MZZIC v Minister for Immigration

[2013] FCCA 1149

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1149

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

Legislation:  

1951 Convention Relating to the Status of Refugees, Article 1

1967 Protocol Relating to the Status of Refugees

Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZIC

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 329 of 2013

Judgment of: Judge Hartnett

Hearing date: 6 August 2013

Delivered at: Melbourne

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Whittemore

Solicitors for the Respondent: Sparke Helmore Lawyers

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 18 March 2013 is dismissed.

3. The Applicant pay the First Respondent’s cost fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 329 of 2013

MZZIC

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an Application on 18 March 2013, seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 15 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 2 April 2012 to refuse to grant a Protection (Class XA) Subclass 866 visa to the Applicant.

2. The grounds of the Application filed 18 March 2013 are as follows:-

   “1. RRT has taken into unqualified evidence into its consideration.  In the first hearing, the interpreter apparently couldn’t continue interpreting due to his lack of necessary vocabulary and knowledge.  Therefore, RRT should not accept the evidence in the first hearing.  However, RRT says in para222 that the Tribunal has considered the evidence the applicant gave at both hearings.  This is unfair to me, as the interpreter would cause confusion and misunderstanding which may influence my evidence to be tested by the Tribunal. 

   2. In Para239, RRT says that if I was a practicing Christian I would have made an attempt to find a church to attend in Guangzhou while I was therefore a year.  Whether I would made an attempt to find a church is an irrelevant consideration, the only relevant consideration should be that whether I was practicing Christian even if I didn’t attend church in Guangzhou. As I was new in that city, but I didn’t stop practicing my religion.  I could still study bible and practice my religion on my own.  RRT has taken into irrelevant consideration and made a adverse finding based on this consideration.  This is in breach of natural justice.

   3. In Para 241, RRT asked me a question, “what it means to be a Christian.”  I don’t know what the intention is behind this question, but I find this question simplistic.  If I was to give an answer to this question, it may cause me more than one day long.  To be a Christian is throughout a person’s whole life, how would I suppose to answer a question like that one.  I gave RRT brief answer, “to be a kind, honest, dignified person and won’t breach of the rules of being a Christian”.  RRT considers this to be a very simplistic explanation.  I feel it was prejudicial and unfair as RRT attempted to over simplify a concept in the first place. And I suppose no answer would really be satisfactory.  RRT was abusing its power by misleading me in the questioning and punish me for that misleading question.”

3. The First Respondent, by Response filed 5 April 2013, seeks dismissal of the application claiming it does not establish any jurisdictional error in the decision of the Tribunal.

4. Registrar Allaway, on 1 May 2013, made various procedural orders between the parties and by consent.  Those Orders provided for the Applicant to, on or before 20 June 2013, file and serve:-

   a)any amended application, including any additional grounds of review with complete particulars of each ground; and

   b)any affidavits.

   The Orders also provided that the Applicant file and serve written submissions before the final hearing.  The Applicant has not filed an amended application or any further affidavits, other than the initial Affidavit filed on 18 March 2013 annexing the decision record, and has not filed any written submissions.  The First Respondent filed a Court Book on 23 April 2013 which is in evidence in the proceedings and an Outline of Submissions filed 24 July 2013. 

Background

1. The Applicant was born on 28 May 1988.  He is now 25 years of age.  He is a citizen of the People’s Republic of China.  He first arrived in Australia on 1 June 2009 on a Student (Temporary) (Class TU) Subclass 570 visa, valid until 18 November 2009.  The Applicant made application for a Protection (Class XA) Subclass 866 visa on 17 November 2011, in excess of two years after his arrival in Australia.  The Applicant’s claims for protection were contained in a signed statement which accompanied his application for a Protection (Class XA) Subclass 866 visa.  That statement is dated 16 November 2011. 

2. The Applicant claimed to fear harm in the People’s Republic of China on the basis of his and his parents’ Christian religion and attendance at an unregistered house church in China.  He claimed that he attended church in China and in Australia.  He claimed that there was no real religious freedom in China.  He claimed that they often heard of house church members being caught by police, and that his parents did not want him to live in fear and so they arranged for him to study in Australia.

3. The Applicant claimed that in a telephone conversation with his mother on 10 December 2010, she advised him that the police had placed his father in a detention centre and detained him for a month.  He claimed the police tortured his father.  He claimed that his parents were checked on by the police and his father’s shop was closed because the police said it was a place for illegal gathering.  He claimed that if he were to return to China, he would be “caught by the police” and “tortured like [his] father was”.

4. On 27 April 2012, the Applicant lodged an application with the Tribunal to review the delegate’s decision of 2 April 2012 that the Applicant was not a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’).  By a letter dated 12 July 2012, the Tribunal invited the Applicant to attend a hearing before it, scheduled for 16 August 2012 (‘the first hearing’).  The Applicant attended the first hearing, which was subsequently adjourned part-heard.  The Applicant also attended the resumed hearing on 31 August 2012 (‘the second hearing’).

5. At the second hearing the Applicant made a further claim that his father was arrested and detained at an earlier time, and in 2006.  He claimed that whilst he was at school, his father was arrested.  His father returned home he claimed “more than 10 days” and in subsequent evidence “two weeks” after his arrest.  

The Tribunal Decision

1. The Applicant appeared before the Tribunal on 16 August 2012 and 31 August 2012 to give evidence and present arguments.  Those Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.  The Applicant was represented in relation to the review by his registered migration agent, who did not attend the hearings. 

2. The Tribunal put to the Applicant at the first hearing its various concerns about his evidence and its, at times, contradictory nature.  The Tribunal sought explanation from the Applicant as to his fears, if he had to return to China, and as to his and his parents’ religious practice.  The Tribunal asked the Applicant if, when he came to Australia in June 2009 on his own passport, he had any problems with the authorities in China prior to his departure.  He said he did not. 

3. During the course of the first hearing, the Tribunal asked the Applicant if he saw people being baptised at the Holy Spirit Church.  The interpreter was unable to ask the question, because he did not understand the word “baptised”.  He asked the Tribunal to explain the word or rephrase the question.  As the Tribunal was intending to ask the Applicant to discuss baptism, its meaning and what it entailed, the Tribunal decided not to rephrase the question.  The Tribunal was of the view that the interpreter was unlikely to be able to assist the Tribunal to further discuss the Applicant’s religious beliefs, and therefore decided to adjourn the hearing to another day, in order to arrange for another interpreter to assist the Tribunal. 

4. On 21 August 2012, the Tribunal sent a recording of the hearing of 16 August 2012 to the Applicant’s registered migration agent and invited the Applicant to attend the second hearing which was listed for 31 August 2012.  At the commencement of the second hearing, the Tribunal asked the Applicant if he had listened to the recording of the first hearing as provided to his registered migration agent.  He said he did not.  The Tribunal asked the Applicant if there was anything he wanted to say about the first hearing or the evidence that he had given.  He said there was nothing.  The Tribunal asked him if he wanted to change anything about the evidence he gave at the first hearing, now that he had time to think about it.  He said he did not. 

5. The Tribunal continued to receive the evidence of the Applicant and query him as to aspects of it, either by way of seeking further information, or clarification, or putting matters which appeared contradictory or implausible to the Tribunal.  The Tribunal asked the Applicant why, if he was a committed Christian when he arrived in Australia in June 2009, he did not attend a Chinese-speaking church until 2011.  The Applicant responded that when he knew a person, he joined the church.  Throughout, the Tribunal put to the Applicant evidence given by him which was contrary to evidence given by him at an earlier time, and asked the Applicant if he wanted to comment about the inconsistencies in his evidence, which the Applicant declined to do. 

6. The Tribunal told the Applicant that his not lodging his application for a Protection (Class XA) Subclass 866 visa until about two and a half years after he arrived in Australia caused the Tribunal to doubt he had a genuine fear of being persecuted for the reason of his religion, should he return to China.  The Tribunal asked the Applicant if he wished to comment regarding the considerable delay in lodging his application for a Protection (Class XA) Subclass 866 visa. 

7. The Tribunal noted the Applicant was illegally in Australia from November 2009, and asked why he did not try to find out about protection visas before November 2011.  The Applicant responded that he did not know about protection visas and how to deal with his situation.  He first heard about protection visas in Australia when he talked to a friend in 2011.  The Tribunal put country information to the Applicant and asked him if he wished to say anything about that information.  The Tribunal asked the Applicant ultimately if there was anything else he wished to say about his application for a Protection (Class XA) Subclass 866 visa at the second hearing and he said there was nothing else.

8. The findings of the Tribunal are accurately set out in the First Respondent’s Outline of Submissions filed 24 July 2013 and are as follows:-

   “11. The Tribunal was not satisfied as to the credibility of the applicant’s claims to fear persecution due to his, or his parents’, involvement with an underground house church in China.  In making its adverse credibility findings, the Tribunal had regard to the internal inconsistencies in the applicant’s evidence in his written statement, his hearings before the Tribunal and his departmental interview.

   12. The Tribunal did not accept that the applicant’s history of his church attendance in China was as significant or as substantial as he claimed and found that there were inconsistencies in this regard.

   13. The Tribunal also found that the applicant “would have made an attempt” to find a church in Guangzhou if he was in fact a practising Christian.  The Tribunal considered the applicant’s evidence about when he became a Christian and his baptism and found that it would have “expected him to be able to recall whether or not he was baptised” even if he was “nervous”.  Similarly, the Tribunal expected the applicant to be able to recall when he became a Christian, as “a person who becomes a Christian considers that to be an important event”.

   14. The Tribunal found the applicant’s explanations about the Christian religion were “very simplistic” for someone who claimed to have the applicant’s religious profile.  The Tribunal drew no adverse conclusion from a possible error in the translation of the applicant’s evidence about his religion.  However, it found that even taking this into account, the applicant’s knowledge of his claimed religion was basic and that his evidence appeared “rehearsed” and “superficial”.

   15. The Tribunal accepted that the applicant joined the church in Melbourne for reasons other than strengthening his refugee claims.  The Tribunal found that this conduct alone was not probative evidence of his Christianity.  It also found that the applicant “did not make it a priority” to find a church to attend in Australia “because he was not a committed Christian”.

   16. After comprehensively considering these aspects of the Applicant’s evidence, the Tribunal did not find the Applicant to be a credible witness regarding his claim to be a Christian.  It found the Applicant’s evidence to be internally inconsistent, that his explanations did not allay its concerns and that he did not “speak with any conviction” and demonstrated only a “basic and apparently rehearsed knowledge” of Christianity.

   17. Having regard to the Applicant’s “implausible” account and his lack of credibility, the Tribunal also did not accept that the Applicant’s father was arrested and detained in 2006 or at any time thereafter.  It found that the Applicant would have mentioned this event to his agent and would have raised it at the first hearing before the Tribunal.  The Tribunal also found that the Applicant’s “lengthy” delay in apply for protection was indicative of an absence of fear of persecution.

   18. For those reasons, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution because of his religion.  The Tribunal also did not accept that the Applicant had a well-founded fear of persecution by virtue of being associated with his parents.  In making this finding, the Tribunal had regard to the Applicant’s “lack of credibility” about the claimed arrests and country information, and ultimately did not accept that the Applicant’s parent or parents were of interest to the Chinese authorities.

   19. The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for reason of his religion, membership of a particular social group or for any other Refugee Convention reason.  The Tribunal also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to China, there was a real risk that the Applicant would suffer significant harm.”

9. On the evidence before it, the Tribunal concluded that the Applicant did not attend church frequently in China, was not baptised (he told the delegate that he was not baptised but told the Tribunal he was baptised), was not a practising Christian in China and is not a practising Christian in Australia.

Consideration

1. The Tribunal decision records that it became apparent to it that the interpreter at the first hearing was unlikely to be able to assist the Tribunal to further discuss the Applicant’s religious beliefs.  The Tribunal accordingly adjourned the hearing and invited the Applicant to attend a further hearing with a different interpreter.  The Tribunal observed that the interpreter at the first hearing was qualified to National Accreditation Authority for Translators and Interpreters (‘NAATI’) Level 3.  The Tribunal said in its findings, under the heading ‘Findings and Reasons’, that it was of the view that the interpreting difficulties arose due to the interpreter’s lack of knowledge of Christianity, rather than to a deficiency in his interpreting skills. 

2. Further, the Tribunal in its ‘Findings and Reasons’, noted that a copy of the first hearing recording was provided to the Applicant’s registered migration agent upon request, and that no submissions were made by the registered migration agent or by the Applicant about deficiencies or errors in the interpreting services provided by the first interpreter.  The second hearing proceeded with a different interpreter also qualified to NAATI Level 3 without any interpreting difficulties.  The Tribunal therefore considered the evidence the Applicant gave at both hearings.  At the second hearing, the Applicant also stated to the Tribunal that he “did not” wish to change anything about the evidence that he had given at the first hearing. 

3. The second hearing lasted over two and a half hours.  There is no evidence before the Court to demonstrate that the standard of interpretation at the Tribunal’s hearings was so inadequate as to deny the Applicant procedural fairness and prevent him from giving evidence such as he wished to the Tribunal, nor that the errors made in interpretation were material to the conclusions of the Tribunal and adverse to the Applicant.  No jurisdictional error as claimed by the Applicant attends the decision in this regard.

4. The Tribunal carefully assessed the Applicant’s claims and evidence and country information before it and made findings of fact open to it on the material before it.  As is said many times in this Court, it is not for this Court to undertake a merits review of the Tribunal decision (Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraph 272). The Tribunal thoroughly explored the claims and evidence put before it by the Applicant and carefully considered them. The Tribunal’s finding that this particular Applicant’s knowledge of Christian doctrine was deficient, and that he was not a practising Christian was open to it on the facts before it. These were ascertained after an exploration of the evidence and Christianity with the Applicant without any preconception as to what knowledge all believers would demonstrate.

5. No jurisdictional error attends the decision of the Tribunal and the Application filed 18 March 2013 shall be dismissed and costs will follow the event.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  23 August 2013