MZAIM v Minister for Immigration

[2015] FCCA 2913

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2913

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZAIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1473 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 August 2015

Delivered at: Melbourne

Delivered on: 28 October 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 15 October 2014 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1473 of 2014

MZAIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Second Respondent, formerly the Refugee Review Tribunal (‘the Tribunal’) dated 30 June 2014.  The Tribunal affirmed a decision of a Delegate of the First Respondent dated 4 December 2013 not to grant the Applicant a Protection (Class XA) visa (‘protection visa’).  The grounds of the application are as follows:

   “1. I am making this application to the Federal Circuit Court of Australia to review a RRT decision to affirm a delegate decision to refuse my protection visa application.

   2. Refugee Review Tribunal member failed to make a decision according to law in that he denied the applicant natural justice.  On one hand, on Paragraph 83 of the decision, the tribunal member accepted that the visa applicant is a Christian of the local church who has practised in house churches consistently in Fujian for many years, the tribunal member affirm the delegate decision by not taking into account carefully that until now local family church is still banned in China and members of the local family church face significant harm and persecution so long as the ban is not lifted by the government.  Recentely (sic) Chinese government reiterate that “shouters” are among 14 illegal sects in China.  The tribunal reached this decision based on his subjective conscientiousness rather than objective considerations.

   3. The Tribunal was bias in madding (sic) his decision based on country information available to the tribunal and has not considered my personal circumstances and the fact that local family church is still banned in China.  Until such is (sic) ban is lifted by the authority, there is always real chances for its members to suffer persecution by the authority.”[1]

   [1] Applicant’s Application filed on 15 October 2014.

2. The First Respondent submits that the application for judicial review is without merit and should be dismissed with costs in accordance with the scale under the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant relies upon an Affidavit affirmed by him on 22 July 2014, which annexes the Decision Record of the Tribunal dated 30 June 2014 (‘the Decision Record’), and essentially restates the grounds of the application.  In addition, the Applicant relies upon a Statement filed by him and dated 6 August 2015, which are in effect his submissions before the Court.

4. The First Respondent relies upon its Outline of Written Submissions filed on 27 July 2015.  There is also before the Court, the documents as contained in the Court Book filed on 19 November 2014 and which is evidence in the proceedings.

History

1. The Applicant is a citizen of the People’s Republic of China, who first arrived in Australia on 22 June 2012 on a passport that was issued to Mr Zhenyu Zheng born on 30 December 1985 with passport number G22477992, which also had a Temporary Graduate (Subclass 485) visa already attached to it.  That was a fraudulent People’s Republic of China passport.  The Applicant provided to the Department of Immigration and Border Protection (‘the Department’), his genuine People’s Republic of China passport (G39231884) in his own identity. The Applicant has not departed Australia since his arrival.

2. On 18 September 2012, the Applicant lodged his application for a protection visa. 

3. On 4 December 2013, the Delegate refused to grant the protection visa.  The Delegate was not satisfied the Applicant had ever been specifically targeted for his religion in the People’s Republic of China.  The Delegate did not accept the Applicant had been persecuted in the past, as claimed, particularly that he had been arrested, detained, interrogated and mistreated in detention for reason of his religious activities or for any other reason, because the Delegate found that aspects of his claims to have been fabricated. 

4. On 16 December 2013, the Applicant applied for review of the Delegate’s decision to the Tribunal.  Accompanying that application was a further submission by the Applicant of 15 December 2013.  The Applicant was assisted in the preparation of that application by his registered migration agent and authorised representative, Mr Pei Ling Zheng of Century Migration & Translating Service Australia (‘authorised representative’).

5. On 16 April 2014, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The Tribunal noted in its invitation to appear before the Tribunal that an interpreter in the Mandarin language would be provided for the assistance of the Applicant. 

6. On 21 May 2014, the Applicant and his authorised representative appeared at a hearing before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Applicant was represented in relation to the review by his authorised representative.

7. The Applicant’s written claims were set out in paragraph 20 of the Decision Record. They are that the Applicant:-

   a)travelled to Australia on another person’s passport, which was provided to him by an agent who had inserted his photograph into the passport; 

   b)he is from Jiangjing Town, Fuqing City, Fujian Province, and has also worked for four to five years in Guangdong Province; 

   c)he has worked as a driver and painter in the past; 

   d)he is a Christian and a member of the local church, which was banned by the Government as an evil sect; 

   e)he and other members had to arrange gatherings secretly, which were sometimes held in his house; 

   f)he was arrested by the Fuqing City Public Security Bureau on 22 September 2012 and detained at Fuqing Detention Centre for seven days and suffered physical abuse while in custody.  He was released on condition that he would not attend local church gatherings in the future.

8. The Applicant’s claims were supported by his Statutory Declaration made 12 September 2012 and, in particular, paragraphs 10 to 18 inclusive of that declaration.  The Applicant’s claims were further addressed in his correspondence to the Tribunal of 15 December 2013. 

9. The Applicant submitted a copy of the Delegate’s decision to the Tribunal. 

10. An accurate and succinct analysis of the Decision Record is contained in the First Respondent’s Outline of Written Submissions, paragraphs 12 to 23 inclusive.  I set it out below: -

    a)At paragraphs 22 to 48, the Tribunal set out the country information it had regard to in considering the Applicant’s claims.  This information concerned the establishment of the local church, the local church’s conceptualisation of Christmas, Easter and the “economy of God” and, importantly, information about how local church members were treated in China and the Chinese Government’s control of religious practices.  The Tribunal also had regard to specific locations of worship in Fujian Province, where the Applicant (and his family) resided, and information about document fraud and visa applications that were affected by fraud in Fujian Province.

    b)At paragraphs 51 to 80, the Tribunal recorded what transpired at the hearing.

    c)Having found it had jurisdiction to review the Delegate’s decision, and that the Applicant was a citizen of China, the Tribunal then accepted that the Applicant was a Christian of the local church that had engaged in practice in house churches in Fujian Province over many years “with no remarkable role or prominence”.

    d)At paragraph 84, the Tribunal considered that there was “significant tension” between the Applicant’s claims to be of adverse interest to Chinese Government authorities (either historically or in the future), with country information put to the Applicant at the hearing.

    e)At paragraph 85, the Tribunal rejected the Applicant’s submission that international observers had been effectively “smothered” from reporting and accessing information about the Chinese Government’s crackdown on the local church and, that if the adverse events the Applicant claimed occurred, this would have been observed and reported.  The Tribunal did not accept that there were significant or material adverse incidents against local church members which had not been considered or reported in the Tribunal’s sources.

    f)At paragraph 86, the Tribunal evaluated country information that it considered “strongly suggests that the [local] church is in fact tolerated by authorities”, which the Tribunal considered may be a result of “greater dialogue between the [local] church and authorities” and of a “softening of the originally harsh stance taken against the [local] church”.

    g)At paragraph 87, the Tribunal acknowledged the Applicant’s submission that arrests of local church members occurred in China, but found that the weight of country information suggested that the Government’s focus was on individuals capable of staging large scale concerted action capable of challenging the rule and legitimacy of the Government and generating public dissent, and not small private gatherings that were not so capable.

    h)At paragraph 88, the Tribunal made “concomitant” findings “in favour of each of the propositions based on country information put to the ‘Applicant’ at ‘the hearing’”.  The Tribunal stated:

    “The weight of those propositions suggests that the applicant’s small private house gatherings would not have been, and would not be, of interest to authorities in Fujian, roundly observed to have one of the most liberal policies on religion in China.  This in turn casts doubt on the claim that the applicant’s small private house gathering was of interest to authorities in February 2012, and was therefore broken up by the authorities at that time, and the applicant arrested and detained.”

    i)The Tribunal placed little weight on the documents that supported the Applicant’s claim to have been detained, on the basis of country information that suggested the documents were “easy to obtain inappropriately from authorities or else easy to manufacture, and frequently used.” 

    j)At paragraph 90, the Tribunal expressly discounted reliance upon the Applicant’s admission that he knowingly presented a falsified passport to Australia.  

    k)At paragraph 91, the Tribunal did not accept that the Applicant had come to the adverse attention of Chinese authorities because of his faith, and rejected the factual elements of his claims, “relying principally on a large amount of independent and reliable country information.”  The Tribunal found that the Applicant would be able to continue practising his faith without having to conceal or alter his church practice, and would not face serious or significant time in the reasonably foreseeable future.  The Tribunal concluded that the Applicant’s claimed fear of persecution was not well-founded.

    l)Based on its findings of fact and reasoning, the Tribunal found that the Applicant’s claims did not engage s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found that the Applicant’s claims did not engage Australia’s protection obligations in s.36(2) of the Act. The Tribunal affirmed the decision of the Delegate not to grant the protection visa.

Consideration

1. The Tribunal afforded the Applicant procedural fairness and complied with the provisions set out in div.4 of pt.7 of the Act in its conduct of the review. The Tribunal explored with the Applicant his role and participation in the legal church, as set out in paragraph 59 of its Decision Record, and invited the Applicant to comment on all or any of the issues raised by the Tribunal with him. The Tribunal clearly put to the Applicant all of those matters that were of concern to it in considering each and every of the Applicant’s claims. Numerous instances of that are set out in the Decision Record, for example, paragraphs 75 and 76 of the Decision Record. The Tribunal was both careful and particular in its puttage of matters to the Applicant, including matters that, if accepted, would be adverse to the Applicant.

2. The Applicant was informed that his documentary evidence would be weighed and assessed within the fabric of his entire claims and the observations regarding country information as put to him by the Tribunal.  The Applicant was asked if the observations on country information and the issues laid out for the Applicant were clear to him and whether he wished any clarification.  Paragraph 68 and 69 of the Decision Record record that:-

   “68. … [The applicant] sought clarification regarding the information on fraudulent documents and was told that the tribunal would consider the documentary evidence supporting the claim that he was and is of adverse interest and was arrested and detained within the greater fabric of his claims and the observations on country information put to him.  Both he and the representative did not wish further clarification as to the matters put to the applicant.  He was then given a break in the hearing to consider his responses. 

   69. After the break of around 50 minutes, the applicant was informed that the information suggested that the authorities was (sic) not interested in small-scale house gatherings of local church members, and suggested that such members could go about meeting and practicing in the way that he was accustomed without the need to take particular steps to be cautious or careful.” 

3. The Applicant was invited to comment on those issues as raised with him.  The country information on which the Tribunal relied, including that the province that the Applicant came from had one of the most liberal policy’s on religion, especially on Christianity, was put to the Applicant for his comment.  The Tribunal concluded at paragraph 91 of its Decision Record in respect of that country information, the following:-

   “… relying principally on a large amount of independent and reliable country information and the propositions put to the applicant at hearing, some from the local church itself,  I do not accept that the applicant or anyone else in his local church group have come to the adverse attention of authorities in China on account of their local church practice and I reject that he was arrested or detained on account of his church practice, or that he has otherwise come to the adverse attention of authorities.  I find the authorities have not had and have no particular interest in his local church group or its activities, or any member of the group, including the applicant, and will not have such an interest in the reasonably foreseeable future.”

4. The Applicant’s allegation of bias in the Tribunal Member provides no particulars as to that ground.  An allegation of bias must be “distinctly made and clearly proved”.[2] There is no evidence before the Court that the Tribunal was not open to finding in favour of the Applicant.

   [2] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; at [69] per Gleeson CJ and Gummow J, and at [127] per Kirby J.

5. As submitted by the First Respondent, to the extent that the complaint is that a reasonable person could apprehend bias in the Tribunal’s conduct, that complaint must fail.  There is no evidence of bias attending the Decision Record or in the conduct observed and processes followed by the Tribunal. 

6. The Applicant seeks to engage in merits review of the Tribunal’s decision which is not a function of this Court.  The Tribunal’s decision contains no jurisdictional error.  Each of the claims and their component parts was understood by the Tribunal and considered carefully by it.  The weight given by the Tribunal to country information about the status and treatment of the local church by the Chinese Government, and the conflict the country information presented to the Applicant’s claims to fear harm arising from his membership of the local church, were matters for the Tribunal as part of its fact-finding task.  The selection of country information and weight given to same is a matter for the Tribunal.[3]  The Tribunal had specific regard to how local church members were treated in China. It canvassed country information as to the Chinese Government’s response to the local church and its members during the 1980’s, 1990’s, and from 2000 onwards. It said, as to that, at paragraph 31 of its Decision Record:-

   “The Chinese government has granted much greater religious autonomy to Christian groups since the end of the Cultural Revolution; freedom of religion has, however, been circumscribed by requirements to be registered and by the banning of some groups. Official policy has allowed both liberal and repressive interpretations of the relevant laws, and the implementation of religious control has varied widely at different times and in different places. In criminalising some Protestant groups as cult organisations, the government prohibits their members from exercising religious freedom. The government reserves for itself the right to determine what is and what is not a religion.”

   [3] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

7. And later at paragraphs 74 to 76 of the Decision Record:-

   “74. I put to the [Applicant] that the information suggested that while the ban against the church remained in place, the government appeared to have concluded that the local church did not now present the threat that it was once thought it presented, and it appeared that the government was not acting generally to enforce the ban. He said it was all superficial, and on the surface.

   75. I suggested that if international observers were able to appreciate the extent of the crackdown in the 1980’s, they should also be able to appreciate if the crackdown remained intense today. He said news from China had been blocked and the government had tight control over the internet. I asked if he had a response to the researcher who observed large congregations at the Local Church in Xiamen in 2005. He said that might not have been the local church.

   76. I pointed out the applicant there is a conflict between the weight of country information and the applicant’s historical claims to have been of interest, arrested and detained, and his claims for the future to face real chance and risk of harm from the government. The applicant said the 1000-hall belonged to a registered church, and not the Local Church. I invited him to comment on information that some Local Churches, including in Fujian, had been registered. He said he was unaware of whether other local churches had been registered, and if they had, they are not real Local Churches.”

1. The Tribunal made findings open to it on the evidence before it.  No illogicality or irrationality is apparent in the Decision Record, or the reasoning of the Tribunal. 

2. The application for judicial review is without merit and shall be dismissed with costs to follow the event. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 28 October 2015