FEDERAL COURT OF AUSTRALIA

MZXHN v Minister for Immigration and Citizenship

[2007] FCA 656

Migration Act 1958 (Cth) s 422B

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

MZXHN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1311

SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129

SZAQY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1382

MZXHN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 5 OF 2007

Nicholson J

2 MAY 2007

MELBOURNE

On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate (Riethmuller FM) dated 21 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 January 2006 and handed down on 27 January 2006: MZXHN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1311.  The Tribunal had affirmed a decision of a delegate of the first respondent made on 9 September 2005 to refuse to grant a protection (class XA) visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (the Act).  At the hearing I dismissed the appeal and the following are the reasons for that decision.

Appellant’s claims

2                     The appellant, who was born on 1 January 1962, is a citizen of Bahrain and was raised as a Muslim of the Sunni persuasion.  In 2004, the appellant claims to have suffered persecution from Bahranian authorities following his conversion to Shi’ism.  The appellant provided the Tribunal with accounts of detainment and torture.  He has claimed that he is unwilling to return to Bahrain out of fear that he would be immediately arrested and suffer serious harm and so suffer persecution on the grounds of his religious beliefs.

Tribunal’s reasons

3                     Based on medical reports provided by the appellant as evidence of physical abuse, the Tribunal appears to have accepted that the appellant had been detained and subjected to a degree of violence.  However the Tribunal did not accept that the appellant had converted to Shi’ism and therefore was unable to find that any detention or torture suffered by the appellant could be for reasons of his religious conversion.  In refusing to accept the appellant’s religious conversion, the Tribunal relied upon evidence arising from the hearing which suggested that the appellant was unable to articulate any of the fundamental differences between the beliefs of Sunni Muslims as opposed to Shi’ism.

Federal Magistrate’s reasons

4                     Before the Federal Magistrate, the appellant relied upon three grounds for review.  Firstly, that the Tribunal had erred in finding that the appellant was unable to articulate any of the fundamental differences between the two religions (the no evidence ground).  Secondly, whether the Tribunal had asked the correct questions when ascertaining if torture was widespread in Bahrain (the wrong question ground).  Thirdly, the appellant claimed that the Tribunal had not reasonably speculated as to the possibility that it may be wrong in its conclusions (the what if I was wrong ground). 

5                     The Federal Magistrate dismissed the application on the basis that it was open to the Tribunal on the material before it to make findings of fact in relation to whether or not the appellant had engaged in a religious conversion and whether he had been persecuted as a result of this alleged conversion.

6                     His Honour also considered whether the Tribunal, upon accepting that the appellant had been subjected to serious harm in the past, had appropriately found that there was no real risk of serious harm occurring in the future.  Here, the Federal Magistrate relied upon the decision of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and found that the Tribunal did not harbour ‘any real doubt’ that the harm suffered by the appellant was for some other reason rather than a Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention) reason.

Grounds of appeal

7                     By notice of appeal dated 8 January 2007, the appellant relies on the following four grounds:

‘(a)      the Court did not agree that the decision of the Tribunal was wrong;

(b)       the Court did not agree that I was converted from Sunni to Shia;

(c)        the Court did not agree that I was detained and tortured because of my Conversion; and

(d)       the Court did not agree that I will be arrested if I return to Bahrain.’

Reasoning

No evidence ground

8                     There is no error shown in his Honour’s findings that it was open to the Tribunal, on the material before it, to make the findings of fact that it did with respect to whether or not the appellant had engaged in a religious conversion.

9                     The Tribunal made a factual finding that the appellant appeared to have little knowledge of the basis of theological differences between the two sects and as such did not accept that the appellant had converted from Sunni Islam to Shia Islam.

10                  The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact.  Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error:  see Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36.

11                  In his reasons his Honour referred to a passage from the reasoning of Tamberlin J in SZAQY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1382 at [29] where he raised the prospect that the manner of questioning about religious knowledge without notice could raise considerations of procedural fairness.  His Honour noted that in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 a Full Court (French, Lander and Besanko JJ) at [47] it was considered that a tribunal may legitimately explore what the applicant knows about the religion in order to assess the genuineness of the claim.  Given s 422B of the Actstates the complete circumstances for the application of issues of procedural fairness and does not encompass the issues raised by Tamberlin J, the Full Court statement must be correct.

12                  There is no error revealed by the Court’s statement that it remains fundamental to the process of judicial review that the Court does not engage in a review of the facts.

The wrong question ground

13                  His Honour correctly noted the appellant’s claim that the Tribunal had asked itself the wrong question by considering whether or not the country information showed widespread torture in assessing the appellant’s claim against this information.

14                  His Honour was of the opinion that it did not appear the Tribunal in fact asked itself whether or not there was widespread torture as a primary consideration.  Rather the Tribunal looked to the country information to gather the appropriate evidence that would be useful in assessing the claim.  It was appropriate for the Tribunal to have regard to the appellant’s claims of torture and the claim related to religious conversion to establish whether it was inconsistent with what was being reported in the country information. 

15                  There was no error by his Honour in concluding that there was no jurisdictional error by the Tribunal, where it was appropriate for the Tribunal to recount country information and use it as part of the reasoning process in determining whether the appellant had been tortured for a Convention reason. 

The what if I am wrong ground

16                  His Honour correctly held that there is nothing in the reasons of the Tribunal that suggest that it had any real doubt as to its findings of fact.  In those circumstances, there is no occasion for the Tribunal to embark on the ‘what if I am wrong’ test.

17                  His Honour correctly observed that in the Tribunal’s findings it said that it ‘does not accept’ that the harm was for the reason alleged by the appellant.  The Tribunal noted that there may have been some other reason for the appellant’s detention and torture.  His Honour concluded that on a fair reading of the Tribunal’s decision, he was not satisfied that the Tribunal harboured any real doubt such that it was required to consider the ‘what if I am wrong’ test. 

Conclusion

18                  The appeal was accordingly dismissed with costs.

Associate:

Dated:         4 May 2007