FEDERAL COURT OF AUSTRALIA

SZOYF v Minister for Immigration and Citizenship [2011] FCA 962

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By notice of appeal filed on 22 June 2011, the appellants appeal from the orders of Nicholls FM made on 1 June 2011. Those orders dismissed with costs the application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to refuse to grant to the appellants Protection (Class XA) visas pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”). The task of the Federal Magistrates Court was judicial review of the decision of the Tribunal. The task of this Court is to consider whether there was error in the judgment of the Federal Magistrates Court in finding no judicially reviewable error on the part of the Refugee Review Tribunal.

2    The appellants are husband and wife and are citizens of Malaysia. On 3 February 2010, the appellants arrived in Australia holding tourist (Class 976) visas. On 16 March 2010, they each lodged an application for a Protection (Class XA) visa, each application being accompanied by a written statement in support.

3    Each application centred on the then applicant’s claimed well-founded fear of persecution based on religious grounds and membership of a social group.

The appellants’ Claims

4    The claims of the appellants, stated briefly, arose from their relationship and later their marriage. The husband was raised in a Hindu family and the wife in a Muslim family.

5    According to the appellants, their relationship started in late 2005 in Malaysia. They claim that at first they conducted their relationship in secret and spent most of their time together indoors for fear that they would be harmed.

6    On 19 November 2009, the first appellant was attacked at his hairdressing salon by two men who told him to put an end to his relationship. The men hit him and damaged his salon. A formal complaint was made to the police but the first appellant did not tell them about his relationship for fear that the police would “put me in jail and abuse me to death”.

7    It was said the second appellant’s family discovered their relationship. Initially, her family had refused to allow her to contact the first appellant. However, after negotiations between the first appellant and the second appellant’s family, it was decided that the first appellant convert to Islam in order for their relationship to continue.

8    The claims continued: the appellants had agreed between themselves that the first appellant would convert, but in name only and without telling his Hindu family. The first appellant was required to attend religious instruction but he tried to skip his classes by giving excuses. However, the second appellant claimed that she was beaten by her family as a consequence of the first appellant’s failure to attend classes. On 15 December 2009, the first appellant was attending a Hindu temple to pray for forgiveness for his conversion. He received a call from an unknown number threatening to kill him if he returned to his Hindu religion. The first appellant returned to his family seeking their help and protection, but at the news of his conversion, his family told him that he had betrayed the family and insulted their religion and that he should leave.

9    On 10 January 2010, the appellants were married in a mosque with the second appellant’s family in attendance. The first appellant was forced to live with the second appellant in her family home. He was forced to adopt their culture and religion and abandon his own.

10    On 2 February 2010, the appellants left their home together under the guise of attending a religious function. Instead they drove to the airport and departed for Sydney.

11    The appellants claim to fear that if they return to Malaysia they will be harmed by their respective families or otherwise face incarceration.

The DElEGATE’s DECISION

12    On 30 August 2010, a delegate of the Minister refused the appellants’ protection visa applications.

The Tribunal’s Decision

13    On 17 September 2010, the appellants applied to the Tribunal for a review of the delegate’s decision.

14    The Tribunal found that the husband’s claim that he was a devout and committed Hindu lacked credibility. After considering the husband’s description of his religious activities in Malaysia and Australia the Tribunal said it was not satisfied that the husband had a genuine interest in religion and accordingly that it was not satisfied that the husband provided a truthful account of his circumstances.

15    At [73] the Tribunal held that, in view of its findings relating to the husband’s interest in religion, the claims that he would be targeted because he falsely claimed to have converted to Islam, when in reality he was a devout Hindu, were contrived to enhance his protection visa application. The Tribunal did not accept those claims as credible.

16    At [74] the Tribunal found that it was not satisfied that the husband participated in religious activities in Australia because he had a genuine interest in religion.

17    At [79] the Tribunal considered and rejected the husband’s claim that he would be targeted because he converted to Islam. The main theme of these findings of fact is that the husband did not have a genuine interest in any religion.

18    It was on this basis that the Tribunal said it was not satisfied that there was a real chance that the applicant would be subjected to persecution in Malaysia for reasons of religion.

19    In relation to the wife, the Tribunal set out her claim that she converted to Hinduism and that, because of that conversion and because of her relationship with her husband, her family and the authorities, Muslim extremists and Muslims in general, will seek to harm her in Malaysia.

20    The Tribunal then held, by virtue of its findings in relation to her husband, that it was not satisfied that she had become a Hindu to follow him. The Tribunal was not satisfied that the wife had a genuine interest in religion or that she was a religious person.

21    The Tribunal was not satisfied that certain photographs that were provided of the wife outside a Hindu temple in Sydney provided compelling evidence that she had participated in religious activities in Australia because she had a genuine interest in religion.

22    The Tribunal found that the second appellant’s claims were contrived to enhance her protection visa application.

23    The Tribunal affirmed the delegate’s decision on 15 December 2010.

The Federal Magistrate’s Decision

24    On 13 January 2011, the appellants filed an application in the Federal Magistrates Court for judicial review of the decision of the Tribunal. Attached to their application were the following grounds of application:

1.    The Refugee Review Tribunal (“the Tribunal”) failed to consider whether the first applicant (husband) might suffer persecution in Malaysia because of the conduct of the second applicant (wife) in Australia.

2.    The Tribunal failed to consider whether the second applicant might suffer persecution in Malaysia because of the conduct of the first applicant in Australia.

A third ground was not pressed at the hearing.

25    Relevant paragraphs of the judgment of the Federal Magistrate were as follows:

[74]    In relation to the applicant husband, … there was no claim that the applicant wife’s attendance at a Hindu temple in Australia was known to anyone other than his sister … His sister is an Australian citizen … There was no evidence before the Tribunal that she lived other than in Australia. How this then could lead to attracting persecutory harm for him from anyone in Malaysia was never explained.

[75]    As to the applicant’s wife, her husband’s religious practices in Australia were similarly not connected to any indication that that would be an element in any fear of persecutory harm relating to her in Malaysia.

26    The Federal Magistrate then set out the claims that were made and concluded as follows:

[78]    These findings dealt with all of the applicant’s claims relating to, or arising from, the matter of religion. On the material before it there was nothing further to oblige the Tribunal to consider any other iteration of these claims as now asserted before the Court.

The Present Appeal

27    On 22 June 2011, the appellants filed a Notice of Appeal in this Court with the following grounds:

1.    His Honour erred in failing to find that the Refugee Review Tribunal acted beyond jurisdiction and failed to consider the totality of the applicants’ claims.

2.    His Honour erred in that The Tribunal failed to deal with the claim of the applicant husband and the applicant wife might suffer persecution in Malaysia because of the conduct of the [sic] each applicant as the situation arose from the circumstances presented respectively by both applicants.

28    Ground 2 is the same as the grounds of review before the Federal Magistrate.

29    In my view these grounds fail, essentially for the reasons given by his Honour.

30    First, the present claims were not expressly put before the Tribunal.

31    Second, I therefore follow what Allsop J said in Applicant S230 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1574 at [20], special leave refused: [2008] HCASL 153 (23 April 2008):

[T]he issue is whether the case (that is the facts and other claims) put before the Tribunal sufficiently raised the relevant issue for the Tribunal (as a specialist tribunal carrying out an inquisitorial function) to have dealt with it (as an issue or as aspect of the statutory review function before it). This question, of course, is in context of the applicant being possessed of all the personal information bearing upon why he or she has a fear of persecution. If an applicant articulates his or her fears for the future in his or her country of nationality only up to a particular point, it could rarely, if ever, be necessary for the Tribunal to interrogate the applicant as to whether the applicant might not fear return for other reasons as yet unarticulated.

(Emphasis added).

32    I reach the same conclusion by reference to NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], which was set out by the Federal Magistrate, especially the following:

A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

33    To the same effect is the decision of the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, especially at [68]:

Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov.

A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not likely to be made. The claim must emerge clearly from the material before the Tribunal.

The reference is to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; (2003) 197 ALR 389.

34    In my opinion, the present facts do not raise the claimed alternative or additional case.

35    It is to be recalled that the Tribunal held that there was no genuine religious activity by either applicant in Australia as neither had a genuine interest in religion. The individual claims by reference to the activities of that individual therefore failed. This makes a claim by the husband by virtue of the wife’s activities and vice versa one which is not raised by the facts and therefore not one which gives rise to a jurisdictional error on the part of the Tribunal either on the basis of a constructive failure to exercise jurisdiction or at all.

36    The parts of paragraphs [74] and [75] of the reasons of the Federal Magistrate I have set out above also show that the present claims are not raised by the facts.

37    In truth the claimed alternative case is, in substance, a construct but one which is not founded in fact.

38    As to the matters the subject of oral submissions before me by the appellants in person, as is not uncommon these were factual matters only and did not amount to submissions in support of the claimed errors by the Federal Magistrates Court or the Refugee Review Tribunal.

39    For these reasons the appeal is dismissed with costs.

Associate:

Dated:    24 August 2011