SZRJS v Minister for Immigration
[2012] FMCA 1143
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1143 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to provide him with a Christian interpreter, failed to consider all the integers of his claim and by reason that a reasonable and informed lay observer might apprehend that the Tribunal did not bring an unbiased mind to the review. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRJS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 848 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 November 2012 |
| Date of Last Submission: | 27 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 848 of 2012
| SZRJS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Lebanon who arrived in Australia most recently on 7 August 2010. On 5 November 2010 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in Lebanon because of his religion. On 14 October 2011 his application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-9 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to his protection visa application:
a)his father was Muslim and his mother was Christian. Because of his father, he and his siblings were Muslim and had lived in an area dominated by Muslims, including many radical Muslims;
b)he and his siblings were treated harshly by their father who would punish them severely for any mistake and for failing to follow his orders. Because of their fear of their father, he and his siblings were more attached to their mother;
c)he learnt about Christianity from his mother and sympathised with her teachings. However, because of his father’s attitude and strict treatment, he was unable to show any inclination towards Christianity and feared the consequences if he converted from Islam;
d)although his father had promised his mother that their children would have the right to choose their own religion, he and his siblings were forced to follow Islam and were not allowed to mention Christianity in front of their father;
e)after his arrival in Sydney in 2010 he observed his maternal aunt’s family’s way of life and attended church with his cousins and relatives which made him “more convinced” of Christian beliefs. He converted to Christianity in Sydney one month after he first attended church;
f)he told his mother and brother about his conversion and they kept it a secret because they were afraid to tell anyone. His brother told him that their father would kill him if he found out. His mother and brother were fearful for his safety because his father was extremely strict. They also feared that the armed Muslim groups in his home area would issue a fatwa to kill him because they would consider him to be an infidel;
g)towards the end of his stay in Australia, his mother told him that his father had expressed concern about his stay at his maternal aunt’s home;
h)he feared that he would be punished and forced to return to Islam. He would be ostracised, making him easy prey for Muslim fundamentalists. He would not be able to survive in his town and would be subject to harassment and ill-treatment;
i)he feared his father, armed Muslim fundamentalist groups and people in his neighbourhood; and
j)he could not seek protection from the Lebanese authorities.
The applicant also submitted extracts of his family’s records showing his mother to be Roman Orthodox, with the rest of his family identifying as Sunni Muslims. He also submitted a baptism certificate dated 22 June 2011 and photographs of his baptism ceremony.
The applicant attended a departmental hearing on 14 October 2011 at which he made the following claims:
a)his father had worked with Palestinian and Islamic parties, particularly Tawhid;
b)in 1991 one of his paternal uncles shot another of his paternal uncles because of politics;
c)he had attended christenings, wedding celebrations and Easter celebrations in Lebanon when staying with his maternal grandfather;
d)he had not been baptised on his two previous visits to Australia because he had decided to be patient and wait for a suitable time; and
e)he would not be able to relocate within Lebanon because it was a small, unstable country and Beirut was dominated by Hezbollah which was in coalition with Baath. If he relocated he would also lose his mother and brother and even if his father did not do anything to him, he would do something to his mother and brother.
The applicant appeared before the Tribunal on 19 March 2012 and made the following additional claims:
a)before he was born, his father was a member of the Harkat Al-Tawhid Al-Islami. His father left Lebanon to work in Cyprus but had not been involved with the group since then;
b)he was influenced by his mother and maternal grandparents. When he finished school and started attending university in Beirut he felt that he could think more freely about his religion and did not have to follow Islamic rituals;
c)his mother attended church occasionally and had practised her faith in the way she treated and loved her children. He had attended church in his mother’s village but feared being seen by his father’s relatives;
d)when his father was away his father’s family had mistreated his mother. His father had also treated his mother badly;
e)he belonged to and attended the Roman Orthodox church in Australia;
f)because of his conversion, he would not be able in Lebanon to live the life he would wish to live. He would have to get married secretly and live secretly. If he made the information of his conversion public he would not lose his life but he would be isolated, ostracised, hated and would not be able to see his parents. He was not afraid of being killed but was concerned about expulsion and about not being able to see his mother;
g)under Islamic law he could be killed for converting to Christianity. He had heard about people who had converted in Lebanon and had been killed; and
h)he could not relocate to Beirut because it was expensive and he would be asked by prospective employers about his religion.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal accepted that the applicant was born to a Muslim father and a Christian mother and that although brought up as a Muslim, he was influenced and inspired by his mother. The Tribunal also accepted that the applicant started to think about Christianity after he finished school, eventually converted to Christianity during his most recent visit to Australia and was baptised in Australia in June 2011.
However, for the following reasons, the Tribunal did not accept that there was a real chance that the applicant would face serious harm for a Convention reason if he returned to Lebanon:
a)the Tribunal found that the applicant’s evidence that he feared being isolated, expelled, ostracised and deprived of the opportunity to see his mother as a result of his conversion indicated that he did not fear physical harm, including being killed by anyone in Lebanon for a Convention reason;
b)whilst accepting that the applicant’s family had experienced problems in the past and that one of his paternal uncles had perpetuated violence against another paternal uncle as a result of a political dispute twenty years before, the Tribunal found that there was no suggestion in the applicant’s evidence that religion was the cause of the family violence. The Tribunal also found that the feud did not appear to have resulted in further violence or have had any significant ongoing repercussions for other members of the applicant’s family;
c)whilst it found that the applicant and his siblings might have been treated harshly and physically disciplined by their father, the Tribunal found that the applicant’s evidence did not suggest that violence was ever perpetrated against any other member of his family because of religion. The Tribunal found that whilst the applicant’s father had been disposed to act with cruelty towards raising and treating his family, the applicant’s family profile and circumstances suggested that his father had adopted a tolerant attitude to religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them from attending the Roman Orthodox Church for social and other reasons;
d)the Tribunal found that according to the applicant’s evidence his father’s association with Harkat Al-Tawhid Al-Islami had ceased thirty years before;
e)the Tribunal found that the applicant’s circumstances as a Christian convert might be different to those of his mother and her relatives who were born Christians but given his evidence that he mainly feared isolation and expulsion and the absence of persuasive evidence to suggest that the applicant’s father and his paternal relatives had adopted a hostile or adverse view of the applicant’s maternal side of the family for religious reasons, the Tribunal did not accept that the applicant would face persecution for his religion if his father and paternal relatives found out about his conversion. The Tribunal also did not accept that there was a real chance that the applicant would be forced to convert back to Islam;
f)the Tribunal found that there was no real chance that the applicant would face persecution because of his imputed political opinion or membership of the particular social group of his family. In this regard, the Tribunal was not satisfied that the rejection or ostracism the applicant feared from his own family or community constituted persecution;
g)the Tribunal found that although Christians in Lebanon were at times the victims of sporadic violence, it did not appear that they were specifically targeted. The Tribunal referred to country information indicating that most periodic incidents of tension and conflict between religious groups were attributable to political rather than religious hostilities. The Tribunal further referred to country information indicating that sectarian violence in Lebanon was more likely driven by inter-Muslim tensions and political divisions within the Christian population; and
h)based on country information, the Tribunal found that religious freedom was enshrined in the Lebanese constitution, that equal representation in parliament was provided for both Christians and Muslims and that religious conversion was protected under civil law. Whilst noting the applicant’s unsupported claim that he had heard of converts being killed in Lebanon, the Tribunal preferred information from the Department of Foreign Affairs and Trade to the effect that it was not aware of killings or acts of serious harm perpetrated against individuals in Lebanon for apostasy in the past ten years and that Lebanon adopted a tolerant attitude towards conversions between faiths.
The Tribunal was therefore not satisfied that there was a real chance that the applicant would be seriously harmed, by way of a fatwa or otherwise, by Muslims, whether armed or not, in his neighbourhood or local area. The Tribunal found that if the applicant returned to Lebanon as a Christian convert and continued to practise his faith there was no real chance that he would be persecuted for the reason of his religion, including the act of conversion to Christianity, political opinion, membership of a particular social group of his family or for any other Convention reason.
Proceedings in this Court
In the amended application the applicant alleged:
1.The Tribunal failed to carry out its statutory duty.
Particulars
(a)by failing to provide the Applicant with a Christian interpreter and providing him with a Muslim interpreter, the Second Respondent denied the Applicant an opportunity to put all integers of his claims and, therefore, failed to comply with its statutory duty to review the decision and invite the applicant to a meaningful hearing.
(b)the Tribunal failed to comply with the Migration Act 1958 ss.424A and 424AA.
(c)the Tribunal failed to look at the actual situation “on the ground” in Lebanon by only looking at the official legal position.
2.The Tribunal failed to consider all integers of the Applicant’s claim.
Particulars
(a)the Applicant’s claim was that he feared harm from his father if he was forced to return to Lebanon.
(b) the Tribunal found
“…his family profile and circumstances suggest that the applicant’s father had adopted a tolerant attitude towards religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them to attend the Roman Orthodox church for social and other reasons.”
The finding ignores, or fails to appreciate, that this behaviour was when the Applicant was still a Muslim.
The Tribunal, therefore, failed to consider the Applicant’s claim that he would be harmed by his father because he had now converted to Christianity.
3.The Tribunal’s decision is affected by apprehended bias.
Particulars
(a) the Tribunal found that:
“… the applicant’s father had adopted a tolerant attitude towards religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them to attend the Roman Orthodox church for social and other reasons.” CB 104 para 65
(b)this finding is at odds with the evidence given by the Applicant at pages 17 & 19 of the Transcript.
(c)by misrepresenting the Applicant’s evidence, the Tribunal can be apprehended to have approached its task by looking for reasons to reject the Application.
Breach of s.425 of the Act
At the hearing of this application the applicant restricted his allegation of breach of statutory duty to particular (a) of the first ground, the allegation that he had been denied a real and meaningful hearing.
The essence of that allegation was that prior to the Tribunal hearing the applicant had asked that a Christian Arabic interpreter be retained for the hearing. The applicant alleged that because the Arabic interpreter at the Tribunal hearing had been a Muslim rather than a Christian he felt inhibited in giving evidence. In his affidavit filed on 25 June 2012 the applicant set out the evidence he said he had wished to give but did not.
Although the evidence is not completely clear, I am prepared to accept that before the Tribunal hearing the applicant did request a Christian interpreter and that, at the hearing, the Tribunal member understood that he had done so and that the request had not been accommodated. Based on the transcript of the Tribunal hearing I find that the Tribunal told the applicant that the interpreter was professional, experienced and bound by a duty of confidentiality. I also accept that the Tribunal told the applicant that if at any point he thought that there were any problems, he was to let the Tribunal know so that the matter could be discussed. However, on at least one appreciation of the situation, that latter statement was of no particular value to the applicant.
Significantly, the applicant does not challenge the skill and accuracy of the interpreter who assisted at the Tribunal hearing. What the applicant submits is that because of his own hesitancy, he was unwilling to say everything he wanted to say notwithstanding that the Tribunal reassured him that his review was confidential and that it would be treated as such by the professional interpreter.
The applicant submitted in addresses that because of his personal history, as evidenced by his claims, he had a proper basis to object to a Muslim interpreter and that the Tribunal was obliged to respect such an objection. I do not agree. The applicant’s claim was to fear persecution in Lebanon because of his conversion to Christianity. He did not make a claim to fear persecution by all Muslims, or even all Arabic-speaking Muslims. Absent such a claim having been made, and perhaps not even then, the Tribunal was not obliged to acquiesce in the applicant’s insistence on a Christian interpreter.
In the absence of allegations or claims of that breadth, the applicant’s objection to a Muslim interpreter is no more than a concern that such an interpreter would not do his or her job properly. More specifically, the applicant alleges that by reason of such a concern, he was justified in being reticent in the giving of his evidence with the consequence that he was not accorded a proper hearing of his claims, in breach of s.425 of the Act.
Ultimately, the question is whether the applicant had an adequate basis to be concerned that the interpreter might not fulfil his or her duties, whether of providing an accurate interpretation or of maintaining the confidentiality of the Tribunal’s review process. He could do this by demonstrating a want of good faith on the part of the interpreter or by demonstrating that a fair-minded lay observer might reasonably apprehend that the interpreter might not discharge his or her duties in good faith. Alternatively the applicant could demonstrate that he held subjective concerns of that sort which, although lacking an adequate objective basis, were nevertheless sufficiently strongly held that he could not bring himself to share the detail of his experiences with an interpreter he refused to trust.
In this case the applicant has not sought to demonstrate that there was an objective basis to his concerns about the interpreter. His concern was subjective. However, he has not persuaded me that he felt unable to tell the entirety of his story at the Tribunal hearing because he did not trust or was uncomfortable with the interpreter.
The burden of the applicant’s affidavit filed on 25 June 2012 was that he had wanted to tell the Tribunal, but had not, that Lebanese and Arab Muslims hated Christians, would harm and possibly kill him as an apostate and that in Lebanon he would not be protected from such harm. However, the manner in which the applicant presented at the Tribunal hearing, as recorded in the transcript of that hearing, does not suggest that he was inhibited in the giving of his evidence or in the making of his submissions. At the Tribunal hearing the applicant said that if his conversion became public Muslims could kill him and, although he had no particular fear of this, he did fear ostracism and expulsion from his village. He also said that even if he moved to Beirut he would have to live secretly and in fear and would have no protection. When the Tribunal asked the applicant towards the end of the hearing whether he had anything else he wanted to say, he gave no suggestion that he had omitted anything, instead replying that what he had said was true and correct.
The evidence of the transcript is such that, notwithstanding what the applicant has said in his affidavit, I am not persuaded that he held subjective concerns about the Tribunal interpreter which were so strong that he could not bring himself to share his experiences with the interpreter and thus with the Tribunal.
For these reasons, the first ground of the amended application is not made out.
Failure to consider all integers of claim
In his written submissions, the applicant argued the second allegation of the amended application in the following way:
The Applicant claimed that he feared harm from his father if he was forced to return to Lebanon because of his conversion to Christianity.
The Tribunal found at CB104, para 65
“… his family profile and circumstances suggest that the applicant’s father had adopted a tolerant attitude towards religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them to attend the Roman Orthodox church for social and other reasons.”
Although the Tribunal went on to say at CB105, para 66
“The Tribunal appreciates that the applicant’s circumstances as a convert to Christianity may be different to the circumstances of his mother and her relatives who were born Christians”
but dismissed the claim because of
“the absence of any persuasive evidence to suggest that the applicant’s father or his paternal relatives had adopted a hostile or adverse view of the applicant’s maternal side of the family for religious reasons”.
This reasoning fails to give any realistic consideration to the Applicant’s claim that he will suffer persecution because of his conversion.
In the particulars of this allegation the applicant also asserted that the Tribunal’s finding ignored or failed to appreciate that the behaviour of the applicant’s father upon which the Tribunal relied in reaching its finding occurred at a time when the applicant was still a Muslim.
In addresses, the applicant expanded on the allegation to assert that the Tribunal had failed to consider a claim that he feared persecution at the hands of the paternal side of his family because of his conversion to Christianity.
Turning first to the matters raised in the written submissions, what the applicant seeks is an order setting aside the Tribunal’s decision on the basis that, given the evidence before it, the Tribunal should have reached a different factual finding. Even were the Court to be of the view that the consideration which the Tribunal gave to the matters identified by the applicant was not “realistic”, as long as its finding was open to it on the evidence, no jurisdictional error is shown. That is the case here.
In relation to the allegation that the Tribunal failed to appreciate that the applicant’s father might behave differently because the applicant was no longer a Muslim, it should be recorded that the Tribunal’s reasons for concluding that the applicant did not have a well-founded fear of persecution at the hands of his father because of his conversion did not depend on whether the applicant was a Christian or a Muslim but on the Tribunal’s observation that the applicant’s father had demonstrated religious tolerance in the past. The Tribunal appeared willing to accept that the father might have been a harsh and cruel man but it also observed that he married a Christian and had not prevented his children from having a family relationship with their Christian relatives. For this reason, although the Tribunal expressly recognised that the applicant’s circumstances as a convert to Christianity might have been different from the circumstances of his mother and her relatives who were born Christians, it did not accept that there was real chance that the applicant would face persecution by reason of his religion were his father, or paternal relatives, to become aware of his conversion. The Tribunal based its relevant conclusion on a finding that the applicant’s father had demonstrated religious tolerance in the past and that the applicant’s conversion, although placing him in a situation somewhat different from his mother and Christian relatives, would nevertheless not incite his father to persecutory behaviour in light of his previous behaviour.
As to the allegation raised for the first time at the hearing of this application concerning the risk of persecution by the applicant’s paternal relatives, that issue was considered by the Tribunal in para.66 of its reasons where it was dismissed for the reasons given for dismissing the claim in relation to the applicant’s father.
For these reasons, the second ground of the amended application is not made out.
Apprehended bias
The applicant asserted in support of his allegation of apprehended bias on the part of the Tribunal that its finding that his father had adopted a tolerant attitude to religious differences was at odds with the evidence he had given which, he submitted, was to the effect that his father had not been so benign and had mistreated his wife and had also at least tolerated his family’s mistreatment of his wife. He said that the evidence also did not support the Tribunal’s statements in its reasons that there had been no suggestion in his evidence that religion had ever been the cause of violence in the family and that there was no persuasive evidence to suggest that the applicant’s father and his relatives had adopted a hostile or adverse view of the maternal side of the family for religious reasons.
Contrary to the applicant’s submissions, the evidence did support the statements which the Tribunal made. There was no evidence of religion-based violence within the family and the Tribunal’s statement concerning the absence of persuasive evidence does not say that there was necessarily no evidence, just that what evidence there may have been on the subject was not persuasive. In the absence of a factual foundation this allegation is no more than a complaint that the Tribunal did not draw from the evidence the conclusions which the applicant would have wished. That provides no basis to conclude that a fair-minded lay observer who was properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal had not brought an impartial and unprejudiced mind to the resolution of the question it was required to decide.
For those reasons the third ground of the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 December 2012
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