MZAJX v Minister for Immigration

[2015] FCCA 1568

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1568

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – alleged bias in Tribunal – procedural fairness – alleged failure of Tribunal to consider applicant’s claims – application dismissed.

Applicant: MZAJX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1694 of 2014

Judgment of: Judge McGuire

Hearing date: 2 June 2015

Date of Last Submission: 2 June 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Ms Ngo

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application for a judicial review filed 20 August 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of 6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1694 of 2014

MZAJX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 25 July 2014 affirming a decision of the Minister’s Delegate not to grant the applicant a Protection (Class XA) visa (“the visa”).

2. The applicant has filed no written submissions. He was assisted before this Court by an interpreter and took up the Court’s invitation to make oral submissions.

3. The application itself purports to make eight separate grounds of complaint in respect of the Tribunal’s decision, although the form of the grounds are difficult to decipher and in some instances are repetitive or otherwise simple assertions of fact. For the benefit of these reasons, however, I set out the applicant’s grounds in full:

   Attachment to Grounds of Application.

   Orders sought by Applicant

   1, I don’t think DIAC and RRT’s decisions are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

   2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3, RRT failed to prudently consider my risk, especially my commitment of paralyzing if I return to origin.

   4, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   5, RRT treat my case unfair and unreasonable and did not consider that I will be persecuted by the Chinese government due to my Christian believe

   The Grounds of the Application are:

   1, I have been actively involved in church actives in Australia. my actions and religious performance has been evidenced by church elder with reference.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   3, The tribunal’s decision could not give rise to an apprehension of bias in the mind of a reasonable observe

4. The applicant elaborated in his oral submissions by adding:

   i) That the Tribunal was biased in “not accepting my explanation in respect of the transfer of money to China”;

   ii) That during the hearing the Tribunal member offered that the applicant would be given time to consult with his representative (apparently by telephone) but that the interpreter’s booking time had expired and such time was not offered. (I take this to be a complaint in respect of procedural fairness); and

   iii) That the Tribunal made no consideration or appropriate consideration that the applicant would be persecuted if returned to China by reasons of his interest in an internet café which distributes material contrary to government policy and, more particularly, that the Tribunal considered only country evidence but not the applicant’s own evidence.

Background.

1. The applicant is from the Fujian Province of China. He arrived in Australia on a Student visa on 27 April 2007. He applied for and was granted subsequent Student visas. His last application was refused being a decision affirmed by the Migration Review Tribunal on 28 June 2012. He then remained in Australia unlawfully until lodging his application for a Protection visa on 31 May 2013.

2. On 25 July 2014 the Tribunal affirmed the Delegate’s decision to refuse to grant a visa.

3. The applicant says that he is a practicing Christian and member of a Melbourne Baptist Church.

4. The Applicant says that he invested $25,000 in an internet café business in Fuqing, China in 2013 giving him a 60% interest. He says that the business attracted government scrutiny and was closed down. He says that his business partner and employees were arrested. He says that his father has been arrested, detained and interrogated.

5. It is clear that the applicant based his claim of fear of persecution on two broad grounds being firstly, his practice of Christianity in an unofficial Christian Church and, secondly, his investment in and active public involvement in an internet café business which disseminates material contrary to government policy.

The Tribunal’s Decision.

1. The Tribunal accepted that the applicant is a legitimate practicing Christian. However, the Tribunal considered the country information specific to the Fujian Province where there exists more liberal attitudes to unofficial church practices. The Tribunal concluded that the applicant would be able to practice his Christianity in Fujian Province without persecution from the authorities.

2. The Tribunal considered but did not accept that the applicant would be imputed with anti-authority political reviews by reasons of his religious practices and views including his advocacy for improved human rights for Christians in China and, hence, the applicant does not have a real chance of serious harm in China due to these views.

3. The Tribunal accepted that the applicant was an investor in the internet café. However, the Tribunal made a finding of credit contrary to the applicant’s assertion that he was the legal representative of this café in China.

4. The Tribunal specifically did not accept as genuine the supporting documents proffered by the applicant for this assertion. As such, the Tribunal found that the applicant held no official or public role in the café other than as an investor. The Tribunal noted particulars of evidence as implausible and otherwise the applicant was vague and uncertain in his own evidence. Specifically the Tribunal rejected the assertion that the internet café had been closed and its employees arrested and similarly that the applicant’s father had been arrested as being contrived.

5. At [65] the Tribunal found that the applicant does not have a real chance of harm now or in the reasonably foreseeable future and does not have a well-founded fear of persecution.

6. The Tribunal properly addressed the complementary protection provisions and was not satisfied that the applicant was a person whom Australia has protection obligations.

Application to this Court.

1. I will deal firstly with the three particularised grounds of complaint made by the applicant in his oral submissions some of which obviously overlap with his written application:

i. Alleged Bias.

1. At [44] and [64] the Tribunal accepted that the applicant was a financial investor in the internet business. Those paragraphs deal with the particulars of his investment and with the matters which concern the exercise of the Tribunal’s discretion. At [45-55] the Tribunal engaged and clearly consciously considered the applicant’s evidence and assertions. The Tribunal’s reasons disclose that the applicant was given the opportunity to make argument and present submissions. The applicant has not otherwise particularised any complaint of bias and I find no merit in this ground of appeal.

ii. The Applicant’s claim that he was not given sufficient opportunity to consult with his representative because the interpreter’s booking had expired.

1. This was an assertion made from the bar table. The applicant did not provide a transcript of the RRT hearing. There is no evidence to support his assertion. The applicant had ample time to adduce such evidence given that his application was filed as long ago as 20 August 2014. Notably, the hearing before the RRT took place on 22 April 2014 but its decision was not handed down until 25 July 2014 giving the applicant post-hearing opportunity to make further submissions. Significantly, the applicant was provided with an audio copy of the transcript of the hearing as long ago as 20 May 2014. Taking all of these matters into account, I find no merit in the applicant’s complaint.

iii. The applicant’s submission that no appropriate consideration of his claims was made by the Tribunal and that the members “simply relied on country information”.

1. [19-20] of the Tribunal’s reasons under the heading “CONSIDERATION OF CLAIMS AND EVIDENCE” continues over some two pages of the transcript and recites the applicant’s own statement from his application. The reasons note the applicant’s corroborated evidence provided to the Tribunal. [21-28] disclose a detailed statement and consideration of the applicant’s submissions. The Tribunal’s reasons under the heading “FINDINGS AND REASONS” continue under specific sub-hearings and specifically address the applicant’s assertions of his fear of harm because of his religious practices under the heading “CHRISTIANITY” between [32-42]. Secondly, the reasons under the heading “INVOLVEMENT WITH AN INTERNET CAFÉ” asses the applicant’s claim in this respect from [43-66].

2. The applicant does not particularise any evidence or claim not referenced or considered by the Tribunal. A reading of the Tribunal’s reasons does not disclose any failure to consider or reference any claim. The Tribunal’s findings are, in my view, those that were reasonably open to it on the evidence and do not present as irrational or illogical. As such, there is no merit to this ground of complaint.

Discussion and Conclusion.

1. The balance of the matters raised in the applicant’s application amount to assertions of fact and are therefore misconceived in respect argument for judicial review. Alternatively, they are unparticularised challenges to the exercise of the Tribunal’s discretion. It is well established that an application to this Court for judicial review is not yet another opportunity for a merits hearing.

2. I find no merit in the grounds of complaint made by the applicant against the determination or process of the Tribunal. As such, the application will be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015