SZNFS v Minister for Immigration

[2009] FMCA 359

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 359

MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no failure to consider an integer of the applicant’s claims – findings open to the Tribunal – Tribunal did not misunderstand the applicant’s claims – applicant wife not a review applicant before the Tribunal – no failure to consider independent country information – no failure to consider “serious harm” – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.48A, 48B, 91R

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437

Applicant: SZNFS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 293 of 2009

Judgment of: Nicholls FM

Hearing date: 16 April 2009

Date of Last Submission: 16 April 2009

Delivered at: Sydney

Delivered on: 24 April 2009

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr J.A.C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 10 February 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 293 of 2009

SZNFS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 10 February 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 January 2009 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following may be ascertained.

2. The applicant is a citizen of Indonesia who arrived in Australia on 29 April 2008 (see CB 14 and CB 18).  Both he and his wife (who is not an applicant before the Court) applied for protection visas on 7 August 2008 (CB 1 to CB 37).  His wife applied as a dependent member of his family (CB 31).

3. The applicant’s claims were that he and his wife were of different religions.  The applicant being Muslim and his wife a Christian.  He claimed that the relevant law in Indonesia prohibited interfaith marriages and that they could not be “declared” husband and wife. [They subsequently married after arrival in Australia.]

4. On 8 August 2008 an employee of the first respondent’s Department wrote to the applicant noting that the applicant’s wife’s application as a member of his family unit was invalid as she had previously applied for, and had been refused, a protection visa. Pursuant to s.48A of the Act she was therefore prevented from making any further protection visa applications. Some initial consideration appeared to have been given to the lifting of the “s.48A bar”. But the applicant’s wife was found not to meet the relevant guidelines, and the matter was not referred to the Minister for further consideration pursuant to s.48B of the Act (CB 43).

5. On 25 September 2008 the Minister’s delegate refused the applicant’s application for a protection visa (CB 48 to CB 62).

The Tribunal

1. The applicant applied for review by the Tribunal on 20 October 2008 (CB 66 to CB 69).  He was invited to, and subsequently attended, a hearing before the Tribunal on 9 December 2008 (CB 77).  On 23 December 2008 the applicant made written submissions to the Tribunal (CB 110 to CB 141 with annexures).

2. The Tribunal understood the applicant’s claims to be:

   (1)The applicant and his wife, being of different faiths, were unable to legally marry in Indonesia because of the provisions of the relevant marriage law.

   (2)If they were to have any children they would not be able to be registered.

   (3)The applicant and his wife would face resentment from their family who would seek to separate them.  There was no “physical oppression”.  But there would be “psychological pressure” from their families.

   (4)The “sole” issue if they were to return “would be to do with their families”.

   (5)He had been considering converting to Christianity in Australia.

Hearing Before the Court

1. At the hearing the applicant appeared unrepresented.  He was assisted by an interpreter in the Indonesian language.  Mr J A C Potts of Counsel appeared for the first respondent.

2. The applicant was granted leave to file an amended application and to file and serve his affidavit of 14 April 2009 attaching a transcript of the hearing before the Tribunal.  Mr Potts made objection as to the form of the affidavit, but no objection was taken to the transcript being taken into evidence before the Court.

3. The applicant explained that the one ground in the amended application was to be taken as a ground additional to those appearing in his originating application.  The Court also had before it the Minister’s response, and written submissions drafted by Counsel on behalf of the Minister.

4. In all, therefore, the applicant put forward the following grounds:

   “1.The Refugee Review Tribunal (the Tribunal) misunderstood my claim.

   2.The Tribunal failed to consider my wife’s claims.

   3.The Tribunal failed to take into consideration independent country information and ignored evidence given.

   4.The Tribunal ignored the serious harm suffered pursuant to s.91R of the Act.”

   [No particulars whatsoever were provided.]

5. The sole ground in the amended application, with particulars, is:

   “Ground one.

   1.The Tribunal failed to consider an integer of the Applicant’s case, failing to consider the real chance that the Applicant would convert to Christianity from Islam, thus becoming apostate.

   Particulars.

   1.1The evidence, which was not rejected by the Tribunal, was that the Applicant was a regular attendee at a Christian Church (RD151.7 and 151.22), that he was considering his faith, and that were he to convert, he would let his religion be known (RD155.11).

   1.2This raised the question of whether or not apostates in Indonesia were at risk of persecution (in relation to which the Tribunal had evidence before it: RD54, reference 18, summarised at RD60.13, which was before the Tribunal; RD150, para 19).”

6. The applicant submitted to the Court

   (1)“Something” was missed by the Tribunal.  He explained that the Tribunal did not understand that once he became a Christian he would be subject to persecution if he were to return to Indonesia.  (I saw this as going to the issue raised by the ground in the amended application.)

   (2)He had told the truth to the Tribunal, and he gave the Tribunal the account of his considering conversion to Christianity (again, relevant to the ground in the amended application).

   (3)He referred to paragraph 11 of the respondent’s written submissions, and with reference to Article 2(1) of the Indonesian Marriage Law (No.1 of 1974).  In spite of this law, the Tribunal accepted that there had been successful interfaith marriages in Indonesia.  The Tribunal therefore misunderstood the effect of this law.

   (4)The applicant married his wife in Australia because they could not marry in Indonesia.  He was close to a Christian community here and there was a high risk of harm from Muslims in Indonesia if he were to return as a Christian.  He emphasised that he had “mentioned to the Tribunal” that “the family” would “isolate us”.  He had given no thought to converting to Christianity in Indonesia.  He and his wife came to Australia to be married, and to have the marriage recognised, and it that it was safer for them here.

Ground One (Amended Application): Failure to Consider an Integer of the Claims

1. It is convenient to deal first with the ground in the amended application.  This ground asserts that the Tribunal failed to consider an integer of the applicant’s claims.  That is, that it failed to consider the real chance that the applicant would convert to Christianity from Islam, and thus become an apostate if he were to return to Indonesia where he would presumably then suffer persecutory harm because of this.

2. In conducting the review the Tribunal is of course required to consider an applicant’s claims and each integer of those claims.  However the Tribunal is not required to deal with a case not stated by an applicant or not arising from the material put before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [49]-[49], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).

3. The applicant’s particulars explain that the Tribunal did not reject evidence that the applicant was a regular attendee at a Christian Church in Australia and that he was considering the question of his faith and that if he were to convert he would let his religion be known (in Indonesia).  This latter is a reference to evidence given by the applicant at the hearing before the Tribunal (see CB 155.3 and Transcript (“T”) T 14.8).

4. The second particular asserts that this raised the question of the position of apostates in Indonesia.  To the extent that the particular is drafted as requiring the Tribunal to address some general question of apostasy in Indonesia, the issue of course is whether the circumstances, as presented, required the Tribunal to consider the applicant’s position (and not some general position) as an apostate in Indonesia.

5. It may be that this particular is drafted in this fashion in light of the short answer to the applicant’s complaint.  That is that I cannot see that the applicant made any claim before the Tribunal (that is, any claim surviving before the Tribunal) that there was a real chance that he would return to Indonesia in circumstances where he may be perceived to be an apostate. 

6. While the issue of the applicant’s possible apostasy was not raised directly by the applicant’s statement in his protection visa application (CB 22 to CB 24, see also CB 150.5 to CB 151.7), it was however perceived to be an issue by the Minister’s delegate (see CB 59.8 to CB 61.9 and CB 54.6).  This was so even though the thrust of the applicant’s statements at the interview with the delegate were directed to the problem that he said he would face in Indonesia, which was his interfaith relationship (in the past) and marriage (in the future) (see CB 58.3 to CB 58.8).

7. It is important to note that the Court Book references (“RD 54, reference 18, … RD 60.13”) set out at particular two all relate to the delegate’s decision record, other than for the reference “RD 150, para 19”, which is a reference to the Tribunal’s decision record (CB 150.3) where the Tribunal stated that, amongst other things, it: “has had regard to the material referred to in the delegate’s decision”. 

8. The applicant’s claims before the Tribunal were articulated at the hearing (see CB 151.7 to CB 156.6 and the transcript provided by the applicant), and in a submission made after the hearing by the applicant (see CB 110 and annexures to CB 143, and see also CB 156.7 to CB 156.10 in the Tribunal’s decision record).

9. Mr Potts submitted that while the delegate may have identified the issue of apostasy in Indonesia no such claim was made by the applicant before the Tribunal.  Any plain reading of the Tribunal’s account of what occurred at the hearing, the transcript of the hearing provided by the applicant, and the applicant’s written statement, reveals that not only was such a claim not made, neither could it be said that such a claim could be said to arise from the circumstances as presented.

10. I agree with Mr Potts.

11. At the hearing the Tribunal specifically focused on the issue of the applicant’s “Christianity” (the consideration of conversion):

    (1)T 7.8:

    “Member: Now you are a Christian [sic].

    [The applicant]: I am right now in the process of becoming a christian [sic].  I am at the moment very close to the christian [sic] community.  That is to say that every sunday [sic] I  go to a church.”

    (2)This continues at T 8.7:

    “Member: Thank you. Now can I ask if have you been baptised into your christianity.

    [The applicant]: No, not yet.

    Member: And how long have you been in Australia?

    [The applicant]: More than 7 months.

    Member:  Have you been going to the church from that period.

    [The applicant]: It started in the month of july [sic].

    Member: You have any evidence of your attendance for example the letter from the minister in charge of your church.”

    (3)Importantly, the following appears at T 9.9:

    “Member: Do you intend to change your religion into Christianity in Australia.

    [The applicant]: To be honest member I do not going in to practicing yet, it is conviction and that conviction needs time one does not or should not be too materialistic about that[.] If I would change right away from Islamism in to Christianity people would think bad about me as if I am a person who just want to change for any ulterior motive. Yes..[.] they introduce me to this religion that is true. But as for conviction I have to undergo that by myself.

    Member: Yes I understand that.

    [The applicant]: Thankyou.

    Member: Now suppose same applies to why you didn’t change your religion in Indonesia. Or there may [be] other reasons too.

    [The applicant]: In Indonesia or while in Indonesia I never thought of changing the religion, but because the impediment of getting married in Indonesia was the difference in religion[.] If I did change the religion into Christianity I would be disowned by the members of my family. On the other hand if [the applicant’s wife] change her religion into Islamism she would be disowned by her family. So we came here because Australia can accept marriage between two persons of different religious background, and while living in Australia I have been close to Christian community.

    Member: Now what if any persecution have you suffered in Indonesia because of your religious problems.

    [The applicant]: There were no cases of persecution as such but psychologically speaking, we had difficulties of getting married. It was for 3 years all together. Knowing that we two would be separated [sic], atleast [sic] they would endeavour to separate [sic] us. My wife [the applicant’s wife’s name] would also be treated in the same way by her family. If we did try to see a marriage celebrant, the Indonesian government would adopt its law in not recognising such an inter marriage. It is true that physically we did not have any obations [sic], but I am talking about psychologically now, and that caused uncertainty in our lives. I am now 40 years of age, my wife was more than 30 than [sic]. That is my explaination [sic].”

12. Most relevantly the Tribunal then asked the applicant to state his fears if he were to go back to Indonesia.  Any plain reading of the transcript reveals that the applicant’s fear was expressed as the “psychological pressures” that would be brought to bear on the applicant (and applicant’s wife) by their respective families.

13. In particular at T 10.6:

    “Member: If you want to get back to Indonesia with your wife, what would you be fearfull [sic] of?

    [The applicant]: We would have difficulties in being accepted by the members of our families. There is no other problem except if we prefer to live in areas which, the majority of people profess certain religion for instance if we go to a village which,…the villagers are muslims [sic] then the members of the community would think, why is your wife a Christian?

    Member: Inadvertently or……Otherwise, indicated there that perhaps that you would not be Christian.

    [The applicant]: You mean…If I were in Indonesia?

    Member: Yes, if you both went back to Indonesia, what would you fear.

    [The applicant]: We have to do it secretly though, with all those psychological pressures around us.

    Member: Now are you talking about the future, that if you were to go back to Indonesia in the future in like 2 or 3 or 4 months whatever and your marriage….… what problems would you have.

    [The applicant]): That was it psychologically [sic]… The members of our families would not recognise us. Its [sic] only a little problem in the eyes of the Australian government. But for us it is our life that is made inconvenient by them. And because of that, with all humbleness we lodged an application to be able to stay here.”

14. Any plain reading of what occurred at the hearing either by way of the transcript, or the Tribunal’s account which is consistent in relation to the issues of substance, reveals that the Tribunal was, in my view, correct to see the applicant’s claim to fear persecutory harm if he were to return to Indonesia on the following basis.

15. At CB 157.8 the Tribunal stated:

    “56There was psychological pressure on them in Indonesia as they had difficulty getting married knowing that there would be attempts to separate them by their families.  If they had tried to see a marriage celebrant in Indonesia, the government would have invoked Article 2(1) in not recognising the marriage.  There was no physical oppression.

    57If the applicant and his wife were to return to Indonesia they would not be accepted by members of their families.  There would be psychological pressure, their families would not recognise them.  They would be resented by their families.  The sole issue if they were to return to Indonesia would be to do with their families.”

16. The Tribunal understood the reason the applicant (and his wife) came to Australia (see CB 158.2):

    “58The applicant and his partner came to Australia because Australia accepts the marriage of persons of different religious backgrounds.  The applicant has been considering converting to Christianity whilst in Australia, but he had not done so prior to his marriage before the civil celebrant on 7 December 2008.  The applicant stated that both of them have suffered and Australia is the only country which they hope will protect their human rights.”

17. Relevantly, the key parts of the Tribunal’s analysis is based on (CB 158.4):

    “62The applicant stated that his claims relate solely to his and his wife’s families.  That is resentment, attempts to separate them, ostracism, and not recognising them.”

18. This was reinforced by the statement that the applicant provided to the Tribunal after the hearing (see CB 110).  Any plain reading of that statement reveals that the applicant’s claims to fear persecutory harm in Indonesia arose out of his relationship, as a Muslim, with a non-Muslim woman, and the difficulties that they faced from their respective families.  The applicant compared the situation in Indonesia where it was said that the relevant law prohibited interfaith marriages, with Australia where such marriages were accepted.

19. The Tribunal, in my view, understood the applicant’s claims and dealt with them on the basis that it found that ostracism by the respective families did not amount to “serious harm” pursuant to s.91R of the Act. It also found that Article 2(1) of the Indonesian Marriage Law did not explicitly forbid marriage between persons of different religions, and also accepted evidence before it that there have been successful interfaith marriages between Christians and Muslims in Indonesia (CB 158). These findings were all open to the Tribunal to make on the material before it and they are findings for which the Tribunal gave reasons (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 (“W148/00A”) at [64]-[69] per Tamberlin and Nicholson JJ).

1. I am satisfied on a plain reading of the material before the Court that the applicant’s focus in his presentation to the Tribunal of his concerns about returning to Indonesia, were related to, and arose from, his relationship with his wife who was of a different religion, and the harm that would accrue to him as a result of this.  While the applicant, indeed, told the Tribunal that he was considering changing his religion to Christianity, it was plainly also his own evidence before the Tribunal that he had not done so.  This was nothing beyond saying that he was considering his position to indicate that he would in fact do so in the future.

2. The Tribunal did explore the issue raised by the delegate in regard to apostasy.  It questioned the applicant as to his possible conversion, his religious practice and intentions in Indonesia in the past and specifically directed its questions to what the applicant feared on return to Indonesia.  Importantly the applicant made no such claim to fearing harm as an apostate.  Nor was this an issue which could be said to arise from what he said, given his evidence that at least he had not formed the necessary conviction to change religion.

3. Mr Potts correctly submitted in my view, given that the issue had been raised by the delegate’s decision record, that the applicant therefore, was put on notice of the possibility of it being an issue before the Tribunal.  His failure to raise this issue before the Tribunal, and indeed his confirmation that the only issue of concern was his interfaith marriage, means that the applicant cannot now argue that the Tribunal should have considered an issue not raised by the applicant when the specific opportunity to do so was presented to him.  Not only did he not do so, but gave evidence that his only concern was the interfaith marriage.

4. The Tribunal is required to deal with the claims as presented, and from matters that can be said to arise from those claims.  In my view that is precisely what the Tribunal did in this case, it dealt with the applicant’s claim to fear harm in Indonesia because of his interfaith marriage.  In my view the Tribunal was not required to deal with an issue identified by the delegate, but which did not survive the Tribunal’s questioning of the applicant at the hearing, nor as confirmed by the applicant himself in his subsequent written statement to the Tribunal.  The ground in the amended application therefore does not succeed.

Ground One (Application): Tribunal Misunderstood the Claims

1. Ground one in the application asserts that the Tribunal misunderstood the applicant’s claims.  There is nothing before the Court to show that this could be taken as a reference to anything beyond what was set out in the amended application.  As already addressed above, the Tribunal set out within its decision record its understanding of the claims made by the applicant.  In my view it directly, and squarely, addressed those claims.  I cannot see that this ground can be made out.

Ground Two (Application): Failure to Consider Wife’s Claims

1. In ground two the applicant asserts that the Tribunal failed to consider his wife’s claims.

2. There is of course a very good reason for this. Mr Potts submits the applicant’s wife had been barred by s.48A of the Act from making a further protection visa application. Further, and importantly, she was not an applicant in the review application before the Tribunal. It of course, can only review an application made to it. To the extent that the wife’s circumstances were relevant to the applicant’s claims (particularly as the partner in the interfaith relationship and marriage), the Tribunal properly dealt with this circumstance in addressing the applicant’s claims. This ground also does not succeed.

Ground Three (Application): Failure to Consider Independent Country Information

1. Ground three in the application asserts that the Tribunal failed to take into consideration independent country information and ignored evidence given.  Given the applicant’s submissions to the Court this complaint can properly be understood as a complaint that the Tribunal failed to take into account what the applicant said were the relevant provisions of the Indonesian Marriage Law.

2. The Tribunal’s decision record reveals (see in particular CB 158.6) the Tribunal’s understanding of these provisions.  This was plainly different to the applicant’s.  However, the Tribunal did point to independent information in support of its view, and expressly found that the applicant had not provided any independent information which supported his claims in this regard (CB 158.8).  The finding therefore, in all the circumstances, as to the understanding of, and applicability, of the relevant provisions of, the Indonesian Marriage Act was open to the Tribunal on what was before it.  I cannot see any error in this regard.

3. More generally, contrary to the assertion made in ground three, the Tribunal did refer to independent country information (see CB 157.1).  This was directly relevant to the issue of interfaith marriage in Indonesia.  No independent country information was put forward by the applicant to challenge the material relied on by the Tribunal.  

4. In all the circumstances, I can only see the applicant’s assertions that the Tribunal ignored “evidence” (beyond what is already set out above) as being an assertion that the Tribunal did not accept his evidence.  The answer to this complaint is that the Tribunal does not have to uncritically accept anything or everything that an applicant puts to it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451). The Tribunal is required to analyse and evaluate the evidence before it. As long as its findings are open to it on the material before it, no error is revealed (Kopalapillai, W148/00A).  This ground also does not succeed.

Ground Four (Application): Tribunal Ignored “Serious Harm”

1. Ground four in the application asserts that the Tribunal ignored: “the serious harm suffered” pursuant to s.91R of the Act. If by this the applicant contends that the Tribunal ignored the claims made by the applicant and why he said he feared harm, then this complaint cannot succeed. As already referred to above, the Tribunal understood the applicant’s claims, and it gave him every opportunity to express and expand on them. It dealt with them as put by the applicant himself. The applicant told the Tribunal that he had not suffered any harm prior to coming to Australia, and that his fear of harm in the future was explicitly the harm to be suffered from his and his spouse’s respective families. Plainly, the Tribunal found that such fear did not amount to serious harm, for the purposes of the Act. This finding, as Mr Potts submitted, was open to the Tribunal on the material before it. To the extent that the applicant asserts that the Tribunal ignored “serious harm”, and means by that that the Tribunal did not understand what was meant by this, then as set out in s.91R of the Act, the Tribunal’s decision record reveals the Tribunal set out its understanding in unexceptional terms (see CB 149). Nothing in the subsequent analysis shows that it misunderstood or misapplied this concept. This complaint also does not succeed.

Conclusion

1. For the applicant to succeed before the Court, the Court would need to ascertain jurisdictional error in the Tribunal’s decision.  As I cannot discern any such error, this application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  S.Polley

Date:  24 April 2009