MZZPK v Minister for Immigration

[2014] FCCA 2837

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZPK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2837

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal erred by assessing applicant only as part of a general group of dissidents in China and not examining his particular circumstances – clear Tribunal did consider Applicant on an individual basis – application dismissed.

Legislation:  

Migration Act 1958, ss.36(2)(aa), 91R(3)
1951 Convention Relating to the Status of Refugees

NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1

Applicant: MZZPK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1145 of 2013

Judgment of: Judge Burchardt

Hearing date: 20 October 2014

Date of Last Submission: 20 October 2014

Delivered at: Melbourne

Delivered on: 12 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Maddocks Lawyers

Counsel for the First Respondent: Ms Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The amended Application filed on 22 April 2014 is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1145 of 2013

MZZPK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By his amended application filed on 22 April 2014 the applicant asserts jurisdictional error on the part of the Refugee Review Tribunal (“the Tribunal”).  By a decision dated 21 June 2013 the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The amended application asserts one ground, which might be paraphrased as saying that the Tribunal fell into jurisdictional error inasmuch as it assessed the applicant’s risk of serious harm by virtue of an over-generalised analysis of the risks to certain categories of persons as a whole without paying proper attention, as it should have done, to his own particular circumstances.

3. The first respondent submits that that is not a proper criticism because in fact the Tribunal did exactly that, namely address the applicant’s particular circumstances in any event.

4. For the reasons that follow I think the submissions of the first respondent are correct and it follows that the application will be dismissed.

The materials before the Tribunal

1. In order to understand the parties positions it is appropriate to at least paraphrase the materials before the Tribunal which are contained in the Court Book (“CB”) and elucidated to an extent further by affidavits of Tamsin Webster affirmed on behalf of the applicant on 5 September 2014 and Christopher Hibbard sworn on 14 October 2014.

2. The original application for a visa was forwarded to the Department by the applicant’s migration agent on 17 December 2012.  The letter and accompanying documents run from CB1-56.

3. From pages CB16-17 it would appear that the applicant came to Australia as a student in 2006 and worked intermittently between December 2006 and November 2012, when I infer he was placed in migration detention.

4. I note that at CB18 the applicant deposed to having joined the China Democracy Party (“CDP”) in Australia and at CB20 he has asserted that he would face difficulties on return because of his political opinion and faith.

5. Matters were set out more fully in the applicant’s statement at CB27-28.  He confirmed that he left China to pursue studies but that he had joined the CDP in August 2008.  The former landlord of his house was the former president of the Melbourne branch of the party.  The applicant asserted:

   “I have heard lots of atrocities committed by the Chinese Communist Party against its own people.  As a member of the China Democracy party I have participated in many demonstrations in Australia.  I participated in the rallies held in remembrance of Tiananmen Square Killings in the past.  These demonstrations were videoed by the Chinese Authorities.”

6. The applicant also asserted that he was a practising Christian and feared not being able to practise his faith freely in China.  He asserted that if returned he would face a real chance of being seriously harmed or killed for reasons of his political opinion and religion.  The applicant forwarded (CB93) a statement from Tao Lin, the chairman of the Melbourne branch of the CDP which asserted inter alia that the applicant had been sent to Hong Kong on his behalf.

7. The decision of the delegate runs from CB104-112.  Having noted that the applicant had arrived in Australia on 31 August 2006 on a student visa (CB105) and had been detained in November 2012 the delegate, correctly in my view, assessed the applicant’s claims of facing persecution if returned to China as a Christian or being involved with the CDP in Australia.

8. The delegate dismissed the fear of persecution on the grounds of religion (CB107) because the applicant’s knowledge of his faith was insufficient and his account of his attendance at church was vague.

9. The delegate accepted that the applicant had joined the CDP but while the applicant provided a lot of information about the CDP in general the delegate felt that the testimony was contrived and that “…his responses had been researched purely for the purposes of the interview” (CB108).  The delegate noted that the information the applicant gave was freely available on the internet.  The delegate noted that the applicant had provided a postcard sent to a political prisoner in China but given that the applicant used a pseudonym the delegate was not satisfied it would be attributed to him personally (CB108).

10. The delegate also dealt with the statement of Tao Lin but noted that the assertion that the applicant had been to Hong Kong was incontrovertibly false and accordingly gave it no weight.  The delegate was also unimpressed by the length of time it had taken the applicant to apply for a Protection visa (CB109-110).

11. Put shortly the delegate dismissed the application and found that the applicant was not eligible for a Protection visa whether on the basis of Convention-based harm or pursuant to the complementary protection regime. 

12. On 25 February 2013 the applicant’s migration agent wrote on his behalf to the Tribunal.  This submission is at CB204-209.  The claim for refugee status was still based upon the applicant’s political opinion as a supporter of the CDP and his religion.  The submission referred to country information relating to the CDP.

13. The applicant sent a post-hearing submission through his second migration agent on 23 May 2013.  The submissions run from CB328-343.

14. The written submission blamed the previous representative for propagating the claim that the applicant might face discrimination on the basis of his religion.  The submission confirmed that the only claim was one based on his political opinion.

15. The written submission went on to assert at CB331 that the applicant’s delay in applying for his visa was consistent with the facts that:

    “1.  Initially the review applicant’s superior at the CDP suggested that he should keep a low-profile in Australia with a view to remain anonymous in anticipation that the review applicant will be sent back to China to undertake political activities on behalf of the CDP. 

    2.  However after undertaking more and more political activities including but not limited to distributing leaflets at the Federation Square, attending the demonstration in support of the Tibetan people’s protest against the Chinese Communist Party’s tyranny on behalf of Mr LIN, Tao who was and still is the chairman of the CDP Melbourne Branch and other political rallies and demonstrations openly at the direction of the CDP, the review applicant inevitably exposed his secret political profile to the public including the Chinese authority in Melbourne.”

16. The written submission also referred to the evidence of Mr Cheng Shixiong, the former chairman of the CDP Melbourne branch, in support of the applicant (CB333) and the evidence of Mr Lin Tao already referred to.

17. At CB334-335 the submission asserted that the reference to the applicant being sent to Hong Kong arose out of an erroneous translation and accordingly it was submitted that Mr Tao’s evidence should be accepted.

18. The submission went on to refer to country information and submitted at CB337 that the close association with Mr Chen Shixiong would be likely of itself to give rise to persecution.

19. The submission also referred to the evidence of Mr CAI Shimin at CB341 who had returned to China, asserting that Mr CAI had been shown ID photographs including the applicant’s and questioned about him.

20. A very similar set of documents was sent subsequently (CB351-367) but the additional materials in it do not, in my view, take the matter further.

The Tribunal’s decision

1. The Tribunal summarised the application for review at CB371.  Having noted the time that the applicant had been in Australia the Tribunal said at paragraph 3 CB371:

   “He claims that he joined the China Democracy Party (the CDP) in Australia “on or about 15^th August 2008” after being introduced to the party by his then landlord and participated in demonstrations and rallies.  He claims that he was being developed by the party’s leaders in Australia to return to China and undertake work there on behalf of the Party.  … He fears being seriously harmed or killed by the Chinese authorities for reason of his political opinion if he returns to China.  The delegate refused the application because she found there were serious deficiencies in the applicant’s claims which led her to disbelieve his case overall and she was not satisfied that he was genuinely fearful of returning to China.”

2. That extract does not seem to me to be an unfair or inappropriate analysis of the applicant’s claims.

3. Having referred to the relevant law in terms that have not been the subject of criticism and which appear to me unobjectionable the Tribunal moved to consider the claims and evidence at CB373 and following.  The first significant matter for these purposes the Tribunal considered was whether there was “credible evidence of the applicant’s membership of the China Democracy Party before the Tribunal” (CB374).  At CB374 paragraphs 23-24 the Tribunal continued:

   “23.  The applicant claims that he joined the CDP on 15 August 2008.  He stated at hearing that he believes the CDP is founded on a very solid basis of theory and principles and he believes they will grow into a very mature and responsible political organisation.  Asked about the beliefs and objectives of the CDP, he said it was the first opposition party to be established and its principle was to facilitate the revolution of the Chinese political system in a peaceful way to make China become an advanced country of constitutional democracy where everyone can be equal and average people will have the same living standards.  The Tribunal notes that the applicant’s response reflected some elements of the information contained on the official website of the CDP at The Tribunal considered the applicant’s evidence at the hearing in relation to this was delivered in language which contrasted strongly with most of his evidence in its formality and pretentiousness.

   24.  Asked what made him decide to become a member of the CDP the applicant gave a rhetorical but somewhat disjointed answer stating that he joined not just because of its theories and principles but because the leaders experienced the Chinese democratic revolution in 1989, the leaders of the party are elected and over 40 of them have been in jail and even today 10 are still in jail.  Asked why this had made him want to join the party, he said he believes that to develop the democratic party they need a lot of people and people who are not afraid of death and although those leaders were still in jail they still have a strong belief deep in their hearts.  He believes the contribution he can make as an individual is very little but every role should be taken and he should be the one to tell the king he is naked just like the kid in the fairy tale.”

4. At paragraph 25 the Tribunal continued:

   “25.  Asked at hearing about whether the CDP is active in China today the applicant had some difficulty in responding, his hesitation and lack of knowledge in marked contrast to his rhetorical flourish in providing the information set out above.  He stated first that it’s not active in public because it’s not allowed to be, but it’s very active on the ground. Asked what he meant by active on the ground, he paused for a long time before replying that the communist party doesn’t allow any form of opposition party to threaten the regime.  Asked again what they were doing to be active on the ground, the applicant said he hadn’t gone up to that level so he didn’t know what those activities are in detail.  Asked if he knew what the CDP does in Fujian, he said he doesn’t know if there’s anyone active in that area because he hasn’t gone back home.  The Tribunal found his responses confused and incoherent and his lack of knowledge incompatible with the claim that his intention in joining the party was to return home to China to teach people about it; the Tribunal finds it implausible that someone who has been developed to return to China as a democracy activist would not have a greater knowledge of the activities in which he might be involved once there.” 

5. Having explored the applicant’s alleged attendance at various rallies in Australia at paragraphs 26-27 CB375 the Tribunal concluded that:

   “26.The applicant’s evidence about the events he attended was vague, general, and lacking in detail. 

   27.The Tribunal discussed with the applicant the fact that information about the CDP and protests and rallies he claimed to have attended was publicly available and might not indicate that he had been personally involved.  The applicant responded that he didn’t join those activities because he saw them on the internet.  He acknowledge that much of the information available to him came from the internet, but said he didn’t want the Tribunal to think that his own political views came from the internet;  everything is from the bottom of his heart. In light of the significant contrast between the applicant’s evidence at hearing about the ideology of the CDP and his reasons for becoming involved and his confused responses about the CDP’s activities in China, the Tribunal has significant reservations about the genuineness of his knowledge of and belief in the ideology of the CDP.  In light of the applicant’s vague and general claims about the rallies in which he claims to have taken part, and given that information about these events could have been obtained from the internet, the Tribunal is not satisfied that the applicant attended protest events in Melbourne as a member of the CDP as he has claimed, or at all.”

6. In paragraph 28, the Tribunal dealt with the postcard allegedly sent to Mr Wanping Xu at Yuzhou Prison, Chongqing.  The Tribunal concluded, on a basis that seems to me well open to it:

   “The Tribunal does not accept that the applicant would be identified as the author of the postcard or that its existence would cause him to be identified as a democracy activist.”

7. The Tribunal dealt at paragraphs 32-34 (CB376-377) with the evidence of Mr Shixiong Cheng and the written letter from Mr Tao Lin.  The Tribunal accepted that the initial translation of the letter of Mr Tao Lin was inaccurate in indicating that the applicant had been sent to Hong Kong on Mr Lin’s behalf.  The Tribunal noted though, at paragraphs 33-35, that:

   “33.  The Tribunal has some concerns that aspects of Mr Lin’s written evidence conflict with the applicant’s own evidence. The applicant has not claimed at any stage to have “publicly talked to China communist authorities on behalf of the democratic party”;  asked at hearing whether he had ever represented the party, he said he had attended one event on Mr Lin’s behalf, but did not have to do anything at that event.

   34.  The Tribunal has noted the written and oral evidence of Mr Shixiong Cheng and the written statement of Mr Lin and notes that both support the applicant’s claim to have joined the CDP and speak of his promise.  The Tribunal accepts that Mr Cheng and Mr Lin are former and current officeholders of the CDP in Melbourne respectively.  The Tribunal considers that Mr Lin has sought to overstate the applicant’s involvement in the party and does not accept that the applicant publicly talked to Chinese communist authorities on behalf of the party or attended events on Mr Lin’s behalf. The Tribunal accepts that Mr Cheng’s evidence was given in good faith and, having regard to this, accepts that the applicant joined the CDP by signing the relevant papers as he described at hearing. 

   35.  The Tribunal does not presume to be the arbiter of the level of knowledge of the CDP that should be expected of the applicant.  However, in light of the Tribunal’s concerns about the consistency and depth of the applicant’s knowledge, the Tribunal does not accept that the applicant was being developed for work in China on behalf of the party and the Tribunal is not satisfied the evidence of Mr Cheng and Mr Lin establishes the applicant’s credentials as a committed and active member of the CDP.”

8. The Tribunal went on to deal with the delay in the applicant’s application for a visa and found at paragraph 38, a finding clearly open to it:

   “The Tribunal finds that the delay in applying detracts significantly from the genuineness of his fear and from the credibility of his claims overall.”

9. The Tribunal went on to consider the operation of s.91R(3) and found that the applicant’s conduct in Australia was solely for the purpose of his protection visa application, and concluded that it must be disregarded in determining whether the applicant has a well-founded fear of persecution. It should be noted that that finding of itself is not the subject of challenge, and the applicant’s claims, as pressed before the Court, relate only to the complementary protection regime.

10. The Tribunal went on to consider whether there was a real chance that the applicant would be persecuted.  It first dealt with the applicant’s association with Mr Cheng, his former landlord.  The Tribunal accepted that Mr Cheng had been questioned when he returned to China, but concluded at paragraph 48 CB380:

    “However, the Tribunal does not accept that the applicant’s association with Mr Cheng would cause him to be regarded as an activist or dissident or cause him to be monitored by the Government or cause him to be harmed on return to China.”

11. The Tribunal next dealt, at paragraphs 49-55 (CB380-382) with the applicant’s joining the CDP. The Tribunal noted there was some difficulty applying s.91R(3) in circumstances where the conduct in question predated the visa application. The Tribunal then went on to give reasons why it did not consider the applicant’s conduct in joining the party gave rise to a subjective fear or a real chance of being persecuted.

12. The Tribunal noted that the Chinese Government treats those it perceives as dissident in a manner inconsistent with accepted international human rights standards.  However, at paragraph 52 (CB381), the Tribunal said:

    “52.  At hearing, the Tribunal discussed with the applicant the fact that even if it accepted he had joined the CDP and taken part in the rallies he claimed, the country information did not appear to support his claim that he would be persecuted, as it seemed to indicate on balance that only political activists, people with a much higher profile than him, had been subjected to harm on return to China, and it was not satisfied that the activities in which he claimed to have been involved were sufficient to mark him as an activist. The Tribunal explained further that it needed to look forward to what may happen in the reasonably foreseeable future if the applicant returned to China.  In response, the applicant referred to a speech made by Hu Jin Tao at the Communist Party conference in 2004.  The interpreter indicated at that point that she was not able to interpret the remainder of his response and the Tribunal suggested that the applicant explain to his advisor after hearing specifically what it was to which he was referring so that his advisor could provide that information to the Tribunal in writing.  No written submissions were received in relation to this matter.”

1. The Tribunal noted at paragraphs 53-55 that:

   “53.  The applicant has not claimed, and there is no evidence before the Tribunal to indicate that he has been contacted, warned or threatened by the Chinese authorities while in Australia.

   54.  The Tribunal accepts that the applicant may not be a supporter of the Chinese regime.  The Tribunal has accepted above that the applicant joined the CDP but has not accepted that he was a committed, active or knowledgeable member of the party, that he attended multiple rallies and protests in Melbourne, or that he was being developed for a role in the party in China. The Tribunal does not accept that the applicant has been involved in activities that would mark him as an activist or a dissident or make him a person of interest to the Chinese government. 

   55.  The Tribunal has also considered whether there is a real chance that the applicant would be seriously harmed if his having jointed the CDP were known, or became known, to the Chinese authorities.  The Tribunal notes that according to the USDOS, a few activists have returned in recent years, and while some have encountered no apparent problems, people who have participated in high-profile democracy activities in the US risk arrest and imprisonment upon return to China.  In the light of the country information set out above, the Tribunal finds that even had the applicant satisfied the Tribunal, which he has not, that his joining the CDP was for a purpose otherwise than strengthening his claims for protection, and even if his membership of the CDP were known to the Chinese government, he would not face a real chance of serious harm.”

2. The Tribunal next dealt with the questioning of two friends of the applicant in China but the findings the Tribunal made about this do not seem to me to be of any significance in the light of the way the case has progressed.  Similarly alleged interpreting issues appear to not now be of any moment.

3. The Tribunal went on to conclude at paragraph 57 that the applicant faced no risk of Convention-related harm if he were to return to China.

4. In considering the question of the complementary protection regime at paragraphs 68-70 (CB385) the Tribunal said:

   “68.  The applicant has advanced no additional reasons to those considered above for fearing that he would suffer significant harm if returned to China.  Asked at hearing whether there were any other reasons he feared harm on returning he said no. 

   69.  The Tribunal has found for multiple reasons that there is not a real chance the applicant will be harmed for reason of his political opinion.  For the same reasons set out above in relation to each of this claims, the Tribunal is not satisfied that there are substantial grounds for believing significant harm will occur or that risk of significant harm is more than theoretical or speculative. 

   70.  The Tribunal finds that there are not substantial grounds for believing that that as a necessary and foreseeable consequence of him being removed from Australia to a receiving country that there would be a real risk of the applicant suffering significant harm.”

5. The Tribunal went on formally to find that the applicant was not a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) and that the applicant was likewise not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act 1958 (“Migration Act”).

The grounds of application

The Tribunal asked itself the wrong legal question and/or failed to consider the real question that it had to decide, insofar as it assessed the risk of significant harm on account of applicant’s membership of the CDP and association with a chairman of the CDP by assigning to him to a generalised category of political dissidents/activists without considering the gradations and distinctive features within that category relevant to his individual circumstances – in particular, the risk associated with his and Mr Cheng’s specific political party affiliation (the CDP) as distinct from the risk faced by political dissidents/activists generally.

1. The applicant’s written and oral submissions concentrated on the proposition that the Tribunal had fallen into error by failing to consider the applicant’s personal position and merely dealing with him as a particular category of political dissident.  Complaint was made that the Tribunal had filed to have regard to relevant country information available to it, although some of that country information is plainly now somewhat out of date going back as far as 1999.

2. The complaint is effectively that set out at paragraph 15 of the written submissions:

   “However, (the Tribunal’s) selection of the evidence available, the matters it considered relevant and the matter in which it applied that evidence to its assessment, reveal an underlying failure to address the real question it had to decide:  the risk to (the applicant) as an individual, as a member of the CDP with links to the CDP’s chairman in Melbourne.” 

3. Relevant extracts of the decisions of the High Court in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 were set out in support of this proposition.

4. It does no disservice to the very thorough and comprehensive submissions made by counsel for the applicant to say that this characterisation of the applicant’s case, albeit put very shortly, is exactly what was asserted.

5. It was submitted that in treating being a member of the CDP and being an activist as mutually interchangeable the Tribunal fell into error.

6. This is a peculiar case because although it has been necessary to traverse the materials in some detail, the answer can be put as shortly as the question.

7. It seems to me that read fairly and as a whole the Tribunal examined the applicant’s particular case in considerable detail.  It examined his claims to have been a CDP member and activist in Melbourne.  It accepted that he had become a CDP member but found that this was only to enhance his Refugee Convention claims.  It also roundly disbelieved the applicant as to the extent of his political activity. 

8. The Tribunal was keenly aware that the CDP was a dissident body in China.  The entirety of the decision proceeds on the footing that membership of the CDP could give rise to persecutory treatment.

9. In my opinion, the Tribunal did not simply lump the applicant inappropriately in a sort of large group of otherwise irrelevant political activists.  Rather it examined the applicant’s claims against the country information available. 

10. In my view, no jurisdictional error is shown by this methodology.

11. In circumstances where the applicant’s central claims that were said to give rise to a fear of significant harm upon return to China were roundly disbelieved, in my view the applicant cannot possibly succeed in this application.

12. The passages I have set out in my view show that the Tribunal quite properly understood its function and discharged it.

Conclusion

1. I should mention as a matter of courtesy that while I have not dealt at any length at all with the applicant’s submissions, able as they were, and have made no mention to the first respondent’s similarly helpful and economical submissions,  I have, of course, had regard to them. 

2. The application will be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 December 2014