MZZVX v Minister for Immigration

[2014] FCCA 1214

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVX & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1214

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – no failure on the part of the Refugee Review Tribunal to consider claims – no obligation on the Refugee Review Tribunal to conduct a general enquiry – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

First Applicant: MZZVX

Second Applicant: MZZVY

Third Applicant: MZZVZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1972 of 2013

Judgment of: Judge Whelan

Hearing date: 23 May 2014

Date of Last Submission: 23 May 2014

Delivered at: Melbourne

Delivered on: 23 May 2014

REPRESENTATION

Counsel for the Applicants: Applicants in person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 18 November 2013 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1972 of 2013

MZZVX

First Applicant

MZZVY

Second Applicant

MZZVZ

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. I attempted, at the beginning of this hearing, to explain the role of the Court in terms of a judicial review. It is not always something that is easy for an applicant to understand. In dealing with the application in this case, the Court cannot consider new material, but only the material that was already before the Refugee Review Tribunal (“the Tribunal”) and cannot interfere with findings of fact made by the Tribunal unless the Tribunal failed to consider some material that was before it, or considered material that it should not have considered.

2. The Tribunal made a decision on 25 October 2013 in which it affirmed a decision of the delegate of the First Respondent to refuse the First, Second and Third Applicants (collectively “the Applicants”) protection visas. The Applicants now seek that the decision of the Tribunal be quashed.[1] The Applicants make other statements under the heading of ‘Orders sought by Applicant’, but these are not orders as such.[2]

   [1] Application filed 18 November 2013, at p.3.

   [2] Ibid at p.4.

3. The Applicants are Chinese nationals. The First Applicant arrived in Australia on a student visa on 14 August 2007 and the

   
   

   Second Applicant arrived in Australia on 11 March 2008, also on a student visa. The Third Applicant was born in Australia in 2011 and is the daughter of the First and Second Applicants.

4. The applications for protection visas were not made until 11 May 2012. When the delegate of the First Respondent made a decision to refuse to grant those visas, the Applicants applied to the Tribunal for a review of that decision. The Tribunal invited the Applicants to a hearing which occurred on 9 October 2013. On 25 October 2013, the Tribunal made its decision and on 18 November 2013, the Applicants lodged this application for review.

5. The First Applicant, in a statement in support of her claim for protection, made the following claims:

   ·She had grown up with her Aunt and attended local church family gatherings with her;

   ·On 4 February 2007, she was to be baptised by her church in an abandoned warehouse;

   ·The police came and the First Applicant injured her head and broke her leg while trying to flee from them;

   ·She was found with a bible guide in her possession and was fined and given a warning by the police; after this incident, the church gatherings became more secretive but they were eventually discovered again by the police;

   ·The police informed the First Applicant’s school and she was criticised and discriminated against; she was then sent overseas to study;

   ·After arriving in Australia, the First Applicant began participating in church activities and was eventually baptised;

   ·She had on-line discussions with her Aunt about Christianity and sent information to her Aunt about church gospel publications;

   ·At Christmas 2011, the First Applicant’s Aunt was summoned by the police and the church gospel publications were seized; and

   ·The First Applicant stated she feared harm as a member of the local church should she return to China.

6. The First and Second Applicants met in Australia. The

   
   

   Second Applicant previously had no religion but once he started living with the First Applicant, he began to attend church and was baptised in July 2012. The Second Applicant claimed to be on bad terms with his father and step-mother.

7. At the time of the Tribunal hearing, the First Applicant was pregnant and expecting a second child. The Applicants stated they feared harm for reasons of violating family planning laws in China and, in particular, that they would face financial penalties and pressure from society and the Third Applicant would be discriminated against as a child born in contravention of family planning laws in China.

The Tribunal decision

1. The Tribunal made significant adverse credibility findings against the First Applicant. In particular, the Tribunal did not accept that she was a Christian in China and had suffered the incidents of harm she had claimed as a result of this. The Tribunal did accept that the First and Second Applicants had taken up Christianity in Australia and practised here. However, having regard to country information, particularly the attitude towards Christianity of authorities in the region of Fujian, the Tribunal found the Applicants could continue to practice their religion in Fujian without facing a real risk of significant harm.

2. The Tribunal also found that the Applicants’ families had the capacity to discharge the family planning fee imposed and that the

   
   

   Third Applicant and the subsequent child would be able to be registered. The Tribunal did not accept that the Applicants would suffer any harm arising from the circumstances of the Third Applicant’s birth or the birth of the further child they were expecting. The Tribunal did not accept the Applicants would suffer any stigma amounting to serious or significant harm for reason of contravention of family planning laws, and the Tribunal found that the financial material that was submitted with the First Applicant’s student visa application showed that her family had considerable financial resources. For these reasons,

   
   

   the Tribunal found that the Applicants did not meet the refugee criterion, and nor did they meet the complementary protection criterion.

Grounds of review

1. The First Applicant raised the following grounds of review in her application:

   1, I am on (sic) a student background from rural area of Fu Jian province of China. As a (sic) adherent of Local Church I have been ill treated by government authority and fear to return to origin.

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

   3,  Tribunal failed to consider my unmarried status and poor financial hardship to support family in particular our Australian born child, as well as our devastating difficulty to pay social compensation fee in origin due to our breach of family planning law.

   4, RRT consider failed (sic) to offer me more chance for explanation and lack of investigation in my case.[3]

   [3] Application filed 18 November 2013, at p.4.

2. In the proceedings today, I raised with the First Applicant the grounds for the application. The First Applicant responded in oral submissions however much of what she had to say was either a repeat of what had been put before the Tribunal, or an attempt to raise new material. In the submissions made by the First Respondent, the First Respondent referred to the fact that the core findings of the Tribunal were based on its assessment of the credibility of the Applicants. The Tribunal had concluded that the First Applicant’s evidence could not be relied upon and its findings followed from that conclusion, the country information before the Tribunal and the information that was contained in support of the Applicants’ original applications for student visas.

3. The allegation that the Tribunal failed to offer the First Applicant a chance to explain her position is, on the First Respondent’s submission, not borne out by the Tribunal’s record, and the Tribunal was under no obligation to make further investigations.

Conclusions

1. Much of what the Applicants have put essentially relates to a dissatisfaction with the Tribunal’s findings. Insofar as they could be said to raise any grounds for judicial review, the claims raise a failure on the part of the Tribunal to:

   ·Consider the claims with respect to a fear of harm arising from religious belief;

   ·Consider the First Applicant’s unmarried status and poor financial position with respect to the payment of a social compensation fee; and

   ·Give the Applicants an opportunity to explain their case and an overreliance by the Tribunal on country information.

2. At paragraphs 24 to 50[4] of the reasons for decision, the Tribunal sets out the country information with respect to the local church in China. This is followed, at paragraphs 106 to 115,[5] by the Tribunal’s recounting of the questions put to the First Applicant with respect to her involvement with the local church. The Tribunal put to the

   
   

   First Applicant some of the contradictions in her claims. At paragraphs 133 to 134,[6] the Tribunal put to the First Applicant some of the contradictions between her evidence and country information.

   [4] Court Book filed 26 February 2014, at pp.95-102.

   [5] Ibid, at pp.118-120.

   [6] Ibid, at p.123.

3. At paragraphs 159 to 170,[7] the Tribunal analysed the contradictions, made findings about the credibility of the First Applicant’s evidence and drew conclusions. The Tribunal did not accept that the

   
   

   First Applicant was involved in the local church in China and found that there was not, in any event, a real risk that the Applicants would suffer serious or significant harm if they chose to practice their religion in China. I am satisfied that the Tribunal did consider the Applicants’ claims with respect to religious belief.

   [7] Court Book filed 26 February 2014, at pp.128-130.

4. With respect to the status of the Applicants and any difficulty in paying a social compensation fee, the Tribunal set out the general position at paragraphs 51 to 90[8] of the decision. Information with respect to the position of the extent of such fines was put at paragraphs 116 to 118[9] of the decision. Information obtained from the Applicant’s student visa applications was put to them at paragraphs 123 to 132.[10] At paragraph 152,[11] it was put to the Applicants that their parents were able financially to assist them in paying a fine.

   [8] Ibid, at pp.102-115.

   [9] Ibid, at p.120.

   [10] Ibid, at pp.121-123.

   [11] Ibid, at p.126.

5. At paragraphs 171 to 174,[12] the Tribunal set out its findings on the issue of the capacity of the Applicants to pay the fine and register their children. Again, I am satisfied that the Tribunal gave consideration to the Applicants’ case, but did not accept it.

   [12] Ibid, at pp.130-131.

6. The Applicants were invited to appear before the Tribunal in the usual manner and to give evidence and present arguments.[13]

   [13] Ibid, at pp.77-78.

7. The Tribunal hearing was deferred for one day because of the unavailability of an interpreter. During the hearing, matters adverse to the Applicants were put to them, and there were breaks in the hearing. The Applicants were invited to comment and respond to the information put to them, and they were invited to confer with each other before doing so if they wished. The Applicants were not denied an opportunity to put their case.

8. The Applicants lastly complained that the Tribunal determined the case on the basis of country information. It is a matter for the Tribunal to consider the evidence before it and to give that evidence the weight it considers to be appropriate.[14] It is not up to the Tribunal to conduct a general inquiry.[15] It is for the Applicants to present to the Tribunal the evidence they consider to be appropriate.[16]

   [14] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

   [15] Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594.

   [16] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 596.

9. I am not satisfied that there is any ground to criticise the Tribunal for a failure to investigate the case. For these reasons, I am not satisfied the Tribunal has made an error of law or jurisdiction warranting the quashing of the Tribunal’s decision.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 12 June 2014