SZJEX v Minister for Immigration
[2006] FMCA 1784
•22 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJEX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1784 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution for reasons of her religion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 424A, 441A, 474 |
| First Applicant: | SZJEX |
| Second Applicant: | SZJEY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2238 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 November 2006 |
| Date of Last Submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2238 of 2006
| SZJEX |
First Applicant
| SZJEY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The decision was signed on 27th June 2006 and was handed down on 18th July. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants protection (class XA) visas.
The background to this matter is that there are two applicants who are a husband and wife. They are citizens of the People's Republic of China. They arrived in Australia on 23rd January 2006 and applied for protection (class XA) visas on 2nd February.
On 13th March 2006 a delegate of the Minister for Immigration and Multicultural Affairs refused their application.
The applicants then sought a review of that decision by making an application to the Refugee Review Tribunal. That application was lodged at the Sydney Registry of the Tribunal on 6th April 2006.
The applicants did not provide any additional information with their application.
The Tribunal wrote to the applicants on 27th April 2006 and invited them to attend a hearing scheduled for 9 am on 1st June. The two applicants attended the Tribunal hearing and brought with them copies of their Chinese passports. The first applicant, the wife, is the one who has made specific claims for a protection visa under the refugee's convention. Her husband relies solely on his claim as a member of the first applicant's family.
The first applicant claims that she has a well-founded fear of persecution for the convention reason of religious belief. She says that she is a follower of the Christian religion and had regularly attended Church meetings in China since August of 1998. Her case is that when she became an adult she came to understand that religious practice in the official Church was strictly restricted, controlled and monitored by the government.
In 2003, a friend of hers, whom she had known for several years, told her that she was a group leader of a house Church. The applicant claimed that she participated in the meetings in the house Church, and by January 2004, with the assistance of her friend, she had her own Bible study group. That group grew in number, until eventually she had about 35 members of the group.
Unfortunately, on 29th June 2005, the applicant says that when they were organising Bible study the house was raided by the police.
The applicant and her friend were arrested for having taken part in an illegal religious gathering, and they were detained and taken to the Public Security Bureau.
She was detained by the Public Security Bureau from the day of her arrest until 3rd July 2005. During the time that she was detained, the applicant said that she was subjected to interrogation and physical mistreatment. The applicant told the Court today that for a woman, being detained or arrested is a humiliation, and she did not wish to recall the details of what had happened when she was giving evidence to the Refugee Review Tribunal.
She indicated that she had obtained a passport and a visa to Australia with assistance from a close friend who was in the Public Security Bureau. The applicant expressed the fear that if she were to return to China she would be punished severely.
The Tribunal asked the applicant a number of questions about her history and about her religious beliefs. An account of the Tribunal's record of the applicant's oral evidence is found at pages 85 through to 87 of the Court Book.
A description of the Tribunal's record of the applicant's oral evidence is found at pages 84 through to 87 of the Court Book.
The Tribunal noted that the applicant claimed at the hearing that she was feeling unwell, and in particular claimed that she felt dizzy and did not wish to answer any more questions. At the conclusion of the applicant's oral evidence, the Tribunal told the applicant that it did not accept that her claims were credible because she did not appear to have any knowledge about the Christian faith or of the Bible.
The Tribunal noted that the applicant claimed that she did not wish to comment, because she was unwell.
The Tribunal's decision record appears in the Court Book at pages 79 to 91 inclusive. In the Tribunal's decision record, the Tribunal referred to independent information about Christians in China. This information can be found at pages 87 to 88 of the Court Book.
The Tribunal's findings and reasons are set out at pages 88 through to 91 of the Court Book. The Tribunal accepted that the first applicant is a citizen of the People's Republic of China. The Tribunal had the evidence of the applicant's passport.
I note that the Tribunal makes no direct finding about the citizenship of the second applicant, who was the first applicant's husband. Whilst the second applicant made no independent claim for refugee status, in my view it is preferable for the Tribunal to address the question of citizenship of all applicants and not just the principal applicant. In this case nothing turns upon that point, as the Tribunal had the evidence of the second applicant's passport before it, and it is clear that he is a citizen of the People's Republic of China also.
The Tribunal correctly assessed the applicant's claims against the People's Republic of China. The Tribunal noted that the first applicant claimed that she is a Christian who had attended a home Church.
The Tribunal did not find the applicant to be a truthful or credible witness. The Tribunal sets out the reasons why the Tribunal did not consider the applicant to be a credible witness. Those reasons appear on pages 89 and 90.
In short, the Tribunal was not satisfied that the applicant was a Christian because she had no knowledge of Christian teachings or beliefs. The Tribunal accepted that it may be difficult for some people to explain their religious beliefs, but was of the view that if the applicant was a genuine Christian who had attended a home Church since 1998, and had started her own home Church, she would have been able to tell the Tribunal about the birth, life, death and resurrection of Jesus.
The Tribunal noted that the first applicant had no familiarity with the structure or the contents of the Bible, although she claimed that she had studied the Bible since 1998.
The Tribunal expressed disbelief in the applicant's claim that she had been to Church a few times in Australia, and expressed disbelief that the applicant had not attended Church more, because when she had been to Church the services were in English. The Tribunal took the view that if the applicant had been a genuine Christian, she would have taken steps to attend a Christian Church which conducted Church services in Chinese language.
The Tribunal noted that there are a large number of Christian Church services conducted in Chinese languages in Australia.
The Tribunal noted the applicant's claim that throughout the hearing, she had forgotten pieces of information and that she felt dizzy.
The Tribunal did not believe this claim, and took the view that the applicant only raised difficulties with her memory to overcome the serious flaws in her evidence.
The Tribunal's summary of its view of the first applicant's evidence appears at page 90 of the Court Book:
Given the applicant's lack of knowledge of Christian beliefs and teachings, the Tribunal does not accept that the applicant is a Christian, or that she has ever attended a home Church, or that she started her own home Church, or that she ever has studied the Bible. It follows that the Tribunal does not accept that the applicant, in June 2005, was arrested and detained for having an illegal gathering.
The Tribunal finds that the applicant has fabricated the claims made in her protection visa application and at the hearing to support her claim for refugee status. The Tribunal does not accept the applicant has practiced Christianity in Australia, or that she would practice Christianity if she returns to China.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for her religion or for any other convention reason.
The Tribunal was not satisfied that the first named applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol.
Accordingly the Tribunal found that the first applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa. The Tribunal noted that no specific convention claims were made by or on behalf of the second applicant, and that his application depended on the first applicant's claim.
As the first applicant could not be granted a protection visa, it followed that the second applicant could not be granted a protection visa also.
The applicant commenced proceedings for a review of the Tribunal decision by filing an application and an affidavit in support on
14th August 2006. The applicant seeks two orders, one, an order setting aside the Refugee Review Tribunal decision. Two, an order directed to the Refugee Review Tribunal that the applicant's application for a review of the delegate's decision be heard and determined according to law.
The applicant's affidavit sets out the history of her claim, and says at [14] that:
The Tribunal committed jurisdictional error of law in that it failed to comply with the Migration Act.
The grounds of the applications rely on a failure to comply with
s.424A of the Migration Act. The particulars of that claim are somewhat confusing in that they say:
The applicant for a protection visa (class XA), including the country information, by the Tribunal was not given to the applicant by one of the methods prescribed in s. 441A of the Migration Act 1958.
The particular is headed with the letter A, and ends with a comma. There is no particular B or any further particulars. If something has been left out of the application, I do not know what it is.
The applicant has attended Court today and made oral submissions to the Court. She has pointed out that she did not feel very well at the Tribunal hearing. She said that she had a severe headache.
She complained that the Tribunal did not accept her claims that she felt unwell at the hearing.
She explained that at the hearing she did not want to recall what had happened in China because for a woman being detained or arrested is a humiliation.
The applicant considers that the Tribunal is unreasonable in not believing that she was a Christian. She told the Court that the Tribunal cannot judge whether she is a Christian or not, based on whether she can answer questions about her religious belief. After her application was refused by the Refugee Review Tribunal, she said that she did have advice from a free legal adviser. That person was of not much help.
For the first respondent Minister, it is submitted no jurisdictional error has been made out, and in particular there is no breach of s.424A of the Migration Act. The basis of the Tribunal's decision was that it did not accept the applicant's evidence and did not find her to be truthful or credible.
In considering the decision, I note that independent information is referred to about Christians in China. Whilst the Tribunal did not specifically refer to any of the independent information in the section headed: "Findings and Reasons", I am satisfied that the Tribunal relied on that independent information as a part of making its decision.
The independent information that is referred to on pages 87 and 88 of the Court Book does not relate to the applicant or any other person, with the exception of Jesus of Nazareth, but in my view relates solely to a class of persons to which the applicant claims to belong, namely followers of the Christian religion.
The independent country information is information that is excluded from the operation of s.424A of the Migration Act, because it comes under the exceptions set out in sub-s.424A(3)(a) of the Act.
There is no other information upon which the Tribunal relied, other than the applicant's own evidence. The applicant's own evidence is, by definition, information that the applicant gave to the Tribunal for the purpose of the application for review. It is excluded from the operation of s.424A(1) because it comes within the exception of
sub-s.424A(3)(b). In my view, no breach of s.424A has been made out.
The applicant complained that she was not able to answer questions because she was feeling unwell at the Tribunal hearing. In my view, the applicant raised this claim with the Tribunal, but the Tribunal did not believe this claim. That would appear to me to be a matter entirely for the Tribunal.
If there were evidence that the applicant made it clear that she had some illness that prevented her from giving evidence, then she should have provided evidence in the form of medical evidence to support that claim.
The applicant has complained that the Tribunal cannot judge whether she is a Christian or not, based on whether she can answer questions about her beliefs, and said that she did not wish to recall painful and humiliating things that had happened to her in China when she was detained.
In conducting its review, the Tribunal must consider the applicant's claims. Those claims are essentially that she suffered persecution for her religious belief whilst in China, and fears that she would suffer persecution in the future is she were to return to China.
In my view, it was necessary for the Tribunal to examine the details of the persecution that the applicant claimed, even though that was painful for the applicant.
It was also appropriate for the Tribunal to make some inquires as to whether the applicant could or could not be described as a follower of the Christian religion. Even if the Tribunal were to be satisfied that the applicant is a Christian, that would not, of itself, be sufficient to meet the criterion for the issue of a protection visa.
It was necessary for the first applicant to show that she had a
well-founded fear of persecution based on her religion. It does not necessarily follow that if a person is found to be a Christian, then he or she will automatically have a well-founded fear of persecution in China for that reason.
I am aware of the fact that the applicant is not legally represented.
I have considered the material before me in order to ascertain whether I can discern any jurisdictional error not mentioned by either of the parties.
I am satisfied that no jurisdictional error appears. As there is no jurisdictional error, the decision is a privative clause as defined by
sub-s.474(2) of the Migration Act. A privative clause is final and conclusive, and is not subject to orders in the nature of certiorari or mandamus that the applicant claims.
In other words, if it is a privative clause, the Court cannot set it aside, nor can the Court remit the application to the Tribunal for re-hearing.
The application will be dismissed.
There is an application for costs on behalf of the Minister. The amount sought is $2,500.00. The applicant is of the view that such a claim is unreasonable, but it is the usual practice that the costs follow the event.
In other words, a successful party is entitled to an order that the unsuccessful party should be responsible for their reasonable legal costs. In my view, this is a case where the usual order for costs should be made in favour of the successful first respondent.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 November 2006
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