SZIYT v Minister for Immigration - [2006] FMCA 1526

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1526

MIGRATION – RRT decision – Chinese applicant claimed persecution for Christian religion – disbelieved by Tribunal – 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.91R(3), 424A, 476

Applicant:

SZIYT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1779 of 2006

Judgment of:

Smith FM

Hearing date:

26 September 2006

Delivered at:

Sydney

Delivered on:

26 September 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

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

SYG 1779 of 2006

SZIYT

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 23 June 2006, in which the applicant applies for 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”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 May 2006 and handed down on 23 May 2006. The Tribunal affirmed the decision of a delegate made on 14 February 2006 refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 18 July 2006. The applicant attended on that day and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to the applicant by me and in an information sheet. I made orders allowing the applicant to file an amended application and any additional evidence by 8 September 2006, after receiving a referral for free legal advice and a bundle of relevant documents. I warned the applicant that his case might be dismissed today if the Court were not satisfied that it raised an arguable case for the relief claim.
The applicant did receive a referral to an experienced immigration barrister, Dr John Azzi. He has filed a document which I shall refer to below.
The applicant arrived in Australia in October 2005. His application for a protection visa was lodged on 22 November 2005. It did not disclose the name of an agent or other person who assisted him. His claims for protection in Australia so that he did not have to return to the People’s Republic of China were contained in a brief typed paragraph.
He claimed that he had attended “unregistered religious activities when I was in China”. He claimed:
In November 2001, we got together at my home for activities, police came to my home to take all of us to police, and we were detained for 2 days for questioning as they believed that we organised illegal activities. I was in prison for two months, and I had criminal record. As soon as I came out, I got help from a friend to get my passport ready, and tried to leave China as soon as possible. However, it was not an easy thing to do. Just before I came to Australia in August 2005, police came to our little church, and took all of us away. Worrying about my safety, by paying bribery money, I got myself released, and applied for a visa to come to Australia for protection.
No details of these events or of the applicant’s practice of his religion were provided, and no corroboration was ever given to the Department or the Tribunal.
The applicant did attend a hearing of the Tribunal to which he was invited on 21 April 2006. The Tribunal gives a description of the applicant’s evidence to it. The applicant was unable to answer questions seeking details of his practice of his religion, other than with extremely broad statements, such as: “we preached as a Church to follow the Bible”. In relation to his religious practices since coming to Australia, the applicant claimed to have attended church in Australia “nearly every Sunday”, but was unable to identify the name or denomination of the church.
Under the heading “Findings and Reasons”, the Tribunal identified the applicant’s claims. It recorded a general finding that “the Tribunal does not accept that the applicant is a Christian and a member of an underground church”. It referred to the inadequacy of his evidence, and expressed the following conclusion:
The applicant has submitted no documentary evidence in support of any of his claims. His responses to the Tribunal’s questions through the hearing were consistently hesitant, vague and brief. The Tribunal expressed concerns regarding his lack of knowledge of the Bible and his brief responses during the hearing. By way of explanation the applicant stated that he was nervous and had memory loss. The Tribunal gave the applicant a number of opportunities to consider his answers and provide more detailed information about his Christian beliefs. There is no medical evidence before the Tribunal that the applicant is suffering from any medical condition that affects his memory. While the Tribunal accepts that he may have been nervous in an unfamiliar environment, the Tribunal is not satisfied that the applicant was sufficiently knowledgeable about Christianity to be a Christian.
The Tribunal is not satisfied that the applicant was a member of an underground Church while he lived in China. It follows from this finding that the Tribunal does not accept the applicant was arrested and detained on two occasions because of any such association with the church. As the Tribunal has found that the applicant is not a Christian, the Tribunal is not satisfied that the applicant would be persecuted because of his religious beliefs if he were returned to China.
Having found the applicant attended Church services only for the purposes of enhancing his claims for protection, the Tribunal finds that, were he to return to China, the applicant would not be motivated to join an underground church.
The Tribunal had earlier examined the applicant’s claim to have attended church in Australia. It said that it accepted that he “may have attended some Church services”, but made a finding that this was “for the sole purpose of strengthening his claim to be a refugee”.
The Tribunal then applied s.91R(3) of the Migration Act.
The Tribunal also considered the applicant’s general complaint that he could not enjoy basic human rights in China, and noted that the applicant had not provided further evidence to support or explain that claim.
I have considered the Tribunal’s reasoning and consider that no arguable jurisdictional error appears.
The applicant’s application filed in this Court adopts a precedent commonly seen. It alleges failure to apply s.424A, bias, failure to consider claims, and the absence of a rational or logical foundation. No particulars of these complaints are provided, and I consider that they are not shown to have any arguable substance.
The applicant’s opportunity to file an amended application was met by the filing of such a document using the Court’s form. It says in relation to the grounds:
Please refer to the following two pages for detailed grounds of my application.
However, the following two pages are irrelevant parts of the form and no further grounds are attached. The applicant today claimed that there were additional grounds in something prepared by a friend, but he was unable to present it to me, nor tell me what was in it. He did, however, read from a prepared statement which repeated the same general complaints as appeared in the original application, without showing any substance or particulars.
I consider that the applicant has had ample opportunity to present the Court with arguments to show whether he has an arguable case.
For the above reasons, I am not satisfied that his application raises an arguable case for the relief claimed, and I consider it appropriate for me to dismiss the case under r.44.12(1)(a).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich‑Old

Date: 23 October 2006