Mzakn v Minister for Immigration
[2015] FCCA 3224
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3224 |
| Catchwords: MIGRATION – Judicial Review of a decision made by the Refugee Review Tribunal – application for a Protection (Class XA) visa – application out of time – leave granted to proceed out of time – no merit to the application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(aa), 477(1), 477(2) |
| MIAC v SZQRB [2013] FCA 33 |
| Applicant: | MZAKN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1819 of 2014 |
| Judgment of: | Judge Hartnett |
Hearing date: Orders made: | 21 September 2015 21 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Priest |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS MADE ON 21 SEPTEMBER 2015
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
Leave be granted to the Applicant pursuant to s.477(2) of the Migration Act 1958 (Cth) to proceed out of time.
The Application filed on 5 September 2014 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1819 of 2014
| MZAKN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced by the filing of an application for judicial review of a decision made by the Refugee Review Tribunal (as it then was) (“the Tribunal”) on 31 July 2014 which affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”) under the Migration Act 1958 (Cth) (“the Act”).
The substantive application was filed on 5 September 2014 and thus was an application outside the 35-day period provided for in s.477(1) of the Act. The filing of the application was one day out of time. Section 477(2) of the Act provides that the Court may in certain circumstances order that the 35-day period be extended. Section 477(2) of the Act is as follows:-
“The Federal Circuit Court may, by order, extend that 35 days period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
The Court is satisfied, given the lack of prejudice to the First Respondent, the minimal length of the delay and the arguable case before it that leave should be granted to the Applicant pursuant to s.477(2) of the Act to proceed out of time. Counsel for the First Respondent did not object to this course.
The application raises in summary three grounds of review. They are:-
a)an error of law;
b)the Tribunal did not consider the Applicant’s complementary protection claim that he would face harm from loan sharks if he returned to China; and
c)as the Applicant is a Christian, he will be convicted of a crime and punished by the Chinese Government.
No particulars were provided for these grounds, despite an order made by Registrar Allaway of 3 December 2014 that the Applicant file and serve any amended application, including any additional grounds of review with complete particulars of each ground on or before 29 April 2015. Those same orders also provided for the Applicant to file and serve written submissions in these proceedings. The Applicant has failed to provide any written submissions in these proceedings.
Essentially, this Application seeks merits review of the Tribunal decision, which is not a function of the Court. There is no error of law attending the Tribunal’s decision, and the application must be dismissed for the reasons which follow.
Background
The Applicant first arrived in Australia on 31 October 2004 as the holder of a (Subclass 573) (Student) (Higher Education Sector) visa. He has since held two other (Subclass 573) visas, the most recent of which ceased on 30 August 2010. Before his visa ceased, the Applicant returned to China four times: from 10 November 2005 to 16 January 2006, from 12 June 2006 to 13 July 2006, from 22 December 2006 to 22 February 2007, and from 7 April 2010 to 15 May 2010. He remained in Australia unlawfully from 31 August 2010.
The Applicant was taken into immigration detention on 15 May 2014. He applied for a protection (Class XA) visa on 2 June 2014. At the time of the Tribunal hearing, he was in immigration detention. He attended the Tribunal hearing on 25 July 2014 to give evidence and present arguments assisted by an interpreter.
The evidence before the Tribunal was located on the Department of Immigration and Border Protection (“the Department) and Tribunal files regarding the respective visas and review applications. It comprised information and news reports provided by the Applicant to the Department; the Applicant’s oral evidence to the Department; and oral evidence to the Tribunal. The Applicant provided the primary decision record to the Tribunal for the purpose of the review and was taken to be on notice of the delegate’s reasons and findings.
As accurately stated in the First Respondent’s written submissions (paragraph 11), a summary of the applicant’s claims before the Tribunal is as follows:-
“11.1 His mother became addicted to gambling after his father died in 2007. She borrowed money from loan sharks and cannot afford to repay it.
11.2 On returning to China in 2009, his mother demanded that he sign over his inheritance. He was followed by an unknown man, threatened, assaulted and told to sign over the money. He did so because his relatives and the police refused to get involved.
11.3 He returned to Australia but could not afford to pay for his studies. However, his relatives told him not to return to China because he would be in danger.
11.4 There is no regulation of loan sharks in China and they can abuse their power without any restriction. They are supported by criminal organisations and they bribe public authorities to stop them intervening.
11.5 If he returns to China, he will be pursued for his mother’s debts but he has no money to pay the loan sharks and so will face death, torture and persecution.”
In an interview with the Minister’s delegate, the Applicant further stated he had been baptised and converted to Christianity whilst in the detention centre and that, as a consequence, he faces harm if he returns to China.
Tribunal Decision
The Tribunal set out in paragraph 17 of its statement of decision and reasons (“the decision record”) that the core issue for it to determine was whether in accordance with cited Australian law, the Applicant was owed refugee or complementary protection in Australia from harm in China deriving from his mother’s gambling debts to loan sharks and gangs (including because there is no effective state protection available to him), or due to his stated Christian religion. The Tribunal concluded the decision under review should be affirmed.
The Tribunal assessed the Applicant’s claims in reference to China accepting that the Applicant was a Chinese national.
The Tribunal had serious doubts about the overall credibility of the Applicant’s claims given their timing, that is, being years of unlawful presence in Australia to the point of detention, and in circumstances where it has been open to the Applicant to seek advice about his visa options including protection options during his time in Australia. The Tribunal said at paragraph 22 of the decision record that:-
“The scenario advanced of the applicant’s mother turning to gambling after her husband’s death, incurring spirally debt and turning to unregulated lenders, is not entirely implausible. However, for the following reasons, I do not accept any aspect of the overall account offered by the applicant regarding the loan- related claims.”
The Tribunal did not accept that the Applicant, having held student visas in Australia for many years, did not appreciate the relevance of his visa ending and his need to regularise his visa status once ended. The Tribunal found by the Applicant’s own evidence at the Tribunal hearing that he knew he was in Australia unlawfully from late 2010, and found he could reasonably be expected, that notwithstanding his father’s death years before (around 2008), or his divorce or his overall circumstances as stated, to take steps to discuss his visa status and/or circumstances with the Department or seek legal advice about them sometime between 2010 and 2014.
The Tribunal did not accept the Applicant’s assertion at the Tribunal hearing that he tried to commit suicide three times in the period around 2010. The Tribunal also did not accept that the Applicant was an alcoholic for a time. The Tribunal said relevantly at paragraph 29 of its decision record:-
“… I do not accept uncritically that the applicant was addicted to alcohol or that this impacted his decisions about his visa status or options. Nothing in the claims or evidence suggests the applicant has ongoing mental health problems or alcohol reliance and I find there is no real chance he will face harm or serious harm deriving from these or such matters in China now or in the reasonably foreseeable future.”
Given the Applicant’s background as a university graduate, the Tribunal did not find the detail or consistency of the Applicant’s evidence itself or alone, lent credence to his evidence or alleviated the Tribunal’s very substantial doubts about the credibility of the protection claims.
Given its findings as to the credibility of the Applicant and the timing of the claims, the Tribunal did not accept his claims about his mother, her debts, that he was ever threatened by loan sharks in 2010 or that his mother or he faces a real chance of harm related to loan sharks in China. Further, the Tribunal did not accept that the Applicant was genuinely a Christian given the timing of the claim and the lack of reference to it in his visa application, and did not accept that he had been involved in Christianity or private bible study in Australia at all, in any form.
The Tribunal did not accept the Applicant would seek to practice Christian religion on return to China now or in the reasonably foreseeable future. The Tribunal found “he faces no chance of harm (including no real chance of serious harm) due to Christian religion if he returns to China”.
Given the Tribunal’s findings as set out in the whole of the Tribunal decision record, and having regard to the individual and cumulative claims, the Tribunal found the Applicant’s stated fears of persecution in China were not well-founded. Accordingly, the Tribunal was not satisfied the Applicant was a person owed protection in Australia and that s.36(2)(a) was not met.
The Tribunal went on to consider whether the complementary protection requirements of s.36(2)(aa) were met, having regard to all the evidence and information before the Tribunal, the exhaustive definition of ‘significant harm’ in the Act, attendant definitions contained in s.5 of the Act and the interpretation of real risk adopted by the Full Court of the Federal Court of Australia in MIAC v SZQRB [2013] FCA 33. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant’s removal from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal was therefore not satisfied the Applicant was a person to whom Australia owed protection obligations under s.36(2)(aa) of the Act.
Consideration
The Tribunal correctly set out the relevant law in determining the application before it and applied that law. The Tribunal complied with its statutory obligations as to the requirements of the natural justice hearing rule as set out in Division 4 Part 7 of the Act. The Tribunal made findings as to the claims put before it by the Applicant and found that the Applicant’s claims and evidence were not credible. Such credibility concerns, the Tribunal put to the Applicant at the Tribunal hearing. The Tribunal’s conclusion that the Applicant was not credible is a finding of fact par excellence, and it is not for the Court to review the merits of the Tribunal’s decision. The findings made by the Tribunal were clearly open to it on the evidence before it.
As submitted by Counsel for the First Respondent, the Tribunal’s findings were open to the Tribunal for the reasons it gives, and an assessment of the visa Applicant’s credibility may be the crucial issue.[1]
[1] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 1007 (73.7) per Kirby J.
It is plain the Tribunal considered the Applicant’s claims against the complementary protection criteria of the Act. It applied its reasoning in relation to its findings of fact on the Refugee Convention criteria that the claim to past harm was not credible. Accordingly, the Tribunal was also not satisfied there was a real risk that the Applicant would suffer significant harm upon his return to China; or upon his removal from Australia to China.
There is no merit in the application for judicial review. The application is dismissed and costs shall follow the event.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 December 2015
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