MZZBE v Minister for Immigration

[2013] FCCA 399

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 399

Catchwords:
MIGRATION – Application for judicial review – no meaningful grounds set out in application or applicant’s oral submissions – no discernible jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZBE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1210 of 2012

Judgment of: Judge Burchardt

Hearing date: 2 April 2013

Date of Last Submission: 2 April 2013

Delivered at: Melbourne

Delivered on: 3 June 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. That the application be dismissed.

2. That the Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1210 of 2012

MZZBE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 31 August 2012.  The Tribunal affirmed a decision of a delegate not to grant the applicant a Protection (Class XA) visa.  The application lists as grounds the following:

   “1.I’ve been treated unfairly by RRT, as RRT didn’t think about the persecution I will suffer if I go back to China.

   2.After joining the church, I mostly communicated with other members, and I understanding the true meaning of God.  However, RRT believes that I am lying, as a Christian, I wouldn’t lie.

   3.Regarding Paragraph 124 (page 19 of 20), the reason why I didn’t apply for refugee visa when I was holding the student visa was that I didn’t know I was eligible to do so.”

2. The applicant’s affidavit, filed contemporaneously with the application on 28 September 2012, relevantly gives the applicant’s date of birth and place of birth in Heilongjiang Province, China.  It deposes that she arrived in Australia on 25 December 2010, and asserts without further elaboration, “I fear to return to China.”

3. Orders were made by consent on 7 November 2012 by Registrar Allaway.  The Registrar inter alia ordered the applicant to file and serve by 5 December 2012 any amended application and any affidavits.  No such matters were filed.  The first respondent’s outline of submissions was filed on 26 March 2012.  Those written submissions correctly in my view record the applicant’s claims as being a fear of persecution for reasons of her Christianity and membership of an underground church.

4. The written outline of submissions paraphrases the claim and, in particular, the introduction of the applicant to the church by her good friend, “Sister Lin”, and the developing nature of her claimed faith, and the claimed consequences thereof, which included being interrogated, beaten, and then released.  The written submission notes that the applicant arrived on 25 December 2010 on a student visa, and applied for a protection visa on 11 November 2011.

5. The applicant’s claims were considered by a delegate following an interview with the applicant.  The delegate refused to grant the applicant a protection visa because the delegate did not accept that the applicant was a Christian and accordingly did not accept her consequential claims as to the results of that professed faith.  The delegate found that the applicant had failed to demonstrate even a basic knowledge of Christianity and that her claims of being arrested and detained were implausible.  The delegate also noted the substantial delay in the application for a protection visa.

6. The first respondent’s written outline goes on to record the proceedings before the Tribunal.  The applicant attended a hearing on 3 August 2012.  The written outline records the comprehensive adverse credibility findings made by the Tribunal and the Tribunal’s conclusion that the visa protection claims had been manufactured as a means to enable the applicant to remain in Australia.  In summary, the written outline records the fact that the Tribunal failed to believe the applicant’s evidence.  Accordingly, the applicant was not granted a protection visa.

7. The written submissions go on to characterise the three matters set out in the application as doing no more than seeking impermissible merits review of the Tribunal’s decision.  Reference is made to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282 in this regard. In circumstances where the applicant has added nothing by way of any amended application and had nothing material to say before the Court (her only remark was that she is fearful of going back to China), the Court is left with but little to go on.

8. In my view, the Tribunal’s decision meets the characterisation put by the Minister’s counsel.  The fact is that the Tribunal set out the application for review and the relevant law.  No criticism in my view can be made of the way in which the Tribunal did so.  The Tribunal went on to consider at paragraphs 19 and following the claims and evidence.  Those matters are in my view accurately distilled from the materials before the Tribunal, and correctly characterised the way the applicant put her claim.

9. The Tribunal noted a number of inconsistencies in the answers given to it at the hearing.  I note that at paragraphs 48 and following, the Tribunal records the questions asked of the applicant as to her understanding of Christianity.  In my view it is fair to say that the Tribunal’s conclusion that the applicant had only the most basic appreciation of Christian dogma and Christianity generally was entirely open to it and, indeed, on the materials, inevitable.

10. The Tribunal, having arrived at a number of seriously adverse findings as to the applicant’s credit, found that the applicant simply was not a Christian, and had not faced persecution as a result.  Although this puts the matter at a level of generality, it is sufficient in my view to say that the Tribunal’s conclusions were eminently open to it upon the materials that were presented.  I see nothing to suggest that the Tribunal failed to give proper and serious consideration to the applicant’s claims, as articulated.

11. In summary, it is sufficient to say that the applicant’s application does not give rise to anything other than merits review, which is not permissible.  I have myself considered the Tribunal’s reasons for decision independently.  I do not see that there are any other matters which the applicant could articulate as giving rise to jurisdictional error on the part of the Tribunal.  It follows that the application must be dismissed with costs, and I will make orders to that effect.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  3 June 2013