SZGCL v Minister for Immigration - [2006] FMCA 1173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1173

MIGRATION – RRT decision – Jordanian fearing religious and political persecution and a family vendetta – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.91S, 91S(a), 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65
STBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1587
W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398

Applicant:

SZGCL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG961 of 2005

Judgment of:

Smith FM

Hearing date:

2 August 2006

Delivered at:

Sydney

Delivered on:

2 August 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Cox

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG961 of 2005

SZGCL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 19 April 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2005 and handed down on 22 March 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The applicant came to Australia in November 2003 on a temporary spouse visa. The circumstances in which he was unable to obtain permanency in relation to that visa are not shown in the evidence before me. On 25 May 2004, or around that date, he lodged an application for a protection visa without any apparent assistance.
The applicant’s claims to seek protection in Australia against return to his country of nationality, Jordan, were explained in handwritten passages in the application form, and in an attached statement. In short, the applicant claimed that he was a Christian by religion, of the Roman Catholic denomination. He claimed that his family had experienced difficulties following the death of his father from injuries received when he was innocently caught up in a conflict in 1970 between the Jordanian army and the Palestinian militias.
He referred to many kinds of discrimination which occurred in Jordan, and said: “the ugliest kind of discrimination is between Muslims and Christians”. He suggested that this had impeded his education and said: “on the governmental level we face discrimination in public jobs, university scholarships, government support, etc, while on the public level discrimination is over everything”. He also referred to receiving warnings from the Jordanian Intelligence Department as a result of organising “some lessons about Christianity to be given to young Christian kids at the church’s hall”.
The applicant also claimed a fear of return to Jordan as a result of a situation, in which members of his family were threatened as a result of actions of his brother. His brother had “been involved with a woman who committed suicide”. Her family blamed the brother for the death, and the brother was forced to “run away” to South Africa. The applicant said: “the dead woman’s family is very influential and they had the police to come after us and call us so many times and we’ve been under a lot of pursue and harassment from both police and the woman’s family over that problem. This is why I can’t go back”.
In answer to the question in the application form “what do you fear may happen to you if you go back to that country?”, the applicant said:
1.won’t find a job neither with the public or private sectors, because they’re asking for Bachelor degree and Masters holders.
2.will live in poverty and suffering.
3.won’t have a chance to complete my studies and pursue a career.
4.will have to live in a society of extremist moslims and terror supporting people, and face discrimination again for everyday of my life.
5.face harassment by people of the intelligence agency who are seeking any mistake and will be watching any movement I do.
6.will face people asking revenge – people who vowed never to give up and who have been waiting for long time. I’m really worried about that because if they can’t reach my brother they will turn to any member of the family.
A delegate considered the applicant’s claims and refused the application on 10 June 2004. The applicant then appealed to the Tribunal on 6 July 2004.
He attended a hearing to which he was invited on 15 December 2004. At the hearing, he presented a statement from his brother in South Africa inviting the Tribunal to contact him “if you need any further details”. The applicant also told the Tribunal that his brother could give evidence, saying: “he’ll testify to you and assure you exactly what I said”. However, the Tribunal apparently decided it unnecessary to contact the applicant’s brother. Although it did not explain this, I consider that it was probably because the Tribunal accepted the truth of the applicant’s claims about the circumstances of the family following upon the brother’s flight to South Africa.
The applicant does not complain to the Court about the failure of the Tribunal to interview the brother, and I accept submissions by the Minister’s solicitor that no procedural error in this respect is shown on the evidence before me (he cited W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [44]; STBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1587 at [57]; and SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65 at [34]).
In its statement of reasons, the Tribunal referred to evidence given by the applicant at the hearing in relation to his coming to the attention of intelligence office after organising Sunday school classes. The applicant said that this had occurred “in or about 1997”. The Tribunal gave the following description of the applicant’s evidence about his experiences:
The Tribunal asked the applicant what the intelligence officers did in response to his organising the classes. He was asked to go to their offices in [location], and they tried to tell the applicant that he was doing “missionary” activities and he should stop because it is against the law.
The Tribunal asked the applicant if he was ever charged with any “crime” for organising these classes. The applicant stated that he was never charged.
The Tribunal asked the applicant on how many occasions he was called in for questioning in relation to these classes. The applicant was questioned on the one occasion regarding these specific classes. The applicant stated that he had to visit the intelligence office. The applicant stated that he had to visit on three occasions, the last time being in or around 2000. The applicant stated that the interviews lasted a few minutes. The Tribunal asked the applicant if he was ever physically mistreated. The applicant stated that he was not. The Tribunal asked if he was threatened. The applicant stated that he was not.
The Tribunal said that it discussed with the applicant the general situation of the Christian minority in Jordan, and put to the applicant various passages from a US State Department report from 2004. The applicant criticised the rosy picture presented in this report, which suggested that “in general, Christians do not suffer discrimination”. The applicant has again today criticised the Tribunal’s reliance upon that report. However, the applicant did not present to the Tribunal any alternative general information about the relevant situation.
The applicant told the Tribunal about his education, his employment as an English teacher and in a jewellery business.
The applicant then gave the Tribunal more information about the circumstances of the brother’s problem. He told the Tribunal that the woman had died from “self‑immolation” after three days in hospital, and that her family had “blamed his brother as being the cause - not for actually doing it”. He told the Tribunal that the brother had been “accused by the authorities of causing her death and he went to court and was sentenced to two years imprisonment and so he fled the country for South Africa. He fled in or about 1998”. The Tribunal recorded the applicant’s further evidence concerning this:
The Tribunal asked if there were any consequences arising from the death of this girl. The applicant stated that he and his family were approached a couple of times by the family and a couple by the police. The applicant stated that this occurred for about three years after he left. The applicant stated that his sister married [an] American citizen and his mother went to the USA in 2001, and another brother went to South Africa in 2003. The Tribunal asked the applicant if anything happened between 2001 and 2003. The applicant stated that he did not have any visits from anyone but he did not feel safe.
The Tribunal noted that the fact that no one approached him in the two years prior to his departure suggests that no one had any on‑going interest in him. The applicant stated that they may have lost interest for a while, but if they saw him they could resume their interest.
The Tribunal noted the letter from the brother “confirming that as a result of his relationship with ‘a woman’ she self‑immolated and he has been blamed with her death”.
The Tribunal then set out a lengthy extract from the US State Department report in relation to religious freedom in Jordan.
Under the heading “Findings and Reasons”, the Tribunal sufficiently identified the applicant’s claims for protection in Australia. It addressed the applicant’s concerns arising from the response of the authorities to his organising Sunday school classes, and made the following assessment:
The Tribunal finds that being questioned by the intelligence authorities may have been an unpleasant and disconcerting experience for the applicant. However, pursuant to Section 91R of the Migration Act, it does not consider that such treatment amounts to “serious punishment or penalty” or “significant detriment or disadvantage” (see also the comments made by McHugh J. in Chan’s Case). Further, the Tribunal is satisfied, on the evidence before it, that apart from the incidents described by the applicant (mentioned above) he encountered no further problems with the intelligence authorities arising from his teaching of Sunday School. In light of this evidence, the Tribunal finds that the applicant’s fear of harm in this regard is “remote” and “insubstantial” – in other words, his fear of harm, by the Jordanian authorities in the reasonably foreseeable future is not well founded.
In my opinion, this finding reveals no misconception of law providing jurisdictional error. I consider it was open to the Tribunal on the evidence before it.
The Tribunal then assessed the applicant’s general concerns about discrimination as a Christian living in Jordan. It noted the applicant’s personal history, and also the independent evidence, as to which it concluded: “In summation, relations between Muslims and Christians in the country generally are amicable and in general Christians do not suffer discrimination”. The Tribunal concluded:
The Tribunal finds that in light of the applicant’s own evidence which suggested an absence of discriminat[ion] against him either in education, or employment, and the fact that there is no evidence to suggest that he was ever prohibited from earning a livelihood, and further in light of the independent evidence, the Tribunal cannot be satisfied that the applicant has faced discrimination amounting to persecution for the purposes of the Convention in the past, nor can it be satisfied that he would face harmful treatment in the reasonably foreseeable future for reasons of his religion.
In relation to the applicant’s claims of fear from the family of the deceased woman, the Tribunal’s reasoning is not clearly expressed. However in my opinion it can be understood in the context of s.91S of the Migration Act. This provides:
91SMembership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The Tribunal attempted to paraphrase the effect of this inelegant section, by saying: “the effect of s91S is that the Tribunal must disregard the fear of persecution of a person such as the applicant whose fear arises because he or she is the relative of a person targeted for a non‑Convention reason whose fear of persecution must be disregarded”. I do not consider that that reflects a material misunderstanding of the effect of the section in its application to the present facts.
The Tribunal said that it was satisfied that the applicant’s family could be considered to be a “particular social group under the Convention”, however, it also found “that the motivation of the girlfriend’s family to harm the applicant or any other member of the applicant’s family is revenge for a perceived murder committed by the brother of the applicant”. The Tribunal said: “revenge for any criminal act, including murder, is not a reason for harm which comes under the Refugees Convention unless it can be linked to a Convention reason”.
I consider that statement is correct. The Tribunal then concluded that it was required by s.91S to “disregard the applicant’s claims in regard to his brother’s involvement with a woman who suicided because he ended the relationship, and the problems arising from that involvement and that suicide”. I consider that implicit in that finding is a finding that the feared acts of revenge on the brother could not be “linked to a Convention reason”, so that s.91S(a) applied. I also consider, on the evidence given to the Tribunal by the applicant which it accepted, that this was a conclusion which was open to it as a matter of law.
The Tribunal also addressed a claim which might have been implicitly made by the applicant: that Jordanian authorities had an interest in the applicant for a Convention reason of perceived political opposition or otherwise. The Tribunal said:
With regard to the applicant’s claims that the authorities have been to the applicant’s home and asked about the applicant’s brother, given that his brother is a fugitive from the law and that he has been sentenced to imprisonment, the Tribunal cannot be satisfied that these visits amount to persecution for the purposes of the Convention. In any case, the applicant’s evidence at hearing was to the effect that he had no visits by the authorities in the two years prior to his departure from Jordan and that he exited the country without difficulty, suggesting that there is no on‑going adverse interest by the authorities in the applicant.
The Tribunal then concluded:
On the evidence before the Tribunal, it cannot be satisfied that the applicant has a well founded fear of harm for reason of his religion, or any other Convention reason in the reasonably foreseeable future.
I can find no jurisdictional error affecting any part of the Tribunal’s reasoning in this case.
The applicant has not been assisted by a lawyer in this Court, although he has received a referral to a member of the free legal panel. His original application contained three grounds:
1.I believe I’ve been misunderstood in some of my comments and replies during the interview with Ms Morris [the Tribunal member].
2.I believe the International Religions Freedom Report 2004 of which Ms Morris referred to as an independent evidence is written by people who sit down reading law books and the constitution of Jordan which is totally different from what life in Jordan is. They never see people they just judge by reading.
If you read the constitution of former U.S.S.R. you will get the idea that this was the best country to live in but it wasn’t.
3.I though[t] some of my written evidence I provided earlier which is in my immigration file would be considered.
The first paragraph, which complains of being misunderstood in the course of the hearing, is not able to be addressed in the absence of a transcript of the hearing, and has not been elaborated by the applicant in any written or oral submissions.
The second complaint about the Tribunal’s reliance on the US State Department report was repeated by the applicant to me today. I do not think his complaints amount to more than a difference in opinion with the Tribunal as to the assessments in that report which were accepted by the Tribunal. In my opinion it was open to the Tribunal to give the weight it gave to that report.
The complaint in paragraph 3 that some of his evidence was not considered has not been elaborated in written or oral submissions. On my examination of the material I have not been able to identify any material element in the applicant’s claims which was not considered by the Tribunal.
The applicant filed an amended application, but the grounds set out in that document amount to no more than disagreement with the factual assessments of the Tribunal. However, as I have explained to the applicant, it was the Tribunal’s legal duty to arrive at an assessment of his evidence against the legal definition of a refugee, and I have not been able to conclude that its assessment was not open to it on the material.
For the above reasons I consider that the Tribunal’s decision was unaffected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 August 2006