MZWSA v Minister for Immigration - [2005] FMCA 321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWSA & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 321

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – findings of fact – no jurisdictional error.

Migration Act 1958 (Cth)

Abebe v the Commonwealth (1999) 197 CLR 510
Minister for Immigration v Guo (1999) 191 CLR 559
NACV v Minister for Immigration [2002] FCA 411
Nagalingam v Minister for Immigration (1992) 38 FCR 191
Rahman v Ministerfor Immigration [2000] FCA 1277
Randhawa v Minister for Immigration (1994) 52 FCR 437
Tran v Minister for Immigration [2002] FCA 1522
W148/00A v Minister for Immigration [2001] FCA 679

Applicants:

MZWSA & MZWSB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1339 of 2004

Delivered on:

3 March 2005

Delivered at:

Melbourne

Hearing Date:

3 March 2005

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Appeared in person

Counsel for the Respondent:

Ms Moore

Solicitors for the Respondent:

Clayton Utz

ORDERS

The applicants’ application filed 19 October 2004 be dismissed.
The applicants do pay the respondent’s costs, fixed in the sum of $5,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1339 of 2004

MZWSA & MZWSB

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (‘the RRT’) made on 24 September 2004. In that decision the RRT affirmed the decision of the delegate of the respondent, which was to refuse to grant the applicant a protection visa.
The applicants are a wife and husband who married in 1981. They are both citizens of the People's Republic of China. Before their arrival in Australia they resided in the Fujian province. They came to Australia on 20 August 2002 on valid passports issued by the People's Republic of China on visitor visas. At the time that they came here their son was residing in Australia as a student. They have an adult daughter, who remains in China.
On 2 September they lodged their application for a protection visa with the Department of Immigration and Multicultural & Indigenous Affairs. At the time of the protection visa application only the wife made specific claims of persecution; the husband's claims were in substance dependent upon those of the wife. The substance of the claim was that the wife feared persecution at the hands of the authorities in China on the basis that she is a member of a Christian church known as Shouters. Some considerable information with respect to the ‘Shouters’ Christian Church is contained in the court book and was available to the RRT.
The RRT wrote to the applicant and her husband on 20 December inviting them to attend an interview on 10 October 2002 so that they could be heard with respect to their application. Only the wife attended. She advised that her husband was sick and that she would forward a medical certificate. She did forward a certificate, although it only stated that the husband was unable to work for that day and did not appear to provide much detail.
The member ultimately decided to refuse to grant the protection visa on 25 October 2002. The member accepted that the applicant was a Christian and a member of the Shouters group. The member, however, found that the information provided by the applicant, at the interview and in her application and other documents, to be conflicting and inconsistent and was not able to be satisfied that the applicant had suffered the persecution or acts that she said amounted to persecution.
The RRT decision is lengthy and traverses a great many facts. It runs for 92 paragraphs, over 24 pages. It is, in substance, a finding of fact and there do not appear to be any legal issues that have arisen.
The fact‑finding included findings, for example, that the applicant was able to obtain travel documents and depart China without apparent difficulty, which would be inconsistent with her being of adverse interest to the Chinese authorities. The decision also noted that in a list of members of the church in Australia, of which she said she was a member, she and her husband were not listed. A copy of that booklet list of members of the church was tendered to the RRT and it was one that had been last updated by the church on 30 March 2003, some six months after she had arrived in Australia. The book is obviously a photocopied list that is updated from time to time and has a notation to contact ‘brother [MK] or brother [PY]’ for any changes or new entries. Not surprisingly the RRT took this as evidence that she was not, at least at that time, actively involved in the church in Melbourne.
At the hearing today the applicant tendered another copy of the church contact list, which this time includes her name. However this court's function is not to review the findings of fact by the RRT and as such the additional evidence today does not assist the applicant as a matter of law. Similarly the applicant today produced evidence by way of photographs to show that she attended a conference of church members late last year. That evidence falls into the same category, that is, that it is not evidence that was before the RRT, nor does it go to show that the RRT made a jurisdictional error.
The applicant in her submissions in writing today set out a number of issues, most of which appear to relate to the fact‑finding of the RRT, which was not in her favour. One of the submissions hinted at a matter that may be the subject of judicial review where she stated:
RRT made their decision just simply based on their speculation, they did not believe I was detained but they could not prove that I was not detained while I have witness to prove that incident.
I stood the matter down to allow the applicant to provide some detail of that allegation or some specifics of it so that I could consider it carefully. The applicant was not able to provide any more detail. More particularly the applicant was not able to point to what it is about the decision or fact‑finding of the RRT that she says is based simply on speculation.
The RRT asked the applicant about her faith and knowledge of the Bible and the church and found her evidence on this to be wanting. The RRT set out in some detail country information with respect to the Shouters and the activity of Shouters in Fujian province. This appears at paragraphs 58 to 71 of the RRT's reasons. Counsel for the minister sets out in some detail the facts found by the RRT and the basis for them at paragraph 24 of her submissions in the following terms:
24. The Tribunal found that
(a) the applicant’s evidence about her membership of the Shouter’s was inconsistent in relation to the date she started to be a member and how she became a member and her reasons for joining the church [paragraphs 72-74, CB 133];
(b) it did not accept that the applicant was an active member of the Shouter church — a fortiori that she was core member as she claimed in her protection visa application [paragraphs 75, CB 134];
(c) the applicant’s did not know about the style of reading winch the country information disclosed was characteristic of the Shouters and her demonstrated knowledge of the Bible and of the doctrinal matters that were put to her at the hearing was extremely limited [paragraphs 76-78, CB 134;
(d) the applicant had only a rudimentary knowledge of the Bible and of Christian (including Shouter) theology [paragraph 79, CB 134);
(e) the applicant’s evidence of her involvement with the police or the Public Security Bureau was inconsistent and had been modified to conform to her husband’s evidence after she had heard that evidence [paragraphs 80-81, CB 134-135];
(f)it did not accept that the applicant was imprisoned by reason of her membership of the Shouters or for any other reason (paragraphs 81-82, CB 135];
(g) it did not accept that the applicant’s evidence that she had continued to openly continue her faith while in prison and that her evidence about her imprisonment and what she was required to do by the police was inconsistent [paragraph 82, CB 135];
(h) it did not accept that the applicant was held in prison {paragraph 82, CB 135];
(i) the applicant’s evidence that the police of the Public Security Bureau tolerated, if not encouraged, large meetings of church members to be held in the local Catholic church was not wholly consistent with the repression that the applicant claimed [paragraph 83, CB 135-136];’
(j) in light of the evidence of the applicant, it was satisfied that the applicant had formed an intention to come to Australia prior to 12 April 2002 - prior to the occurrence of any police visits (May 2002) that the applicant claimed had occurred and led to her fear of persecution. Therefore she did come to Australia because of any actual or threatened persecution [paragraphs 85-86, CE 136];
(k) it was not satisfied that the applicant had joined a Melbourne Shouters church upon her arrival in Australia because she was unable to precisely identify the address or name of the church she claimed to have attended since September 2002 and her name did not appear on the March 2003 list of church members that the applicant had provided to the Tribunal at the hearing [paragraph 88, CB 137];
(l) it inferred from the applicant’s evidence that at the time that she travelled and for the substantial part of the period during which she was permitted to remain in Australia under the terms of her visa, she was minded to return to China [paragraph 89, CB 137];
(m) it did not accept the applicant’s evidence that she received information by telephone to the effect that there had been a crackdown on church members in her area and that it was advisable for her to remain in Australia (paragraph 89, CR 137-138];
(n) it did not accept the situation with respect to the members of Huhan Pai had become any more dangerous in the three months that the applicant had been in Australia than it had been previously (paragraph 89, CB 138];
(o) it did not accept that the applicant was a member of Huhan Pai and exposed to persecution on that account or for any other Convention reason [paragraph 89, GB 138];
(p) it was not satisfied that the applicant’s husband would be liable to persecution for any Convention reason should he return now or in the foreseeable future [paragraph 90, GB 138].
Not surprisingly the respondent's counsel had some difficulty in identifying a specific issue to respond to.
The respondent's counsel makes a number of points with respect to fundamental propositions of law which appear to answer the case being brought by the applicant:
a)The first is that the onus is on the applicant to satisfy the RRT that all of the statutory elements are made out (see Minister for Immigration & Multicultural & Ethnic Affairs v Guo (1999) 191 CLR 559 at 596) and that the applicant does appear to have done so in this case.
b)Secondly, it is for the applicant to supply the factual basis for her claim in sufficient detail. It is not for the RRT to establish facts to make out her claim (see, for example, Abebe v the Commonwealth (1999) 197 CLR 510 at 576, Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1522 at 25 and Rahman v Ministerfor Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277 at 29).
c)Thirdly, the RRT is not required to uncritically accept any or all of the allegations made by an applicant (see, for example, Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 at 551 and Nagalingam v Minister for Immigration Local Government & Ethnic Affairs (1992) 38 FCR 191).
In this case the RRT was critical of the applicant's evidence in its decision and those criticisms appear, on the face of the decision, to be founded upon proper reasons to doubt or have less confidence in the evidence of the applicant.
Ultimately it is for the RRT to make decisions as to credibility and findings of fact. That the RRT has found against the applicant on credibility does not create a basis for judicial review, for example, see the comments of Conti J in NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411 at [2]. Another example appears in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 at 64 . The examples of comments by various justices of the Federal Court and Federal Magistrates to the effect that judicial review does not involve a review of the facts and findings on the credibility or fact‑finding are numerous.
In the circumstances I therefore find that the applicant has not established a basis for judicial review or shown jurisdictional error on the part of the RRT. I must therefore refuse the application.
The order of the court will be that the application is dismissed.

[Further argument ensued]

In the circumstances of the case I find that the costs ought to follow the event. I am satisfied that the sum sought by the minister is reasonable, having regard the relevant scales applicable in this court and therefore order that the applicant pay the minister the costs of and incidental to the proceedings, fixed in the sum of $5,600.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: