MZYZK v Minister for Immigration
[2012] FMCA 1211
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYZK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1211 |
| MIGRATION – Application for judicial review – matters asserted all clearly merits review – no jurisdictional error by Refugee Review Tribunal – allegation of bias by Refugee Review Tribunal – no evidence to support allegation. |
| Migration Act 1958 (Cth) |
| Applicant: | MZYZK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 892 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 14 November 2012 |
| Date of Last Submission: | 14 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed at $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 892 of 2012
| MZYZK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 30 June 2012 by which the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
For reasons which I hope will become apparent, it is appropriate to commence with an examination of what it was that the Tribunal’s decision did.
The Tribunal initially set out the application under relevant law. The Tribunal then proceeded to deal in detail with the applicant’s claims (see paragraphs 22-31 CB 90-91].
The Tribunal accurately recorded that the applicant arrived in Australia on 3 November 2006 on a student visa. Ultimately, her student visa expired in March 2009 and the applicant lodged her protection visa application on 13 July 2011. That application was refused by the delegate on 12 October 2011.
The protection visa claims arose out of the applicant’s claim to membership of the Local Christian Church in China. The applicant asserted in her protection visa claims that she attended a Local Church in Melbourne from her arrival in Australia in November 2006 until March 2007, at which time she commenced a relationship with a Taiwanese man. While that relationship existed she said she ceased to attend the Local Church in Melbourne until the relationship ended in 2008.
The applicant claimed that in December 2010 she was communicating with a friend in China (Ms L) who is a member of the Three Self Patriotic Church in China. It was asserted that following discussions the applicant sent Ms L a copy of a book issued by the Local Church and that shortly after this was received in China, Ms L was arrested and was still in custody at the time of the applicant’s interview with the delegate.
The applicant had also claimed that on 1 June 2011 her own mother had been arrested and was detained for three weeks and was interrogated about the applicant and the applicant’s actions in sending religious material to China.
The applicant claimed that she could not return to China for fear of persecution due to her religious beliefs and activities, and submitted documents from the “Church in Melbourne” dated 6 August 2011 attesting to her regular attendance at church in Melbourne.
The Tribunal went on to record the course of the hearing before it.
The applicant was not able to provide any corroboration of her mother’s alleged arrest on 1 June 2011 and release on 23 June 2011 (paragraph 39, CB 92).
For the first time at the Tribunal hearing, the applicant asserted that her mother had had to pay a fine of RMB1000 to obtain her release (paragraph 42, CB 93). The Tribunal put it to the applicant that an explanation for this new information might be that it was newly fabricated, which the applicant denied.
The Tribunal traversed with the applicant matters to do with the arrest and detention of Ms L (paragraphs 44-51, CB 93-94). Amongst other things, the Tribunal noted that the applicant asserted, again for the first time, that Ms L had been sentenced to two years correctional education (paragraph 47, CB 94).
The Tribunal went on to put questions to the applicant about her religious practice in Australia (paragraphs 52-55, CB 95) and also raised with the applicant the delay in seeking protection. The Tribunal noted that the applicant was familiar with protection applications because of her involvement in her father’s application (paragraph 58, CB 96).
The Tribunal then put to the applicant concerns that she might have fabricated her claims of being a member of the Local Church and of the arrest of her mother and Ms L. These matters are recorded at paragraph 59, CB 96.
They constituted a comprehensive set of queries about significant credibility matters.
The applicant declined an opportunity to have additional time to consider her response and gave an oral reply, which is recorded at paragraph 60, CB 97.
Having referred to country information and re-summarised the applicant’s claims on which her protection application was based, the Tribunal arrived at a comprehensive series of adverse credibility findings, recorded in particular at paragraphs 92-113 (CB 103-107).
The credit findings made by the Tribunal seem to me to have been wholly justified on the materials.
The Tribunal further found that the applicant’s religious activities in Australia, to the extent that they were established, were wholly for the purpose of strengthening her claim to be a refugee. In the context of the credit findings made, that conclusion was also clearly open.
Against this introduction, I turn to the grounds of application.
Ground 1
“The Refugee Review Tribunal failed to give realistic consideration to the merits of the case and simply deny almost everything that I had stated from my protection visa application. In Paragraph 87, the Tribunal member stated that “The Tribunal finds that the applicant is not now and was not in China a Christian or a Local Church member and for this reason, she was not subjected to any form of harm by reason of being a Christian or a local church member.” In Paragraph 115, the Tribunal member stated that: “The Tribunal does not give those letters any weight in determining whether the applicant is genuinely a Local Church believer, merely that she has, since arriving in Australia, attended and is an active member of a local church in Australia. In Paragraph 87, the Tribunal member denied that I am not and I was not in China a Christian or a Local Church member, then in Paragraph 87. The reality is I am a Christian and a local church member and I have practised my religious activities both in China and in Australia. I have provided two statements from Church in Melbourne to confirm my regular attendance at church in Melbourne.”
The applicant has not lodged any materials in support of her application save for an affidavit filed on 26 July 2012. The only paragraphs that are relevant are as follows:
“I strongly believed that the Refugee Review Tribunal has made jurisdictional error and has denied natural justice when assessing my protection visa application.
The Refugee Review Tribunal failed to give realistic consideration to the merits of the case.”
Despite orders of Registrar Allaway made on 5 September 2012 which gave the applicant an opportunity to add to her application, she has not filed any amended application or any written submissions.
At the hearing before the Court, the applicant handed up a written submission which I marked as exhibit A1. That submission responded in part to the first respondent’s written submissions. I will deal with that document separately.
The first respondent’s written submissions relevantly read at paragraph 21:
“These findings were all open to the Tribunal to make following its assessment of the applicant’s claims and evidence as sole arbiter of the facts. That the applicant disagrees with the Tribunal’s findings in that regard is not indicative of error. Ground one is a request for impermissible merits review and should be dismissed.”
Unfortunately for the applicant, it is all too clear that the first respondent’s submission is correct. In essence, the applicant disagrees, and strongly at that, with the Tribunal’s conclusions. I have already said that the Tribunal’s conclusions were open to it on the materials. It is clear beyond doubt that the Tribunal did not fall into jurisdictional error by arriving at the findings of fact that it did. Findings of fact are quintessentially matters for the Tribunal.
Ground 2
“The applicant was not afforded a fair hearing and was denied natural justice. The Tribunal member when reaching the decision, in Paragraph 88, stated that “the Tribunal is satisfied that the applicant’s religious activities in Australia were engaged in solely in order to strengthen her claims to be a refugee.” However the fact of the matter is even when I was in China when I was not planning for lodging this protection visa in Australia, I attended Local Church family gathering. Soon after I arrived in Australia I participated in Melbourne Local Church activities as well long before I put in this protection visa application. Hence the visa applicant believed that RRT member denied natural justice when assessing my application. The Tribunal member unreasonably assumed that my religious activities in Australia were engaged to strengthen her claim to be a refugee ... Interesting enough, in Paragraph 87, the Tribunal member had just stated that “the Tribunal finds that the applicant is not now and was not in China a Christian or a Local Church member and for this reason, she was not subjected to any form of harm by reason of being a Christian or a Local Church member.” These two paragraphs are contradictory to each other.”
Once again, it is immediately apparent that this is a straightforward challenge to the factual finding made by the Tribunal that the applicant’s motivation for engaging in Local Church activities in Australia was to strengthen her refugee claim. The applicant’s assertion that paragraphs 87 and 88 of the Tribunal’s Reasons are inconsistent is, I regret to say, misconceived. The Tribunal found, for reasons I have already dealt with above that the applicant had not been a Local Church member in China not subject to any persecution there. It is in no way inconsistent with that finding to find, as the Tribunal did, that the applicant engaged in religious activities in this country with a view to strengthening her refugee claim.
This ground in the ultimate consists of a straightforward merits review and cannot succeed.
Ground 3
“The Tribunal member made jurisdictional error in that it did not consider properly an issue it was bound to consider. I arrived in Australia on November 3rd 2006, but did not lodge the protection visa application until October 12th 2011. In May 2011, after I sent some Christian material by post to Ms Lin in China that resulted in her being arrested on May 28th 2011 and the subsequent interrogation of my mother in China and my mother was detained for three weeks. It was under such circumstance that I decided to lodge my protection visa application with the Department. It is irrational and illogical and not based on findings or inference of facts supported by logical grounds. It is unreasonable to state that I should have put in this protection visa application soon after I arrived in Australia, as at that time, my personal safety was not under threat on the grounds of religious matters.”
I accept the submission of the first respondent at paragraph 25 of the written submissions that it was open to the Tribunal to reason that the applicant could have taken steps to apply for protection as a local church member at any time after her arrival in November 2006, bearing in mind the applicant’s assertion that being in that church was illegal in China and that she had to attend secret religious gatherings. It was further open to the Tribunal self-evidently to take into account the lengthy history and delay before the application was made.
There is nothing inherently illogical about the conclusion the Tribunal drew, nor was it a finding that no reasonable Tribunal could have arrived at. This ground is also not made out.
The Applicant’s Written Submissions – Exhibit A1
The written submission made by the applicant in summary repeats the criticism of the Tribunal’s finding that the applicant had not been a Local Church member in China and as a result subject to persecution.
As with Ground 3, the submission ignores the factual findings that the Tribunal made. The Tribunal simply did not accept that the applicant had sent Christian material to Ms Lin in China, nor that her mother had been arrested. That is one of the inherent difficulties with Ground 3.
The same observation applies to the assertion made in exhibit A1, which is essentially to the effect that:
“A more reasonable Tribunal member might look into this aspect more carefully rather than simply denying anything the visa applicant had stated.”
The written submission also asserts bias on the part of the Tribunal member for denying everything that the applicant had put forward.
In response to a query from the Court as to what gave rise to the bias asserted, the applicant said that the Tribunal member had told her during the hearing that she was not believed.
Counsel for the first respondent, who otherwise relied upon the written submissions filed, submitted that bias is a serious matter that requires clear proof. Counsel pointed to the Tribunal’s decision and the recitation of the history of the hearing itself.
There is no evidence before the Court, other than the Tribunal’s Reasons for Decision, and the applicant has not sought leave to adjourn and put on, for example, a transcript of the hearing.
As things presently stand, there is no proper basis for sustaining the allegation of bias both referred to in exhibit A1 and as articulated before the Court.
Conclusion
It is clear that the applicant remains strongly of the view that the Tribunal’s decision was wrong. However, a merits review of this sort does not, in the circumstances revealed by the Tribunal’s Reasons for Decision, give rise to jurisdictional error and it follows that the application must be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 21 December 2012
0
0
0