MZYUK v Minister for Immigration and Citizenship

INTRODUCTION 1 This is an appeal from a judgment of a Federal Magistrate (MZYUK v Minister for Immigration and Citizenship [2012] FMCA 642) in which the Federal Magistrate dismissed the appellant's application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the appellant a Protection (Class XA) visa ("Protection Visa"). 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 476 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 4 When the matter was called on this morning the appellant did not appear. An attempt was made to contact the appellant, but was without success. I determined to hear the appeal in the appellant's absence. For the reasons that follow, I determined to dismiss the appeal. 5 The appellant's Notice of Appeal contains two grounds of appeal. Within those grounds are four allegations. As against the Tribunal, the appellant alleges that an error of law was made in that the Tribunal undervalued the seriousness of the risk of persecution which he faced. The appellant further alleges that the Tribunal made an unfair statement that he was not a credible witness. The only challenge made to the decision of the Federal Magistrate is that the Federal Magistrate failed to consider the appellant's situation. An affidavit of the appellant which was filed with the Notice of Appeal also alleges the Tribunal was biased against him and did not make a fair decision. 6 None of those grounds point to any particular error on the part of the Federal Magistrate or any jurisdictional error on the part of the Tribunal. 7 The Tribunal did not accept that the appellant had a well founded fear of persecution for a Convention reason, should he be returned to China. The Convention to which I refer is the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together "the Convention"). Whilst the Tribunal accepted that the appellant was a Christian and had been involved in activities of an unregistered church, the Tribunal found that there was no more than a remote chance that the appellant would face serious harm for reason of his Christianity, or his involvement in an unregistered church, should he be returned to his home province of Fujian. 8 The Tribunal relied on country information which indicated that Christians in Fujian are able to practice their religion whether in registered or unregistered churches without attracting adverse interest from the local authorities. The Tribunal rejected the appellant's evidence that he had been persecuted by reason of his Christianity and his participation in an unregistered local church in China. It came to that view because it reasoned that there were significant inconsistencies and contradictions between the appellant's written statement, which was provided in support of the appellant's visa application, and the oral evidence which the appellant gave. The inconsistencies related to the circumstances in which the appellant's mother had been detained after she was allegedly arrested for attending a church gathering, and the appellant's alleged arrest and treatment whilst detained after attending a church gathering allegedly raided by police. There were other inconsistencies found by the Tribunal in relation to reporting conditions alleged to have been imposed on the appellant by the police upon his release from detention. 9 The Federal Magistrate considered the Tribunal's reasons and concluded that the adverse credibility findings made by the Tribunal were open on the evidence. The learned Federal Magistrate also concluded that the Tribunal was entitled to rely upon the country information and weigh that information as part of its fact finding function. Again the conclusions reached by the Tribunal on the basis of the country information were regarded by the Federal Magistrate as open to it. No allegation of bias was made by the appellant in the grounds of the application made to the Federal Magistrates Court and the Federal Magistrate did not deal with that matter. 10 No attempt has been made by the appellant to identify any error committed by the Federal Magistrate and none is apparent. The Federal Magistrate considered each of the grounds of the application before her and there is no basis for the appellant's unparticularised assertion that the Federal Magistrate did not consider his situation. 11 I should add that on my reading of the Tribunal's decision, there is no jurisdictional error apparent and the complaints made about that decision in the appellant's grounds of appeal are without merit. The Tribunal assessed the risk of the appellant being persecuted should he be returned to China. It was clearly open to the Tribunal to have made the findings it made, both in relation to the testimony of the appellant and also in reliance upon the country information before the Tribunal. The complaint that the assessment undervalued the appellant's risk of persecution is no more than an unfounded complaint that the Tribunal weighed the evidence in a manner unfavourable to the appellant. The Tribunal's finding about the credibility of the appellant was open given the significant inconsistencies in the appellant's evidence. There is nothing which suggests any bias on the part of the Tribunal. 12 For these reasons, the appeal ought to be dismissed and the appellant be ordered to pay the first respondent's costs of the appeal. I will make orders to that effect. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.