MZYZI v MIAC
[2013] FMCA 242
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYZI v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 242 |
| MIGRATION – Refugee review tribunal – applicant’s failure to attend hearing before tribunal – s.426A – applicant claimed to be a christian in China. |
| Migration Act 1958 s.426A |
| VNAA & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474 |
| Applicant: | MZYZI |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 878 of 2012 |
| Judgment of: | Riley FM |
| Hearing date: | 4 February 2013 |
| Date of Last Submission: | 4 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Advocate for the First Respondent: | Ben Petrie |
| Solicitors for the First Respondent: | Clayton Utz |
| Advocate for the First Respondent: | No appearance |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 23 July 2012 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 878 of 2012
| MZYZI |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal.
The applicant is a citizen of China. He claimed to be a Christian who attended gatherings in a house church. He said that on 9 January 2005 he was at a house church gathering which was raided by the police. He said that the police gave him a severe warning to stop attending house church gatherings.
The applicant said that on 10 December 2006 the police again raided a house church gathering which he was attending. He said that he and his brother were arrested but released later the same day. He said his parents were detained for 15 days.
The delegate conducted an interview with the applicant. The delegate recorded that during the interview the applicant was given the opportunity to address inconsistencies in his written and verbal claims. The delegate said at CB 112:
… Although I have doubts as to whether these incidents actually occurred given the lack of detail provided, I am willing to extend the benefit of the doubt that the applicant’s family had previously been detained in China. …
… I had concerns about the truthfulness of the claims submitted. The applicant was very vague in his responses and reluctant to elaborate on the details of his life in China post 2006. …
… Based on the information provided by the applicant, it does not appear apparent that he continued to participate in local church gatherings post 2006. … Given the applicant’s family have been able to continue practicing and have not experiencing [sic] any further problems, despite their coming to the authorities [sic] attention in 2006, the likelihood of the applicant suffering harm for his participating in local house gatherings, together with country information which suggests the authorities in Fujian are tolerant of unregistered believers [5.17], appears no more than remote.
…
… The applicant asserts that he is not baptised as he does not feel that he is “good enough yet”. The applicant’s knowledge of the Christian faith is limited and his religious activities in Australia are not consistent with a person who is a genuine believer in the religion. During interview, the applicant was asked about his knowledge of the faith. The applicant referred to the Old and New Testament. According to the Old Testament the applicant mentioned the Gospels of Mark, Mathew, John and Luke. He further made reference to the leader of the local church, Li Changshou and to the resurrection of Jesus. When speaking about the resurrection, the applicant stated that Jesus had died and came back 40 days later. When asked if he was aware of any other significant events in the Christian belief, the applicant stated that he did not know. Further, the applicants [sic] limited participation in Christian life in Australia, not knowing the name of the church he attends in Melbourne and simply providing an address for the church he attended in Sydney raises serious doubts as to whether the applicant is a genuine Christian. If he is, it appears highly unlikely that he is an active participant. The applicant has been residing in Australia for greater than 3 years, a country which respects religious freedom, and he has been unable to demonstrate that he is active in his claimed religion. This adds weight in concluding that upon return to China, the applicant’s religious behaviour is unlikely to attract the interests of the Chinese authorities. In the unlikely event that it did, the chances of experiencing serious harm for religious reasons is no more than remote, and accordingly, not well-founded.
The delegate went on to note that country information indicated that Fujian Province had one of the most liberal approaches to religion in China. The delegate considered that the applicant did not face a real chance of persecution in China for the reasons claimed.
The applicant applied to the Refugee Review Tribunal for review. The applicant appointed an agent to represent him at the Tribunal. The Tribunal sent the applicant an invitation to appear. The date specified for the interview was 25 June 2012 at 11 am. The invitation noted that if the applicant failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it.
The applicant responded to the hearing invitation saying that he would appear but his agent would not. The applicant, in fact, did not attend the hearing before the Tribunal on 25 June 2012 and nor did his agent. The Tribunal proceeded to make its decision in the absence of the applicant. The Tribunal noted the applicant’s claims and noted the provisions of s.426A of the Migration Act 1958 (“the Act”). Subsection 426A(1) of the Act provides as follows:
(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal said the following:
49.The applicant gave some information about his faith, but insufficient for the Tribunal to conclude that he was a Christian or a Shouter. He gave little information about his asserted psychiatric or psychological problems. While mentioned in the delegate’s decision, he did not personally raise in his application or interview any fears of harm on account of having been a failed asylum seeker or having borrowed money from his relatives. The matters he did raise were in insufficient detail for the Tribunal to be satisfied that the applicant would be at risk of harm for any reason.
50.The Tribunal would have sought further clarification as to his religious beliefs, including details regarding his attendance at gatherings in China and at church in Australia. He has provided very little detail regarding the asserted police surveillance, detention, psychiatric treatment, ostracism and humiliation (such as precisely when and how frequently these incidents occurred, for what duration, where his family was taken, by whom, what was done and how they were treated). He claims his parents were fined but provides no details as to the procedure followed, how they were fined, whether they were charged and for what offence, whether the matter was heard or otherwise dealt with. Given the lack of particulars in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied that the applicant or his family has been subjected to fining, surveillance, detention, psychiatric treatment, humiliation, ostracism or imprisonment as claimed.
51.The Tribunal is not satisfied that the applicant will face serious harm if he returns to China. The Tribunal does not accept that the applicant fled China because he feared for his safety or that the government would follow, arrest, detain, imprison or otherwise harm him in any way on his return.
The Tribunal also considered the complementary protection provisions, but concluded that they were not satisfied in this case.
The grounds of application to this court are as follows:
1.I had been sick since June 24th and I thought I would be able to recover in 2 days. The agent reminded me on the phone about the interview in the morning on 26th, but I was so sick that I fall asleep again. At 10am 25/06/2012, I went to train station in a hurry but missed the train. Unfortunately I missed the interview at 11:00am on 25/06/2012.
2.I think that the Tribunal should give me a chance for interview; the officer should give a call to me or my agent. I received the refusal decision made on the same day 25/06/2012. It is not fair.
3.I hope my case could be remitted back to RRT and other member could interview me.
4. I fear to go back to China for my Christian belief.
The applicant also filed an affidavit in support of his application. It stated:
1.I was born in Fujian Province, China, on the day of 09/01/1990.
2. I arrived in Australia on 20/01/2008.
3. I fear to return to China.
There was no evidence, much less medical evidence, before the court to substantiate the applicant’s claims in his application concerning his ill-health on 25 June 2012. The applicant acknowledged in his application that his agent had reminded him about the interview. The applicant said that notwithstanding that he was sick, he went to the train station at 10am on the day of the hearing before the Tribunal. He claimed that he missed the train. However, there is nothing to suggest that he arrived at the Tribunal late and asked for his interview to be rescheduled.
Contrary to the applicant’s assertions, there is no obligation on the Tribunal to telephone an applicant to check on his whereabouts if he fails to attend a scheduled interview.
There is clear authority that s.426A permits the Tribunal to proceed as it did in this case. See, for example, VNAA & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474 at paragraph 15.
My one concern about this matter was whether the Tribunal had an obligation to notify the applicant of the basis upon which the decision would ultimately be made. However, on closer inspection, it seems to me that the applicant was alerted in the delegate’s reasons to the basis upon which the Tribunal made its decision.
Although the delegate seems ultimately to have considered that the applicant would not be persecuted in Fujian province because the authorities in that province are quite tolerant of religious activity, it is also clear from the delegate’s reasons that the delegate had grave doubts about whether the applicant was a Christian at all. It seems to me that, in all the circumstances of this case, the Tribunal had no further obligation to alert the applicant to the particular matters about which the Tribunal was not satisfied.
Consequently, the application must be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Riley FM.
Date: 11 April 2013
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