MZYBG v Minister for Immigration & Anor [2009] FMCA 67 (17 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYBG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 67

MIGRATION – Review of RRT decision – whether Tribunal in error in not giving appropriate weight to documents – whether failure to make a finding on a material issue – applicant seeking a merits review – application dismissed.

Migration Act 1958 (Cth), s.424A

Luu and Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73 Prasad v NIA [1985] FCA 47; (1985) 6 FCR 155 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 S20/2002 (2003) 198 ALR 51 Selvaduraivmiea and Anor [1994] FCA 1105; (1994) 34 ALD 347 WAIJ v Minister for Immigration & Multicultural Affairs [2004] FCA FC 74

Applicant:

MZYBG

First Respondent: Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL

File Number:

MLG 808 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

7 November 2008

Delivered at:

Melbourne

Delivered on:

17 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Cohrssen

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Ms Hamnett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application filed on 4 July 2009, as amended on 20 October 2008, is dismissed.
(2) The Applicant pay the First Respondent’s costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 808 of 2008

MZYBG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an amended application filed on 20 October 2008 the Applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) dated 27 May 2008, which decision affirmed an earlier decision of the delegate of the First Respondent to refuse the Applicant a protection visa.

Background

2. The Applicant is a citizen of the People's Republic of China (the PRC) who resided there prior to her arrival in Australia on 15 November 2004 as the holder of a visitor visa that was valid until 27 November 2004. On 24 November 2004 she applied for a protection visa.
3. She supported that application with a statutory declaration dated 18 November 2004 which outlined her claim, as it then was, that she feared persecution on the basis of her political opinion which was not tolerated by the PRC government.
4. There is a long migration history to this matter that has seen in an earlier Tribunal hearing the Applicant expand her claim to include a fear of persecution because of her then recent conversion, whilst in Australia, to Liansheng Buddhism. Her original claim for protection based upon her persecution for political opinion is still extant, but is now augmented by her claim centred on her conversion to Buddhism
5. The Applicant's claims were supported by a number of statutory declarations. In respect of the Tribunal decision under review in this instance, the Applicant made the following claims:
   1. She became dissatisfied with the PRC government because of financial difficulties that resulted from unemployment;
   2. She became involved with the Ordinary Citizens of Shenyang (OCS) led by Mr Tie Zhu Feng who was similarly disaffected by unemployment. The group met, and signed and distributed petitions to the PRC government concerning their plight;
   3. The OCS came to the attention of the PRC government and was categorised as an "anti-government movement". As a result, Mr Feng was arrested by the Chinese Political Security Bureau (PBS) and sentenced to three years "re-education";
   4. She was detained and questioned ten times;
   5. Following Mr Feng's arrest, she organised the printing of pamphlets calling for Mr Feng's release and staged a silent protest;
   6. She needed to leave the PRC because the OCS had been declared a subversive movement;
   7. Her husband received several subpoenas from the local PSB requiring her to attend its office for an interview;
   8. In March 2006, she became involved with the Liansheng Buddhist group and feared that her Buddhist practises would result in the PSB regarding her as even more subversive than before;
   9. She claimed that her husband, still resident in the PRC, was questioned by the PSB three or four times, most recently in August 2007; and
   10. She also claimed that the PSB had issued two further subpoenas requiring her attendance for questioning.
6. Significantly, as far as this review is concerned, in support of her application, the Applicant included two untranslated documents in the Chinese language dated 6 March 2005 and 4 January 2006 purporting to be subpoenas issued by the Heping branch of the Shenyang Municipal Public Security Bureau and addressed to the Applicant.
7. On 28 November 2007 the Applicant attended a hearing before the Tribunal in the company of her representative and a Mandarin interpreter. After the hearing, the Applicant submitted a letter of support from Mr Stephen Lai (President of Yeng Ming Tang Buddhist Meditation Centre) dated 2 December 2007.
8. In a letter dated 5 December 2007, the Tribunal requested the Department of Immigration & Citizenship Document Examination Unit (DEU) examine the four PSB subpoenas presented to it by the Applicant. By a report dated 29 January 2008 the Tribunal was informed that the examination of these documents was found to be inconclusive.
9. Pursuant to s.424A of the Migration Act 1958, on 6 March 2008 the Tribunal sent a letter to the Applicant inviting her to comment on information that might form the reason, or part of the reason, for affirming the decision which was under review. The letter invited the Applicant to comment on inconsistencies in her accounts between the Tribunal hearing of her previous review application and the second Tribunal hearing of her current review application.
10. In particular, the Applicant was invited to comment on:
    1. How she obtained her visa to enter Australia;
    2. Her introduction to and meeting with the OSC group;
    3. When, how and how often she was arrested by the PSB;
    4. Details of the protest she claimed to have organised;
    5. When and how she printed and distributed pamphlets; and
    6. When and how her friend, Gan Ning, was arrested.
11. The Applicant was also invited to comment on the DEU report and the lack of country information about the persecution of Liansheng Buddhists in the PRC.
12. The Applicant responded in a statutory declaration dated 17 April 2008 that:
    1. She was occasionally confused about events because she became anxious giving evidence at the hearing;
    2. Some of the information in the statutory declarations had not been properly translated for her;
    3. She was introduced to Mr Feng's group in November 2003;
    4. Meetings were held at Mr Feng's house until his arrest, some in large groups and some with only three or four attendees;
    5. The Applicant set out six separate occasions on which these meetings occurred; and
    6. After Mr Feng's arrest, meetings were held at the Applicant's house.

The Tribunal’s decision

13. The Tribunal did not accept as credible the Applicant's claim that she had a well-founded fear of persecution for a Convention reason.
    In particular, the Tribunal found that the Applicant provided inconsistent evidence in relation to:
    1. The circumstances of the OCS meetings;
    2. When the silent demonstrations took place;
    3. The nature of the OCS activities following the arrest of Mr Feng;
    4. The PSB's questioning of the Applicant;
    5. How she obtained her visitor's visa; and
    6. When the Applicant discovered Gan Ning was arrested.
14. The Tribunal in its decision recorded that it was not satisfied by the Applicant's explanation of these discrepancies in her response of 17 April 2008 (See [81]).
15. The Tribunal accepted that the Applicant provided documentary evidence in support of her claims. However, because the Tribunal was unable to establish that the documents were genuine, and because the Applicant's evidence otherwise was inconsistent, the Tribunal gave the documents little weight. (See [82-84] of the decision).
16. The Tribunal concluded that the Applicant may have been a member of the OCS but did not accept that the Applicant was an active member or leader of the group. The Tribunal did not accept that the Applicant was interrogated by the PSB and consequently, did not accept that she was of past or present interest to the PSB. (See [85] of the decision).
17. The Tribunal also concluded that the Applicant did not have a well-founded fear of persecution on the basis of her religious beliefs.
18. The Tribunal accepted that the Applicant converted to Liansheng Buddhism upon her arrival in Australia.
19. At [89] the Tribunal recorded that it had had regard to the evidence of Mr Stephen Lai that "to his knowledge students of Liansheng Buddhism cannot practise openly in China" and the Applicant's expression of concern that she would be unable to practise Liansheng Buddhism in the PRC because of the close connection between Liansheng Buddhism and Tibetan Buddhism.
20. The Tribunal found no country information to establish this ground but noted that Buddhism is one of five religions officially sanctioned by the Chinese government. The Tribunal received no further information about the treatment of Liansheng Buddhists even though the Applicant's representative had undertaken to obtain further information.

Grounds for review

21. The amended application set out two grounds for review:
    1. The Tribunal failed to take into account a relevant consideration in the form of four documents purporting to be official subpoenas issued by the PSB; and
    2. The Tribunal failed to make a finding of fact on a material issue, being whether practitioners of Liansheng Buddhism are subject to persecution in China.

Contentions

The first ground

22. In respect of the first ground relating to the fact the Tribunal gave little weight to the alleged subpoenas, the Applicant contends that, because the results of the investigation as to their authenticity proved inconclusive, they should have been given weight by the Tribunal.
    By way of an extension of that argument, I understood the Applicant to also contend that, because they were not found to be fraudulent they should, in fact, be taken as confirmatory of the Applicant's case. Because the Tribunal did not take this approach, the Tribunal manifestly was in error in reaching the conclusion it did. It should have given what the Applicant describes as proper weight to the subpoenas.
23. In support of that contention, the Applicant submitted that on their face the four notices were clearly probative. The contents of these notices, if accepted, would provide fundamental support for the Applicant's claim that she was being sought by the PSB for questioning in relation to her activities in an illegal organisation. The Applicant contended that this evidence, if accepted, makes the Applicant's evidence, whilst still inconsistent, true, as opposed to inconsistent and untrue. The issue of the acceptance of the authenticity of the subpoenas, the Applicant contends, is central to her claim of a well-founded fear of persecution if returned to the PRC.
24. The Applicant contended that the Tribunal had not identified a proper basis for excluding the four notices as not being genuine and thus their tendency to corroborate the Applicant's claim. The Applicant contended that in the absence of "a well that has been poisoned beyond redemption", the Tribunal should have proceeded to consider the contents of the documents in the context of whether the Applicant would suffer persecution on the ground of her political opinion, whether the subpoenas supported her story of being questioned by the PSB, and whether the content of the subpoenas meant the Applicant had a real chance of persecution. It was said that the subpoenas should have been considered independently from the finding of inconsistencies in her evidence.
25. In response to this ground, the First Respondent contends that to suggest the Tribunal did not consider the subpoenas is wrong, as they were considered and, indeed, referred to the DEU for testing in order to determine their authenticity. In the Tribunal's decision it confirmed that the authenticity of her documents was inconclusive.
26. The First Respondent contends that the subpoenas should not be considered in isolation and were properly considered in the context of all of the evidence presented by the Applicant. The Tribunal made critical findings about the Applicant's credibility. Having considered the subpoenas the Tribunal came to the conclusion it could give them little weight in the context of an assessment of the entirety of the evidence, much of which was found to be contradictory and inconsistent. This, in my view, was not an unreasonable approach to be adopted by the Tribunal.
27. Indeed, the weight that the Tribunal should and could give to the subpoenas is a matter for the Tribunal. In the circumstances of this case, where the Tribunal was not satisfied that the Applicant's evidence was credible, there was nothing irrational, illogical or unreasonable in the Tribunal's determination that the documents were of little assistance in determining whether it could be satisfied that the appellant had a well-founded fear of persecution for a Convention reason. (See S20/2002 (2003) 198 ALR 51; WAIJ v Minister for Immigration & Multicultural Affairs [2004] FCA FC 74).
28. In my view, the Applicant's efforts to distinguish the present circumstances from the principles outlined in S20/2002 and WAIJ on the basis that in those cases the Tribunal found the Applicants to have thoroughly misled the Tribunal to such a degree that there were comprehensive findings of untruthfulness, are misguided.
29. In the decision under review there were, indeed, comprehensive findings made against the Applicant's credibility.
30. I am satisfied that the Applicant's submission in relation to this ground where it engages in debate about the probative value of the subpoenas and draws issue with the weight actually given to the subpoenas by the Tribunal amounts to a request for a rehearing on the merits; a request which this Court does not have jurisdiction to entertain.
31. The first ground cannot be sustained.

The second ground

32. In respect of the second ground that the Tribunal failed to make a finding of fact on a material issue, namely as to whether practitioners of Liansheng Buddhism are subject to persecution in the PRC, the Applicant says that there was evidence presented to the Tribunal that would support a finding of fact to that effect. The Applicant relies on the evidence presented by Mr Stephen Lai and also that given by the Applicant. The Applicant describes the inadequacy of the Tribunal's consideration of the evidence of Mr Lai. The Applicant also criticises the Tribunal for referring to a lack of country information about any alleged persecution of Liansheng Buddhism and challenges the Tribunal for not having formed a probative evaluation of the fact that there was a lack of such evidence. In her contentions, the Applicant alleges the Tribunal "did not adequately consider" the supporting evidence of Mr Stephen Lai.
33. The First Respondent contends, in response to this ground, that it is another attempt to re-agitate the evidence with an allegation that the Tribunal failed to consider relevant evidence and the ground should be properly categorised as being an impermissible attempt to agitate a merits hearing. In my view, this is a proper categorisation of this ground.
34. The Tribunal had regard to the relevant evidence of Mr Lai, the Applicant and the limited country information available which appears in paragraph [89] - [90] of the decision. It is to be noted that the Tribunal was not required to accept uncritically any and all of the allegations made by the Applicant. (See Randhawa v Minister for Immigration & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 per Beaumont J; Selvaduraivmiea and Anor [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J).
35. This is particularly the case where the evidence submitted by the Applicant consists of bare assertions in circumstances where the Applicant has previously admitted to presenting untruthful material to the Tribunal, as is the case here.
36. It is for the Applicant to supply, in as much detail as necessary, the relevant facts of the case and any supportive evidence to enable the Tribunal to establish those facts. (See Prasad v NIA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu and Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45).
37. It is also to be noted that the Applicant, through her representative, undertook to obtain further information about the treatment of Liansheng Buddhism in the PRC. However, the Tribunal received nothing further.
38. It is also to be noted that "[the] Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims". (See Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73 at [16]). In the absence being satisfied that the Applicant is a person to whom Australia owes protection obligations, the Tribunal was required to refuse the grant of the application.

Conclusion

39. The two grounds for review set out and argued by the Applicant, in my view, are clearly attempts to re-agitate a hearing on the merits which this Tribunal does not have jurisdiction to do. Accordingly, the application for review must be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 17 February 2009