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[2004] FCA 1589
Federal Court of Australia
2004-12-03
Weinberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate who, on 23 July 2004, dismissed an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 1 October 2002. By that decision, the Tribunal affirmed the decision of a delegate of the respondent Minister, made on 9 October 2000, to refuse the appellant a protection visa. The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard and determined by a single judge. 2 The appellant is a citizen of Egypt, and a Muslim. His wife is a citizen of Greece, and a Greek Orthodox Christian. They arrived in Australia on 30 August 2000. On 25 September 2000, the appellant lodged an application for a protection (class XA) visa. His wife was included in that application.
Proceeding before the Tribunal 3 The appellant told the Tribunal that in 1997, he left Egypt to work in Kavalla, in Greece. He earned a good living there as a housepainter, and learned to speak Greek. In 1998, he obtained Greek permanent residence. He formed a relationship with his employer's daughter, and they decided to get married. However, her family disapproved of the relationship on the basis of the appellant's religion, and it was claimed that her father and brother-in-law beat her. The appellant realised that if he pursued the relationship, he would lose his job. 4 The appellant claimed that his employer gave him tasks that were increasingly dangerous. He told the Tribunal that one night, at his employer's instigation, the police had arrested and detained him, on the grounds that he had stolen some tools. The employer had told the appellant that if he wished to marry his daughter he would have to convert to Christianity. He said that he would not do that. He claimed that thereafter, his employer made his working and living arrangements very difficult. 5 The appellant and his then girlfriend left Kavalla, and went to live in Thessaloniki. The appellant claimed that when her family discovered their whereabouts one month later, they created problems for him that were similar to those he had experienced in Kavalla. The couple decided to go to Athens in January 2000, where they found accommodation and work. They married on 22 January 2000. 6 In April 2000, the appellant's wife met a distant relative by chance at the bus terminal. He told her that her father and the rest of her family were looking for her. She asked him not to tell her family of her whereabouts. However, a week later, on a day when the appellant was at work, her father and sister's husband came looking for the couple. They told the appellant's wife that they would kill them both if they did not end the marriage. The appellant told the Tribunal that when he heard about this, he decided that they were in "serious danger". 7 The appellant claimed that he then contacted his family in Egypt about the possibility of him returning there with his wife. He told the Tribunal that when his family heard that he had married a Christian, they assumed that he must have converted to Christianity. They told him that he would not be welcome in Egypt, and that the marriage was invalid because his wife was not a Muslim. Even when he told them that he remained a Muslim, they were not satisfied. They told him that they had decided that both he and his wife would be beheaded. This decision was supported by the advice of a local imam who had told the family that the couple should be killed. 8 The appellant claimed that he had no choice but to go to Egypt, but live as far away as possible from his family. After their arrival in Egypt in August 2000, he left his wife in Cairo while he contacted his family in Suez in an attempt at reconciliation. However, his parents and other relatives refused to meet with him. When he realised that they could not be swayed, he and his wife decided to come to Australia. 9 The Tribunal found the appellant and his wife to be "truthful people who gave open answers about their problems and their hopes for the future". It accepted the appellant's claims regarding the two families' views about the marriage, particularly in relation to those held by the appellant's father-in-law. With regard to the appellant's claim that he and his wife would suffer persecution if required to return to Greece, it accepted that the wife's family's disapproval of the appellant "related to his ethnicity as an Arab", but most particularly to his religious identity as a Muslim. The Tribunal stated: "A question for the Tribunal is whether their disapproval is more than merely personal, whether, that is, it reflects something more serious across Greek society and government." 10 The Tribunal found that the treatment that the appellant and his wife received at the hands of her family "was and has remained a matter of internal family strife". It accepted that this was uncomfortable and worrying to them both. However, it was not satisfied that the Greek authorities would fail to protect them, nor that those authorities could be co-opted to harm the appellant. Accordingly, it found that the appellant and his wife were not refugees in relation to Greece, and that they could return to that country without facing a real chance of persecution on the basis of anything that the wife's family might do to them. 11 The Tribunal then considered whether, given the appellant's status as a Muslim, he would be free to practise his religious beliefs and practices in Greece. It noted that the Greek Orthodox Church was the established Church, and was intertwined with the very notion of being Greek. However, there was a large Muslim minority in the country, a product of its Ottoman history. Although there were protests about the government's close links with the Orthodox Church, and petty and other discriminatory measures against Christians of other denominations and those of other faiths, the evidence did not point to there being persecution of such persons. The Tribunal found that the appellant was not, and would not in the foreseeable future be, a person who faced a real chance of persecution in Greece because of his religion. 12 Next, the Tribunal turned to the appellant's claims in relation to Egypt. It accepted that his family had strong objections to the marriage. It considered that the threats made by the Egyptian family were "stronger than those from the Greek family and that they appear to involve official religious approval…for the killings". The Tribunal noted that in light of the rise in Islamic fundamentalism in Egypt, it could not rule out the possibility of harm being inflicted in the case of a mixed marriage. It therefore found that the appellant and his wife might be at risk of harm if they returned to Egypt. There would be a real chance that they would be persecuted, "either in the form of a single act of serious physical harm, or of an accumulation of discriminatory measures for reasons of their marriage". The Tribunal was satisfied that such harm was not "a remote or fanciful possibility". 13 However, because the Tribunal had found that the appellant and his wife were not refugees under the Refugees Convention in relation to Greece, it was possible for them to return to that country. Accordingly, it affirmed the delegate's decision to refuse the appellant and his wife a protection visa.
decision of the federal magistrate 14 As previously mentioned, the appellant sought review of the Tribunal's decision in the Federal Magistrates Court. The Federal Magistrate heard the application on 16 September 2003. For reasons that are not immediately apparent, he did not deliver his judgment until 23 July 2004. 15 Before the Federal Magistrate, the appellant argued that the Tribunal had failed: · to consider whether he had a fear of persecution for a Convention reason; · to consider each of his claims regarding persecution, which consequently revealed that there was an "error in the construction of the Convention as it is incorporated into domestic law"; · to consider whether he was a "member of a particular social group" under the Convention, and therefore failed to exercise its jurisdiction and/or take into account a relevant consideration; and · to exercise its jurisdiction in relation to his entitlement to a protection visa. 16 The Federal Magistrate observed that the Tribunal had carefully considered the appellant's right to practise his religious beliefs in Greece. His Honour referred to the passage, which I have set out at [9], in which the Tribunal asked itself whether the wife's family's disapproval was more than merely personal, and whether it reflected "something more serious across Greek society and government". He was satisfied that this question was both relevant and appropriate. He concluded that the Tribunal had properly considered whether the appellant and his wife would be adequately protected if they returned to Greece. 17 The Federal Magistrate concluded that the Tribunal had not failed to make a finding as to whether the appellant had a fear of persecution based upon a Convention reason. His Honour said at [21]: "In summary the Tribunal did not fail to make a finding as to whether the applicant had a fear for a Convention reason. It determined in fact that the threats which amounted to internal family strife were personal and did not have any official quality about them. It was not officially tolerated or uncontrollable. The Tribunal says that this was not the case in Greece (See Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559)." 18 Finally, his Honour rejected the contention that the Tribunal had failed to take into account a relevant consideration, being that the appellant was a member of "a particular social group" consisting of persons residing in Greece who were parties to inter-racial and inter-denominational marriages. He noted that the appellant had submitted to the Tribunal two reports on the situation in Greece from Human Rights Watch. However, neither of the reports provided evidence of the existence of the "particular social group" claimed. Greece was a settled and lawful society with no history or current practice of "honour killings", or similar forms of persecution. The appellant's marriage was a lawful one, recognised under Greek law. He retained the right to apply to re-enter Greece upon the same permit as that held when he formerly resided there. There had been no jurisdictional error. His Honour dismissed the application.
appeal to this Court 19 The appellant was not legally represented in the appeal to this Court. His notice of appeal contained the same grounds as those advanced before the Federal Magistrate. When I invited him to tell me how the Federal Magistrate had erred in dealing with his application, he indicated that he did not wish to add anything to what had been said on his behalf below. 20 In her written contentions, counsel for the respondent, Ms Moore, submitted that the grounds of appeal did not identify any error of law in the Federal Magistrate's decision. Indeed, there was no such error. For the reasons set out in his Honour's judgment, the Tribunal had given proper and full consideration to the appellant's claims, and rejected them for entirely appropriate reasons. 21 Ms Moore noted that the appellant had not claimed before the Tribunal that he faced persecution on the basis that he was part of "a particular social group", as had been argued before his Honour. In any event, the reasoning on this ground of review disclosed no error of law. There had been no evidence to support the existence of the alleged "particular social group" before the Tribunal. In fact, as previously noted, the Tribunal found that the appellant's marriage was lawful in Greece even though his parents-in-law might have strongly disapproved. 22 Ms Moore submitted that it was not for the Tribunal to make the appellant's case for him. Rather, it was for the appellant to advance whatever evidence or argument he wished to rely upon, and to provide the decision-maker with whatever information or material might be in his possession that tended to support his claim. She submitted that the decision-maker had no general duty to seek additional materials that might remedy defects in the appellant's case. She relied, in particular, upon Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Abebe v Commonwealth (1999) 197 CLR 510 at 576; Tran v Minister for Immigration & Multicultural & Affairs [2002] FCA 1522 at [25]; and Rahman v Minister for Immigration & Multicultural & Affairs [2000] FCA 1277 at [29].
Conclusion 23 Not surprisingly, the appellant, being unrepresented, was unable to point to any error on the part of the Federal Magistrate. The Tribunal's finding that neither he, nor his wife, was at risk of persecution for any Convention-based reason if required to return to Greece was plainly open on the material. Indeed, it is difficult to see how the Tribunal could have come to any other conclusion. 24 I am unable to discern any error of law in the Tribunal's reasons for decision. It did not fail to take into account any claim, or any integer of any claim, made by or on behalf of the appellant. It correctly applied the relevant legal principles to the facts as found. The appellant's concern regarding the hostility that he and his wife might encounter from her family if they return to Greece, does not, in the circumstances of this case, give rise to a well-founded fear of persecution that is Convention based. Nor is there any reason to suspect that the Greek authorities would be unwilling or unable to provide protection. 25 No error has been shown in the manner in which the Federal Magistrate dealt with the application for review of the Tribunal's decision. Accordingly, the Federal Magistrate was correct in dismissing that application. The appeal to this Court must be dismissed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Solicitor for the Respondent: Australian Government Solicitor
MZKAH
Minister for Immigration & Multicultural & Indigenous Affairs