SZNFS v Minister for Immigration & Citizenship

Federal Court of Australia|2009-08-20|Before: Edmonds J

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Magistrates Court (Nicholls FM) ([2009] FMCA 359) dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') to refuse to grant the appellant a protection visa.

BACKGROUND 2 The appellant is a citizen of Indonesia. He arrived in Australia on 29 April 2008 travelling on a sub-class 456 temporary business visa. 3 On 7 August 2008 he lodged an application for a protection (Class XA) visa. In that application he claimed to fear persecution in Indonesia on the basis that he and the woman whom he described as his wife in that application were of different religions, the appellant being a Muslim and the wife being a Christian. The application purported to include the wife as a member of the family unit. The wife had earlier arrived in Australia and had herself been refused a protection visa by way of a separate application which she had made. 4 On 8 August 2008, the delegate wrote to the appellant indicating that the wife had previously been refused a protection visa and, as such, was prevented under s 48A of the Migration Act 1958 (Cth) ('the Act') from making another protection visa application and/or being included as a member of a family unit in a subsequent application. The letter indicated that the Department would initiate an assessment of the application to be included as a member of the family unit against the guidelines relating to s 48B of the Act. 5 On 20 August 2008, the delegate wrote to the wife indicating that her matter would not be referred to the Minister for consideration under s 48B. 6 On 25 September 2008, the delegate refused the appellant's application for a protection visa. 7 On 20 October 2008, the appellant (but not the wife) applied to the Tribunal for review of the delegate's decision. 8 On 9 December 2008, the appellant attended a hearing before the Tribunal. 9 Following the hearing, the appellant made a written submission which was received on 23 December 2008. 10 On 21 January 2009 the Tribunal handed down its decision affirming the decision of the delegate.

THE TRIBUNAL'S DECISION 11 The Tribunal accepted that the appellant and his wife had been formally married in Australia on 7 December 2008. The Tribunal found that the appellant was a Muslim and his wife was a Christian. The Tribunal accepted the appellant's evidence that he had not been persecuted in Indonesia. The Tribunal noted that the appellant stated that his claims solely related to his and his wife's families, and included resentment, attempts to separate them, ostracism and not recognising them. The Tribunal found that that did not amount to serious harm to the appellant within the meaning of s 9IR of the Act. 12 The Tribunal found that, under Article 2(1) of the Indonesian Marriage Law (No. 1 of 1974), marriage between persons of different religions was not explicitly forbidden. Even if the appellant's claim that offspring of such a marriage would not be recognised as a child or children of the marriage (but, rather, only of the woman) because Indonesian law would consider them to be in a de facto relationship was correct, that did not amount to serious harm within the meaning of s 91R of the Act. In any event, the Tribunal accepted the opinion of scholars and legal professionals to the effect that Article 2(1) did not prohibit interfaith marriage and accepted evidence that Christians and Muslims have had successful interfaith marriages in Indonesia. 13 The Tribunal noted that the appellant had not provided any independent country information which supported his claims. 14 The Tribunal was not satisfied that the appellant faced a real chance of persecution should he return to Indonesia then or in the reasonably foreseeable future. 15 The Tribunal was therefore not satisfied on the evidence before it that the appellant had a well-founded fear of persecution for any Convention related reason.

IN THE FEDERAL MAGISTRATES COURT 16 On 10 February 2009, the appellant commenced proceedings in the Federal Magistrates Court, raising four grounds of review: (1) The Tribunal misunderstood his claim. (2) The Tribunal failed to consider his wife's claims. (3) The Tribunal failed to take into consideration independent country information and ignored evidence given. (4) The Tribunal ignored the serious harm suffered pursuant to s 91R of the Act. 17 The appellant also relied upon an amended application filed two days before the hearing, which complained that the Tribunal failed to consider an integer of the appellant's case, being the real chance that he would convert to Christianity from Islam and therefore become an apostate. The court considered the grounds raised in the original and amended application, and rejected each of them. 18 On 11 May 2009, the appellant filed a notice of appeal in this Court raising three grounds.

Ground 1 19 The first ground asserts that the court below erred by failing to accept the ground raised in the amended application. 20 The Minister submitted that this ground of appeal ought to be rejected. The reasons given by his Honour for rejecting the amended application are set out at [15] - [37] of his reasons for judgment. In short: (1) His Honour recognised that the Tribunal was obliged to consider an applicant's claims and each integer of those claims, and that the claims to be considered included express claims as well as those that arose on the material before it. (2) In the present case, the purported claim that the Tribunal allegedly failed to consider (that there was a real chance that the appellant would convert to Christianity from Islam and therefore become an apostate) was not expressly made nor did it arise on the material before the Tribunal. This is despite the Tribunal expressly exploring the issue of apostasy with the appellant at the hearing. 21 I agree with this submission. The appellant has not particularised the nature of the error in his Honour's reasoning, nor is any error apparent. 22 Accordingly, this ground of appeal must be rejected.

Ground 2 23 The second ground of appeal is a complaint that the court below and the Tribunal: '[F]ailed to take into consideration my original claim which is contained on page 4 and 5 of the Tribunal case number 0806885 and such failure means ignoring important information about my religion which I cannot change in Indonesia as well as my wife's claim which was not properly put by her migration agent. 24 Although not clearly expressed, on pp 4 and 5 of the Tribunal's decision appears a summary of the appellant's wife's claims. Presumably, the appellant is seeking to re-agitate ground 2 of the application below. If this is the case, his Honour rejected this ground of review on the basis that the Tribunal had correctly refused to consider the wife's claims by reason that she was barred by s 48A of the Act from making a further protection visa application, having previously made an unsuccessful protection visa application. Further, to the extent that her claims bore upon the appellant's claims, the Tribunal dealt with them. 25 The appellant has not particularised the nature of the error in his Honour's reasoning (as summarised above) and it is apparent that there is no error. Accordingly, this ground of review must be rejected.

Ground 3 26 The third ground of appeal is an allegation that the Tribunal 'failed to give weight to the psychological pressure which amounts to persecution'. This is possibly a permutation of ground 4 of the application below but, irrespective of whether it falls within or outside the scope of the matters raised below, it is no more than an impermissible attack on the merits of the Tribunal's reasons. The Tribunal expressly considered, but rejected, the claim that the psychological pressure amounted to persecution, as it was entitled to do. 27 This ground of appeal accordingly ought to be rejected.

CONCLUSION 28 The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Counsel for the Appellant: The appellant appeared in person

Counsel for the First Respondent: Mr PD Reynolds

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