MZZCZ v Minister for Immigration

[2013] FCCA 413

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 413

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – no failure to comply with s.430 of the Act as alleged – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.430(c)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Ministerfor Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73
Minister for Aboriginal Affairs and Peko-Wallsend Ltd (1986) 66 ALR 299

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167

NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1996) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

First Applicant: MZZCZ

Second Applicant: MZZDA

Third Applicant: MZZDB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1508 of 2012

Judgment of: Judge Whelan

Hearing date: 21 May 2013

Date of Last Submission: 21 May 2013

Delivered at: Melbourne

Delivered on: 21 May 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Holt

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The First Applicant is appointed as litigation guardian for the Third Applicant.

2. The Application filed on 27 November 2012 is dismissed.

3. The First and Second Applicants are to pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1508 of 2012

MZZCZ

First Applicant

MZZDA

Second Applicant

MZZDB

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 October 2012. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant an application for a Protection visa. The Applicants seek an order that the decision of the Tribunal be quashed and that the Tribunal be directed to determine the application according to law. The First Applicant is a male citizen of the People’s Republic of China. The Second Applicant is a female citizen of the People’s Republic of China and the Third Applicant is their infant child. 

2. On 29 September 2006, the Second Applicant filed an application with the Department of Immigration and Citizenship (“the Department”) for a student visa and arrived in Australia on 5 January 2007. She remained on her student visa until September 2010. On 30 April 2007, the First Applicant filed an application with the Department for a student visa with supporting documents and arrived in Australia on 21 February 2008. He remained on a student visa until March 2010. On 15 November 2011, the First Applicant was located by the Department and given a bridging visa on the basis that he was making arrangements to leave Australia. 

3. On 29 November 2011, the First Applicant filed an application for a protection visa with supporting documentation and the Second and Third Applicants applied as members of his family unit as part of that application. On 12 December 2011, a delegate of the Minister invited the Applicants to attend an interview. On 18 December, the First Applicant lodged a statement in support of his application and the Applicants attended an interview on 12 January 2012. 

4. On 17 January 2012, the delegate made a decision to refuse to grant a protection visa to the Applicants. On 14 February 2012, the First Applicant applied to the Tribunal for a review of the delegate’s decision. There were two hearings before the Tribunal: one on 20 April 2012 and one on 22 May 2012. On both occasions, the Applicants attended and, with the assistance of an interpreter, gave evidence in support of their application. On 24 May 2012, the Applicants provided further documentation in support of their application. 

5. On 16 October 2012, the Tribunal invited the Applicants to comment or respond to information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. On 30 October 2012, the Applicants responded to that invitation. On 31 October 2012, the Tribunal made a decision affirming the delegate’s decision and on 27 November 2012, the Applicants lodged this application for judicial review.

The Tribunal’s findings

1. The Tribunal found that the Applicants were nationals of the People’s Republic of China. The Tribunal accepted that the First and Second Applicants travelled to Australia on student visas, that they met in Australia and their daughter was born here. The Tribunal did not accept that the Applicants genuinely feared harm in China or that they would face any harm upon their return to China. The Tribunal made this finding on the basis of a number of credibility concerns arising from conflicting and contradicting evidence provided in claims made by the First Applicant and the delay in applying for the protection visas. 

2. The Tribunal did not accept the explanations provided by the Applicants at the hearing and in response to the letters sent by the Tribunal pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”). The First Applicant claimed that he is a Christian, that his father was falsely accused and imprisoned and that after serving three years in prison, he divorced his mother and went to Mongolia. He claimed to have been raised by his mother who joined a house church group after the divorce. He claimed his mother ran a small shop where she held church meetings and was detained by the authorities on two occasions.

3. In 2007, she was taken to the local police station and then released and on 20 July 2008, she was sent to a detention centre for seven days, tortured and fined RMB10,000. The First Applicant claimed to have attended church meetings with his mother and to be wanted by the local police. He claims he will be persecuted if he returns to China because of his Christian faith and also because of his mother’s religious activity. The evidence given by the First Applicant was in conflict with the information on the application for his student visa which stated that his parents were living together in 2007, that they both worked in the same factory, and that his father took out a loan for his studies. 

4. The Tribunal found that the First Applicant had fabricated his claims in relation to his parents’ situation and his childhood in China. The Tribunal placed no weight on an untranslated claimed divorce certificate produced by the First Applicant at the second hearing. Further, given the unconvincing and conflicting evidence provided in relation to his claims about his mother’s detention, the Tribunal did not give any weight to the photographs which the First Applicant claimed were of his mother worshipping. 

5. The Tribunal found that its concerns in relation to credibility led it to find it could place no weight on the evidence of the First Applicant and, further, because of its concerns about the issues of delay, it could not place any weight on the evidence of the Second Applicant. On the basis of its findings in relation to the credibility of the Applicants, the Tribunal did not accept the Applicants’ claims. The Tribunal also found that ordinary members of house churches and other unregistered churches were not at risk of serious harm in Fujian. 

6. The Tribunal concluded that there was no real chance of persecution in China if the Applicants returned to China. The Tribunal considered the position of the Third Applicant as a child of unwed parents but considered that any problems she faced could be overcome by the payment of a social compensation fee. 

Grounds

1. The Applicants claim that the Tribunal failed to comply with s.430 of the Act in that it failed to make a finding on a material fact. The Tribunal failed to make a finding as to whether the divorce certificate was genuine or a fraud and did not explain the link between the Applicant’s credibility and the veracity of a document which otherwise appears to be a valid stamped divorce certificate.

2. Further, the Tribunal failed to take into account a relevant consideration which is infected by jurisdictional error. If the divorce certificate in this case is genuine, a matter the Tribunal does not conclusively decide, it would be a relevant factor for the Tribunal to take into consideration. The information and documentation in the student visa file may have been as the Applicant claims falsely prepared by an agent. The basis on which the Tribunal made its adverse credit finding against the Applicant has not been verified. Whether the Applicant’s parents were divorced has an impact upon the Applicant’s claim that his mother was detained for involvement in Christianity and that the Applicant would fear harm as a member of the family unit of his mother.

3. The Applicants have not filed any written submissions in this matter. In oral submissions the First Applicant repeated the substance of his claims and questioned why the Tribunal did not obtain an officially sealed extract of his parent’s divorce certificate. 

The Minister’s submissions

1. The First Respondent submits that the Tribunal did not breach s.430 of the Act. The Tribunal in its reasons clearly sets out:

   a)the decision of the Tribunal on review;

   b)the reasons for the decision;

   c)the findings on any material questions of fact; and

   d)refers to the evidence or any other material on which the findings of fact were based.

2. The Tribunal correctly articulated the legal framework within which the application fell for consideration. It considered the Applicant’s evidence. It considered country information and arrived at conclusions based upon its assessment of the evidence. The Applicant refers to the finding of the Tribunal that his evidence was not credible and that it therefore placed no weight on the divorce certificate provided by the Applicant. The Tribunal put to the Applicant at the hearing and then in a letter sent pursuant to s.424A of the Act that the Applicant’s claims were contradicted by information contained in his student file and information obtained by the Department.

3. The Tribunal did not accept the explanation provided by the Applicant at the hearing and in response to the letter as it did not explain the verified information provided by a third party, the general manager of a company that employed the Applicant’s parents, which contradicted the Applicant’s claims. As such the Tribunal found that the Applicant had fabricated his claims about his parent’s relationship and concluded that it placed no weight on the divorce certificate. 

4. The Tribunal’s finding in relation to the Applicant’s evidence related to the Applicant’s credibility. It is well established that credibility findings are findings of fact and are a matter for the Tribunal.[1] Credibility findings are uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court.[2] The Tribunal was not required to make the Applicant’s case for him nor was it required to uncritically accept any or all of the claims made.[3]

   [1] Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407.

   [2] NADR v Minister for Immigration and Multicultural Affairs [2003] FCAFC 167; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

   [3] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1996) 52 FCR 437.

5. It is in the Tribunal’s discretion what information it relies on and what weight it gives to such information.[4] In making a finding that it placed no weight on the divorce certificate the First Respondent submits that the Tribunal did not fail to take into account a relevant consideration. The information relied upon by the Tribunal in coming to its conclusion was sourced from the Department’s database. The documentation of the Applicant’s parents’ employment was verified by the general manager of their employer. It demonstrated that the Applicant’s parents had both worked at the company and lived at the same address from 2000/2001 until at least 2007 and that the Applicant’s father had taken out a loan for his studies.

   [4] Minister for Aboriginal Affairs and Peko-Wallsend Ltd (1986) 66 ALR 299; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10.

6. This information directly contradicted the Applicant’s claim that his mother was a single parent who worked in a shop and that he had not seen his father since 1998. After considering the Applicant’s explanations the Tribunal concluded that the Applicant had fabricated his claims. On the material before it the Tribunal was unable to be satisfied that the Applicant was a person to whom Australia had protection obligations. Accordingly, the Tribunal had no option but to affirm the delegate’s decision.[5]

   [5] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.

Conclusions

1. An application for judicial review of a decision of the Tribunal is not an application for a review of the merits of the Applicants’ claims. The Applicants must show some jurisdictional error on the part of the Tribunal. The Applicants contend that the Tribunal failed to comply with s.430 of the Act. They appear to rely on that part of s.430 which requires the Tribunal to set out findings on any material question of fact.[6] The Applicants contend that the Tribunal failed to make such a finding as to whether the divorce certificate was genuine or not.

   [6] Migration Act 1958 (Cth), s.430(c).

2. The document which the First Applicant appears to refer to is at page 353 of the Court Book. It is a photograph of a document written in Chinese. The Tribunal dealt with the document at paragraph [74] of its decision.

   The Tribunal noted that these were in Chinese characters and were not helpful unless they could be translated. The interpreter offered to translate and said they just said the People’s Republic of China at the top. She identified two names on the photograph of the inside being [the names of the First Applicant’s parents].[7]

   [7] Court Book at page 398.

3. At paragraph 137 of its decision, the Tribunal dealt with the issue of the contradictions between the Applicant’s claims in support of the protection visa and information on the Department’s file concerning the First Applicant’s application for a student visa.[8]

   [8] Court Book at page 412.

4. The Tribunal rejected the Applicant’s explanation that the material in support of a student visa was prepared by an agent, and went on to say:

   They do not explain why the documentation of applicant one’s parents’ employment was verified by a third party, the general manager of the company. The Tribunal finds that applicant one has fabricated his claims in relation to his parents’ situation and his childhood in China. The documentation and information on his student visa file, which the Tribunal accepts, indicates that his father and mother live together and are comparatively well off. As was put to the applicants at hearing, this necessarily causes the Tribunal to question applicant one’s claims about why his mother became a Christian, her detentions, and his own interest in Christianity and his credibility more generally, as well as the consequences for applicants two and three. These concerns mean that the Tribunal places no weight on the untranslated, claimed divorce certificate.[9]

   [9] Court Book, page 412 at paragraph 137.

5. The Tribunal came to its conclusions based on the evidence in documents which had been verified by a third party. The Applicant had produced a photograph of a document for which no translation was provided and where the original was not sighted by the Tribunal. The Tribunal was within its discretion in determining not to give any weight to the untranslated claimed divorce certificate. It is for an applicant to put before the Tribunal the evidence on which he or she relies. It is a matter for the Tribunal as to how it deals with that evidence. The Tribunal is generally not obliged to conduct an inquiry of its own and the Applicant did not suggest at the time that it should.

6. I am not satisfied that the Tribunal failed to comply with s.430 of the Act when it gave consideration to the purported divorce certificate. It considered that document in the context of all the evidence before it. There was no evidence to suggest that the documents in support of the First Applicant’s student visa had been falsified. To the contrary the checking done by the Department at the time supported their veracity. The Tribunal was under no obligation to investigate the photograph of the document which was purported to be a divorce certificate any further.

7. For these reasons the application by the First Applicant must fail. As the position of the Second and Third Applicants rely on the findings concerning the First Applicant, the application as a whole must fail and the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date:  29 May 2013