SZIEK v Minister for Immigration
[2006] FMCA 888
•6 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIEK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 888 |
| MIGRATION – RRT decision – Chinese person fearing persecution as Christian – disbelieved by Tribunal – all claims fully considered by Tribunal – application for judicial review raised no arguable case. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476
| Applicant: | SZIEK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG237 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 6 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms F Kerr |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG237 of 2006
| SZIEK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter I made orders on 6 June 2006, dismissing the application under Federal Magistrates Court Rule 44.12 with costs. I gave my reasons orally, and indicated that a copy of my revised judgment would be forwarded to the parties. Unfortunately, the transcription service employed by the Court has advised that they were unable to transcribe the recording of my judgment, due to “a serious problem with corruption of the audio”. I have therefore prepared the following reasons for my orders unaided by a transcript.
The application under r.44.05 was filed on 24 January 2006, and sought an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 5 January 2006. The Tribunal affirmed a decision of a delegate, refusing the applicant’s application for a protection visa.
The application was returnable before me at a first court date on 21 February 2006. On that occasion, the applicant attended and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to him by me and in a written information sheet. I made orders allowing him to file an amended application and affidavits by 26 May 2006, after receiving a bundle of relevant documents and having an opportunity to obtain free legal advice. I listed the application for a hearing today under r.44.12, and warned the applicant that it might be dismissed if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has filed an amended application which I shall consider below, but no additional evidence.
His refugee claims were briefly set out in his protection visa application lodged on 18 August 2005. He said:
40Why did you leave that country?
I believe in Jesus. I am Christian. I want to worship God freely. But in China, the nation is under control of the Communist Party. They want people to believe in Communism. They monitor and control Christian and other religious believers. Sometimes, they persecute leaders of the underground House Churches and Christians. I don’t want to live in a dictator country, China. There is no human rights in China. I fear to be put in jail. That’s the reasons I left China.
41What do you fear may happen to you if you go back to that country?
I fear:
Local police will put me in jail. They will stop me attending worship gathering if they find that I attend “illegal gathering”, they will put me in jail.
The residential committee will tell people around my home that I am insane if I talk to my neboures.
I will not find job in [Town A] or [Town B]. The local Government and police will stop me working.
42Who do you think may harm/mistreat you if you go back?
Local Government
local police
residential committee
43Why do you think this will happen to you if you go back?
I escaped from China. I got my passport through my friend paid money to the officer. Also I got my visa on the sly. That’s illegal.
I will be put in jail because I lodge the application for protection visa. Chinese government takes it as I am a renegade if they know it.
If I go back, I will continue praising God, spreading Gospel. Chinese Government bans this. They will stop me and put me in jail.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No, they will not protect me. If they don’t persecute me, I will not escape from China.
Chinese communist government is Godless. They believe in Communism. They will not give Christian real freedom to worship God. They will not allow us to spread Gospel and God’s Love. They will not protect me as Christian.
No further details or supporting information were given to the Department, before a delegate refused the application on 13 October 2005. Nor did the applicant present such material to the Tribunal when he appealed to the Tribunal, although he was assisted by a registered migration agent.
He did, however, attend a hearing of the Tribunal on 20 December 2005. In accordance with a request in the hearing invitation, it appears that he presented his passport for inspection by the Tribunal, and the Tribunal took copies of some of its pages.
In its statement of reasons, the Tribunal described its questioning of the applicant directed at assessing his knowledge of some basic Christian doctrines and practices. It is clear that the applicant was unable to display any such knowledge.
The Tribunal referred to this questioning in its “Findings and Reasons”, and expressed a conclusion:
In short, and given all the above, the Tribunal is satisfied from the Applicant’s vague and unsupported claims that reveal no knowledge of the Bible or more importantly any knowledge and awareness of the basic tenants of the Christian faith whatsoever, that he is not a Christian or that he had any involvement with the underground church or “illegal gatherings”, and the Tribunal does not accept these claims on which all his other claims rest. Nor does it accept that he was detained in 1987 for a week because he arranged a gathering of Christians and is satisfied that the Applicant has embellished his claims in order to enhance his claims for a protection visa and is not a credible witness.
Accordingly, given all the above, the Tribunal is satisfied that as the Applicant is not a Christian he does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason if he returns to China on this basis. It follows that the Tribunal does not accept that the Applicant left China to avoid persecution by the Chinese authorities because of his Christian religion; that if he goes back he will continue to praise God and spread the Gospel and the government will put him into jail for this reason; and he will not receive protection from the Chinese authorities on this basis. It also follows that the Tribunal also does not accept his claim that the local police will stop him attending religious gatherings and will put him in jail and that the residential committee will tell people he is insane if he talks to his neighbours and he will not find a job in [Town A] or [Town B] as the local government and police will stop him working for a Convention related reason.
The Tribunal also considered the applicant’s claims that he paid a bribe when obtaining a passport. It referred to country information, and said that it was satisfied that the applicant would not have been issued a Chinese passport if he was of any interest to the Chinese authorities.
It referred to his previous travel from China to Thailand and return, shown in his passport, and found that “he would not have gone back to China” if his fears of persecution were well founded.
The Tribunal also addressed the applicant’s claim that he would be punished in China for applying for a protection visa in Australia. It referred to country information, and said that it was satisfied that “he would not be subjected to serious harm amounting to persecution for a Convention reason on this basis even in the most unlikely event that they came to know he had applied for a protection visa in Australia”.
The Tribunal also addressed the general political opinions expressed by the applicant, upon the basis that his claims “could at one level also be taken to be a wider reference to his objection to the more generalised system of human rights abuse and religious and political suppression that he believes currently limit religious and political freedom in China”. It noted that no specific claim had been made, and concluded that it was satisfied “that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason on this basis”.
The Tribunal also concluded:
It follows that, given all its findings, the Tribunal does not accept his other claims that if he goes back he will continue to praise God and spread the Gospel and the government bans this and will stop him and put him into jail and the local police will stop him attending religious gatherings and will put him in jail. Nor from his limited and unsupported claims does the Tribunal accept that the essential and significant [sic: reason for any difficulties] he will have in finding a job in [Town A] or [Town B] (if any) would be Convention related (indeed, while claiming that he has been unemployed since September 2001, he does not claim that the reason he was laid off was Convention related), or that the local government and police will stop him working for a Convention related reason.
In my opinion, the Tribunal very thoroughly addressed all the refugee claims which could be found in the applicant’s evidence presented to it. I can find no arguable jurisdictional error affecting its decision, on my own reading of the material and its reasons.
The applicant’s original application and affidavit contained brief and general criticisms of the Tribunal’s decision, including as being “neither sufficient nor fair”, and “didn’t consider applicant’s personal circumstances”, and “it was merely seeking reasons to make the decision against the applicant”. However, no particulars of these contentions are provided, and I can find no arguable substance in them.
The applicant’s amended application contains three grounds.
The first is that the applicant was denied procedural fairness “because the RRT failed to accept the evidence of the Applicant and instead accepted country information that failed to acknowledge that practitioners of underground Christian are continuously persecuted in the PRC”. The particulars criticise the Tribunal’s reliance upon general country information and argue that the Tribunal failed to look “at the facts of the applicant”.
In my opinion, this ground is based upon a clear misreading of the Tribunal’s reasons. The Tribunal unarguably did identify and address the applicant’s actual claims concerning his personal situation. The Tribunal rejected his claims to have been a Christian based on disbelieving the applicant, and not upon country information. It made no arguable error when assessing his other claims against general country information. This ground merely contests the merits of the Tribunal’s assessments, and in my opinion does not raise any arguable jurisdictional error.
The second ground in the amended application is of the same character. It contends: “RRT’s ground for rejection is neither sufficient nor serious, which disregarded the whole evidence provided by the applicant. The RRT placed an unreasonable weight on the evidence of the country information and failed to give sufficient weight to the evidence of the Applicant”.
“Particulars” under this ground contend that the Tribunal “took the irrelevant considerations into account”, but no particulars of this are given, and in my opinion it has no arguable substance.
It is also contended that the Tribunal “failed to investigate independently the applicant’s information for his involvement in Chinese religious activities”. However, the Tribunal manifestly did fully consider the applicant’s evidence, and no arguable substance has been suggested for a duty to conduct any additional investigations.
The third ground makes a contention which even more clearly shows that the applicant’s criticisms of the Tribunal go only to the merits of the outcome of the decision: “RRT and DIMIA failed to look at the fact fairly and reasonably and ignored the truth that the applicant would face a real chance of persecution upon returning to China due to his past and current participation in underground Christian activities”.
The applicant attended today’s hearing, but had no submissions to make to me whatsoever.
In my opinion, his application does not raise an arguable case for the relief claimed, and I consider that it is appropriate for me to dismiss it at an interlocutory stage under r.44.12(1)(a).
I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 23 June 2006
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