SZDOF v Minister for Immigration
[2004] FMCA 1032
•29 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDOF v MINISTER FOR IMMIGRATION | [2004] FMCA 1032 |
| MIGRATION – RRT – Chinese Christian with little knowledge of that religion – no error of law by Tribunal. |
Migration Act1958 (Cth), s.483, Part 8
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZDOF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1412 of 2004 |
| Delivered on: | 29 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 November 2004 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent's costs in the sum of $4200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1412 of 2004
| SZDOF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act1958 (Cth) and s.39B of the Judiciary Act1903 (Cth) which challenges a decision of the Refugee Review Tribunal dated 6 April 2004 and handed down on 4 May 2004. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa.
The applicant asks that his case should be sent back to the Tribunal for reconsideration. Decisions of the High Court of Australia concerning limitations on judicial review under Part 8 of the Migration Act have held that the Court can only give this relief if it is satisfied that the Tribunal decision was affected by jurisdictional error. Such an error requires proof of a significant misunderstanding of the law or other legal error by the Tribunal or a failure to follow a procedure required of the Tribunal.
It is not part of the work of the Court to decide for itself whether the applicant's narrative put forward to the Tribunal was true or not true. The merits of the claim for refugee protection are a matter for decision, ultimately, by the Tribunal alone.
In the present case, the applicant arrived in Australia on 27 August 2003 on a one month business visa. On 29 September 2003 he lodged an application for a protection visa which was accompanied by a six page statutory declaration. This recounted a life history in which the applicant had been raised by a Christian household in which his mother was persecuted for her religion.
He claimed that he himself commenced in 1998 to evangelise by holding irregular religious gatherings in different places. He claimed that he had been a leader of a bible study group of 22 members and that this had led to persecution by Chinese authorities. The Tribunal summarised his account as follows (I shall substitute “Mr X” for references to the applicant):
He claimed that he was a Christian, having been baptised as a child. In 1998 he had begun to organise religious gatherings and had become a leader of a Bible study group. At the beginning of 2000 he had been questioned on several occasions by the authorities and had been ordered to register the group with the police or join the official church. He applied for this in April 2000. In July 2000, while the registration was pending, the local police (Public Security Bureau, PSB) raided the group and interrogated Mr X. The group was declared illegal, and he and two other “major leaders” of the group were detained for three months. On release they had to sign an undertaking not to continue religious activities unless they were carried out in the officially recognised church. They then did participate in official religious activities, but were dismissed from the official church for spreading dissident ideas.
In April 2001 the three were detained overnight by the PSB, and until January 2002 were required to do heavy manual work in a quarry (one died in an accident in the quarry, while Mr X and Mr W were released).
On release Mr X and Mr W recommenced underground religious activities. They set up seven Bible Study groups around Q city, and over 100 people became Christians. In June 2003 Mr W was arrested and sentenced to ten years in prison.
Mr X decided to leave China in case Mr W was forced to give information about him to the PSB. He departed on 26 August 2003.
According to the Protection Visa application form, he lived at his home address until August 2003.
He feared persecution for the Convention reason of his religion.
The applicant was invited to a hearing by the Tribunal. He attended and was assisted by an accredited interpreter. Although at earlier stages he had been assisted by a migration agent, his agent did not attend the hearing and no other witnesses were presented. The transcript of the hearing is not in evidence before me, but the Tribunal gives a detailed account of the hearing and I have no reason not to accept it as an accurate summary. It is clear that the Tribunal wished to test the applicant's account of having been a teacher of the Christian religion. On the account given by the Tribunal the applicant failed woefully to establish this.
The Tribunal's reasons contain the following passages:
Mr X confirmed that he had been a teacher of Christianity, having learnt about it from his family. His mother had been “devout”. I asked him to recite the Lord’s Prayer. He asked me what it was, and I told him that it was the most common of all Christian prayers. He said that it started “Heavenly father, you give us happiness, everybody loves other people, Lord you give us strength”. I asked him to identify some of the Ten Commandments. With considerable hesitation he responded “don’t get too greedy for beauty or money”. I asked him which commandment that was and he said that he did not know. I told him that because he did not seem to be familiar with basic aspects of Christianity, I had serious doubts that he had been a teacher of Christianity. After a brief adjournment, to give him time to consider his response to this, the hearing resumed. Mr X stated that all his evidence was true.
…
I told Mr X that his evidence had been rather vague and confused. He responded that his father had died in January this year because the PSB kept coming and his father had become angry. They had gone to his parent’s home in January because ti was New Year and they thought Mr X would visit home.
I asked him how the news of his father’s death had affected his ability to give evidence at the hearing, to which he responded that he had said “what [he] wanted to say”. However he had been thinking of his father’s death when trying to recall the Lord’s Prayer.
In light of this information, I asked Mr X several further questions in order to give him an opportunity to illustrate his knowledge of basic Christian beliefs. I asked him was Easter was. He responded that it was on a Friday in April each year and was the “anniversary of Jesus” who “brought us glory”. He said that he did not know what was commemorated at Easter. As to Christmas he said that it was on 25 December each year and commemorated the birth of Christ.
Finally, Mr X agreed that it was only the local PSB who appeared to be looking for him. I asked him why, if so, he could not live somewhere other that his home town in China. He responded that religious gatherings were not allowed anywhere. I reminded him of the US State Department’s evidence that small unobtrusive groups did not need to register. He responded that he would look for a family church. I reminded him that he had attended an official church before, and asked him what his objection might be to doing that again. He responded that he had only attended the official church in order to encourage its members to join his church.
I asked Mr X if there was any other evidence he wished the tribunal to consider, and he said that he was extremely fearful of return.
The Tribunal's questioning also revealed some inconsistencies in his responses which the Tribunal noted in its “findings and reasons”:
I am satisfied and find, that Mr X is a national of the People’s Republic of China.
Mr X claims to fear persecution in China for the convention reason of religion. He claims to have been baptised as Protestant as a child and to have had parents who were religious – in particular a mother who was a devout Christian. He also claims to have become a founding member, some six years ago, of an underground Christian group, and to have taught to others in a “Bible Study Group” for several years. He further claims to have attended an “official” church for some months. In other words he claims to have spent much of the past six years in the close and regular company of other Christians. One would expect a person with this background to be familiar with, at least, basic Christian terminology and concepts. However Mr X’s level of knowledge about Christianity was not consistent with anything more than the most superficial contact with it. He was not familiar with any of the Ten Commandments, nor did he know what significance Easter has for Christians. He was unfamiliar with the difference between the Protestant and Catholic churches, and it was apparent that he had not heard of the Lord’s Prayer. I accept that he has been attending a Chinese Christian church in Sydney for several months, and consider that his level of knowledge about Christianity is consistent with no more that that level of exposure to it.
While coming to this view, I have taken into account his claim that his father’s death in January this year was in his mind when he was trying to recall the Lord’s prayer, although he assured the Tribunal that, apart from his difficulty on that point, he had said “what [he] wanted to say” at the hearing. I accept that his father has passed away recently. It is understandable that Mr X is distressed by this news. However, if he were indeed a devout Christian, I do not consider that that can account for his lack of familiarity with the basic features relating to Christianity referred to above.
For these reasons I consider highly implausible and indeed do not accept that Mr X was a practising Christian in China or that he was suspected by the Chinese authorities of being one.
The application filed in this Court did not properly present grounds of review, and the applicant was ordered to file an amended application. He did so on 15 November 2004 in a document stating these grounds:
1. The case officer has never told me the reasons why he refused my application.
2. The Tribunal officer indicated to me that the evidence is not sufficient, he told me that if more evidences were provided, he could approve my application, however, he refused to accept any of my explanation at my hearing at all.
3. The Tribunal officer has been always suspecting about my claims, he is suspicious about all my claims. Under such circumstances, there would not be any fair decision made by him. He had bias against me.
4. The Tribunal officer refused to accept any of evidences provided at my hearing, he refused to give me any chance to explain myself. He did not assess my claims thoroughly before he made the decision. It is a jurisdiction error.
In relation to the first ground, it is enough to say the applicant has been told the reasons why his application was refused.
In relation to the second ground, the applicant has not presented to me any particulars or evidence indicating any unfairness in the proceedings before the Tribunal. On the Tribunal’s account of what happened at the hearing, it was plainly open to the Tribunal to reject the applicant's claims. There is no evidence that the applicant was mislead about how the Tribunal would conduct its review.
In relation to the third ground, no evidence has been put before me showing any actual or ostensible bias by the Tribunal, and the allegation of bias has no substance.
In relation to the fourth ground, no error of law arises from the Tribunal's failure to accept the applicant's claims. Nothing has been put to me to show that he was not given a reasonable opportunity to put forward those claims and any evidence he might have had in support.
The applicant appeared today before me and indicated that he had nothing to say in addition to what appeared in his amended application.
After hearing the submissions of counsel for the Minister, the applicant made a short statement to the effect that on the day of the Tribunal hearing he had been troubled and confused and unable to remember things. He repeated his complaint that the Tribunal had appeared not to want to hear his explanations. However, no evidence has been given to found any complaint of an unfairly denied opportunity to be heard.
For the above reasons I dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent's costs in the sum of $4200.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 19 January 2005
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