FEDERAL COURT OF AUSTRALIA

MZYTV v Minister for Immigration and Citizenship [2012] FCA 1256

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant to pay the Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding is an appeal from a decision of the Federal Magistrates Court [MZYTV v Minister for Immigration and Citizenship 2012 FMCA 585] dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2    The appellant is a Chinese citizen who arrived in Australia on 19 December 2010. On 8 April 2011 the appellant applied for a Protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 4 July 2011. The Tribunal affirmed the decision of the delegate on 23 November 2011.

3    The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The application was heard on 27 June 2012 and dismissed. The appellant now applies to this Court for judicial review of the decision of the learned Federal Magistrate.

The Appellant’s Claims

4    The appellant set out his claims for protection on three occasions. First, he did so in his Protection visa application and in an accompanying statement. The second occasion was when he attended an interview with a delegate of the first respondent on 30 May 2011 and gave evidence in support of his claims. Thirdly, he attended the Tribunal hearing on 16 November 2011 to give evidence and present arguments in support of his application. The appellant also provided the Tribunal with a copy of his learner driver’s permit, a boarding pass in a name other than his own dated 17 December 2010, and two photographs which he said depicted damage to his barber shop caused by police and police conducting a search of his mother’s house.

5    The appellant claimed to be Christian and a member of the Local Church (also known as the Shouters) in Fuqing City, Fujian Province. He claimed to have been brought up as a Christian by his mother, and to have been baptised when aged 6. After completing junior school, the appellant claimed to have travelled to Shanghai to study hairdressing, and on his return to Fuqing to have opened his own barber shop. He claimed that, although he was initially not very good at his chosen occupation, through prayer his business began to perform very well which he said was a gift from God.

6    The appellant claimed that in 2007 his mother attended a house gathering which was raided by police. He said that the police took away at least 10 of the congregants and placed them into detention for 15 days. After that event his mother was required to report regularly to police.

7    He continued to meet with other worshippers, although carefully, including meetings in his barber shop. He said police had come to his shop in May 2009 and warned him that he should stop spreading superstition. In June 2010, the appellant claimed his shop was raided during a house gathering, and in order to protect others he told the police that he was the organiser. He said that the police arrested and detained him for 15 days following the raid. During the detention he said that he had been put through a lengthy interrogation and when he refused to admit that God did not exist he was put up against a wall and punched and his back was hurt.

8    The appellant claimed to have been released from detention after his parents paid a fine of RMB 5,000. He said that he was required to see the police once per week thereafter. He claimed that following the raid the property owner transferred the shop to another person and his business was gone. He said that police frequently visited his home, searching it on one occasion for what he described as “cult propaganda materials”. He said his family was “turned upside down” and they felt threatened.

9    The appellant claimed that he entered Australia on a false Taiwanese passport, however he was unable to produce it because the passport had been taken away by the people who had arranged it for him. He claimed that since arriving in Australia he had been attending a Local Church in Sydney that he was taken to by a friend, and that he went to house gatherings once a week.

The Tribunal Hearing

10    Based on a wealth of independent country information the Tribunal accepted that some members of underground Christian churches may be subject to persecution by Chinese authorities.

11    However, the appellant was unable to provide any documentary evidence in support of his claims of being a member of such a church in China. The Tribunal found that he had not provided any documentary evidence of his having been born into a Christian family, having attended meetings or services, or of his having been baptised. Nor was any documentary evidence provided of his mother’s arrest and detention in December 2007, or of his own arrest and detention in June 2010. No documentary evidence was provided of the forced closure of his barber shop or his eviction from the business premises. The Tribunal considered that the appellant had sufficient opportunity to have gathered some such supporting documentary evidence in anticipation of his making an application for a Protection visa.

12    The Tribunal found that the appellant’s evidence in respect of his practice of Christianity both in China and upon his arrival in Australia was not credible, and that he gave inconsistent and confused evidence.

13    Some of the inconsistencies in the appellant’s claims at different times, as identified by the Tribunal, included:

(a)    the number of days the appellant claimed to have been detained by police;

(b)    the amount of the fine paid by his parents upon his release;

(c)    whether or not a conviction was recorded against him;

(d)    the time at which he was given his false passport;

(e)    whether he used his true or false passport to exit mainland China; and

(f)    whether he exited mainland China by bus or boat.

The Tribunal also found inconsistencies between the country information and the appellant’s account of the persecution he fears.

14    Based upon these and other matters, the Tribunal formed an adverse view of the appellant’s credibility. Ultimately the Tribunal did not accept that that the appellant had been truthful in his account of his circumstances in China. For example, the Tribunal did not accept that Chinese authorities had destroyed the appellant’s business, or that the appellant was of such interest to authorities that he had to flee China on a false passport.

15    The Tribunal did not accept that the appellant is a committed Christian or that he was a member of the Local Church in China. It found that his knowledge of Christianity was elementary. The Tribunal also did not accept that the appellant’s mother had faced persecution due to any beliefs she may have held. The Tribunal was not satisfied that the appellant’s conduct in attending church in Australia was otherwise than for the purpose of strengthening his claim.

16    The Tribunal was not satisfied that the appellant suffered past persecution, or that he had a well founded fear of persecution by reason of his religion or other Convention reasons, should he return to China.

Proceedings in the federal magistrates court

17    In his application filed in the Federal Magistrates Court on 22 December 2011, the appellant relied on the following grounds:

1.    The Refugee Review Tribunal (the Tribunal) did not comply with the duties imposed by section 430 (1) in my case.

2.    The Tribunal discounted the risk of being persecuted by Chinese authorities by stating that my hometown Fujian Province has the most liberal policies on Christianity in China (paragraph 90 of Decision Record). This is a judicial error because the Tribunal ignored to set up a well-founded fear test as per Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559.

3.    The Tribunal did not fairly assess my case. The tribunal expected me to provide evidence to prove my detention in China (paragraph 77 of Decision Record). Although I provide indirect evidence (paragraph 82 of Decision Record) and explained the obstacle in the actual situation for me to get direct evidence (paragraph 77 and 80 of Decision Record), all these evidence was ignored by the Tribunal (paragraph 91 of Decision Record).Hence, it gives grounds to believe that the Tribunal did not consider my evidence with care and fairness.

18    In relation to the first ground of review, the learned Federal Magistrate considered that the Tribunal had clearly set out its decision, the reasons for its decision, and its findings on material questions of fact and that it had referred to the evidence or other material on which the findings of fact were based.

19    At the hearing before the Federal Magistrates Court the appellant had also argued in relation to this ground that what he had told the Tribunal was true, and that he had a friend in a similar position who had been given a Protection visa. Her Honour held that findings of credibility were a matter for the Tribunal, and there was nothing to suggest that the friend’s matter had any bearing on the appellant’s case.

20    Her Honour found that on a fair reading of the Tribunal’s decision it had complied with the requirements of s 430(1)(a) to (d) of the Migration Act 1958 (Cth) (“the Act”), and that the first ground was not made out.

21    In relation to the second ground of review, the learned Federal Magistrate considered that the Tribunal had not ignored or applied the wrong tests in reaching its view that the appellant did not have a well founded fear of persecution. Her Honour referred to Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572 where the plurality observed:

A fear is well-founded where there is a real substantial basis for it. As Chan [Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate, but no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.

22    Her Honour considered that the Tribunal’s findings that the appellant was not a committed Christian and that he had not ever been a member of or in a leadership role within the underground Local Church, and its consideration of country information that indicated that the authorities in Fujian Province were more tolerant towards Christian churches, meant that the Tribunal was entitled on the evidence to conclude that the appellant’s fear was not well-founded because there was no real substantial basis for it. Her Honour rejected the second ground of review.

23    In relation to the third ground of review, her Honour was satisfied that the Tribunal did not ignore the appellant’s evidence, and instead, having considered it, found that it was not credible. Her Honour referred to paragraphs 78, 79 and 80 of the decision where the Tribunal referred to contradictions it found in the appellant’s evidence and the way he changed his evidence when propositions were put to him. In paragraph 82 the Tribunal concluded that his evidence was “confused, inconsistent and contrived”.

24    Her Honour held that the appellant did not show that the Tribunal failed to comply with its statutory obligations, that the Tribunal’s findings were open on the evidence, and that as they were matters which went to the merits of the claim, were not subject to review by the Court.

25    The application was dismissed.

The present proceedings

26    The Notice of Appeal before this Court provides:

1.    I clarified my evidence at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

2.    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. I used a fake passport to entered Australia as Chinese police did not allow me to have my own passport. I will be in high risk if I retune back to China, Chinese police will find me and persecute me.

27    First I note that the task of the Federal Magistrates Court in dealing with the judicial review application brought by the appellant was restricted to a determination as to whether the Tribunal’s decision was affected by jurisdictional error: see s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J.

28    This Court’s task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

29    Although the appellant was permitted to file written submissions prior to the hearing date, he did not do so. The appellant also had little to say in oral submissions. However he did contend that the Tribunal had wrongly required him to produce corroborative evidence of his arrest in China, when it was too difficult for him to do so. In my view, while the Tribunal did make mention of the appellant's failure to produce a number of documents which it apparently expected might have been available, the failure to provide evidence of his arrest was one of many such documents, and not of itself central to the rejection of his claims.

30    In considering the Notice of Appeal, both the first and second grounds of appeal appear to be little more than complaints that the learned Federal Magistrate did not make a decision with which the appellant was satisfied. It is well established that it is impermissible for a Court to engage in a review of the merits of the Tribunal’s decision. The weight to be given to evidence is a matter for the decision maker and a wrong finding of fact does not of itself give rise to jurisdictional error. Adverse credibility findings are matters which fall squarely within the Tribunal’s jurisdiction and are not ordinarily open to challenge in a judicial review application: see NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 at [67] per McHugh J.

31    As the learned Federal Magistrate found in dismissing the appellant’s application, given the Tribunal’s concerns as to the appellant’s credibility, it was open to it to reach the findings that it did. It was no part of the learned Federal Magistrate’s task or any part of this Court’s task to review the merits of the Tribunal’s findings. Neither Ground 1 nor Ground 2 of the appeal reveal any error on the part of the Federal Magistrate or the Tribunal.

32    In an affidavit sworn by the appellant on 10 July 2012 and filed as part of the appeal, the appellant deposes that the Tribunal was biased against him and did not make a fair decision on his application. The appellant did not otherwise particularise this serious allegation or support it with any evidence. However, in oral submissions the appellant sought to support it by arguing that the Tribunal was wrong in its finding that he made inconsistent claims in relation to the amount that he was fined in May 2010. He contended that he had always said that the fine imposed was RMB 5,000.

33    It is difficult to now unravel this issue. It is clear from the appellant's initial statement that he claimed to have been fined RMB 5,000 and was detained for three days, which was recounted in the decision of the delegate. However, at paragraph 48 of its decision the Tribunal said that in his interview with the delegate the appellant had said the fine was RMB 3,000 and that he was detained for three days, but at the hearing before the Tribunal he had said the fine was RMB 5,000 and he was detained for 15 days. Paragraph 48 indicates a concession by the appellant that he was in error as to the amount of the fine which he corrected after speaking to his father – who had paid it. Paragraph 79 of the decision records a concession by the appellant that he had initially made a mistake as to the length of his detention.

34    I do not have before me the transcript or tape of the appellant's initial interview with the delegate or a transcript of the Tribunal hearing, so I cannot know what the appellant said about the amount of the fine. It is not clear to me whether there was any inconsistency in the appellant’s versions regarding the amount of the fine imposed. It is plain that he did give inconsistent versions as to the length of his detention.

35    The appellant also argued that the Tribunal’s failure to accord much weight to the photographs he submitted indicated bias.

36    Contrary to the appellant’s submission, even if (on the best view for the appellant) the Tribunal was wrong in deciding that the appellant had given inconsistent evidence as to the amount of the fine (which is not established) this does not evidence bias. Nor is it indicative of bias that the Tribunal accorded little significance to the photographs when the Tribunal expressed a rational basis for its approach in that regard. These are peculiarly matters for the Tribunal and it is not the Court’s role to assess and weigh the evidence and to make findings in substitution for those of the Tribunal.

37    An allegation of bias is one that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. In order to establish bias the appellant must establish that the decision maker pre-judged the matter and that he had a mind closed to any argument in support of a contrary conclusion: SBBA v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] per Weinberg, Stone and Jacobson JJ. The appellant fell well short of establishing this. There is no evidence before me as to what occurred at the Tribunal hearing other than the Tribunal’s decision, and there is nothing on the face of the decision to indicate that the Tribunal member did not bring an impartial mind to the decision that he had made. There is no other evidence or indication that the Tribunal member had a closed mind or that he pre-judged the matter.

38    Again, it appears that the basis of the appellant’s complaint of bias is little more than that he does not accept that the Tribunal was entitled to assess the evidence and reach the adverse view that it did as to his history of involvement in the Christian church, his history of persecution in China, and whether he had a well-founded fear of persecution if he returned. This ground too must fail.

39    I can see no error in the Federal Magistrate’s decision, and no appealable error in the Tribunal’s decision.

Conclusion

40    The appeal must be dismissed and the appellant pay the respondents’ costs.

Associate:

Dated:    13 November 2012