SZJRL v Minister for Immigration
[2007] FMCA 388
•13 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 388 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Shouter’s Church activities – disbelieved by Tribunal – no arguable case raised – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.424A, 425. 476 |
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
| Applicant: | SZJRL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3324 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 13 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 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 |
SYG3324 of 2006
| SZJRL |
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 14 November 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 dated 29 September 2006 and handed down on 10 October 2006. The Tribunal affirmed the decision of a delegate made on 27 May 2006 refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 5 December 2006. The applicant attended and was assisted by an interpreter. The nature of the proceedings was explained to her by me and in an information sheet, and she was given an opportunity to file an amended application and any evidence after receiving a bundle of relevant documents and a referral for legal advice. The applicant was warned that her case might be dismissed at the next listing if I were not satisfied that it raised an arguable case for the relief claimed.
A show cause hearing, which I appointed for 13 February 2007 to consider that issue, was adjourned to today due to a delay in forwarding a Court book to the barrister appointed to give free advice. The applicant has now had the opportunity to get that advice. She has filed an amended application which I shall address below.
The applicant arrived in Australia in January 2006. Soon after her arrival, she lodged a protection visa application assisted by an agent, Priscilla Yu. The application was lodged in the name of the person shown in the passport by which she entered the country, and was supported by a statutory declaration explaining why the applicant feared persecution if she returned to her country of nationality, The Peoples’ Republic of China.
The applicant claimed that she had been running a restaurant in a province of China. In December 2002 she had “saved a lady in a chilly winter night”, whom she had then employed as a cook. She said that the lady was a Christian and “often spread gospel to me”. She said:
I, later on, knew that Ms L belonged to a special Christian church which was called as “the Local Recovery Church” (“the Local Church”); but the church has been banned by the PRC authorities since the Communist took the power in the country. Owing to its special praying method – shouting loudly while those believers were praying, it has been regarded as “Shouters Counter-revolutionary religious organisation”.
She said that she came to know that Ms L was in flight from the PSB because of her membership of that church. She claimed to have been converted by Ms L, and to have been baptised in October 2003. She said that she then converted her staff, and that her restaurant “became the first secret gathering place of the local church” in her county and was used to spread religious propaganda materials and as a secret training place. She said:
11.Early in December 2005 while both Ms L and I were preparing for the forth training programme at my restaurant, we got into troubles, because (a “special liaison person”) had been arrested by the PSB in (location) City. The PSB found a lot of religious materials including some Bibles in his luggage; and the police came to my restaurant for investigation. Although the PSB did not find anything at that time both Ms L and I were very scared. For the safety, I asked Ms L to go to (location) first, where I had a good friend there. After I made necessary arrangement, and particularly invited a friend to look after my restaurant in (her home) county, and then I went to (location) to join Ms L in very short time.
12.In (that location), on one hand, I asked my friend to get a visa for me; and on the hand, I asked that friend to assist Ms L to leave the country as soon as possible. I got a passport through that friend as early in November 2005; and I, therefore, could easily leave the country with helps of my friend early in January 2006. However, Ms L could not get a passport owing to her “black” records with the PSB in the past; and she then had to decide to flee to the overseas through an illegal way in the boundary between Guangxi & Vietnam. Unfortunately, she was arrested in the end of January 2006.
No suggestion was made that the passport on which the applicant had travelled was obtained in a false name.
A delegate refused the application, giving reasons that indicated that she was not satisfied as to the credibility of the applicant's account of her reasons for fearing arrest or that she, in fact, had a “genuine subjective fear of persecution”.
The applicant was again represented by Priscilla Yu in the appeal to the Tribunal. Shortly before her hearing appointed by the Tribunal on 22 August 2006, the applicant's agent forwarded to the Tribunal a new statutory declaration in which the applicant claimed to have a different “genuine name” and presented an identification card in that name. She claimed:
3.The reason why I could not use my genuine name to leave the country was because that I had been subjected to investigation by the PSB at that time (please see statutory declaration attached to my primary application).
4.The main reason why I have not exposed my genuine name to anyone since I came to Australia until today is because I am afraid that I might be subjected to severe punishment by the Australian government if I had exposed that I had used a passport which was actually not in my genuine name.
At the hearing before the Tribunal, the applicant was asked many questions about her claims, and an account of the hearing is given by the Tribunal in its Statement of Reasons. Although the applicant has been warned of the need to present a transcript to the Court if she challenged the Tribunal’s account, she has not done so.
According to the Tribunal, the applicant gave a significantly different history of becoming involved in the Shouters Church. She claimed that she had been “brought up in a family that adhered to the Shouters belief” before she had ever opened her restaurant or met Ms L. She maintained that she had been involved in distributing material and other activities for the church with Ms L, and that she had incurred the suspicions of the PSB. She maintained her new account of getting her passport, and said: “that she could not get a passport in her own name as she had previously applied in (her province) and had been refused”.
She was questioned by the Tribunal as to her knowledge of some Christian doctrines, and as to her involvement in the Shouters Church in Sydney. The applicant claimed that she attended a branch of the Church in Sydney, but:
No members of that church had come to give evidence on her behalf. They were willing to supply a certificate to say she was a member of the congregation but she understood that the Department or the Tribunal had told them that this was not permitted.
Following the hearing, the Tribunal sent to the applicant an invitation to comment on information that it regarded as showing inconsistencies in her evidence to the hearing. This included her earlier claims to have been introduced to the Shouters Church by Ms L, and some other details including inconsistency between her accounts of obtaining a passport. The Tribunal also invited the applicant “to provide evidence that you are a member of the local church congregation in Sydney”.
The applicant responded to these queries. She confirmed that she attended the local church in Sydney but now maintained that “the Local Church refused to provide any written evidences to our believers if we tried to get one in relation to our protection application”.
In its Statement of Reasons, under the heading “Finding and Reasons”, the Tribunal indicated reasons for not accepting the applicant's claims to fear persecution for reasons of her religion. Although the Tribunal accepted “on the basis of her expired identity card” that her name was the name shown in that card, it was not satisfied as to the truth of any other parts of her claimed history. It said:
The Tribunal finds that there are major differences between the applicant's oral account of her restaurant and religious practices given to the Tribunal at the hearing, and her written account given to the Department in a statutory declaration.
The Tribunal referred to the inconsistencies and said that they were “so great as to not satisfy the Tribunal that either account is credible or truthful”.
The Tribunal described the applicant's evidence concerning her knowledge of the Shouters Church as having been given in a manner which was “hesitant and vague”. It said:
The Tribunal does not accept that she studied her Bible and participated in religious activities of the Shouter church in China to the extent that she claimed.
The Tribunal also said that it did not accept that she had been attending a local church in Sydney. It said:
The Tribunal does not accept her claim that the church elders had been advised not to give such certificates. No certificate or other written or oral evidence has been produced to substantiate her claim that she is a member of the congregation. In the absence of further evidence the Tribunal is not satisfied that the applicant is a regular member of the congregation.
It then drew a general conclusion:
On the basis of these findings the Tribunal does not accept the applicant's claims that she has been involved in religious activities in a banned church group. It is not satisfied that the applicant has been a member of the local recovery church either in China or in Australia.
It therefore did not accept that she faced harm in the reasonably foreseeable future for reason of her religion.
The Tribunal then added some further reasons for doubting the applicant's credibility, including:
A further ground for concern about the applicant's credibility is the serious inconsistencies in her account of obtaining a passport and why it was not in her own name.
The Tribunal said:
On all the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention.
I have considered the Tribunal's reasoning and consider that it was open on the evidence before the Tribunal. I am unable to see an arguable ground of jurisdictional error.
The applicant's amended application has the following grounds:
· There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
· There was a procedural error in the Tribunal’s decision constituting an absence of natural justice
Particulars:
1.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
(a).The Tribunal decision has regarded the inconsistencies of the information from my oral account at the hearing before the Tribunal and written account given to the Department as the reason, or part of the reason, for affirming the decision that is under review.
(b).Under the s424A of the Act , the Tribunal must give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and the Tribunal must invite the applicant to comment on it.
(c). In this case, however, from the beginning to the end, the Presiding Member:-
· failed to give me particulars of the information that the Tribunal considered as the reason, or part of the reason, for affirming the decision that is under review; and
· failed to ensure me to understand that why it is relevant to the review; and
· failed to invite me to comment on it.
(d).Moreover, the Tribunal has regarded the inconsistencies of information from my claims and the independent information regarding the Shouters’ group as well as the information about the certificate from elders of the Local Church in Sydney as the reason or part of reason for affirming the decision that is under review. However, the Presiding Member, however, failed to provide me the above-mentioned information; and failed to ensure me to understand that the information would be in relation to my review application, and failed to invite me to make comments on the information.
2.The Tribunal has failed to consider my claims, properly and fairly.
(a).The Tribunal’s decision was actually inconsistence. On one hand, the Tribunal accepted my claims, which I had given to the Tribunal only shortly before the Tribunal’s hearing owing to “special reason” that my genuine name as (name) born on (date); and on the other hand, the Tribunal actually rejected my “special reason”, because the Tribunal refused to accept my explanation for given different account of my religious history which was owing to the same “special reason”.
3.The Tribunal failed to comply with its obligations under s.425 of the Act.
(a).Under the s.425 of the Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(b).The Tribunal failed to provide me a genuine opportunity to give my oral evidence in support of my review application; and failed to allow me to present my arguments against the issues arising from the Tribunal in relation to my application.
In relation to the grounds particularised in paras.1, sub-paras.(a), (b) and (c), I am not satisfied that it is arguable that the Tribunal found any inconsistencies in the applicant’s evidence based on information taken from the applicant's original statutory declaration which was not sufficiently put to the applicant in the s.424A letter. In the absence of any particulars for this ground in the application or in any submissions, I am not satisfied that this ground is arguable.
In relation to the ground in para.1(d), I am unable to identify any general information concerning the Shouters group, or about the practices of the Local Church in Sydney, which was relied upon by the Tribunal. In any event, any such information would be excluded from obligations under s.424A(1) by reason of s.424A(3)(a). I do not consider that this paragraph raises an arguable ground.
The argument in Particular 2 is not clear, however it appears to contend that the Tribunal's reasoning was irrational due to inconsistent reasoning. The inconsistency being that, although the Tribunal accepted the applicant's identity as shown in the identity card rather than in her the passport, it has not accepted the applicant's claimed history which she presented as the reason for travelling on a false passport. However, in my opinion the actual reasoning of the Tribunal does not arguably show any inconsistency. Properly understood, the Tribunal was not able to make any findings as to the reasons for the applicant travelling on the false passport, and it did not purport to do so. There was no inconsistency in the Tribunal’s finding some support for its general doubt as to her credibility in the fact that she presented to the Department and the Tribunal inconsistent accounts of obtaining a passport. I do not consider that the ground presented in this paragraph is reasonably arguable with any prospects of success.
Ground three contends a failure to comply with s.425, apparently invoking reasoning suggested by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592.
However, no transcript has been put into evidence which could allow the Court to assess how the Tribunal conducted the hearing. On the Tribunal's description of the hearing, no argument appears open to the applicant. The delegate's decision should have clearly indicated that the veracity of her whole history was in issue, and the Tribunal's questioning appears to have kept alive that issue. It was further brought to the applicant's attention in the s.424A letter. I am not satisfied that the applicant has been able to point to anything which arguably would show the Tribunal failing to comply with obligations under s.425.
The applicant attended today with a prepared statement in Chinese which was read to the Court by the interpreter. This repeated the grounds in the amended application without providing any further particulars or arguments. The applicant also made submissions seeking to explain some of the problems which the Tribunal perceived in her evidence. However these arguments went, in my opinion, to no more than the merits of the factual assessments of the Tribunal. I do not think that she was able to point to any argument which might win her the relief she seeks in this application.
For all the above reasons I am not satisfied that her application has raised an arguable case for the relief claimed, and I consider it is appropriate to dismiss the application today under r.44.12(1)(a).
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 2 April 2007
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