SZGSI v Minister for Immigration

Case [2006] FMCA 1541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1541
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to comply with its obligations under s.424A(1) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal misstated evidence of applicant in finding that applicant’s fear of persecution was not well founded.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 474; pt.8 div.2
SZEEU v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALD 630
SZGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 431
First Applicant: SZGSI
Second Applicant: SZGSJ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG1803 of 2005
Judgment of: Emmett FM
Hearing dates: 22 February & 10 October 2006
Date of last submission: 10 October 2006
Delivered at: Sydney
Delivered on: 18 October 2006

REPRESENTATION

Solicitors for the Applicant: Ms J. Kinslor, Christopher Levingston & Associates
Counsel for the Respondent: Mr G. Johnson
Solicitors for the Respondent: Ms E. Palmer, Clayton Utz
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1803 of 2005

SZGSI

First Applicant

SZGSJ

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2005.

  2. The first named applicant was born on 15 May 1979 and claims to be from the People’s Republic of China (“the PRC”) and of Chinese ethnicity and Christian faith (“the Applicant”). The second named applicant is the Applicant’s husband and his application depends on the Applicant. Whilst both are applicants before this Court, I shall refer only to the Applicant.

  3. The Applicant arrived in Australia on 25 October 2004, having legally departed from Gaoqi on a passport issued in her own name and a visitor’s visa issued on 8 October 2004.

  4. On 5 November 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

  5. In her protection visa application, the Applicant claimed that she feared persecution from the Chinese government and the Public Security Bureau (“the PSB”) due to her Christian religion and participation in underground church activities, which included establishing a petrol station that operated as a secret liaison station of an unregistered or underground church. The Applicant claimed that she was the head of the liaison station, which was a secret place to receive and distribute religious materials and communicate with other religious groups.

  6. On 22 November 2004, a…

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AGLC
SZGSI v Minister for Immigration [2006] FMCA 1541
Case
[2006] FMCA 1541
Decision Date

CaseChat Overview and Summary

The Applicant, a citizen of the People's Republic of China, sought a review of a decision by the Respondent that she was not a refugee. The Applicant contended that she was at risk of persecution if she were returned to China due to her religious activities and her role in the illegal distribution of religious materials. The matter was heard by the Administrative Appeals Tribunal, which upheld the decision of the Respondent. The Tribunal was required to determine whether the Applicant's claims about her past activities and the risk of future harm were credible. The Tribunal needed to assess the evidence provided by the Applicant, including her explanation of her role in the distribution of religious materials, the activities of a person referred to as Ms H, and the vulnerability of her husband.

The Tribunal found that the Applicant's evidence was inconsistent and lacking in credibility. The Applicant claimed that Ms H, who had been imprisoned, continued to deliver materials from early 2001, which the Tribunal found implausible given the risks involved. The Tribunal also noted that the Applicant's assertion that her husband was vulnerable due to his role as manager of a petrol station used for secret activities seemed to be an afterthought. The Tribunal further found that the Applicant's husband did not support this claim, suggesting that he was not involved in any illegal activities. The Tribunal also expressed doubts about the provenance of brochures presented by the Applicant as evidence of her activities. Ultimately, the Tribunal concluded that the Applicant's claims were not credible and that she was not a reliable witness.

Having found the Applicant's claims to be lacking in credibility, the Tribunal concluded that the Applicant was not a refugee under the relevant Convention. The Tribunal specifically found that the Applicant had not been subject to any past harm for reasons of her religion and did not face a real chance of prospective harm. The Tribunal rejected the Applicant's claims of specific targeting due to her religious profile on the grounds of credibility. Consequently, the Tribunal upheld the decision of the Respondent that the Applicant was not a refugee.

The Tribunal ordered that the decision of the Respondent be affirmed, meaning that the Applicant's application for review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal was not satisfied about the Applicant’s evidence in relation to the role played by Ms H. The Tribunal noted that the Applicant claimed Ms H was imprisoned for two years in September 1999, yet was able to deliver materials secretly from early 2001. The Tribunal observed that, even if the Applicant was confused about the timelines involving her evidence about Ms H, the Tribunal was not satisfied that a person, such as Ms H, previously convicted of illegal religious activities would be able to resume work, even secretly, in receiving and further distributing religious materials. The Tribunal expressed its concerns about why such an expensive and high profile operation as running a petrol station would be chosen as a secret liaison station. Further, the Tribunal was not satisfied about the explanation by the Applicant of her husband’s potential vulnerability because he was the manager of the petrol station and noted that such an assertion appeared to be “an afterthought”. The Tribunal noted, in particular, that the Applicant’s husband appeared to be a more cautious person who could readily have identified such a claim of concern about his position as general manager vis a vis the PRC authorities and his role in the underground activities of the petrol station if, in fact, he had any connection with illegal activities. The Tribunal found that the fact that the husband did not make any such claim led it to conclude that the Applicant’s claim about any potential vulnerability on the part of her husband because of his activities lacked veracity. The Tribunal had regard to brochures presented by the Applicant at the hearing as examples of the materials she distributed in the PRC, however, was not satisfied as to the provenance of the documents and did not find them corroborative of the Applicant’s claim to have distributed such materials in the PRC. Ultimately the Tribunal concluded that, in view of all the factors to which it had referred, it was not satisfied as to the veracity of the Applicant’s claims and concluded that the Applicant “is not a reliable witness”. The Tribunal noted its particular lack of satisfaction: a)that the Applicant was ever head of a secret liaison centre, b)that the Applicant had participated in the illegal distribution of religious materials, c)that she had been involved in any other illegal activities, that she had suffered harm for reason of such activities, d)that she is currently being sought by authorities, that her children are currently being moved around different locations because of adverse interest in the Applicant, ande)that she faced a real chance of prospective harm for this, or any other reason. The Tribunal noted that it rejected the Applicant’s claims of specific targeting due to her religious profile on credibility grounds. The Tribunal found that, having considered the Applicant’s claims individually and cumulatively, the Applicant has not been subject to any past harm for reason of her religion and she does not face a real chance of prospective harm for this or any other reason. For those reasons, the Tribunal was not satisfied that the Applicant has a well founded fear of Convention related harm in the reasonably foreseeable future and is not a refugee.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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