SZEJK v Minister for Immigration - [2007] FMCA 1987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1987

MIGRATION – Review of decision of RRT – where applicant makes claims about alleged errors that are not particularised.

Migration Act 1958, ss.422B, 424A

SZEPZ v Ministerfor Immigration [2006] FCAFC 107
SZBYR v Minister for Immigration [2007] 235 ALR 609

Applicant:

SZEJK

First Respondent:

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2560 of 2006

Judgment of:

Raphael FM

Hearing date:

12 November 2007

Date of Last Submission:

12 November 2007

Delivered at:

Sydney

Delivered on:

12 November 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2560 of 2006

SZEJK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on

30 January 2004
using a PRC passport in the name of another person. On 18 February 2004 he applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa. A delegate of the Minister refused the visa and the Refugee Review Tribunal affirmed the delegate's decision on 23 July 2004.
The applicant sought review of the Tribunal decision in the Federal Magistrate's Court and on September 2005 the decision was upheld. On appeal the Federal Court remitted the matter to the Tribunal to be heard and determined according to law.
The matter was remitted to a second Tribunal which took evidence from the applicant at a hearing and on 21 July 2006 determined to affirm the decision under review. The Tribunal published that decision on 15 August 2006.
The applicant's claims to be a person to whom Australia owed protection obligations arose out of his professed involvement with underground churches in his home state in southern China. The evidence given to the second Tribunal indicated that his parents were Christians and through them he was exposed to Christian doctrine in small family churches.
Contrary to evidence he had given in the first Tribunal the applicant did not make claims to have been a serious attender in his own right after he had reached adulthood and only became involved in a manner in which the authorities might consider to be contrary to the interests of the state when it found that he had been delivering Bibles for a friend. The applicant was a truck driver who had occasion to deliver goods from Hong Kong into Guangzhou or thereabouts and on several occasions it would appear that Bibles were in the cargo.
The applicant told the second Tribunal that someone had told the PSB about him delivering Bibles and that he now feared being charged for importing and distributing them. He had been detained by the PSB but had been released. He told the second Tribunal that three or four days after his release from detention the PSB he had gone to his hometown so he had fled to Guangzhou.
Whilst he had had no contact with the police during his stay in that city he had heard that the police were searching for him so he decided that he would have to leave the country and a friend gave him some assistance. The assistance appeared to include obtaining a passport for him in a false name.
The issue of the passport was a matter that had concerned the first Tribunal. To the second Tribunal he advised that the passport had cost 160,000 RMB but he did not know if he would have got a passport if he had applied for one in his own name.
The Tribunal accepted the applicant's story to it of what was described as his patchy level of knowledge about the basic aspects of Christian belief but noted that this was not consistent with his claim to the first Tribunal that he had been a committed and practicing Christian.
The Tribunal felt:
“His vague and internally inconsistent evidence about the extent of his exposure to Christianity in China casts considerable doubt on his claim that he came from a Christian family or attended any Church or prayer gatherings in China.” [CB 121].
The Tribunal also found his statement about his detention was internally inconsistent and that there were other inconsistencies in his evidence.
In regard to the passport the Tribunal said:
“As to his claims to have paid a large sum for his Australian visa, which was in a passport which he claims was not issued in his name, I consider reliable the evidence from DFAT and Goodman that it is easy to obtain false papers in China and easy to obtain a passport on someone else's identity. I accept that he did pay for someone to arrange various documents required to obtain the visa. However, while I am unable to establish the identify of the applicant with certainty, for the reasons I have given I am not satisfied that he would have been refused a PRC passport in his own identity because of his claimed religious activities.”
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of religion or for any other convention reason. The Tribunal preferred certain independent country information concerning the distributions of bibles in China which indicated that bibles were readily available and that the smuggling of bibles was not a matter that was of more concern to the customs than was required by mere monitoring.
In any event the Tribunal felt that his story concerning the smuggling of the bibles was not credible and therefore he would not be in danger of arrest for having done so should he return.
In the application filed in this court on 12 September 2006 the applicant suggested that the Tribunal had failed to comply with s.424A of the Migration Act 1958 (the “Act”). No particulars of that failure are provided. Mr Potts, with his usual thoroughness, has suggested in his helpful written submissions that the evidence that the Tribunal used was given to the second Tribunal by the applicant and was information that came within the exception contained in s 424A(3)(b); SZEPZ v Ministerfor Immigration [2006] FCAFC 107 at [39]. Mr Potts also makes reference to the High Court decision in

SZBYR v Minister for Immigration
[2007] 235 ALR 609 at [17] and [18] where the court held that for information to be part of the reason in a 424A sense it must amount to an undermining of the claims that the applicant has to be a person to whom a person owes protection obligations and reaffirmed that the information is related to the existence of evidentiary material or documentation and not the existence of doubts or inconsistencies.
Before me today the applicant made reference to the issue of his passport. I am not entirely sure how this fell within s.424A but I think it is significant that the passport issue was not relevant to this Tribunal as representing evidence of the applicant's lack of credibility and therefore I cannot see that s 424A would come into play in any manner in relation to this issue.
The second matter raised by the applicant in his application was that the Tribunal failed to comply with its obligations of procedural fairness. The obligation of procedural fairness in the applicant's case was limited by s.422B of the Act. There was certainly no common law duty of procedural fairness in his case. Once again the applicant fails to particularise in what way the Tribunal failed and it is not really appropriate for me to try and guess. He did say at the hearing that there were matters said by the Tribunal that he did not understand. If this is a reference to the standard of interpretation it is interesting that before the second Tribunal there is no mention of concerns regarding interpretation, which there was in the hearing before the first Tribunal.
The applicant has not told us whether the problems that he refers to were before the first or the second Tribunal but if they were before the first it does not matter because that decision has been superseded. If it was before the second there is no reference to it and without any reference in the decision itself I am unable to make any finding in the applicant’s favour in that regard.
In all the circumstances I have been unable to find any grounds upon which I can say that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the first respondents costs assessed in the sum of $4,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: