MZZVE v Minister for Immigration & Anor [2014] FCCA 1215 (22 May 2014)

Last Updated: 13 June 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVE v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1215

Catchwords: MIGRATION – Application for review of decision of the Refugee Review Tribunal – alleged failure of the Refugee Review Tribunal to consider claims – no failure on the part of the Refugee Review Tribunal to consider claims found – claims rejected – application dismissed.

Legislation: Migration Act 1958 (Cth), s.36(2)(aa)

Applicant:

MZZVE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1852 of 2013

Judgment of:

Judge Whelan

Hearing date:

22 May 2014

Date of Last Submission:

22 May 2014

Delivered at:

Melbourne

Delivered on:

22 May 2014

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms Latif

Solicitors for the First Respondent:

Clayton Utz

ORDERS

(1) The Application filed 1 November 2013 be dismissed.
(2) The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

MLG 1852 of 2013

MZZVE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the
   Refugee Review Tribunal (“the Tribunal”) dated 7 October 2013.
   In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. The Applicant now seeks orders that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the application according to law.^[1]

Background

2. The Applicant is a citizen of Malaysia and is of Chinese ethnicity. He is a follower of the Yi Guan Dao faith. The Applicant claimed fear of persecution by reason of his religious beliefs. He entered Australia on a visitor’s visa on 20 June 2012 and on 12 November 2012, lodged this application for a protection visa.
3. On 12 July 2013, a delegate of the Minister refused to grant the Applicant the visa. On 15 July 2013, the Applicant applied to the Tribunal for a merits review of the delegate’s decision.
   On 20 September 2013, the Applicant appeared before the Tribunal to present evidence and argument in support of his application.
   An interpreter and the Applicant’s migration agent both attended the hearing and the Applicant’s mother appeared as a witness.
4. On 7 October 2013, the Tribunal notified the Applicant of its decision and on 1 November 2013, this application for judicial review was lodged.
5. In a statement in support of his visa application, the Applicant claimed as follows:
   • He left Malaysia to escape religious persecution as a follower of the Yi Guan Dao faith;
   • His family was broken up because he refused to convert to Islam after having married a Muslim woman;
   • When he married, the village elders from his Wife’s village agreed that he could maintain his religious beliefs. However, he was unable to officially marry his Wife because he was not Islamic. He could also not be registered as the father of his children;
   • He was pressured by his Wife’s family to convert to Islam and his Wife’s family threatened to report him to the religious police;
   • In August 2011, his Wife left with the children and he has not seen them since;
   • He believed his Wife’s family had conspired with the religious police to kidnap them and hide them from him and that they would only be returned if he converted to Islam; and
   • He feared that if he returned to Malaysia, he would be forced to convert to Islam and his whole family would face continuous harassment and systematic persecution.
6. The Applicant also provided a statement from his sister, in which she gave an account of the circumstances in which the Applicant’s partner and children left in August 2011. The Applicant’s sister, her husband and children had also applied for protection visas. The Applicant provided a copy of a decision of the Tribunal on the protection visa application lodged by the Applicant’s sister and her husband.
   They were refused a protection visa.
7. The Applicant was a witness in his nieces’ protection visa application. The Applicant’s migration agent filed submissions in which he claimed that:
   • The Applicant had been discriminated against as a non-Muslim;
   • He and his family were in constant fear of losing their freedom; and
   • The Applicant was being forced to convert to Islam by the State.^[2]
8. After the hearing, the Tribunal sent the Applicant a letter inviting him to comment on information it considered may form the reason, or part of the reason, for affirming the delegate’s decision. The Tribunal referred to inconsistencies in evidence concerning the circumstances in which the Applicant’s Wife and children had left in 2011, including whether:
   • The children were removed by the authorities; and
   • The Applicant approached the police afterwards and what had been said to the police.
9. The Applicant had given evidence in respect of these matters at the hearing of the review application concerning his nieces, as well as at his own review application. The Applicant’s mother had also given evidence on these matters at the hearing of his application.
   Consistent with the invitation of the Tribunal, the Applicant provided comments and further country information in support of his claim.

The Tribunal’s decision

10. The Tribunal’s decision set out the:
    • Legal framework for the review;
    • Applicant’s claims;
    • Evidence; and
    • Tribunal’s findings.

The Tribunal identified contradictions in the Applicant’s evidence in relation to his relationship with his Wife, and stated that this contradictory evidence was of significant concern to the Tribunal.

11. The Tribunal noted that the Applicant and his partner were in a relationship with the full knowledge of his partner’s family. They were able to cohabit and have children and did not, at any stage, attract the adverse attention of the authorities. The Tribunal noted the Applicant had not made any claims of personal harm or mistreatment by the authorities during the currency of their relationship. The Tribunal also noted the Applicant was asked to convert to Islam by his partner’s family but did not, and nothing was done to affect the living conditions of the Applicant, his partner or children.
12. The Tribunal found the authorities were not involved in the removal of the Applicant’s partner or children in August 2011, and also found their removal was conducted by his partner’s family. The Tribunal further found the Applicant spoke to the police after their removal, and that he disclosed the circumstances of their abduction, including the religious differences at the heart of his claims. The police showed no interest in prosecuting the Applicant in respect of religious matters.
13. The Tribunal considered that this demonstrated the police had no interest in pursuing the Applicant for any contravention of any law in respect of his relationship. The Tribunal found the nature of the Applicant’s relationship with his partner was known in the general community and did not accept that he and his partner were unable to live publicly in Malaysia.
14. The Tribunal did not accept that the authorities, religious or otherwise, would have any interest in the Applicant, nor did the Tribunal accept the Applicant would be forced to convert to Islam. The Tribunal did not accept that the Applicant’s children were removed by reasons of his religious beliefs. The Tribunal did not consider the Applicant would face a real chance or real risk of harm from the application of Malaysian laws now, or in the reasonably foreseeable, future.
15. The Tribunal also did not accept that the Applicant would be forced to convert in the future and be forced away from his current religious practices. The Tribunal found the Applicant did not have a real chance of serious harm from his practice of religion.
16. The Tribunal did not accept the Applicant had been discriminated against in the application of Malaysian law in a manner that constituted serious harm or significant harm. The Tribunal also did not accept that being left off the birth certificates of his children constituted serious harm or significant harm.

Grounds for review

17. In the grounds for the application, the Applicant states that:
    • 1. Tribunal did not consider the risk of loss of liberty of the applicants
    • 2. Tribunal did not consider the risk of personal harm of the applicants under S.91R
    • 3. Australia should grant protection visa as Applicant satisfied criteria in s 36(2)(aa) for complementary protection^[3]

The First Respondent’s submissions

18. In its written submissions,^[4] the First Respondent stated that ground one was unclear. The only claim of loss of liberty the First Respondent identified in the materials was a claim that the Applicant’s children were abducted in August 2011. The First Respondent submits that the Tribunal gave express consideration to this claim.
19. With respect to the second ground, the First Respondent submits that the Tribunal was under no obligation to make findings in respect of personal harm at large. The Tribunal’s task was limited to determining whether the Applicant came within the relevant subsections of the Migration Act 1958 (Cth) (“the Act”) and it discharged its statutory function in doing so.
20. With respect to the third ground, the First Respondent submits that this is essentially a request for the Court to reconsider the application on its merits.

Conclusions

21. With respect to the claim to fear loss of liberty, this claim was first made by the Applicant’s migration agent in submissions in support of his visa application. In a letter dated 19 March 2013, the migration agent states, “[the Applicant] and family lived in constant fear of losing their freedom, and personal liberty”.^[5] There is also a reference to the Applicant’s Wife “walk[ing] off a few times in 2010 due to pressure, threats and coercion from the State”,^[6] and to the children being forcibly taken in August 2011.
22. At page 118 of the Court Book, the migration agent again states,
    “[The Applicant] has a well founded (sic) fear of being persecuted, real fear of losing his liberty (such fate has already fallen on his wife ... and his 2 children)”.^[7] This same statement was repeated in the submissions to the Tribunal by the migration agent.^[8] At paragraph 48^[9] of its decision, the Tribunal refers to the submissions, including a submission with respect to risk of losing personal liberty.
    These references all referred to the children being removed.
    The Tribunal did not accept that religious or other authorities were involved in the removal of the children, but rather that it was done by the family of the Applicant’s Wife.
23. At paragraph 74 of the decision, the Tribunal states:
    • ... the Tribunal does not accept that the children were removed due to the applicant’s belief in Yi Guan Dao or non-belief in Islam. The Tribunal considers the children were taken by his partner and his (sic) family for reasons relating to the upbringing of the children themselves, not the applicant’s own religious circumstances.^[10]
24. In those circumstances, it was reasonable for the Tribunal to find that there was no fear of loss of liberty on behalf of the Applicant associated with the removal of the children.
25. The second ground was that the Tribunal did not consider the risk of personal harm to the Applicant. The Applicant claimed that if he returned to Malaysia, he would be subject to continuous harassment and systematic persecution and would have to convert to Islam in order to see his children.
26. The Tribunal considered the Applicant’s claims at paragraphs
    51 to 86^[11] of the decision. At paragraph 57,^[12] the Tribunal found that the Applicant had, in fact, not made any claims about being personally harmed or mistreated by the authorities due to the relationship with his de facto Wife. The only reference he made was to the non-inclusion of his name on the birth certificates of the children which the Tribunal found not to constitute serious harm or significant harm as defined by the Act.
27. The Tribunal found that the police had no interest in pursuing the Applicant for any contravention of any law in relation to his relationship. It further found that there was no intervention in the relationship by the religious police, and the Tribunal did not consider that the authorities, religious or otherwise, would have any interest in the Applicant. The Tribunal did not accept that the Applicant would be forced to convert to Islam if he wanted to see his children, and gave reasons for this.
28. The Tribunal also found that the Applicant did not have a real chance of serious harm from his practice of his religion in Malaysia and again, gave reasons for this conclusion.
29. The Tribunal did consider both the risk to the Applicant of loss of liberty and the risk of personal harm for a Convention reason.
30. With respect to ground three, there is no allegation of error on the part of the Tribunal in its application of s.36(2)(aa) of the Act.
    The statement is not one upon which the Court can make any determination.
31. For these reasons, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:


Date: 12 June 2014

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^[1] Application filed 1 November 2013, at p.3.
^[2] Court Book filed 16 January 2014, at pp.109-110.
^[3] Application filed 1 November 2013, at p.3.
^[4] First Respondent’s Contentions of Fact and Law filed 15 May 2014.
^[5] Court Book filed 16 January 2014, at p.110.
^[6] Ibid.
^[7] Ibid.
^[8] Ibid, p.290 at para.7.
^[9] Ibid, at p.336.
^[10] Court Book filed 16 January 2014, at p.341.
^[11] Ibid, at pp.337-344.
^[12] Ibid, at p.338.