MZMOQ v Minister for Immigration
[2004] FMCA 35
•27 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZMOQ v MINISTER FOR IMMIGRATION | [2004] FMCA 35 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no reviewable error disclosed – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 74 ALJR 405
| Applicant: | MZMOQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 141 of 2003 |
| Delivered on: | 27 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 January 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
That the application filed 14 February 2003 and amended by amended application filed 29 July 2003 is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $4,800.00.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 141 of 2003
| MZMOQ |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application before the court this day was filed on 14 February 2003. That application was amended by amended application filed by the applicant on 29 July 2003. The application for review is made under Part 8 of the Migration Act 1958 (Commonwealth) (“the Act”) and section 39B of the Judiciary Act 1903 (Commonwealth) in respect of a decision of the Refugee Review Tribunal made on 16 December 2002 affirming a decision of the delegate of the Department of Immigration and Multicultural Affairs that the applicant was not a person to whom Australia had protection obligations under the 1951 Refugees Convention Relating to the Status of Refugees as amended by the 1967 Refugees Protocol and was not eligible for a protection visa as provided for by the Act.
The grounds on which the applicant relied are as those set out in paragraph 4 of his amended application.
History
The applicant is a single male born on 1 October 1979 and is now aged 24 years. He is a citizen of Vietnam. He is of Buddhist religion. He arrived in Australia on a student visa on 22 January 1998 and that student visa was extended on more than one occasion which saw its continuance until 15 March 2001. On 12 December 2000 the applicant applied for a further student visa, however, that application was refused on 23 March 2001. The applicant applied for review of that decision and the Migration Review Tribunal affirmed the decision of the delegate of the Minister on 8 November 2001.
On 3 January 2002 the applicant then lodged an application for a Protection (Class XA) visa. That application was dated 24 December 2001. That application was refused by a delegate of the Minister on
26 March 2002. On 29 April 2002 the applicant applied to the Refugee Review Tribunal (hereinafter the RRT) for review of that decision. The tribunal affirmed the delegate's decision by a decision handed down on 10 January 2003. The hearing at the tribunal was held on
12 December 2002. By correspondence dated 23 October 2002 the applicant was invited to attend the hearing and give oral evidence. The applicant advised that he would attend the hearing and required the assistance of an interpreter. When the matter proceeded before the RRT the applicant failed to attend.
Thus, the applicant has been in Australia since 22 January 1998 and only applied for his protection visa on 3 January 2002. This delay in submitting a protection visa application was a matter considered by the RRT. The tribunal was of course entitled to consider that delay. At the time the applicant arrived in Australia he was travelling on a student visa and he was occupied as a student in this country. He is educated and there was no physical or other impediment to his making his application for a protection visa at an earlier point in time.
Heerey J said in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7] in relation to the tribunal taking into account an applicant's delay in lodging an application for refugee status:
In my opinion, this was legitimate factual argument and an obvious one to take into account in assessing the genuiness, or at least the depth, of the applicant's alleged fear of persecution.
Tribunal’s findings
The RRT made its decision on the application pursuant to section 426A of the Migration Act 1958 (Cth). The applicant claimed in his written material that he was a Buddhist and although he had never been active against the Vietnamese government, Buddhists were suspected of not supporting the regime. The tribunal accepted that the applicant was a practising Buddhist. However, in view of country information which it cited and based on the other evidence before it, the tribunal found that the applicant was able to practise his religion openly in Vietnam without a well-founded fear of persecution.
The RRT concluded that the applicant had not encountered any problems in Vietnam by reason of his religion nor indeed by reason of any other Convention ground.
The applicant claimed that he was a student in Australia and when preparing to return to Vietnam after the outcome of his application to the Migration Review Tribunal was known, his family told him that the Communist police had visited their house many times and interrogated them about the applicant's activities in Australia. The police told his family that he was involved with a group of Vietnamese students overseas who were working against the government and that upon his return to Vietnam he had to report to the police. He was considered a traitor to Vietnam.
The applicant stated that he had never been involved with anyone protesting against the Vietnamese government. The applicant also claimed that police had assaulted and arrested his grandfather and confiscated his assets and property.
The RRT did not accept on the basis of the material before it and in the absence of oral evidence from the applicant that his family had been approached by police and that they had threatened the applicant with serious harm upon his return to Vietnam due to his alleged connections with students in Australia involved in anti-government activity. Nor did the RRT accept that any harm done to his grandfather, apparently in relation to the operation of his business, indicated a real chance of persecution of the applicant himself for any Convention reason.
The tribunal noted that the applicant had not in fact been engaged in any political activity in Australia such as to bring him to the adverse attention of the Vietnamese authorities. The tribunal found that the prospect that the applicant would be accused of such activity or interrogated about the political activity of others when he was not privy to any such information was far-fetched and implausible. In weighing all the material before it the tribunal found that the applicant's claims of police interest in him by reason of any alleged political activity lacked credibility.
The tribunal found that the applicant upon leaving Vietnam in the manner in which he did was not of any interest to the authorities then and that he had not engaged in any anti-government activity in Australia such as to now bring him to the adverse attention of the authorities. The tribunal found it implausible that his family would withhold from him information of intense police interest in him for a significant period of time and only reveal the risk when he indicated he would return to Vietnam.
The tribunal concluded that the significant delay in applying for a protection visa by the applicant indicated the absence of a subjective fear by him for his well-being in Vietnam.
Consideration
The applicant's amended application alleged a broad array of errors in respect of which the same particulars were given. Those particulars were that:
The tribunal has chosen to disregard the written evidence of the applicant as far-fetched and implausible without considering the question, "What if I am wrong?"
It is well-established, as submitted by the respondent, that the "what if I am wrong" question only needs to be asked in cases in which the tribunal has doubts about its findings (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576, and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241). There is no indication in the reasons of the tribunal that the tribunal itself was in any doubt about its findings. Accordingly, the tribunal did not need to ask that question.
The tribunal did not, as claimed by the applicant "disregard" the applicant's evidence as far-fetched and implausible. It considered the evidence put before it by the applicant and found that evidence to be far-fetched and implausible and generally lacking in credibility. The tribunal is entitled to make such findings. Such findings are within the fact-finding function of the tribunal. They are not indicative of an error of law, much less a jurisdictional error of law (Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 74 ALJR 405).
The applicant stated in paragraph 13 of his contentions that the tribunal wrongly construed and applied section 91R of the Act by applying a test of persecution that was too high. This case, however, did not turn on questions of degree or on whether the harm allegedly feared could be serious enough to amount to persecution. The tribunal simply did not believe the applicant's claims. Thus, the question of whether the tribunal applied a test of persecution that was too high did not arise in the context of this case.
Furthermore, the applicant stated that the tribunal erroneously rejected the applicant's evidence. The tribunal is entitled to reject the applicant's evidence if it finds it unconvincing. Indeed the tribunal does not need to have contrary evidence to reject the applicant's claims. In Selvadurai v Minister for Immigration and Multicultural and Ethnic Affairs Heerey J said at [7] that:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
I conclude that this application is entirely without merit and should be dismissed. The applicant should be responsible for the payment of the respondent's costs.
I Sophie Killen certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 16 February 2004
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