MZZNA v Minister for Immigration

[2014] FCCA 1457

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZNA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1457

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – grounds of application disclosing no jurisdictional error and constituting only merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: MZZNA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 950 of 2013

Judgment of: Judge Burchardt

Hearing date: 28 May 2014

Date of Last Submission: 28 May 2014

Delivered at: Melbourne

Delivered on: 14 July 2014

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,200. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 950 of 2013

MZZNA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 4 June 2013, by which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The grounds of the application are attached to the originating application and read as follows:

   “Orders sought by Applicant

   1, I disagree with Immigration and RRT’s decision.  They did not consider that I will be in danger if I return.

   2, RRT did not consider that I will be persecuted and in big trouble if I return home.

   3, RRT member questioned me at the hearing made me feel very up sad.  They did not trusted me and I do not think they had the right attitude to my application. RRT should grant my application.

   The Grounds of the Application are:

   1, I am a Chinese citizen and Christian who has been persecuted by Chinese government.  I had been warned by the corrupted government and police.

   2, I cannot go back to China since I am very scared to be sentenced.

   3, The Chinese government still looks for me if I return.  My family and friends told me not to go back since the police are still looking for me.”

3. The applicant’s Affidavit annexed a copy of the Tribunal’s decision and relevantly stated only “1. I NEED RELIGION FREEDOM AND I FEAR TO GO BACK TO P.R. CHINA.”.

4. The applicant, very understandably, has not taken the opportunity offered to him in the orders of Registrar Caporale, made 4 September 2013, to file any amended application, supplementary Court Book or written submissions.  When the matter was before the Court, the applicant said that he had nothing to say.  I heard brief submissions from the Minister and then the applicant repeated that he had nothing to say.

5. In these circumstances, the factual overview which follows will closely resemble the first respondent’s written submissions.

6. The applicant is a citizen of the People’s Republic of China who first came to Australia on a student visa in early 2006.

7. On 29 June 2012, the applicant applied for a protection visa and that application was rejected by a delegate on 31 October 2012.  The applicant applied to the Tribunal for review on 27 November 2012 and appeared at a hearing before the Tribunal assisted by an interpreter on 29 May 2013.  As earlier indicated, on 4 June 2013, the Tribunal affirmed the delegate’s decision.  In these circumstances, I have been through the Court Book myself.

8. The applicant’s application for a protection visa involved two forms which run from CB8-37.  These refer to an accompanying statement.  That is at CB38-41.  The applications do not otherwise articulate any possible Convention grounds or materials.

9. The statement said that the applicant had been in contact with the local church in his hometown ever since he came to Australia in 2006 and his sister is a member of the local church and that he went to their gathering during his holiday home visit in 2007; that his parents had stopped worshipping Buddha but that he was unable to find the local church in Australia.

10. He said he had tried to go to other churches but it did not feel right, but in the end he found the local church by a random chance.  He said, “I joined the gatherings immediately and reserved for baptism.”

11. At CB40, he asserted:

    “On the Easter of 2012, my family was investigated by the government during a gathering.  Even though my sister was released out of detention later, she was punished and warned.  My parents were bailed after they paid the penalty.  The church elder was detained for two days.  I heard the news was on the local media, but nobody had the courage to stand out and defend for justice as the government and police regard the local church as a cult.”

12. He went on to express a fear that he would be persecuted and harmed because of his involvement with the local church, that he had been advised by his family to stay overseas, and expressed his desire to remain in Australia and serve his church forever.  His statement concluded:

    “For the sake of my right of religious freedom, I apply the protection from the Australian government.”

13. The decision of the delegate runs from CB63-71.  The delegate noted, at CB64, that the applicant arrived on a Subclass 571 visa, and that ultimately his then extant 571 visa was cancelled on 9 June 2007.  He had been an unlawful non-citizen for five years and stated at interview that he had worked in a series of casual jobs to support himself.  The delegate noted (CB66) that the applicant claimed to be a practising Christian and that this was the basis for his protection visa application.  It is sufficient for present purposes to note that the delegate completely failed to believe the applicant, whose understanding of Christianity and lack of precision about his practice as a Christian in Australia, combined with his delay in applying, were matters that weighed heavily in the delegate’s consideration as is clear from the terms of the decision.

14. The applicant forwarded no further material to the Tribunal apart from this application for review.

15. The Tribunal’s decision runs from CB101-107.  The Tribunal set out the application for review and a paraphrase of the requirements for a protection visa at CB102.  The Tribunal characterised the applicant’s claim at paragraphs 9-10, CB103, as:

    “9.    In summary, the applicant claimed that he has been a Christian since he was child.  The tribunal hearing he said he first went to church on his 12^th birthday with his sister and he continued to go to church until he came to Australia in 2006.  In Australia he was going to church in Preston and later Coburg while also “attending” church meetings in China by webcam.  He himself had never suffered any harm but his parents and his sister were detained in 2012.  He lodged the application for protection six years after arriving in Australia in the wake of his relatives’ detention.

    10.  The tribunal found the applicant evidence to be vague, inconsistent and unpersuasive.  The Tribunal finds that the applicant is not a witness of truth and has fabricated his claims in order to claim protection.”

16. The kernel of the Tribunal’s findings is at paragraphs 14-17 where the Tribunal said:

    “14.  Both at interview with the delegate and at the hearing the applicant reiterated his claim that while in Australia he has been in touch with church people from his congregation.  Both at interview and at the hearing the applicant had great difficulty explaining why he was a Christian.

    15.  The Tribunal did not test the applicant’s bible knowledge as such.  However, the Tribunal notes that at interview the applicant was unable to name a favourite passage of the bible or say anything he knew about the bible.  This is consistent with the poor evidence he gave the hearing.  The tribunal asked the applicant what Christianity meant to him and why he had been going to church in Australia and China as well as (webcam internet) “meetings” with churchgoers in China on the internet.  The applicant gave two answers.  One was that he was not sure how to answer the question and the second one was that going to church in Austria [sic] was fun and he liked to catch up with his friends in China online.  When the tribunal asked once again about his religious motivation for attending meetings, the applicant was again unable to answer the question.

    16.  At the start of the hearing, the applicant did not make an oath on the bible to tell the truth.  When the Tribunal asked him why he replied that he did not have an in depth understanding of the bible, despite conceding that according to his claims he has been a Christian for more than half his life, since the age of 12.

    17.  The Tribunal finds that the applicant has no genuine interest in Christianity.  At interview he displayed some very rudimentary knowledge of the religion but was unable to answer even the most basic questions about what Christianity means to him and why he is interested in it.  The Tribunal finds that the applicant might be engaging in regular chats with his relatives and friends in China but such communications have no religious content.  The Tribunal has concluded that the applicant is not telling the truth and that that explain his inability to explain his motivation for allegedly persisting with his practice of Christianity for 6 years in China and by video link for another 7 years from Australia, in circumstances where he claims his close family members have been persecuted for being Christians.”

17. The Tribunal went on to examine the question of the applicant’s church activities in Australia and found that the applicant’s evidence had been contradictory and confused (paragraph 18, CB104).

18. It is not necessary to set out the entirety of the Tribunal’s reasoning under this heading, which runs from paragraphs 18- 27.  The Tribunal’s reasoning speaks for itself and seems to me, on any view, to have been reasonably open to it.  One paragraph, however, which stands out is in paragraph 23 where the Tribunal said:

    “23.  When the Tribunal put to the applicant that his knowledge of Christianity was lacking for someone who has been attending church for some 13 years now, he contradicted his earlier evidence by saying that currently he was not going to church weekly but less often, once every two to three weeks.  When the Tribunal put to him that earlier at the hearing he said he was going to church two to three times a week, he was not doing so currently but after first coming to Australia.  This claim directly contradicts his earlier evidence at the hearing (1) that it is at present that he goes to church two to three times a week and (2)that when he first came to Australia he was not going to church because he did not know where to go.”

19. The Tribunal went on to conclude at paragraph 27, CB105, that the applicant had never been to church in Australia in Preston, Coburg, or anywhere else and that he has not been baptised.

20. The Tribunal then dealt with the alleged detention of the applicant’s family members in China at paragraphs 28- 36, CB105-106.  The Tribunal concluded at paragraph 36:

    “36.  Based on the significant inconsistencies between his oral evidence at the interview and the hearing, the Tribunal finds that none of the applicant’s relatives has ever been detained.”

21. Minds might differ as to whether the degree of inconsistency was as great as the Tribunal found it to be, but there was clearly evidence before the Tribunal that might justify such a conclusion.

22. The Tribunal then went on to consider the applicant’s return to China in 2007 and more particularly his delay in apply for protection, a period of over six years.

23. The Tribunal found that the applicant was not a witness of credit and had made up his claims in order to remain in Australia. It found, therefore, that the applicant did not have a well-founded fear of persecution for reasons of his religion or for any other Convention reason (paragraph 41, CB107). The Tribunal then stated that the applicant was not a person to whom Australia had protection obligations under the Refugee Convention, and further that he did not meet the alternative criterion in s.36(2)(aa).

24. In circumstances where the Tribunal had completely disbelieved the applicant’s claims, the admittedly terse reasoning of the Tribunal was in my view open to it. 

25. It will be seen readily that the applicant’s grounds of application are, in fact, in substance simply assertions that complain that the Tribunal did not accept his claims.  This is merits review in its most obvious form.  As the first respondent’s written submissions correctly point out at paragraph 16:

    “16.  The Applicant seeks impermissibly to cavil with the merits of the Tribunal’s findings of fact.  The Tribunal evaluated the Applicant’s claims and did not believe the factual foundation for the claims made.  The Tribunal is tasked with this fact finding function, including as to the Applicant’s credibility, and review of the merits of those findings is not open in this Court:  MZZAS v Minister for Immigration, Multicultural Affairs, and Citizenship [2013] FCA 757 at [18] per Mortimer J.”

26. I note the written submission of the first respondent (at paragraph 18) that:

    “18.  The Tribunal has not put itself into a position as the ‘arbiter of doctrine’ in a manner which is legally impermissible on the established authorities of Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR at [6]-[10] and Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.”

27. This was a submission briefly repeated in oral submissions by counsel for the first respondent.  I should indicate that I accept it.  Reading the Tribunal’s decision as a whole, it is clear that the Tribunal’s questions did not stray to an impermissible extent.  I note that the Tribunal expressly observed “the Tribunal did not test the applicant’s Bible knowledge as such” (paragraph 15, CB103). 

28. It was, of course, in circumstances where the applicant’s claimed ground of persecution was his religious faith, open to the Tribunal to ask the applicant questions about his own understanding of his faith and his understanding of Christianity and to evaluate those answers.  In my view, that is what the Tribunal did.

29. The applicant has not shown that the Tribunal’s decision was the subject of jurisdictional error and it therefore follows that the application will be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 July 2014