SZOYF v Minister for Immigration - [2011] FMCA 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 380

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider a claim arising from the circumstances – no failure to consider – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 476

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137
S230 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1574
SZMTP v Minister for Immigration & Anor [2009] FMCA 121

First Applicant:

SZOYF

Second Applicant:

SZOYG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 52 of 2011

Judgment of:

Nicholls FM

Hearing date:

7 April 2011

Date of Last Submission:

7 April 2011

Delivered at:

Sydney

Delivered on:

1 June 2011

REPRESENTATION

Counsel for the Applicants:

Mr L Karp

Solicitors for the Applicants:

Rasan T Selliah and Associates

Counsel for the Respondents:

Mr D H Godwin

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 13 January 2011 is dismissed.
The applicants to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 52 of 2011

SZOYF

First Applicant

SZOYG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 13 January 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 15 December 2010, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

The applicants are husband and wife. Both are citizens of Malaysia who arrived in Australia on 3 February 2010. They applied for protection visas on 16 March 2010. (See Court Book – “CB” – CB 1 to CB 81 with annexures.)

Claims to Persecution

Both applicants claimed to fear persecutory harm in their own right and submitted separate statements in support (CB 44 to CB 48 and CB 49 to CB 53). The applications were refused by the delegate on 30 August 2010 (CB 96 to CB 111).
The common basis for both their claims before the delegate was that they both feared persecutory harm in Malaysia arising from the applicant husband’s Hindu religious belief. The applicant wife was a Muslim in Malaysia.
They claimed to have met in September 2005 and to have commenced a relationship in December 2005. This continued until 18 November 2009 when the applicant wife’s mother discovered their relationship.
The applicant wife claimed that she was beaten by her mother and brother and was confined by her parents. The applicant husband claimed that he was attacked the next day and that that was reported to police.
The applicant husband claimed he converted to Islam in November 2009 so that he could marry the applicant wife. He claimed he was then “expelled” from his family because of this conversion. Further, that he received a threat over the telephone after he attended a Hindu temple on 15 December 2009.
The applicants claimed they married on 10 January 2010. The ceremony was held at a (Muslim) mosque. They left Malaysia without informing their parents.
The applicant husband claimed that after arrival in Australia he reverted to his Hindu faith. The applicant wife claimed to have begun to attend a Hindu temple.

The Delegate

The delegate referred to “country information” (CB 106 to CB 107) which, relevantly, said that the Malaysian government did not recognise marriages between Muslims and non-Muslims.
In this context, she found that the applicant husband went through a conversion to Islam so that he could marry. Further, that, given that this was a legal requirement for the marriage, it was unlikely that the applicant wife’s: “… family needed to pressure him to the extent claimed…” (CB 109.5).
The delegate also found that, given her ability to live and study away from home for an extended period, the applicant wife was not controlled by her family to the extent claimed. While the delegate accepted that the applicant husband had been warned on one occasion to keep away from the applicant wife, she did not accept the claims that the applicant wife was beaten or that the applicant husband was subsequently threatened.
In any event, she considered that they would be able to live in Malaysia away from the interference of their respective families, and could call on the police if they were threatened (CB 109.9).

The Tribunal

The applicants applied for review to the Tribunal on 17 September 2010 (CB 117 to CB 120). They continued to be represented by the same solicitors and migration agents who also now represent the applicants before the Court (CB 1 and CB 118).
The applicants attended a hearing before the Tribunal on 23 November 2010. While the applicants had over seven weeks notice of the date of the hearing (CB 125), their representatives sent to the Tribunal, by facsimile, lengthy written submissions on the day of the hearing (CB 130 to CB 139).
The only account of the hearing before the Court is the Tribunal’s own account contained in its decision record ([43] at CB 180 to [56] at CB 182).
Following the hearing the Tribunal wrote to the applicants inviting their comment on certain information (CB 158 to CB 159). A response was submitted by the applicants’ representative (CB 161 to CB 166).
The Tribunal accepted that the applicant husband was raised a Hindu and converted to Islam so that he could marry the applicant wife, a Muslim ([65] at CB 185).
Beyond that, however, the Tribunal was not satisfied that the applicant husband had presented a truthful account of his circumstances ([67] at CB 185). As a result, the Tribunal found that he had fabricated “… all his core claims to enhance his protection visa application” ([69] at CB 185).
The Tribunal rejected the applicant husband’s factual account giving rise to his claim of persecutory fear on the basis of religion ([70] at CB 185 to [73] at CB 186).
The Tribunal accepted he participated in some Hindu religious activities in Australia, but disregarded this conduct pursuant to s.91R(3) of the Act ([74] at CB 187).
The Tribunal also found that the applicant husband had greatly exaggerated the risks associated with the relationship with his wife and the claimed harm feared from the wife’s family. It found that their claimed reaction to him was a contrivance ([75] to [77] at CB 187).
It found that his conversion to Islam in Malaysia: “… was a voluntary act undertaken by him because he wanted to comply with the marriage laws of Malaysia” ([78] at CB 187). The Tribunal also found the claims to fear harm from his own family were a contrivance ([81]).
In all, it found his lack of any genuine interest in any religion meant that it was not satisfied that he would participate in any activities of a religious nature which would attract harm from his wife’s family, the authorities, religious extremists, or the Muslim community in Malaysia ([81] at CB 188).
The Tribunal found that the applicant wife contrived the claims relating to religion to enhance her claims for a protection visa ([84] at CB 189). It found her involvement in Hinduism since she came to Australia to be “limited and superficial”, and did not accept her claim that she had converted to, or had an interest in, Hinduism ([85] at CB 189).
The Tribunal rejected the applicant wife’s key factual claims relating to aspects of the conduct of her relationship with the applicant husband in Malaysia and that it attracted the adverse interest of her family. The Tribunal also found these claims to have been contrived ([86] at CB 189). It also found her claimed involvement in religious activities in Australia to have been contrived to enhance her protection visa application ([87] at CB 189). It disregarded this conduct pursuant to s.91R(3) ([87] at CB 190).
In all, therefore, the Tribunal was not satisfied that either the applicant husband or the applicant wife were refugees under the UN Refugees Convention, and therefore affirmed the delegate’s decision.

Application to the Court

There are three grounds in the application before the Court. The applicants did not press ground three. Grounds one and two are in the following terms:
“1. The Refugee Review Tribunal (‘the Tribunal’) failed to consider whether the first applicant (husband) might suffer persecution in Malaysia because of the conduct of the second applicant (wife) in Australia.
2. The Tribunal failed to consider whether the second applicant might suffer persecution in Malaysia because of the conduct of the first applicant in Australia.”

Before the Court

In essence, both grounds assert a failure by the Tribunal to deal with claims said to arise from the circumstances presented. There is one issue in this case. It applies in the inverse to each of the applicants.
Mr Karp of counsel, who appeared for the applicants, agreed that these claims were not expressly raised, but, while unarticulated, they nonetheless arose from the circumstances presented respectively by both applicants. Therefore the failure by the Tribunal to address this aspect of their claims reveals jurisdictional error.
The applicants said they relied on NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (“NAVK”) at [15] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE”) at [55] to [63] in support of the proposition that, while the Tribunal is not required to consider a claim that is not expressly made, or does not arise clearly on the materials before it, nonetheless, with reference to NABE at [63], “much depends on the circumstances”.
Relevantly, the applicants submitted that these circumstances emanate from the applicant husband’s claims that he converted to Islam so that he could marry the applicant wife. The Tribunal accepted that claim (see [65] at CB 185).
The submission was also that the Tribunal accepted that the applicant wife had some limited involvement with Hinduism in Australia ([85] at CB 189).
While the Tribunal applied s.91R(3) of the Act to both those claims, Mr Karp sought to draw from these circumstances that there was religious activity in Australia by both applicants. The argument was that these findings remain even though the Tribunal found their respective motives were to enhance their respective claims for protection.
The argument also sought to draw from the Tribunal’s finding that a non-Muslim in Malaysia was compelled to convert to Islam in order to marry a Muslim ([65] at CB 185 – the information on which the Tribunal relied is at [57] at CB 182 to CB 183).
Further, that there was information before the delegate, which was information also before the Tribunal, to the effect that Muslims in Malaysia are subject to criminal sanctions if they seek to renounce Islam and to profess another faith. Any Muslim seeking to convert must first obtain an order from a religious court (see at CB 107.4).
The applicants also drew the Court’s attention to submissions made by their representatives (solicitors and migration agents) to the Tribunal illustrating the difficulties faced by persons in Malaysia who sought to change their religion (see at CB 135.5 to CB 138). The purpose was to make the submission that this supported the view that there is in Malaysia an intolerance of the practice of non-Muslim religions by people who were formerly Muslim.
All of this is therefore to be linked to the applicants’ circumstances as presented to the Tribunal.
In his initial statement in support of his protection visa application, the applicant husband said (CB 48.7):
“If I go back to Malaysia, my in law family will harm me because ruin their daughter life and insult for the family because I refused to practice the Muslim religion and the community would not hesitate to kill me and the government would put me in jail and charge me because it’s a Muslim government. I will be blamed for insulting Muslim religion. My own community have isolated me because they fell I have insulted my own religion and they can harm me as well. If in future my wife wish to follow my religion, she also will be harmed by the government and community. I must raise my children in future as Muslim only. I’m not allowed to teach or practice my religion. If I wish to come out from Muslim religion, I will to divorce my wife and would not allowed to see her again.”
[Errors in original.]
The submission before the Court, confirmed by Mr Karp, was that the applicant husband here was making the claim that the applicant wife would be harmed because of her following him into Hindu religious practice, away from Islam, the religion of which she was previously an adherent.
In her statement in support of the protection visa, the applicant wife relevantly stated:
“If I go back to my country, my family will kill me because we run away from them. Until this moment they don’t know that we’re in Australia. They will definitely try to find us and harm, separate me from living with [SZOYF]. [SZOYF] might get kill by my family or community because didn’t practice Muslim religion and re converting from Islam and insulting the Islam. The government can harm him by putting him in jail.”
The applicants also referred the Court to parts of their representative’s submissions to the Tribunal (CB 132.8, CB 133.6, and CB 164.8) to submit that the applicants would be perceived by “people” in Malaysia as having practiced Hinduism when at one time both had previously been Muslims. This perception would arise out of the context of their marriage, remembering the country information as to the seriousness with which such conduct would be viewed in Malaysia.
The argument therefore is that, when viewed in this way, the conduct of each applicant separately, arising from the claims made and in the context of relevant country information and the findings of the Tribunal, would lead to persecutory harm. These claims were not considered by the Tribunal.
I agree with Mr Godwin of counsel, who appeared for the respondent, that the applicants’ argument before the Court is a “clever” construction of elements of parts of their case which, had it been raised, or could be said to clearly arise from the circumstances presented, would have obliged the Tribunal to consider it.
In short, however, “the claim” as now enunciated before the Court was not put to the Tribunal. Nor can it be said to clearly arise from the circumstances presented. As Mr Godwin submitted, the “ex post facto” analysis presented now does not engage the Tribunal’s statutory obligation to have considered it.
The applicants rely on NAVK at [15] and the reference to: “much depends on the circumstances” (see [31] above).
With respect, I do not see that this provides a licence to the applicants to make the argument before the Court in the way presented. As was plainly stated in NAVK, the direction given by NABE is that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly in the circumstances.
I respectfully understand the subsequent statement (that much depends on the circumstances) to be directed to the point that the circumstances of each case will provide the answer as to whether, in that case, a claim was expressly made or clearly arises from the materials. Not that a novel “construction” can be subsequently created from those circumstances.
As Allsop J said in NAVK at [15], the claim itself must arise sufficiently from the material as to require a reasonably competent Tribunal “in the circumstances to appreciate its existence”, such that it is then required to deal with it.
The reasoning of the disposition of the applicant’s case in NAVK provides, by analogy, not support for the applicants, but support for the Minister’s position.
Before the Court in NAVK the applicant sought to rely on country information to argue that the Tribunal had not considered a claim said to arise, to the effect that failed asylum applicants in Australia would be perceived on return to China as having brought dishonour on Chinese officials by their actions in Australia in taking part in certain activities. In these circumstances, while the potential existed for such a claim to have been made or to have arisen on the materials, it was not expressly made. Nor, more relevantly to the current case, could it be said to be a claim that arose tolerably clearly from the material before the Tribunal.
Further, as Allsop J also said in NAVK at [15], the Tribunal’s obligation does not extend to undertaking “an independent analytical exercise of the material for the discovery of potential claims which might be made, but which had not been…”.
The Minister also referred the Court to a number of authorities which provide direction to this Court in this regard.
In SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137 (“SDAQ”) the Full Federal Court was concerned with an Iranian national who had claimed to the Tribunal that he had converted to the Baha’i faith. The Tribunal rejected his claim on the basis that it found that his conversion was not genuine.
There was material before the Tribunal to the effect that those who would be perceived as associates of Baha’is would be persecuted in Iran.
Justice Cooper found that there was no evidence before the Tribunal that the Iranian authorities had, or would, impute to the applicant Baha’i religious beliefs because of his previous association with persons of that faith (SDAQ at [20]), an association which the Tribunal had otherwise accepted. Nor was there any evidence that the applicant feared persecution because of any such imputed religious beliefs (SDAQ at [20]).
Mr Godwin’s submission was that a broad analogy can be drawn with the current case in that there was no evidence before the Tribunal that either of the applicants had a fear based on the physical conduct of the respective partner attending a Hindu temple in Australia. Nor that the Malaysian authorities would have known of such conduct such as to lead to the imputation said to derive (in respect of each) from the conduct of the other partner.
Further, in SDAQ Cooper J noted that the applicant’s subjective fear of harm was derived from the claim to fear persecution before his intended conversation to the Baha’i faith (SDAQ at [21]), noting also that the Tribunal had rejected the applicant’s claim to have a genuine commitment to the Baha’i faith (SDAQ at [21]).
In SDAQ at first instance, Hill J was presented with argument that the circumstances before the Tribunal, in that case, presented an “alternative” claim that should have been considered by the Tribunal. The Tribunal was said to have failed to do so. Justice Hill considered the relevant test. Justice Cooper reviewed this consideration (at [23]). His Honour noted Hill J’s finding that: “… there was no evidence” before the Tribunal such as to found the “alternative” claim which was said to arise on the materials (at [24]).
Justice Cooper ultimately concluded (at [26]):
“There being no evidence to raise the alternative argument of persecution for imputed religious beliefs before the RRT, there was no statutory obligation under the Act for it to consider such an alternative case when it was neither raised, nor relied upon, by the appellant in the proceedings before it.”
Justice Carr, in the same case, found (at [31]):
“In my opinion, there was a very significant difference (and a vital missing link) between the objective evidence, i.e. the country material, referred to by the learned primary judge, and the evidence which the appellant put before the Tribunal about his subjective fear of persecution. The country material, so his Honour held, would suffice to permit the Tribunal to conclude that there was a real chance of the appellant being persecuted on religious grounds should the Iranian authorities impute to him the Baha’i faith as a result of his association with his girlfriend and other friends (my emphasis). As I have said, the appellant was well aware that if his Baha’i association was sufficient for the authorities to impute to him the Baha’i faith then he was at risk of persecution. He did not claim to have any such fear of imputation. As Cooper J has stated in his draft reasons, there was no evidence that the appellant ever held that fear.”

Further (at [34]):
“In the present matter the appellant failed to place before the Tribunal what the authorities establish is a fact essential to refugee status and (one peculiarly within his knowledge) i.e. that he had a subjective fear of being imputed with Baha’i beliefs, or for that matter political beliefs or membership of a particular social group, due to his Baha’i association. In those circumstances, in my view, the Tribunal did not err in its decision and the primary judge did not fall into any legal error…”.
In Applicant S230 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1574 (per Allsop J) the Tribunal accepted that, as a student in Iran, the applicant had joined an illegal organisation and had been imprisoned because of this. In that case the Tribunal addressed the question of future harm and found that there was no reason why the applicant would face persecution in the future simply because he had joined the group in the past. Although the applicant had been imprisoned in the past, the Tribunal determined that there was no real risk that he would suffer harm in the future.
As in the current case, the argument before the Court was that there was material before the Tribunal (essentially his representative’s submissions and his statement in support) that was said to have required the Tribunal to consider whether the applicant would face persecutory harm if he sought to rejoin the illegal group on return to Iran.
Relevantly, the Court stated (at [6]):
“The statement as a whole, and these parts, contained the claim that he would suffer persecution because of his past activities. Nowhere in the statement was there any statement that he had become an adherent of the leftist group of that facts other than the urging of his friend had led to the activity for which he had apparently been detained. Nowhere in the statement is it said that he will wish to continue with his adherence to Peshgham or like bodies. That is, his statement embodied an expression of fear of persecution for what he had done and had happened in the past (and how he might be viewed because of that), not for what he might do in the future.”
Also relevant to the disposition of the current case, Allsop J further reasoned (at [20]):
“… the issue is whether the case (that is the facts and other claims) put before the Tribunal sufficiently raised the relevant issue for the Tribunal (as a specialist tribunal carrying out an inquisitorial function) to have dealt with it (as an issue or aspect of the statutory review function before it). This question, of course, is in the context of the applicant being possessed of all the personal information bearing upon why he or she had a fear of persecution. If an applicant articulates his or her fears for the future in his or her country of nationality only up to a particular point, it could rarely, if ever, be necessary for the Tribunal to interrogate the applicant as to whether the applicant might not fear return for other reasons as yet unarticulated…”
In SZMTP v Minister for Immigration & Anor [2009] FMCA 121, a matter before Driver FM, the Court inferred that the Tribunal had found that the applicant in that case (a Chinese national who claimed to be a Falun Gong practitioner) had attended at a candlelight vigil in Australia in support of Falun Gong practitioners. He provided two photographs in support (at [10]).
His Honour said (at [15]):
“The Tribunal accepted that the applicant was a Falun Gong practitioner. That acceptance logically extended to his practice in Australia as well as in China. The Tribunal made no mention of s.91R(3) of the Migration Act in its reasons which indicates that the Tribunal was satisfied that the applicant’s conduct in Australia was engaged in for a reason other than to enhance his protection visa claims. This goes part way to establishing a case that the Tribunal overlooked a relevant consideration. There was material before the Tribunal both orally and in writing which might arguably have alerted the Tribunal to a sur place claim requiring consideration.”
Also (at [17]):
“I do not think that this case is distinguishable from NABE. As in NABE a sur place claim might have been seen as arising from the material, but it did not represent a substantial, clearly articulated argument relying upon established facts. I accept that the Court must be cautious before identifying such a claim as arising from the material where it is not clearly articulated.”
In NABE the Court said (at [68]):
“Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”
The authorities provide that for the Tribunal’s obligation to consider a claim to be engaged requires a claim to be expressly made, or to emerge clearly from the materials before the Tribunal.
It was conceded by the applicants that the first aspect of that requirement is not present in the current case. However I cannot see that it can be said that a claim has clearly emerged, or has arisen sufficient clearly, to the effect that the applicant husband’s conduct in Australia (his claimed continuance of his practice of Hinduism) would lead to persecutory harm from his wife’s family, the authorities, Muslim extremists or Muslims in general. Nor that the applicant wife’s conduct in Australia (claimed attendance at a Hindu temple and conversion) would lead to persecutory harm for the applicant husband in Malaysia.
Their respective claims as put, while plainly arising from the circumstances of their relationship, were put and clearly arose out of their respective conduct and how that conduct would lead to persecutory harm for each of them.
I agree with Mr Godwin that the submission made on behalf of each of the applicants now is a “construct” that may indeed have been put to the Tribunal, but was not. Nor was it even suggested.
In relation to the applicant husband, and bearing in mind the authorities above, there was no claim that the applicant wife’s attendance at a Hindu temple in Australia was known to anyone other than his sister (CB 166). His sister is an Australian citizen (CB 167). There was no evidence before the Tribunal that she lived other than in Australia. How this then could lead to attracting persecutory harm for him from anyone in Malaysia was never explained.
As to the applicant wife, her husband’s religious practices in Australia were similarly not connected to any indication that that would be an element in any fear of persecutory harm relating to her in Malaysia.
In his initial statement the applicant husband did say that, if in the future his wife wished to follow his religion, she would be harmed by the “government and the community” in Malaysia (CB 48.8). There is nothing in this to sufficiently connect his claimed religious conduct in Australia to occasioning a real risk of persecutory harm for her. What it does say is simply about her own religious conduct and how that may result in persecutory harm for her. An aspect of the claims dealt with by the Tribunal.
The Tribunal did consider the applicants’ respective claims to fear persecutory harm in Malaysia because of their religious conduct in Australia. The Tribunal found that the applicant husband was not a devout Hindu ([74] at CB 186 to CB 187), or that he had a genuine interest in any religion, or that he would be involved in any activities of a religious nature in the foreseeable future such as to attract the interest of those whom he claimed would harm him ([84] at CB 189). The Tribunal found similarly in relation to the applicant wife. Further, it found that she had contrived the claims relating to religion ([84] at CB 189). This finding of contrivance extended to her claimed attendance at the Hindu temple in Australia ([87] at CB 189).
These findings dealt with all of the applicants’ claims relating to, or arising from, the matter of religion. On the material before it there was nothing further to oblige the Tribunal to consider any other iteration of these claims as now asserted before the Court.

Conclusion

With the assistance of legal representation the applicants have pressed two grounds before the Court. Neither reveals jurisdictional error on the part of the Tribunal. I will make an order dismissing the application.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 1 June 2011