MZYOB v Minister for Immigration
[2011] FMCA 901
•9 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYOB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 901 |
| MIGRATION – Application for judicial review of a decision of the Refugee Review Tribunal –application for review dismissed – costs order made. |
| Migration Act 1958 (Cth), s.430(1) |
| Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559 |
| Applicant: | MZYOB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1069 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 9 November 2011 |
| Date of Last Submission: | 9 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 November 2011 |
REPRESENTATION
| Applicant: | Applicant in person |
| Counsel for the Respondent: | C. Symons |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 1 August 2011 be dismissed.
The Applicant pay the First Respondent’s costs in the matter fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1069 of 2011
| MZYOB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Background
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). On 1 July 2011, the Tribunal affirmed a decision by the delegate of the Minister not to grant the Applicant a protection visa. On 1 August 2011, an application for judicial review of the Tribunal’s decision was filed. Apart from the material attached to that application, no further material has been filed by the Applicant.
The applicant is a citizen of China who arrived in Australia on 2 September 2010. On 18 October 2010, he applied to the Department of Immigration and Citizenship for a protection visa.
On 21 March 2011, he attended an interview with an officer of the Department and on 24 March, the delegate refused the application.
On 21 April, the Applicant applied to the Tribunal for a review of that decision. On 29 June, he appeared before the Tribunal and was interviewed with the assistance of an interpreter. On 4 July 2011, the Tribunal informed the Applicant of its decision to uphold the delegate’s decision not to grant him a protection visa.
The delegate’s decision
The Applicant’s claim for protection was set out in a statement attached to his application and is contained at pages 30 to 32 of the Court Book. The delegate in his decision, which appears at pages 64 to 72 of the Court Book, summarised the questions asked by the delegate and the answers given by the Applicant, at pages 69 to 71 of the Court Book.
The delegate did not accept the veracity of the Applicant’s claims. His reasons for those findings included:
a)that the Applicant’s knowledge of pig farming and practices was not commensurate with someone who claimed to have had eight years’ experience working on a pig farm;
b)the Applicant’s statements that he spent 15 days in detention and was fined 5,000 Yuan for an attack on police which included hitting a policeman over the head and putting him in a coma appeared lenient in light of the fact that he could have faced a maximum of three years imprisonment;
c)the Applicant gave inconsistent versions of the events of 9 October 2006, including where the incident occurred, how he escaped from the police, the method by which he travelled to Migao, and this led the delegate to conclude that the events described were a fabrication;
d)the Applicant’s claim that the police were aware of his location because they monitored a phone call he made to his parents in January 2009 but did not come looking for him for a further 20 months did not appear credible in view of his claim to have set several police alight in his escape from them in October 2006;
e)the Applicant’s evidence of how he entered Hong Kong was not consistent with country information concerning the required procedures; and
f)the documents produced by the Applicant to show that his pig farm had been demolished did not identify the farm or the name of the owners, and the compensation amount was not consistent with the Applicant’s written claims.
The Tribunal’s decision
The Tribunal, in its Statement of Reasons and Decisions, referred to the Applicant’s statement in support of his claim at pages 108 to 111 of the Court Book. At pages 111 to 114 of the Court Book the Tribunal set out the evidence given at the interview on 29 June and the matters which the Tribunal put to the Applicant.
The Tribunal found that the Applicant was not a credible witness. It did so for reasons which included the Applicant’s inability to repeat details of his story, the change in the retelling of substantial parts of the Applicant’s story, the inconsistency of the Applicant’s punishment with Chinese law, and the inability of the Applicant to provide a plausible explanation for his alleged behaviour.
The Tribunal noted, in relation to the Applicant’s alleged detention for 15 days and payment of a fine, that Article 277 of the Chinese Criminal Code provided that the offence of obstructing official business could invoke a maximum three-year term of imprisonment. The Tribunal found it was not convinced by the arguments of the Applicant to explain why he received a comparatively light sentence. The Tribunal also repeated its concerns with the inability of the Applicant to recall information given to the Department in late March, at the Tribunal hearing on 29 June, and its concern about the plausibility of the Applicant’s account of events in October 2006.
The Tribunal, in the context of making adverse credibility findings also noted that it did not accept that someone who was allegedly found by tracing his family phone in January 2009 was left alone until September 2010.
The Tribunal concluded by rejecting each of the Applicant’s claims concerning the requisitioning of the family pig farm, his altercation with police, attempts made by the police to locate him and his involvement with Christianity. The Tribunal therefore concluded that it was not satisfied there was a real chance that the Applicant would be targeted if he were to return to China.
The application for review
The Applicant, set out four grounds in his application for review:
1. According to Migration Act 1958 (Cth), the Refugee Review Tribunal (RRT) failed to comply with the duties imposed by section 430(1).
2. The RRT unfairly states “[t]his leads the tribunal to conclude that the applicant is not credible and this event did not occur.” The ground considered by RRT is “… the Tribunal is not convinced by any of these arguments and finds the applicant was unable to provide a plausible explanation as to why he received a comparatively light sentence for such a serious act.” This ground does not reflect the truth. Firstly, I provided firmly evidence and explanation about the background and the fight happened between the police and my family. It does be plausible in the Chinese Communist Party (CCP) controlled China, regarding many cases reported about the forced eviction. Secondly, I got detained and paid fines, so it is not rational to be described as “light sentence for such a serious act.” If all the serious offences are going to be charged with justice in China, the police and authorities who connected to forced eviction should have been in prison already.
3. The RRT unreasonably states that “… he was unable to repeat details of his story and substantial parts of his story appear to have changed with each telling.” This statement is not fair. I presented details to DIAC and RRT. The RRT totally ignores the influence of persecution and fear on my memory. Furthermore, the continuous questions about dates and details made me exhausted. The interpretation also confused me.
4. The RRT underestimates my risk of being persecuted by the Chinese authorities. My passport is expired and I am going to be revealed that I have been seeking protection from Australia, if I return to China. The RRT did not evaluate any risk from that aspect. Refer to MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559, the RRT ignored the well-founded fear test in my case.[1]
[1] Application for Review, filed 1 August 2011.
The Applicant was given the opportunity to amend his application and to provide written submissions. He did not do so. The Applicant was asked by the Court to address each of the grounds raised.
Ground 1 raised by the Applicant was that the Tribunal failed to comply with the duties imposed on it by s.430(1) of the Migration Act 1958 (Cth) (“the Act”). In relation to this ground, the Applicant submitted that it was unfair for the Tribunal to make findings about the requisitioning of his parents’ pig farm without going to China to investigate.
Ground 2 of the application dealt with the findings of the Tribunal in relation to the Applicant’s credibility and, in particular, the question of the sentence he received as a result of the altercation with police.
In relation to that ground, he submitted that the whole village was involved in the issue, that the whole province was aware of it. It was a big issue. The Government was afraid that it would become a much bigger issue and that they could not handle it, and that is why his sentence was relatively lenient.
Ground 3 dealt with the question of the finding of the Tribunal that the Applicant’s story appeared to change with each telling. In relation to ground 3, the Applicant submitted that the second time he recounted the events leading to his claim, it was more detailed than the first time.
Ground 4 dealt with the issue of the risk of persecution by Chinese authorities should he be required to return to China. In relation to that ground, the Applicant stated that the township was aware of what he was doing in Australia and were already creating a nuisance for his family.
The Applicant reiterated that the Tribunal had said it would investigate his claims. It did not do so and this was unfair.
The Respondent’s submissions
The First Respondent’s submissions were detailed in writing and I do not find it necessary to repeat those, although I refer to them.
In relation to ground 1, the First Respondent refers to the terms of s.430(1) of the Act and states that the Tribunal recorded its decision, that the record sets out the decision, the reasons and the finding of facts and makes reference to the relevant evidence.
In oral submissions, the First Respondent stated that the Tribunal made strong credibility findings based on the Applicant’s own account of what occurred and the inconsistencies in the account given to the delegate and to the Tribunal. Those inconsistencies also related to the difference between the punishment he received and the relevant provisions of the criminal law, and the implausible explanation given by him about the events in October 2006.
Those findings coloured the majority of the findings made by the Tribunal and led the Tribunal to reject his claims including the claim that his family pig farm had been the subject of a compulsory requisition. The Tribunal was not obliged to inquire further.
In relation to ground 2, the First Respondent states that the matters raised by the Applicant invite this Court to undertake a review of the merits of his claim, which is not its role on review.
In relation to ground 3, the First Respondent in oral submissions stated that the Tribunal did take into account that the second recounting of events to the Tribunal was more detailed. However the fact that the details given were not consistent led to the findings made by the Tribunal. As the Applicant did not make any claims that his memory was affected and provided no evidence of that issue, the Tribunal was entitled to make those findings.
In relation to ground 4, the First Respondent submits that the Applicant made no claims in his protection visa application, in the material submitted to the Department or before the Tribunal, to the effect that he feared persecution on the basis of being a failed asylum seeker. Further, in the context that any claim for persecution was raised on the basis that his family had been harassed, the Tribunal expressly rejected that claim.
The First Respondent submits that the Tribunal did not fail to provide the Applicant with procedural fairness and that the application should therefore be dismissed.
Conclusions
The provisions of s.430(1) were set out in the submissions of the First Respondent. They require the Tribunal to prepare a written statement of its decision which sets out that decision, the reasons for that decision, and the findings of any material question of fact. The subsection requires the Tribunal to refer to the evidence or other material on which those findings were based. It does not require the Tribunal to undertake investigations to the extent suggested by the Applicant, particularly in the light, in this case, of the findings made by the Tribunal, and the evidence on which those findings were made.
I am unable to see where the Tribunal has failed to meet the requirements of s.430(1) of the Act and that ground therefore fails.
Ground 2, in essence, disputes certain findings of fact made by the Tribunal and, in particular, its assessment that the Applicant was not a credible witness. These findings were made on the basis of the evidence before the Tribunal. Ultimately, unless the findings of the Tribunal are based on no evidence or are manifestly unreasonable or illogical, they are not open to review by this Court.
The Applicant claims that the conclusions of the Tribunal about the inconsistencies of his account of various events was unreasonable.
In the written grounds – but, I note, not in his oral submissions – the Applicant says that the Tribunal totally ignored the influence of persecution and fear on his memory. The Applicant has provided no support for these claims and gives no examples of any confusion on his part. The Applicant made no claim that his memory was affected when contradictions in his story were put to him by the Tribunal, and provides no evidence of this to the Court.
As the Tribunal did not accept that he had suffered persecution, it could not have considered that his memory might be affected by persecution.
As none of these matters were raised with the Tribunal, and as no evidence is produced to show that the Applicant was unable to participate in the hearing by virtue of his psychological state or otherwise, I do not find this ground to be substantiated.
Ground 4 raises a new claim, that the Tribunal did not consider the Applicant might be at risk of being persecuted by the Chinese authorities as a failed asylum seeker, should he return to China.
No such claim was expressly made by the Applicant before the Tribunal, nor can it reasonably be inferred from the material before the Tribunal. The Tribunal is under no obligation to consider a claim which is not before it and cannot therefore be in error for failing to do so.
To the extent that the Applicant claims that his family is being harassed because of his activities in Australia, this was not put to the Tribunal and, in any event, the Tribunal did not accept that his family had been harassed. For these reasons, I find none of the grounds proved and the application is therefore dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 18 November 2011
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