SZJOW v Minister for Immigration - [2007] FMCA 123

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 123

MIGRATION – RRT decision – Chinese applicants claiming persecution for underground Church activities – disbelieved by Tribunal – no arguable case raised – application dismissed at show–cause hearing.

Migration Act 1958 (Cth), ss.424A, 425, 476
Federal Magistrates Court Rules 2001, r.44.12

Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176
SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733

First Applicant:

SZJOW

Second Applicant:

SZJOX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3140 of 2006

Judgment of:

Smith FM

Hearing date:

23 January 2007

Delivered at:

Sydney

Delivered on:

23 January 2007

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the Respondent:

Ms Palmer

Solicitors for the Respondent:

Clayton Utz

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 applicants must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3140 of 2006

SZJOW

First Applicant

SZJOX

Second 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 26 October 2006 in which the applicants seek orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 5 September 2006 and handed down on 28 September 2006. The Tribunal affirmed a decision of a delegate taken on 28 April 2006 refusing to grant a protection visa to each of the applicants, who are a husband and wife.
The application was returnable before me at a first court date on

21 November 2006. The applicants attended in person and were assisted by a Mandarin interpreter. The nature of the proceedings was explained to the applicants by me and in an information sheet, and they were given an opportunity to file an amended application and any evidence relied upon by 12 January 2007 after receiving a bundle of relevant documents and a referral for free legal advice. I warned the applicants that their application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicants confirmed that they have received advice, possibly in recent days. They have not filed any amended application nor, as I shall explain, have they shown any particular argument raising any jurisdictional error by the Tribunal.
The refugee claims upon which the applicants sought protection in Australia against return to China were contained in an application by the husband applicant, and the wife did not make an application presenting her own claims to be a refugee. She was therefore included in the primary application as a dependent. However, the applicants claimed both to have been persecuted in China, and to face persecution if they return, due to a claimed association with an underground Christian church in China. The Tribunal considered the position of both of them.
They arrived in Australia in February 2006, and it seems that they already had a daughter in Australia. Their refugee claims were shortly set out in a typed statement attached to the visa application. It claimed that the applicant husband was “a pious Christian and a key member of an underground church in my town.” He said he “first came into contact with the Christianity in January 1997, influenced by my wife, (second applicant) who had also been a Christian for over twenty years”.The statement continued:
During the period from January 1997 to November 2005, every Sundays my wife and I regularly attended our underground church in (location) where the priests including L.. and Y.. personally preached a sermon to about 200 Christian believers. There we were praying and singing and praising God. After that the baptized brothers and sisters would “break the bread” to cherish the memory of God.
On 12^th October 1997 I was baptized to formally become a Christian by F.. and was awarded with a Certificate.
Furthermore each Tuesday and Saturday nights my wife and I would attend family religious meetings at our brothers’ and sisters’ home. Each time there were about 50 participants.
At the beginning, our religious gatherings and activities did not come to any attention of the local government. However, when more and more people joined our underground church and it became more influential, it finally came to the attention of the local government.
One day in November 2005, while my wife and I and some others church goers were at church, a lot of police suddenly broke into. We were denounced to have illegal religious gathering. As a result, about 18 of us were taken to the local Public Security Bureau, where we were interviewed and warned not to conduct the same religious activities in the future.
Immediately our church was forced to be closed and we were prohibited from having any religious gatherings and activities. But as a Christianity adherent, I find it impossible to live without my Christianity belief. I told myself I must find a place where I could practise my Christianity freely.
Recently I arrived in Australia. From the second week after my arrival I started going to Christian Assembly of Sydney, located at 119 Boundary Street, East Roseville.
As a key member of the underground church in China, if I return to PR China I will be subjected to persecution continously. I wish to seek protection from Australian government.
The applicant forwarded a copy of a Chinese document confirming his baptism, and also showed this to the Tribunal when he attended a hearing. He also showed the Tribunal letters from a local Sydney Christian congregation, confirming attendances by both the applicants at a church in February 2006. The Tribunal confirmed this information by making its own inquiries with the chairman of the church.
The applicants both attended the hearing on 11 July 2006, and were questioned together and separately by the Tribunal. A transcript has not been put into evidence, but the Tribunal gave a full description. At the end of the hearing, the applicant husband told the Tribunal that his baptism had, in fact, occurred in “an official church” which he had later left to join an underground church.
The Tribunal’s questioning of both the applicants detected some inconsistencies between their evidence concerning their involvement in the underground church, and their claimed arrest and interrogation. These inconsistencies were put to the applicants during the hearing, and in a letter addressed to the applicant husband dated 10 August 2006. The letter said:
You should inform (the applicant wife) about this letter and any reply will be regarded as a joint response unless we are advised otherwise.
The original application to the Tribunal had been presented as a joint application of both of the applicants, and had requested that all correspondence should be sent to the same address.
There is some conflict in authorities as to whether contradictions in evidence given by joint applicants is required to be put to them by way of a s.424A(1) letter, where the contradictions form part of the reasons of the Tribunal for affirming the delegate’s decision (c.f. the authorities discussed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 with those discussed by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733). However, in my opinion the present Tribunal decision avoided that potential problem, by putting to the applicants its concerns about their contradictions in a formal s.424A letter.
The applicants responded to the points raised by the Tribunal in a letter signed by the applicant husband, and it took the responses into account.
In its statement of reasons, the Tribunal did not accept that the official church into which the applicant husband was baptised had been taken over by the local authorities. It also thought that the applicants did not adequately explain contradictions in their evidence as to the dates on which underground church activities were held, as to the place where the alleged arrests occurred, and as to whether there were people present from other churches when the arrest occurred.
After assessing all their evidence and their explanations, the Tribunal concluded:
In all the circumstances, the Tribunal finds that the applicants were not involved in an underground church and were not arrested in late 2005. While accepting that they are Christians, the Tribunal finds that they were members of an officially recognised church in China, and practised their religion in that environment. It follows from this that the Tribunal finds the applicants are not adversely regarded by the authorities because of their religious activities in China, and that they will be able to continue those activities on return to China.
The Tribunal therefore found that the applicants’ fears of persecution in China were not well founded.
I have considered the procedures and reasoning of the Tribunal, and have been unable to identify any arguable jurisdictional errors affecting its decision.
The applicants’ original application had, as its grounds, only the following statement:
The decision of the Refugee Review Tribunal (RRT) was affected by jurisdictional errors according to the Migration Act.
No details of any argument identifying a jurisdictional error were provided, and the applicants have not filed any document in the Court showing any such argument.
They attended today and were assisted by a Mandarin interpreter. At the request of the applicant husband, the interpreter read to the Court a document in Chinese in the form of question and answers, which the applicant said contained his explanations answering the points which he said had been made by the Tribunal when rejecting their claims. The first six of these points traversed the same territory as the correspondence held by the Tribunal with the applicants under s.424A, and did not amount to more than arguments about factual matters which it was the task of the Tribunal to assess.
Two other points made by the applicant were unclear in their relevance. One of these, however, touched on a point of concern to me, which was whether the applicant wife could adequately communicate through an interpreter speaking only Mandarin. My concern arose in the course of the hearing before me, when it seemed that she preferred to explain herself in a Fujian dialect and the interpreter provided by the Court could not understand her. However, in my opinion, and for the purposes of the Court proceedings, what she wanted to tell the Court could sufficiently be communicated using her husband speaking to the Mandarin interpreter. The husband appeared to have no problems communicating in Mandarin.
Before the Tribunal, however, it seems that they were provided with an interpreter who spoke the Fujian dialect, since the statement read to me referred to the applicant wife being able to communicate well with the interpreter, since they came from the same home town. I am therefore satisfied that there was no argument available to the applicants that there were problems of interpretation before the Tribunal which might have affected its hearing and decision, by reason of a failure to afford the opportunity required by s.425 of the Migration Act.
The applicant and his wife requested more time today so that they could prepare further explanations. However, I considered that they have been given sufficient time to show an argument raising jurisdictional error, and were able only to propose arguments going to the factual assessments of the Tribunal.
In all the circumstances, I am not satisfied that there is any prospect that they would be able to present an arguable case for the relief sought in the application, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM.

Associate: Michael Abood

Date: 19 February 2007