SZAKZ v Minister for Immigration
[2004] FMCA 221
•31 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKZ & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 221 |
| MIGRATION – Review of RRT decision – where Tribunal doubted the credibility of applicant’s claims – whether there was sufficient material before the Tribunal to justify findings of adverse credibility. |
Federal Magistrates Court Rules 2001, Pt 21 r 21.02(2)(a)
MIEA v Wu Shan Liang (1996) 185 CLR 25
| First Applicant: | SZAKZ |
| Second Applicant: | SZALA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 656 of 2003 |
| Delivered on: | 31 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 31 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicants: | Applicants in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $3,900 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 656 of 2003
| SZAKZ |
First Applicant
| SZALA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants in this matter are husband and wife. They are citizens of the People's Republic of China. They arrived in Australia on 25 October 2001. On 20 November 2001 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 11 January 2002, a delegate of the Minister refused to grant protection visas and on 23 January 2002 the applicants applied for review of that decision. On 5 November 2002 the Tribunal wrote to the applicant offering an opportunity to appear and a hearing took place. The Tribunal handed down its decision on 3 April 2003. The decision was to affirm the original decision of the delegate.
The applicant who was a resident of Fujian Province is one of the Han people and his religion is Christian. He claims to have a well-founded fear of persecution for the convention reason of religion. His father was a Christian. He claimed that his father suffered considerably as a result and that he himself was placed in a re-education farm between 1974 and 1984. After a period of unemployment, he worked in certain enterprises but between June 1998 and July 2000 he was on a reform farm as a result of the authorities discovering his association with what is known in China as a secret church. The applicant claimed that in January 1994 another Christian and friend of his father had set up a secret church in his home town of which he became an early member. The applicant told the Tribunal that there were approximately 100 members of this church, which was too many to meet in one single private home and so they moved between homes. The applicant claimed that he and the gentleman who had set up the church had frequently been detained and questioned by the authorities. He claimed to have been interrogated in September 1994, detained in 1995 and 1996 and again in 1997.
The applicant claimed that in June 1998 he was arrested when he organised religious training at another friend's house and was sentenced to two years of "reform through labour". Within this program he had been physically mistreated and forced to give up his underground church activities. After his release he was kept under surveillance and had to report regularly to the police, was forced to take part in political studying and had his religious activities restricted.
In the course of the Tribunal discussions it was revealed that the applicant had travelled to Thailand for a short period but returned to China. The applicant told the Tribunal that he had gone to Thailand with his church in the hope of proselytising but had not found any interest from the Thai people.
The Tribunal considered independent country information concerning Christianity in China and in particular the situation of Christians in the Fujian province. This information confirmed the existence of the secret or house churches and revealed that the Chinese authorities had a reasonably anodyne view of them and of their adherents provided that they kept themselves discreet and did not disrupt the Chinese authorities, described as "public order". The Tribunal also expended some time on considering passport and exit procedures in China.
In its findings and reasons, the Tribunal stated:
[49] “I do not accept that the applicant is a witness of truth and I am satisfied that he has fabricated his claim to refugee status. I do not accept that the applicant has ever been arrested, interrogated, detained or committed to forced labour because of his religion...
[50] I do not accept that the applicant was, when he left China to travel to Australia, or would be, if he were returned to China, of adverse interest to the Chinese authorities. ...
[52]… I am satisfied that the applicant does not have a genuine or well-founded fear of persecution by reason of his religion if he were to return to China.”
The reasons that the Tribunal gave for coming to the conclusions recited above were:
(1)That the applicant was unable to provide any independent corroboration of several episodes of arrest, detention and false labour. The Tribunal concluded that this allowed it to compare his statement with the independent country information and make a finding on his credibility in the light of what is known about the treatment of Christians in China.
(2)The Tribunal assessed the information which the applicant gave it about his involvement in the secret church and came to the conclusion that the country information which it had did not support the particulars of persecution in so far as they had been aimed at a man in the position which he occupied.
In other words, the Tribunal did not believe that a man whose relationship to the secret church was as the applicant had told it would have been subject to that type of persecution based upon the country information.
The Tribunal concluded that this particular secret church was not likely, again on the basis of independent country information, to have attracted the attention of authorities.
The Tribunal was not satisfied that the applicant had a genuine fear because of the fact that he went to and then returned from Thailand and delayed his departure for Australia until 25 October 2001, some five weeks after he had received his Australian visa.
Country information cited by the Tribunal clearly allows it to come to the conclusions which it made. I am not satisfied that there has been shown any jurisdictional error or indeed any error in the manner in which the Tribunal came to it's conclusions in regard to those matters. When the applicant appeared before me, he made submissions which were a combination of factual matters and refutation of some of the findings to which the Tribunal had come. It is not the function of the court to review the merits of the Tribunal's decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272 per Kirby J at [292]:
“A decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions ... often the decision maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people and typically come before the courts.”
In these circumstances there is little I can do to assist the applicant. He was provided with an opportunity of persuading the Tribunal of the veracity of his claims. He was unable to do this. That is the Tribunal's duty par excellence. I must dismiss this application which I do. I will order that the applicant pay the respondent's costs which I assess in the sum of $3,900 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13.04.2004
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