MZZQD v Minister for Immigration
[2014] FCCA 777
•2 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZQD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 777 |
| Catchwords: MIGRATION – Application for a protection visa – whether the Refugee Review Tribunal was illogical or unreasonable in reaching its conclusions – whether the Applicant was denied procedural fairness – whether the Refugee Review Tribunal’s conclusions were based on an assessment of credibility – conclusions open on the material before the Refugee Review Tribunal – no denial of procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Devries v Australian National Railways Commission (1993) 177 CLR 472 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 |
| Applicant: | MZZQD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1228 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 2 April 2014 |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 2 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 6 August 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1228 of 2013
| MZZQD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
Introduction
This is an application for a review of a decision by the Refugee Review Tribunal (“the Tribunal”) of 11 July 2013. The decision of the Tribunal was to affirm a decision of a delegate of a Minister to refuse the Applicant a protection visa. The Applicant seeks orders that the decision of the Tribunal be quashed, and that a writ of mandamus be directed to the Tribunal, requiring the Tribunal to determine the application according to law.[1]
[1] Application filed 6 August 2013, at p.3.
The Applicant is a Chinese citizen who first arrived in Australia on a visitor’s visa on 26 December 2010. She returned to China on three occasions during the course of 2011. On 17 January 2012,
the Applicant made an application for a protection visa and that visa was refused by a delegate on 31 July 2012. The Applicant then lodged an application for review by the Tribunal and attended two hearings on 31 January 2013 and 8 February 2013. The Tribunal issued its decision on 11 July 2013,[2] and this application for judicial review was filed on
6 August 2013.
[2] Court Book filed 10 February 2014, at pp.79-107.
Background
The Applicant’s claims for protection were set out in a statement
filed with the Department of Immigration and Citizenship
(“the Department”).[3] The Applicant stated that, during her second visit to Australia, she met a person who introduced her to a local Christian Church, and that she had come to believe in God. She also stated that, on her third trip back to China, she took some religious pamphlets with her and organised a gathering of friends at her house to discuss Jesus and the Bible. While the Applicant was holding a religious gathering, the local police raided her home which resulted in her being arrested and having a fine of 10,000 RMB imposed on her for holding an illegal gathering.
[3] Ibid, at pp.41-43.
The Applicant was required to write a letter of repentance and warned that, if she was caught again, she would be sent to a detention centre. Her husband paid the fine and she was released a day later.
The Applicant then left China three days later because she believed she could be arrested at any time and felt that she was in danger. Five days after leaving China, the Applicant heard that her mother had died,
but she had not dared to return to China for the funeral.
The Applicant subsequently lodged the protection visa on the basis that there was no religious freedom in China and she feared that she would be persecuted if she returned there. The Applicant stated that her daughter was living in Melbourne and studying there, and that her husband was living in China.
The decision of the Tribunal
At the Tribunal hearing on 31 January 2013, the Applicant gave a different account to that contained in the written statement.
The Applicant stated that:
·She had been a Christian before she came to Australia;
·Her parents had been Christian believers and had told her stories about Jesus; and
·She had attended a Christian Church at Christmas time.
The Tribunal considered that the Applicant’s accounts of the Christian gathering she had organised at her home in China when she returned there contained a number of inconsistencies such as:
·How often the gatherings took place;
·What nights they were held on;
·How many gatherings were held at other people’s homes; and
·How many people had been taken to the police station after the raid.
Further, the Pastor at the Church in Australia that the Applicant claimed to have attended had been contacted by the delegate of the Minister.
He had said that he had no knowledge of the Applicant and that her name was not on the list of Church members. The Applicant told the Tribunal that this was because newcomers were not enrolled in the Church until they had been baptised and had been attending for
18 months.
The Tribunal found that aspects of the Applicant’s evidence were unreliable, inconsistent and lacking in credibility. The Tribunal referred to statements such as the fact that the Applicant’s husband was living in China, when he was actually living in Sydney, and that her daughter was unable to attend the hearing as she had left for China, when she was actually still in Melbourne.
The Applicant also stated that she had come to believe in God after being introduced to a local Christian Church in Australia, but later stated that she had been a Christian before she came to Australia as her parents had been Christians. The Tribunal found the Applicant’s account of her parents’ Christianity to be vague and inconsistent, and her knowledge of key Christian calendar events to be poor. The Tribunal did not accept that the Applicant’s parents were Christians, or that the Applicant had any Christian beliefs, or had attended Church in China, prior to arriving in Australia.
The Applicant’s level of knowledge of Christianity and her participation in religious activities was considered by the Tribunal to be at odds with her claims to have taken religious material back to China and to have organised religious meetings there. The Tribunal concluded that the Applicant was not a genuine Christian. It accepted that the Applicant had attended Church in Australia, but found that the Applicant had done so solely for the purpose of strengthening her refugee claims.
Having concluded that the Applicant was not a genuine Christian, and that there were inconsistencies between her written statement and her oral evidence, the Tribunal concluded that the Applicant’s claims that police had broken up a gathering of Christians at her home in China, resulting her arrest, were not genuine. As the Tribunal found that the Applicant had only made claims in relation to religious freedom and, as it found that she was not a genuine Christian, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution should she return to China.
Grounds for review
The Applicant, in her grounds for review, refers to three grounds:
·The Tribunal was illogical and unreasonable in concluding that, because when the Pastor of the Church she claimed to attend in Australia was asked about her, and he did not recognise her name, it should reject her evidence that she had attended Church in Australia and had provided religious material to a Church in China;
·The Tribunal applied an unfair standard to the evidence; and
·The Tribunal did not afford her procedural fairness, in that the Tribunal, in rejecting her evidence, did not take into account the psychological pressure the Applicant was under, which adversely affected her memory.
In her oral submissions, the Applicant repeated, and elaborated on, those grounds.
The First Respondent’s submissions
In written submissions,[4] the First Respondent submitted that the Tribunal did not, in fact, find that the Applicant had not attended Church in Australia. Rather, it considered that she had not attended Church in China. It further found that her attendance at Church in Australia was solely for the purpose of strengthening her refugee claims.
[4] First Respondent’s Contentions of Fact and Law filed 27 March 2014.
In reaching these conclusions, the Tribunal took into account a number of factors. These included:
·Vague and inconsistent evidence given about her parents’ religious beliefs;
·
The Applicant’s level of knowledge about the Christian faith,
in particular, her view with respect to the main events in Christianity; and
·The fact that the Pastor of the Church in Australia that the Applicant claimed to have attended regularly for 12 months had not known her name.
The Tribunal also found that the Applicant had not provided religious materials to a Church in China, and this was based on a number of concerns about the Applicant’s evidence. There were inconsistencies in the Applicant’s written and oral evidence about the Church gatherings. It was implausible for the Applicant to have organised and held a series of house meetings during a three-week visit back to China.
Country information indicated that there had been no reports of arrests or detention of Christians in the Applicant’s province since 2008, except for a single incident in May 2011.
There was an inconsistency between the Applicant being unknown to the Pastor of the Church in Australia she claimed to have attended regularly, and being committed enough to her new faith to risk taking Christian magazines into China and to risk organising Church meetings at her home. The First Respondent submitted that the Tribunal made findings that were open on the material before it.
With respect to the second ground, the First Respondent submitted that the Tribunal took account of the Applicant’s evidence and her responses, but ultimately formed the view that aspects of the Applicant’s evidence could not be accepted. Credibility findings are a function of the primary decision-maker and are not open to review by the Court.[5] It is for the Tribunal to accept or reject evidence, and to give such weight as it thinks appropriate to the evidence before it.[6]
The First Respondent submits that the Tribunal did not err in considering the evidence provided by the Applicant and in forming its conclusions about her claims.
[5] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609.
[6] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464.
With respect to the third ground, the First Respondent submitted that the Tribunal noted that it understood that the Applicant might be nervous, or not have a good memory at an early stage of the first hearing.
The First Respondent submitted that the Applicant was afforded procedural fairness, in that she was provided with an opportunity to give evidence and present arguments. The Tribunal also put to the Applicant information which might have caused the Tribunal to determine against her. The Applicant’s responses to the Tribunal’s questions were indicative of the Applicant being in a fit state to represent herself before the Tribunal at the two hearings and being afforded a real and meaningful opportunity to be heard.
Conclusions
The Applicant claims that the Tribunal:
·Was illogical and unreasonable in rejecting her evidence;
·Applied an unfair standard to the evidence; and
·Did not afford her procedural fairness, because it failed to take into account her psychological state.
A want of logic, in itself, does not constitute an error of law and cannot constitute a ground for judicial review.[7]
[7] NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235.
Not every lapse in logic will give rise to jurisdictional error. Illogicality or irrationality sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came in relation to the state of satisfaction required under s.65 of the Migration Act 1958 (Cth)
(“the Act”) is one which no rational or logical decision-maker could arrive at on the same evidence.[8]
[8] SZOZF v Minister for Immigration and Citizenship & Anor [2011] FMCA 364.
A finding not based on logical grounds will only give rise to an error of jurisdiction if there is no evidence to support the finding. The
First Respondent, in written submissions, has taken the Court to a number of matters upon which the Tribunal relied in rejecting the Applicant’s evidence about providing religious material to a Church in China. I am satisfied that there was evidence on which the Tribunal could rely in reaching its conclusion and that there was a sound basis for its findings.
The Tribunal was neither illogical nor unreasonable in rejecting parts of the Applicant’s evidence on the basis of plausibility. In this case,
the Tribunal’s rejection of the Applicant’s claim was based on the Tribunal’s assessment of her credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472, the High Court states the following in relation to a Trial Judge’s finding of credibility.
I refer, in particular, to the part of the judgment where the Court said that, to overturn a finding made on credibility, the Court would need to be satisfied that the Trial Judge “acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable””.[9]
[9] (1993) 177 CLR 472 at 479.
It is for the Tribunal to accept or reject evidence and to give the evidence before it the weight it considers to be appropriate. There is nothing in the decision to suggest that the Tribunal made findings which were inconsistent with facts incontrovertibly established by the evidence, or which were glaringly improbable. In those circumstances, the Court cannot review the merits of the Tribunal’s findings.
With respect to the issue of procedural fairness, it is difficult to see where the Tribunal failed in its statutory obligations. The Tribunal noted that the Applicant might be nervous or not have a good memory. There was no medical evidence to suggest that the Applicant was incapable of participating in the proceedings before the Tribunal.
An applicant may be denied natural justice if their capacity to participate in a hearing is ‘significantly diminished’ by a mental illness or similar condition.[10] The applicant bears the onus of establishing the absence of fitness to give evidence. A hearing may proceed notwithstanding some measure of psychological stress or disorder in the applicant.[11]
[10] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365.
[11] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56.
In this case, the decision record does not suggest that the Applicant was incapable of answering the Tribunal’s questions, and there is no evidence to suggest that her capacity to participate in the hearing was ‘significantly diminished’.
For these reasons, I am not satisfied that the Applicant has raised a case for jurisdictional error on the part of the Tribunal, and the application is therefore dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 16 April 2014
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