MZZHE v Minster for Immigration and Border Protection

[2013] FCA 1403

FEDERAL COURT OF AUSTRALIA

MZZHE v Minister for Immigration and Border Protection [2013] FCA 1403

Citation:	MZZHE v Minster for Immigration and Border Protection [2013] FCA 1403
Appeal from:	MZZHE v Minister for Immigration & Anor [2013] FCCA 1036
Parties:	MZZHE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 837 of 2013
Judge:	NORTH J
Date of judgment:	25 November 2013
Date of hearing:	25 November 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Mr M Smith
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 837 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: MZZHE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	25 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to Minister for Immigration and Border Protection.

2.The appeal be dismissed.

3.The appellant to pay the first respondent’s costs of the appeal.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 837 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZHE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	25 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders of the Federal Circuit Court made by Whelan J on 29 July 2013. Her Honour dismissed an application for review of a decision made by the Refugee Review Tribunal.

2. On 20 February 2013, the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Protection (Class XA) visa.

   THE APPELLANT’S CLAIMS

3. The appellant is a citizen of China from Fujian province, who claimed that he was in danger of persecution in China on the grounds of his religion.  He said that he was involved in the Mormon Church, and claimed, in his visa application, that he grew up in the Mormon faith, and practised the religion together with his family.  The appellant said that his parents had been arrested twice for involvement in church activities, and that his own involvement had led him to be reprimanded by a school teacher after she found a preaching CD in his school bag. He said that the CD was then handed over to the police who also gave him a warning. He said that he was publicly criticised at a parent teacher meeting. His parents sent him to Australia as a result of these difficulties.

4. The appellant first came to Australia on 20 May 2007 on a student visa, but did not complete his studies because of his family’s financial difficulties. His student visa ceased to have effect on 15 March 2012.

5. The appellant claimed that he had attended a Mormon church in Moorabbin, Victoria since April-May 2012.

6. The appellant stated that his parents were arrested again at Easter 2012 for having a gathering at their family home.  He claimed that the police found church-related material at his parents' house, which they linked back to him as he had sent this material to them from Australia via the internet. He claimed that his father was arrested and sent to do community labour as a result. He said that his family warned him not to return to China.

   THE DECISION OF THE TRIBUNAL

7. The appellant attended a hearing before the Tribunal. In its decision, the Tribunal set out the evidence that the appellant gave in support of his application during the hearing.

8. Essentially, the Tribunal found that the appellant was not a witness of truth.  The Tribunal found that the appellant's evidence about key matters was inconsistent, contradictory and vague. 

9. The Tribunal gave a number of illustrations to support this conclusion as to the appellant's credibility. For example, the Tribunal noted the following at [90]:

   In his statement, lodged together with the application for a Protection Visa, the applicant said that when he was 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. Subsequently, 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 the applicant whether he had suffered any harm in China, he said he had not. He was specifically asked first if he was sure and then if he had ever been warned in the past. He repeated that he had not suffered harm and had only been warned by means of the letter sent to his parents when he sent them something via QQ.

10. The Tribunal concluded that this evidence was inconsistent with the appellant’s statement in support of the visa application.

11. A further example of inconsistency in the appellant's evidence concerned the location of the church in Moorabbin at which the appellant said he practised his religion in Australia. Before the delegate and, initially, before the Tribunal, the appellant had said that the address of the church was 135 Keys Road, Moorabbin.  When the Tribunal indicated that was the address of an import/export company, the appellant changed his evidence and accepted that this was not the right address.  The Tribunal concluded that the appellant could not provide the correct address of the church in Moorabbin, and considered it implausible that the appellant would be able to attend a church in Moorabbin without knowing its address.

12. The Tribunal placed some weight on the appellant's demeanour.  The Tribunal considered that when the appellant was answering questions in relation to a friend whom he said drove him to the Mormon church in Moorabbin, the appellant looked uneasy and appeared to be fabricating his evidence.  The appellant, unusually, could not recall his friend’s name, but then said it was Chen Long.  The appellant said they had first met at a restaurant, which while not inherently implausible, seemed to the Tribunal to be the first answer that came into the appellant's head when put on the spot.  The Tribunal correctly reminded itself that it should not place undue weight on the appellant's demeanour, and accepted that the appellant might be very anxious and intimidated, and might find it hard to answer the Tribunal's questions. 

13. When the Tribunal noted the appellant's apparent evasion, it told the appellant of its doubts about his credit. Then the appellant asked the Tribunal to contact Chen Long, and provided the telephone number for the Tribunal to do so.  The Tribunal made the telephone call, and described what occurred at [95] as follows:

    The Tribunal took evidence from Mr Snyder, a member of the Church of Latter Day Saints, who the applicant claimed was known to him as Mr Lung or Mr Long. When the Tribunal rang, Mr Snyder said that this was not a good time for him to talk and the Tribunal could hear voices in the background. For this reason the Tribunal did not identify the applicant by name because of privacy concerns. Nevertheless, Mr Snyder gave unsworn evidence that he had never been to the meetinghouse in Moorabbin. When asked to confirm that, he did. The Tribunal gives weight to that evidence because the telephone number was provided by the applicant himself. The Tribunal rejects the applicant’s suggestion – made after the Tribunal put the inconsistencies between his evidence and Mr Snyder’s evidence to him pursuant to s.424AA – that Mr Snyder may not have been telling the truth because he was not expecting this phone call. The Tribunal cannot see any reason for Mr Snyder to lie about this matter. He was perfectly willing to disclose the location of the meetinghouses that he has been attending – he mentioned the city and Northcote.

14. The appellant produced some photographs of himself in the company of members of the Mormon Church.  As to this evidence, the Tribunal said at [99]:

    The Tribunal finds that the applicant has been in contact with Mormons in Australia, but not because of genuine interest in the religion.  The Tribunal finds that the applicant has attended a meetinghouse, as shown in the photographs, on one occasion because he thought it would strengthen his protection claims.  The Tribunal finds that this could not even properly be characterised as “religious activity”.  The Tribunal finds that the applicant’s brief and very limited association with Mormons in Australia would not be known to the Chinese authorities.  Even if it was, the Tribunal does not accept that the applicant will be imputed to be a Mormon.  The Tribunal finds that the applicant faces no real chance of persecution for reasons of his actual or imputed Mormon Faith. 

15. At the hearing, the Tribunal tested the appellant's knowledge of basic tenets of the Mormon religion, and concluded that he knew virtually nothing about the religion except its name, that there was a book called the Book of Mormon, and that the religion was based in the United States.  The Tribunal said that the appellant did not know the name of Joseph Smith, the person who is said to have translated the book into English.  The Tribunal said that when asked, the appellant had initially answered that the Book of Mormon was originally written in Chinese, which was incorrect. These findings were made by the Tribunal after the Tribunal reminded itself that not every follower of a religion can be expected to have the knowledge of a scholar.

16. After dealing with several other matters, the Tribunal expressed its general conclusion at [98] as follows:

    Based on the major gaps and inconsistencies in the applicant’s evidence, the Tribunal finds that the applicant has fabricated all his claims with respect to being a Mormon.  The Tribunal finds that the applicant is not a witness of credit. Further, the Tribunal is satisfied that neither he nor his parents or brother are Mormons or Christians; and no member of the family has ever been arrested or suffered any problems at school or work or been harmed in any other way in the past for reasons related to religion.  The Tribunal finds that the applicant has not been baptised. 

17. After the hearing, the appellant wrote to the Tribunal asking it to allow him until 23 February 2013 to produce an Admittance Rites document.  However, the Tribunal made its decision on 20 February 2013, explaining why it did not wait until after 23 February 2013.  The explanation appears at [101] as follows:

    The Tribunal notes that the applicant’s request that the Tribunal wait until 23 February 2013 for him to produce an Admittance Rites document, which the Tribunal assumes means a baptism certificate, in fact undermines his claims.  First, there is no reason why a baptism in one country would not be accepted in another country and the Tribunal finds this claim dubious.  Secondly, even if the Tribunal were to give the applicant the benefit of the doubt in relation to this claim, the request came after the Tribunal hearing.  Considering that the applicant’s only Convention claims relate to his alleged adherence to the Mormon religion, the Tribunal would have expected that the applicant would have undergone a baptism ceremony in Australia at an earlier date.  He was also put on notice that the genuineness of his religion was an issue at the time of the delegate interview (June 2012) and the delegate’s decision (July 2012).  The Tribunal has proceeded to make a decision without making for the applicant’s Admittance Rites document. The Tribunal finds that even if the applicant were to produce a baptism (admittance rites) certificate, it can only give limited weight to it in light of the Tribunal’s overall credibility concerns, the absence of any corroborating evidence from the Mormon church (such as letters of support) that the applicant is a follower, the significant time that has elapsed since the applicant first came to Australia in May 2007 and the fact that he knew that his adherence to the Mormon faith was an issue as early as June 2012.

18. The Tribunal found that there was no real chance that the appellant would face persecution in China for reasons of his religion and that he was not a person in respect of whom Australia has protection obligations.

    THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

19. On 6 March 2013, the appellant applied for review of the decision of the Tribunal by the Federal Circuit Court.  The grounds were set out in the application as follows:

    1.The RRT (para89) said I knew virtually nothing about be Mormon religion, except its name, that there was a book called the Book of Mormon and that 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 have been in contact with Mormons in Australia, but not because if a genuine interest in the religion, I has 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.

    3.The RRT (para90) said when I still in China a teacher had found a CD containing some Mormon materials 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 about to tell you this answer, because I am so nervous in that day, you are so serious.  I totally forgot what should I said.  By this chance, I explain for you.  I didn’t cheat you. 

20. During the hearing before the Federal Circuit Court, the appellant made oral submissions in relation to the Tribunal’s findings regarding the evidence provided by Mr Snyder, and its failure to believe that the appellant attended the Moorabbin church.

21. In her decision, the Federal Circuit Court judge carefully examined each of the appellant’s complaints about the Tribunal's fact finding, an exercise which went beyond the scope of a review of this nature. The question on the review was whether the Tribunal made any jurisdictional error.  Her Honour addressed this fundamental issue at [24] as follows:

    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. 

22. Her Honour also found that there had been no denial of natural justice by failure to comply with ss 424A and 424AA of the Migration Act 1958 (Cth).

    THE APPEAL

23. On 16 August 2013, the appellant filed a Notice of Appeal in this Court.  The grounds of appeal were as follows:

    1.        RRT has bias against me as I was deprived of the benefits of doubts.

    2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

    3.        RRT has made an illogically conclusion based on no evidence.

24. The appellant did not file any written submissions.  At the hearing before this Court, he was self-represented and assisted by a Mandarin interpreter. 

25. The three grounds of appeal relate to the decision of the Tribunal, and are not grounds which were raised before the Federal Circuit Court.  The appellant, therefore, requires leave to raise them on appeal for the first time.

26. In relation to the first ground, which alleges bias, there is no evidence before the Court to substantiate any claim of bias.  In any event, the way the ground is expressed suggests that the real complaint is that the Tribunal rejected the evidence of the appellant. This is a challenge to the findings of the Tribunal on the merits. That is not a basis for challenge to the decision of the Tribunal in judicial review proceedings.

27. The second ground of the appeal is not substantiated by the written reasons of the Tribunal.  The reasons of the Tribunal are set out in such a way as to disclose the path of reasoning of the Tribunal, and do not reveal a failure to provide adequate reasons for the finding of any fact set out therein.

28. The third ground for appeal is also unsustainable.  The decision of the Tribunal was based on the evidence provided by the appellant, and its logic follows from the rejection of the credit of the appellant.

29. At the hearing before this Court, the appellant was asked to explain where the Federal Circuit Court judge went wrong.  He responded by saying that the Tribunal was wrong to reject his application. The appellant then was silent for a considerable time, which caused the Court to offer him a short adjournment to gather his thoughts.  On the resumption of the hearing, the appellant said that the finding that he was not a refugee was wrong.

30. He then said that the Tribunal said that he had submitted something too late.  This is probably a reference to the failure to provide the Admittance Rites document by 23 February 2013. The Tribunal set out the reason why it proceeded to make a decision in the absence of the document.  That was a course open to the Tribunal in the circumstances which it explained.  Indeed, the appellant did not, even at the stage of the appeal hearing, attempt to submit such a document to the Court.

31. The appellant then referred to the telephone call by the Tribunal to Mr Snyder.  At first, the appellant said that the Tribunal rang the wrong number.  When it was explained by the Court that the Tribunal said it rang the number provided by the appellant, the appellant said the Tribunal spoke to the wrong person.  Again, the Tribunal explained the circumstances of this conversation in its reasons, and no jurisdictional error is disclosed.

32. The further response of the appellant was again marked by long silences, and, ultimately, after explaining that he was very nervous, the appellant said he had nothing more to say.

33. As the three grounds which the appellant seeks to raise by the notice of appeal are bound to fail, I would refuse leave to argue those new grounds on the appeal.

34. To the extent that the appellant has sought to make a case outside the stated grounds, that case is a challenge to the fact findings made by the Tribunal.  The task of fact finding is the task of the Tribunal, and apart from disagreeing with the conclusion reached by the Tribunal, the appellant has not demonstrated any jurisdictional error made by the Tribunal.

35. Consequently, the appeal must be dismissed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       18 December 2013