MZAOG v Minister for Immigration
[2016] FCCA 1734
•21 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAOG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1734 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – important paragraph of Tribunal’s reasons finishing mid-sentence – whether error merely typographical. |
| Cases cited: AZAAL v Minister for Immigration and Citizenship [2009] FMCA 23 Nadesan v Minister for Immigration and Anor [2013] FMCA 152 SZLQV v Minister for Immigration and Citizenship [2008] FMCA 247 |
| Applicant: | MZAOG |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 2410 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 9 June 2016 |
| Date of last submission: | 9 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2016 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Oliver Young |
| Solicitors for the first respondent: | Sparke Helmore |
| Advocate for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore |
ORDERS
The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.
The decision of the Refugee Review Tribunal handed down on 11 November 2014 in matter number 1411109 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2410 of 2014
| MZAOG |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.
The applicant is a citizen of the People’s Republic of China. He first arrived in Australia on 24 May 2008 as the holder of a student visa. The applicant returned to China between 1 December 2008 and 29 January 2009, and between 2 January 2010 and 25 January 2010. The applicant’s student visa expired on 15 March 2011. He remained in Australia unlawfully until 17 September 2013. On that date, he applied for the protection visa that is the subject of this review.
The applicant’s claims
The applicant claimed that:
a)he was from Fujian province;
b)he feared harm in China on the basis of his Christian religion and practice in the Local Church;
c)in the past, he and his family had been able to practice their religion in China without suffering harm;
d)however, in July 2013, the applicant’s mother was arrested at a church gathering and detained for a week and beaten;
e)the applicant feared he would suffer the same fate;
f)he has attended church in Australia since his arrival here.
The delegate’s decision
The delegate accepted that the applicant had been raised as a Christian in the Local Church and continued his religious practice. However, the delegate did not accept that the applicant’s family had suffered harm in the past or that the applicant would face a real chance of serious or significant harm in the foreseeable future.
The Tribunal’s reasons
The applicant gave evidence at a hearing before the Tribunal. A representative from the Local Church in Melbourne also gave evidence on the applicant’s behalf.
The Tribunal rejected the applicant’s claim that he came to Australia in 2008 because he feared for his safety. The Tribunal noted that the applicant made no claims for protection for over five years after his arrival in Australia. The Tribunal also noted that the applicant had returned to China twice while his student visa was current.
The Tribunal noted that, during the hearing, the applicant claimed that the Local Church in China was banned after he had come to Australia. However, he later agreed with information the Tribunal put to him to the effect that the Local Church had been banned in China in 1984.
The Tribunal considered that these matters reflected poorly on the applicant’s credibility and did not indicate that the applicant had a genuine fear of returning to China.
The Tribunal had doubts which it explained about whether the applicant was a genuine adherent of the Local Church. However, the Tribunal gave the applicant the benefit of the doubt in that regard.
The Tribunal did not accept that the applicant’s mother had been detained and mistreated by Chinese authorities for a week after attending a local church gathering in July 2013. The Tribunal was concerned about the authenticity of a certificate of release provided by the applicant to the Department of Immigration. The Tribunal also considered that the applicant’s claims were inconsistent with independent information about the situation of Christians in Fujian.
The Tribunal noted at paragraph 24 of its reasons for decision that country information “does not support a finding that there is a consistent pattern of persecution” in Fujian of people who worshipped at house churches.
The Tribunal concluded at paragraph 26 of its reasons for decision that:
… The Tribunal considers the applicant’s evidence that he and his family have otherwise practised their faith without difficulty to be consistent with independent sources that China’s official religious policy is applied liberally in Fujian province. While the Tribunal accepts that the Local Church remains banned in China, the evidence before it does not indicate that its members (sic)
The Tribunal noted that the applicant’s evidence was that his religious activities had been restricted to attending church and practising his religion. The Tribunal noted that the applicant had not suggested that he had in the past or would in the future proselytise or evangelise so as to attract the attention of the authorities. The Tribunal did not accept that the applicant would actively encourage others to join the Local Church if he returned to Fujian province.
The Tribunal concluded that the applicant did not face a real chance of serious or significant harm in Fujian province.
Ground 1
The first ground of review in the application filed on 27 November 2014:
The Refugee Review Tribunal constituted juridical error in failing to consider the real risk the visa applicant faces in the future if he is to be removed from Australia in the near future. In P19 of the decision, the tribunal member stated that the Tribunal considers it appropriate to give the applicant the benefit of the doubt on his claims to be a follower of the Local Church and assess his claims on the basis that he is. P14 of the decision record quoted information from Tony Lambert, in his book China’s Christian Millions, observed that the Local Church was the “first cult to make a nationwide impact in China and noted that once a group has been labelled a cult, it is virtually impossible to have that label removed and so avoid continuing higher risk of arrest, fines and imprisonment. The tribunal fail[ed] to take into account the fact that unless the ban of a local church in China is banned, there is always risk for the local church member to face harm and persecution by the Chinese government.
Subject to the additional matter discussed below, it cannot be said that the Tribunal failed to consider the risk that the applicant faced if he were to return to Fujian province. The Tribunal considered the claims that were advanced by the applicant and weighed them up against independent country information. The Tribunal ultimately did not accept the applicant’s claims. However, that does not mean that the Tribunal did not consider them.
Ground 2
The second ground of review in the application filed on 27 November 2014:
The refugee Review Tribunal made juridical error in making assumption that the visa applicant’s activities only restricted to attending the church meeting and practising his religion. The tribunal member did not question the review applicant if he had been involved in proselytising or evangelising to spread the gospel to other people, instead the tribunal made assumption that the visa applicant did not proselytise or evangelise. If the tribunal has asked me if I have been involved with proselytise or evangelise and my answer was negative, then I would accept this finding from the tribunal. The fact is not only did I participate in local church gathering, but also I am actively involved with proselytising and evangelising.
It is not correct to say that the Tribunal made an assumption that the applicant would not proselytise or evangelise in Fujian province. What the Tribunal did was note that the applicant had not claimed that he had in the past or would in the future proselytise or evangelise. As that claim had not been made, it was open to the Tribunal to conclude that the applicant would not do those things in the future. It was for the applicant to make such claims as he wished and support those claims with such evidence as he wished. It was not for the Tribunal to question the applicant in such a way as to draw out additional claims. This ground is without substance.
Additional matter
As can be seen from the quotation set out above from paragraph 26 of the Tribunal’s reasons for decision, the Tribunal stopped that paragraph in mid-sentence. The first respondent argued it was a mere typographical error. The first respondent argued that the half-sentence:
While the Tribunal accepts that the Local Church remains banned in China, the evidence before it does not indicate that its members
was clearly intended to be finished with the words:
suffer a real chance of any harm as a result of their membership of the Local Church.
The first respondent acknowledged in post hearing written submissions that in SZIFI v Minister for Immigration and Citizenship (2007) 94 ALD 298, (2007) 238 ALR 611, [2007] FCA 63 at [33] and [45], Greenwood J in the Federal Court held that a Tribunal decision was a nullity in circumstances of an alleged typographical error. In that case, a citizen of Pakistan was incorrectly described by the Tribunal as a citizen of Indonesia and the Tribunal incorrectly gave consideration, apparently, to whether the applicant faced a real chance of persecution should he return to the People’s Republic of China. In that case, the court considered that the errors suggested:
that the deliberative process going to the merits of the Appellant’s case was infused with notions which are erroneous and thus irrelevant to the Appellant’s case, and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases.
However, in addition, the first respondent referred to a number of cases decided by this court where it was held that an error amounted to a mere typographical error that did not warrant a finding of jurisdictional error.
The first of those cases is Nadesan v Minister for Immigration and Anor [2013] FMCA 152 at [9]-[11]. In that case the Tribunal referred to the wrong section of the Migration Act 1958 (“the Act”). That case is distinguishable from the present case because there was no suggestion in Nadesan that the error went to the Tribunal’s reasoning. In the present case, a significant element of the Tribunal’s reasoning is absent.
The second of the cases from this court relied on by the first respondent is SZOMG v Minister for Immigration and Citizenship [2010] FMCA 1016 at [31]-[33]. In that case, the applicant was an Indian citizen but the Tribunal concluded that it was not satisfied that the applicant faced a well-founded fear of persecution if he returned to China. In that case, the court noted that the error was isolated and the other references to the applicant’s home country were correct. SZOMG is distinguishable from the present case because the error in the present case is not an obvious error in a single word but the absence of an essential part of the reasoning in the case.
The third case from this court relied upon by the first respondent is SZLQV v Minister for Immigration and Citizenship [2008] FMCA 247 at [21]-[24]. In that case, the applicant was an Indonesian but the Tribunal referred to the applicant being unable or unwilling to return to China. Again, SZLQV is distinguishable from the present case because SZLQV concerned an isolated word whereas the present case concerns an absence of reasoning.
The fourth case from this court relied upon by the first respondent is AZAAL v Minister for Immigration and Citizenship [2009] FMCA 23 at [29]-[34]. In that case, the Tribunal said that the applicants were citizens of Albania but had travelled on false Italian passports. The Tribunal then said that it was satisfied that they were citizens of Italy but immediately proceeded to say that it would assess their claims against Albania as their country of nationality. The court found for obvious reasons that the Tribunal’s finding that the applicants were citizens of Italy was a mere typographical error. AZAAL is clearly distinguishable from the present case because the reasoning process of the Tribunal was very clear in AZAAL, notwithstanding the mistake relating to citizenship, whereas in the present case the Tribunal’s reasoning process is, in a relevant respect, unknown.
Another decision of the Federal Court relied upon by the first respondent is Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 at [48]. In that case, the Federal Court noted that the Tribunal had referred to a cemetery “the applicant was buried in”, but concluded that the Tribunal had clearly meant to refer to a cemetery that another named person was buried in. The Federal Court considered that this was a mere error in proof reading and concluded that there was no jurisdictional error. In context, that conclusion appears to have been unavoidable. It is distinguishable from the present case, however, because the surrounding context does not make clear what the Tribunal meant to say in the remainder of the unfinished sentence.
The first respondent argued that the Tribunal’s reasons for decision needed to be read as a whole: Minister for Immigration and Multicultural Affairs v N989/01 [2002] FCAFC 237 at [17]. That is obviously correct. The first respondent argued that, reading the Tribunal’s reasons for decision as a whole, the Tribunal did not accept that the applicant faced a real chance of serious or significant harm for reasons of his religion in Fujian province.
The first respondent relied particularly on the passage at paragraph 24 of the Tribunal reasons for decision where the Tribunal said:
the evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach[es] of fundamental human rights [against Christians who worship at unregistered or house churches in Fujian province]. (emphasis added)
However, the question for the Tribunal was not whether there was a consistent pattern of persecution of Christians in Fujian province but whether there was a real chance of the applicant facing persecution in Fujian province by reason of his religious beliefs and practices.
Unlike the reasons for decision in many Tribunal cases, the Tribunal in this case did not set out at the commencement of its reasons the relevant test under s.36(2)(a) of the Act. The Tribunal merely said at paragraph 6 of its reasons for decision:
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention.
Ultimately, however, the Tribunal did find at paragraph 27 of its reasons for decision:
The Tribunal does not accept there to be a real chance that the applicant would be targeted for serious harm for reasons of his religion if he returns to China, now or in the reasonably foreseeable future, rather it considers that possibility to be remote.
That passage suggests that the Tribunal was aware of the correct test. However, the fact that paragraph 26 of its reasons for decision finished mid-sentence means that it is unclear how the Tribunal reached its ultimate conclusion.
Apart from the country information mentioned above which talks about there being no consistent pattern of persecution, there was also country information set out in paragraph 23 of the Tribunal’s reasons for decision to the effect that:
a)the risk for Christians in China was “statistically virtually negligible”; but also
b)a 2013 report indicated that:
groups deemed evil cults face long-term imprisonments, forced renunciations and torture in some parts of China …
The mention in paragraph 23 of the Tribunal’s reasons for decision to the 2013 report was a reference to a book described in more detail in paragraph 14of the Tribunal’s reasons for decision. In that paragraph, the Tribunal noted that:
Tony Lambert, in his book China’s Christian Millions, observed that the Local Church was the ‘first cult to make a nationwide impact in China’ and noted that once a group has been labelled a cult, it is virtually impossible to have that label removed and so avoid continuing higher risk of arrest, fines and imprisonment.
In these circumstances, it is difficult to know how the Tribunal reasoned from accepting that the applicant practised in the Local Church in China to concluding that the applicant did not face a real chance of persecution in China. The missing part of the last sentence in paragraph 26 of the Tribunal’s reasons for decision may have provided a perfectly rational explanation for the Tribunal’s ultimate conclusion. However, the reasoning is not apparent.
Conclusion
In the circumstances, I am not satisfied that the missing words in paragraph 26 of the Tribunal’s reasons for decision did not affect its statutory review function. Like the court in SZIFI, I must conclude that the Tribunal’s decision in the present case is a nullity. Consequently, the matter will be remitted to the Tribunal for redetermination. I will hear the parties on the question of costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 21 July 2016
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