MZAQY v Minister for Immigration and Border Protection

[2016] FCA 1008

FEDERAL COURT OF AUSTRALIA

MZAQY v Minister for Immigration and Border Protection [2016] FCA 1008

Appeal from:	MZAQY & Ors v Minister for Immigration & Anor [2016] FCCA 818
File number:	VID 292 of 2016
Judge:	NORTH J
Date of judgment:	17 August 2016
Date of hearing:	17 August 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	27
Counsel for the Appellants:	The First Appellant appeared in person and on behalf of the Second, Third and Fourth Appellants.
Solicitor for the Respondents:	Mr A Day of DLA Piper Australia.

ORDERS

VID 292 of 2016

BETWEEN:

MZAQY

First Appellant

MZAQZ

Second Appellant

MZARA (and another named in the Schedule)

Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	17 AUGUST 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The first and second appellants to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. Before the Court is an appeal from orders made by the Federal Circuit Court on 18 March 2016.  The Federal Circuit Court dismissed an application for a review of a decision of the Administrative Appeals Tribunal, then the Refugee Review Tribunal, made on 5 January 2015.  The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants’ protection visas. 

2. The appellants are partners in a de facto relationship and their two children, one aged five and the other aged two.  They were all represented on the hearing of the appeal by the female partner, who will be described as the appellant mother. 

3. The appellant mother arrived in Australia in February 2008 on a student visa.  That visa expired on 15 March 2011.  She remained in Australia without a visa until 11 September 2013, when she applied for a protection visa.  The appellant father arrived in Australia on 1 November 2006 on a student visa valid until 15 March 2009.  Since then, he has been granted a tourist visa and a number of bridging visas.  Both of the children were born in Australia and have never left the country. 

4. The appellant mother and father are citizens of China and their claim before the Tribunal was that they feared persecution if returned to China. First, because they had breached China’s family planning laws by having their two children without permission of the Chinese authorities. Second, because they are members of the Local Church, which is a Christian denomination, they claimed that they would face arbitrary arrest and persecution by Chinese authorities for their participation in meetings of the Local Church.

5. In relation to the claim of serious harm arising from the breach of China’s family planning laws, the appellant mother and father contended that they have no capacity to pay the fines for breaching the family planning laws and as a consequence, their children will be unable to receive an education or healthcare in China.  The Tribunal referred to information about the level of fines likely to be imposed and rejected the evidence of the appellant mother and father about the level of likely fines.  The Tribunal further found that the likely fine which the appellant mother and father would be required to pay would be about $17,720 and that that fine could be paid by instalments over three years. 

6. Then, at [27], the Tribunal said:

   As to the applicants’ capacity to pay such a fine, the Tribunal does 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 this assessment the Tribunal notes that information contained in their respective student visa files indicates that their families undertook to support them in their studies and provided evidence of their financial capacity to do so.  At the second hearing the applicants told the Tribunal that their families’ financial capacity had been exaggerated by agents acting on their behalf in order that they could obtain the visas and that their true financial situation was not as represented in the financial documents lodged in support of their student visa applications.

7. The Tribunal had regard to the information provided by the appellant mother and father in support of their student visa applications, which demonstrated that the appellant father’s family had the capacity to support him during studies in Australia to an amount over $55,000 and the appellant mother’s parents satisfied the financial capacity requirements for her student visa, which included course fees of over $36,000.  The Tribunal put this material to the appellant mother and father.  The appellant mother responded saying that the figures in the student visa application were exaggerated by their migration agent, who she said submitted the applications.  The Tribunal rejected this evidence at [31] as follows:

   The Tribunal does 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 considers the applicants’ evidence to that effect to be merely an attempt to discredit documentary evidence that is adverse to their claims.  The Tribunal considers this reflects extremely poorly on the applicant parents’ credibility.  No evidence has been produced to the Tribunal in support of their claims that the financial position of their families has changed significantly since the time the student visa applications were made.  In view of the Tribunal’s serious concerns about the applicants’ credibility, it does not accept that any changes have been of such a magnitude as would mean that they can no longer offer financial support to the applicants as they have done in the past.  

8. The Tribunal then dealt with the claim that the appellants were members of the Local Church.  The Tribunal noted that the only evidence of the appellant mother and father’s church activities undertaken in China came from the appellant mother and father themselves.  There was no independent verification.  The Tribunal also noted that the appellant father and mother voluntarily returned to China in 2009 for a visit.  The Tribunal, however, had evidence from an elder of the church in Melbourne who indicated that the appellants had regularly attended church meetings in Melbourne since moving from Sydney in 2009. Despite the Tribunal’s reservations about the motivation of the appellant mother and father’s conduct in Australia, the Tribunal gave them the benefit of the doubt, and accepted that, if returned to China, they would attend gatherings of the Local Church. 

9. At this point in the decision, there is a reference which is significant in the determination of the appeal.  The Tribunal said at [35]:

   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 do so if they returned to China, now or in the reasonably foreseeable future. 

10. A significant claim made by the appellant mother which grounded her fear of persecution were she to now return to China was an incident which occurred on 20 June 2013 when her mother was detained for six days and assaulted while attending a Local Church gathering.  That claim was supported by a document referred to as a certificate of release.  The Tribunal expressed a concern about the genuineness of that certificate.  It drew attention to some characteristics of the document which might indicate that it was not genuine.  Those matters together with the Tribunal’s view about the credibility of the appellant mother and father’s evidence caused it to give little weight to that document. 

11. The Tribunal also analysed at length the situation of Christian churches in the particular locality in which the appellant mother’s family resided.  The material analysed demonstrated to the Tribunal that the local authorities in Fujian Province take a particularly liberal view of unregistered churches.  It concluded that the independent sources do not indicate a pattern of persecution of Christians in Fujian in 2013.  As a consequence, the Tribunal found at [44]:

    While the Tribunal accepts that the Chinese authorities seek to suppress information that may attract criticism, the fact that independent sources do not indicate a pattern of persecution of Christians in Fujian in 2013 together with the Tribunal’s concerns about the applicant’s credibility and the genuineness of the letter of release set out above cause it not to accept that the applicant’s mother was detained along with others in their Local Church meeting in June 2013 as claimed. 

12. On 23 January 2013, the appellants filed an application for judicial review in the Federal Circuit Court.  The grounds of the application were 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 [sic] 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.

13. The Federal Circuit Court rejected the second ground of review on the basis that it did not particularise any allegation of bias. 

14. In relation to ground 1, the Federal Circuit Court said:

    29.… The Applicants allege that the Tribunal should have put the question as to whether they did so or not to the Applicants for comment.

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

    31.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.

    32.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.

    33.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.  

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

    [Footnotes omitted]

15. On 8 April 2016, the appellants filed a notice of appeal from the orders made by the Federal Circuit Court.  The ground of appeal was:

    The Judge Hartnett didn’t consider the juridicial [sic] error the tribunal member has made in terms of the assumption and didn’t conduct interview and hearing to ascertain if review applicant had been involved with proselytising activities.

16. In support of the notice of appeal, the appellants filed an affidavit sworn by the appellant mother on 11 April 2016 which included the following paragraph:

    2.It is my strong view that the Tribunal member had constituted juridical error when reviewing my protection visa application. The tribunal member, without conducting any inquiries into the fact, made an assumption that I did not participate in proselyting [sic] activities either in Australia or overseas, thus, the applicant will not do so if they return to China now or in the reasonable future, thus will not face any real chance of persecution by Chinese authority. If the tribunal member, at any stage, have asked me if I have been involved with proselytising activities both in China or in Australia, and if the response I had given was that I have never been involved with proselytising activities, then I would not have any objection to the opinion the tribunal had formed. This is an obvious juridical error the tribunal member had made and Judge Hartnett was obviously taking sides for the AA T and is therefore unfair and unreasonable to the review applicant. It is my strong view that the tribunal was simply picking up any excuse to support his decision, after confirmation was received from Local Church in Melbourne that the review applicant was known to the church and has been attending local church in Australia. If the inquiries from the local church in Melbourne was negative, I believe the tribunal member will use this as a reason to affirm the delegate's decision. In my view, the tribunal member was unfair and taking side with the delegate and the Judge Hartnett was behaving the same way. This is the reason I want to appeal Judge Hartnett's decision to dismiss my review application at Federal Circuit Court Australia.

17. At the hearing of the appeal, the appellants were represented by the appellant mother.  She was assisted by an interpreter.  She does not speak English at all.  Curiously, she was apparently able to swear the affidavit referred to although there is no indication that it was interpreted for her.  At the hearing of the appeal, she handed up a one-page written submission which in the second paragraph reflected the same submission as in paragraph 2 of her affidavit.  The third paragraph alleged as follows:

    In relation to the financial penalty the visa applicant is expected to receive for breaching China’s one child policy which can lead up to large sum of fine imposed by Chinese authority, the tribunal member relied on the information which both my partner and I had provided on our student visa applications in which they were indicated parents from both my side and my partner received regular income at the time of our student visa application, however the tribunal member did not consider the fact that circumstances had changed since the time we lodged our student visa application in Year 2006 and Year 2007 respectively  which is about ten years by now.  Parents from both sides are no longer earning income and they did not have financial capacity to help us to make the compensation payment to the government for breaching China’s one child policy.  It is my belief that tribunal member constituted juridical error in this respect.  Furthermore, I don’t think there is any law requirement in China which stipulated parents are obliged to help their children in making compensation payments for breaching China’s one child policy, which incurs a heavy fine from the authority. 

18. It was obvious from the hearing that the appellant mother did not understand in any meaningful sense the ground of appeal which had been prepared for her.  When asked by the Court, she explained that the affidavit and the submission were prepared for her by Uncle Harry.  She was unaware of his surname or his address.  She said that he had not charged any money for his efforts.  She also said that he was not a lawyer.  Unfortunately, Uncle Harry’s participation has taken no account of the reality of the appellants’ position.  The affidavit and the submission in relation to the claim that the Tribunal assumed that the visa applicant did not engage in proselytising appears to have been based upon an unstated suggestion that the appellant mother had, indeed, been engaged in proselytising in China. 

19. However, nowhere in the material did she say either that she had engaged in such activities in China, or, more to the point, that she had told the Tribunal that she had engaged in such activities.  Neither does any claim to have been involved in proselytising appear in any of the documents filed in support of the application for a visa.  It now appears obvious why that is so.  When asked directly by the Court whether she now says that she did engage in such activities in China she said no.  That, entirely, takes away the ground of appeal, and seems to suggest that Uncle Harry did the appellants no service by relying on a suggested factual basis which did not exist.  Quite aside from the fact that the appellant mother’s no doubt honest answer removes the basis of the ground of appeal, there is no proper basis for the claim that the Tribunal made a jurisdictional error in the sentence referred to at [35], which is repeated for convenience as follows:

    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 do so if they returned to China, now or in the reasonably foreseeable future. 

20. The gist of the complaint seems to be that the last part of the sentence amounts to a finding that, if returned to China, the appellant mother and father would not engage in proselytising.  The submission seems to be that that was a conclusion without any evidentiary backing.  There had been no evidence given about proselytising one way or another.  Had the Tribunal intended to rely on such a fact situation, so it appears to be submitted, the Tribunal would need to have put the appellants on notice.

1. The sentence is not worded as accurately as perfection might require.  But from the first part of the sentence it seems clear enough that the Tribunal was merely stating the fact that no part of the claim had been put on the basis of the appellants’ involvement in proselytising.  Indeed, the sentence could have easily ended after the word Australia and the intended meaning would not have changed on this interpretation.  If this be the proper interpretation, which I accept it is, then the Tribunal has done no more than state that the appellants’ made no claim based on proselytising.  That was accurate, as demonstrated by the absence of any reference in the visa application or in the Tribunal’s record of the evidence before it.

2. Although the notice of appeal did not challenge the finding concerning the breach of China’s one-child policy the written submission handed up at the hearing did so.  The challenge in that submission was that the Tribunal did not consider the fact that circumstances had changed since the lodgement of the student visa and the change in financial circumstances of the families of the appellant mother and father.

3. Again, Uncle Harry would have saved everyone much time and effort had he taken the trouble to simply read the Tribunal’s finding at [31], which is repeated here for convenience::

   The Tribunal does 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 considers the applicants’ evidence to that effect to be merely an attempt to discredit documentary evidence that is adverse to their claims.  The Tribunal considers this reflects extremely poorly on the applicant parents’ credibility.  No evidence has been produced to the Tribunal in support of their claims that the financial position of their families has changed significantly since the time the student visa applications were made.  In view of the Tribunal’s serious concerns about the applicants’ credibility, it does not accept that any changes have been of such a magnitude as would mean that they can no longer offer financial support to the applicants as they have done in the past.

   [Emphasis added] 

4. The Tribunal directly addressed the question of change of circumstances.  It rejected the evidence that the position of the families had changed significantly.  In truth, the challenge to this conclusion is a quarrel with the merits finding made by the Tribunal. Mere disagreement with the factual conclusion of the Tribunal does not amount to jurisdictional error. 

5. By way of conclusion it should not be thought that the contents of [3] of the decision of the Tribunal have not been noticed by the Court.  There it is said that the issue in the review is whether the appellants fear removal “from Australia to Pakistan”.  This is a very unfortunate slip which robs litigants and the Court of confidence about the care with which decisions are made.

6. It is, perhaps, of interest that the mistake is followed immediately by a reference to attachment A, which is said to set out the relevant law.  That device, whilst seemingly convenient, does not inspire confidence that the contents of the attachment have played any real part in the decision-making, but rather are a necessary process to be addressed.  Of course, the Tribunal must be guided by the state of the law. It is important that the state of the law is shown to have influenced the making of the particular decision, and those elements of the law which apply to the making of the particular decision are referred to. It is unhelpful simply to append a generic small textbook about refuge law.

7. Neither of these last two comments, however, detract from the fact that the Tribunal investigated the claims thoroughly, and came to defensible conclusions about the two major issues in the application.  It follows that the appeal is dismissed. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:        

Dated:        17 August 2016

SCHEDULE OF PARTIES

VID 292 of 2016
Appellants
Fourth Appellant:	MZARB