MZAQY v Minister for Immigration

[2016] FCCA 818

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAQY & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 818

Catchwords:
MIGRATION – Review of a decision by the Refugee Review Tribunal – application for Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: MZAQY

Second Applicant: MZAQZ

Third Applicant: MZARA

Fourth Applicant: MZARB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 126 of 2015

Judgment of: Judge Hartnett

Hearing date: 18 March 2016

Delivered at: Melbourne

Delivered on: 18 March 2016

REPRESENTATION

The Applicants: In Person

Counsel for the First Respondent: Mr Day

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

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

2. Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001 (Cth) the First Applicant be appointed the litigation guardian of the Third and Fourth Applicants. The requirement under r.11.11(2) for the filing of an affidavit be dispensed with.

3. The Application is dismissed.

4. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $4,451.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 126 of 2015

MZAQY

First Applicant

MZAQZ

Second Applicant

MZARA

Third Applicant

MZARB

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application dated 23 January 2015 which seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 5 January 2015.  The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicants’ Protection (Class XA) visas.  The application seeks relief in the form of constitutional writs against the Tribunal decision.

2. The grounds of the application are as follows:-

   “1. The tribunal constituted juridical (sic) error in reaching the judgment on Paragraph 35 when stating “It is not suggested that the applicants have been involved in proselyting (sic), either in China or in Australia, and the Tribunal does not accept that they would do so if they returned to China, now or in the reasonably foreseeable future”. At the tribunal hearing, the tribunal member never asked me whether I had been involved in proselyting (sic) either in China or in Australia.  She reached such decision that it is not suggested that the applicants have been involved in proselyting (sic), either in China or in Australia.  If the tribunal member asked me if we have been involved in proselyting (sic) either in China or in Australia, we would certainly answered yes to the question.  The issue is the tribunal never had any intention of exploring this issue in any details.  On the contrary, the tribunal member made assumption that we had not been involved with the proselyting (sic) activities either in China or in Australia, furthermore, the tribunal does not accept that they would do so if they returned to China, now or in the reasonably foreseeable future.

   2. The tribunal held bias against the visa applicant in that the tribunal made enquiries through the local church in Melbourne, when the response received from the tribunal was positive and that both the applicants parents are regular attendants of the local family church (Paragraph 34), the tribunal member then quickly shifted her focus by stating in Paragraph 35 that “It is not suggested that the applicants have been involved in proselytising either in China or in Australia and the tribunal does not accept that they would so if they returned to China, now or in the reasonably foreseeable future.”  It is very obvious that the tribunal was hoping that the review applicants did not participate in local church in Melbourne, thus, when she made enquiries with the church in Melbourne, she would easily receive such evidence to support her suspicion, The fact is both the parents visa applicants are devoted local family church members in Melbourne, which was verified by the response from the tribunal,  as the tribunal was not preparing to accept the visa applicant’s evidence and had thus questioned on the visa applicant’s credibility, the tribunal member cannot make an impartial decision on my review application as she holds bias against me.  The response from the Local family church in Melbourne was consistence (sic) with the evidence that I had provided to the tribunal.  However, as the tribunal held bias on me, she would not accept anything else, thus she will not be able to make a justified decision on my review application.”

3. The First Respondent seeks dismissal of the application and costs in the event of such dismissal.

4. Each of the parties have filed submissions, the submissions of the First Respondent were filed on 4 March 2016 and those of the Applicants’ filed on the hearing this day.  The Applicants’ one-page submissions are essentially a restatement of the grounds of application.  The Court has also before it the evidence as contained in the Court Book filed 2 April 2015.

History

1. The First and Second Applicants are a couple and the Third and Fourth Applicants are their children.  The First Applicant is a citizen of China who arrived in Australia on 23 February 2008 on a student visa.  The Second Applicant is a citizen of China who arrived in Australia on 1 November 2006 on a student visa.  The Third and Fourth Applicants were born in Australia and have never departed the country.

2. The First Applicant’s subclass 571 student visa on which she arrived in Australia was valid until 15 March 2011.  She remained in Australia without a visa until 10 September 2013, when she applied for the protection visa.  The Second Applicant first arrived in Australia on 1 November 2006 as the holder of a subclass 571 student visa valid until 15 March 2009, since which time he has been granted a tourist visa and a number of bridging visas.

3. The First and Second Applicants (‘the Applicants”) applied to the Department of Immigration and Border Protection (‘the Department’) for the protection visa on 10 September 2013.  The Applicants claim to fear harm in China for two reasons, the first being their membership of the local church and the second, their having breached China’s one child policy in the birth of their two children.

4. A delegate of the Minister refused to grant the visa on 11 June 2014, not being satisfied that the Applicants are persons to whom Australia owes protection obligations.

5. On 25 June 2014, the Applicants applied to the Tribunal for review of the delegate’s decision.  They appeared before the Tribunal on 8 October 2014 and 15 December 2014 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Applicants were represented in relation to the review by their registered migration agent. In support of the application, the Applicants submitted a statutory declaration of the First Applicant dated 9 September 2013; an untranslated document, media articles and a letter from the First Applicant dated 21 June 2014.  On 9 October 2014, the Tribunal wrote by email to the local church in Melbourne to inquire about the Applicants’ participation in the local church.  On 13 October 2014, Philip Yee of the local church provided an email response to the Tribunal’s inquiry, to which the Tribunal had regard.

6. The Tribunal made its decision on the review on 5 January 2015 and determined to affirm the decision not to grant the Applicants a Protection (Class XA) visa.

The Tribunal decision

1. The Tribunal noted that it was not in dispute that the Applicants are Chinese nationals and that, as neither of them had acquired foreign nationality, each of the Applicant children was also a Chinese national.  The Tribunal assessed their claims against that country.

2. The Tribunal, as set out in paragraph 13 of the Statement of Decision and Reasons (‘the Decision Record’), was concerned about the credibility of the Applicants’ claims and ultimately formed the view that parts of the Applicants’ evidence should not be accepted.  The Tribunal’s concerns were exacerbated by the evidence of the Applicants at the second Tribunal hearing, to the effect that the financial documents provided by each of them in their respective student visa applications were exaggerated or falsified by their agent in order that they might obtain the visas.  The Tribunal set out in its Decision Record its particular findings on those matters.

3. The Tribunal considered in some detail the Applicants’ breach of China’s family planning laws.  Indeed, the Tribunal conducted a very thorough examination of the material before it; indicated discussions had with the Applicants as to the material before it; and made findings open to it on that evidence. There was no illogicality attending those findings. Those findings included that the Tribunal did not accept there to be a real chance that the Applicants would be unable or unwilling to pay any social compensation fee that may be levied upon them.  Nor did the Tribunal accept there to be a real chance that the Applicant daughters would be unable to obtain household registration and consequently be unable to receive an education or healthcare in China.  The Tribunal did not accept there to be a real chance that any of the Applicants would face serious harm for reasons of China’s family planning policy if they returned to China, now or in the foreseeable future.

4. The basis of these findings was as follows:-

   a)the Applicants claim, that their children were born without permission of the Chinese authorities and in breach of China’s family planning laws, as a consequence of which they would be required to pay a fine to have the children registered, was considered by the Tribunal.  The Applicants gave evidence, amongst other things, that the fine would be many hundreds of thousands of yuan and that they had no capacity to pay that fine and that, as a consequence, the children would be unable to receive an education or healthcare in China.  Information was provided by the Department of Foreign Affairs and Trade (‘DFAT’) to the Tribunal.  The Tribunal noted in paragraph 21 of the Decision Record that DFAT advised that having additional children, having children out of an extramarital affair, and having children under unmarried circumstances, each required the payment of social compensation fees. 

   b)the Tribunal discussed such fees with the Applicants at the second Tribunal hearing, together with information indicating that any fine could be paid by instalments.  The Tribunal calculated, based on the Fuqing Social Compensation Fee Standard provided to the Tribunal by DFAT, that the Applicants would be required to pay social compensation fees in respect of their two children born out of wedlock and in contravention of the one child policy if they returned to China and were fined in accordance with the figures given for 2014, a total of 78,173 RMB to 120,488 RMB ($AU15,328 to 23,625). The payment of such fine would enable registration of the Applicants children. 

   c)the Tribunal found further than the fines could be reduced by the amount of up to 30,122 RMB if the Applicants produced a marriage certificate within three months of being issued the social compensation fine, bringing the total fines likely to be imposed on the family to about 90, 366 RMB, or $17,720.  The Tribunal found further the fines could be paid by instalment over three years.

   d)as to the Applicants’ capacity to pay such a fine, the Tribunal did not accept as credible their evidence that they themselves could not pay the fine, and their families could not or would not assist them. In making that assessment, the Tribunal noted that information contained in their respective student visa files, indicated that their families undertook to support them in their studies and such files provided evidence of their financial capacity to do so. At the second hearing, the Applicants told the Tribunal their family’s financial capacity had been exaggerated by agents acting on their behalf in order that they could obtain the student visas, and that their true financial situation was not as represented in their financial documents lodged in support of their student visa applications.

5. As set out in paragraph 28 of the Decision Record, and at the second hearing, the Tribunal put to the Applicants information which it considered would be the reason or part of the reason for affirming the decision under review.  That was as follows:-

   “The Tribunal has before it the files relating to your student visa applications. Mr [X]’s file shows that his parents were both employees of a chemical company in China and that they had the capacity to support him financially during his studies in Australia to an amount of over $55,000.  Ms [Y]’s file shows that her parents satisfied the financial capacity requirements for her student visa which included course fees of over $36,000 using a loan from a bank in China which was guaranteed by a certificate of deposit for 600,000 RMB.

   This information is relevant because it may lead the Tribunal to consider that you and your families have the capacity to pay any social compensation fine that may be levied upon you which may lead the Tribunal not to accept that your children will be unregistered.  This may cause the Tribunal not to accept that any of you have a well-founded fear of persecution or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to China.”[1]

   [1] Refugee Review Tribunal Decision Record dated 5 January 2015 at [28].

6. The Tribunal advised the Applicants that they could ask for more time to respond to the adverse information. Neither of them requested further time and elected to respond immediately. The First Applicant told the Tribunal that agents submitted their student visa applications, and that they did not know what was in the documents.  She further said that at the time she applied for her student visa, her family’s financial situation was okay, but her parents had since accrued lots of debts after their business failed.  The First Applicant stated in respect of the Second Applicant’s student visa application that it was also exaggerated and his family’s financial situation was not good at all, which is why he worked so many jobs in Australia.

7. The Tribunal did not accept that agents acting on the Applicants behalf exaggerated or falsified their financial position without the knowledge of the Applicants or their parents, rather it considered the Applicants evidence to that effect, to be merely an attempt to discredit documentary evidence that was adverse to their claims.  The Tribunal noted no evidence had been produced to the Tribunal in support of the Applicants claims that the financial position of their families had changed significantly since the time the student visa applications were made. The Tribunal expressed its serious concerns about the Applicants credibility.

The Applicants’ claims to be members of the local church

1. The Tribunal set out a considered and reasoned analysis of the claims and evidence before it, and its findings and the reason for such findings in respect of this claim.  The findings were open to the Tribunal on the evidence before it, and it is not for the Court to engage in merits review.

2. In considering the Applicants’ claims to fear harm in China because of their involvement with the local church, the Tribunal accepted that the Applicants were members of the local church and that if they returned to China, they would attend gatherings of the local church. In considering all of the evidence before it, the Tribunal also considered inquiries made by the Tribunal of the local church in Melbourne as to the Applicants participation in that church.  Initially the Tribunal’s significant concerns about the Applicants credibility caused it to doubt their claims to have been followers of the local church in China prior to travelling to Australia.

3. Despite its reservations, the Tribunal nevertheless considered it appropriate to give the Applicants the benefit of the doubt on their claims to be followers of the local church and assessed their claims on the basis that they were.  The Tribunal accepted that the Applicants would attend gatherings at the local church.  The Tribunal noted that the Applicants had not advanced any claims that they were proselytising in China or in Australia and the Tribunal did not accept they would do so if they returned to China. In any event, the Tribunal concluded that there was not a real chance that the Applicants would be targeted by Chinese authorities for reason of their religion.

4. The Tribunal noted in paragraph 41 of the Decision Record that the First Applicant gave evidence that she and her family had worshipped as members of the local church since she was a young child, and had not previously experienced any difficulties as a result prior to her mother’s arrest in 2013.  The Tribunal rejected the First Applicant’s claim that her mother was detained by Chinese authorities while attending a local church gathering on 20 June 2013, and detained until 26 June 2013 during which time she was beaten and mistreated.

5. In making that assessment, the Tribunal was concerned about the First Applicant’s credibility and the genuineness of the certificate of release submitted to the Department by the First Applicant, the Tribunal giving its contents little weight, and was further concerned that her claims about her mother’s arrest were inconsistent with information obtained from independent sources about the situation for Christians in Fujian Province.

6. The Tribunal noted that a pattern of tolerance by the authorities was consistent with reports before the Tribunal, as discussed with the First Applicant at the hearing, indicating that the authorities in Fujian Province have the most liberal policy on Christianity in China.  The Tribunal noted that while the local church was still banned, it was usually tolerated by authorities in that province, and that there were few reports of repression or arrests of Christians in Fujian generally, or Fuqing in particular, that being the local church the wife claimed her family were adherent to.

7. The Tribunal put country information to the Applicants for the Applicants comment.  That country information indicated that authorities in Fujian province were tolerant of local church members.  The Tribunal had regard to an article submitted by the Applicants with their review application headed Chinese State Media Warns Against 14 “Evil Cults”, that article reporting that on 28 May 2014, five people alleged to be members of the cult “Church of Almighty Christ” bludgeoned a woman to death at a McDonalds in Shandong Province.  The article reported that in response to that incident, the Chinese State Media called for a crackdown on religious sects, naming the 14 identified evil religions or cults.  The Tribunal noted there was nothing in the article to suggest that local church members had been targeted in the Fujian Province. 

8. The Tribunal considered the Applicants’ claims both individually and cumulatively and did not accept that any of the Applicants had a well-found fear of persecution in China for any Convention reason.

9. The Tribunal considered the complimentary protection criteria and found that for the reasons given in the Decision Record as described above, it was not satisfied that the Applicants were at risk of significant harm as a result of being removed from Australia to China.

Consideration

1. Ground 2 of the Applicants’ application alleges that the Tribunal was biased against the Applicants.  That is a serious allegation that needs to be properly particularised and supported by evidence.[2]

   [2] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 [69] and [127].

1. The Applicants provide no particulars to support such an allegation and no evidence.  The Tribunal set out on in paragraph 34 of the Decision Record the inquiries it made of the local church in Melbourne, and determined on a consideration of all the evidence before it, including that evidence, to give the Applicants the benefit of the doubt on their claims to be followers of the local church.

2. Ground 1 alleges that the Tribunal erred in its finding in relation to whether the Applicants had proselytised in Australia or China.  The Applicants allege that the Tribunal should have put the question as to whether they did so or not to the Applicants for comment.

3. It was for the Applicants to advance their claims before the Tribunal[3] and the Tribunal was not obliged to prompt and encourage other claims or an elaboration of the claims made.[4] 

   [3] Abebe v Commonwealth (1999) 197 CLR 510 [187].

   [4] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 [142] – [143].

4. The Applicants did not advance a claim that they had proselytised in China or Australia.  At no time did they raise in evidence any suggested involvement in proselytising.  There was no evidence to the contrary before it and the finding was open to the Tribunal on the materials.

5. As submitted by Counsel for the First Respondent, judicial review for failure to inquire is available only in exceptional circumstances.  The majority of the High Court in Minister for Immigration and Citizenship & SZIAI (2009) 83 ALJR 1123 [2009] HCA 39 at [25] framed the applicable principle in terms of a “failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”. In any event the Applicants put forward no evidence to support the proposition that any Tribunal enquiry would have produced evidence favourable to them.

6. It is well settled that the Tribunal is not obliged to conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence.[5] 

   [5] Minister for Immigration and Citizenship v  SZNVW [2010] FCAFC 41, (2010) 183 FCR 575 [36] (per Keane CJ) [49] (per Emmett J).

7. The duty imposed on the Tribunal by the Migration Act 1958 (Cth) is a duty to review and not a duty to inquire.[6] Jurisdictional error attending the Tribunal decision has not been established. Accordingly, the application is dismissed and costs shall follow the event.

   [6] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 [25].

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 12 April 2016