SZJMG v Minister for Immigration - [2007] FMCA 66

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 66

MIGRATION – RRT decision – Chinese applicant claiming religious and political persecution – 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.424A, 476

Applicant:

SZJMG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2868 of 2006

Judgment of:

Smith FM

Hearing date:

16 January 2007

Delivered at:

Sydney

Delivered on:

16 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Rose

Solicitors for the Respondents:

DLA 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

SYG2868 of 2006

SZJMG

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 6 October 2006 in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 August 2006 and handed down on 12 September 2006. The Tribunal affirmed the decision of a delegate made on 6 April 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 31 October 2006. The applicant attended and was assisted by a Mandarin interpreter. The nature of the proceedings was explained to him by me and in an information sheet, and the applicant was given an opportunity to file an amended application with any evidence before 15 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received legal advice, and has filed an amended application which I shall consider below.
The applicant arrived in Australia in February 2006, and on 10 March 2006 lodged an application for a protection visa. His application did not disclose any person assisting him. It gave the applicant’s residential address in Campsie and a postal address in Pitt Street, Sydney. Included in the application was a brief typed statement of the applicant’s reasons for seeking protection in Australia against return to the People’s Republic of China.
The applicant claimed that he had come from a Catholic family and had become “very active at religious activities as well as activities to support pro‑democracy movement in China”. He claimed to have been in Tiananmen Square in 1989. He also claimed to have become a member of the underground Catholic Church in 2001. He said:
Every Sundays, I attended our underground Church in [place]. In September 2005, several key members and I were detained by police for investigation. I spent large sum of money to get myself released from police and managed to come to Australia for protection on time.
No details or corroboration of his claims were ever provided to the Department or to the Tribunal. The applicant did attend a hearing before the Tribunal on 11 July 2006. The invitation requested that he bring his passport to the hearing, and I infer that he did this since the Tribunal refers to examining the applicant’s passport and discussing with him, in particular, his reasons for obtaining it prior to the alleged acts of persecution.
In its statement of reasons, the Tribunal gave a lengthy description of the hearing, including where it explored the applicant’s claims to have been a Catholic and his knowledge about the basic background to that Church. The applicant had a smattering of knowledge about Christianity, but there were key areas of ignorance, including “what the Pope is”.
In its “Findings and Reasons”, the Tribunal said:
The Tribunal finds that the applicant is not a truthful and forthright witness. Before the Tribunal he was evasive and failed to answer questions put to him, often on simple and straightforward matters. Late in the hearing the applicant told the Tribunal that his memory was poor after he was gassed in an industrial accident in his workplace in the winter of 1986. Even allowing for some diminished memory and recollection the Tribunal believes that the applicant’s responses and evidence on a range of aspects of his life and experiences in China and in Australia enable the Tribunal to come to the findings that it has with confidence.
The Tribunal also found that “the applicant’s evidence reveals that he knows little about the Catholic faith”, and that he had “not been honest and forthright in his evidence about the circumstances in which his application for a protection visa was prepared”. The Tribunal thought that his account of how he came to obtain his passport, before the only specific episode of harm that he claimed had occurred, showed inconsistency. The Tribunal closely considered the applicant’s knowledge of Christianity and the Catholic denomination, and noted the absence of any evidence apart from some unsupported assertions that the applicant had attended any Catholic Church in Australia.
The Tribunal concluded:
The Tribunal does not accept that the applicant was drawn to the Catholic religion by his work colleagues in the dormitory they shared in 1986 or 1987. It does not accept that [he] became a Catholic in 2001 or that he was baptised a Catholic in 2001 as he has claimed. It does not accept that he was a member of an underground Catholic church as he has claimed and for that reason it does not accept his claim that he was detained because of his religious practice in September 2005. Because the Tribunal does not accept the applicant’s claims in relation to his introduction to the Catholic faith by work colleagues in 1986 or 1987 it does not accept that he travelled to Beijing with some of those colleagues in 1989 to support the pro‑democracy movement in Tiananmen Square.
In summary, the Tribunal is satisfied that the Applicant has never suffered persecution in China because of his religious beliefs, or for any other Convention‑related reason, and does not have a well‑founded fear of so suffering in the reasonably foreseeable future.
I have considered the procedures followed by the Tribunal and its reasoning, and can see no arguable jurisdictional error affecting its decision.
The applicant’s original application and his amended application follow precedents which make unparticularised allegations of bias, failure to consider the application, and a breach of s.424A. However, in the absence of particulars, I can see no arguable substance to those grounds. In my opinion, the Tribunal’s reasoning was clearly based only upon information given by the applicant to the Tribunal at the hearing and information not specifically about the applicant.
The applicant today had no argument which he could present to show an arguable case. He sought a further adjournment to obtain a “good lawyer” and to collect further evidence concerning his refugee claims. However, I considered that he had been given sufficient opportunity to achieve the former, and the latter could not help him win this case.
For the above reasons, 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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 January 2007