MZKAH v Minister for Immigration & Multicultural & Indigenous Affairs

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.