MZXRI & Anor v Minister for Immigration & Anor [2008] FMCA 124 (3 April 2008)

Last Updated: 8 April 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXRI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 124

MIGRATION – Refugee Review Tribunal – claimed persecution on the grounds of religion – Jehovah’s Witnesses in Lebanon – whether harm feared was serious harm or discrimination – whether Tribunal considered claims – application dismissed.

Appellant S395/02 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795

First Applicant:

MZXRI

Second Applicant:

MZXRJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 926 of 2007

Judgment of:

Riley FM

Hearing date:

7 February 2008

Date of Last Submission:

7 February 2008

Delivered at:

Melbourne

Delivered on:

3 April 2008

REPRESENTATION

Counsel for the Applicants:

John A. Gibson

Solicitors for the Applicants:

Haag Walker Lawyers

Counsel for the First Respondent:

Sharon Burchell

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) The application filed on 5 July 2007 and amended on 7 September 2007 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 926 of 2007

MZXRI

First Applicant

And

MZXRJ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application to review a decision of the Refugee Review Tribunal. The applicants are a husband and wife. There is a related application by the applicants’ adult son, namely, MZXRK v Minister for Immigration and Anor [2008] FMCA 125. The applications of the husband, wife and son were heard together before the Tribunal and before this court.
2. The applicants and their son are citizens of Lebanon and are Jehovah's Witnesses. Proselytising, engaging in door to door preaching and distributing religious material are part of the practice of the faith of Jehovah's Witnesses.

Claims

3. The husband claimed that he gave up being an elder because of increasing threats to his safety. He said he had to restrict his religious activity, including core tenets of his faith, such as preaching, to protect himself and his family from the continuous threat of physical violence. He said the family remained committed to their faith but had to effectively abandon its practice to guarantee their safety.
4. The husband said he and his family were despised by their neighbours who were mainly Orthodox Christians. He said he had been threatened on numerous occasions by his immediate neighbours and other inhabitants of his village who treated his family as outcasts. He said he was sacked from his job as a laundry manager on the basis that clients were unwilling to deal with a Jehovah's Witness. He said the family was accused of being supporters of international Zionism.
5. The husband said that the family could not rely on the authorities for protection. He said they feared seeking protection from the police because the police would in most cases detain the family on charges of disturbing the peace or conducting unauthorised public meetings. He said that Jehovah's Witnesses were not officially recognised in Lebanon as a religion and were instead attributed with a political belief. Because they refuse to join the military, Jehovah's Witnesses are considered enemies of the state of Lebanon and supporters of Israel.

Country information

6. The Tribunal cited the Jehovah's Witnesses Worldwide 2005 Report which said that there were 3585 Jehovah's Witnesses in Lebanon. The Tribunal noted that a Jehovah's Witnesses’ website provided current information on countries where Jehovah's Witnesses are facing harm and repression but did not list Lebanon as such a country.
7. The Tribunal said that it had found little information on violence against Jehovah's Witnesses in Lebanon but said that a DFAT report dated 11 May 2006 indicated that:
   1. Jehovah's Witnesses may be vulnerable to “hassle” from the security forces if, for example, someone held a grudge;
   2. Jehovah's Witnesses are not one of the 18 religions recognised under the constitution of Lebanon;
   100. Jehovah's Witnesses cannot legally convene for public assembly or worship without prior approval from the Interior Ministry;
   4. in practice, Jehovah's Witnesses are left in peace to assemble and worship;
   5. proselytising is not welcomed amongst the population;
   6. attempts to convert people to alternate faiths is considered trouble making by the security authorities; and
   7. Jehovah's Witnesses could be more vulnerable to discrimination than those from recognised sects.
8. The Tribunal also cited an Immigration and Refugee Board of Canada Country of Origin Research Response dated 8 November 2005 which said that:
   1. there were over 70 congregations of Jehovah's Witnesses in Lebanon which were able to worship discreetly;
   2. “Even so, we consistently learn of individual instances of harassment and intimidation by local authorities”;
   100. for example, the police have prohibited congregations from meeting for worship; and
   4. in May 1997, the Supreme Court upheld a ban and the Lebanese authorities closed three Kingdom Halls.

The Tribunal's findings and reasons

9. The Tribunal accepted that Jehovah's Witnesses in Lebanon face discrimination and considerable hostility from both Christians and Muslims. However, the Tribunal considered that the independent evidence provided no evidence of serious harm befalling Jehovah's Witnesses in Lebanon and no evidence that they had been prevented from practising their faith.
10. The Tribunal noted that the husband had faced discrimination in employment but had always been able to find work including managerial positions. The Tribunal considered that the discrimination faced by the husband in employment was not so serious or severe as to constitute persecution.

Grounds of review

11. The amended application contains four grounds of review. The grounds are:
    1. the Tribunal failed to deal with the claim that the full expression and exercise of the applicants’ religious beliefs were interfered with due to self-imposed restrictions on proselytising and distribution of literature due to threats of harm;
    2. the Tribunal failed to deal with the case as put of self-imposed restrictions on religious practice due to threats of harm consisting of localised hostility, threats and intimidation on the grounds of religion;
    100. the Tribunal failed to consider whether the applicants would be required to modify their religious practice owing to threats of harm if they had to return to Lebanon; and
    4. the Tribunal misconstrued the Convention ground of religion.

Consideration

12. At the hearing before this court, the parties treated the grounds of review in a composite manner.
13. The applicants submitted that the Tribunal ignored the issue of distribution and dissemination of literature. However, the Tribunal expressly found that the applicants’ religious duty of witnessing their faith required them to come into constant contact with people who may well resent and feel hostile towards the applicants’ attempts to convert them. The Tribunal considered that there were no reports of serious harm befalling Jehovah's Witnesses as they practice their faith in Lebanon. The Tribunal accepted that there were reports of occasional local instances of opposition but considered that there was no evidence that any such difficulties are so widespread as to prevent the applicants from practising their faith or constitute a real chance that serious harm might befall the applicants in the foreseeable future.
14. I consider that the Tribunal did deal with the issue of distribution and dissemination of literature by expressly dealing with the religious duty of witnessing. The Tribunal noted that witnessing required the applicants to come into contact with people who may resent and feel hostile towards the applicants’ attempts to convert them. Distribution and dissemination of literature falls within the category of activities that require the applicants to come into contact with people who may resent and feel hostile towards the applicants’ attempts to convert them.
15. The applicants argued that the Tribunal considered that there was no evidence of serious harm befalling Jehovah's Witnesses in Lebanon because the Tribunal equated serious harm with physical harm. I do not accept this submission. There is nothing in the Tribunal's decision that positively indicates that the Tribunal equated serious harm with physical harm. On the contrary, at page 3 of its reasons for decision, the Tribunal set out a statement of the meaning of serious harm. That statement included, for example, significant economic hardship and the denial of access to basic services.
16. Moreover, the applicants provided to the court a transcript of the proceedings before the Tribunal. At pages 12 to 14 of the transcript, the Tribunal said the following:
    • Persecution is much stronger than discrimination. Persecution means serious harm. ...
    • Persecution can mean physical harm. Persecution can mean no work, it can mean no education. Discrimination is not nice, but you can still lead a normal life. ...
    • In March 1997 three [Kingdom Halls] were closed, and that was as a result of local hostility. But that does not seem to be a general situation of closing down of kingdom halls. ... So there are a few examples of mistreatment. But I cannot find evidence there that Jehovah's Witnesses cannot live reasonably and follow their faith.
17. In view of the absence of any indication in its reasons for decision that it equated physical harm with serious harm, in view of the description of serious harm set out at the commencement of the Tribunal's reasons, and in view of the transcript, I am not persuaded that the Tribunal made the fundamental error of equating serious harm with physical harm.
18. The applicants argued that the Tribunal did not deal with the issue of the applicants restricting their behaviour because they feared serious harm. However, the Tribunal set out the claims made by the applicants at pages 4 to 9 of its reasons for decision. Those claims included the claim that the applicants had restricted the practice of their faith due to the continuous threat of physical violence. The Tribunal accordingly can be taken to have been aware of the claim.
19. However, the Tribunal did not accept it. The Tribunal considered that the applicants did not need to restrict the practice of their faith because of a real chance of serious harm in the foreseeable future.[1] Rather, the Tribunal considered that the resentment and hostility that the applicants’ practice of their faith might generate would constitute something less than persecution. That is, the resentment and hostility would not lead to physical harm or anything else that could properly be described as serious harm.
20. The applicants also argued that the Tribunal's failure to refer to relevant authorities on religious persecution may indicate that the Tribunal was not approaching its task correctly. The relevant authorities include Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 and Appellant S395/02 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473. The applicants argued that the Tribunal displayed no appreciation of the fact that it might be serious harm to be prevented from fully practising one's religion because of a well founded fear of persecution: Farajvand at [34].
21. However, the Tribunal did not accept that the applicants had a well founded fear of persecution. Rather, the Tribunal considered that the applicants had a well founded fear of discrimination, resentment and hostility. These things, in the Tribunal's view, do not amount to persecution. That conclusion was open to the Tribunal.
22. Accordingly, there was no need for the Tribunal in its reasons for decision to spell out the various ways in which a person may be persecuted on the grounds of religion.
23. All in all, I am not persuaded that the applicants have identified a jurisdictional error in the Tribunal's reasons for decision. Accordingly, the application must be dismissed with costs.
24. As this matter was heard with a related matter, it may be appropriate to depart from the usual costs order in this case or in the related matter. Accordingly, I will hear the parties on the question of costs.

And I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Catherine Wilson

Date: 3 April 2008

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[1] The first full paragraph at page 12 of the Tribunal's reasons for decision.