MZARO v Minister for Immigration

[2016] FCCA 745

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 745

Catchwords:
MIGRATION – Judicial Review – Refugee Tribunal – Dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Dranichnikov v The Minister for Immigration, Multicultural and Indigenous Affairs (2003) 77 ALGR 1088

Applicant: MZARO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 235 of 2015

Judgment of: Judge McGuire

Hearing date: 30 March 2016

Date of Last Submission: 30 March 2016

Delivered at: Melbourne

Delivered on: 17 May 2016

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondent: Mr Smyth

Solicitors for the Respondent: Clayton UTZ

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in a quantum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 235 of 2015

MZARO

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 (as it then was) on 22 January 2015 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”).

2. The applicant represents himself before this Court. He has the assistance of an interpreter as he apparently does not speak, understand or read English, although notably the applicant swore an affidavit on 9 February 2015, the text of which is in English and with the jurat to the affidavit not being in the alternative non-English version (Counsel for the first respondent did not take issue with this anomaly).

3. The application to this Court sets out three paragraphs of complaint.  They are:

   I am applying for a review of a decision made by the Refugee Review Tribunal to affirm the decision made by the delegate to refuse my protection visa application.

   The Refugee Tribunal (sic) member denied visa application fairness in making subjunctive opinion on P72 of the decision that, “As I do not accept that the applicant, Ms Y or any members of their respective families are or have been involved with local churches in China or in Australia, I do not accept that the applicant faces a fear (sic) chance of suffering serious harm in China …. if the Tribunal member has any doubt whether I had attended local church gathering in Melbourne, he should have approached the local family church to ascertain such information if the visa applicants are known to the church and if they attend their church activities. Due to my lack of English proficiency, I told the Tribunal that the church I attend was near Burwood and it was in Red Land Road, which is absolutely correctly.  All by a sudden (sic), I forgot the area was in Mitcham, but the information I provided was correct.

   The Tribunal member constitutes juridical (sic) error in failing to consider the affordability my partner and I are in order to register for their household registrations.  As the fine is huge, we will not be able to afford it then we will come across the dilemmas as the Tribunal stated in P71.  The Tribunal suggested that either my partner or I would be able to make arrangement for the payment of the fine in order to have two children registered.  If neither my partner nor me can pay for the social compensation, they will be black children, In P71 of the decision, the Tribunal member accepts that the applicant will be identified as being the father of two children in breach of Chinese family planning laws … that parents of children born out of wedlock, particularly young single mothers, may experience social stigmatizations.”  This supports the conclusion that single fathers of children born in breach of Chinese family planning laws can be said to share a characteristic common to all members of the group.  That distinguished them from society at large and is more than a shared fear of persecution.

Background

1. The applicant is the father of two young children.  His partner has also made application to this Court for judicial review and her application was heard on the same day but in the form of a separate and distinct hearing.  (Proceeding number MLG237 of 2015). 

2. The parties’ older child, their son, is a second applicant on the mother’s application. 

3. The applicant is a national of the People’s Republic of China (PRC).  He first arrived in Australia holding a student visa in July 2007.  That visa expired on 14 February 2010.  On 15 April 2013 the applicant applied for the protection visa. 

4. On 14 February 2014 the Minister’s delegate refused the application for a visa. 

5. On 14 March 2014 the applicant applied for a review of the delegate’s decision by the Tribunal.  The applicant was invited to appear at the hearing before the Tribunal.

6. The applicant’s application for a visa identifies two claims on two Convention grounds.  Firstly, the applicant says that he is a member of a Christian religion and the Tribunal’s reasons at [60] identify this claim as:

   The applicant fears harm at the hands of the Chinese authorities and security forces because of the applicant and Ms Y, and their families, are members of local churches in Fujian and because the applicant’s children were born to unmarried parents and in breach of Chinese family laws.

7. The second and distinct claim is that the applicant is a father (or single father) of “black” children (those born out of wedlock and contrary to Chinese family planning laws).

The tribunal’s decision

First Claim- Religion

1. It is clear that the Tribunal rejected the applicant’s claim based on credibility findings due to inconsistencies in the applicant’s evidence.  Specifically, at [63] of its reasons the Tribunal says:

   As put to the applicant and Ms Y at the hearing for Ms Y’s application for review and in writing after the hearing, I find that there are significant inconsistencies in the information provided by the applicant and Ms Y about problems the applicant’s family had in China because of their attendance at a local church in China and about the applicant and Ms Y attending local church gatherings in Melbourne.  At the hearing for Ms Y’s application for review, the applicant and Ms Y stated that neither the applicant nor any members of his family had problems in China because of involvement with a local, unregistered Christian church, which was inconsistent with what was stated in (sic) visa application, by the applicant during his interview and at the hearings.  The applicant stated in the visa application that Ms Y’s father had been arrested and detained by the PSB and made no reference to his own father having been detained.  In contrast, during his interview and at the hearing he stated that his father had also been detained.  He also gave, in the application and at the hearing, different names of the school he had been attending.  When he claims to have been warned by the principal not to attend local church gatherings.  Further at the hearing of Ms Y’s application for review and at the hearing, Ms Y stated that she and the applicant attended local church services in Australia at the C primary school near the U railway line but the applicant stated at the hearing that the local church services he and Ms Y attended were near B. 

2. And at [64] in its consideration the Tribunal says:

   I do not accept the explanations provided by the applicant and Ms Y about these inconsistencies.  I find that the applicant and Ms Y would have consistently stated that the applicant’s father or any other member of his family had been detained in China because of involvement with the local, unregistered Christian Church  from the beginning of the visa application process.  If this had, in fact, being (sic) the case.  Similarly, I find that if the applicant had been warned by a school principal not to attend local church gatherings he would have given the same name of the school he had been attending in the visa application and at the hearing.  I also find that if the applicant and Ms Y had been attending local church services in Australia they would have provided similar information about the location of those services, rather than, as claimed by them, one of them telling me about one of those locations … and the other one telling me about the other …

3. At [65] of the reasons the Tribunal member says that significant weight was given to such inconsistencies and the inability of the applicant and Ms Y to adequately explain them.  The member went on to make a finding that the applicant and Ms Y had deliberately made false claims about their and their families’ membership and involvement with local, unregistered Christian churches in China and Australia.

4. Consequently, at [72] the Tribunal rejected the applicant’s claim that he faces a real chance of suffering serious harm in China either because of his religion, because of his membership of a particular social group comprising their immediate or close family or because of a religion imputed to him because of his membership of a Christian family now or in the reasonably foreseeable feature.

Second claim – “children born out of wedlock and contrary to family planning laws.”

1. The Tribunal accepted that the father and his partner were not married and that their two children were born out of wedlock.  At [74] the Tribunal’s reasons state:

   In light of the case law set out in Appendix 1 below about laws of general application, I accept that Chinese family planning laws are not laws of general application.  Because, on their face, and they target, or apply to, only a particular section of the population in China, being the parents of black children and black children themselves.  To assess whether the application of these laws amounts of persecution, I must first consider whether discriminatory treatment under these laws is appropriate and adapted to achieving some legitimate object or purpose.  Considering the country information before me, I find the relevant objective of the Chinese family planning laws to be population control and that this is a legitimate object or purpose of the Chinese state in order to protect or promote the general welfare of China and its citizens.  As I have noted below, the applicable fees for breach of the Chinese planning laws are determined according to scales relating to the average annual income of citizens in particular reasons and it is possible in Fujian for the applicable fees to be paid in instalments.  In this context, I consider the Chinese family planning laws and their operation to be proportionate means of achieving the legitimate state objective of controlling the population level in China.  Further, the country information before me does not suggest that in Fujian those laws are being selectively enforced or a Convention reason against particular groups or individuals.  As a result, I do not accept that the application of the Chinese family planning laws to the applicant amounts to persecution under s91R(1) of the Act.

2. The Tribunal at [76] contemplated a social compensation fee of “up to 75,000 Yuan by instalments.” The Tribunal found there to be a likelihood of family financial assistance and concluded at [80]:

   In light of the above, I find that the chance the applicant will suffer serious harm as a result of the imposition of a fine under the Chinese family planning laws to be remote and do not accept that the applicant’s children will be “black children” if they return to China because I find that, in the reasonably foreseeable future, they will be registered.

3. Generally, the Tribunal concluded at [83]:

   I am not satisfied that there is a real chance the applicant will suffer arbitrary arrest and detention, imprisonment, physical assault or torture, the denial of capacity to subsist or any other form of serious harm under the Act at the hands of the Chinese authorities, including the Chinese police and security forces, or that he will suffer discrimination to a degree that amounts to a denial of his capacity to subsist or any other form of serious harm under the Act if he were to return to China.

The application to this Court

1. The applicant did not provide written submissions in support of his application.  Despite invitation, he offered no oral submissions either in support of his application or in reply to the submissions of the first respondent.  I will address the application by way of the three separate paragraphs transcribed above.

Ground 1

1. This constitutes a simple narrative and does not amount to argument in support of the relief sought by the applicant.  Insofar as this is a ground of a complaint, it has no merit.

Ground 2

1. It is difficult without either written or oral submissions to understand the particulars of complaint argued by the applicant. It appears, however, that in this ground he firstly complains that the Tribunal erred in not accepting his claim that he and family members have been involved in local churches in China or Australia and hence not accepting that the applicant faces a fear of serious harm if returned to China. This argument suffers by reason of the Tribunal’s clear examination of matters of credit based on inconsistencies in the evidence of the applicant and his partner.  The issues of credit and disputed fact are matters for the Tribunal.  The Tribunal’s reasons (as set out in detail above), clearly raise those issues and inconsistencies and the applicant was given the opportunity to address them both orally and in written submissions.  As such, I find no merit in this complaint.

2. The second limb of ground 2 seems to argue that the Tribunal itself should have assumed a greater inquisitorial role.  It is well established that it is for an applicant to bring and argue his or her case.  It is not the function of the Tribunal.  In any event, the Tribunal’s reasoning and determination is based on a number of inconsistencies and therefore findings as to credit.  And this is not a case where the Tribunal was or should be obliged to make inquiry as to a “critical fact”.  Consequently, I find that the complaint is simply one to cavil with the factual and credit findings of the Tribunal such being the Tribunal’s domain.  There is no merit to this ground of complaint. 

Ground 3

1. Again, this Court is not assisted by the lack of written or oral submissions as to the alleged jurisdictional error.  My reading of this ground in the application suggests that the applicant argues that the Court “failed to consider” whether or not the applicant and his partner would be able to meet the social compensation fee struck in China in respect of the children.[1] Nevertheless, a reading of the Tribunal’s reasons at [76] – [81] demonstrate a considered determination as to this very point. That consideration has its logical conclusion at [80]. Consequently, no such error is apparent and the complaint is without merit.

   [1] Dranichnikov v The Minister for Immigration, Multicultural and Indigenous Affairs (2003) 77 ALGR 1088

2. A second possible argument from ground 3 is that the applicant might hold a reasonable fear of persecution by reason of his membership of a particular social group being “single fathers of children born in breach of Chinese family planning laws”.  There is no merit to this complaint if, indeed, it is argued.  The Tribunal’s reasons at [74] specifically deal with this issue and a finding is made on the basis of country information that “In Fujian those are (not) being selectively enforced for a Convention reason against particular groups or individuals.”  This is a finding that was available to the Tribunal within their discretion and on the evidence before it.  There is, therefore, no jurisdictional error disclosed in those reasons and the complaint has no merit. 

Conclusion

1. It follows that the applicant is not made out any jurisdictional error in the matters raised in his application.  The application will therefore be dismissed with an order for costs.

I certify that the preceding twenty-eight (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  17 May 2016