MZZTV v Minister for Immigration

[2014] FCCA 1949

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1949

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – Applicant a citizen of China – breach of family planning laws – allegation made by the Applicant that the Tribunal member discriminated against her – Applicant’s six year delay in making application for protection – no jurisdictional error – application dismissed.

Legislation:

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Applicant: MZZTV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1637 of 2013

Judgment of: Judge Hartnett

Hearing date: 14 August 2014

Delivered at: Melbourne

Delivered on: 14 August 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Mr Hornsby

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 2 October 2013 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1637 of 2013

MZZTV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings commenced by Application filed 2 October 2013, wherein the Applicant sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made 6 September 2013 (‘the Decision’).  The grounds as set out in that Application were as follows:-

   “1, I am on a student background from China and a member of Local Church in China and Australia, and was ill-treated by government authority. 

   2, RRT failed to consider my fear in origin due to my commitment to religion. 

   3, Tribunal failed to consider my financial hardship to support my Australian born child and my financial ability to pay social compensation fee due to my breach of family planning law. 

   4, RRT consider our case unfairly, judging my commitment of religion by taking my response to the questions to bible study rather than offering me more chance of exploitation on faith.”

2. In addition to those grounds and set out under the heading “Orders as sought by the Applicant” were further grounds stated as follows:- 

   “1, I could not agree with Immigration and RRT’s decision as my real situation in respect of the risk due to my commitment of religion and practice in origin, as well as my financial hardship and marital relation have not been well considered.

   2, RRT made ignored the fact and made wrong judgment on my current compelling situation with two children alone.  I am in great financial hardship and living on debts.

   3, RRT member judged my Christian faith simply by my knowledge in stead of taking evidence from my church, ignoring my ability of expression, psychological and stressful mood at hearing..”

3. Registrar Allaway made Orders on 18 December 2013 in these proceedings that enabled the Applicant to file and serve any amended application and affidavit of evidence by 7 March 2014.  The Applicant filed no further material.  The Applicant was also required to file and serve written submissions by 31 July 2014, but failed to do so. 

4. I accept the submission of the First Respondent that the “grounds” and “orders” as set out in the Application filed by the Applicant seek impermissible merits review, and also demonstrate a misunderstanding of the basis of the Tribunal decision, by the Applicant. 

5. The First Respondent filed the Court Book on 14 November 2013 and its contents are in evidence in the proceedings before me.  The First Respondent sought the dismissal of the application and that costs follow the event.  The First Respondent relied upon an Outline of Submissions filed by it and dated 7 August 2014. 

6. By her Application filed on 2 October 2013, the Applicant sought judicial review of the Decision, which affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant to the Applicant a Protection (Class XA) visa.  To obtain relief from this Court, the Applicant was required to show jurisdictional error in the Tribunal’s decision.  The Applicant failed to do so and thus the application is dismissed.

Background

1. The Applicant is a citizen of China who arrived in Australia in 2006 as the holder of a student visa.  On 18 July 2012, the Applicant applied to the Department of Immigration and Citizenship, as it then was (‘the Department’) for a Protection (Class XA) visa.  This was six years after her arrival in this country.  At the hearing, it was suggested to the Applicant that she had been in Australia for six to seven years and during that time she had not indicated a need for protection - that it seemed she applied for protection only at a time when her other visa options appeared to be few.  The Applicant said she had a student visa and if it were not for her brother’s experience, she would not have applied for protection. 

2. The Applicant’s claims were articulated in a statement accompanying her application for the Protection (Class XA) visa.  She claimed to fear persecution on the basis of her membership of the Local Church in China.  She also claimed that her brother had been arrested by the Chinese authorities and detained for a month after requesting the authorities changed their policy on the Local Church.  The Applicant also claimed to fear harm as a result of having two children out of wedlock, neither of whom are included in her Protection (Class XA) visa application.  Further, she claimed to have been disowned by her father. 

Tribunal Hearing

1. On 28 May 2013, the Tribunal invited the Applicant to attend a hearing before it on 24 June 2013 to give evidence and make submissions.  On 5 June 2013, the Applicant requested a postponement of that scheduled hearing which the Tribunal granted.  The Tribunal invited the Applicant to a rescheduled hearing on 20 August 2013.  On that date, the Applicant attended the Tribunal hearing and was assisted by an interpreter in the Mandarin and English languages. 

2. In affirming the delegate’s decision to refuse to grant the Applicant a Protection (Class XA) visa, the Tribunal, as accurately summarised in the First Respondent’s submissions:-

   a)accepted that the Applicant was a Christian, an active attendee at Local Church house gatherings in China and that she had continued to practise her Christianity in Australia.  The Tribunal also accepted that the Applicant’s brother also practises the religion in the Local Church and that she was not known to authorities prior to the claimed police house raid of her brother’s home in 2012;

   b)did not accept as plausible that the Applicant’s brother had “sacrificed himself” by directly approaching the authorities to press the case of the Local Church and accordingly rejected the claimed events that logically followed.  The Tribunal also noted that the claims surrounding her brother’s house being raided did not feature in her statement that accompanied her Protection (Class XA) visa application and were made only for the first time at the Tribunal hearing.  It did not accept that such a “key set of events” would be omitted from the statement if they had actually occurred.  The Tribunal therefore found the Applicant was not known to the authorities because of her brother’s actions or because she had sent him religious materials;

   c)on the basis of accepted country information found that as an ordinary practising member of the Local Church, the Applicant did not face either a real chance or a real risk of harm in China.  In finding this, the Tribunal weighed the “large amount of information” it had considered against the Applicant’s assertions and preferred the conclusion reached in the wide range of independent sources; 

   d)accepted that the Applicant maintained a “spiritual connection” with her brother on the internet and had sent him Christian materials in the past, but did not accept on the available country information that this gave rise to a real chance of serious harm;

   e)was not satisfied on the available evidence that there was a real chance that the Applicant would be forcibly sterilised in the reasonably foreseeable future.  The Tribunal found that although the Applicant may experience “social stigma” as an unwed mother, this would not amount to serious or significant harm and it rejected her claims that she would not be able to find appropriate work or child care.  The Tribunal also did not accept that the rejection of the Applicant’s children by their grandparents amounted to serious or significant harm;

   f)although not raised by the Applicant, the Tribunal considered whether the Applicant would face harm as a result of breaching the family planning laws.  The Tribunal found the Applicant did not contest that she would be able to service a fine of “15,459 RMB” and rejected her claims that it would be much higher.  The Tribunal also found the imposition of this fine would be the result of a law of general application and there was nothing to indicate it would be applied discriminatorily to her; and

   g)the Tribunal was also not satisfied that there were substantial grounds for believing that the Applicant faced a real risk of significant harm.  The Tribunal specifically found that none of the consequences of the Applicant’s breach of the family planning regime, even considered cumulatively, amounted to significant harm. 

3. On the hearing of the matter this day, the Applicant made submissions that the Tribunal member was rude to her; that he cut her off; and that he was annoyed by the noise her children made during the hearing.  In essence, she claimed that he discriminated against her.  This is a very serious allegation and there is nothing before the Court on the hearing of this matter or as contained in the Tribunal’s decision to support the making of such an allegation, let alone any positive finding in respect thereto. 

4. It is not for this Court to engage in merits review.  Each of the claims made by the Applicant were expressly considered by the Tribunal individually and cumulatively, and relevant country information was put to the Applicant for comment. Each of the findings made were clearly open on the probative material before the Tribunal.  The statement of decision and reasons is a well-considered and comprehensive statement dealing with the claims made by the Applicant.  The Tribunal plainly accepted that the Applicant was a Christian who had continued practising her faith on return to China.  It expressly considered her claim to fear harm in China because of her religion and also her capacity to pay a “social compensation fee” for breaching the family planning laws which it noted were laws and policies in China of general application and would not be applied to her for any Convention[1] reason.  

   [1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 August 2014