SZMZV & Anor v Minister for Immigration & Anor [2009] FMCA 617 (3 July 2009)

Last Updated: 6 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 617

MIGRATION – Persecution – review of Review Refugee Tribunal decision – visa – protection visa – Tribunal did not fail to deal with an issue raised by the applicants – Tribunal not required to identity particular locations in the country of nationality where an applicant might relocate – whether relocation is reasonably practicable depends on the particular objections to relocation raised by an applicant – two separate bases for Tribunal decision.

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660

First Applicant:

SZMZV

Second Applicant:

SZMZW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3153 of 2008

Judgment of:

Cameron FM

Hearing date:

25 June 2009

Date of Last Submission:

25 June 2009

Delivered at:

Sydney

Delivered on:

3 July 2009

REPRESENTATION

Counsel for the Applicants:

Mr J.R Young

Counsel for the Respondents:

Ms L. Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3153 of 2008

SZMZV

First Applicant

SZMZW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of Malaysia where the first applicant claims that she, a Hindu, began a relationship with the second applicant, a Christian, to whom she became engaged. The first applicant alleges that while in Malaysia her family found out about this relationship and both applicants were beaten and threatened by her family.
2. The first applicant claims to fear persecution in Malaysia because her family has made threats against both her and the second applicant and because the authorities cannot assist them.
3. After the first applicant’s arrival in Australia on 17 March 2008, the applicants lodged an application for a protection visa. This was refused by the Minister’s delegate on 26 June 2008. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
4. For the reasons which follow, the application will be dismissed.

Background facts

5. The facts alleged in support of the first applicant’s claim for a protection visa are set out on pages 4 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 73 – 77). Relevant factual allegations are summarised below.
6. In her statutory declaration provided in support of the application for a protection visa, the first applicant claimed that:
   1. she is from a traditional and conservative Malaysian Hindu family, however, she fell in love with a Christian man and ran away from her family;
   2. she kept her relationship with the man a secret because her family is very conservative and religious. She also claimed that they can never be seen together in public as they would be outcast from her family and the community;
   100. when a family member saw the applicants together, the first applicant was beaten and locked in a room for two weeks until she promised her parents that she would not see the man again;
   4. subsequently, her family pressured her to marry a man from the same caste and religion and when the first applicant refused, they threatened to kill her and her partner. The applicants then decided to leave Malaysia in secret; and
   5. she is very depressed about her helpless situation and very worried about the future of her and her fiancé.
7. On 15 September 2008 the applicants appeared before the Tribunal to give evidence and present arguments and made the following additional claims:
   1. the applicants intend to marry and approached a priest to discuss this. He told them that they needed about six months and that they needed to be permanent residents of Australia;
   2. the first applicant said that she met the second applicant at a company where she worked in 2004 as he was a friend of her boss;
   100. the applicants became close friends and on 6 May 2005 the second applicant proposed marriage to the first applicant. Their relationship subsequently developed and they planned their future;
   4. on 3 June 2007 the applicants went out to eat and a cousin saw them and reported back to the first applicant’s parents. Later that same night, her parents told her that she could not marry the second applicant because of his religion. She said that her parents were aware of his religion because she had told them;
   5. the first applicant’s parents did not consent to the proposed marriage. They beat her and scolded her. She said that she could not do anything when her parents beat her because they are her parents and her sister was also there;
   6. the first applicant claimed that her parents asked where the second applicant worked. The following day they threatened him and beat him up at his home. The second applicant called her at work and told her he was going to report the incident to the police, but she pleaded with him not to;
   7. the second applicant came to Australia on 6 September 2007 and the first applicant arrived on 16 March 2008. During their time apart they maintained contact by telephone, however, there was no evidence to support this claim because the second applicant uses a “recharge phone” and does not receive mobile phone statements;
   8. the Tribunal noted to the first applicant that even were it to accept her claims, she appeared to be able to access reasonable and effective state protection. In response, the applicant said that her parents were very strict and they had a relative who was a police inspector who they said could make a case against the second applicant. She also said that she did not report the incidents because she did not want her family to go to prison. She further said that she could not expect the Malaysian authorities to protect her 24 hours a day, that if bribes were offered anything could happen and that, if she were a Muslim, the actions of the authorities would be different; and
   9. the Tribunal noted that the applicants might be able to relocate to other parts of Malaysia. The first applicant responded that Hindus were everywhere and her relatives would allege that the second applicant had abducted her, the police inspector might trace them and they had relatives everywhere in Malaysia.
8. The second applicant appeared before the Tribunal and reiterated the first applicant’s claim that her family beat him and threatened to kill him.

The Tribunal’s decision and reasons

9. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that they are persons 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’s decision was based on the following findings and reasons:
   1. although the Tribunal had some doubts about the first applicant’s claims to fear harm as a result of her relationship with the second applicant, it accepted that members of her family ill-treated the applicants when they discovered their relationship. It also accepted and that neither applicant reported any incidents to the police. The Tribunal was satisfied that the harm suffered by the applicants was private in nature and not connected with the authorities;
   2. the Tribunal was satisfied that the first applicant would receive adequate state protection for any private harm she may fear, noting that:
      1. the first applicant explained that because the offenders were members of her family she did not want to report the incidents to the Malaysian authorities and she did not want her partner to do so either. Although the Tribunal accepted this explanation, this meant that there was no evidence to suggest that the Malaysian authorities are unable or unwilling to provide state protection;
      2. independent country information about Malaysia indicates that although there are problems in some areas, the government generally respected the human rights of its citizens; and
      3. even were the Tribunal to accept that the first applicant has a relative who is a police inspector who could make a case against her partner, given the country information and in consideration of the evidence as a whole, the Tribunal was satisfied that the Malaysian legal system provided the applicants with adequate protection against what would amount to corruption and misuse of position. The relative would be acting unlawfully and would face serious consequences including disciplinary action;
   100. the Tribunal was satisfied that the applicant would receive adequate state protection for any private harm she may fear;
   4. the Tribunal was satisfied that there is no real chance that the first applicant would suffer the harm she fears everywhere in Malaysia. It considered far-fetched her claim that she had relatives in other parts of Malaysia who could harm her, noting that Malaysia is a large country with a population of approximately 26.9 million people; and
   5. the Tribunal was satisfied on the basis of available information that there is no impediment to the applicants being able to marry in Malaysia. It further found that it would be reasonable for the applicants to relocate to other parts of Malaysia and that this would not involve surrender of fundamental rights of the kind protected by the Convention.
10. The second applicant sought a visa on the basis of his membership of the first applicant’s family. The outcome of his application depended on the outcome of hers.

Proceedings in this Court

Differential treatment

11. The first ground of the amended application was pleaded as follows:
    • In relation to the applicant’s [sic] claims that government authorities did not provide effective protection and/or provide differential treatment and/or were susceptible to bribes in relation to non-Muslims, the Second Respondent made jurisdictional error in that the Second Respondent:
      • a. Constructively failed to exercise jurisdiction; and/or
      • b. Having accepted that there were some issues in support of the claims, failed to deal with these issues thereby failing to deal with considerations identified by the Second Respondent itself as relevant; and/or
      • c. Identified certain issues which could not rationally adversely affect the applicant’s [sic] claims thereby taking into account irrelevant considerations; and/or
      • d. Failed to deal with an issue of the applicant’s [sic] claims; and/or
      • e. Failed to deal rationally with the applicant’s [sic] claims; and/or
      • f. Failed to give proper, genuine and realistic considerations to the applicants’ claims.
12. The first ground of review is based in part on the applicants’ allegation that they would receive differential treatment, which presumably means less effective protection, from Malaysian authorities because they are not Muslims. At the outset, it might be noted that the first applicant told the Tribunal that she had not reported her parents to the police and did not want to send them to prison. In circumstances where the first applicant has not sought state protection and appears reluctant to do so in the future, the applicants’ claim of inadequate state protection rings hollow.
13. However, the applicants have pressed the allegation, referring to the Tribunal’s acknowledgement that although religious freedom is provided in the Malaysian constitution, there is economic and educational discrimination in favour of the majority ethnic Malays and there have also been a few reports of societal abuse or discrimination based on religious belief or practice. Political parties are also largely organised along ethnic and religious lines, suggesting that minority ethnic and religious groups are politically marginalised and comparatively powerless.
14. The applicants submit that although the Tribunal did identify matters touching on the differential treatment of different ethnic and religious groups in Malaysia, it did not actually deal with the applicants’ claims to be subject to differential treatment. They submit that, as a consequence, the Tribunal failed in its jurisdictional duty.
15. The applicants adduced no evidence in support of the first applicant’s bald allegation that she and the second applicant would enjoy different treatment if they were Muslims and, moreover, they did not identify what such differential treatment would be. The Tribunal’s discussion indicates that the matters which it itself identified did not satisfy it that the applicants would, by reason of their religions, enjoy a lesser standard of state protection than ethnic Malays who are all deemed to be Muslims. The Tribunal identified practical qualifications to the constitutional guarantee of freedom of religion but went on to conclude that, on the basis of the body of evidence in its possession, it was not satisfied that the first applicant would be denied adequate state protection for any Convention reason, including religion, and in fact was satisfied that she would receive adequate state protection for any private harm she may fear.
16. Further, although the Tribunal did acknowledge the possibility of religious-based discrimination in Malaysia, it must be recognised that this discussion did not stand alone. Rather, it formed part of a broader consideration of human rights in Malaysia. In this regard, the Tribunal said at para.54 of its decision:
    • Independent country information about Malaysia indicates that although there were problems in some areas, the government generally respected the human rights of its citizens.
17. The applicants described the matters which the Tribunal identified in the absence of any particularisation by them of their allegations concerning the potential for differential treatment, as a “ragbag of matters” which could not form the basis of a proper, genuine and realistic consideration of their claim that differential treatment was given to non-Muslims in Malaysia. However, the Tribunal considered these matters which, it must be said were potentially supportive of the applicants’ allegation, in the wider context of all the evidence before it and reached the conclusion that there was no evidence before it that the Malaysian authorities had been unable or unwilling to provide state protection. No error is disclosed by this approach.
18. The applicants also submitted that the Tribunal failed to consider what the applicants had alleged concerning bribery, presumably of state officials. However, the true significance of this issue is elusive. The Tribunal recorded the first applicant’s allegation in the following terms:
    • She said that if bribery is offered anything can happen. (para.38)

The Tribunal cited a further allegation made by the first applicant:

She said that if she were Muslim, the action of the authorities would be different. (para.38)

19. It is not obvious that these two allegations are linked but if they are, presumably if anything can happen should a bribe be offered then the applicants’ non-Muslim status would be irrelevant. Conversely, if the authorities’ attitude to the couple would be determined by their status as non-Muslims, then the question of bribery would be no more than incidental to the real basis of discrimination against them.
20. However, on the assumption that the bribery issue is a matter distinct from religion-based discrimination, I conclude that the applicants’ allegation that it was not dealt with by the Tribunal cannot be sustained. Relevantly, the Tribunal said:
    • 56. The applicant contended that she cannot expect the Malaysian government to protect her 24 hours a day. She said that if bribery is offered anything can happen. She said that if she were Muslim, the action of the authorities would be different.
    • 57. Governments cannot be expected to protect citizens 24 hours a day, nor are they expected to unconditionally guarantee the safety of their citizens. As to her claim of differential treatment based on religion, whilst there are some issues, the Constitution provides for freedom of religion; ...
21. A consideration of these paragraphs discloses that in para.57 of its decision the Tribunal dealt with the issues set out in para.56 in the same order in which they had been rehearsed in that latter paragraph. That is to say, in response to the claim concerning bribery, the Tribunal correctly observed that governments are not expected to guarantee unconditionally the safety of their citizens: Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at 11 [26]. The possibility that a state’s otherwise effective procedures for providing protection for its citizens might occasionally be subverted by instances of bribery does not lead to the conclusion that state protection is unavailable or ineffective in that country.
22. Consequently, to the extent that the Tribunal was required to deal with the question of bribery it did so adequately, if briefly, and its conclusion on this point formed part of its overall decision that state protection was available.
23. Finally, the applicants said that the Tribunal gratuitously characterised the harm they claimed to fear as private in nature. The significance of that submission was not made clear but the Tribunal’s form of expression should be understood to be directed to distinguishing between the potential for harm at the hands of state actors and the potential for harm at the hands of others. The Tribunal’s description of the harm allegedly feared as private harm had no particular significance for its decision other than as the background for its observation that fear of such harm can satisfy the Convention test if the state is unwilling or unable to prevent it.

Relocation

24. The second ground of the amended application was pleaded as follows:
    • The Second Respondent made jurisdictional error in relation to its findings as to relocation in that the Second Respondent;
      • a. Failed to give consideration to where in Malaysia the applicants could relocate
      • b. Failed to give consideration to the practical realities of the applicants in relation to relocation
      • c. Considered only theoretical considerations of reasonableness based upon country information and not the individual circumstances of the applicants and the practical realities of their situation if required to relocate.
25. The Tribunal’s discussion of relocation was principally focused on whether the applicants would confront an appreciable risk of the allegedly feared persecution if they relocated to somewhere else in Malaysia. It was satisfied that the first applicant would not suffer the harm she alleged she fears anywhere in her country of nationality.
26. At the outset, it should be noted that the Tribunal is not required to identify particular locations in the country of nationality to which an applicant might reasonably relocate. So much seemed to be conceded by counsel for the applicants in response to a question from the Court. For instance, in some cases it would be sufficient to observe that persecution would not be experienced other than in a particular locality so relocation to anywhere else in the country of nationality could be expected, if reasonably practicable.
27. Of more significance, the applicants submitted that the Tribunal failed to have proper regard to the practicability of relocation. In SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 it was said:
    • The Minister framed the issue ... as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. ...
    • However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. (at 26-27 [23]-[24] per Gummow, Hayne and Crennan JJ)
28. The applicants submit that the Tribunal failed to give consideration to how, in a practical sense, they could relocate and referred to the reasons for judgment of Branson J in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37. However, as was noted in SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 at [124], the answer to the question of whether relocation is practicable in an applicant’s particular circumstances depends on the particular objections to relocation raised by that applicant.
29. When the Tribunal put the possibility of relocation to the first applicant, she responded that her relative who is a police inspector could use his position to make out a case against the second applicant. She also said that there are Hindus everywhere, that her relatives would allege that the second applicant had abducted her and that, in any event, she had relatives everywhere in Malaysia. However, when queried on this latter allegation she only identified a sister in Kuala Lumpur and two uncles, one in Selangor and the other in Johor. The second applicant did not add to these allegations.
30. The Tribunal, by implication, found the allegation concerning the police inspector to be implausible. It went on to say that even if that allegation was accurate, there were adequate protections in Malaysia for the applicants against such unlawful and corrupt behaviour. The allegation regarding there being Hindus everywhere in Malaysia was linked to the first applicant’s allegation to have relatives throughout that country. It seems that the applicant was saying that those relatives would enlist the support of their local Hindu communities by alleging that the second applicant had abducted her. The Tribunal rejected as far-fetched her allegations concerning her relatives.
31. In this case, and as required by SZMCD’s case, the objections which the first applicant raised concerning the practicability of relocation were considered and dealt with by the Tribunal. As a result, jurisdictional error is not demonstrated in respect of the second allegation raised in the amended application.
32. However, if I am wrong in that conclusion, the two grounds raised by the applicants provide separate bases for the Tribunal’s decision. As there are two independent bases for the Tribunal’s decision, as long as one of them is not affected by jurisdictional error, the decision is not liable to be set aside: SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]. At the minimum, that is the case here.

Conclusion

33. Jurisdictional error on the part of the Tribunal has not been demonstrated.
34. Consequently, the application will be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 3 July 2009