MZXAY v Minister for Immigration & Citizenship [2007] FCA 855

FEDERAL COURT OF AUSTRALIA

MZXAY v Minister for Immigration & Citizenship [2007] FCA 855 MZXAY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL VID105 OF 2007

JESSUP J

23 MAY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID105 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXAY

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 23 MAY 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The name of the respondent be amended to Minister for Immigration and Citizenship. 2. The respondent be referred to as the first respondent. 3. The Refugee Review Tribunal be added as the second respondent. 4. The appeal be dismissed. 5. 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.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID105 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXAY

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 23 MAY 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 25 January 2007, in which that court dismissed an application under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of certiorari and mandamus directed to the Refugee Review Tribunal in relation to a decision given by it on 27 June 2005, and handed down on 15 July 2005, to affirm the decision of a delegate of the respondent Minister not to grant a protection visa to the appellant pursuant to the Migration Act 1958 (Cth) ("the Act"). 2 Before dealing with the appeal as such, I should address certain procedural issues which have arisen. The Tribunal dealt with the application of the appellant, of his wife and of their child, for protection visas. They each sought judicial review in the Federal Magistrates Court, and the judgment of the Federal Magistrate given on 25 January 2007 dealt with each of them. However, the Notice of Appeal, filed on 14 February 2007, in this court refers only to the appellant "and others". There is no reference in that notice to who the "others" are. It seems that it was the appellant's intention that each of the persons who was unsuccessful before the Federal Magistrate should be an appellant in this court. In his submissions to me today, the appellant made no reference to that circumstance, but Ms Latif, who represented the respondent Minister, proposed that I should amend the record by adding the other two participants in the proceedings before the Federal Magistrate, namely, MZXAZ and MZXBA, as appellants. The difficulty with that course is that a person may be added as an appellant pursuant to O 52 r 14(3) of the Federal Court Rules only with his or her consent. I have no evidence that either MZXAZ or MZXBA consents to being added as an appellant, in which circumstances I consider that the appeal ought to proceed as presently constituted. 3 The second procedural issue is that the Notice of Appeal refers to the respondent as Minister for Immigration, whereas the correct title is Minister for Immigration and Citizenship. Ms Latif asked for that correction to be made, and I shall make it. 4 The third procedural issue is that the Notice of Appeal has failed to name the Tribunal as a respondent to the appeal. The Tribunal was a respondent to the proceedings in the Federal Magistrates Court, and ought to have been named as a respondent to this appeal, since it was the statutory body against which the prerogative writs were sought. I have been informed that the Australian Government Solicitor, who acts both for the respondent Minister and for the Tribunal, has contacted the Tribunal, and has been instructed that the Tribunal consents to being added as a respondent to this appeal. Through its solicitor, the Tribunal has offered an undertaking forthwith to file an appearance in the appeal should I make an order that it be joined as a respondent. I have accepted that undertaking, and I shall make such an order. 5 That takes me to the substance of the appeal. The appellant, who is a citizen of Pakistan, arrived in Australia in August 1999. He applied for a protection visa in January 2001. The ground upon which he based his contention that he was a refugee, as defined in the Refugees Convention, was that he had, and has, a well-founded fear of persecution by reason of his religion. According to the findings made by the Tribunal, the appellant was brought up in Pakistan in the Muslim religion. However, shortly before he travelled to Australia in 1999, according to the Tribunal, he turned his back on that religion and commenced to show an interest in the Christian religion, including joining the YMCA in Lahore. The appellant's case before the Tribunal was that, as someone who had abandoned Islam and had committed himself to the Christian faith – even if he had not technically become a Christian – he would be subject to persecution in Pakistan both by his family and by the wider community. 6 Notwithstanding the appellant's expressed concerns in this regard, the Tribunal said that it was satisfied that the appellant did not have any intention formally to convert from Islam either at the time when he appeared before the Tribunal, or in the then reasonably foreseeable future. However, the Tribunal accepted that there was a perception within the appellant's family in Pakistan, and within the local community with whom the family associated, that he had converted to Christianity in preference to Islam. The Tribunal accepted that the appellant's family perceived him to be an apostate. On the basis of this, the Tribunal found that there was more than a remote chance that the appellant would face persecution at the hands of his brother or of people who knew him or his family within his local community. Although the risk of persecution which the Tribunal thus identified was from non-state actors, on the basis of country information on which the Tribunal relied the Tribunal was satisfied that state protection would not be forthcoming for the appellant. 7 However, the Tribunal then moved on to consider the question whether the appellant's fear of persecution could be, in effect, dealt with by his being prepared to relocate to some part of Pakistan other than the localised area of Lahore where he had previously lived. The Tribunal found that it was reasonable for the appellant to relocate to another part of Pakistan, and did not accept that his family and former associates would pursue him to those parts. The Tribunal did not accept that his family would seek him out in order to harm him. The Tribunal expressed its conclusions in these terms: The Tribunal does not accept the applicant would face a real chance of harm if he went to another part of Pakistan and practised Christianity as he would not be perceived to be a convert given no-one would know his actual or perceived background. Further the Tribunal is satisfied that in the light of his level of commitment he would not convert or seek to convert in the reasonably foreseeable future so that it does not accept that he would be at risk for this reason. Upon relocating the appellant will be treated and perceived only by what he does, by his communication and the level of commitment he shows. 8 With respect to the perceptions in Pakistan of the appellant's Christianity, or Christian habits, the Tribunal said: The Tribunal finds, on the basis of the applicant's practices in Australia, the appellant is not a dedicated worshiper of the Christian faith. It does not accept he would go back to Pakistan and become more committed than what he has been in his last four years in Australia. It also does not accept the appellant would be in a position that he would face discrimination, random violence by religious fundamentalists and risk of being charged with blasphemy under Pakistani law some religious minorities are subjected to, given the Tribunal is satisfied the applicant is not really committed to Christianity and would not be perceived as an active adherent of the Christian faith. The Tribunal does not accept the applicant would act or speak in a derogatory way about Islam if he returned to Pakistan. He has not claimed to have done so in the past and on the basis that he has not actually converted to Christianity, the Tribunal finds the applicant's commitment would not be commensurate to someone who would actively speak against the Muslim faith. Nor does the Tribunal accept he faces a real chance of persecution for abandoning his Muslim faith. The Tribunal therefore finds it more than remote he would face a real chance of persecution for reasons of his religious if he relocated to another part of Pakistan away from his family and community in Lahore. The Tribunal is therefore satisfied the applicant's fear of persecution is not well-founded. On the basis of those findings, the Tribunal concluded that the appellant did not have a well-founded fear of persecution within the meaning of the Convention and that he was not, therefore, a person to whom Australia had protection obligations under that Convention. 9 By an Amended Application for Review dated 7 November 2005, the appellant claimed a declaration that the decision of the Tribunal was invalid and contrary to law, writs of mandamus, prohibition and certiorari, injunctions and declarations, an order setting aside the decision, an order that the Tribunal give further consideration according to law to the matters to which the decision related, and other orders. 10 The appellant relied upon five grounds set out in his application for review, but rather than read them into these reasons I shall refer to the compendious summary of them provided by the Federal Magistrate in his judgment of 25 January 2007. He said (at [3]): It is fair to say the five grounds set out in the amended application can be summarised under three basic headings. They are: (a) That there was a denial of natural justice based upon the applicant's assertion that the Tribunal failed to invite comment from the applicant about the reasonableness or practicability of relocating to another part of Pakistan. (b) That there was a breach of s 424A of the Migration Act (1958) (the Act) in that the Tribunal failed to notify the applicants of information that was the reason, or part of the reason, for the decision; namely, to notify him about: (i) the country information relating to the ability to relocate within Pakistan; and (ii) the information contained in the advertisement appearing in a Pakistani newspaper disowning the applicant which was placed by his father. (c) That the Tribunal took into account irrelevant considerations and it failed to take into account relevant considerations in that: (i) the Tribunal uncritically focused upon the possibility of relocation in Pakistan, whereas the true focus should have been upon the safety to the applicant and his family of any such relocation; (ii) the Tribunal concluded that should the applicant relocate in the new location no one would perceive him to be a convert as no one would be aware of his background. This, the applicant contended, is to ignore that the community and the new location would become aware of his conversion through his own family; and (iii) in reaching its conclusions the Tribunal took into account an irrelevant matter that the time taken so far by the applicant to convert to Christianity is, in effect, indicative of his lack of intention to do so and that should he return to Pakistan in the near future it was highly improbable that he would convert to Christianity whilst there having regard to his failure to do so in Australia to date. 11 In relation to the third of these three headings – that alleging consideration of irrelevant circumstances – the Federal Magistrate elaborated further upon the matters which were said to have constituted errors by the Tribunal in the case advanced before him by the appellant. He set out the appellant's criticisms as follows (at [29] of his reasons): (a) The Tribunal uncritically accepted the Country Information before it, suggesting that the applicants could relocate to another part of Pakistan and practise their Christianity in that new location; (b) The Tribunal failed to consider whether the applicant could "safely" relocate another area of the country; (c) The Tribunal found the applicant would not be perceived as a convert if he relocated without first considering the possibility that the fact of conversion would be discovered through the applicant's family; (d) The Tribunal did not accept that a person dedicated to becoming a member of a particular religion would take four years to do so; (e) The Tribunal found the applicant would not convert, or seek to convert, to the Christian religion in the reasonably foreseeable future. 12 In the reasons for his judgment given on 25 January 2007, the Federal Magistrate dealt first with the allegation that the appellant had been denied natural justice. He examined the written decision of the Tribunal and, having heard what the appellant had to submit in that regard, held that there had been no breach of the hearing rule, and no breach of any aspect of the rules of natural justice of the kind identified by the High Court in SZBEL v The Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592. 13 In relation to the appellant's case under s 424A of the Act, the Magistrate held that there had been no failure by the Tribunal to comply with the requirements of that section. 14 In relation to the appellant's criticism that the Tribunal had not turned its mind to the question whether he could safely relocate to some other part of Pakistan, the Federal Magistrate said (at [33]): On the question of the Tribunal not focussing on the safety aspect of relocating, it is evident on a reasonable reading of the Tribunal's decision that in reaching a determination that the applicant could relocate within Pakistan, it was implicit that the relocation would be safe for the applicant and his family. 15 In relation to so much of the appellant's case before the Federal Magistrate as alleged that the Tribunal had taken irrelevant considerations into account, the Magistrate made the point that the appellant's case appeared to be substantially concerned with contesting the Tribunal's findings on particular facts and its refusal to accept his evidence in certain respects, rather than proposing that relevant considerations had not been taken into account. The Federal Magistrate carefully considered the Tribunal's decision, and expressed the view that there was no substance in the ground that the Tribunal had failed to take into account a consideration which it was bound to take into account according to the Act. 16 In his Notice of Appeal in this court, the appellant's single ground is that the judgment of the Federal Magistrate contained errors of law and was otherwise contrary to law. The appellant did not file any written outline of the submissions which he proposed to make in this court, but he supplemented the oral submissions which he made today with a brief set of written submissions of the kind that ought to have been filed in advance of the hearing. I have considered both everything that he has put to me today orally and everything which appears in those written submissions. 17 The appellant has not submitted that the Federal Magistrate was in error to conclude that he was not denied natural justice by the Tribunal. He made no submission today which I would recognise as an allegation that he had been denied natural justice in the sense understood in Australian law. He made some submissions to the effect that the argument which he advanced, and to which I shall come presently, was a natural one, or was in accordance with natural law, and that Australian law should be consistent with natural law. Arguments of this kind however, do not constitute any proper legal basis for criticising either the decision of the Tribunal or the reasons of the Federal Magistrate. 18 With respect to the case under s 424A which the appellant advanced before the Federal Magistrate, nothing further was said on the appeal, and I need not make further comment about that. 19 The case which the appellant did advance on appeal had three main dimensions. These were developed in different ways in the course of a detailed and generally intelligible submission by the appellant. He dealt first with the matter of relocation which had been such an important part of the Tribunal's decision. He contended that the Tribunal had considered only the absence of any restriction on his movement within Pakistan and had not turned its mind to the consequences or effectiveness of his relocation from the point of view of avoiding persecution. The appellant, in effect, referred to what the Federal Magistrate described as the safety of any proposed relocation within Pakistan. He submitted that it was implicit in the finding of the Tribunal that he was expected not only to relocate within Pakistan, but also there to hide the fact of his Christianity. 20 I cannot find any error in the way that the Federal Magistrate dealt with this point. I agree with him that the Tribunal was alive to the significance of the safety of the appellant in the event that he should relocate within Pakistan. I consider that it would be artificial to suggest that the Tribunal did not make its determination by reference to practical and realistic considerations of safety and security for the appellant if he decided relocate as the Tribunal suggested he could. I do not agree that the Tribunal implicitly imposed upon the appellant an obligation that he should hide his Christianity in the event that he relocated within Pakistan. Rather, the Tribunal made a finding on the probabilities of how the appellant would deport himself within Pakistan if he did relocate, based on its understanding of the strength of his interest in the Christian faith. These were evidentiary questions wholly within the jurisdiction of the Tribunal and directly relevant to the matter whether the appellant had a well-founded fear of persecution. 21 The second main point which the appellant advanced before me was that the Tribunal addressed the matter of his faith, or his potential faith, without squarely addressing difficult questions as to the definition of Islam and of Christianity. He submitted that the Tribunal could not have made the distinctions which it did on the matter of the appellant's faith without having definitions acceptable to Australian law of these two religions. He alleged that the Tribunal placed undue emphasis upon the fact that he had not been baptised into any Christian Church, and he questioned rhetorically: what Church did he have to join in order to become a Christian? He asserted that his belief in the Christian God, in Jesus Christ and in the resurrection should have been regarded as sufficient for him to be treated as a Christian and no longer as a Muslim in the eyes of the Tribunal. 22 The issues to which the appellant refers in these respects are, in my view, pre-eminently ones of fact, and do not arise for resolution in this court. I have set out the terms of the Tribunal's consideration of the extent and strength of the applicant's conversion to Christianity. Central to them was the conclusion that the applicant had not actually become a Christian as at the time of the proceedings before the Tribunal. It is true that one aspect of the Tribunal's consideration of that was the absence of any ceremony of baptism, but, as I read the Tribunal's reasons, this was but one factor which it took into account. The Tribunal was prepared to have regard to all of the aspects of the appellant's interest in the Christian faith and his active involvement in Christian practices for the purposes of reaching the decision which it did. The relevant questions were fairly and fully considered by the Tribunal and I do not consider there is any substance in the suggestion that the Tribunal failed to consider some essential aspect in relation to the definition of either religion, or that it took into account any irrelevant matter. 23 The third point which the appellant advanced before the court became clear only as a result of his handing up a copy of his written submissions, which occurred only after the conclusion of the submissions of the respondent Minister. Those written submissions contained the following paragraph: In this context, the Tribunal also failed to consider whether the Applicant and his family would have a well-founded fear of persecution simply by reason of being perceived to have abandoned Islam. The Tribunal considered these residual claims by the Applicants only in the context of its finding that the first Applicant had not yet converted to Christianity and would be unlikely to do so in future. 24 I do not consider that the appellant's criticism of the Tribunal's decision in this respect is well-founded. The Tribunal found, in terms, that the appellant had turned his back on the Muslim religion. However, it also found that the appellant had no intention formally to convert from Islam and had not determined to do so in the then reasonably foreseeable future. The Tribunal also said: As stated above, the Tribunal is satisfied the applicant has not converted from Islam or that he would do so in the reasonably foreseeable future however the Tribunal finds there is a real chance the appellant would be viewed by his family and those in his community who knew him in the past, to be an apostate. Finally, in this regard, the Tribunal said that it did not accept that the appellant faced a real chance of persecution for abandoning his Muslim faith. It is apparent, therefore, that the Tribunal did not overlook the question whether the appellant might have been persecuted simply by reason of being perceived to have abandoned Islam. 25 I have dealt with the second and third of the three points which the appellant advanced before me this afternoon on their merits, notwithstanding that they were not within the grounds upon which the Amended Application for Review in the Federal Magistrates Court was based, and notwithstanding that they were not apparently argued before the Federal Magistrate. The appellant simply argued them before me today without seeking any leave to do so, a course which did not meet with any resistance from the respondent Minister. However, as I understand the law, when an appellant desires to agitate some point which has not been relied upon in the court from which the appeal is brought, he or she must show at least that the point or points has or have a reasonable prospect of success. It will be apparent that I consider that the points to which I refer do not enjoy a reasonable prospect of success. Indeed, I have dealt with them on the merits and expressed the view that they should not prevail. 26 For these reasons, I propose to dismiss the appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.