MZZGT v Minister for Immigration

[2013] FCCA 1147

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGT & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1147

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), Part 3, Division 1
Migration Act 1958 (Cth), s.424A
1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1
Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant: MZZGT

Second Applicant: MZZGU

Third Applicant: MZZGV

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 231 of 2013

Judgment of: Judge Hartnett

Hearing date: 6 August 2013

Delivered at: Melbourne

Delivered on: 23 August 2013

REPRESENTATION

The First Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The Application filed 26 February 2013 is dismissed.

3. The First Applicant pay the First Respondent’s cost fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 231 of 2013

MZZGT

First Applicant

MZZGU

Second Applicant

MZZGV

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an Application filed 26 February 2013, the applicants seek judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 1 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the applicants Protection (Class XA) Subclass 866 visas.  The grounds of the application are as set out in the attachment to the Application and are as follows:-

“Orders sought by Applicant

1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

3, RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing (sic) if we return to origin.

4, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

5, RRT treat my case unfair and unreasonable and did not consider that I will be punished by the Chinese government due to family planning issue

The Grounds of the Application are:

1, I am a Chinese student and have faithful and committed Christian faith.  I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin.  People associated to local church activity are also adversely affected.

2, I have been actively involved in church actives in Australia.  My action and religious performance has been evidenced by church elder with reference.

3, I can’t give up my commitment of faith or backward my religious practice into a secret mood in China.  The fact tells me that there is no real religious freedom in China to allow me legally enjoys the same approach and proselytizing as I have in Australia.  Any activation of religion including Christian proselytizing will be treated illegal and underground activities are bound to be suppressed by government.”

1. The First Respondent opposes the application and seeks its dismissal on the grounds that the Tribunal decision is not affected by jurisdictional error.  On 3 April 2013, Registrar Allaway made procedural orders which included that the applicants file and serve any amended application, a supplementary court book and written submissions.  No amended application, supplementary court book or written submissions have been filed by the applicants.

History

1. The applicants are citizens of the Peoples Republic of China. The First and Second Applicant arrived in Australia in 2008 on Student (Temporary) (Class TU) Subclass 571 visas.  Those Student visas were valid until 15 March 2010. The First and Second Applicants then remained unlawful in Australia from 16 March 2010 until the lodging of the Application for a Protection (Class XA) Subclass 866 visa on 23 December 2011 at which time they were granted Bridging visas C.  The First Applicant lodged an Application for a Protection (Class XA) Subclass 866 visa on 23 December 2011 on the basis of a fear of persecution due to her Christianity.  The Second Applicant (the First Applicant’s partner and father of the Third Applicant), and the Third Applicant (the First Applicant’s child) did not submit claims of their own.  They are members of the family unit included in the First Applicant’s application. The Third Applicant, the parties’ son, was born in Australia on 28 March 2012. 

2. On 9 May 2012, the First Applicant attended an interview with the delegate and, on 31 May 2012, the delegate notified the First Applicant by letter that her application for a Protection (Class XA) Subclass 866 visa had been refused.  On 27 June 2012, the First Applicant lodged an application to the Tribunal seeking review of the delegate’s decision to refuse her application for a Protection (Class XA) Subclass 866 visa.  On 7 August 2012, the Tribunal invited the applicants to appear before it and to give evidence and present arguments. On 10 September 2012, the First and Second Applicants attended a Tribunal hearing with the assistance of an interpreter in the Mandarin and English languages. 

3. Following that hearing, and by s.424A of the Migration Act 1958 (Cth) (‘the Act’) letter dated 21 September 2012, the First and Second Applicants were invited to comment on or respond to information held by the Tribunal to which they responded in writing on 12 October 2012. The information set out in the invitation to comment by the Tribunal was said by the Tribunal to be relevant to the review, because it might have lead the Tribunal to conclude that the First Applicant had not been truthful in her evidence that she had lost contact with her mother and that may have lead the Tribunal to find that she moved to Sydney in order to get financial and emotional assistance from her mother around the time of her son’s birth. The Tribunal noted that could lead it to question the credibility of the First Applicant, and therefore not accept her claims that her parents were unable to assist with the payment of any social compensation fee that she and the Second Applicant might have to pay for their son. The Tribunal noted also that it could lead the Tribunal to question her credibility more generally in relation to other of her claims and may lead the Tribunal not to accept those claims. The Tribunal set out the particulars of the information which it considered, subject to the First Applicant’s comments or response, would be the reason, or a part of the reason, for affirming the decisions under review. The Tribunal also provided information relevant to the review in respect of the evidence of the Second Applicant that information deriving from the Student visa application of 16 July 2007 of the Second Applicant, wherein he provided contradictory evidence as to his father’s financial position. The Tribunal noted that:-

   “This information is relevant to the review because it may lead the Tribunal to conclude that (MZZGU’s) father has regular income from his animal farm and an excavator and that his income would be enough to pay any social compensation fee that (MZZGT) and (MZZGU) might have to pay for (MZZGV). This may also lead the Tribunal to conclude that (MZZGU) was not truthful in his evidence that his father works as a construction worker and this may lead the Tribunal to not accept his claim that his father would not be able to afford to pay the social compensation fee. This could also lead the Tribunal to question his credibility more generally in relation to his other claims, and this may lead the Tribunal not to accept those claims.”

4. By further s.424A of the Act letter dated 20 November 2012, the First Applicant was invited to comment on or respond to further information held by the Tribunal which it considered, subject to the First Applicant’s comments or responses, to be the reason or part of the reason, for affirming the decisions under review. The First Applicant responded in writing on 12 December 2012.

5. On 1 February 2013, the Tribunal affirmed the delegate’s decision not to grant the applicants’ Protection (Class XA) Subclass 866 visas.  The First Applicant had given evidence and made submissions on two bases on which she asserted that she had a well-founded fear of persecution for a reason as set out in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’) or that there were substantial grounds for believing that as a necessary and foreseeable consequence of her being returned to China, there was a real risk that she would suffer significant harm. Those two bases were:-

   a)firstly, her practice of the Christian religion; and

   b)secondly, her child (the Third Applicant) being born out of wedlock.

   Having assessed the First and Second Applicants’ evidence the Tribunal did not accept that the First and Second Applicants were Christian nor that they, or either of them, had suffered or would suffer the persecution claimed.  Further, that the status of their child being born out of wedlock would not lead to persecution of a kind contemplated by the Refugees Convention or other significant harm.  The Tribunal found in respect of the social compensation fee that the Applicants claimed an inability to pay and in relation to which they would be treated in a discriminatory manner that:-

   “222. The Tribunal has already found that the third applicant’s parents can pay the social compensation fee by themselves; and further and in any event that the primary applicant’s father can pay the fee for them. The Tribunal also notes that the fee can be paid over a three year period in instalments. Therefore, the Tribunal does not accept the third applicant’s claims that he will not be able to be registered and that he will become a “black child”.

   223. Further and in any event, the Tribunal concludes that the applicant parents will be subject to the same requirements to pay the social compensation fees as any other person who is in breach of Article 39 of the Fujian Family Planning Regulations.

   224. The Tribunal finds that the legislation applies to the Chinese population generally. Penalties are imposed not only one (sic) those who have a child out of wedlock and below the marriageable age, but also to those who have breached China’s family planning laws in other ways, such as by the birth of a second or subsequent child without permission. The Tribunal further finds that such laws are appropriate and adapted to achieving a legitimate purpose and objective, namely, the need to control its population growth. There is nothing before the Tribunal to suggest that the laws will be applied to the applicant parents in a discriminatory manner because their child was born out of wedlock and when his father (second applicant) was below the marrying age.”

Consideration

1. It is clear from reading the Tribunal’s detailed and extensive reasons and reading them as a whole, that the Tribunal did consider the evidence and submissions of the First Applicant about her commitment to the Christian religion, and practice of that religion in both China and Australia.  Having considered the totality of the evidence and submissions before it, the Tribunal found that aspects of the evidence given by the First Applicant generally lacked credibility, and that the evidence about the First Applicant’s practice of Christianity was generic, vague, inconsistent or implausible.

2. Accordingly, the Tribunal rejected the First Applicant’s claim that she was a Christian or would be perceived to be Christian if returned to China.  The Tribunal’s findings based on the First Applicant’s credibility are sound and not open to review (Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1). The Tribunal finding that the First Applicant was not a Christian was a finding open to it on the facts and on the evidence before it. Judicial review cannot be used to challenge the Tribunal’s findings of fact (Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

3. The Court accepts the submissions of Counsel for the First Respondent that, the Tribunal is only obliged to specifically consider those claims raised on the evidence and material before it.  The Tribunal is not required to make the applicants’ case and there was nothing in the relevant evidence and material before it that the Tribunal failed to consider.

4. The First Applicant’s complaint of a lack of fairness seemed to be directed at a claim of bias in the Tribunal, however that claim is not particularised by the First Applicant and there is nothing on the face of the reasons or other material that suggests the Tribunal was biased either actually or as a matter of apprehension.  There was considerable exploration of the issues before it by the Tribunal, conducted in a way that was both reasonable and fair to the First Applicant.

5. The Tribunal found there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, namely China, there was a real risk that any of the applicants would suffer significant harm for any reason.  Essentially, the Tribunal found that the First Applicant’s claims were mostly “entirely speculative”, “fabricated”, “inherently implausible”, “highly implausible” or “otherwise implausible”. Those findings were open to it on the facts before it.

6. The Tribunal considered the evidence put before it by the applicants and thoroughly canvassed those matters which it was required to consider. In a comprehensive decision record it affirmed the decision of the delegate to not grant the applicants’ Protection (Class XA) Subclass 866 visas. There is no basis upon which the decision of the Tribunal can be challenged. Accordingly, the applicants’ application will be dismissed and costs will follow the event. Those costs will be fixed in the sum claimed of $6,646 which accord with Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  23 August 2013