SZJOB v Minister for Immigration - [2007] FMCA 602

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 602

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Christian – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 425, 476

Applicant:

SZJOB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3053 of 2006

Judgment of:

Smith FM

Hearing date:

27 March 2007

Delivered at:

Sydney

Delivered on:

27 March 2007

REPRESENTATION

Counsel for the Applicant:

The applicant in person

Counsel for the Respondent:

Mr J Mitchell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3053 of 2006

SZJOB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 20 October 2006, which has been set down for a final hearing on whether the applicant is entitled to a remedy under s.476 of the Migration Act 1958 (Cth), (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal dated

30 August 2006 and handed down on 21 September 2006. The Tribunal affirmed a decision of a delegate made on 30 May 2006, refusing to grant a protection visa to the applicant.
The application to this Court was set down for a first Court date on

21 November 2006, where the nature of the proceedings was explained to the applicant. He was given an opportunity to file an amended application and evidence, after receiving a bundle of documents and a referral for free legal advice. Such a referral was sent by the Federal Court Registry to the applicant on 28 November 2006, giving him the contact details of a barrister.
Unfortunately, the Court Book was late in preparation by the Minister's solicitors, and was not filed until shortly before a show cause hearing appointed for 23 January 2007. The applicant had filed an amended application prior to that date, but I decided to allow him more time to take further advice if he wished to, and set the matter down for a final hearing today, giving him leave to file further documents by
23 February 2007.
He did not file any further documents, and I shall address his amended application below.
Under section 476, the Court has the “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court's powers are confined by s.474, so that I do not have power to set aside the Tribunal's decision unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in March 2006, and lodged an application for a protection visa on 24 April 2006. His application indicated that he had been assisted by somebody who was not a migration agent. It attached a statement giving a history upon which the applicant sought protection in Australia against return to his country of nationality, the People's Republic of China.
The statement opened with a summary of his situation:
I am an unregistered Christian, so local Communist cadres and police extorted me, and my revolting action actually drew upgrade persecution from those people.
The statement then narrated a history in which the applicant attended a Christian church in his village. He said:
From December 2003 to 15 January 2006, the worship site had to be changed to an underground home church at … due to the persecution from local government. Even from the end of January 2006 to the date before I came to Australia, I just did worship secretly at home every Sunday.
The applicant claimed to have attended a Bible study group since 1999, and at that time he “became a devotional Christian and took part in Bible study group and worship regularly. At the end of 2000, I was baptised in the Christian church I mentioned above”. He claimed that the local government had tried to force the congregation to become registered, and had prevented Christians from entering the church, so that they had to change “our worship site” to an “underground home church located in a Brother’ home”. He claimed that in January 2006 police “rushed in” at that location and arrested five people, including the applicant and the priest. He claimed that he was detained for eight days and, afterwards “I could only do the worship secretly in my own house…I even lost my job”. He claimed to have acquired a passport containing a valid visa to enter Australia from a “world travelling company”, after paying a large sum of money.
No corroboration of these claims was presented to the Department of Immigration, and the delegate refused the application on the ground that they “are unsubstantiated and lack credibility”. The delegate pointed out that the applicant had not specified the denomination of his Christian beliefs, and suggested that country information about the situation of Christians in Fujian Province was contrary to the situation portrayed in the visa statement. The delegate also thought that: “it goes against the applicant's credibility that he was able to leave China legally and without any difficulty”.
On appeal, the applicant attended a hearing conducted by the Tribunal on 18 August 2006. Neither party has tendered a transcript, but the Tribunal gave a description in its statement of reasons, and I have no reason not to accept this.
The Tribunal described evidence given by the applicant concerning a Chinese document which he presented:
The applicant presented a handwritten letter in Chinese, on formal letterhead, and read its contents aloud. He said that it was from the Christian church in Honglu, Fuqing City, from the priest who baptised the applicant. The letter stated the applicant’s name and address, and recorded that the applicant had been a practicing Christian since 2000 and had since been baptised. The applicant stated that he had telephoned the priest at one of the three telephone numbers listed at the top of the letter – he could not remember which one – and asked the priest to prepare the letter for him. He said that the letterhead itself had been printed in 2000, and that the church now used a different name. As for the building, it was a substantial three-storey building of some 2000 square metres that continued to exist.
The Tribunal questioned the applicant about his claimed church attendances in China, and about his arrest, the obtaining of his visa, and his activities since arriving in Australia. By the time of the hearing, the applicant had been residing in Sydney for more than six months. The Tribunal said:
The Tribunal asked the applicant about his involvement with the Christian community in Australia. The applicant replied that he had searched all over Hurstville, and had not found any Christians. The Tribunal expressed surprise that the applicant had organised accommodation, employment, his protection visa application, a mobile telephone and even a drivers licence (in early April, thus not long after arriving in Australia), yet had not managed to meet Christians. The applicant said that, since coming to Australia, he had spent all his savings, and had to work from Monday to Saturday. It was only on Sundays that he had time to search for a church, and thus far he had not found one. He had asked about five people where he could find a church, and at the end of the hearing, he made a point of asking the Tribunal for its assistance in locating one. He was ‘new’ in Australia, and regretted not having found a church. The Tribunal advised that there were numerous Chinese language churches in Sydney, and it found it difficult to believe that the applicant had not been able to find someone to point him in the right direction.
The Tribunal also summarised its questioning which attempted to assess the applicant's knowledge and commitment to Christianity:
The Tribunal discussed with the applicant his knowledge of and commitment to Christianity. The applicant responded to such questions with considerable hesitation. During the course of the discussion, he recited a final line that frequently occurs in prayers; identified his favourite verse of the Bible as St John 3:16 (and gave a rendition of it); stated that there were two parts of the Bible and named several chapters; described the concept of the Trinity; identified Mary as the mother of Jesus; and linked the birth of Jesus with Christmas. His knowledge beyond this was extremely limited. The applicant said that he listened to the preachers, but they would discuss just two or three paragraphs of the Bible each week. He did not know the Lord’s Prayer (the first line of which the interpreter read aloud from a Chinese language text, as a prompt). He did not appear to be familiar with the Ten Commandments (besides a broad reference to not doing bad things, and not drinking or smoking). He was not able to identify any narrative concerning the birth of Jesus, stating only that he would be able to find references if he had a Bible in front of him. He also had not heard of any stories concerning the life of Jesus, such as miracles or parables.
At the end of the hearing, the Tribunal said that it put to the applicant country information about the situation of Christians in Fujian, and it said:
The Tribunal alerted the applicant to its concerns about his claims, in particular his scant involvement in any Christian activities in Australia and his limited knowledge of the faith.
Under the heading, "Findings and Reasons", the Tribunal explained what were essentially two reasons why it rejected the applicant's claim to have any interest in or commitment to the Christian faith. The first turned upon its assessment of the applicant's knowledge of Christianity, which was:
The applicant’s readiness to give some pieces of information contrasted sharply with his general lack of familiarity. This was so marked that the Tribunal concludes that his evidence was rehearsed, and had been learned for the specific purpose of impressing the Tribunal at the hearing. The Tribunal considers that it is not a genuine reflection of any interest in or commitment to the Christian faith.
The Tribunal took into account and attempted to assess the weight to be given to the Chinese statement read to it by the applicant. It said:
The Tribunal has considered the brief statement that the applicant read out at hearing, purportedly from the priest who baptised him. The statement, dated 30 March 2006, was prepared at the applicant’s request. The minimalist nature of the letter, coupled with the letter’s dubious provenance (given the applicant’s evidence that it was written on old letterhead and that it was prepared in what sounded like a substantial office building rather than any form of ‘underground’ church), leaves the Tribunal unable to place any weight on it as evidence of the applicant’s claimed Christianity.
The Tribunal’s second reason for rejecting the applicant’s claims, which combined with its doubts about the applicant's knowledge of Christianity, was “his complete lack of contact with Christians since arriving in Australia”.
The Tribunal concluded:
In the light of the applicant’s very limited knowledge of Christianity and his lack of demonstrated efforts to make contact with Christians in Australia, the Tribunal rejects his claim to have any interest in or commitment in that faith. It accepts that he may have observed some Christians in Fujian, but rejects that he has had any personal involvement with Christian communities there, or that he will be perceived by anyone as a Christian.
It follows that the Tribunal does not accept the applicant’s claim to have suffered past harm for reason of his now-dismissed Christianity. Nor does it accept that he will have any interest in Christianity if he returns to China. The material before the Tribunal does not reveal any other factors that might establish a real chance of Convention-related persecution.
I have considered the reasoning of the Tribunal and its procedures, and am unable to identify any jurisdictional error affecting its decision.
The applicant's amended application presents two particulars for the following grounds:
1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
The first particular alleges a failure to comply with s.424A(1) of the Act, due to the failure of the Tribunal to invite the applicant to comment on “the following pieces of information as a reason or part of reason:-
- At the Tribunal’s hearing, I “demonstrated a conceptual grasp of some key concepts, such as the Trinity and the relationship between Jesus and Mary…”
- The statement from the priest who baptised me in China “…was written on old letterhead and it was prepared in what sounded like a substantial office building rather than any form of ‘underground’ church…”
- I genuinely wished to join a Christian congregation, and had asked five or more people to help me, but – in sharp contrast to my success “… in other walks of life…” (managing to get a drivers licence, a mobile phone with help of friends).
The second particular alleges a failure “to comply with its obligations under s.425 of the Act”, because:
a) During the hearing, the Tribunal has, actually, not given any genuine chances to give evidence in support of my claims, because I was frequently interrupted, misunderstood, and also given strong pressure; and
b) The Tribunal failed to give me a fair chance to present my arguments relating to the issues arising in relation to the decision under review, because the Tribunal failed to indicate me what the issue was actually.
In my opinion, the argument presenting a failure to comply with obligations under s.424A(1) has no merit. The matters particularised under this ground all point to reasoning by the Tribunal which drew upon information given by the applicant to it at the hearing, including its conclusions from the document presented by the applicant. All this information came within the exemption in s.424A(3)(b). The Tribunal was not obliged to invite written comments on the assessments it made of that information.
In my opinion, the argument that the Tribunal did not comply with obligations under s.425 has not been made out on the evidence presented to the Court. Notwithstanding ample opportunity, the applicant has not tendered a transcript or other evidence to establish that he was not afforded the opportunity required by s.425. I am not at all satisfied that the applicant was in fact “frequently interrupted”, or "misunderstood", or "given strong pressure". Nor am I satisfied that the applicant was not sufficiently apprised of the issues which would be decided by the Tribunal. The general credibility of his history was clearly put into issue and drawn to his attention by both the delegate's decision, and the questioning of the Tribunal at the hearing. I do not consider that this ground is made out.
At today's hearing, the applicant appeared. He initially sought an adjournment to obtain a further opportunity to obtain advice from the legal panel adviser. It is not clear to me that he has not already been sent such advice. He claims to have assumed that he did not need to make any effort on his part to contact the adviser to obtain a personal consultation. However, it was his responsibility to obtain advice if he really wanted it. I considered that my previous directions gave him ample opportunity to obtain whatever advice he wished to get from whatever sources were available, and I refused to adjourn the hearing today.
The applicant's submissions which addressed the Tribunal's decision criticised its failure to accept the document he presented as corroborative evidence of his claims. He also maintained that he had tried to find a church which suited him in Australia, and he argued that the Tribunal was wrong in its assessment of his knowledge of Christianity. However, in my opinion, all the points made by the applicant challenged only the factual assessments which were made by the Tribunal of his evidence, and did not identify any flaw in the Tribunal's assessment which could provide jurisdictional error.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by jurisdictional error, and I consider the decision was a privative clause decision. I must, therefore, dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 23 April 2007