MZYKQ v Minister for Immigration
[2011] FMCA 425
•17 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYKQ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 425 |
| MIGRATION – Application for judicial review – allegation of bias arising from Refugee Review Tribunal finding that applicant untruthful – allegation of misuse of country information – applicant’s allegations unsustainable – application dismissed. |
| Migration Act 1958, ss.424AA, 424A(1) |
| Applicant: | MZYKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1807 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 20 May 2011 |
| Date of Last Submission: | 20 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MlG 1807 of 2010
| MZYKQ |
Applicant
and
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 24 December 2010, in which the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 2 December 2010. The Tribunal affirmed a decision of the first respondent, by a delegate, not to grant the visa applicant a protection visa.
Contentions of fact are uncontroversial for these purposes and what follows is taken from a combination of the court book and the first respondent’s submissions.
The applicant is a 39 year old citizen of China, who arrived in Australia on 1 February 2010, on a Malaysian passport. On 16 March 2010, he applied to the Department of Immigration and Citizenship for the visa and on 4 May 2010 attended an interview with an officer of the Department. On 5 August 2010 the delegate refused the application and on 8 September 2010 the applicant applied to the Tribunal for review of the decision.
The Tribunal invited the applicant to attend a hearing before it, as is recorded at CB90-92. The applicant attended a hearing on 28 October 2010 and gave evidence and presented argument in support of his application, assisted by an interpreter in the Mandarin and English languages, and accompanied by his migration agent. As is recorded at paragraph 12 of the first respondent’s written submissions, during the course of the hearing, the Tribunal invoked the procedure set out in s.424AA of the Migration Act 1958 (“the Act”). The Tribunal invited the applicant to comment on or respond to information which it identified as inconsistencies arising from information provided by the applicant during his departmental interview and at the Tribunal hearing concerning the assistance which he had received in completing his protection visa application form.
Through his migration agent, the applicant provided a post-hearing submission dated 28 October 2010, in which the applicant addressed a number of issues that the Tribunal had raised. The first respondent’s written submissions, which I am in large part repeating as I accept their characterisation of the matter, go on to characterise the applicant’s claims. In his visa application, the applicant claimed that he had been detained twice by the Fuqing City Public Security Bureau due to his participation in local Home Church activities.
He claimed that the first detention occurred on 1 May 2003 when he was distributing bible leaflets. The applicant was tortured and beaten and released after seven hours. However, following his release, the Public Security Bureau often visited the applicant’s home. The second detention occurred on 1 February 2005 when the applicant attended a Home Church worship. The applicant was tortured physically and mentally and was released after paying a fine. The applicant claimed that the actions by Chinese authorities against Christians, including his own experience of detention at the hands of Public Security Bureau, caused him to believe he would be persecuted again if he returned to China.
The Tribunal found that the applicant was a national of China, but did not accept that he had presented a truthful account of his circumstances in China. The Tribunal did not find the applicant to be a reliable, credible and truthful witness. In particular, the Tribunal did not accept that the applicant was a Local Church Christian in China or that he was persecuted as claimed. Whilst the Tribunal accepted the applicant was familiar with some basic features of Christianity, it found that his evidence concerning his own religious practice was hesitant, vague and disjointed. The Tribunal noted that the applicant’s evidence was frequently punctuated by extended pauses, but rejected his explanation that attributed this to being very emotional because he remembered his persecution. The Tribunal instead found that the applicant’s pauses were the result of his lack of knowledge about the religious beliefs of the Local Church. The Tribunal also arrived at the view that whoever had assisted the applicant with his visa application had inserted the detailed information concerning the Local Church bible in an effort to bolster the applicant’s claim to membership of the Local Church.
The inclusion of the information was otherwise inconsistent with the applicant’s claim to have limited education and his inability to provide detailed evidence on this point during the Tribunal hearing. Having regard to the various explanations for his travel to Australia, the admission made by the applicant during the Tribunal hearing that he had attended Home Church gatherings for four years prior to his departure without incident, and the fact that he had not left China for over a year after his passport was issued, the Tribunal did not accept that the applicant left China out of any fear of persecution. Instead, the Tribunal formed the view that the applicant left because of the financial pressure on his wife, and because he was told he could apply for a protection visa with the hope that he might later be able to bring his family to Australia. The Tribunal found that the applicant did not attend church in Australia as he had claimed, and indeed that he was unable to say where he had attended church in Melbourne, and had not attended church by his own admission in Sydney.
The Tribunal noted that the applicant had been untruthful about who had assisted him with his visa application and that there had been inconsistencies between information contained in the application form and his evidence at the hearing. The Tribunal characterised the applicant’s explanation for the inconsistencies set out in his post-hearing submission as an attempt to tailor his evidence in response to the Tribunal’s concerns. The Tribunal further found that there was no evidence that the applicant would be persecuted on any imputed basis for reasons of his wife’s Christianity or his imputed political opinion, and noted in any event that the applicant did not pursue those matters. In summary, the Tribunal rejected the applicant’s claims on all levels.
The application for review raises two grounds. The first is an assertion of bias, and states “RRT presiding member was biased as she determind that I was not a truthful witness as what I had told her at the hearing about if I received assistance for the application was inconsistent with the answer I gave when I attended the DIAC interview. I was telling truth at RRT hearing about this issue but Tribunal member did not give me such chance.” The second ground relates to the use of country information, and is set out as follows, “RRT presiding member used country information on Page 16 below Paragraph 60 which states that Philip Yee, stated that while the authorities do not recognise the local churches, there are not much arrests as before. This means that first of all, local church is still not recognised by the authority and the arrests still continue on.”
In the affidavit in support, filed also on 24 December 2010, the applicant states, inter alia:
“I believe RRT was not fair to me and did not trust me when I was actually telling the truth at RRT hearing. I wrote to the presiding member that when the protection visa application was being prepared, it was a migration agent in Preston that assisted me with the application. I did not disclose this information to the Immigration Department because it was part of the condition that migration agent imposed on me to assist me with the application. When I attended the RRT hearing, I told the tribunal member the truth that in fact there was a migration agent that helped me with that application procedure, the tribunal member determined that I was not a truthful witness and as a result of that, a lot of real facts that she did not believe in me.”
The affidavit goes on to make factual assertions about the applicant’s membership of the church, both in China and in Australia, and asserts a risk of harm in the event of return. But he does not otherwise address the issue of country information asserted in the application. When the matter came on in Court this morning, the applicant, who was assisted by an interpreter, said at the outset that he felt confused and did not feel stable and said this was because he had suffered persecution before.
I gave him an adjournment from 10.30 am to 10.45 am to compose himself. When the matter resumed, he tendered a statement which I marked as Exhibit A1, in which he essentially re-iterated the points he had previously made.
He confirmed that he relied upon the affidavit previously sworn and repeated the fact that he told the Tribunal member the truth when he was heard in Sydney. He repeated in substance the matters set out in his affidavit. Other than asserting that all the evidence he had previously given was true; that he was afraid that the Tribunal held a prejudice towards him and he was scared of going back to China, he had nothing further to add. The first respondent was content to rely upon the written submissions already filed, and it is because matters proceeded in this way that so much of this judgment so closely follows the first respondent’s submissions. I accept the submission at paragraph 32 of the first respondent’s submissions that the Tribunal chose in this case to rely upon s.424AA of the Act as the means by which it extended to the applicant the invitation for comment required under s.424A(1) of the Act.
I further accept that the Tribunal adequately complied with the requirements of s.424AA. The process which the Tribunal undertook is recorded in the decision record, and I accept that it demonstrates that the Tribunal identified with sufficient specificity the information to be relied on, conveyed the reason for its potential significance, and provided the applicant with an opportunity to provide comment after the hearing. The fact that the Tribunal raised a matter about which it had concerns, of course, does not in my view for an instant mean that the Tribunal pre-judged the matter. To the extent that the applicant says the Tribunal was not fair, I would simply say that having read the Tribunal’s Reasons for Decision, there is nothing that suggests that the Tribunal had achieved some impermissibly fixed view about the applicant at the time it asked the questions that it did about the migration agent.
In my view, the difficulty with the applicant’s case is that it works back from the finding of untruthful evidence to a conclusion of bias, whereas in fact the Tribunal was of course perfectly entitled to reach that finding upon the materials as they were. The second ground has not been pressed by the applicant either in his written document or in his oral submissions. I accept the submission, in any event, of the first respondent that the information about the Local Church in Fujian province simply was not ultimately part of the reasoning the Tribunal employed to reject the applicant’s claims and to uphold the position of the delegate. The Tribunal rejected the applicant’s claim that he was a member of the Local Church. That being so, the country information earlier cited in its Decision ceases to have any relevance to the Tribunal’s assessment of the applicant’s review application. I accept the submission of the first respondent that no error could arise in relation to the Tribunal’s treatment of such information in these circumstances.
Given these conclusions, it follows that the application must be dismissed, and I will so order.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 17 June 2011
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