SZJAP v Minister for Immigration - [2006] FMCA 1597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1597

MIGRATION – RRT decision – Chinese applicant fearing persecution as a Shouter – disbelieved by Tribunal – no arguable case – application dismissed at a show‑cause hearing.

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

Applicant:

SZJAP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1908 of 2006

Judgment of:

Smith FM

Hearing date:

17 October 2006

Delivered at:

Sydney

Delivered on:

17 October 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms H Dejean

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 $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1908 of 2006

SZJAP

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 10 July 2006 in which the applicant 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”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 2006 and handed down on 15 June 2006. The Tribunal affirmed a decision of the delegate made on 10 February 2006, refusing to grant a protection visa to the applicant.
The applicant arrived in Australia in October 2005 on a visitor’s visa given to allow him to visit his son who was a student here. On 11 November 2005 he applied for a protection visa. His application did not disclose an agent. His claims for protection in Australia were made in a brief typed statement.
The applicant claimed: “I am believer of Shouters Group in China”. He claimed to have been taught “many knowledge of the Shouters Group” when he was introduced to the group in 1996. He claimed to have set up his own group from 2001. He said:
We got in touch with each other by mobile phone and seldom went outside to practice. Even though, our activity was still found by the police. At the end of July this year, one policeman went to my home and asked for me. I was not at home at that time, and the policeman told my family that they knew what I had done.
His family then advised him to go into hiding and come to Australia. No details or corroboration of these events was provided to the Department, nor to the Tribunal.
The applicant did attend a hearing to which he was invited on 23 May 2006. The Court Book shows that he collected the tapes of the hearing at the end of the proceeding. No challenge is being made to the conduct of that hearing before me. The applicant also showed the Tribunal his passport and it took photocopies of its contents.
In its statement of reasons, the Tribunal identified the claims made by the applicant and referred to its questioning of him at the hearing. Under the heading “Findings and Reasons”, the Tribunal gave a series of rational criticisms of the applicant’s evidence, explaining a finding that:
… the Tribunal is not satisfied that the Applicant became a Shouter in 1996; that he has at any time been a Christian or a member of the Shouter church; that he has ever had any organisational role or association with this or any other Christian church in China; or that he will be perceived by anyone as being a Christian.
Its criticisms included that the applicant “was reluctant to be drawn on details concerning his knowledge of Christianity and his personal religious practices”, that his “knowledge of Christianity was threadbare”, that his “account of his personal religious practices were minimal”, and that his “account of his religious activities in China lacked credibility”.
As a result of its adverse opinions on the applicant’s credibility, the Tribunal did not accept his account of fearing persecution by Chinese authorities. It said that “the Tribunal does not discern from the material before it that the Applicant has suffered past harm, let alone persecution, for any other reason”, and considered that if he returned to China he “does not have a political opinion that will motivate his future conduct”. The Tribunal was not satisfied that the applicant had a well‑founded fear of Convention‑related persecution, now or in the reasonably foreseeable future.
The application in this Court has two grounds which I shall consider the merits of below. It was returnable at a first court date before me on 8 August 2006. The applicant attended and was assisted by a Mandarin interpreter. I made orders allowing him to file an amended application and evidence by 29 September 2006, after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that his case might be dismissed today if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant was referred for advice but has not filed any further documents.
The Minister’s contention that the case should be dismissed today has been explained to the applicant in a response and a written submissions served on him, and by the Minister’s submissions today.
The first ground of his application is:
1.The decision involves jurisdictional error in that: The Tribunal took into consideration information that is irrelevant to the review application. The Tribunal asked the applicant whether his family knew his religion. This information is irrelevant to the application and the applicant is reluctant to answer the question due to his poor relationship with his family.
This ground refers to one of the reasons given by the Tribunal for disbelieving the applicant’s claims to have been persecuted as a member of the Shouter Church. It said:
§The Applicant claimed on the one hand to have promoted Christianity to colleagues and clients, yet not to have disclosed to his family what religion he followed. His explanation for not having told his family – that he hardly ever saw them – was improvised and unconvincing. The Tribunal does not accept that a committed Christian would conceal his or her faith from family members for no particular reason. It accepts the Applicant’s evidence that his family does not know he is Christian, but in the light of the above assessment, concludes that this is because he in fact has no association with that faith.
The Tribunal’s earlier description of its questioning of the applicant about what he had told his family was:
The Tribunal asked if the Applicant’s family members were also Christian or knew that he was Christian. He said that they were not Christian. He had spoken to them generally, but they had not figured out what religion he adhered to. He did not tell them that he was a Shouter. The Tribunal asked why the Applicant shared his religious beliefs with colleagues and other associates, knowing the disapproval Shouters faced in China, rather than with his family. The Applicant responded that he was hardly ever home; he spent more time with friends.
In my opinion, the point made by the Tribunal was a matter which was plainly relevant to its consideration of the applicant’s credibility. I consider it was open to the Tribunal to find that the applicant’s explanation for not disclosing to his family the religion he claimed to have followed for many years was “improvised and unconvincing”. In my opinion, Ground 1 in the application has no prospect of success and is not reasonably arguable.
The second ground is:
2.The Tribunal failed to afford the applicant procedural fairness by preventing him from submitting further evidence and failing to invite him to comment on important information.
No particulars of this contention are provided in the application nor in any further document filed by the applicant, and the applicant did not attempt to give it substance today. He did in his oral submission assert that there was a breach of s.424A, but he did not explain that contention.
For myself, I can see no information relied upon by the Tribunal which was specifically about the applicant which was not given to it by the applicant. On the material filed, I do not consider that this ground raises any arguable contention.
The applicant’s only other contention today was an undeveloped statement that there were documents he had sent to the Tribunal. It was unclear to me whether he was asserting that these had not been considered by the Tribunal, but that may have been the effect of what he was stating. However, he has not presented any evidence to the Court to give any substance to that contention despite the opportunity he has been allowed. It has no support in the documents filed by the Minister.
I am not satisfied that the 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) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 October 2006