MZZAE v Minister for Immigration and Citizenship
[2012] FMCA 1250
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZZAE v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR | [2012] FMCA 1250 |
| MIGRATION – Review of Migration Review Tribunal’s decision not to grant a protection visa – applicant entered Australia on student visa – after 10 years of being in Australia and after his student visa expired, applicant applied for protection visa claiming persecution on religious grounds – initially generic grounds of breach of procedural fairness, failure to put country information to applicant for comment and Tribunal ignored relevant considerations – amended application for review entered into argument and challenged the accuracy of Tribunal’s findings – the amended application treated as submissions – no jurisdictional error found on part of Tribunal – application for review dismissed. |
| Migration Act 1958, ss. 422B, 424A(1), 424A(3) |
| Applicant: | MZZAE |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1060 of 2012 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for review, filed on 24 August 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 1060 of 2012
| MZZAE |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
This matter comes before me today as a review hearing in respect of a decision, made on 20 July 2012, by the Refugee Review Tribunal
(“the Tribunal”); which decision affirmed an earlier decision of the delegate of the first respondent not to grant the applicant a protection visa.
Background
By way of background, the applicant claims to fear persecution should he be returned to China because of his religious commitment to the Mormon faith. The Tribunal found he was a member of the congregation of that religious group in China before coming to Australia and that since being in Australia, he again pursued his devotion to that religious commitment.
He gave a history of being arrested by the authorities in 2000 when he was either 16 or 17 whilst in the company of his mother at a gathering of Mormons for religious purposes. Thereafter, he was detained for a period of four to five days until he was released after a bribe was paid by his father. His mother, who was arrested at the same time, remained in detention for a considerably longer time until she was released after a bribe was paid.
Thereafter, the applicant sought and obtained from the authorities permission to come to Australia as a student. He entered Australia lawfully in 2001 and attended the Brunswick High School. He has been in Australia ever since. That is a significant period of time legally, in the sense of having a valid visa, but when that expired, some many years after coming to Australia (10 Years), he made his application for a protection visa.
The Tribunal’s decision
In the decision of the Tribunal, as to why it affirmed the earlier decision of the delegate, the Tribunal, in my view, went to considerable length to examine the full nature of the claims being made by the applicant in support of his application for a protection visa; including claims that because of his religion he was bullied at school, he was forced to drink alcohol, he got into trouble and he was placed in a youth detention centre. All of that was considered by the Tribunal. The Tribunal, in my view, had obviously a very significant grasp of the nature of the application as first put. It examined the nature of the claims made during the hearing and, as a consequence, was able to articulate reasons why it came to a conclusion that the applicant lacked credit.
There are many reasons articulated by the Tribunal for that. By no means an exclusive list, it considered such things as the late filing of the protection application, the nature of the Independent Country Information and the inconsistencies between his written application and the evidence given verbally at the hearing. All those things were addressed by the Tribunal in finding that the applicant was not arrested and detained, nor was his mother. The other significant finding was that the Mormon congregation in China was not then, nor is it now subjected to the persecution suggested by the applicant. There was, therefore, no obligation imposed upon the Commonwealth of Australia to extend protection to the applicant.
Grounds of review
In response to the decision, the applicant has set out initially three grounds of review. Those grounds lack particularisation, but they need to be addressed.
First ground
The first ground is that the Tribunal acted in breach of the rules of procedural fairness. No particulars are given but, of course, it is encumbered upon me to look to see if there was any breach of the procedural fairness rules. The question of procedural fairness in this case is governed in the Migration Act 1958 (‘the Act”). It sets out such matters that ought to be considered and ought to be put to the applicant. Section 422B of the Act sets out the rules to be applied in these matters. Very often one needs to look to see whether s.424A(1) has been enlivened – where there is a need to inform the applicant of information that would be the reason or part of the reason for affirming the delegate’s decision. In this particular case, all matters the applicant complains of as not having been brought to his attention are exempted under s.424A(3) of the Act and, in particular, in that regard, the Independent Country Information.
I am satisfied on a reading of the decision that there was not a failure on the part of the Tribunal to provide procedural fairness as required under the Act. Ground 1 should be dismissed.
Second ground
The second ground of review is that the Tribunal failed to put to the applicant for comment the Independent Country Information.
As I have already alluded to, s.424A(3) excludes such information from the s.424A(1) requirement to inform the applicant. This ground has no substance. In any event, it is also noted that the Tribunal put this information to the applicant for comment during the running of the hearing. Accordingly, the second ground should be dismissed.
Third ground
The third ground is that the Tribunal has ignored relevant considerations in making its decision. In that regard, there are no particulars as to what such relevant considerations might be.
The applicant was unable to provide me with any particulars. Accordingly, that ground is not made out and it should be dismissed.
Amended application
In an amended application filed recently by the applicant he sought to articulate another, apparently on the face of it, five grounds. It is unfair, I believe, to consider the amended application as being one that specifically sets out new grounds. It really amounts to, perhaps, written submissions, as opposed to new grounds and general comments in support of the contention that the Tribunal got it wrong.
There is perhaps one possible new ground in the sense that the applicant, in paragraph 1 of the amended application, refers to paragraph 128 of the Tribunal’s decision. He invites the Court to find that a mistake has been made by the Tribunal in not understanding that a reference to a grandmother is one that should have perhaps been better defined as either a paternal grandmother or a maternal grandmother. Because of the evident confusion, the applicant says, in the mind of the applicant, as the Tribunal found, about the circumstances of the applicant’s sister living with her grandmother, the Tribunal itself got it wrong, when it relied on the applicant’s apparent confusion in support of its finding that he lacked credit. But, as pointed out by the first respondent’s advocate, in paragraph 56 of the Tribunal’s decision, clearly the Tribunal was mindful of the distinction between the paternal and the maternal grandmothers. Indeed, the Tribunal’s findings in paragraph 128 are clearly correct when one goes back to the original application where the contradiction highlighted by the Tribunal is made evident as between the original application and later evidence by the applicant.
In any event, a mistake as to fact does not amount to a jurisdictional error, even if I was to find that such a mistake had been made, which I do not. I also highlight that there are many other reasons why the Tribunal formed a view about the applicant’s credit. The suggestion of error in paragraph 128, even if found to be so, was not fatal to a finding on the question of credit.
In various grounds set out in the amended application, the applicant takes issue with the findings of fact by the Tribunal and contests the evidence relied on by the Tribunal. There is, perhaps, a suggestion that the Tribunal should have made further inquiries. It is quite trite law to say there are only very exceptional circumstances that any obligation is imposed upon a tribunal to make inquiries. This matter is certainly not one of those cases.
Conclusion
In conclusion, I say that the decision of the Tribunal is one that is clearly made after a very thorough consideration of the claims made by the applicant and a very thorough weighing up of the evidence.
The fact-finding process undertaken by the Tribunal is one, in my view, that cannot be faulted. And, indeed, the findings reached in respect of the various claims are cogent and probatively logical. I cannot find any error, let alone a jurisdictional error. Accordingly, the application should be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 23 January 2013
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