MZZEE v Minister for Immigration

[2013] FCCA 352

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 352

Catchwords:

MIGRATION – Judicial review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visas – adverse credibility findings by the Tribunal in relation to the First Applicant – no jurisdictional error – Application dismissed.

Legislation: 

Migration Act 1958 (Cth), ss.36(2), 65, 420, 422B(3), 424A, 427

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration v Li [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12
Minister for Immigration and Citizenship v SZGUR(2011) 273 ALR 223
SZKJV v Minister for Immigration and Citizenship[2011] FCA 80
Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324

First Applicant: MZZEE

Second Applicant: MZZEF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1617 of 2012

Judgment of: Judge Hartnett

Hearing date: 7 May 2013

Date of Last Submission: 13 May 2013

Delivered at: Melbourne

Delivered on: 30 May 2013

REPRESENTATION

The First Applicant: In Person

The Second Applicant: No Appearance

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Clayton Utz Lawyers

ORDERS

1. The Application filed 17 December 2012 is dismissed.

2. The First Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1617 of 2012

MZZEE

First Applicant

MZZEF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Second Respondent to affirm a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The application filed 17 December 2012 sets out five grounds as follows:-

   “1. The Refugee Review Tribunal did not act in a fair and just manner in the handling of my review application. It is in breach of section 420, 422B(3), 424A and 427 of the Migration Act 1958.

   2. The Refugee Review Tribunal demanded me to do DNA testing for the relationship between me and my son, XUE Xing who was included in my application for protection. The tribunal claimed that the department had suspicion about my relationship with my other son in China. However, the department did not suspect my relationship with XUE Xing. Both my son and I thought that the request for DNA testing by the tribunal was to put aside the original decision by the department for my mother. However, it needed to exclude me if I was proven to be not her son. Otherwise, I could not think of any other reason why the tribunal needed to demand this test from me other than to humiliate or to intimidate me. This was excessive and not in compliance with the power given under the Migration Act 1958 for the review of refugee applications.

   3. The tribunal deliberately or unnecessarily delayed the process of my application after it commenced the assessment in early March 2010 almost immediately after my review application was lodged on 22.2.2010. It took 2 years and 9 months to advise that it did not accept my claims with most of the reasons that had been asked and answered during the first and second hearing on 19.3.2010 and 26.3.2010. The tribunal could have made the decision earlier as there was no need to wait for 2 years and 9 months. The lengthy delay is in contrary to the requirement for the tribunal to act timely and fairly as stated in section 420 of the migration act 1958.

   4. The tribunal erred in law by linking my daughter’s response to the Department in relation to her own case because my daughter was not a party to the review application before the tribunal. The tribunal subsequently used irrelevant materials in its assessment of my application. It was not constituted with this power in the migration act 1958.

   5. The tribunal did not provide me with all the country information that were quoted in its decision for my comments. It was in breach of section 424A of the Migration Act 1958.”

2. The First Respondent opposes the application on the ground that no jurisdictional error attends the decision of the Refugee Review Tribunal (‘the Tribunal’).

3. The First Applicant relies upon an Affidavit sworn by her on 16 December 2012.  She has otherwise filed no submissions.  The First Respondent relies upon a Court Book and Supplementary Court Book filed and Written Submissions filed 30 April 2013 and 13 May 2013, the latter being directed to the High Court’s recent judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18. That judgment was handed down the day after the hearing in this matter and was anticipated at the hearing. Both parties were given the opportunity to provide written submissions in respect of it, if they chose. In essence, the High Court’s decision supports the argument advanced by the First Respondent in answer to grounds 1 and 3 of the Applicants’ Application on the hearing of this matter. That argument was to the effect that s.420 and s.422B(3) of the Act do not go to the jurisdiction of the Tribunal, such that any assertion that the Tribunal was not “quick” in making its decision (s.420(1) of the Act) or that by reason of delay the Tribunal did not act in a way that was “fair and just” (s.422B(3) of the Act), would not of itself impugn the validity of the Tribunal’s decision. In support of those submissions, the First Respondent relied on the principles expounded by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427, which in turn was founded on the principles earlier expounded by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and the Federal Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324.

4. In Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427, the Full Court concluded that provisions such as those found in s.420 of the Act are “facultative not restrictive”, and that s.420 of the Act “does not amount to a requirement that the Tribunal observe a particular procedure in connection with the making of a particular decision for the purposes of Div 4” (at paragraph 14). Likewise, the Full Court concluded that s.422B(3) of the Act “should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Div 4” (at paragraph 15).

Claims of Applicants

1. The applicants’ claims were as accurately summarised in the First Respondent’s submissions and are as follows:-

   (a)the applicants are both Chinese nationals. The First Applicant (the mother) is the mother of the Second Applicant (the son). The son arrived in Australia on 9 January 2008 on a student visa. The mother followed shortly thereafter, on 18 February 2008, on a student guardian visa;

   (b)the mother made an application for a protection visa on 12 October 2009. She claimed to fear persecution in China on the basis of her Catholicism. The son made no independent claim to protection, and relied only on his membership of the same family unit as his mother;

   (c)the mother also had a husband, a daughter and another, younger son. The husband and the younger son were in China. The daughter was in Australia on a student visa. The mother had, before making an application for a protection visa, returned to China in April 2008 and stayed for about a month.  The mother alleged that the reason for her visit was that she was worried about the safety of her husband and younger son. She claimed that during this visit police raided an “underground church” while she and her husband were attending, but that they had managed to escape; and

   (d)the mother also claimed that, while she had been in Australia her husband had suffered persecution from Chinese authorities by reason of his Catholicism and had since disappeared, his whereabouts unknown.  That allegation was central to the mother’s own claim to be a refugee.

2. In its findings and reasons and at paragraph 124 therein, the Tribunal summarised those claims as follows:-

   “124. The primary applicant claims to fear persecution in China on the grounds of religion, as a Roman Catholic. She claims that she cannot practice her faith safely, without the risk of persecution. She claims that Fujian police arrested her husband, and almost managed to catch her, during a raid on a Christmas Eve mass in 2000. She claims that in Fujian, Beijing and later in Xinjiang, she and her family had to exercise great caution in their religious practice. She claims that, during a visit to Xinjiang in April/May 2009, she narrowly avoided arrest during another police raid on a Catholic gathering. The applicant claims that, following her return to Australia in May 2009, her husband was arrested in September 2009 and his whereabouts remain unknown. More recently, the applicant claims that her husband has had secret contact with her daughter, indicating that he is in trouble with the police and cannot reveal his whereabouts. The applicant fears that the authorities may arrest, detain and mistreat her, too, and that she will be unable to practice her faith in safety. She claims that the situation in Xinjian, Fujian and elsewhere in China is the same and that, in any event, she will not be permitted to change her household registration from Xinjian province.”

3. The Tribunal conducted interviews and formal hearings with the applicants on 19 March 2010, 26 March 2010 and, over two years later, on 10 April 2012.  On 28 March 2012 – after the first two hearings, and before the third and final hearing – the Tribunal sent a letter to the applicants inviting them to comment or respond to information on a range of issues and potentially adverse information, including country information regarding the prevalence of document fraud in China.  The Tribunal referred to serious concerns it had about the applicants’ claims and evidence. The applicants responded by letter dated 9 April 2012.

4. The mother and son each gave evidence at each of the hearings. The Tribunal also telephoned the daughter at the hearings on 26 March 2010 and 10 April 2012 and took evidence from her.  However the Tribunal decided not to draw any “adverse inferences” from the daughter’s evidence since the daughter had on both occasions given evidence “without notice”.

5. In addition to their oral evidence and written statements, the applicants provided a number of other documents that purportedly corroborated the mother’s claim, including (among others): certificates of baptism; letters from various clerical figures in the Australian and Chinese catholic communities; photographs; a letter from the daughter in relation to a notice from the Department of Immigration and Citizenship of its intention to cancel her student visa; and the results of a DNA test proving the maternal relationship between the mother and the son.

The decision

1. The Tribunal affirmed the decision not to grant the applicants’ Protection (Class XA) visas by decision dated 23 November 2012. The Tribunal found that as neither of the applicants met the criteria for the grant of a protection visa under s.36(2)(a) or s.36(2)(aa) of the Act, neither met the requirements of s.36(2)(b) or (c) of the Act, as a member of the same family unit of a non-citizen who holds a protection visa.

2. The Tribunal formed an adverse view of the mother’s credibility. It said in paragraphs 167 to 170 inclusive of its decision:-

   “167. The Tribunal has considered the applicant’s claims, and all of the evidence submitted in this case. The concerns set out above – in paragraphs 130 to 164 – lead the Tribunal to conclude that the applicant mother is not a Catholic, but rather has fabricated her claims in order to secure permanent residency in Australia. The Tribunal concludes, particularly having regard to her travel to and from China, and the now-rejected claims that her husband and younger son remain out of contact, that she is not a credible witness, and that the evidence of the application son and the daughter are also unreliable.

   168. The Tribunal does not accept that the applicant grew up in a Catholic family; that her husband is Catholic; that other family members are Catholic; that the family has practiced religion in a secretive way in order to avoid harassment or more serious mistreatment (such as being unable to attend church services, or having to hold family services); that the applicant’s husband was arrested, detained and fined during a police raid on a church gathering in Fujian in 2000; that the applicant narrowly escaped arrest on that occasion; that any such police action influenced their decision to move to Xinjiang and open a business there; that there was any police crackdown on churches in early 2009 that influenced the applicant’s decision to return from Australia to Xinjiang for 6 weeks; that she and her husband narrowly avoided arrest in May 2009, when police raided a church gathering and warned people to stop holding meetings; that her husband was arrested in September 2009 during a mass that he had organised at a priest’s home; that he has disappeared or that she has not heard from him since that incident; that her younger son has either disappeared or moved to live with relatives also living in Xinjiang, as a result of the arrest; that the husband has made contact only with her daughter, signalling that he is in police trouble; or that she has any fears arising from religious belief that have influenced her travel within China or her efforts to remain in Australia. The Tribunal finds, in other words, that all of the applicant’s claims regarding her Catholicism and the adverse consequences for her and her family members are without foundation in truth.

   169. The material does not suggest that the applicant mother fears persecution for any other reason.

   170. Having considered the claims and evidence, individually and cumulatively, the Tribunal finds that the applicant is not a Catholic; that neither she nor other family members have experienced past persecution for any reason related to religion; and that she will not be perceived as a Christian if she returns to China. Therefore, [it] also finds that she will not be motivated to engage in any Catholic or other religious activities if she returns to China, and will therefore not be at risk of persecution and/or be required to modify her conduct so as to avoid the risk of persecution.”

Consideration

1. The applicants’ complaint that the Tribunal unlawfully demanded that the mother obtain a DNA test to verify her relationship with her son is without foundation. As set out in its Reasons at paragraph 130:-

   “130. The Tribunal was initially concerned as to whether the applicants are in fact mother and son. This arose in part because they disclosed only during the first hearing, when the Tribunal signalled its interest in comparing their evidence about their religious practice at home, that they had in fact lived in separate provinces in China. Their accounts of the applicant mother’s visits to Sydney, and their living arrangements in Melbourne, added to the Tribunal’s doubts, as they were vague and evasive. The Tribunal now accepts, on the basis of the DNA report that the applicants submitted, that they are indeed mother and son.”

   Because of this initial concern the Tribunal invited the applicants to consider providing a DNA test in order to confirm the relationship between the mother and the son; and the applicants indicated to the Tribunal that they wished to provide DNA evidence, and subsequently did so. The Tribunal did not invite the applicants to provide the evidence in order to “humiliate or intimidate” the applicants.  There is no jurisdictional error in the Tribunal inviting the applicants to provide evidence in response to an expression of its concerns.

2. The applicants’ complaint that the Tribunal “errer in law” and used “irrelevant materials” by “linking [the mother’s] daughter’s response to the Department in relation to her own case” is also made without any proper basis. The daughter’s evidence, which went to the whereabouts of her father and his safety in China, was clearly relevant and probative of the issues considered by the Tribunal on the hearing of the applicants’ Application. Nothing in the Act precluded the Tribunal from considering this evidence. The Tribunal made factual findings open to it on the evidence before it. This evidence was that of the applicants. The Tribunal rejected the applicants’ claims and made adverse credibility findings based on the contradictory nature of the evidence before it. In respect of the fate of the Applicant mother’s husband and younger son, which involved material contained in a response to information (from the applicants) about the Applicant mother’s daughter, the Tribunal found the following:-

   “149. The fate of the applicant’s husband and younger son: At the first hearing, the Tribunal heard from the applicants that their husband (father) had not been heard from since September 2009, and that the applicant mother had later heard from a friend that the police had captured him after raiding a meeting where a Fujian priest was addressing Catholics in Urumqi. The applicant mother claimed to have learned about this on 20 September 2009. (Curiously, this was just 5 days before the registration of the family’s baptism certificates in Fujian.)

   150. This is central to the applicant’s claims. She emphasized that, irrespective of any past problems that she and her family may have experienced, it is his continued disappearance, above all, that causes her to fear arrest, detention and other mistreatment if she returns to China.

   151. The Tribunal found the applicant’s evidence at hearing about the disappearance disquieting. Her account of what efforts she had made to locate her husband, the whereabouts of her younger son and other peripheral details was uncertain and changeable. In the Tribunal’s view, this uncertainty was not attributable to any confusion or panic, but rather that the applicant mother had not anticipated and turned her mind to the practical issues that would arise if one’s partner had in fact disappeared.

   152. As noted in the Tribunal’s later s.424A letter and discussed at interview and hearing, the applicant’s daughter, in her application to the Migration Review Tribunal for review of the cancellation of her student visa, relied on a bank statement dated 15 March 2010, which confirmed that the applicant’s husband secured a loan for her studies on that day. This was just days before the Tribunal hearing in which the applicants stated that they still had not heard from the husband. Furthermore, the daughter told the MRT on 10 November 2011 that the husband and younger son had operated the family’s petrol station through to the end of 2009, when it was closed for renovation, and that he continues to operate it (at least to the time of her MRT hearing).

   153. The Tribunal has considered the applicants’ written and oral comments to this information, in which they claim that the daughter in Australia received a telephone call from the husband, who had kept track of when she would be needing to produce further documentation for her student visa, had received financial documents in May 2010 based on previous income from the petrol station, and who contacted her again in late 2011. Critically, they claim that the father instructed the daughter not to inform anyone else, including the applicants. The daughter obeyed him. The Tribunal finds it highly coincidental that the applicant’s husband – despite his claimed disappearance or, as later suggested, some other state of danger as a result of his trouble with the police – managed to keep track of when his daughter needed financial documents for her Australian student visa application and, moreover, managed to get to a bank to make all the arrangements. More significantly, the Tribunal finds the suggestion that the husband would tend to these matters, yet leave the applicants uncertain as to whether he was even alive, unbelievable. It rejects the scenario that the applicants presented to the Tribunal, and which forms a central part of their protection visa application.

   154. The Tribunal finds that the applicants have provided false information about the whereabouts of the husband and the younger son, and that both have been present and contactable in China throughout the applicants’ stay in Australia. This casts serious doubt on the entirety of their claims for protection.”

   Clearly, the Tribunal concluded that the applicants were not credible witnesses in respect of the evidence they gave to the Tribunal on this particular issue. Such a conclusion was open to it. 

1. Section 424A of the Act is as follows:-

   “(1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.”

2. The Tribunal was not obliged under the above section of the Act to provide to the applicants country information that indicated that fraudulent documents were common place in China and generally easily obtained. Nevertheless, the Tribunal did give the applicants notice of such country information in its “Invitation to comment on or respond to information” correspondence of 28 March 2012. There was no breach of s.424A of the Act by the Tribunal.

3. The Tribunal has breached no provisions of the Act as alleged by the applicants. Section 420 of the Act is as follows:-

   “(1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   (2)  The Tribunal, in reviewing a decision:

   (a)  is not bound by technicalities, legal forms or rules of evidence; and

   (b)  must act according to substantial justice and the merits of the case.”

   Section 422B(3) of the Act is as follows:-

   “(3)  In applying this Division, the Tribunal must act in a way that is fair and just.”

   Section 427 of the Act is as follows:-

   “(1)  For the purpose of the review of a decision, the Tribunal may:

   (a)  take evidence on oath or affirmation; or

   (b)  adjourn the review from time to time; or

   (c)  subject to sections 438 and 440, give information to the applicant and to the Secretary; or

   (d)  require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

   (2)  The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.

   (3)  Subject to subsection (4), the Tribunal in relation to a review may:

   (a)  summon a person to appear before the Tribunal to give evidence; and

   (b)  summon a person to produce to the Tribunal such documents as are referred to in the summons; and

   (c)  require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

   (d)  administer an oath or affirmation to a person so appearing.

   (4)  The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

   (5)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.

   (6)  A person appearing before the Tribunal to give evidence is not entitled:

   (a)  to be represented before the Tribunal by any other person; or

   (b)  to examine or cross-examine any other person appearing before the Tribunal to give evidence.

   (7)  If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.”

4. There is no doubt that the Tribunal took a long time to determine the review application of the applicants. The fact of that delay of itself has not rendered the Tribunal’s decision affected by jurisdictional error. As noted in paragraph 4 of these Reasons, s.420 of the Act does not go to jurisdiction. Its provisions are “intended to be facultative, not restrictive” (Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at paragraph 14). Nevertheless, in particular cases an extraordinarily long delay can give rise to jurisdictional error as was determined by the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171. In that case, the Tribunal held oral hearings in 1998 and 2001, and handed down in decision in 2003. Although, as was said by Gleeson CJ at paragraph 5 of that decision:-

   “The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare”

   the Court determined that jurisdiction error was made out in respect of the Tribunal decision.

5. In SZKJV v Minister for Immigration and Citizenship[2011] FCA 80 Reeves J considered whether the Tribunal in that case had committed jurisdictional error of the kind identified in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171. He determined it had not done so. The applicant’s case had been that “a delay of eight months had occurred between the completion of the adjourned hearing on 26 February 2009 and the delivery of the Tribunal's decision on 27 October 2009 which delay was inordinate; that the demeanour and credibility of the appellant and her supporting witnesses was central to the Tribunal's decision; and that there was no explanation in the Tribunal's reasons, or elsewhere, for the eight months delay in delivering its decision” (at paragraph 13). Reeves J examined the High Court decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171 and considered “the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error (at paragraph 33)”.

6. In the particular circumstances of this case, although there was a significant delay between the first hearing and the handing down of the decision, it cannot be found that there was jurisdictional error on the part of the Tribunal in the form of a denial of procedural fairness. The applicants’ credibility was in issue and the Applicant mother’s demeanour played a small part in that, but the Tribunal’s assessment of the applicants’ claims was not based solely or significantly on demeanour and it did not find the applicants evidence “simply implausible”. In detailed and reasoned explanations for its findings the Tribunal set out the basis of its fact finding which lead it to conclude the applicants were not credible witnesses. Each issue was carefully examined and the applicants offered an opportunity to comment on adverse information. Those detailed reasons are in small part set out in paragraph 13 of these Reasons by way of example. The Tribunal’s decision was based on its findings as to the mother’s minimal knowledge of Catholicism and the paucity of evidence of her having been a practicing Catholic in China, together with her delay in applying for a protection visa and the inconsistent evidence given as to her husband’s activities and whereabouts in China. The Tribunal explained why it rejected critical parts of the evidence and did so in clear and detailed fashion.  There has been no breach of natural justice and no jurisdictional error.

7. Finally, s.427 of the Act imposes no duty to inquire on the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12; Minister for Immigration and Citizenship v SZGUR(2011) 273 ALR 223). The applicants’ unspecified assertions in this regard must fail.

8. The application is dismissed and costs will follow the event.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.

Date:  30 May 2013