SZIUD v Minister for Immigration - [2006] FMCA 1143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIUD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1143

MIGRATION – RRT decision – Chinese person claiming persecution for unauthorised Church activities – no arguable case – application dismissed at show cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.422B, 424A(1), 424A(3)(a), 424A(3)(b), 425, 476

Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
S357 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1684
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62

Applicant:

SZIUD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1266 of 2006

Judgment of:

Smith FM

Hearing date:

1 August 2006

Delivered at:

Sydney

Delivered on:

1 August 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

Phillips Fox

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

SYG1266 of 2006

SZIUD

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 3 May 2006. It seeks orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant seeks orders setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) which was dated 15 March 2006 and was handed down on 6 April 2006. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The application was give a first court date before me on 31 May 2006. On that occasion the applicant attended with a Mandarin interpreter. The nature of the proceedings was explained to him by me and in a written information sheet. I made orders referring him to a lawyer for free legal advice after receiving a bundle of relevant documents. My orders gave leave for him to file an amended application and any affidavit evidence by 25 July 2006.
The applicant was warned that his case would be listed today to consider whether he had raised an argument with any prospects of success. He was warned that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed. The applicant has received legal advice, but has filed an amended application which only repeats the grounds previously argued in his application. He has filed no evidence in support. He appeared today and read to me a prepared statement.
In his protection visa application, the applicant explained his reasons for seeking protection in Australia so that he did not have to return to his country of nationality, the People’s Republic of China. A brief statement attached to the application claimed that he had participated in a secret Christian study group, and had been put in detention and tortured and released on condition that “I not continue my activity, disband the study groups and pay a fine”. He claimed that he had continued in the group. In March 2005 the participants in the group had been arrested, and he had been sent to a detention centre and detained for several months. After his release he claimed to have been monitored, and again to have been discovered in secret gatherings. He claimed he went into hiding, and then obtained a visa to come to visit Australia.
His application for review by the Tribunal attached a further statement giving some more details in relation to these events, including the claim that the detention in March 2005 had been in a “psychotic medical centre”.
The applicant did not present any supporting material until he attended a hearing held by the Tribunal on 1 March 2006. He there presented some photographs, which he told the Tribunal showed him preaching in a government registered church in 2004. He explained that he did this so that he could “cover himself and show that he was not in a family church”. He also presented some literature obtained at an Australian church which he said he had attended.
The Tribunal questioned the applicant about his church activities in China, his knowledge of Christianity, his attendance at the Australian church and his travel out of China. It referred to general country information concerning the situation in relation to freedom of religion in China.
Under the heading “Findings and Reasons”, the Tribunal said that it was not satisfied that the applicant provided a credible account of his activities in China or the threat to him from authorities. The Tribunal noted some inconsistency between the written statement given to the Tribunal and the applicant’s evidence to the hearing concerning his family background in relation to church attendance, but gave the applicant the benefit of some doubts when accepting his claims that his family had practised religion in secret. The Tribunal also accepted “although with some reservations” the applicant’s claim that he was a Christian based on his demonstrated knowledge. However, the Tribunal made a clear finding that it was not satisfied “that the Applicant was a member of an illegal house church in China as he claims to have been”.
The Tribunal gave three reasons for that conclusion. First, it considered that his account of his house church was not plausible, based on his description of its membership and geographic dispersal. Secondly, the Tribunal did not find credible the applicant’s account of his conversion to join the claimed home church group and leave the officially recognised “Three Self Patriotic Movement” official church. Thirdly, the Tribunal thought that the applicant’s explanation for the photographs, which appeared to confirm his involvement in the official church, was not plausible.
I consider that the Tribunal’s reasoning in relation to its adverse credibility finding does not show any arguable jurisdictional error, and that it was open to the Tribunal on the evidence before it. As a result of the adverse finding, the Tribunal said that it was not satisfied that the applicant had ever suffered any harm by reason of being a member of a house church in China, and rejected his claims of persecution and his claim that he had been accused of collusion in anti‑Chinese propaganda while held in detention.
The Tribunal’s summary of its findings was:
In the light of the information before it, the Tribunal accepts that the Applicant is a Christian and that he was brought up as a member of the officially‑sanctioned Three Self Patriotic Movement in China. The Tribunal is not satisfied that he ever left this church to become a member of an illegal house church. The Tribunal is not satisfied that the Applicant has ever suffered harm at the hands of the Chinese authorities for any reason or that there is a real chance that he will do so if he returns. The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution for reason of his religion, his imputed political opinion or any other Convention reason should he return to China, now or in the reasonably foreseeable future and is not satisfied that he is a refugee.
The amended application filed by the applicant has a number of paragraphs which somewhat diffusely raise a claim of failure to follow the procedure required by s.424A(1) of inviting the applicant in writing to give written comments on adverse information.
The first particular of this contention is that the Tribunal’s decision relied on “some pieces of independent country information”. Although the Tribunal does not specifically refer to such information in its reasoning, it is clearly arguable that the general information which it refers to has contributed to its understanding and assessment of the applicant’s personal history. However, the provisions of s.424A(3)(a) as interpreted by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 and subsequent cases, clearly render hopeless an argument that the Tribunal was obliged to put this information to the applicant under s.424A(1).
The second particular claims that the Tribunal relied upon “some of inconsistencies arising from my primary and review application and the evidences from the Tribunal hearing”. No particulars of this have been given. On my close reading of the Tribunal’s decision, I am unable to identify any arguable contention that “prior” information provided “the reason, or a part of the reason, for affirming the decision that is under review”. In my opinion, it is plain that the Tribunal’s reasoning relied only upon evidence given by the applicant to the Tribunal and its assessment of that claimed history. I consider therefore that to the extent that the Tribunal relied on information, that information was unarguably excluded by s.424A(3)(b) from the obligation of s.424A(1).
The applicant’s amended application contains various contentions asserting facts which would establish his refugee status. However, these contentions do not provide arguable jurisdictional errors.
A further contention made by the amended application, and repeated to me by the applicant in his submission today, was that the Tribunal’s decision must have been based on translation errors “because the interpreter did not have sufficient religious knowledge”. It is contended in the amended application that this “was the main reason why the Tribunal could not well understand my account of the house church in China as well as my account of conversion to the claimed house church”.
However, no particulars of mistranslations have been provided in the amended application or submissions of the applicant, and the contention is also lacking any foundation in evidence presented to the Court. As has been held in relation to the consideration of whether an application for an order nisi should be granted, it is necessary for an applicant to present in affidavit material showing that:
… there is at least an arguable case for the grant of the final relief claimed … the material must be more than a mere pleading or assertion of the right to such relief. The material must contain some evidence of facts that would support the grant of the relief claimed. [See Emmett J in S357 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1684].
No such evidence giving a foundation for the contentions relating to the interpreting at the applicant’s hearing has been presented to the Court, notwithstanding that the applicant has been given ample opportunity to present that material. I therefore consider that the contention is not shown to have raised an arguable case.
The final argument presented in the amended application is that there was a failure by the Tribunal to provide the applicant with an opportunity to present arguments relating to the issues arising in the case pursuant to obligations under s.425 of the Migration Act. The contention is supported by particulars which claimed:
The Tribunal’s decision is mainly relied on those pieces of independent country information or negative issues mentioned above, the Tribunal must clearly inform me with them, and allow me to present my arguments against them.
In short, the contention appears to be that procedures analogous to common law procedural fairness were not followed at the hearing in relation to the putting of adverse issues or material to the applicant at the hearing. However, assuming that it could be established that the matters suggested were not put to the applicant, the ground would have no prospects of success in the face of clear authority that by reason of s.422B the Tribunal’s obligations in relation to the putting of adverse material to an applicant are exhaustively covered by the provisions of s.424A(1) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [132], [139], and the broader interpretation in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62). As I have indicated above, no breach of that section has been shown to be arguable in the present case.
For the above reasons, addressing the Tribunal’s reasons for myself and the arguments raised by the applicant, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate for me to dismiss the application under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

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: 18 August 2006