MZYLA v Minister for Immigration & Anor [2011] FMCA 499 (25 July 2011)

Last Updated: 26 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 499

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error.

Migration Act 1958 (Cth), ss.36(2)(a), 91R Migration Regulations 1994 (Cth), Part 866 of Schedule 2 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v VBAO of 2002 [2004] FCA 1495; (2004) 139 FCR 405 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1

Applicant:

MZYLA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 208 of 2011

Judgment of:

Hartnett FM

Hearing date:

30 June 2011

Delivered at:

Melbourne

Delivered on:

25 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms Latif

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA ATMELBOURNE

MLG 208 of 2011

MZYLA

Applicant

And

MINISTER FOR IMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 January 2011 affirming a decision of the first respondent by his delegate not to grant the applicant a protection visa.
2. The applicant filed the proceedings on 17 February 2011 and amended his application by amended application filed 6 June 2011. Essentially, the applicant raises three grounds of review. They are that the Tribunal:

(a) misunderstood and/or misconstrued the test for evaluating whether the applicant had a well-founded fear of persecution by conflating the subjective and the objective elements of the Convention test as amended by s.91R(2) of the Act and without considering whether objectively the harm inflicted upon him by his father was “serious harm” within the terms of s.91R(2) of the Act and/or misconstrued and/or misunderstood the meaning of “serious harm” by failing to recognise that what was inflicted upon him constituted significant physical harassment and/or physical ill-treatment;

(b) failed to consider the issue of State protection in the context of the applicant’s fears of persecution at the hands of his father and/or family members; and

(c) misunderstood and/or misconstrued the test of State protection as regards protection from serious harm at the hands of Muslim extremists by failing to evaluate and/or consider the efficiency and impartiality of the police or the efficacy of institutional and organisational protective measures which were available in Turkey.

3. The applicant first arrived in Australia on 20 November 2009 whilst working on an American cruise ship. He applied to the Department of Immigration and Citizenship (“the Department”) for a protection visa on 11 December 2009. On 1 March 2010, a delegate of the Minister of Immigration and Citizenship refused the application. On 17 March 2010, the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision of the delegate. The date of decision was 21 January 2011. The applicant was provided with a copy of the Tribunal’s statement of decision and reasons in letter of 24 January 2011.
4. S.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, the “Refugees Convention”). Further criteria for the grant of a protection (class XA) visa are set out in Part 866 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

Background

5. The applicant was born in Turkey, was married there but states that he separated from his wife in 2008. He studied tourism, business and hotel management at Balikesir University for some four years, leaving in 1999 after completing his degree. The applicant also completed six months of military service. He came to Australia with a maritime crew visa. In his protection visa application he states that he was an assistant waiter with Royal Caribbean, a cruise ship operator and that he came to Australia to work on a vessel named Rhapsody of the Seas. Previously he worked in hotels, two from 1999 to 2004, and in a management position at a pizza restaurant in 2007 and 2008.
6. In his protection visa application the applicant stated that he was a Christian and claimed to have a well-founded fear of persecution by reason of his religion. Central to his application for judicial review was his claim that he had converted to Christianity and faced pressure from his family as a result.
7. The applicant claimed to fear for his life should he return to Turkey. He feared that his family would “damage him” and he feared the Turkish police, who had been “already following” him. He stated he thought his life would be like hell. He further claimed that the authorities could not protect him and had been unable to protect other Christians, some of whom had been killed in Turkey over recent years. Information provided upon his interview with the delegate on 4 February 2010 included his claim that he feared his father would kill him if he returned to Turkey.
8. On the hearing of the matter, the Tribunal had before it the Department’s file relating to the applicant. The Tribunal also had regard to the material referred to in the delegate’s decision and other material, including country information available to it from a range of sources. The Tribunal also received an extensive submission from the applicant’s representative on 6 May 2010 containing additional information about the applicant’s claims.
9. In the material provided to the Tribunal in support of his claims, the applicant expanded upon those claims. He claimed, as set out in the first respondent’s contentions of fact and law, paragraph 10:

(a) to be a Muslim-born man of Turkish origin who had converted to Christianity and engaged in missionary activities whilst in Turkey;

(b) to have suffered violent attacks from his family members, including his father beating him and threatening him with a knife on two occasions and threatening to kill him or arrange to have him killed if he remained a Christian. He did not tell his family he had converted, because he was scared of their response. His father learned of his conversion whilst he was undergoing compulsory military training. His family pressured him to remove “Christianity” from his Turkish identification card. The applicant’s father informed his employer of his conversion and, as a result, the applicant lost his job;

(c) to have been kidnapped and tortured by masked secret police and interrogated in relation to his religious conversion, his international Christian contacts and his missionary activities;

(d) the legal protection afforded to religious minorities (including Christians) in Turkey has not resulted in actual “on-the-ground” effective safety.

10. The applicant appeared before the Tribunal on 1 and 4 June 2010 and gave evidence. The Tribunal was assisted by an interpreter in the Turkish and English languages.
11. At the hearing, the applicant claimed that his family lived in Bergama and had lived there since his father’s retirement around six or seven years ago. Between his university studies and working, on holidays, after his military service and between jobs, he stayed with his family and sometimes, with friends. He said that his father was “a man prone to violence” which he said was “normal in Turkey.” He described his father “having a stick and hitting people.”
12. The applicant confirmed that he had become a Christian in 1998 and that he was baptised in 1999. He said he had to hide this conversion from his family, including his extended family. His father learned of his conversion when getting documents together in preparation for the applicant’s marriage to his first wife in 2000. The Tribunal member asked the applicant if his father had said anything about his son marrying a Christian and the applicant told the Tribunal that his father had asked him if he was sure and if he had thought about the cultural differences; the applicant felt that his father would have preferred the applicant marry a Turkish woman, but what he said to the applicant was of the nature of advice (paragraph 51 of the reasons).
13. The Tribunal member put to the applicant that his father had known he was a Christian for about nine years before the applicant came to Australia and asked the applicant what his father had done over those years. The applicant responded that his father pressured him a lot and complained and accused the applicant of not being Turkish. The applicant further said that his father swore at him, called him names and threatened him from around 2001, he thought. He further claimed his father had hit him and that his father had bashed him (slapping, kicking and punching) countless times. He said his mother would sometimes be able to intervene in an attempt to protect the applicant from harm and it was after this mistreatment by his father the applicant left home around 2001.
14. The applicant further claimed that his father attacked him with a knife twice, the first time being around 2005, and again just a week before he left Turkey for Australia in 2009. The applicant said that his father’s threats and attacks had been worse when the applicant was staying with his family.
15. The applicant claimed that he had been dismissed from jobs because he had converted to Christianity and the Tribunal member explored that issue with him at the hearing.
16. Finally, the applicant claimed further that he had a missionary friend who was killed in Malatya in April 2007 and that he himself had been followed and his activities and communications monitored by police. He said he was kidnapped after going to the United States Consulate in July 2009. The Tribunal member asked the applicant why the police would have been following him and listening in to his conversations. The Tribunal member asked him about why it was he thought the police or security authorities detained him and what information they sought from him. The Tribunal member informed the applicant his failure to mention anything about this alleged incident with such obvious relevance to his case until the review stage gave rise to doubt that it was an accurate account of what had happened to him, and that the Tribunal member was concerned it may not have happened at all. The applicant was advised that this submission so late in the process after his application was refused might be a reason or part of the reason for affirming the decision under review. He was invited to comment on this and offered an adjournment if he wished to take time to consider his response. He responded at the hearing. Further evidence was provided at the Tribunal hearing and later submissions were made and provided to the Tribunal member after the hearing.
17. The Tribunal member provided a draft account of the evidence to assist the applicant with the framing of any further submissions which his representative wished to make.
18. At the hearing the Tribunal said to the applicant that his father had known he was a Christian for about nine years before he came to Australia but noted that he had not come to serious harm. The applicant addressed that issue in his further written submissions and the Tribunal took that response into consideration.

The Tribunal’s Decision

19. The Tribunal accepted the applicant’s account of the circumstances which led him to become a Christian in the 1990s and to travel to South Africa in 1999 to be baptised. The Tribunal noted the Refugees Convention reason proferred by the applicant as to his having a well-founded fear of persecution was for reason of religion. This reason was considered by the Tribunal broadly, it noting that the place of religion was a significant political issue in Turkey and that the applicant belonged to a particular social group of people who have converted to Christianity from Islam.
20. The Tribunal had regard to the evidence before it including as to country conditions as they related to the applicant’s claims and set out its findings about the applicant’s evidence concerning his experiences in Turkey before addressing whether his fear of persecution in the event of his return was well-founded. It considered the applicant’s evidence in light of the need for persecution to involve serious harm to the applicant. The Tribunal accepted that there was discrimination in Turkey in that Muslim people were able to include their religion on Turkey ID cards, whereas it was not straightforward for followers of other religions to do so. The Tribunal did not consider that needing to meet for worship in an office or an apartment rather than in a church amounted to serious harm. Nor did it consider that the applicant experienced more than rudeness and some harassment on account of his missionary work, or that facing problems including his religion on his identity card, while discriminatory, amounted to serious harm of a kind to constitute persecution.
21. Further, the Tribunal did not consider that what the applicant experienced in relation to his employment constituted serious harm, nor the limitations he felt in relation to his employment choices. The Tribunal said at paragraph 132 of its reasons:

“Even when looked at cumulatively and with the examples of serious harm provided in the Act in mind, I do not consider that the applicant’s experiences of discrimination or harassment amount to persecutory treatment.”

In particular, the Tribunal found, at paragraph 135-137 of its reasons:

Paragraph 135:

“The applicant provided evidence about what was done to him by his father over the some nine or so years that he knew the applicant was a Christian: the applicant has said that he was beaten many times; threatened with a knife twice, once in 2005 and again in 2009; threatened with death by his father; his mother was beaten by his father when she tried to protect the applicant; his father told his boss about his conversion to Christianity; and the holding of family council meetings which demanded the applicant return to Islam. As well, his father told the applicant’s employer of the applicant’s conversion to Christianity which led the applicant to lose his job and face some further discrimination when he looked for new employment. Mr Dal, in his evidence to the Tribunal, referred to the applicant having told of family trouble and his father threatening him and pulling a knife on him.”

Paragraph 136:

“In considering the applicant’s account of his father’s treatment, the evidence about the degree of the applicant’s actual subjective fear of his father has been relevant. The applicant was living at home for periods after his conversion to Christianity at the end of the 1990s until his departure in 2009 to work on the cruise ship, so over some nine years, he said from time to time between university and working, on holidays, after his military service and between jobs. I understand that he may have gone home to see his mother but it is difficult to see that he would have done so as often as he did if he in fact believed that his father was going to kill him. While I accept that the applicant’s father pressed him to return to Islam and may have hit, threatened and verbally abused the applicant and told his employer about his son’s conversion, I consider that the applicant has exaggerated the extent of his fear of his father in his evidence, that his father did not have a real intention to seriously harm the applicant, and the applicant did not fear for his safety when he was with his parents; had he done so, I do not consider that he would have been there as often as he was. It follows that I consider that the applicant has exaggerated the threat to his safety by his father. There is no evidence that his uncles did anything to him apart from criticising his actions to his father and pressing his father to seek the applicant’s return to Islam.”

Paragraph 137:

“I have as well considered the kind of treatment described by the applicant against the examples of persecution in s.91R(2) of the Act which give guidance on what might constitute persecution: a threat (not only a declaration: MIMIA v VBAO of 2002 [2004] FCA 1495; (2004) 139 FCR 405) to life or liberty, significant physical harassment or ill-treatment, or significant economical hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist. That he kept going home from time to time over some nine years following his conversion does not support the claim that the pressure or hurt he felt amounted to serious harm, or persecution as the term is applied in Australia’s refugee law.”

22. The Tribunal found the applicant’s claim to be abducted and mistreated in July 2009 did not occur. That the applicant did not mention his abduction and mistreatment in July 2009 earlier in the refugee status determination process was not the reason the Tribunal found the episode as described did not occur. Rather, it was the applicant’s description of what he was asked about, which he claimed indicated that he had been under surveillance for several years, which led the Tribunal to the view that the applicant had not given a truthful account of his abduction, interrogation and physical abuse in July 2009. The Tribunal said at paragraph 143 and 146 of its reasons:

“... The nature and extent of the applicant’s activities as a Christian were not in my view of a kind to attract the sustained interest of the security authorities and his claim that they were so is not plausible. I do not accept that the applicant was physically abused over two days in July 2009, that he was interrogated as he has claimed, that he was photographed in a dress nor that he signed any confessions. I do not accept that the authorities had any interest in the applicant’s visit to the United States Consulate. It follows that I do not accept that the authorities have a photo of the applicant in a dress taken in the circumstances he described which they could use to make him appear homosexual and so bring further shame to his family.” (paragraph 143)

“In summary, I do not accept that the applicant suffered persecution in Turkey on account of him being a Christian, including being a Christian who had converted from Islam. There is no credible evidence that the applicant came to the attention of security personnel other than local police who subjected him to some harassment in the context of his missionary work.” (paragraph 146)

23. The Tribunal then went on to examine whether there was a real chance that the applicant would, on return to Turkey, and in the reasonably foreseeable future face a real chance of persecution because of the Refugees Convention reason of religion and his membership of a particular social group of people who had converted to Christianity from Islam. The Tribunal concluded, having regard to what had happened to the applicant in Turkey during some nine years after his conversion that it did not consider there was any reason why his family’s attitude to his religion upon his return would be different to what it had been in the past, or that they would seek to inflict serious harm on him when they had not done so in the past. The Tribunal concluded at paragraph 149:

“... I do not accept that there is a real chance that the applicant would be seriously harmed by his family on account of his religion and his conversion upon return to Turkey.”

The Tribunal said further at paragraph 153 of its reasons:

“The applicant has referred to the murder of missionaries in Malatya in and attacks on other Christians in his claims that the Turkish authorities would not protect him. The government is not required to guarantee the safety of its citizens from harm caused by non-state persons (MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 at [26]). In S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’ (at[26]).”

24. The Tribunal found that having regard to independent country information and the existence of a reasonable level of State protection to a person in the applicant’s circumstances, that there was not more than a remote chance that the applicant would come to serious harm at the hands of extreme Muslims. The Tribunal considered religious extremism was regarded by the country as a threat, it saying:

“Important parts of the Turkish community and the Government and administration regard religious extremism as a threat to the country. The Turkish authorities have taken steps to provide additional protection for certain religious leaders deemed to be at risk at particular times and for church buildings. Perpetrators of violence or threats have been apprehended and tried for the offences committed.” (paragraph 154)

25. The Tribunal considered the authorities in Turkey had acted to enhance acceptance of religious minorities in Turkey. The Tribunal concluded there was not a real chance that the applicant would face harm of a kind which would amount to persecution on account of his religion if he were to return to Turkey in the reasonably foreseeable future.
    

Consideration

26. The three matters raised for consideration by the respondent were:

(1) whether the Tribunal erred in law in its assessment of whether the applicant had suffered serious harm by treating the applicant’s subjective fear as determinative of the issue;

(2) whether the Tribunal erred in its assessment of State protection by failing to take into account the father’s treatment of the applicant; and

(3) whether the Tribunal erred in law in its assessment of State protection by failing to consider the efficacy of the measures afforded.

27. The Tribunal did not rely upon the absence of subjective fear as it found it as the basis for finding the harm suffered as alleged by the applicant did not constitute serious harm for the purpose of s.91R(2) of the Act.
28. Section 91R of the Act provides that:

“Persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless;

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph;

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d ) significant economic hardship that threatens the

person’s capacity to subsist;

(e) denial of access to basic services, where the denial

threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind,

where the denial threatens the person’s capacity to subsist.

(3) For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purposes of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

29. Section 91R(3) of the Act is of no relevance in these proceedings. Otherwise, section 91R restricts the circumstances in which a decision-maker may find that Article 1A(2) of the Refugees Convention applies to a person claiming a well-founded fear of persecution. The Tribunal correctly noted that section 91R(1) of the Act requires persecution to involve serious harm to the applicant and systematic and discriminatory conduct. No jurisdictional error is apparent in the Tribunal’s application of the law.
30. The Tribunal’s reasons read fairly and as a whole indicate the Tribunal had regard to all the surrounding facts and circumstances, including the applicant having, by his own account, repeatedly gone home to live with or visit his parents in the nine years since his father had learned of his religious conversion, without coming to any serious harm. That is, the Tribunal treated these indications of subjective fear as relevant to its assessment of credibility. The Tribunal found the applicant had been pressed to return to Islam by his father and may have been hit, threatened and verbally abused, but was not satisfied that such conduct amounted to serious harm. This was ultimately a factual finding which was open to the Tribunal to make.

In Minister for Immigration and Multicultural and Indigenous Affairs v VBAO [2004] FCA 1495; (2004) 139 FCR 405 at [42], affirmed by the High Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1, Marshall J said:

“The question of whether something may constitute serious harm is determined at the time at which the [Tribunal] considers an application. The process involves an assessment as to whether the conduct or action relied on as constituting an instance of serious harm in the case of s 91R(2)(a), endangers or puts in jeopardy the applicant’s life or liberty and, whether the fear which attends this conduct or action and that chance of its reprisal, is well founded. Whilst the assessment does involve postulating two different questions, there is an air of unreality accompanying an insistence that the questions be answered independently.”

31. Further, the Tribunal did not err in its assessment of the adequacy of protection offered by the authorities in Turkey. The Tribunal made a factual finding that there was not a real chance the applicant would be seriously harmed by his family on account of his religion and conversion from Islam upon return to Turkey. This finding was made in light of the conduct accepted to have occurred. The Tribunal was not satisfied the harm accepted to have occurred amounted to serious harm.
32. As to the third ground, the Tribunal articulated the correct legal test and carefully considered independent country information and argument concerning the efficacy of State protection. The Tribunal acknowledged the limitations in the protections offered and that a degree of anti-Christian sentiment existed within the community in Turkey. The Tribunal delivered a balanced exposition of the evidence and argument and made findings in relation to those which do not reveal error, but rather, are factual findings made within jurisdiction. The applicant’s assertion that there was no evaluation or consideration of the efficiency and impartiality of the police or the efficacy of institutional and organisational measures is incorrect. There was the necessary degree of examination undertaken by the Tribunal.
33. The Tribunal’s decision is not affected by jurisdictional error and accordingly the application must be dismissed. Costs should follow the event.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 25 July 2011