmingly the majority of victims of honour crimes in Jordan (see BBC News reports on “honour killings”, 8 and 10 September 2003, or to the victim of Islamic extremists (whose motives for the killing may have been mixed).  On the applicant’s evidence, his family did not make any attempt to act against him for some four years after he married a Christian.  It has not contacted him, much less threatened him, for some eight months since the Shari’a court made its decision.  In the light of this evidence, the Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by family members if he returns to Jordan, especially given the fact that he has not converted to Christianity nor is currently married to a Christian.

    The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted if he returns to Jordan in the foreseeable future.  It is therefore not satisfied that he has a well-founded fear of persecution.

19. The applicant’s solicitor filed an application for judicial review in this Court on 11 June 2004 and attended a first court date on 21 September 2004, at which he was directed to file an amended application giving complete particulars.  The solicitor did file such a document on 15 November 2004.  It duplicates the original application though omitting a ground that alleged:  “The Tribunal’s findings were so unreasonable that no reasonable Tribunal could have made such findings”.  I agree that this contention was incapable of being established. 

20. The applicant was directed to file written submissions 14 days before a hearing date which was allocated for 15 April 2005.  No written submissions were filed on behalf of the applicant but on 10 March 2005, the solicitor filed a notice of ceasing to act.  As I have indicated above, the hearing was adjourned to today.  The applicant has attended without representation but assisted by an interpreter. 

21. I have listened carefully to his submissions but have not been able to identify in them an argument identifying a jurisdictional error in the decision of the Tribunal.  His submissions amounted to an affirmation of his claim that he had genuinely sought conversion to Christianity and that he genuinely feared harm if he returned to Jordan.  He criticised the Tribunal’s reasons because he had given proof of the threats against him in Jordan.  He said that the Tribunal’s conclusion about the genuineness of his religious feelings and his religious wishes was based on the Tribunal’s feelings or opinion rather than evidence.  He sought to explain to me the delays that had occurred in his obtaining baptism, and produced a recent letter from a Roman Catholic priest suggesting that this may be about to occur.  However, in my view, none of these matters identified jurisdictional error in how the Tribunal had decided the facts in his case.  I was not persuaded that the Tribunal’s finding was not open to it on the material which was before it. 

22. The applicant did not address the six grounds pleaded in his amended application.  However, I have considered these, and shall give my conclusion in relation to each of them: 

    1)The Tribunal concluded that the applicant was a very unreliable witness, without providing him with an opportunity to respond.

23. I consider that the Tribunal’s conclusion about the reliability of the applicant’s evidence was not a matter which it was required to canvass with the applicant since it concerned an issue which was inherent in the nature of the proceeding.  I accept the submission by counsel for the Minister in this respect.  She cited VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24], referring to Paul v Ministerfor Immigration & Multicultural Affairs (2001) 113 FCR 396 at [95]; Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54]; Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679, approved in VAAM v Minister for Immigration & Multicultural Affairs [2002] FCAFC 120; WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26‑29]. Similar opinions have been expressed in the High Court: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [76] and Callinan J at [208].

    2)The Tribunal concluded that it does not accept that the applicant has a genuine desire to convert to Christianity, when there was information before the Tribunal, including a letter from (the Maronite priest), stating that the applicant is preparing for Baptism.

1. I consider that this criticism does not raise a ground of jurisdictional error.  The Tribunal’s conclusion was open to it, and was not arrived at on unreasonable or irrational reasoning.  If the ground implies that the Tribunal should have foreshadowed its conclusion more to the applicant, then I reject this upon the authorities cited above.  I consider, based on the Tribunal’s description of the hearing, that it must have been plain to the applicant that the Tribunal might disbelieve many aspects of his claims.  In my view, it was always apparent to the applicant that the genuineness of his claims to either have been converted or be undergoing a conversion process was in real doubt before the Tribunal. 

   3)The Tribunal concluded that the applicant had acted in bad faith in order to secure permanent residency in Australia, without providing him with an opportunity to respond.

2. This is a reference to the last sentence of the first paragraph extracted above at [18]. I consider that the Tribunal’s assessment of the circumstances in which the applicant had obtained and produced evidence of the proceedings in a Shari’a court in Jordan was a matter which it was open to the Tribunal to assess in the manner described.

   
   

   I do not consider that any unfairness resulted from the Tribunal’s characterisation of his actions in the way it did.  It had raised at the hearing and given the applicant sufficient opportunity to respond to the suggestion that the obtaining of the documents was contrived to assist the applicant’s visa application.  Whether the Tribunal was correct in characterising his conduct as showing “bad faith” is not a matter for me to consider or to assess further.  In any event, I do not consider that this side comment played a material part in the Tribunal’s reasoning.  The Tribunal accepted the genuineness of the documents when assessing what would face the applicant if he returned to Jordan.

   4)The Tribunal failed to consider whether the government of Jordan will provide the applicant effective protection.

3. It is correct that the Tribunal did not discuss the issue of effective protection from Jordanian authorities.  However, in my view it was not obliged to address this issue, given the findings that it had made.  The Tribunal accepted information that punishments imposed by a Shari’a court were in practice not applied in Jordan, and that in relation to the applicant’s fears from his immediate and extended family, there was not a real chance that he would be seriously harmed by them if he returned to Jordan.  I consider that it was open to it to do this.  In those circumstances, it was unnecessary for the Tribunal to hypothesise about whether effective protection would have been available if it had found a real chance of harm from non‑State agents. 

   5)The Tribunal failed to consider whether the applicant may be seriously harmed by family members after returning to Jordan, if he converts to Christianity.

   6)The Tribunal failed to consider whether if the applicant wished to intentionally or unintentionally reveal his conversion to Christianity, he is at risk of being persecuted by family members.

4. These two grounds also refer to issues which the Tribunal did not need to address.  They might have arisen if the Tribunal had found that the applicant had in fact converted to Christianity or would do so in the foreseeable future.  However, the Tribunal found that “the applicant is not presently a Christian, and has not demonstrated a genuine wish to convert to Christianity” and “it does not accept that the applicant has a genuine interest in or desire to convert to Christianity”.  Given those findings, it was not necessary for the Tribunal to address the hypotheses raised by these two grounds. 

5. I am not satisfied as to any jurisdictional error in relation to any of the grounds raised by the amended application. Nor have I been able to find any ground of jurisdictional error arising otherwise upon my reading of the material. The Tribunal’s decision is, as a result of this finding, a “privative clause decision” for which relief is precluded by s.474(1).

6. As I have explained to the applicant, in those circumstances I have no alternative but to dismiss his application. 

   RECORDED   :   NOT TRANSCRIBED

7. I shall order the applicant to pay the respondent’s costs in the sum of $4700. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  22 April 2005