SZEOH v MIMIA

[2005] FMCA 1178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOH & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1178

MIGRATION – Refugee – claims based on religious grounds – forced conversion of a 10 year old child – Tribunal doubted claims but found in any event state protection available – no reviewable error.

Refugees Convention, Article 1A(2)
Australian Citizenship Act 1948, s.10
Federal Magistrates Court Rules 2001, rules 21.02(2)(a), 11.11

Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] 912 FCA
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Khawar v Minister for Immigration and Multicultural Affairs [1999] FCA 1529

Applicant: SZEOH & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3075 of 2004

Judgment of: Nicholls FM

Hearing date: 10 May 2005

Date of Last Submission: 2 May 2005

Delivered at: Sydney

Delivered on: 26 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3075 of 2004

SZEOH AND ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 14 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 August 2004 and handed down on 21 September 2004 to affirm the decision of a delegate of the respondent Minister made on 5 January 2004 to refuse protection visas to the applicants.

2. The applicants before the Tribunal and now before the Court are mother and daughter. The mother claims to be a Singaporean citizen and that her daughter is stateless, having been born in Australia to parents who were Singaporean nationals, and who did not have the citizenship of any other country. Their claims of persecution centre around the religious beliefs of the applicant mother's former husband and father of the second applicant. The claim is that both would be mistreated by him and his family on a return to Singapore because he is a devout Muslim who would seek to forcibly convert his daughter to Islam.

3. The application to this Court complains:

   1)Jurisdictional error on the part of the Tribunal in that it failed to consider the specific circumstances of the applicants.

   2)Jurisdictional error on the part of the Tribunal in that it failed to give proper consideration to the evidence provided.

4. No particulars are provided in the application. However, in an amended application filed on 19 January 2005, the applicants provide some particularity to their complaints:

   1)The applicants assert that the Tribunal found at Court Book 135 that it doubted that the ex-husband and father would want to forcibly convert his daughter to Islam. The applicants now assert that in making this finding the Tribunal ignored the evidence put forward by the applicant mother at CB 125 that gave as the reason that the ex-husband had not tried to convert the daughter to Islam in the past, that he had become busy and that the daughter did not have a passport.

   2)That in the course of making its finding at CB 135 that effective state protection would be available to the applicant mother and daughter, the Tribunal stated that nation states are not required to provide absolute protection against persecution. The applicants argue that in their case the level of state protection was not sufficient to prevent the applicant mother and daughter from being refugees.

5. The applicant mother appeared before me unrepresented. In this regard I note that she was given the opportunity to access legal advice through the Court’s Legal Advice Scheme. She had earlier indicated that she would not need an interpreter for the purposes of the hearing before me and clearly showed a good level of proficiency and competency in the English language. The applicant mother was given support and assistance during the course of the hearing before me by friends who had attended Court with her and on occasion the applicant mother consulted with them. I understood that they were not legally qualified. In relation to the second applicant who is a nine year old child, I appointed the applicant mother the litigation guardian for the second applicant pursuant to rule 11.11 of the Federal Magistrate Court Rules 2001.

6. The applicants’ claims contained in the application to the respondent's Department for a protection visa (CB 1 to CB 25) were essentially based on claimed religious grounds. The applicant mother claimed that there had been threats by her former husband after he became an orthodox Muslim subsequent to their arrival in Australia and she maintained her Hindu religion and practices. She claimed there were threats against her and her daughter by her husband's family and that she did not believe that the authorities would protect them in Singapore. The daughter's application claimed (CB 26 to CB 39) in particular at CB 33 that as a Catholic she feared going back because the father may try to convert her to a Muslim and that the school system is different in Singapore and she would not be able to cope. The application for review to the Tribunal did not contain any additional claims.

7. On 27 February 2004 (CB 65 to CB 67) the Tribunal wrote to the applicant mother with reference also to the daughter and requested additional information. The response is reproduced at CB 71 to CB 80. The Tribunal's decision record records details of the information sought by the Tribunal and the answers that were provided in response to those questions (CB 120.3 to CB 123). On 1 April 2004 the applicant mother gave evidence at a hearing before the Tribunal. The Tribunal's record of the mother's evidence is at CB 124 to CB 126. On 21 April 2004 the applicant mother submitted a further statement in support of their claims. This is reproduced at CB 84 to CB 86 and addresses the issue of relocation in Singapore and makes the specific claim that the Tribunal commented that it was acceptable for her to be bashed by her husband. She also asserted that the Singaporean government would not be able to protect her. The Tribunal in its decision record at CB 127 notes the comments on relocation, the link between the harm claimed and the Refugees Convention and refutes the claim that it stated or suggested that it was acceptable for the applicant to be assaulted by her ex-husband. Further, on 26 May 2004, the Tribunal conducted at the mother's request, a separate hearing with the applicant daughter. The applicant mother was present. The Tribunal's report is at CB 127.9 to CB 129.1. Further written submissions were received on 8 June 2004 from the applicant mother in relation to the applicant daughter's evidence (CB 93 to CB 96). The Tribunal's report of these matters is at CB 129 in its decision record.

8. The Tribunal accepted that the applicant mother was a Singaporean national and that her claims would be considered in relation to Singapore as the country of nationality. In relation to the applicant daughter the Tribunal found that in all the circumstances before it she was stateless. The Tribunal however was faced with an unusual situation. The Refugees Convention at Article 1A(2) provides:

   “…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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”

9. The applicant daughter has no country of nationality. Further as the applicant daughter was born in Australia and there was no evidence before the Tribunal that she has ever left, there is no country of former habitual residence. The Tribunal considered that in such circumstances this would put the applicant daughter outside the parameters of the Refugees Convention. However, rather than adopt this course, the Tribunal decided that it would consider the applicant daughter's claims against Singapore should its interpretation be incorrect. Firstly, in relation to country of nationality it is clear that whether a person has a particular nationality is a question of fact for the Tribunal. In this case the Tribunal specifically looked at the issue of whether the applicant daughter was a citizen of Australia or Singapore, the only two possibilities open in the circumstances presented. Given the information available, the Tribunal found the applicant daughter was stateless. This is not disputed by the applicants. Second, while the Tribunal's finding that the particular and unusual circumstances of the applicant daughter may put her outside the application of the Convention, its decision to consider the claims against a return to Singapore, in my view, is appropriate. It is certainly in keeping with a judicial approach which emphasises a practical and fair approach to enabling proper consideration of refugee claims. For example in Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] 912 FCA Tamberlin J. in looking at a situation of whether Hong Kong would be a stateless applicant’s country or place of former habitual residence said at 296:

   “The objective of the Convention is to provide a practical humanitarian solution to the problems of refugees. It should be interpreted with this objective in mind. Individuals should not be denied the protection of the Convention by an unnecessarily narrow reading of the definition of "refugee". It is not appropriate to conclude that an applicant has no recourse under the Convention simply because his or her "country" of former habitual residence happens to be a colony or other entity that is not an independent sovereign state.”

   While of course the situation in the case before me contains a different factual basis the sentiment expressed by His Honour is, with respect, a good guide as to how the Tribunal should approach these matters, and in fact that is what this Tribunal has done. It is clear that Singapore was the country against which the applicant daughter's claims of fear of harm were made. The Tribunal's approach in this sense clearly did not disadvantage the applicant and in fact is consistent with the applicant's approach to it, in the sense that she claims that she did not want to go to Singapore. In circumstances where statelessness on its own is not sufficient to establish refugee status, the Tribunal took a sensible, and in my view, appropriate course of action.

10. The Tribunal accepted that the applicant mother was a Hindu who practised Catholic principles. It found claims about threats from her husband and his family in the past to be vague and lacking in detail. It found she was not able to provide more substantial details about matters critical to her case. However the Tribunal said at CB 134.6:

    “That being said the Tribunal does not affirmatively disbelieve the applicant as overall she appeared sincere in giving her evidence and there is nothing inherently implausible in her claims of past harm.”

    The Tribunal found the applicant daughter was competent to give oral evidence about her circumstances. It had doubts about the daughter's claim that the father hit her, and the mother's explanation as to why the daughter would have said this, but in the end decided to give the applicant mother the benefit of the doubt. The Tribunal accepted that the applicant daughter had been raised as a Catholic, and it was prepared to accept that the ex-husband's family had problems with the applicant mother when she was in Singapore, and that the husband had became an orthodox Muslim while in Australia, and that this was the time that problems developed in their relationship. It further accepted that he no longer wanted the applicant mother to practise her Hindu beliefs and that the friction in their relationship resulted in harm to the applicant mother and on one occasion the applicant daughter (CB 135.1).

11. In relation to harm in the future the Tribunal had doubts on the evidence before it that the ex-husband/father would wish harm to either of the applicants for any reason, or that he would want to forcibly convert the daughter to Islam. It gave reasons for this (CB 135.4). The Tribunal also had some doubts that the husband's family in Singapore would physically harm the applicants in the future. It said there was no evidence that they had harmed the applicant mother in the past and noted that the problems were as a result of the applicant mother's desire to marry her ex-husband and now that the marriage had been dissolved the source of the problem had been removed. The Tribunal had doubts they would harm the child and it gave reasons (CB 135).

12. Despite having this level of doubt, the Tribunal properly also considered the situation on the basis of what if it was wrong, and that the ex-husband and his family would wish to harm the applicants on return to Singapore. In these circumstances the Tribunal found at CB 135.9 that effective state protection would be available to the applicants and that this would remove any real chance of persecution. The Tribunal looked at independent evidence which showed that Singapore has a legal system, judiciary and police service which offers effective and more than adequate protection. The Tribunal's record that it put the substance of this information to the applicant mother at the hearing before it is at CB 126.3:

    “The Tribunal referred the applicant mother to information it had consulted which indicated that Singapore was a country with a functioning and efficient legal system and police system which she could access to deal with problems relating to custody and the upbringing of her daughter and any crimes committed against them.”

13. The Tribunal's record shows the applicant mother responded, and I note there is no evidence before me to contradict the Tribunal's account in this regard. The applicant mother's response was that the authorities would say it was “a family issue”. The Tribunal's record shows that the Tribunal further discussed this issue with the applicant mother as set out at CB 126.5. The Tribunal also took into account the claim in the protection visa application that the authorities in Singapore would not protect the applicants because it was a “religious matter”. The Tribunal preferred the independent evidence that effective state protection is available in reality to the applicants, over the applicant mother's assertion that reality differs with the law. The Tribunal had also raised this issue when it made its request for additional information via a letter to the applicants dated 27 February 2004. At CB 123.4 the Tribunal records at item 15 the information that it put to be applicants that Islam is a minority religion in Singapore and that the Singaporean Constitution provided for freedom of religion, and that there was an efficient police force which would provide citizens with effective protection and would be supported by a judicial system which had an efficient judicial process. The Tribunal specifically sought comments from the applicants in relation to why the applicant daughter would not be free to practise her religion in Singapore and why the applicant mother and daughter could not obtain protection from the authorities against harm from the ex-husband/father and his family. In this context the applicants responded that there was a difference between what the law provides for and what actually happens in reality.

14. The applicants’ first complaint is that the Tribunal failed to consider the specific circumstances of the applicants. In the amended application this is particularised as the Tribunal ignoring the applicants’ evidence as to why the ex-husband had not tried to convert the applicant daughter to Islam in the past. At the hearing before me the applicant mother said that the Tribunal failed to consider that the reason he did not convert the child into Islam was that he himself was unlawfully in Australia, and that he feared that the applicant would “dob him in” to the Australian authorities and that she had something on him and that this caused him to not take any action in relation to the child’s conversion to Islam. It is clear that the Tribunal relied on the applicants’ evidence to the Tribunal that the ex-husband and father did not attempt to instruct his daughter in Islam or to familiarise her with the religion in any way. The Tribunal noted that the oral evidence of both the mother and daughter, which is unchallenged before me, was that he took very little interest in her at all. In the protection visa application in relation to the applicant daughter, the claims were that the father was not aware of her conversion to Catholicism on 11 June 2000, and that the fear was that if she went to Singapore her father may convert her to Islam and that his family would harm her. This also appears to be the claim made in oral evidence given to the Tribunal (CB 125.6) where the claims of fear of harm were again focused on what would happen on return to Singapore. In relation therefore to what had happened in the past the Tribunal clearly, and properly, assessed the risk of harm in the future by looking in part to what had occurred or not occurred in the past.

15. The applicants’ complaint now that the Tribunal doubted that the ex-husband and father would want to forcibly convert his daughter to Islam were she to go to Singapore, was made by ignoring the applicants’ evidence as set out at CB 125 as to the husband's reasons for not having attempted to do so in the past. The applicants are reported by the Tribunal as having said that he was too busy, and that he had on one occasion actually harmed the daughter (though not specifically in relation to any attempt to convert her to Islam) and made a reference that by that time he wanted to introduce her to Islam, she had cut herself off from him. It is clear that the Tribunal was well aware of the applicants’ claims in this regard and it recorded those claims. The Tribunal looked at the applicants’ statements that the father had not tried to convert the applicant daughter in the past, and then gave its reasons as to why it doubted that he would attempt to do so in the future. To the extent that the applicants’ claims in this regard were based on past events, the Tribunal found the past harm seems to have resulted from marital tensions and that the father had not attempted to instruct his daughter in Islam or familiarise her with the religion. This is not disputed by the applicants now. Based on the applicants’ evidence the Tribunal records that the father took very little interest in her at all. The applicants’ claim now that in expressing and reaching this finding of doubt, that the Tribunal did not specifically refer to the applicants explanation cannot succeed as the Tribunal clearly records on the basis of the applicants’ admission (in for example the amended application) that it knew of the applicants’ specific explanation for the ex-husband/father’s failure to introduce his daughter to Islam. The Tribunal's record shows a comprehensive reporting of the applicants’ claims and I can see no other instance of the Tribunal's ignoring any other of the applicants’ claims nor was any other instance asserted before me.

1. In any event, despite the Tribunal's finding in relation to harm feared in the future (CB 125.6), and the level of doubt in this regard, the Tribunal properly went on to consider that if it were wrong in making these findings, including the finding involving the specific instance complained of by way of the amended application, the Tribunal found that effective state protection would be available to the applicants in Singapore. The complaint now is also that the Tribunal erred in its approach to considering the issue of state protection because it stated that nation states are not required to provide absolute protection against persecution and that in the present case the level of state protection was not sufficient to prevent the applicants from being refugees.

2. In relation to the applicants’ complaint regarding the level of protection, it is very clear, as Mr. Bird for the respondent Minister submitted, that the relevant state is not required to guarantee the safety of its citizens from harm caused by private non-state persons. In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 Gleeson CJ. Heydon J. and Hayne J. observed in a joint judgement at [26] that:

   “No country can guarantee that it citizens will at all times, and in all circumstances, be free from violence".

   Kirby J. in the same case stated at [117] that:

   “The Convention does not require or imply the elimination of all risks of harm…It posits a reasonable level of protection, not a perfect one"

   The applicants’ complaint before me now, that in their particular case the level of state protection was not sufficient to prevent them being refugees, and that there was a difference between what was stated in the information available to the Tribunal and what was the reality, has to be seen in light of what Gleeson CJ, Hayne and Heydon JJ. said in Respondent 152 at [27] to [29]. That is, that what is required is that the relevant country provides a level of protection required by international standards. While the joint judgement did not consider what those standards might be it did make reference at [26] to a country’s obligation:

   “to take reasonable measures to protect the lives and safety of its citizens”

   And that this would include:

   “an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system"

   Their Honours supported the use of international standards as a benchmark for adequate protection levels. In this regard see [27] to [28] and [117] per Kirby J.

3. In the case before me the Tribunal did have before it independent evidence (CB 132 to CB 133: “state protection”) that Singapore has a legal system, judiciary and police service which offers effective and more than adequate protection. Other than a mere assertion, the applicants did not put before the Tribunal any evidence to contradict the independent evidence on which the Tribunal relied. The applicants were put on notice of the relevant information available to the Tribunal by the Tribunal's letter of 27 February 2004 (CB 66- item 15) and the Tribunal records that it referred the applicant mother at the hearing before it to relevant information it had considered in this regard (CB 126.3). The Tribunal's findings in relation to available state protection were clearly open to it on the material available to it. It specifically directed the applicants to the information available to it by way of letter, and discussed the issue with the applicant mother at the hearing before it. The applicants have not been able to show that any alternative material was put before the Tribunal to counter the material on which the Tribunal relied. Nor is there anything before me to show any Khawar v Minister for Immigration and Multicultural Affairs [1999] FCA 1529 type situation where the authorities would tolerate or condone the feared harm caused by private individuals. The applicant mother before me also asserted that she had put to the Tribunal in writing (CB 85.8) that the government would not be able to protect her from harm or serious injury. Clearly however, it was open to the Tribunal to accept the independent information available to it over the mere assertions of the applicant.

4. The applicants did not succeed before the Tribunal because the Tribunal had some level of doubt that the applicants would be harmed by the ex husband/father or his family in the future in Singapore for any Convention related reason, but in any event found that even if it was wrong, effective state protection would be available. All these findings were open to the Tribunal to make on the material before it, and it gave reasons for its findings. I can see no error in what the Tribunal has done, let alone jurisdictional error, and accordingly the application is dismissed.

5. It is clear on what is before me that the application for review of the Tribunal's decision must be dismissed. But it would be remiss of me with respect, not to recommend to the Minister and her advisers that consideration should be given as to whether this is an appropriate case for the Minister to exercise her discretion, and to consider permitting the applicant daughter, and by clear association and extension her mother, to remain permanently in Australia. I ask that the Minister will not see my comments as presumptuous or in any way inappropriate, but I would regard as compelling circumstances, the situation of a nine year old girl born in Australia, who became, as the Tribunal found, stateless through no fault or action of her own, and is part of the Australian community as shown for example by her attendance for some years at the St Vincent's School in Ashfield. It is also relevant to note that by virtue of s.10 of the Australian Citizenship Act 1948, a person born on or after 20 August 1986, and notwithstanding the fact that neither parent was an Australian citizen or permanent resident at the time of birth, may attain such citizenship at the age of 10. The applicant daughter, born in 1995 has lived all her life in Australia and is nearly 10 years old. It would appear that these are compelling circumstances and by extension that the applicant daughter's mother would be caught by these circumstances given her critical relationship to this is young child.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  26 August 2005