MZZAP v Minister for Immigration

[2013] FCCA 2049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZZAP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2049

Catchwords:
MIGRATION – Refugee Review Tribunal decision – no matter of principle – application dismissed.

Applicant: MZZAP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1142 of 2012

Judgment of: Judge Riethmuller

Hearing date: 18 March 2013

Date of Last Submission: 18 March 2013

Delivered at: Melbourne

Delivered on: 18 March 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Whitmore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 13 September 2012 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed at $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1142 of 2012

MZZAP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 24 August 2012.  In that decision the Tribunal affirmed a decision of a delegate made 17 May 2012 refusing the applicant a protection visa. 

2. The applicant came to Australia on 1 April 2008 on a student visa.  He came from the Peoples Republic of China.

3. The applicant applied for a protection visa on 18 January 2012.  The applicant claims that he fears persecution in China because he is a Christian and worshipped in home churches, not churches registered by the Chinese Government.  He says that he was arrested in 2007.  He said that after he came to Australia he practised his faith at a local church in Melbourne.

4. The delegate’s decision was adverse to the applicant.  The delegate did not accept his claims as credible or genuine.

Ground 2

1. The applicant raises issues with respect to the nature of the hearing before the delegate and whether this inappropriately affected the Tribunal.  The Tribunal clearly stated:

   28. The Tribunal places no weight on the question of whether or not the applicant attended an interview with the Department, and draws no inferences and makes no findings adverse to the applicant in this regard.

2. It is clear from the Tribunal’s reasons that they did not place weight on whether or not the applicant attended before the delegate.  A reading of the Tribunal’s decision as a whole shows that the Tribunal heard the matter afresh and formed its own views.

3. For these reasons I am not persuaded that the applicant can succeed on ground 2 of his application.

Ground 1

1. The first ground of his application challenges the factual findings of the Tribunal.  That ground is as follows:

   1. RRT did not observe procedural fairness and has constituted bias in reaching the decision in Paragraph 85, stating that “The Tribunal finds that the applicant never attended Christian meetings at any place, he was never arrested because of attendance at such a meeting, he was not detained by police in relation to being a Christian and has no record with authorities in this regard.” Also in paragraph 81, the tribunal member stated that: “It finds that he has not, and was not at any time, a genuine practicing Christian of any kinds. It finds that he has not been, and would not be, perceived to be a Christian by the authorities of the PRC, nor that he will do anything to present himself as a Christian to those authorities.” The tribunal member has constituted juridical error in making such subjective findings.

2. Significantly the Tribunal made findings against the applicant both with respect to his claims to being a Christian and his claim of being arrested.  With respect to the applicant being a Christian the Tribunal said:

   81. The Tribunal finds that the applicant has not given a credible account of his claim to be a Christian. It finds that he is not, and was not at any time, a genuine practicing Christian of any kind. It finds that he has not been, and would not be, perceived to be a Christian by the authorities of the PRC, nor that he will do anything to present himself as a Christian to those authorities.

3. The Tribunal placed weight on the applicant’s inability to give details of the church he claims to attend in Melbourne noting in their reasons:

   56. The applicant was asked if he attends church in Australia. He said he did, in Coburg. He was asked for the address. He said he did not know as his friend would drive him there. He said the church was being decorated, and gatherings would take place in members’ homes. He was asked the name of the church. He said he did not know as they were building a new church. He was asked if he had documents from church members or other evidence of him having attended church in Australia. He did not.

4. The Tribunal also noted that the applicant believed that Easter fell in May each year.  Easter never falls in May, save in the Russian or Greek Orthodox traditions.

5. It is for the Tribunal to determine whether or not to believe a person.  The Tribunal did not believe the applicant. There was material before the Tribunal upon which a reasonable Tribunal could reach the conclusion that it did not believe the applicant.

6. Similarly with respect to the claim the applicant was arrested the Tribunal said:

   86. The applicant admitted that he had no trouble obtaining his Chinese passport or exiting China. The Tribunal does not accept that this is because he obtained his passport in Fuqing, where authorities may not have known of his arrest and detention by police. It finds that this is because he had never been arrested, and never come to the adverse attention of the Chinese authorities in any location.

7. The Tribunal rejected the applicant’s claim about this incident discussing it in some detail at paragraphs 82 to 85, which provide:

   82. The applicant claims to have been arrested by police on 8 October 2007 while at a Christian meeting. The Tribunal put to him concerns it had regarding the credibility of his evidence of this event. It was put that he was unable to give independent evidence without prompting as to a key feature of this incident: namely that in his written application he claimed to have been the victim of assault and battery at the hands of police. He was asked if he was mistreated by police and said that he was not. When this portion of his statement was read, he proceeded to attempt to incorporate it into the version of the event he had given at hearing. Having changed his view that he was physically abused, he seemed to be unclear as to why he was assaulted. His first explanation was that he was hit because he refused to sit down. When it was pointed out that his statement suggested he was hit because he refused to provide information to police, he added to his explanation by including a second assault which occurred later and was, he said, because he refused to answer questions.

   83. The Tribunal considers that if the applicant had been the victim of assault or battery perpetrated by the police during this claimed arrest incident, he would have recalled that abuse when asked if he was mistreated by police. The Tribunal finds that the reason he did not recall that physical abuse was because it did not occur, and that his subsequent explanations were designed to bring his oral testimony into line with his statement. The Tribunal considers that the claim of physical abuse by police is central to the claimed arrest event itself. The Tribunal rejects his claim to have been the victim of assault or battery. In doing so, the Tribunal considers that his credibility regarding the entire event is called into question.

   84. The veracity of the arrest claimed by the applicant largely depends on his claim to be Christian. He claims to have been at a Christian meeting at the time. He claims that he was only released after signing a statement to the effect that he would not engage in such practices again.

   85. The Tribunal has already found that the applicant was not and is not a genuine Christian who has not engaged in Christian practice at any time. For these reasons, and having rejected a central feature of the claimed event (namely, his physical abuse by police), the Tribunal finds that this event, in its entirety, did not occur. The Tribunal finds that the applicant never attended Christian meetings at any place, he was never arrested because of attendance at such a meeting, he was not detained by police in relation to being a Christian, and he has no record with authorities in this regard.  

8. On the material before the Tribunal it appears to me that it was open to the Tribunal to form the view that they did not believe the applicant.  Nothing has been pointed to by the applicant that shows any lack of procedural fairness.  He was given an opportunity to appear before the tribunal who carefully considered his evidence. The Tribunal also wrote seeking further information.  

9. In the circumstances the applicant has not established a ground for judicial review of this decision of the Tribunal, I therefore dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date:  2 December 2013