MZZHE v Minister for Immigration

[2013] FCCA 1036

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZHE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1036

Catchwords:
MIGRATION – Application for judicial review of decision by the Refugee Review Tribunal – applicant a citizen of the People’s Republic of China – ss.424A and 424AA of the Migration Act 1958 (Cth) considered – application dismissed – applicant to pay costs.

Legislation:
Migration Act 1958 (Cth), ss.424A and 424AA

Applicant: MZZHE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 268 of 2013

Judgment of: Judge Whelan

Hearing date: 29 July 2013

Date of Last Submission: 29 July 2013

Delivered at: Melbourne

Delivered on: 29 July 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

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

2. The Application filed on 6 March 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 268 of 2013

MZZHE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 February 2013. The Tribunal affirmed a decision of the delegate of the First Respondent dated 23 July 2012, to refuse to grant a protection (Class XA) visa to the Applicant. The Applicant seeks that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal, requiring it to determine his application according to law.

2. The Applicant is a citizen of the People’s Republic of China who arrived in Australia in 2007 on a student visa. He applied for a protection visa on 4 May 2012. He claimed to fear harm on account of his Mormon religion. In particular, he stated his parents were Mormons, and he had been a Mormon since he was six years old. He claimed his parents had been detained because of their Mormon activities on three occasions, the last occasion being Easter 2012, when police discovered that he had been sending them religious material over the internet.

3. On 30 May 2012, the Department wrote to the Applicant inviting him to attend an interview on 21 June 2012, which he attended.

4. On 23 July 2012, the delegate refused to grant the Applicant a protection visa. On the basis of adverse credibility findings, the delegate did not accept that the Applicant was a Mormon, or any of his consequential claims to fear harm. Accordingly, the delegate was not satisfied that the Applicant had a well-founded fear of persecution, or that he faced a real risk of significant harm on his return to China. 

5. On 27 July 2012, the Applicant lodged an application with the Tribunal to review the delegate’s decision. 

6. The Tribunal invited the Applicant to attend a hearing on

   
   

   22 January 2013, which he attended. During the hearing, the Tribunal put to the Applicant particulars of information that it had obtained from a Google search. This information indicated that, contrary to the Applicant’s claim that he had attended a Mormon church in Moorabbin, there was no church located at the address in Moorabbin that he had provided.

7. The Tribunal also put to the Applicant particulars of evidence given by a witness, Mr S, whose telephone number the Applicant had provided, that the Applicant had never been to the church in Moorabbin, which was inconsistent with the Applicant’s claims that he had met him there. 

8. The Tribunal invited the Applicant to comment on the adverse information, and although the Applicant responded immediately, the Tribunal also gave him until 8 February to further respond to the matters it had raised. The Applicant subsequently provided a written submission and photographs which the Tribunal then considered. 

9. On 20 February 2013, the Tribunal affirmed the decision under review.  On the basis of its adverse credibility findings, the Tribunal rejected the Applicant’s claim to be a Mormon, and all of his claims to fear harm. 

10. On 6 March 2013, the Applicant lodged this application for judicial review. 

Grounds for Review

1. The grounds for review were couched in the following terms: 

   (1)The RRT (para89) said I knew virtually nothing about be [sic] Mormon religion except its name, that there was a book called the Book of Mormon, and it is based in the US. This is not fair to me. I was not given a reasonable treatment. Not only RRT’s decision is unreasonable but also prejudicial. I read Book of Mormon in Chinese, and I knew about church activities. 

   (2)The RRT (para99) said I had been in contact with Mormons in Australia, but not because if [sic] a genuine interest in the religion, I has [sic] attended a meetinghouse, as shown in the photographs, on one occasion because he thought it would strengthen my protection. it is not correct, because I am a real Mormon person, I real devout about this religion and enjoy to stay with everybody in the Mormon church [sic].

   (3)The RRT (para90) said when I still in China a teacher had found a CD containing some Mormon material in his bag. The teacher had referred the matter to the police who had spoken with the applicant and given him a warning. The matter was discussed “publicly” at a parent-teacher meeting. He could not face his classmates and eventually he quit school. When the Tribunal asked me whether I had suffered any harm in China, I said he had not. I apologia [sic] about to tell you this answer, because I am [sic] so nervous in that day, you are so serious. I totally forgot what should I said [sic]. By this chance, I explain for you. I didn’t cheat you.[1]

   [1] Application filed 6 March 2013, at page 3.

2. The Applicant was given an opportunity to amend his application and to file written submissions, but chose not to do so. He was given the opportunity to make oral submissions at the hearing today. He made submissions in relation to two aspects of the Tribunal’s findings:

   ·the evidence of Mr S; and

   ·the Tribunal’s failure to believe that he attended a Mormon church in Moorabbin. 

3. In relation to the first issue, he submitted that he had not given the Tribunal permission to get information from that person, but from Pastor L. In relation to the second issue, he claimed that he invited the Tribunal to go with him to the church in Moorabbin, but the Tribunal refused to do so. The Applicant claimed that the transcript of the hearing would show that he had made that request, although he had not sought to have the transcript before the Court. He claimed he was not aware of the process, and had not prepared well for the Court hearing.

First Respondent’s submissions

1. The First Respondent submitted that, in arriving at its findings, the Tribunal had regard to:

   ·the Applicant’s demonstrated lack of knowledge of Mormonism;

   ·inconsistencies in his written statement and oral evidence to the Tribunal;

   ·the implausibility of his claim to have attended a Mormon church on the opposite side of Melbourne to where he resided; and

   ·his inability to give the correct address of that church.

2. The Tribunal also had regard to the Applicant’s demeanour when answering questions about his church attendance in Australia, and identified inconsistencies between his evidence and that of the witness, Mr S.

3. The Tribunal had regard to the photographs that the Applicant had provided purportedly depicting him attending a Mormon church in Australia. The Tribunal found that any contact that the Applicant had with the Mormon church in Australia could not be properly classified as a religious activity and it was merely undertaken to strengthen his refugee claim. The Tribunal did not accept that any limited contact that the Applicant had with the Mormon church in Australia would be known to Chinese authorities or that the Applicant would be imputed to be a Mormon as a result. 

4. The Tribunal considered the Applicant’s post-hearing request for further time to submit an ‘Admittance Rites’ document, but found that he had been on notice since at least the delegate’s interview that the credibility of his claim to be a Mormon was at issue. Even if the Applicant submitted this document, it would afford it limited weight on account of its overall credibility concerns. On account of those concerns, the Tribunal found the Applicant was not a witness of truth and had fabricated all of his claims to be a Mormon. The Tribunal also found that the Applicant did not have a subjective fear of persecution which was fatal to his claim to fear harm under the convention.

5. Accordingly, the Tribunal found there was no real chance that the Applicant would face persecution for a convention reason on his return to China. For the same reasons, the Tribunal was not satisfied that there were substantial grounds for believing the Applicant faced a real risk of significant harm on his return to China or was owed complementary protection. 

6. In response to the Applicant’s oral submissions, the First Respondent pointed out that the Applicant had provided the Tribunal with a telephone number which was answered by Mr S and requested that the Tribunal make the call. On the issue of the request made to the Tribunal to go with the Applicant to the Church in Moorabbin, the First Respondent pointed out that there is no reference to this in the Tribunal’s decision. 

7. Further, on 3 April 2013, Registrar Allaway made orders that on or before 15 May 2013, evidence of the contents of any sound recording was to be presented as a transcript verified by affidavit. The Applicant was represented at the directions hearing and would have been aware of the contents of that order.

8. The First Respondent also made submissions on the application of

   
   

   ss.424A and 424AA of the Migration Act 1958 (Cth) (“the Act”). The Tribunal had complied with those provisions.

Conclusions

1. The Applicant in this matter seeks judicial review of the decision of the Refugee Review Tribunal to uphold the delegate’s decision to refuse him a protection visa. The Applicant arrived in Australia on a student visa in 2007 which ceased to have effect on 15 March 2012. He did not apply for a protection visa until 4 May 2012. The Applicant’s claim was based on a fear of persecution based on religious grounds, namely his membership of the Mormon church.

2. He told the Tribunal that he attended church every two or three weeks and that he had commenced doing so in Australia in April 2012, although he claimed to have been a Mormon since he was six or seven years old. The Applicant made a number of claims about his own and his parent’s involvement in the Mormon church. The Tribunal appropriately questioned him about his beliefs and certain events he claimed to have occurred. He was also asked about his involvement in the Mormon church in Australia.

3. The Tribunal made adverse findings about the Applicant’s credibility based on the material provided by the Applicant and also by a witness whose telephone number he had provided to the Tribunal as well as its own investigations. The Tribunal was entitled to make such findings unless they were based on no evidence or were so unreasonable as to be unsafe. I am unable to see anything in the Tribunal’s conclusions that were not based on appropriate consideration of the material before it.

4. In submissions today the Applicant was critical of the Tribunal’s adverse findings of credibility. One such issue involved his attendance at a Mormon church in Moorabbin. In particular he claimed that he asked the Tribunal to accompany him to the church and that the Tribunal refused to do so. The Tribunal addresses this issue as paragraphs 62 and 63 of the decision and also paragraph 77.

   
   

   At paragraphs 62 and 63:

   The Tribunal asked the applicant how often he went to church in Australia.  He said he went to a church located in Moorabbin.  He did not know the address but he knew how to get there.  He went there once every 2 - 3 weeks. The services were in English but he could not understand them. He said he just went to “the gatherings, etc”. He added that he had already shown the address to the departmental office during the departmental interview. That address was on his old mobile but he had since changed mobile phones.

   And I note that that address is the one that the delegate found to have been the address for Wendy Import and Export Proprietary Limited.

   The Tribunal asked the applicant to describe how to get to the church. He said he could get there in a car.  He referred to

   
   

   St Kilda road. The Tribunal asked if he had a car that he was driving.  He replied that he had bought a car about 2 - 3 months ago.[3]

   [3] Ibid, page 103, at para. 63.

5. The Tribunal then goes on further to deal with other matters and comes back to this issue at paragraph 77 of the decision. The address that had been given to the delegate for the church in Moorabbin was 135 Keys Road Moorabbin. At paragraph 77 the Tribunal says “the Applicant stated that the church was not located at 135 Keys Road Moorabbin. He could not, however, recall the exact address of the church. He could take the Tribunal there, in a car”.[4]

   [4] Ibid, page 104, at para. 77.

6. The Tribunal statements do not reveal that a request was made by the Applicant to go to the church with him and a refusal made by the Tribunal. 

7. The application in this matter was made on 6 March 2013. The directions hearing was on 3 April 2013. The Applicant has had ample time to ensure that any evidence he wished to have before this Court was before it, and he has not done so. 

8. In any event, the Tribunal’s finding in this matter that any contact the Applicant had with the Mormon church in Australia was merely undertaken to strengthen his refugee claims are findings which on the material were open to the Tribunal to make.

9. The First Respondent also addressed the Court on the application of s.424A and s.424AA of the Act. The Minister’s delegate in her decision clearly made adverse findings about the Applicant, specifically finding that important aspects of his claim were lacking in detail, citing his understanding of Mormon beliefs and the extent of his claimed Mormon practices both in China and Australia. He was on notice that those matters were in issue.

10. The issue of the address of the church in Moorabbin was raised by the delegate. The delegate’s decision was in July 2012. The Tribunal interviewed the Applicant in January 2013. Issues where the Tribunal made adverse findings were clearly put to the Applicant, and he was given the opportunity to respond both orally and in further written submissions. 

11. The Tribunal’s decision to reject key aspects of the Applicant’s claim was within the jurisdiction of the Tribunal conferred by the statute. In doing so, the Tribunal did not fail to comply with statutory requirements of procedural fairness. The Applicant has not articulated any jurisdictional error on the part of the Tribunal and nor am I able to discern any such error. For these reasons the Application must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  6 August 2013

[2] Court Book, page 102, at para. 62.