SZHKK v Minister for Immigration
[2007] FMCA 842
•23 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 842 |
| MIGRATION – RRT decision – Chinese applicant fearing persecution as Christian – disbelieved by Tribunal – no jurisdictional error found. |
Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b), 474, 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
| Applicant: | SZHKK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3064 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 23 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3064 of 2005
| SZHKK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 21 October 2005, which has been set down for a final hearing today on whether the applicant is entitled to relief under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 September 2005 and handed down on 22 September 2005. The Tribunal affirmed a decision of a delegate made on 16 March 2005, refusing to grant the applicant a protection visa.
The Court’s jurisdiction under s.483A has been repealed but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth), s.8). The Court’s powers are confined by s.474 so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he is entitled to a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on a three month temporary business visa in November 2004. His application for a protection visa was lodged on 6 January 2005, and disclosed no person who assisted him. A brief typed statement attached to the application set out his claims for protection in Australia against return to the People’s Republic of China.
The applicant claimed that “my parents and I are all Christians”. He claimed that his parents had been arrested for their Christian activities, and that “we had to pray secretly, we had to have gathering secretly”. He claimed to have organised other Christians in 2004 to present a letter to the local government seeking freedom of religion, and as a result:
I was regarded as a head of an illegal underground church. Local police came to search my home, and I was taken to the police for questioning for more than 5 hours. They warned me that they were still studying my case and considering whether they would charge me or not. I worried about my safety and came to Australia for protection.
The applicant provided no corroborative evidence of these claims either to the Department or to the Tribunal.
When refusing the application, the delegate referred to the claims as being “vague and lack detail and no evidence has been provided to substantiate them”. The delegate thought that it was “unlikely that a person of adverse interest to the PSB would be granted an exit visa”. He considered that if the applicant were of adverse interest to the authorities he would not have been able to depart the country. The delegate was not satisfied that the applicant had a well‑founded fear of persecution in China because of his religion.
On appeal, the applicant attended a hearing to which he was invited by the Tribunal, which was held on 31 August 2005. He was subsequently sent the tapes of the hearing, but has not tendered a transcript. The Tribunal gave a description of the hearing in its statement of reasons, and I have no reason not to accept it.
According to the Tribunal, it tested the applicant’s claims to have been a Christian against his knowledge of some elementary aspects of Christianity, and he was unable to reply to its questions.
The Tribunal’s reasons for affirming the delegate’s decision, given under the heading “Findings and Reasons”, are somewhat diffuse. However, in my opinion its essential reasoning appears clearly. It was that the Tribunal disbelieved the applicant by reason of his evidence given at the hearing.
After referring to the course of its questioning, and the details of his responses, the Tribunal summarised its conclusion:
In short, and given all the above, the Tribunal is satisfied that the Applicant[’s] vague and uninformed answers revealed no knowledge of the Bible or more important knowledge and awareness of the basic tenants of the Christian faith whatsoever, and the Tribunal has not been able to satisfy itself that he is a leader of the underground church in China, or even a Christian, and the Tribunal does not accept these claims. It follows that the Tribunal is satisfied that the Applicant does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason on this basis. It also follows that the Tribunal does not accept the claims that flow from this including that his parents were detained for two years in 1970 because they set up a little church themselves and had to pray and gather in secret; he suffered mental torment because of this; he was questioned for more than 5 hours in 2004 because he was regarded as “head of an illegal underground church” during which he suffered “mental torture” and the local police tried to charge him; or that he would be put in jail if he returned to China because he was a Christian. It further follows that the Tribunal finds that the Applicant has embellished his claims in order to enhance his claims for a protection visa, and the Tribunal finds he is not a credible witness.
When asked at the hearing how it was possible, if he was of any interest to the PRC authorities because he was a leader of the Christian church, that he was able to leave China, the Applicant replied he left secretly on somebody else’s visa but provides no evidence to support this claim and this claim is not accepted by the Tribunal. Further, and given it[s] earlier findings and his claims made both at the beginning of the hearing and in his protection visa, the Tribunal is satisfied that he left China legally on his own genuine PRC passport in his name without any difficulty, and is further satisfied that this would not have been the case if he was of any interest to the PRC authorities for any reason whatsoever.
The Tribunal then provided reasons rejecting his specific claim to have been involved in writing letters claiming religious freedom. It also considered whether the applicant would face any risk of persecution if he returned to China, absent the history which the Tribunal had found not to be credible.
I have considered the procedures and reasoning of the Tribunal, and I am not satisfied that they reveal any jurisdictional error affecting its decision.
The applicant’s application and amended application adopt precedents frequently seen in this Court, which show little thought as to their relevance to the particular case, and contain no particulars of the general allegations which would make them meaningful.
An allegation of bias made in the application and amended application is given no substance on the material before me, particularly since the applicant has not tendered a transcript of the hearing. I do not accept that the outcome of the case, or the Tribunal’s explanation of its reasons, suggests any bias. In my opinion, the Tribunal’s reasoning shows no more than an honest attempt on its part to arrive at findings as to the truth of the claims presented to it by the applicant.
The amended application also contains a general and unparticularised allegation of failure to carry out duties required by s.424A(1) of the Migration Act.
Counsel for the Minister in his written submission endeavoured to give some substance to this allegation by considering some references by the Tribunal in its “Findings and Reasons” to manifest inadequacies of detail in the applicant’s original visa application. However, in my opinion, these references were made for the purpose only to explain why the Tribunal questioned the applicant “to explore his Christian faith and knowledge at the hearing”. The Tribunal’s reasons for affirming the delegate, in my opinion, were based only upon information which it then obtained at that hearing.
I also explored with counsel for the Minister, the Tribunal’s reference in the last paragraph which I have extracted above, to “his claims made both at the beginning of the hearing and in his protection visa application … that he left China legally on his own genuine PRC passport in his name without any difficulty”.
It is clear from the Tribunal’s description of the hearing that the applicant did “give” this information to the Tribunal at the hearing in response to its questions, within s.424A(3)(b) as explained in authorities such as NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 and Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155. It is also clear that the same information was contained in responses to questions in the protection visa application. A concern about s.424A(1) might arise if the Tribunal’s reasons revealed it giving particular reliance on the latter source of the information. However, in my opinion the Tribunal’s statement does not reveal this. In my opinion, its reference to “both” sources of the information was neutral in this respect, and did no more than identify two sources for the uncontentious information upon which its finding rested. In that circumstance, on the current authorities as I understand them, no obligation arose under s.424A(1) (cf. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [83], [173] and [264]).
For the above reasons, and entirely unaided by any oral or written submissions from the applicant or particulars in his application, I am not satisfied that any failure to comply with s.424A(1) has occurred.
I am not satisfied that any of the applicant’s grounds of review are made out. In my opinion the Tribunal’s decision is therefore a privative clause decision, and I must dismiss this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 June 2007
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