SZIVI v Minister for Immigration
[2006] FMCA 1765
•19 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1765 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 56 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZIVI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1359 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 October 2006 |
| Date of Last Submission: | 24 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1359 of 2006
| SZIVI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 1 September 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 April 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) dated 23 November 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“the Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal described the applicant as follows:
She claims she became a Christian in March 2005 when she joined an underground church in China and she was arrested in June 2005 because of her involvement with the church. The applicant claims the underground church met in her home after June 2005 and together with other members she produced religious propaganda which she distributed throughout the region. She claims her husband was detained after she came to Australia when the authorities discovered the underground church in her home. The applicant claims she was identified as a key person of that church and the authorities are seeking to punish her for her involvement in illegal religious activities. She claims she is a committed Christian who participated in religious activities in Australia. She claims she sent religious literature back to China after she arrived in Australia. (Relevant Document (“RD”) bundle p.74)
The applicant claims that she will be severely punished and subjected to persecution on her return to China because of her involvement with an illegal religious organisation.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 5 to 7 of the Tribunal’s decision (RD 67-69). Relevantly, they are in summary:
a)in March 2005 she accepted an invitation to join a religious group and she attended religious gatherings in another person’s home. The group met three times a week and the applicant described the group as an “underground” Christian church;
b)in June 2005 she was arrested for participating in illegal religious activities at which time she was interrogated for a day and told not to get further involved in such gatherings;
c)thereafter she offered her home as the church’s meeting place and meetings occurred three times a week from June 2005. The group began to manufacture “religious propaganda” which they distributed;
d)following her arrival in Australia, the applicant permitted the group to continue meeting in her home and the applicant made her husband agree to this arrangement;
e)after the applicant’s arrival in Australia, her husband was arrested on suspicion that he was involved in illegal religious activities. Although he was released, he was told that the applicant was regarded as a key member of the underground church;
f)the applicant attended church in Australia following her arrival.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and 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 reasons may be summarised as follows:
a)the Tribunal did not accept as credible the following claims made by the applicant;
i)she became a Christian in March 2005 when she joined an underground church in China;
ii)she was arrested in June 2005 because of her involvement with the church;
iii)the underground church met in her home after June 2005 and together with other members the applicant produced religious propaganda which she distributed throughout the region;
iv)after the applicant came to Australia the applicant’s husband was detained when the authorities discovered the underground church in her home;
v)she was identified as a key person of that church and the authorities are seeking to punish her for her involvement in illegal religious activities;
vi)she is a committed Christian who participated in religious activities in Australia;
vii)she sent religious literature back to China after she arrived in Australia;
b)the applicant was unable to discuss the Bible or Christianity in a meaningful way during the hearing because she had no knowledge regarding these matters, not because of any inability to communicate with the interpreter;
c)in order to enhance her protection visa application the applicant fabricated her claims that she joined a church or became a Christian in March 2005 and currently had a genuine interest in Christianity;
d)the applicant’s claim that she was detained by the PRC authorities in June 2005 is not credible;
e)in order to enhance her protection visa application, the applicant fabricated claims that in China she was a religious activist who attracted adverse interest with the authorities, was detained in June 2005 and following her arrival in Australia was identified as a key person in an underground church;
f)the Tribunal did not accept as credible the applicant’s claim that her husband was arrested because of the applicant’s involvement in religious activities;
g)the applicant went to church in Sydney because she assumed it would enhance her protection visa application;
h)in order to enhance her protection visa application, the applicant fabricated claims that she is a Christian who in the future would participate in religious activities which will attract the adverse interest of the authorities in China; and
i)were the applicant to develop an interest in Christianity she would have the opportunity to express religious beliefs in China without adverse interest from the PRC authorities.
For the above reasons the Tribunal found that the applicant did not have a well-founded fear of persecution in China for reasons of religion or any other Convention reason.
Proceedings in this Court
The grounds of the application were that;
(a)the tribunal failed to comply with its obligations under s.425 of the Act on the basis that the applicant did not have a fair chance to give evidence and present arguments in relation to the decision under review because she had difficulty communicating with the interpreter who was not from her hometown of Fuquing and who did not have sufficient religious knowledge, making it impossible for the interpreter to translate religious terms properly and accurately.
(b)the Tribunal failed to comply with its obligations under s.424A(1) of the Act by not providing particulars of independent country information and the Tribunal’s negative view of the applicant’s submission;
(c)the Tribunal failed to consider certain evidentiary issues fairly and properly.
Dealing with each of these grounds in turn:
Breach of s.425
Section 425(1) provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant alleges that she was denied her entitlements under s.425 by reason that she had great difficulties communicating with the interpreter. She has placed no evidence before the Court in support of this claim.
However, the applicant said a similar thing in her statutory declaration of 6 March 2006 (RD 57 – 59) in response to the Tribunal’s letter to her of 21 February 2006.
Based on her lack of apparent difficulty in communicating with the interpreter during the course of the Tribunal hearing the Tribunal expressly rejected this assertion. In its decision, the Tribunal said;
The applicant stated after the hearing that she had difficulties communicating with the interpreter. However, the Tribunal observed the applicant during the hearing and she had no apparent difficulty communicating with the interpreter. The Tribunal has formed the view that the applicant’s communication difficulties at the hearing resulted from her lack of her knowledge rather then her lack of ability to communicate with the interpreter. The Tribunal finds the applicant was unable to discuss the Bible or Christianity in a meaningful way during the hearing because she has no knowledge regarding these matters. (RD 75)
The applicant has not made out her claim that the Tribunal failed to comply with its obligation under s.425.
Breach of s.424A
Section 424A 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 applicant complains that the Tribunal relied on some independent country information. However, by virtue of s.424A(3)(a) such information does not fall within the scope of s.424A.
The applicant also complains that the Tribunal relied on a “negative” view of her submissions after the Tribunal hearing. However, as noted by the first respondent in her submissions, there is no obligation on the Tribunal to put to the applicant matters such as the subjective thought processes of a member in coming to a decision; this is not “information” for the purposes of s.424A(1): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 477 [24], as discussed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 per Moore J at 224-225 [18] and Allsop J at 259 [206].
But in any case, on 21 February 2006, following the hearing, the Tribunal wrote to the applicant, care of her adviser, advising that it had doubts as to whether she had presented a truthful account of her circumstances in China and Australia (RD 53-55). That letter also recorded an indication made to the applicant by the Tribunal at the hearing that the Tribunal doubted that she has a genuine interest in Christianity or that she considers herself to be a Christian. In the letter of 21 February 2006 the Tribunal put a number of matters to the applicant which in summary were:
a)the Tribunal had formed the view that the applicant’s claim to be a Christian was contrived to enhance her protection visa application and that her attendance at church in Australia occurred to enhance her protection visa application;
b)the Tribunal had serious doubts regarding the credibility of the applicant’s core claims regarding her adherence to Christianity. The Tribunal also doubted that her associated claims, of having been arrested for participating in illegal religious activities in China and being at risk of being arrested for the same reason, were credible;
c)the Tribunal had formed the view, considering what it described as contradictory evidence regarding the applicant’s relationship with her husband, that the two had been separated for almost twenty years and that the applicant’s husband did not attend religious services in the applicant’s home before she came to Australia. On that basis, the Tribunal expressed the view that it considered it implausible that the local police had targeted her husband for religious activities taking place in a house he had not visited for almost twenty years. The Tribunal had formed the view that the applicant fabricated the claim regarding her husband’s arrest in October 2005 to enhance her protection visa application; and
d)referring to two reports by the US Department of State Religious Freedom report 2005, “China (includes Tibet, Hong Kong and Macau)” and Country reports on Human Rights Practices – 2004 “China (includes Tibet, Hong Kong and Macau)” the Tribunal expressed the view that were the applicant to pursue a genuine interest in Christianity, she would have the opportunity in China to express her religion there without adverse interest from authorities.
The applicant was invited to comment on this material by 7 March 2006 and she did so. (RD 56-59)
Failure to consider evidentiary issues fairly or properly
The third ground advanced by the applicant invites the Court to review the Tribunal’s findings in relation to several matters. It is not within the Court’s jurisdiction to reconsider the merits of the applicant’s claims: A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 56.
As the first respondent said in her submissions;
…this ground is nothing more than an attempt by the applicant to invite the Court to consider her claims on their merits and does not clearly disclose any proper ground for review. The matters set out by the applicant were clearly considered by the RRT, however, it failed to accept some of the applicant’s key assertions as the member found her not to be a credible witness on certain issues. The member made a credibility finding that the applicant could not provide any information about the Bible because she had no knowledge of such matters. The member further found that the applicant had fabricated her claim that she had become a Christian and had attended church since March 2005, and he also found that the applicant did not have a genuine interest in Christianity (RD 75). It accepted her evidence that she has been attending a church in Sydney, but did not accept that this was due to a genuine interest in the church (RD 76). It also rejected her claims that she had been detained by the PRC authorities and viewed as a person of interest due to her claimed involvement in the church and that her husband had been arrested because of his involvement in the church at her house. These were matters that were dependant on findings of credit by the RRT and which were open to the member on the materials before him.
Conclusion
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
Therefore, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 19 December 2006
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