MZYUK v Minister for Immigration
[2012] FMCA 642
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYUK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 642 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.430(1)(d) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | MZYUK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 51 of 2012 |
| Judgment of: | Hartnett FM |
| Hearing date: | 18 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2012 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the First Respondent: | Sparke Helmore (Ms Whittemore on behalf of the First Respondent) |
THE COURT ORDERS THAT:
The application filed 19 January 2012 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 51 of 2012
| MZYUK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application is one for judicial review of a decision of the Refugee Review Tribunal (the ‘Tribunal’) made on 29 December 2011. The Tribunal affirmed a decision of a delegate of the first respondent dated 29 June 2011 to refuse to grant a Protection (Class XA) visa to the applicant.
The grounds of the application are as set out in the application filed 19 January 2012 and are as follows:
“1. In this case, the Refugee Review Tribunal (the Tribunal) failed to comply with the duties imposed by s.430(1)(d). It stated that although the Tribunal was satisfied I am a true Christian (para. 75 of the Decision Record), the Tribunal believed that Christians in Fujian are able to practice their religion without attracting the adverse interest of the local authorities (para. 82 of Decision Record). The Tribunal quoted country information of China stating that the Constitution and laws provide for freedom of religious belief and the freedom not to believe (para. 85 of Decision Record). This statement does not reflect the truth in China. For instance, the Constitution tells the world that the Chinese government “respects and preserves human rights”, but when one of China’s most world-renowned and well-respected 2010 Nobel Peace Prize winner, Xiaobo LIU, sought to rely on that provision advocating for human rights under applicable Chinese law he received no such “respect” at all; instead he is still in prison. Thus, it is not logical, neither reasonable did (sic) the Tribunal states that I can freely conduct the religion activities in China (para. 98 of Decision Record).
2. It is an unfair statement made by the Tribunal that I did not take reasonable steps to avoid persecutory harm or live cautiously or ‘discretely’ to avoid such harm in China (para. 82 of Decision Record). I provided both written and oral evidence about what happened to my family and me. Due to the time and the persecution I suffered, I could not provide accurate oral evidence to match the written statement (para. 78 of Decision Record). The Tribunal took an overly stringent approach to question of credibility, which gave me little benefit of the doubt and contradict to the duty of Tribunal, Sellamuthu v MIMA (1999) 90 FCR.”
No written submissions were filed by the applicant as ordered by Registrar Allaway on 7 March 2012.
The first respondent filed a response on 3 February 2012 and written submissions on 16 May 2012. The first respondent sought dismissal of the application.
History
The applicant was born on 5 August 1982 and is a citizen of the People’s Republic of China (‘PRC’). He arrived in Australia on 12 September 2010 on a Transit visa valid until 15 September 2010. He applied for a Protection (Class XA) visa on 9 November 2010. He claimed to fear persecution from the PRC authorities on the basis of his membership of an underground Christian Church. He fears that he will be persecuted, detained and tortured by the Chinese authorities if he returns to the PRC. His claims include that:-
a)he has been detained on one occasion and held for a day, while his mother was detained on two occasions for up to two weeks and his father detained for a month. Another elder of his ‘House Church’ named Elder Chen was put in jail for a year;
b)his mother was detained for a day in August 2006 and released after being fined. He claims that his mother was detained again for a week in March 2007 along with some other ‘brothers’ and ‘sisters’ where they were interrogated, physically abused, forced to write ‘confessing letters’ and were forced to reveal the names of other members of their underground church;
c)on 9 May 2010 he was at a gathering in Xiaoyue Wang’s home when suddenly the police broke into the house and seven people including Wang and the applicant were taken to the local police station where they were held in separate rooms and interrogated;
d)the police beat and humiliated him and accused him of spreading superstition and asked him to provide details of the organiser of these meetings and as the applicant did not provide the details, he was badly beaten causing his face and legs to become swollen;
e)he was released the next day after his wife paid a fine;
f)the applicant claims that following this incident, the police often came to his house and ‘sabotaged his shop with various excuses.’ He claims that as a result, his business almost closed down and he and his wife subsequently sold the shop to others;
g)the applicant also claimed that after his release, he was required to report to the police station initially, once a week and later, once a month.
The Tribunal decision
The Tribunal hearing on 2 November 2011 was conducted with the applicant giving evidence and presenting arguments in support of his application for review. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted by his registered migration agent.
The Tribunal considered available country information which indicated that the extent of religious freedom varied across China. The Tribunal took into account those sources which specifically addressed the situation of unregistered churches in Fujian Province. The Tribunal concluded at paragraph 96 of its reasons:-
“The country information in respect of Christianity in Fujian province indicates generally that there is a significant and thriving Christian population in that province and that the authorities are extremely liberal in their approach to unregistered religious groups.”
The Tribunal said as to the evidence before it that it had:-
“some doubts regarding the applicant’s claims to be a Christian and a member of a local church. The applicant was able to answer some of the questions put to him by the Tribunal about the scriptures, but his evidence was both scant and unclear regarding the nature and characteristics of his church, and the difference between his church and the registered churches in China. However the Tribunal has taken into the account the comments of Dowsett J in SZKFP v MIAC and Anor [2008] FCA 545 that the Tribunal should exercise caution in making assumptions about the core knowledge of Christianity for an adherent in a different country. On balance the Tribunal accepts as true the applicant’s claim to be a Christian and his claim to have participated in an unregistered church in Australia as claimed, and is further satisfied that, in attending church gatherings in Australia he was engaging in conduct otherwise than for the sole purpose of strengthening his claim to be a refugee for the purposes of 91R(3)(b).” (at paragraph 75).
And further:-
“the Tribunal does not accept that the applicant is of any adverse interest to Chinese authorities for reason of his Christian religion, his participation in the local church or for any other Convention reason.” (at paragraph 76).
The Tribunal found:-
a) “For reason of the significant inconsistencies and contradictions in the applicant’s written and oral evidence about the arrest and detention of both himself and his mother, the Tribunal does not accept that the applicant or his mother were ever arrested or detained by the Chinese authorities. It follows that the Tribunal does not accept that the applicant has, in the past, been persecuted for reason of his Christianity or his participation in an unregistered local church in China.” (at paragraph 81);
b) “In considering the applicant’s claims of past harm in China the Tribunal has taken into account the evidence provided in his written statement according to which, at different times, he remained safe and did not “meet the police” because he was cautious in his religious practices. The Tribunal notes that the applicant is not required, and cannot be expected to take reasonable steps to avoid persecutory harm or live cautiously or ‘discreetly’ to avoid such harm. (Appellant S395/2002 v MIMIA; Appellant S [2003] HCA 71, 9 December 2003) The Tribunal does not however accept that the applicant did act cautiously or discretely in the practice of his religion to avoid persecutory harm. The country information before the Tribunal… indicates that Christians in Fujian are able to practice their religion whether in registered or unregistered churches without attracting the adverse interest of the local authorities, and the Tribunal does not accept that the applicant had reason to exercise any clandestine or cautious behaviour in practicing his religion. The Tribunal does not therefore accept that he did so.” (at paragraph 82);
c) “Although past events are not a certain guide to the future, nevertheless, in many cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. (MIEA v Guo (1997) 191 CLR 559 at 575.) In the present case the applicant’s claims to fear persecution in the future are largely founded on his claims regarding past events which he claims have occurred in China. … the Tribunal does not accept keys components of the applicant’s claims about past events in China” (at paragraph 83);
d) “Based on the country information set out above and in consideration of the evidence as a whole the Tribunal finds that there is not more than a remote chance that the applicant would face serious harm for reason of his Christianity or his involvement in an unregistered church now or in the reasonably foreseeable future should he return to his home province of Fujian. The Tribunal finds that the applicant will continue to practice his Christianity in an unregistered church (in) Fujian in the future and that he will do so openly (Appellant S395 v MIMIA) and finds that there is not more than a remote chance that he will be subject of persecutory harm for that reason now or in the reasonably foreseeable future.” (at paragraph 97).
Consideration
The Tribunal made adverse credibility findings in respect of some of the factual evidence given by the applicant. These findings of fact were within its jurisdiction and it is not the function of this Court to review the merits of the Tribunal decision. The Tribunal clearly referred to the evidence upon which it relied to support its finding that there was no more than a remote chance that the applicant would suffer harm for reasons of his Christianity or his involvement in an underground church if he returned to the PRC. That finding was open to the Tribunal on the evidence before it. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his evidence was a matter for the Tribunal to assess as part of its fact-finding function (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).
The Tribunal has relied upon ‘Country information’ to assess the claims made by the applicant as to their consistency with other information as contained in that country information. ‘The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function’ (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph 11). The conclusions reached by the Tribunal were open on the basis of the material it used.
There is no basis to determine that the Tribunal failed to comply with s.430(1)(d) of the Migration Act 1958 (Cth) and that ground cannot succeed. Further, I note the decision of McHugh J in Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 424 (paragraph 70):
“The language of s 430(1) indicates that the requirement that the tribunal give reasons for its decision is not a requirement which goes to jurisdiction.”
There is no evidence to suggest that the applicant was in some way unable to give evidence, present his arguments and answer questions at the Tribunal hearing and that ground also cannot succeed. Accordingly, the application will be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 15 August 2012
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