SZIIN v Minister for Immigration

[2007] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 583

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.91R(3), 424A(1), 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZIIN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 8 of 2007

Judgment of: Smith FM

Hearing date: 3 April 2007

Delivered at: Sydney

Delivered on: 3 April 2007

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms T Quinn

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 8 of 2007

SZIIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 2 January 2007, in which the applicant applies for 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 the decision of the Refugee Review Tribunal dated 16 November 2006 and handed down on 7 December 2006. The Tribunal affirmed a decision of a delegate made on 17 September 2005, refusing to grant a protection visa to the applicant.

2. An earlier decision of the Tribunal was affected by a failure to comply with s.424A(1), and was set aside by order of this Court on 15 September 2006. However, the present Tribunal has not made the same error.

3. The application was returnable before me at a first Court date on 6 February 2007.  The applicant appeared and was assisted by a Mandarin interpreter.  The nature of the proceeding was explained to him by me and in an information sheet.  I gave the applicant an opportunity to file an amended application and further evidence after receiving a bundle of relevant documents and a referral for free legal advice.  I warned him that his application might be dismissed today if I were not satisfied that it raised an arguable case.

4. The applicant has received legal advice, but has not filed an amended application nor any other document.

5. The applicant arrived in Australia in June 2005.   On 16 June 2005 an application for a protection visa was lodged on his behalf by a registered migration agent.  The application claimed protection in Australia from return to The People’s Republic of China.  It contained vague claims that the applicant had been held in a detention centre for a year and was sacked due to the applicant's Christian religion. 

6. A typed up history was later presented to the Department.  This claimed that the applicant's family had suffered during the Cultural Revolution, and that the applicant felt that he had been discriminated against as a result.  He claimed that in 1996 he was introduced to a “house church meeting”.   He said:

   Since then, I often went for meeting.  We gathered at House Church (person’s) home.  We met on Friday, singing songs, reading Bible, praying and talking about God's miracle and love.  I also read some brochures about Jesus and God.

7. The applicant claimed to have continued attendance at the church, and to have been detained in May 1999 for 10 days as a result of the church not being registered.  He claimed that after he was released, he continued to attend meetings at other Christians’ homes.  He said:

   In June 2000, one day we gathered at (person’s) place.  While we were reading Bible, local police came, they took us 6 Christians to their station.  As I was second caught by them, they said I was never repent. 

8. The applicant claimed to have been beaten and sent to a detention centre, and not released until August 2001.  He claimed then to have lost his job and decided to go overseas.  He said that he obtained a passport and visa to come to Australia with the help of a Christian brother.  He said: “After I came to Sydney, I looked for a Church and attended Church activity”.

9. In the course of the proceedings in the Tribunal, he presented one reference from a rector of an Anglican Church at Blacktown dated November 2005, which said:

   (The applicant) attends our church regularly since August this year, even it is not a long time of period, he is actively and faithfully involved in many church activities.  He is also very keen to learn more about Christianity, he recently joined the Bible Study, as he wants to be christened.  He is so devoted in his religion.

10. The applicant also sent a photograph of him with the rector taken at that time, and a Chinese document which purported to corroborate that the applicant was held for ‘labour reform’ as a result of “Disturbing public order in June 2000”.

11. The delegate refused the application on the ground that there were a number of factors: “which cast serious doubts on the credibility of his claims and the genuineness of his claimed fear of Convention related persecution”.  These included the applicant's delay in travelling on his passport, and his ability to depart China without difficulty. 

12. After the remitter of the matter by this Court, the applicant attended a hearing held by the reconstituted Tribunal on 1 November 2006.  The Tribunal gave a description of the hearing, in which it questioned the applicant about his Christian beliefs and knowledge, and how he had worshipped in China.  The applicant was not able to explain this at all, and showed little knowledge of the Bible.  Nor was he able to identify the denomination of the church he had attended in Australia, and gave only a superficial description of its services. At the end of the hearing:

    The Tribunal put to the applicant that it would expect a person who had been studying the Bible for close to five years would have a sound knowledge of the Bible and the stories and the characters contained in the Bible.

    The Tribunal stated that it found his level of knowledge of Christianity was not consistent with being a long term member of an underground Christian church involved in worship and Bible study and someone who had been regularly attending church in Australia for over 12 months.

13. Under the heading "Finding and Reasons", the Tribunal said: “the applicant did not impress the Tribunal as a credible and truthful witness”.   The Tribunal explained the inadequacies it had found in the applicant's knowledge of Christianity. 

14. It accepted that the applicant “may have attended some church services since arriving in Australia”, but said “his description of the services was very general and could have been obtained from only a few visits to the church”. It found that the applicant's conduct in attending church services in Australia was for the sole purpose of strengthening his claim to be a refugee, and it disregarded that conduct as required by s.91R(3) of the Migration Act. 

15. The Tribunal accepted that the Chinese document showed that the applicant had been detained in a labour camp, but it said: “the Tribunal does not accept that the applicant was detained because of his Christian beliefs and practice”.   It said the applicant had not presented any other Convention reason for his detention, and “therefore finds that he was not detained for a Convention reason”.

16. The Tribunal did not accept that the applicant had been arrested and detained because of an association with an underground church, or that he had lost his employment because of his Christian beliefs.  It found that there was no real chance that the applicant would suffer persecution for reasons of his religion. 

17. The Tribunal also addressed the applicant's claimed history of his family's treatment during the Cultural Revolution.  It referred to country information indicating that such a history “is not relevant to the current situation in China”.

18. I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision. 

19. The applicant's application contains as its grounds only the following:

    1.Jurisdictional error has been made.

    2.Procedural fairness has been denied.

    3.The tribunal did not notify the reasons that it would be based for refusing my application for a protection visa, therefore, I could not provide explanation to those doubts.

20. The first two grounds completely lack any particulars of an argument allowing me to give them substance. 

21. The third ground claims that the applicant was not warned as to the issue upon which the Tribunal decided the case.  However, plainly the applicant was on notice that the credibility of his claimed religion was in issue, since this was the basis upon which both the delegate and the previous Tribunal had decided the case.  The present Tribunal frankly exposed its concerns on that issue to the applicant at the hearing.  I do not consider that ground three has any arguable basis.

22. The applicant has had no submissions to make to me today. 

23. For the above reasons, I am not satisfied that his application has raised an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r 44.12(1)(a).

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  19 April 2007