SZFUO and Ors v Minister for Immigration; and Anor - [2005] FMCA 1704

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUO & ORS v MINISTER FOR IMMIGRATION
& ANOR

[2005] FMCA 1704

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – first applicant claims persecution by father–in–law in Korea on the basis of religion, namely, Jehovah’s witnesses – second applicant claims persecution by authorities as result of religious conversion that compels the second applicant to refuse military service.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474

Applicant Av Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Okere v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 87 FCR 112
Perampalanam v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 84 FCR 274
Rajaratnam v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 111
Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairsv Respondents S152/2003 [2004] HCA 18
Chen Shi Hai v Minister for Immigration and Multicultural and Indigenous Affairs (2000) HCA 19
Applicant N403 of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1088

First Applicant:

SZFUO

Second Applicant:

SZFUP

Third Applicant:

SZFUQ

Fourth Applicant:

SZFUR

Fifth Applicant:

SZFUS

Sixth Applicant:

SZFUT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG539 of 2005

Judgment of:

Emmett FM

Hearing date:

8 November 2005

Date of Last Submission:

8 November 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Mr N. McNally, Parish Patience Lawyers

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Ms B. Griffin, Australian Government Solicitor

ORDERS

That the applications before this Court are dismissed.
That the Applicants pay the Respondent’s costs in an amount of $6808.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG539 of 2005

SZFUO

First Applicant

SZFUP

Second Applicant

SZFUQ

Third Applicant

SZFUR

Fourth Applicant

SZFUS

Fifth Applicant

SZFUT

Sixth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant protection visas to the applicants.
The applicants are a husband and wife and their 4 children. The first applicant is the wife and the second applicant is the husband. The third and fourth applicants, were the subject of the original protection visa applications. The two youngest children, the fifth and sixth applicants, were born in Australia after the lodgement of the protection visa applications. The fifth and sixth applicants have been joined to these proceedings on the basis that the Tribunal decision has the effect of extinguishing their right to protection visas as part of the family unit of the first and second applicants. I shall refer to the first applicant as the Applicant Wife and the second applicant as the Applicant Husband.
The first to fourth applicants claim to be citizens of South Korea. The youngest two children are stateless having been born in Australia during their parents’ protection visa application process.
The first to fourth applicants arrived in Australia on 20 January 1995, having departed from Kimpo International Airport in Korea on

19 January 1995, on passports issued in their own names.
On 29 March 1996, the applicants lodged applications for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
The Applicant Husband, in his protection visa application, claimed a fear of persecution in Korea on the basis of his political opinion and support for the pro-labour and democratic movement.
On 16 June 1997, the Delegate of the Minister refused the applications for protection visas on the basis that the applicants are not persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 11 July 1997, the applicants filed an application for review before the Tribunal. On 17 December 1998, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 2 March 2005, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a 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, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The Tribunal proceeding

The Applicant Husband and the Applicant Wife gave oral evidence before the Tribunal on 23 October 1998, with the assistance of a Korean interpreter.
In a statement in support of her application before the Tribunal, the Applicant Wife claimed to have been severely harassed by her father-in-law who lived with her and the Applicant Husband. The Applicant Wife claimed that her father-in-law followed her everywhere, stole money from her and beat her. In that statement, the Applicant Wife does not make any claim that the mistreatment of her by her father-in-law had anything to do with her religion, being Jehovah’s Witness. Nor does she assert any attempt by her to contact police for her protection.
However, in a statement lodged by her in support of her application for a protection visa, the Applicant Wife claimed to have been persecuted by her father-in-law “due to my religious belief as one of Jehovah’s Witnesses.”
The Applicant Husband claimed fear of persecution by the authorities in the event he was to return to Korea because he would be forced to participate in military service. He claimed that he would have to refuse to participate by reason of being a Jehovah’s Witness.
Both Applicants claim to fear persecution by reason of their religion and claimed that their children would also face problems, were they to return to Korea.
The Tribunal noted that it put to the Applicants that, independent evidence before it, disclosed that Jehovah’s Witnesses in Korea were legally recognised and enjoyed the normal privileges extended to other religions. The Tribunal also noted that, it put to the Applicants that an official of Jehovah’s Witnesses in Seoul had confirmed that there was “absolutely no discrimination or interference with members of the Jehovah’s witnesses by the Korean authorities.” The Applicant Wife agreed that there was no discrimination by authorities, however, claimed that there was discrimination by “ordinary people.”
The Tribunal noted, that in relation to the father-in-law’s conduct towards the Applicant Wife, it had explained to the Applicant Wife that the conduct was not related to a Convention reason of race, nationality or political opinions. The Tribunal noted that the Applicant Wife said that “she wondered if it might be linked to religion.” The Tribunal stated that it accepted that one reason for the father-in-law’s attitude towards her was the fact that she was a Jehovah’s Witness. However, the Tribunal observed that there was nothing to suggest that the father-in-law was conducting a campaign against Jehovah’s Witnesses by reason of their religion, and that what he had done in relation to the Applicant Wife was in her capacity as and because, she was his daughter-in-law.
In relation to the Applicant Husband’s issue of military service obligations, the Tribunal noted that the Applicant Husband agreed that if he was punished because he refused to fulfil any such obligations, it would not be for his religious convictions, but by reason of a breach of law of general application. The Applicant Husband agreed that he would not be treated differently by reason of his religion from anyone else who declined to undertake such obligations.
The Tribunal accepted the veracity of the claims by both Applicants, but did not consider that they were Convention related. In the course of its reasons, the Tribunal stated:
“While I accept, as I indicated at the hearing, that one reason for her father-in-law’s attitude towards her may have been his opposition to her religion, I do not accept that her father-in-law’s motivation in behaving towards her in the way that he did was the fact that she is a Jehovah’s Witness. There is no indication that he has behaved in this way towards any other Jehovah’s Witness and I consider that this indicates that his motivation arises from the fact that the Applicant wife is his daughter-in-law and he is her father-in-law, rather than from any broader enmity or malignity towards adherence of a religion.” (emphasis added)
The Tribunal went on to refer to the observations of McHugh J in Applicant A& Anor v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 (“Applicant A”), at 354, that “persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State encourages or is or appears to be powerless to prevent that private persecution.”
The Tribunal went on to identify that, if there was a Convention nexus between the father-in-law’s conduct towards his daughter-in-law, then it would be necessary for the Tribunal to consider “whether the government of South Korea was unable or unwilling to prevent the persecution of the Applicant wife by her father-in-law.”
The Tribunal noted that the Applicant Wife stated that she had not reported the father-in-law’s conduct to police, “because in the Korean way of life it was impossible to complain to the police regarding ones father-in-law and because she had not wanted to separate from her husband.” The Tribunal noted that, whatever the Applicant Wife’s reasons for not seeking assistance from the authorities, it did not consider that the authorities would have been powerless to help her if she had sought their assistance. For those reasons, the Tribunal did not accept that the Applicant Wife could not seek the protection of the government of South Korea in respect of the conduct of her father-in-law if she and her family were to return to South Korea now, or in the foreseeable future.
The Tribunal further considered the position of the Applicants’ children were they to return to Korea. The Tribunal accepted that being Jehovah’s Witnesses may cause them to suffer some ostracism in South Korea, but it did not accept that they would be segregated at school by reason of their religion. The Tribunal referred particularly to independent information before it that disclosed that there is no discrimination or interference with Jehovah’s Witnesses by the authorities, and any ostracism of Jehovah’s Witnesses is not encouraged by the government of South Korea. For those reasons, the Tribunal concluded that such conduct does not amount to persecution for the purposes of the Convention.
In relation to the Applicant Husband’s claim of persecution, by reason of his refusal based on religious grounds to fulfil any defence obligations, the Tribunal found that any punishment would be for breach of a law of general application and that there was no evidence before it to suggest that the Applicant would be treated differently or punished more severely for such a breach because of his religion.
The Tribunal considered whether or not the Applicants constituted a particular social group for the purposes of the Convention, and concluded that they did not.
The Tribunal concluded that it was not satisfied that any of the applicants had a well-founded fear of persecution for a Convention reason if they were to return to Korea.

The claims before this Court

The applicants were represented by Counsel before this Court.
Leave was granted to the applicants to file an amended application at the commencement of the hearing.
Counsel identified the grounds for this Court’s consideration as follows:
i)That the Tribunal erred in the way it treated the nexus between the Applicant Wife’s religion and the persecution she feared.
ii)That the Tribunal erred in concluding that the Applicant Wife could have sought State protection.
iii)That the Tribunal erred in failing to find a Convention nexus between the Applicant Husband’s religion and the treatment he may receive for failing to undertake military service by reason of becoming a Jehovah’s Witness.
Counsel confirmed that those grounds encapsulated the grounds upon which the Applicants relied before this Court. Counsel conceded that unless the Applicant Wife succeeded in both grounds one and two, that the application must fail.
The third ground and its outcome is discreet and stands alone. I propose to deal with each of the grounds separately.

Ground One – Convention nexus between the Applicant wife’s religion and persecution she feared

Counsel for the Applicant Wife contended that the Tribunal erred in drawing a distinction between the father-in-law’s “attitude” to the Applicant Wife and his “motivation”, as reflected in the Tribunal decision as quoted above at paragraph 23 of these reasons. Counsel for the Applicant Wife submitted that “attitude” is an aspect of “motivation” and the two notions cannot be separated. Counsel submitted that there is an inconsistency in the finding by the Tribunal that it accepted that one reason for the father-in-law’s attitude towards the Applicant Wife may have been his opposition to her religion, but at the same time did not accept that the father-in-law was motivated to behave towards the Applicant Wife as he did because she is Jehovah’s Witness.
Counsel for the Applicant Wife contends that those two statements are inconsistent and that there is no relevant distinction between the father-in-law’s “attitude” and his “motivation”. In other words, Counsel for the Applicant Wife contends that, if the Tribunal accepts that the father-in-law’s attitude toward his daughter-in-law, may have been because of opposition by reason of her religion, then it must be that, part of the father-in-law’s motivation for his conduct was the fact that she is a Jehovah’s Witness.
Counsel for the Applicant Wife referred the Court to the definitions, in the New Oxford Dictionary of English, of “attitude” as “settled way of thinking or feeling about someone or something, typically one that is reflected in a person’s behaviour.” (emphasis added). The same dictionary defines “motivation” as “the reason or reasons one has for acting or behaving in a particular way.” Both definitions do refer to behaviour.
The First Respondent submits that it is clear that the Tribunal did not find that any part of any reason for the father-in-law’s conduct towards the Applicant Wife was for any reason other than the fact that she was his daughter-in-law.
Without doubt, the language used by the Tribunal in its finding is unhelpful. However, in accordance with the authorities, the Court must give the Tribunal decision a beneficial construction and not approach its decision with an eye keenly attuned to error. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]). The Court is to overlook looseness of language in construing a decision of the Tribunal.
I am not convinced that mere looseness of language is sufficient to overcome the fact that the Tribunal appears to have made a positive finding that one reason for the father-in-law’s “attitude” towards the Applicant Wife may have been his opposition to her religion. To the extent that attitude included the notion of a way of thinking or feeling about someone that is reflected in a person’s behaviour, it is difficult to reconcile such a finding with the First Respondent’s contention.
In reply, following the submissions by Counsel for the First Respondent, Counsel for the Applicant Wife further submitted that the Tribunal erred in failing to consider whether a combination of motivation for the conduct of the father-in-law involving both the fact that she was his daughter-in-law and the fact that she was a Jehovah’s Witness was sufficient to identify a Convention nexus.
Counsel for the Applicants referred to Okere v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 157 ALR 678 at 684, in which Branson J found that persons who have a well-founded fear of persecution which is motivated not directly by reason, for example, of their religion, but only “indirectly” by reason of their religion, are capable of establishing a Convention nexus. Branson J referred to the possibility of the existence of a dichotomy in the reasons for persecution upon the facts of any particular case.
Further, the authorities in Perampalanam v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 84 FCR 274 at 282-283 and Rajaratnam v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 111 at [42] refer to the notion of dual motivation where there is evidence before a Tribunal to lead to that conclusion.
In the case before this Court, the only evidence relating to the motivation of the father-in-law for his conduct towards his daughter-in-law arising from her religion is from the Applicant Wife. However, the Tribunal appears to have accepted that evidence and found that one reason for the father-in-law’s attitude to the daughter-in-law may have been his opposition to her religion. In those circumstances, I am persuaded that there may be a Convention nexus.

Ground 2 – State protection

However, in considering whether the Applicant Wife has a fear that is well-founded, the Tribunal must consider whether the Applicant Wife is unable or, owing to such fear, is unwilling to avail herself of the protection of the authorities in South Korea. The Tribunal found that the authorities would not have been powerless to help the Applicant Wife if she had sought their assistance. The Tribunal noted that the Applicant Wife agreed that there is no discrimination or interference with members of the Jehovah’s Witnesses by the Korean authorities. There was no claim by the Applicants before the Tribunal that the police would not have been able to offer protection had it been sought. Rather, the Applicant Wife’s complaint was the Korean way of life made it impossible to complain to police regarding one’s father-in-law in circumstances where she wished to remain with her husband. The Tribunal identified as the relevant test “whether the government of South Korea was unable or unwilling to prevent the persecution of the Applicant’s wife by her father-in-law.” However, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, defines a refugee as a person who, relevantly, owing to a well-founded fear of being persecuted for religion, is outside of her country of nationality and is unable, or owing to such fear is unwilling to avail herself of the protection of that country.

Counsel for the Applicants contended that the Tribunal, in its decision, appears to have confined its consideration as to the inability or unwillingness of the authorities to protect the Applicant Wife only. It does not appear to have considered the Applicant Wife’s claim that she was unable or unwilling, owing to her fear, to avail herself of the existence of the protection. (Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1).
The First Respondent contended that the Applicant Wife had conceded before the Delegate that the problem she had with her father-in-law was a personal problem and that it was only as an after thought that she asserted that her father-in-law’s motivation was religion. However, the Applicants were not represented before the Tribunal. Further, the Applicant Wife clearly stated in her statement in support of her protection visa application that her mistreatment by her father-in-law was motivated by the fact that she was a Jehovah’s Witness.
I do not accept the First Respondent’s contention in the circumstances, and cannot overlook the Tribunal’s findings of looseness of language even with a beneficial construction of the decision as a whole. The two findings of the Tribunal are simply inconsistent and reasonably give rise to the possible existence of a Convention nexus between the Applicant Wife’s religion and the mistreatment by her father-in-law.
In relation to State protection, the First Respondent contended, and I accept, that the Tribunal was referring in its decision as to the necessity to consider whether the government of South Korea was unable or unwilling to prevent the persecution of the Applicant’s wife by her father-in-law, to the existence of that requirement in relation to persecution by private individuals. Therefore, the First Respondent contended that the Tribunal did not misunderstand the test it was to apply, nor did it confuse it with the Convention definition of refugee. Rather, it was simply applying or considering the test referred to by McHugh J in Applicant A. The First Respondent referred the Court to Minister for Immigration and Multicultural and Indigenous Affairsv Respondents S152/2003 [2004] HCA 18 (“Respondents S152/2003) in which the High Court endorsed the notion, at [23], that for conduct by non State actors to amount to persecution in the Convention sense, the conduct needed to be officially tolerated or uncontrollable. There was no evidence before the Tribunal to suggest that was the case. Indeed the Tribunal referred to independent information that led it to conclude that there was “absolutely no discrimination or interference with member of the Jehovah’s Witnesses by the Korean authorities.”
In those circumstances, it is apparent that the finding of the Tribunal that the Korean authorities were neither unable nor unwilling to assist the Applicant Wife, had she sought their protection, was open to the Tribunal on the evidence before it. Accordingly, the requirements as identified by McHugh J and confirmed in Respondents S152/2003 are not made out. For those reasons, grounds (i) and (ii) are rejected.

Ground 3 – The Applicant Husband’s military service

The Applicants contend that a Convention nexus exists between the possibility of punishment amounting to persecution of the Applicant Husband by the authorities, in the event that he was to refuse to comply with his military obligations, due to the fact that his refusal is based on his religious beliefs and that his religion forbids the fulfilment of that obligation. The Applicant Husband contends that, whilst the law requiring military obligation may be a law of general application, laws of general application may impact differently on different people and thus operate in a discriminatory way. Counsel for the Applicant Husband referred to Chen Shi Hai v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 201 HCA 19 (“Chen Shi Hai”) in support of that submission and to Applicant N403 of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1088 (“Applicant N403”). Counsel for the Applicants referred the Court to Chen Shi Hai at [19] and [21] as support for the submission that whilst the law requiring military service in South Korea may be a law of general application, it operated discriminatorily in respect of the Applicant Husband where his faith as a Jehovah’s Witness would compel him to refuse to undertake in any military service.
Counsel for the Applicants also referred the Court to Applicant N403 at [21], where Branson J held that the attitude to war of a conscientious objector is capable of being described as political opinion. Such a notion would operate in a case where the cause of imprisonment is the political opinion, manifesting in a conscientious belief, and not merely the failure to comply with a law of general application. Branson J stated “such a common sense resolution is not satisfied by seeking to distinguish between a primary and secondary cause where both are linked.” (Applicant N403 at [24]). The Applicant Husband contended that the issue was whether the treatment of the Applicant Husband under a law of general application in South Korea would have a “differential effect on him for reason of his religion.” The Applicant Husband contended that the Tribunal failed to ask itself the relevant question and thereby committed jurisdictional error.
The Applicants themselves agreed that the law requiring military service, which is a law of general application, would not operate against the Applicant Husband in a way that was discriminatory. In those circumstances, there was no evidence before the Tribunal to suggest that the Applicant Husband would be treated differently or punished more severely for a refusal to comply with the law because of his religion. I do not accept that the Tribunal, in stating that “nothing in the evidence before me to suggest that the Applicant will be treated differently, or punished more severely, for such a breach because of his religion.”, was demonstrative of a misapplication or misunderstanding by the Tribunal of the issues, in that it was requiring that there be evidence of more severe punishment or different treatment. Rather, the Tribunal was simply noting that was no evidence of that fact.
Certainly there was nothing before the Tribunal to suggest that the law of general application in any way targeted Jehovah’s Witnesses. Further there was no evidence about the relevant tenets of Jehovah’s Witnesses to establish the relevant tenets of that religion.
In the circumstances, it was open to the Tribunal on the material before it to find that any punishment will be for a breach of law of general application rather than persecution. That is a finding of fact with which this Court cannot interfere.
Accordingly this ground is rejected.

Conclusion

In the circumstances I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicants and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before this Court that is capable of satisfying the Court that there is jurisdictional error.
In the circumstances, the Tribunal’s decision is not effected by error. The decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the applications by each of the applicants before this Court are dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 11 November 2005