MZYTE v Minister for Immigration
[2012] FMCA 633
•20 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 633 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed. |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | MZYTE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1780 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 18 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT ORDERS THAT:
The application filed 19 December 2011 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1780 of 2011
| MZYTE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (the ‘Tribunal’) made 22 November 2011. The grounds of the application were set out as follows:-
“1. The Refugee Review Tribunal (the Tribunal) failed to process my case with fairness. Although the Tribunal is not required to accept uncritically any or allegations I made, according to the United Nations High Commission for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204, I am titled the benefit of the doubt when the particular problems of proof faced for refugees status, unless there are good reasons otherwise. It was not applied when the Tribunal considered the inconsistency of my father’s work position showed between my student visa application and refugee protection visa (paragraph 98 of Decision Record). The Tribunal ignored the difficulty to obtain direct evidence from my side to my father’s position (paragraph 101 of Decision Record), although I provided indirect information about my father’s work status (paragraph 101 of Decision Record). The Tribunal further unreasonably assumed the agent’s activity to challenge my credibility. The agent used for my student visa was working in their own beliefs that might consider my father’s official position was not a positive element for a particular time or visa class. My father arranged the application via that agent. I was not liable for their beliefs, neither could I control it. Thus, the Tribunal doubted my credibility from this point illogically and unfairly (paragraph 97 of Decision Record).
2. The Tribunal refused my claims to be a Christian, because I did not raise the claim about my grandmother’s suffering until I was prompted by the Tribunal at the conclusion of the hearing (paragraph 102 of Decision Record). I was following the Tribunal’s rhythm totally during the hearing. Thus, the Tribunal’s statement had no ground.”
The application was supported by an affidavit sworn by the applicant on 18 December 2011. No written submissions were filed by the applicant and he appeared as a litigant in person on the hearing of the matter, assisted by an interpreter in the Mandarin language.
The first respondent filed a response dated 3 January 2012 seeking dismissal of the application and an order for costs. The first respondent filed and served a court book filed 23 March 2012 and contentions of fact and law filed 2 July 2012.
Background
The applicant is a citizen of the People’s Republic of China (China). He was born in Fujian province China and completed his primary and secondary schooling there. He arrived in Australia on 10 January 2008 on a Subclass 571 Student visa. During 2008 the applicant studied English at Meridian College in Melbourne. His student visa expired on 13 March 2010. On 1 November 2010, the applicant lodged an application for a Protection (Class XA) visa. That application was deemed to be not a valid application and the applicant re-lodged his application on 20 December 2010. The applicant was invited to attend an interview with a delegate of the first respondent on 31 January 2011 and a Mandarin speaking interpreter was present to assist the applicant. The applicant was subsequently notified by letter of 7 February 2011 of the refusal of his application for a Protection (Class XA) visa. The applicant filed an application for review with the Tribunal dated 7 March 2011 and by letter of 31 March 2011, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issue arising in his case in a hearing date of 11 May 2011. At the request of the applicant the hearing was rescheduled to 6 June 2011. An interpreter in the Mandarin language was present to assist the applicant.
Tribunal hearing
The applicant told the Tribunal that he feared that should he return to China he would be beaten or locked up by the police as they suspect that his studies in Australia had been funded by money embezzled by his father in China. The applicant further told the Tribunal that he did not fear harm should he return to China because he had commenced attending Church in Australia or because his grandmother was a Christian. However, he stated that the local police were corrupt and would do what a Mr Li told them to. They would use an accusation against the applicant of being a Christian as a pretext to beat him up, whereas the real reason would be that they were supporters of Mr Li or being bribed by Mr Li to do so. Mr Li was, it was alleged, in competition with the applicant’s father to replace him as head of his village and, according to the applicant, Mr Li was a man who made false allegations against his father and was responsible for his father being sentenced to three years in jail.
The Tribunal put a number of pieces of information to the applicant that would be a reason for affirming the delegate’s decision not to grant him a protection visa. They are as set out accurately in the first respondent’s contentions of fact and law which I adopt and are the following:-
“5.1 The applicant’s student visa application had not referred to his father’s role as village head, when to do so may have strengthened the credibility of that application, which cast some doubt on whether his father was head of the village, and in turn on the other claims made by the applicant;
5.2 The loan application documents in support of his student visa application appeared genuine, and the applicant might rely on these documents to respond to any police investigation into his studies having been funded by embezzled monies, thus mitigating the risk that he would be of further interest to the police upon his return to China;
17.3. The Department’s records show that he had ceased his studies on 4 September 2008. He had said that he first heard about his father’s difficulties from his mother in late 2009, which he then revised to late 2008, but either date cast some doubt on his account of having stopped studying because he no longer had any money to cover his living expenses;
17.4. The timing of the lodgement of the application for a Protection visa was more than 18 months after the applicant’s father had been arrested in March 2009; this might lead the Tribunal to conclude that had the applicant had a genuine fear of persecution he would have taken steps to resolve his immigration status much earlier than the end of 2010;
17.5. The applicant had been asked by the delegate of the first respondent to provide documents to support his claims about his father’s conviction and sentence. The applicant had indicated that such evidence did exist and that he would arrange for it to be obtained from his family in China; the applicant had repeated this assurance to the Tribunal, some five months later, and was invited to provide such evidence to the Tribunal. The absence of such documents, given the applicant’s assurances that they existed and could be obtained, might cause the Tribunal to conclude that the applicant’s father had not faced the difficulties claimed and that the applicant was not a credible witness;
17.6. The applicant had been repeatedly questioned by the Tribunal as to whether he had other reasons for fearing harm should he return to China, but he had not raised his religious beliefs, which might cause the Tribunal to conclude that he was not a Christian, had not been present when his grandmother was warned about holding an illegal gathering, and did not go to church in Australia, and would not face harm as a Christian should he return to China.”
The Tribunal informed the applicant that even if it did accept that his father had a rival who would influence the local police to target him should he return to China, it was doubtful that their motivation would be for a Refugee Convention reason.
The applicant elected to respond to each of the pieces of information put to him by the Tribunal and those responses are as accurately set out in the first respondent’s contentions of facts and law and included hereafter as follows:-
“7.1 He was unable to explain why his father’s role as head of the village had not been included in the student visa application, other than that the agent employed to prepare the application may not have realised the potential significance of his father’s position;
7.2 As the local police were corrupt, evidence of a genuine loan that had been obtained by the applicant’s father to meet his education costs would be of no use in stopping them;
7.3 He had ceased attending college for two weeks in September 2008 because he was ‘hanging out’ with his friends and having fun, but he received a notification from his college and immediately returned to college until towards the end of 2008;
7.4 After he had ceased studying he was too young to know what to do given what was happening in China; he took his mother’s advice and just stayed in Australia. He only found out about the existence of Protection visas in 2010, and applied as soon as he realised that he could;
7.5 The applicant had arranged for documentary evidence of his father’s conviction and sentence to be sent to Australia, but he did not know why it had not yet been received. He was invited to provide such documentation to the Tribunal at any time prior to the Tribunal decision being made;
7.6 The applicant stated that he did go to church regularly in Australia. However, he did not fear harm in China as a consequence of being a Christian or attending church in Australia. He was not present when the police went to his grandmother’s house. In response to prompting by the Tribunal, the applicant stated that he feared being accused of being a Christian by Mr Li, which would provide the police with a pretext for beating him up.”
Tribunal’s reasons for decision
The Tribunal handed down its decision almost six months after the hearing. Potential claims based on five grounds were identified by the Tribunal: religion, imputed political opinion as the son of a village head falsely convicted of embezzlement, and membership of three particular social groups, that of his family as his father’s son, that of the family of a village head or prominent businessman in Fuqing, and as a member of his Christian maternal grandmother’s family. He feared harm from Mr Li, a rival of his father, and from the police and security forces in his local area.
The Tribunal, in paragraph 97 of its reasons, noted it had significant concerns about the applicant’s credibility and his reliability as a witness, which cast serious doubt on the veracity of his claims.
The Tribunal did not accept that the applicant’s father had been a village head at the time that his student visa application was prepared; had this been the case, the applicant’s student visa application would have been supported with such information.
The Tribunal found the applicant’s reasons for ceasing his studies in Australia were vague and inconsistent. He was unclear about when he had been informed of his father’s difficulties, and said that he had absented himself from College in September 2008 to ‘hang out’ with his friends as well as claiming that he had ceased his college course for financial reasons. The Tribunal did not accept that the applicant had ceased his studies in Australia because of his father’s financial and criminal problems in China as claimed by him.
The Tribunal did not accept that had the applicant’s father been facing the serious problems in the course of 2009 as claimed, the applicant would have delayed seeking advice and applying for a protection visa until November 2010.
The Tribunal gave significant weight to the applicant’s inability to provide any documentary evidence in support of his claims concerning his father’s alleged criminal charges conviction and sentence, despite being invited to do so by the delegate of the first respondent on 31 January 2011, and by the Tribunal at a hearing conducted almost six months before the Tribunal decision was handed down.
The Tribunal also has significant doubts about the applicant’s claims to be a Christian, to have been identified as a Christian because of his grandmother’s Christianity and to have attended Christian services in Australia. The Tribunal noted that the applicant did not raise this claim at the hearing until prompted by the Tribunal at the conclusion of the hearing. The Tribunal also noted that at the conclusion of the hearing the applicant stated that he had not, in fact, been present, as he had claimed in the statement provided with his visa application forms, when his grandmother was visited by local police and accused of holding an unlawful gathering. The Tribunal also noted that at the hearing the applicant appeared to resile from his claim that he feared harm in China because of his Christianity.
In the light of its concerns about the applicant’s credibility, and in the absence of evidence corroborating the applicant’s claims, the Tribunal did not accept that the applicant’s father had been a village head, or that his father had a political rivalry with a Mr Li, or that his father had been charged, convicted or sentenced with an offence of embezzlement or arson, or that the applicant was of interest to the police or the security forces. The Tribunal did not accept that the applicant was at risk of being harmed by a rival of his father or by the local police or Chinese security forces should he return to China.
The Tribunal did not accept that the applicant was a Christian, would be identified as a Christian because another family member was Christian, or had attended Christian churches in Australia. The Tribunal did not accept that the applicant would be targeted for harm by any party because he was a Christian or identified as a Christian should he return to China.
In the light of the Tribunal’s finding that the applicant was not at risk of harm from Mr Li, the police or the security forces, it was not necessary to consider whether their motivation for harming him was attributable to a Convention reason.
Conclusion
The Tribunal made adverse credibility findings against the applicant which were supported by the material before it and in relation to which this Court cannot interfere. The applicant was given the necessary opportunity to put all those matters he wished to put before the Tribunal. It was for him to place the evidence before the Tribunal supportive of his claims and for the Tribunal to then determine the veracity of such claims (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at (187)). The Tribunal did so, as it was required to.
No jurisdictional error attends the decision under review and accordingly the application shall be dismissed with costs following the event.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 20 July 2012
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