SZHRO v Minister for Immigration & Anor
[2006] FMCA 1460
•5 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1460 |
| MIGRATION – Refugee Review Tribunal – procedural fairness – application of section 424A – application refused. |
| Migration Act 1958, ss.424A, 425 |
Applicant: | SZHRO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
File Number: | SYG3479 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 3 October 2006 |
| Date of Last Submission: | 3 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms Quinn |
Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application filed 29 November 2005 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3479 of 2005
| SZHRO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed 29 November 2005 seeking review of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa. In his amended application filed on 22 May 2006, the applicant argues that the tribunal decision was affected by jurisdictional and procedural error, the latter constituted by an absence of procedural fairness.
Background
The applicant is a 34 year old citizen of the People’s Republic of China. Before coming to Australia, the applicant was a lift technician in a hospital affiliated with a University in Fuzhou City, Fujian province.
The applicant claims to have been the leader of an underground Christian youth group comprised of three sub-groups and approximately 60 members. In his submissions to the tribunal, the applicant states that in January 2005 Mr Huang, one of the leaders of a sub-group, was subjected to investigation by the Security Department at the university for illegally spreading religious propaganda around the university and the hospital. It was suggested to the applicant that he go overseas in case Mr Huang identified him as his direct leader to the police. While the applicant claims Mr Huang did not say anything to the police, another sub-group leader, Ms Fan, confessed her involvement in the group when she was arrested on 22 February 2005 leading to other members of the group being arrested.
The applicant believes that the PSB know that he was the leader of the group and that he will be the target of persecution if he were to return to China. The applicant also asserts that he has continued to practice his religion since coming to Australia.
The applicant first arrived in Australia on 6 February 2005.
On 23 March 2005 he applied to the Department of Immigration, Multicultural and Indigenous Affairs for a protection visa. On 6 June 2005 a delegate of the Minister refused to grant a protection visa to the applicant.
On 11 July 2005 the applicant applied to the Refugee Review Tribunal for a review of the decision made by the Minister’s delegate.
The applicant gave oral evidence before the Tribunal on 5 October 2005.
On 1 November 2005 the tribunal handed down a decision dated
11 October 2005 affirming the refusal of the first respondent’s delegate to grant the applicant a protection visa. In making its decision, the Tribunal considered the applicant’s claims at pages 11 to 13 of the decision:
I accept that the applicant is a national of the Peoples Republic of China. However, in my view, significant parts of the applicant’s evidence were implausible, vague and generally unsatisfactory. I am not satisfied that the applicant was associated with an underground Christian church group in China. In my view, the applicant fabricated this claim in an attempt to create for himself the profile of a refugee.
Firstly, I consider the applicant’s account of his alleged underground church activities in China to be very most unsatisfactory. For example, I consider it implausible that underground church meetings would consist of nothing other than a pastor talking about verses in the Bible. I also consider it implausible that the applicant would be unable to remember the details of what was contained in propaganda materials, if he was involved in a group which distributed such materials. The applicant asserted that he could not remember because people under him were distributing the materials. I do not consider this explanation adequately explains the applicant’s lack of knowledge of the contents of the materials.
Secondly, the applicant’s general knowledge of Christianity is very poor. While the applicant demonstrated a basic understanding of the meaning of baptism, his only response to a question about what Christians believe was ‘God”. in my view, a committed Christian who had been a leader of an underground church group would be able to provide a more detailed summary of fundamental Christian beliefs. In addition, the applicant showed scant knowledge of the New Testament, notwithstanding his assertion that he had been involved in Bible studies. In mentioning the Gospels of Matthew and John, the applicant showed that he has been exposed to some aspects of the Bible. However, in my view, the applicant demonstrated little knowledge of the contents of the New Testament. I consider that if the applicant had been a committed Christian over several years, as he claims, he would have at least shown some awareness of the Epistles. The applicant suggested that he had not got up to that part of the Bible because of time constraints. However, I do not accept that a person who has been a committed Protestant Christian for several years would have as little knowledge of the Bible as the applicant evidently has.
Thirdly, the applicant was unable to articulate in any cogent way the differences between the church group with which he claimed to have been associated and the official, registered Protestant Church. In my view, if the applicant had been associated with the underground church in China, he would be able to demonstrate an understanding of some of the things he asserts that the official church does not speak about. Fourthly, the applicant’s evidence was that the pastor of his underground church group remains in China and is still active as a pastor. In my view, it is implausible that Chinese authorities would allow an underground church pastor to operate apparently unhindered, while pursuing other members of the church. The applicant suggested that the paster remained in the background and that he only occasionally preached. However, this does not sit well with the applicant’s evidence earlier in the hearing that meetings consisted solely of the paster talking about verses in the Bible. I do not accept that lay members of an underground Christian church would be of greater adverse interest than the pastor who preached to them.
Fifthly, the applicant claims that his underground church colleagues remain in detention and have been sentenced to periods of imprisonment. In my view, if the applicant was a committed Christian who had been the leader of an underground Christian church, he would have taken some steps to bring their plight to the attention of human rights organisations or to churches which have an interest in the rights of Christians in China. The applicant suggested that there was no point in doing this, as his colleagues had already been sentenced. I do not consider this to be an adequate response. The applicant’s failure to take any steps to highlight the plight of underground Christians who are supposedly in detention suggests, when considered in conjunction with the other deficiencies in his evidence, that he is not the committed Christian he claims to be.
Overall, I reject the applicant’s claim that he was associated with an underground church in China. I conclude that the applicant fabricated this claim in an attempt to create for himself the profile of a refugee. As I do not accept that the applicant was associated with an underground church in China, I do not accept that he has been mistreated for this reason in the past. Nor do I accept that the applicant is of adverse interest to the Chinese authorities for this reason.
I accept that the applicant has been attending church in Australia. I am of the view that the scanty knowledge about Christianity that the applicant demonstrated during the hearing has been acquired courtesy of his church attendance in Australia. I am not satisfied that the applicant has developed a genuine commitment to Christianity through his church attendance and I consider that the only reason that he attends church is because he believes that church attendance in this country strengthens his claims. In my view, the chance that the applicant would seek to practise Christianity if he returned to China is remote. In any event, as I have concluded that the applicant attends church in Australia in order to enhance his claims to refugee status, section 91R(3) of the Act requires that I disregard this behaviour in assessing the applicant’s claims.
Overall, I am not satisfied that the applicant has been persecuted in the past for reasons of religion. I am of the view that the chance that the applicant will be persecuted for this reason in the reasonably foreseeable future is remote. It follows that I am not satisfied that the applicant has a well-founded fear of persecution for reasons of religion. The applicant has not suggested any other reason he fears persecution and none is suggested on the evidence before me. I am therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
Grounds of review
As set out in the amended application filed 22 May 2006, the applicant particularises the grounds of his review application as follows:
1. The Tribunal failed to comply with its obligation under s424A (1) of the Act
a. The Tribunal’s decision has mainly relied on three parts of the information as follows;
- Firstly, some of information from independent sources, such as human right reports; regarding to general situation of religious belief and practice in China; and
- Secondly, some of negative issues against my claims or some of misunderstandings in relation to my oral evidences, such as my practices in the underground church of China; and
- Thirdly, some of negative opinions in relation to my religious knowledge, such as meaning of baptism, and so on.
b. The key issue in my case is that the tribunal failed to comply with its obligation under s.424A(1) of the Act, because
- Firstly, the Tribunal failed to provide me particulars of those pieces of information mentioned above, and
- Secondly, the Tribunal failed to ensure me to understand that they would be directly in relation to its assessment against my review application; and
- Thirdly, the ‘Tribunal failed to provide me a genuine opportunity to common on them.
2. The Tribunal failed to comply with its obligation under s425 of the Act
a. I indeed attention the Tribunal’s hearing, hut I was actually seriously ill on that day, so that I, on many occasions, was unable to well understand the questions put by the Tribunal.
b. Furthermore, the interpreter at the ‘Tribunal’s hearing did not have sufficient religious knowledge; and on many occasions, the interpreter was unable to interpret religious terms, accurately and properly; and
c. Also, I did not think that the Tribunal had made me to clear about key issues iii relation to my review application during the Tribunal’s hearing.
d. Therefore, I, in fact, lost my common rights entitled by the s425 of the Act – to present my evidences in support of my review application dining the Tribunal’s hearing.
e. Moreover,
3. The Tribunal failed to properly assess my credibility, and failed to properly assess my review application.
a. The Tribunal has, in fact, ignored one of the most important evidence my claims have been supported by the church in Australia.
b.The best way to test my religious knowledge is to contact priest in the church in Australia, who wrote a reference for me. The priest should be a professional person who has sufficient knowledge to assess my commitment to the Christianity. Unfortunately, the Tribunal failed to do so.
4. In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully.
Ground 1 – S.424a
The first ground, as particularised alleges a breach of s.424A. that section provides:
424A Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
The only information referred to in the decision of the tribunal was that provided by the applicant, together with some country information.
The information provided by the applicant falls within the exception in s.424A(3)(b).
The country information clearly falls within the exception in s.424A(3)(a).
At the hearing the applicant was not able to refer to any particular piece of information to which this ground is addressed.
As a result this application cannot succeed on this ground.
Ground 2 – S.425
The applicant alleges that on the day of his hearing he was ‘seriously ill’, and as a result was unable to properly understand and answer questions. He also says that the interpreter did not have a sufficient vocabulary about religious matters to properly interpret, and that the tribunal member did not make the issues clear enough at the hearing.
There is no transcript of the hearing. The applicant has not filed an affidavit setting out any examples of the difficulty with the interpreter and was unable to give any examples today. He said the interpreter spoke mandarin (as did the interpreter in this Court) however he also speaks mandarin and expressed no concerns about the mandarin interpreter at this hearing.
The applicant has not obtained a copy of the tape of the hearing from the respondent, nor provided any evidence of another interpreter’s opinion of the translations. The applicant has not provided evidence of his illness, nor even identified the nature of his illness or details of any attendances on medical professionals. There is no evidence that at the time of the hearing the applicant drew these matters to the attention of the member or sought an adjournment.
In the absence of any appropriate evidence I am not satisfied that the applicant did not receive a hearing, either within the meaning of s.425 or in the sense necessary for procedural fairness to have been effected.
I therefore find that this ground is not a basis for relief.
Ground 3 – Credibility Issues
To the extent that this ground is a challenge to the tribunal member’s assessment of the applicant’s credibility, it cannot succeed as merits review is not available.
To the extent that the ground relates to a claim that the tribunal member failed to take into account relevant factors or material, it appears to relate to claims that:
a)the RRT failed to have regard to the applicant’s involvement in the church in Australia; and
b)that the RRT ought to have sought evidence from the applicant’s priest in Australia.
The tribunal member recounts that the applicant is involved with a church in Australia. The member specifically takes this into account. This matter is not a basis for demonstrating jurisdictional error.
When the tribunal invited the applicant to attend a hearing it:
a)Advised that applicant that ‘the tribunal has considered the material before it in relation to your application by is unable to make a decision in your favour on this information alone’; and
b)enquired of the applicant as to whether he wished the tribunal to take oral evidence of any witness. The applicant ticked the ‘No’ box on the form. It was open to the applicant to request that the tribunal hear evidence from his priest. Indeed, he could have even provided a letter or statement from the priest, at least initially.
The tribunal is not required to make out the applicant’s case for him. Nor, is it required to seek out evidence to assist his case.
The applicant also said that he did not present his case well as he was nervous. Most people are nervous in Tribunals and Courts. Tribunal members, like judges, always bear this in mind when assessing evidence and credibility. There is nothing in the material before me to indicate that the member failed to consider this as part of its assessment of the applicant.
This ground is not made out.
Conclusion
As the applicant has not established a ground showing jurisdiction error I must dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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