SZHMU v Minister for Immigration - [2006] FMCA 495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 495

MIGRATION – RRT decision – Chinese person claiming persecution for involvement in underground church – Tribunal not satisfied – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZHMU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3235 of 2005

Judgment of:

Smith FM

Hearing date:

7 April 2006

Delivered at:

Sydney

Delivered on:

7 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G T Johnson

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 $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3235 of 2005

SZHMU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 4 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 October 2005 and sent to the applicant the following day. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The applicant’s application for a protection visa was lodged while he was held in Villawood Detention Centre on 16 August 2005, and he remains held in detention. Expedited procedures have therefore been followed within the Department, the Tribunal and in this Court.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed nor whether he qualifies for a refugee visa.
The applicant’s application for a protection visa claimed that he had arrived in Australia in June 2005 on a false Hong Kong passport showing a different name. His application was presented with the assistance of a migration agent, who also assisted the applicant before the Tribunal.
His claims for protection in Australia from return to his country of nationality, The People’s Republic of China, were contained in brief typed insertions in the form. He claimed to have come from a family which was “a traditional Christian family”. As a boy, he said, people came to the family home:
There are more and more people come to my home to worship God and meet together to exchange idea and experiences about bible. These kinds of activities had been lasted for several years until 1989. In October 1989 police came to my home and drove people away and said we could not do the same activities any more.
He claimed that people continued to meet, pretending to play “Majiang (a kind of game played by many people like play cards) and let child stand at door to watch strangers coming”. He claimed that he had been such a “watchdog for the home church since 1989 when I was 18”. From 1995 he had worked with other young people to organise a youth Christian league, and that his activities were tolerated by the local police until 2004. He said at that time:
So police came to visit my home in March 2004 and asked us to stop our activities. I was taken to detention for a few days and to be questioned about our activities. I was warned by local police that I would be taken into jail if they found the same thing happened.
He said that printed material which he had prepared was found by police in May 2005, and he was alerted that police were prepared to take action. He then decided to escape, and said: “I could not get a passport legally from authority I have to pay money to get a false passport under name [KSW]”. No more details of his exit procedures were given.
A delegate refused the application three days after it was made on 19 August 2005, and the applicant lodged an application for review on 24 August 2005. He attended a hearing by the Tribunal to which he was invited on 14 September 2005. On 20 September 2005, his agent forwarded Chinese documents showing his identity in China, and also a document which was described as “a letter which is from China to certify that SZHMU is a member of an underground Church in [location], China”. The letter is entirely in Chinese characters, and it is unclear to me whether the Tribunal was able to read it.
The Tribunal’s reasons for affirming the delegate’s decision summarised the applicant’s claims, and described the evidence given at the hearing, without attempting to give a complete summary of the hearing. I find it difficult from the Tribunal’s description to form any impression about how the questioning was conducted. However, it is clear that the Tribunal gave the applicant an opportunity to explain his involvement in the underground congregation, and questioned him about his claims and his knowledge of Christianity. The Tribunal also questioned the applicant about his travel and departure from China, and identified many difficulties with his evidence on that topic. The applicant changed his evidence under questioning, and was evasive.
Under the heading “Findings and Reasons”, the Tribunal gave brief reasons containing its assessment of the applicant’s claims to have belonged to an underground Christian congregation. It said:
The Applicant’s evidence about his family’s church is unimpressive. The claims about making him the watchdog whilst the congregation prayed, ever ready to feign being in the midst of a round of mahjong, is dismissed as far‑fetched. The Tribunal is prepared to accept, however, that mahjong could have been a regular activity in the Applicant’s family home.
Ultimately the Applicant was unable to distinguish in any meaningful detail the difference between what was being taught in his church and what was being taught in state‑registered churches. His evidence about the Taiwanese was also impressive [sic: unimpressive]. It is reasonable to expect that someone who claims to have published material on behalf of a church that was grown in the PRC with the help of Taiwanese “planters” would have a far better idea as to who his supporters were. The Tribunal is of the view that if any Taiwanese ever visited the Applicant’s village, then they came as he sometimes claimed: as businessmen and as nothing more controversial than that.
The Applicant has some Christian knowledge but he has been unable, in his evidence, to satisfy the Tribunal that he gained it outside of a registered church in the PRC. The Tribunal does not accept on the evidence before it that he belonged to an unregistered religious community in any way or form. The Tribunal is prepared to accept that he grew up in a Christian family, but the Tribunal finds no grounds on which to accept that the Applicant has taken much interest in Christianity in his adult life.
The Tribunal then referred to the problems with the applicant’s evidence about his journey out of the PRC, showing an understanding that it is not inconceivable that a claimant might be motivated not to give truthful or complete answers about that topic. The Tribunal said, however, that it “does not accept that the Applicant left the PRC in the circumstances described or for the reasons claimed”.
The Tribunal then said:
Having accepted that the Applicant may well be [his claimed name], the Tribunal is prepared to accept that the Applicant may not really be [the name in the passport], but it does not accept that he took on that identity for the reasons claimed. His application fails for lack of credibility.
The Tribunal is not satisfied that the Applicant faces a real chance of Convention‑related persecution in the PRC, or in Hong Kong for that matter. His claimed fear of such persecution is not well‑founded. He is not a refugee.
The application filed in this Court on 4 November 2005 contains three grounds which are as follows:
1.I am a citizen of China who claims to have a well‑founded fear of persecution for reasons of my religious beliefs in China under the Refugee convention by the Refugee protocol.
2.The Tribunal ignored or failed to consider a claim you made to it.
3.There is on the face of the Tribunal RRT decision no basis for making such a statement. Tribunal was in error of law as there was no evidence before it to support the opinion.
These do not assist the applicant to establish jurisdictional error in the Tribunal’s decision. The first is only a maintaining of the refugee claim, and the second has no substance on my reading of the Tribunal’s reasons.
The third ground is misconceived, in that it suggests that there was “no evidence before it to support the opinion”. However, the Tribunal was not obliged to identify evidence disproving the applicant’s claims. The applicant failed before the Tribunal because he was unable to satisfy it that his evidence should be believed.
In his submissions to me today, the applicant’s first contention was that the Tribunal had not understood the situation of the underground church in China and the fundamental distinction which, he said, was that the underground church was led by Christ, not by the state. However, I am not persuaded that the Tribunal did not understand the reasons for the existence of underground congregations in China and the reasons why they are subject to persecution. The Tribunal’s reasons accepted the existence of an “underground church”, and attempted to assess whether the applicant had gained his Christian beliefs and knowledge in such a congregation or from other sources. I do not consider that it shows any misconception of the applicant’s claims when doing this, and I consider that its conclusions were open to it as a matter of law.
The applicant’s second contention was unclear to me. He said that the Tribunal misunderstood his response to a question where he had used the word “we” rather than “I”, and he felt that the Tribunal had unfairly criticised him for that. He could not clarify this, nor point to any other matter of concern arising from the conduct of the hearing. However, as counsel for the Minister pointed out in submissions, in the absence of a transcript of what happened at the hearing it is impossible for the Court to form an assessment of whether anything that was said by the Tribunal could give rise to jurisdictional error. I am therefore unable to give this complaint any substance.
The applicant belatedly sought further time to present evidence of the hearing. However, in my opinion he has been given a reasonable opportunity to present that evidence to the Court, and has not taken that opportunity. At the first court date which was conducted by me on 7 December 2005, directions were made and explained to the applicant which required him to file any evidence in support, including a transcript, by 3 February 2005. The applicant has had possession of the tapes, and they were also sent to the member of the legal panel appointed to advise the applicant. I note that such advice was given. The applicant appeared before me again on 21 February 2005 when I set the matter down for hearing today and did not object to that listing. Taking into account all the circumstances, including the obscurity of the complaint made by the applicant, I am not prepared to delay my judgment to allow the applicant further opportunity to present evidence of the hearing.
Counsel for the Minister raised in his written submission the perennial question as to whether the Tribunal’s reasons displayed evidence of a failure to comply with s.424A(1) of the Migration Act. However, on my reading of the Tribunal’s reasons, I do not consider that an issue arises which could provide an argument which would assist the applicant. The Tribunal’s reference to the contents of the applicant’s visa application shows, in my opinion, at all times no more than an assessment of the merits of the claims of the applicant. I do not consider that the Tribunal took information from the visa application and used it as part of the reasons for affirming the delegate’s decision. I consider its reasoning falls within the third proposition in [24] of VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, and is not subject to any of the qualifications on that paragraph which are suggested in the recent Full Court decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.
For the above reasons, I have not been able to find jurisdictional error affecting the decision of the Tribunal. I consider its reasons essentially turned on an issue of credibility, which was the province of the Tribunal. Other decision‑makers might have arrived at a different assessment of the applicant’s claims, but I can find no jurisdictional error vitiating this Tribunal’s assessment. I must therefore find that the Tribunal’s decision is a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 April 2006