Mo v Minister for Immigration & Multicultural Affairs

[2000] FCA 305

FEDERAL COURT OF AUSTRALIA

Mo v Minister for Immigration & Multicultural Affairs
[2000] FCA 305

MO RI CHANG v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

W 136 of 1999

CARR J
16 MARCH 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 136 OF 1999

BETWEEN:	MO RI CHANG Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	16 MARCH 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs.  The costs are to be taxed on a basis which takes into account the similarity between the issues in this application and those in application number W 142 of 1999.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 136 OF 1999

BETWEEN:	MO RI CHANG Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	16 MARCH 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. This is an application for an order of review of a decision of the Refugee Review Tribunal made on 25 October 1999 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of the People’s Republic of China, arrived in Australia by boat and without any travel or identity documents on or about 12 March 1999.  He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 23 March 1999.  On 26 August 1999 a delegate of the Minister refused to grant him a protection visa.  On 30 August 1999 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. 

   The applicant’s claims and the Tribunal’s decision

2. The applicant’s claims and the Tribunal’s findings are set out, respectively, at pp 3 to 4 and 7 to 11 of its reasons for decision dated 25 October 1999, which are annexed to and incorporated by reference into these reasons.  In summary, the Tribunal accepted that the applicant was baptised into the Roman Catholic Church during his previous visit to Australia.  It found, on the available information, that he can pursue his faith without being harassed in his home province of Guangxi.  In particular, it found that there was not a real chance that the applicant faced persecution if on return to China he pursued his faith with an unauthorised church but, if he was anxious about being harmed, he could follow his religion in a registered church.

3. The Tribunal did not believe the applicant’s evidence about the incident in early December 1998 at the time when the foundation stone was to be laid for a new church.  The Tribunal found that the applicant fabricated his story about the dispersal of that meeting with electric batons and the arrest and lengthy imprisonment of two colleagues for association with the church.  It also found that the order for arrest produced by the applicant was not a genuine document and was fraudulent – see the last two complete paragraphs on p 9 of the Tribunal’s reasons.

4. As to that portion of the applicant’s claims which was based on the prospect of punishment, on return, for a second offence of leaving China illegally, the Tribunal found that such punishment would be for reason of breaking laws that applied to all people in China and would not be imposed for a Convention reason.  The same applied to any charge of bigamy.

   Application for order of review

5. On 12 November 1999, the applicant lodged an application in this Court for an order of review.  The applicant was unrepresented.  His application is in a form common to several other applications recently lodged by applicants from the Port Hedland Detention Centre.  The grounds of the application were stated as follows:

   “(a)The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

   (b)The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

   Did the Tribunal err in law?

6. The applicant being unrepresented and not being able to speak English was, not surprisingly, unable to identify the legal errors which, in his application, he asserted had been made by the Tribunal.  At the hearing this morning the applicant passed up a three page written submission.  The submission raised the same factual matters which he had put before the Tribunal.

7. Accordingly I have scrutinised the Tribunal’s reasons to see whether they disclose legal error.  In my view, they do not disclose any legal error.

8. To the extent that the applicant’s claims were based upon being prevented from practising his religion in China, the Tribunal, as I have mentioned, found that this was not so.  The Tribunal referred to what it described as a broad range of information about religious practices in China and also to a particular communication from the Australian Department of Foreign Affairs and Trade (“DFAT”) dated 12 August 1999.  There was ample evidence upon which the Tribunal was entitled to find, as it did, that the applicant could freely pursue his religious beliefs should he return to China.

9. The Tribunal chose to rely upon the DFAT communication when it rejected the applicant’s evidence about the dispersal of the meeting with electric batons and the arrest and lengthy imprisonment of two colleagues for association with the church.  It also gave its reasons for rejecting the “Order for Arrest” as not being a genuine document and being fraudulent.  The reasons were concerned with the nature and content of the document.  One of those reasons was that the offences alleged in it, so the Tribunal noted, were not consistent with country information cited in the report from DFAT.  The Tribunal did not err in law when it rejected the document and, by so doing, did not accept that the applicant would be arrested, on return to China, on the charges described in it.  There was evidence upon which the Tribunal was entitled to rely when reaching those conclusions.

10. Nor was there any legal error in the manner in which the Tribunal assessed the applicant’s claims relating to imprisonment for leaving China illegally on two occasions, or for bigamy.  In relation to the two illegal departures, the applicant made no claims based on political opinion, whether actual or imputed, either at the primary decision stage or before the Tribunal.  The Tribunal correctly set out the relevant law in its reasons.  In my view, the Tribunal’s reasons demonstrate that it applied the law correctly to the facts as found by it when it concluded that the applicant was not a person to whom Australia had protection obligations.  There was ample evidence to support the Tribunal’s findings of fact and it is quite clear that it considered, rationally, the evidence that was before it (assuming, but without deciding, that the second ground of the application is a ground for review). Accordingly the application must be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated:            16 March 2000

The Applicant appeared for himself
Counsel for the Respondent:	Mr J D Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 2000
Date of Judgment:	16 March 2000