MZYRT v Minister for Immigration
[2012] FMCA 357
•18 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRT & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 357 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – applicants rely on religion and the status of the child applicant – no issue going to jurisdiction – application dismissed. |
| Migration Act 1958 (Cth) |
| First Applicant: | MZYRT |
| Second Applicant: | MZYRU |
| Third Applicant: | MZYRV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1471 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 18 April 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2012 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the first Respondent: | Ms Latif |
| Solicitors for the first Respondent: | Clayton Utz |
| Counsel for the second Respondent: | Ms Latif |
| Solicitors for the second Respondent: | Clayton Utz |
ORDERS
The applications filed 11 October 2011 be dismissed.
The First and Second Applicants shall pay the First Respondent’s costs fixed in the sum of $6,240.00.
.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1471 of 2011
| MZYRT |
First Applicant
| MZYRU |
Second Applicant
| MZYRV |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under the Migration Act1958 (Cth) (“the Act”), in which the Applicants seek certain orders to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 September 2011. The Applicants also seek an order that the Tribunal review, according to law, the decision of the delegate of the Minister for Immigration & Citizenship (“the Minister”) to refuse protection visas sought by them.
The First Applicant arrived in Australia on 5 May 2006 on a class TU subclass 571 (student) visa. On 11 October 2006 he was granted another subclass 571 (student) visa valid until 15 March 2009. This visa was cancelled on 13 April 2007 because of non-attendance at school. He applied for a protection visa on 28 June 2010. The Applicant is a citizen of the People’s Republic of China. The ground on which that application was made is that he claims he would be persecuted if he returned to China on the grounds of his religion. The First Applicant also claims that his son would be discriminated against because he was born out of wedlock.
The Second Applicant arrived in Australia as the holder of a class TU subclass 571 (student) visa on 2 April 2007. Her visa expired on 15 March 2009. On 28 June 2010 she also applied for a protection visa. She claims protection because of her de facto husband’s religious beliefs and activities. She also claims that her son will face discrimination because he was born out of wedlock.
The First and Second Applicants claim on behalf of the Third Applicant, who is their child, that he will face discrimination in China if he is known to be a child born out of wedlock.
On 28 October 2010, a delegate of the Minister refused the protection visa applications and, on 25 November 2010, the Applicants applied to the Refugee Review Tribunal to review the delegate’s decision. There was a hearing conducted by the Refugee Review Tribunal on 31 March 2011 and, on 22 September 2011, the Tribunal decided to affirm the delegate’s decision. On 11 October 2011, the Applicants applied to this Court for a judicial review of the decision of the Refugee Review Tribunal. The grounds as set out in that application state as follows:
The Refugee Review Tribunal (RRT) made an unfair statement that Tribunal is not satisfied that the laws would be applied differently to him. The law mentioned by the RRT is regard to the Article 6 of the Marriage Law of the People’s Republic of China. It means that RRT believes the applicants will be treated fairly by law if returns to China. The RRT on one hand stated that the applicants would not face punishment of discriminatory kind for contravention of a criminal law of general application, as the Tribunal does not accept the applications claims based on religion.
On the other hand, the RRT stated that the Tribunal is satisfied that they would not be applied to the applicant parents disproportionately to others in the situation; even if the RRT is willing to accept that he is a Christian, who used to follow the home church in the Fujian Province, China. To support this statement, the RRT used country information saying that the Fujian Province, where the applicant living, is one of the locations in which authorities adopt a more tolerant approach.
All above statements are not fair. The applicants conducted home church activities in China, which is not allowed by Chinese authorities, and then disobeyed the Marriage Law of the People’s Republic of China. The applicants are facing punishment because of this disobedience. Although the enforcement of a law of general application does not ordinarily constitute persecution for the purposes of the Refugees Convention, since the Chinese authorities will take the applicants’ religion activities into account.
The Applicants did not seek to amend the application or to provide any further or better particulars, and nor did they provide any written submissions prior to the hearing. At the hearing the First Applicant chose to rely on the grounds as set out in the application and affidavit in support.
The First Respondent in written submission summarised the applicant’s claims as follows:
The first applicant claimed to have a well founded fear of persecution by reason of his religion and contravention of Chinese law by having a child out of wedlock and under the age for marriage. The first applicant claimed:
(a) to be a Christian;
(b) he attended religious gatherings in secret;
(c) In October 2004 he fell ill with a high fever. His mother and two others prayed for him, and his fever went away. He converted to Christianity as a result of this experience.
(d) Participants of gatherings in a neighbouring village were arrested. Some were released after paying a fine. The government labelled these gatherings ‘shouter’ gatherings, and he and fellow gatherers had to keep changing venues;
(e)In November 2005 his parents arranged for him to go abroad to study. On 16 April 2006 he was baptised and left China for Australia;
(f)He returned to China in December 2006 to visit his sick grandmother. He attended a gathering to celebrate Christmas. Police arrived, stated the gathering was illegal, and the first applicant, among others, was taken to a police station for registration and questioning. The first applicant was beaten and warned not to continue attending gatherings.
Two weeks later, his grandmother died. His parents arranged a Christian burial. Local police learned of this and questioned his parents. The first applicant’s father argued with the police. The first applicant sought to prevent his father being taken away, and he was pushed down and kicked by police. His father was apprehended and tortured at the police station, and his mother contracted a serious disease. The first applicant returned to Australia sooner than he intended as a result;
(g)He continued to attend church in Australia. In March 2008 his mother told him his parents had again been arrested by the police and fined. The police informed his father’s employer and he was dismissed. There was no longer any money for the applicant to continue his studies, and he was forced to undertake casual work to support his family.
(h)The first applicant did not dare return to China after his student visa expired;
(i)He met a girl in Australian and sought to have her convert to Christianity. They had a child together in April 2010. He would have to pay a significant fine to have his child registered in China because of his father’s previous bad record, the fact that he had studied abroad, his family being labelled a ‘problem family’ and he would be likely to be investigated when he returned home. He was concerned his child would be unable to obtain a legal identity.
The Second Applicant confirmed her claims were related to the first applicant’s, but stated she also fears persecution if she returns to China because of her child.
The Tribunal’s decision
The Tribunal found the First and Second Applicants were citizens of the People’s Republic of China and were the biological parents of the Third Applicant, who had a right to Chinese nationality. The Tribunal expressed some reservations in relation to the First Applicant’s claims to be Christian, but stated it was ‘willing’ to accept he is a Christian who followed the home church in Fujian Province and attended church in Australia. The Tribunal accepted he would continue to practice his faith if he returned to China, and also that his parents and brother followed the home church in China. The Tribunal, however, did not accept that the First Applicant or his family had suffered persecution in the past by reason of their religious beliefs.
The Tribunal found the First Applicant’s claims in his written evidence to be inconsistent with his oral evidence. The Tribunal did not accept the First Applicant’s claims by reason of this inconsistency and the lack of corroboration found in relevant country information. The Tribunal accepted the First and Second applicants would have to pay a social compensation fee in relation to the birth of the Third Applicant because he was born when they were not married and when the First Applicant was under the legal age for marriage. The Tribunal considered these laws were laws of general application and would not be applied against the Applicants in a discriminatory way.
The Tribunal accepted that the Second Applicant had been attending church while in Australia, but did not consider there was a real chance that she would be persecuted on return to China for this reason. The Tribunal did not accept that relevant family planning laws would be applied differently to the Applicants by reason of the First Applicant’s religious beliefs. The Tribunal did not accept that the First Applicant’s father had lost his job as claimed or that his family would be unable to provide financial assistance if he returned to China. The Tribunal noted the First Applicant’s family had provided significant financial assistance to him in Australia and was not satisfied that he would not have access to funds to pay the social compensation fee.
The Tribunal did not accept the Third Applicant would be discriminated against because he was born out of wedlock by reason of article 25 of the Marriage Law of the People’s Republic of China, which prohibits discrimination on this basis. The Tribunal accepted the Third Applicant might face social discrimination for this reason but did not consider there was a real chance of persecution within the meaning of the Migration Act.
The First Respondent submits that the Applicants do not identify a known ground of jurisdictional error. Instead, the Applicants challenge certain of the Tribunal’s findings on the basis that the findings are incorrect. The merit of an administrative decision is in the sole jurisdiction of the decision-maker. Accordingly, this Court cannot entertain the Applicant’s challenge to the correctness of the Tribunal’s decision. The First Respondent submits it was open to the Tribunal to find the relevant family planning laws were laws of general application and would not be applied on a discriminatory basis, even having regard to the First Applicant’s religious beliefs and practices.
The First Respondent submits the Tribunal was entitled to have regard to relevant country information in the discharge of its statutory function. The Tribunal dealt with the country information in a considered and balanced way and reached findings that were reasonably open to it.
Conclusions
I have given consideration in this matter to whether the Third Applicant should have a litigation guardian appointed on his behalf. I am satisfied, however, that his claims and interests are essentially the same as those of the First and Second Applicant. His interests are not in conflict with theirs and do not go beyond them. In those circumstances, I do not consider the appointment of a litigation guardian to be necessary.
In order to meet the requirements for a protection visa to be granted, the Minister must be satisfied that the Applicant is a person for whom Australia has protection obligations under the Refugee Convention. As the First Respondent has pointed out, it is not the role of the Court in judicial review proceedings to reconsider the material that was before the decision-maker and to come to its own view of the facts. It is not the role of this Court to determine whether or not the Applicants fulfil the requirements of the Migration Act and meet the definition of being a refugee.
The Applicants allege unfairness on the part of the Tribunal. This is not a ground upon which a court can quash the Tribunal’s decision. The Applicants essentially challenge the findings of the Tribunal. The Tribunal found the Applicants did not satisfy the criteria for a protection visa. It cannot be said that the Tribunal made that finding on the basis of no evidence or that the finding was manifestly unreasonable or illogical. I am unable to discern any jurisdictional error in the approach taken by the Tribunal. The Application must therefore be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 1 May 2012
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