MZYTV v Minister for Immigration
[2012] FMCA 585
•27 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 585 |
| MIGRATION – Review of decision of Refugee Review Tribunal – alleged failure to comply with s.430(1) – discussion of “well founded fear” test – alleged failure to consider evidence – application dismissed. |
| Migration Act 1958 (Cth), ss.425(1), 430(1) |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 |
| Applicant: | MZYTV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1821 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 27 June 2012 |
| Date of Last Submission: | 27 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the first Respondent: | Ms Whittemore |
| Solicitors for the first Respondent: | Sparke Helmore |
| Counsel for the second Respondent: | Ms Whittemore |
| Solicitors for the second Respondent: | Sparke Helmore |
ORDERS
The Application filed 22 December 2011 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1821 of 2011
| MZYTV |
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 on 23 November 2011. The Applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus be issued directing the Tribunal to determine the application for a Protection (Class XA) visa according to law.
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 19 December 2010 on a false Taiwanese passport. He applied for a protection visa on 8 April 2011, using his true identity and passport.
The Applicant claimed to fear persecution on the basis of his membership of the Local Church. He claimed that on 7 June 2010, he was arrested and detained for three days after police raided a Local Church gathering he was holding at his barber shop. He claimed that he was released after paying a fine of 5000 RMB and a conviction was recorded against him. He also claimed that he was required to report to police once a week and that his business was destroyed as a result.
On 28 April 2011, the Delegate of the Minister invited the Applicant to attend an interview on 3 May 2011. He attended this interview and gave evidence in support of his claims. On 4 July 2011, the Delegate made a decision refusing to grant the Applicant a protection visa. The Delegate did not accept that the Applicant was or had ever been a practicing Christian in China or Australia. The Delegate was not satisfied that the Applicant had a well-founded fear of persecution on the basis of any Convention reason and did not believe that there was a real chance that he would be persecuted should he return to China.
On 4 August 2011, the Applicant lodged an application with the Tribunal to review the Delegate’s decision. He was invited to attend a hearing on 16 November 2011 which he did attend and gave evidence and presented arguments in support of his application. On 23 November 2011, the Tribunal affirmed the Delegate’s decision to refuse the application for a protection visa. On 22 December 2011, the Applicant made this application to the Court.
The Tribunal’s decision
The Tribunal rejected the Applicant’s claim to fear harm as a member of the Local Church. The Tribunal found that the Applicant had given inconsistent and confused evidence to the Department and to the Tribunal on a number of matters. These included the length of time he was detained, whether a conviction was recorded against him, the amount of the fine he paid on release, and the manner in which he departed the People’s Republic of China.
The Tribunal found that the Applicant may have acquired some elementary knowledge of Christianity, but based on his lack of knowledge of the Local Church, did not accept that he was a member of the Local Church or a committed Christian. The Tribunal noted that the Applicant’s account of the persecution he feared because of his claimed Christianity and connection to the Local Church in Fujian Province was not consistent with accepted independent country information that Fujian had one of the most liberal policies on Christianity in China.
The Tribunal considered the Applicant’s claim to have attended church services in Australia but found that if he had attended such services, it was to strengthen his claim for refugee status. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution if he returned to China for any Convention related reason.
The Grounds for Review
The application for judicial review contains the following grounds:
(1)The Tribunal did not comply with the duties imposed by s.430(1) in his case.
(2)The Tribunal discounted the risk of being persecuted by Chinese authorities by stating that his hometown, Fujian Province, has the most liberal policies on Christianity in China. This is a jurisdictional error because the Tribunal ignored to set up a well-founded fear test, as per Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
(3)The Tribunal did not fairly assess his case. The Tribunal expected him to provide evidence to prove his detention in China. Although he provided indirect evidence and explained the obstacle to the actual situation for him to get direct evidence, all this evidence was ignored by the Tribunal. This gives ground to believe that the Tribunal did not consider his evidence with care and fairness.
Orders and directions were made on 7 March 2012, allowing the Applicant to amend his application but he did not do so.
The Applicant was given the opportunity to address the Court with respect to the grounds set out in his application. He raised three issues:
(1)that what he told the Tribunal was true;
(2)that a friend in the same position had been given refugee status; and
(3)that the Tribunal had asked him to provide documents which he couldn’t provide because the authorities would not provide them to him.
The First Respondent’s submissions
The First Respondent submits, with respect to ground 1, that the Tribunal clearly set out its reason for its decision and its findings on all of the Applicant’s claims and therefore complied with the requirements of s.430(1)(a) to (c). The Tribunal set out the evidence, namely, its concerns about the credibility of the Applicant’s own evidence, his lack of knowledge of the Local Church, and the relevant country information that it relied upon in support of its findings.
In relation to the second ground, the First Respondent submits that there is no basis for this ground. Whether the Applicant’s fear of harm is well-founded depends on whether there is a real, substantial basis for it.[1] It is clear from the Tribunal’s decision that it carefully considered whether the Applicant had a well-founded fear of persecution for the reasons of his claimed Christian belief and membership of the Local Church, and applied the correct legal test. There is no error in the Tribunal not being satisfied on the evidence before it that there was a real chance that the applicant would suffer persecution for a Convention reason.
[1] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
The third ground alleges the Tribunal did not fairly assess the Applicant’s case and erred in expecting the Applicant to provide evidence of his detention in the People’s Republic of China, and further ignored his explanation for failing to provide that evidence. The First Respondent submits that it is clear from the Tribunal’s decision that it had regard to the Applicant’s explanation about why he had failed to provide evidence of his detention. The Tribunal ultimately rejected that the Applicant had been detained because the Applicant’s account of the period of his detention, the amount of the fine he had to pay on release and whether or not a conviction was recorded was confused, inconsistent and contrived. The Tribunal did not base its findings on a failure to provide corroborative evidence.
The First Respondent further submits there is no foundation to the claim that the Tribunal did not fairly assess the Applicant’s case. The Tribunal complied with its obligations pursuant to s.425(1) of the Act by inviting the Applicant to attend a hearing, which he did attend. The Tribunal ensured that the Applicant was sufficiently alert to the determinative issues arising on the review and had an opportunity to respond to them.[2] The Tribunal discussed with the Applicant the inconsistencies in his account concerning his detention and raised with him the country information that there was a high degree of tolerance of the Local Church in Fujian Province.
[2] SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [42]-[44].
The Tribunal also put inconsistencies in the evidence that the Applicant provided to the Department and the Tribunal to him about how he departed mainland China and travelled to Hong Kong and Taiwan before departing for Australia. The Tribunal was not required to accept the Applicant’s claims at face value, and the weight to be given to his claims and evidence was a matter for the Tribunal to assess.[3] In particular, the Tribunal’s conclusion that the Applicant was not credible was a finding of fact for the Tribunal itself. This finding was open to the Tribunal on the evidence before it. The court cannot review the merits of the Tribunal’s decision.[4]
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282.
[4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Conclusions
The first ground raised by the Applicant was a failure by the Tribunal to comply with the duties imposed on it by s.430(1). Section 430(1) provides that where the Tribunal makes a decision on a review it must prepare a written statement. That statement must:
a)set out the decision of the Tribunal on the review;
b)set out the reasons for the decision;
c)set out the findings on any material questions of fact; and
d)refer to the evidence, or any other material, on which the finding of fact were based.
A fair reading of the Tribunal’s decision indicates that it complied with those requirements.
When asked to elaborate on this ground the Applicant said that everything he told the Tribunal was true. Findings on credibility are clearly matters for the Tribunal. He also raised with the Court the position of a friend who he said had been given a protection visa. He had also raised this matter with the Tribunal and it is referred to at paragraph [60] of the Tribunal’s reasons.[5]
[5] MZYTV v Minister for Immigration and Citizenship and Another, Court Book, page 95
The Tribunal and this Court can only consider the case before it. The Applicant told the Tribunal that he could not remember the date of birth and was not sure about the surname of this person. There was no obligation on the Tribunal to inquire about that person’s case and, indeed, it is hard to see how it could have easily ascertained such information. Further, there is nothing to suggest that his circumstances had any material bearing on the Applicant’s case.
Ground 2 of the application contended that the Tribunal failed to apply the well-founded fear test set out in Minister for Immigration and Ethnic Affairs v Guo Wei Rong.[6] In that case the High Court addressed this issue at page 572 of the reported judgment. They said:
A fear is well-founded when there is a real substantial basis for it. As Chan[7] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate, but no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.[8]
[6] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
[7] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[8] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at page 572.
The reasons for the decision of the Tribunal indicate that the Tribunal not only took into account the country information concerning the policies applied within the Fujian Province, that is, that the authorities were more tolerant towards Christian churches, in reaching its conclusion that the Applicant did not have a well-founded fear of persecution, but also its finding that he was not a committed Christian and nor had he ever been a member of or in a leadership role within the underground Local Church.
The Tribunal was, therefore, entitled on the evidence to conclude that the Applicant’s fear was not well-founded because there was no real substantial basis for it. The Tribunal was entitled, on the evidence before it, to make the findings it did. Those findings are not open to review by this Court.
The third ground is a contention that the Tribunal did not fairly assess the Applicant’s case. The Applicant cites as evidence of this unfairness the Tribunal’s expectation that he provide evidence of his detention in China and it’s ignoring of his evidence that he could not provide such evidence.
It is clear from the Tribunal’s decision that the Tribunal did not ignore the Applicant’s evidence, but did not find him to be a credible witness. In paragraph 78, 79 and 80 of its decision, the Tribunal refers to the contradictions in the Applicant’s evidence and the way he changed his evidence when certain propositions were put to him.[9] In paragraph 82 it concluded that his evidence was “confused, inconsistent and contrived”.[10]
[9] MZYTV v Minister for Immigration and Citizenship and Another, Court Book, page 99.
[10] MZYTV v Minister for Immigration and Citizenship and Another, Court Book, page 99 at paragraph 82.
I am satisfied that the Tribunal did consider the Applicant’s evidence. In determining not to accept that evidence the Tribunal has given reasons for rejecting the Applicant’s statements. Such findings as to the Applicant’s credit were clearly open to the Tribunal to make.
The Applicant has not shown that the Tribunal failed to comply with its statutory obligations under Part 7 of the Act. He was given an opportunity to be heard. Inconsistencies in his evidence were put to him and his evidence was considered. The Tribunal’s findings and conclusions were open to the Tribunal to make. They are matters which go to the merits of the Applicant’s claim and are not subject to review by this Court.
For these reasons the application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 4 July 2012
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