SZHVE v Minister for Immigration
[2006] FMCA 1716
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1716 |
| MIGRATION – Review Refugee Review Tribunal decision. – status – refugee status – visa – protection visa. |
| Migration Act 1958, ss.91X, 424A |
| Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 408 ALR 407 NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223 SZCEF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 120 |
| Applicant: | SZHVE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3677 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 November 2006 |
| Date of Last Submission: | 1 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms R. A. Pepper |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3677 of 2005
| SZHVE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
By application dated 14 December 2005 the applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 November 2005 which affirmed an earlier decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) dated 30 June 2005 refusing the applicant’s application for a protection visa.
Section 91X of the Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The applicant arrived in Australia on 27 April 2005 (Relevant Documents bundle (“RD”) page 71).
The Tribunal described the applicant as follows;
…the applicant claims to have been born in Jiangxi in 1972. He claims his ethnicity is Chinese and that he is a Christian. He claims to have lived at the same address in Zhuhai, Guangdong, from 1993 to April 2005. He claims to have received a total of twelve years of formal education in Zhuhai, ending in 1992. He claims to have been self-employed as a retailer from 1993 to 1996 and as the Vice-Manager of a trading company from April 1996 to April 2005. He claims to have been married in 1999. He claims that his wife and their daughter and his parents are living in China (RD 73).
The applicant’s claims are set out on pages 4 to 11 of the Tribunal’s decision (RD 73-80). In brief they are;
a)he is a member of an underground Christian group in China known as the Shouters;
b)the applicant distinguishes himself from those Chinese Christians who are supported by the Chinese government;
c)the Chinese government have counselled him to be loyal to the Chinese Christians but he has refused and he has also been advised not to do “stupid” things;
d)on one occasion, in January 2002 the applicant and other underground Christians gathered in front of the Fuquing Peoples Prosecutorial Office protesting against the arrest of a Mr Li Guangqiang. The applicant was standing in the front line of the protestors. When the police came they believed the applicant was the organiser and wanted to arrest him but he ran away;
e)he was unable to obtain a passport using accurate personal information so he obtained one with false information.
f)in Australia he practises his faith every Sunday morning; and
g)he claims that there will be a great chance he will be persecuted if he returns to China in the near future because his escape to Australia using false identification will distinguish him from a normal underground Christian.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found it was not satisfied that the applicant is a person to whom Australia has protection obligations. The Tribunal’s decision was based on the following findings and reasons;
a)The Tribunal was not satisfied that the applicant was involved with the Shouters church whilst he was living in China. The Tribunal said that it arrived at this conclusion for a number of reasons, among which are the following;
i)on the basis of his oral evidence, the Tribunal was not satisfied that the applicant’s knowledge of the Christian religion was consistent with his claimed history of involvement with the Shouters sect since his baptism at the age of 5 or 6. Whilst the Tribunal acknowledged that it was possible for a person to regard themselves as a Christian and still not have contact with an established church, or have little knowledge of Christian doctrine, Jesus and the Bible, this was not the situation the applicant claimed for himself. The applicant claimed to have grown up within the Christian faith, to have a knowledge of the Bible, and to attend church regularly. The Tribunal was not satisfied that the applicant’s responses at the hearing supported such a claim;
ii)as a member of the sect from the age of 5 or 6 the applicant claimed that, although he was not an office-bearer, he attended church at least twice a week, except at times when the sect was under surveillance. He claimed to have been warned against such involvement on numerous occasions by police, local officials and the chief of the village, yet by his own admission nothing ever happened to him when he ignored these warnings. In the Tribunal’s view the applicant’s account of his involvement with the Shouters sect in his village was not credible;
iii)the applicant’s claim that he avoided arrest and imprisonment by leaving his village for a time was not considered credible, particularly as he claimed to have returned to his home a short time later, again with no apparent consequences. The Tribunal also did not accept the applicant’s alternative claim that there were many Christians in the village, and the police could not arrest them all;
iv)the applicant contended that he continued to be involved in the Shouters church upon arriving in Australia. In order to support his claim, a document entitled ‘Confirmation of Baptism’ from ‘The Local Church in Sydney’ was produced to the Tribunal. Whilst the Tribunal accepted that ‘The Local Church in Sydney’ is a name by which the sect has been known, it identified no clear evidence that there is in fact a connection between the two. The Tribunal also doubted the authenticity of the confirmation letter which took the form of a simple letter produced some three months after the baptism apparently took place. Although the Tribunal gave the applicant the benefit of the doubt that he had been baptised and did attend churches services in Sydney, it was apparent that the baptism itself took place after the applicant’s application for a protection visa was refused, and shortly before he lodged his review application;
v)when considered with the Tribunal’s concerns in relation to the applicants’ involvement with the Shouters in China, the Tribunal was not satisfied that the applicant’s involvement with the church in Sydney was genuine;
vi)the Tribunal was not satisfied, had the applicant suffered religious persecution in his village from as young an age as he claimed, that he could have continued to live there;
vii)the applicant had an overseas holiday in 2005, shortly prior to coming to Australia. This holiday did not support the claim that he feared persecution in China. He travelled from China to Singapore, returning to China via Hong Kong, and at no point did he seek protection.
b)The Tribunal did not accept the applicant’s evidence in relation to his travel documents being false. There was no evidence produced to substantiate this claim in any way.
The proceedings in this Court
The applicant’s claims set out in his application in these proceedings can be summarised as follows;
a)the Tribunal did not take any or any proper account of the fact that the applicant obtained his passport by fraudulent means; and
b)it did not take into account the applicant’s involvement with the Christian church in Sydney.
In his supporting affidavit sworn 13 December 2005 the applicant, in essence, raised two additional issues, namely;
a)he had been persecuted by the Chinese authorities; and
b)the Tribunal had ignored some important evidence in support of this claim.
In his oral submissions to this Court, the applicant made what was, in essence, a further claim, namely that his parents and grandparents had been persecuted by the authorities causing him to fear return to China.
Finally, it should be noted that in her submissions, the first respondent raises the potential availability in these proceedings of a ground based on s.424A of the Act.
Dealing with each of these claims in turn;
Failure to take account of how the passport was obtained.
Contrary to this assertion, the Tribunal did consider the means by which the applicant obtained his passport. That consideration can be seen at RD 74.5, 75.2, 75.10 to 76.1 and 86.2 to 86.6. Having considered the applicant’s assertions regarding the circumstances in which he acquired his Chinese passport, the Tribunal reached the conclusion that it did not accept that the passport was falsified or inaccurate (RD 86.3). Moreover, and more significantly, the Tribunal concluded that even if the passport were falsified in some way, there was nothing to indicate that the Chinese authorities were aware of this fact or would ever become aware of it (RD 86.4). That is to say, the Tribunal did not believe the underlying allegation but reached an additional conclusion that there was no practical consequence flowing from the passport having been falsified.
Failure to take into account the applicant’s involvement with the Christian church in Sydney.
Contrary to this assertion as well, the Tribunal did consider the applicant’s involvement with the Christian church in Sydney. This issue is discussed in some detail in the second paragraph of the Tribunal’s findings and reasons at RD 85. Having considered the evidence before it, the Tribunal was not satisfied that the applicant’s
…conduct in involving himself with the Shouters in Australia is genuine or that it has not been undertaken for the purpose of strengthening his claim to be a refugee. (RD 85.6)
The Tribunal ignored some important evidence provided in support of the applicant’s claim.
The material which the applicant says was not considered, namely the letter reproduced in the Court Book at page 64, was expressly considered by the Tribunal in its findings and reasons (RD 85.3).
Persecution by the Chinese government.
The applicant’s claims of persecution depend on an acceptance that he was a member of the Shouters sect. The Tribunal did not accept this assertion and, after considering the material referred to in its findings and reasons, concluded that it was not satisfied that, in fact, the applicant had suffered persecution as claimed. This conclusion was open to the Tribunal on the evidence before it. The applicant asks this court to review this factual finding which is not open to it in these judicial review proceedings: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 408 ALR 407 per McHugh J at 417 [36].
Persecution of the applicants’ parents and grandparents.
This claim was raised for the first time in the applicant’s oral submissions to the Court. It was submitted on behalf of the first respondent, and conceded by the applicant, that this claim had never been advanced before the Tribunal. For that reason, it is not a basis for judicial review of the Tribunal’s decision.
Section 424A of the Migration Act.
In her submissions, the first respondent raises the potential application to these proceedings of s.424A of the Act in relation to the use by the Tribunal of information contained in the applicant’s passport and claims made for the first time at the Tribunal hearing that the applicant had gone into hiding and the village head had gone to the applicant’s house and knew that he had gone to Australia.
Section 424 provides:
(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) …
(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 first paragraph of the Tribunal’s findings and reasons records that the applicant submitted his passport at the Tribunal hearing (RD 14.1) and thus the information contained in it falls within the exception in s.424A(3)(b).
As to the new information at the Tribunal hearing, namely the disclosure that the chief of his village had been to his home and knew that he had gone to Australia (CB 79.3) this, on its own, is information falling within the exception in s.424A(3)(b) too. It would have additional significance if the Tribunal relied on the absence of this information from prior statements as part of the reason for it affirming the delegate’s decision: SZCEF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 per Allsop J at [30]. However, although the Tribunal did remark in passing that the information had not been mentioned previously (CB 86.6) I read that to be a passing comment of no significance to the conclusion which was ultimately reached : NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223 per Branson J at 232 [17].
I am therefore of the view that there has not been a breach of the Tribunal’s obligations under s.424A.
Conclusion
For the above reasons, the applicant has not demonstrated that the Tribunal has committed a reviewable error and consequently the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 20 December 2006
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