SZJUB v Minister for Immigration - [2007] FMCA 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 325

MIGRATION – RRT Decision – Chinese applicant claiming persecution for involvement in bible smuggling and Christian religion – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.424, 424A,.425, 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZJUB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3549 of 2006

Judgment of:

Smith FM

Hearing date:

6 March 2007

Delivered at:

Sydney

Delivered on:

6 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms G Broderick

Solicitors for the Respondents:

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3549 of 2006

SZJUB

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 30 November 2006, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal dated 19 October 2006 and handed down on 31 October 2006. The Tribunal affirmed a decision of a delegate made on 5 July 2006 refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 20 December 2006. The applicant attended on that occasion and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to her by me and in an information sheet, and I gave her an opportunity to file an amended application and any evidence after receiving a bundle of relevant documents and a referral for free legal advice.
The file indicates that such advice has been given to the applicant. The applicant has filed a written submission which I shall consider further below.
The applicant arrived in Australia in late April 2006, and on 25 May 2006 an application for a protection visa was filed on her behalf by an agent, Priscilla Yu. The application attached a statutory declaration which set out a history upon which the applicant claimed protection in Australia against return to her country of nationality, The People's Republic of China.
The applicant claimed to have been assisted by a friend, W, in opening up a beauty salon in her home town in 2001. The statement said:
Around the middle of 2001, however, W got troubles with the Public Security Bureau (“the PSB”), and she was chased by the police. Then she was missing and nobody knew where she had gone. Many friends, including me, who had some relations with her, were questioned by the police at the PSB. While I was questioned by the PSB, I learned from the police that Ms W had been suspected to get involved in smuggling many of the copies of Bible from Hong Kong to China….
The applicant claimed that in the middle of 2005 she was contacted by Ms W, and at her request immediately agreed to help her smuggle Bibles from overseas. She claimed that her beauty salon “was a secret station to receive those Bibles smuggled from the overseas”. She referred to four shipments of Bibles occurring, before Ms W “suddenly contacted me over a phone”, and told her to leave home as soon as possible because a contact, Mr Y, had been exposed to the police. The applicant said that when she went to the beauty shop on the following morning she saw many policemen there, and immediately ran away. She met Ms W in “a remote village”, and Ms W “assisted me to leave China with a passport not in my genuine name”. The applicant claimed that Mr Y:
has confessed everything to the police; and those Bibles have been discovered by the PSB; and my beauty salon has been sealed by the PSB; and especially, I have been regarded as a person who smuggled the illegal Bible from overseas to China; and it means that I must be arrested by the Chinese government immediately on my return.
The applicant presented what was claimed to be her true identification card, and the passport showing a different name upon which she entered Australia. No other corroborative documents were presented to the Department or to the Tribunal.
On appeal to the Tribunal, the applicant was again assisted by her agent, Priscilla Yu, who attended a hearing with the applicant on 4 October 2006. The applicant presented the allegedly false passport to the Tribunal, and was closely questioned about her claims and about her religion. The Tribunal gave a description of the hearing in its statement of reasons, but a transcript has not been tendered by either party. From at least one part of the Tribunal's description it seems likely that it revealed to the applicant it's scepticism as to significant parts of the applicant's narrative. On the evidence presented by the parties, it is not possible to see any arguable substance in a contention that the applicant was not alerted in the course of the hearing to the possibility that the Tribunal might disbelieve her claims entirely.
The applicant told the Tribunal that she had not been a Christian in China, but had become a Christian since arriving in Australia where she had joined the Screaming Sect Church. However, she was vague about her attendances. According to the Tribunal, the applicant also contradicted herself about her history, and gave “markedly different variations” in her evidence “pertaining to the quantities and packaging of the bibles”.
The Tribunal's reason for affirming the delegate's decision was that it disbelieved her claims, and regarded them as being "concocted".
The Tribunal identified elements in the narrative which it found implausible, and also referred to the contradictory evidence given by the applicant to the Tribunal at the hearing concerning the packaging of the Bibles. It said:
The evidence pertaining to the applicant joining the Screaming Sect church (in Australia) appears, based on her responses, to have been concocted to embellish her claims for protection. She exhibited limited knowledge of Christianity and the Tribunal finds that the evidence further diminished the overall credibility of her evidence.
The Tribunal therefore said that it was not satisfied as to any elements in her claimed history, and was not satisfied that she faced a real chance of being persecuted if she returned to China on the basis of her religious belief, or on the basis of suspected involvement in Bible smuggling, or any other Convention ground, should she return to The People's Republic of China.
I have considered the reasoning and procedures of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant's application contains the following grounds and particulars:
The Grounds of Application are:
1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2.There was a procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1.I strongly believe that the decision by Mr John Cipolla, the Presiding Member of the Tribunal (“the Presiding Member”), include a reasonable apprehension of bias.
2.In the Presiding Member’s opinion, a person like me who was not a Christian and who had a business and who also had a family must not have been involved transporting Bibles from the overseas to China. If the Presiding Member genuinely looked at my claims as a whole fairly and properly, he must understand why I have to take the risk to do so.
3.As a matter of fact, the issue – a non-Christian like me to take risk of transporting illegal Bible and other religious materials – should have already existed before the Tribunal’s hearing. If it is the case, the Presiding Member should invite me to comment on it under s424 of the act.
4.Furthermore, according to s424A(1) of the Act, the Presiding Member should also ensure me to understand that the information about above issue would be in relation to my review application and he should invite me to comment on it or provided additional information. Unfortunately, the Presiding Member failed to do so.
5.In addition, according to s425 of the Act, the Presiding Member should invite me to present my argument against the issue arising from the review. However, the Presiding Member failed to do so, because he never ensured me to understand what the actual issues were during the Tribunal’s hearing.
6.In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
The first two grounds, alleging a reasonable apprehension of bias and a failure to genuinely consider claims, has, in my opinion, not been shown to have any arguable substance. The reasoning of the Tribunal appears to show a rational approach to its duty to decide the case, and I consider its reasoning was clearly open to it on the evidence.
The contention in grounds three and four that there were breaches of s.424A or 424, has not been given any arguable substance. The arguments presented complain only of a failure by the Tribunal to reveal its thought processes concerning the evidence given to the Tribunal by the applicant – but this does not show a failure to comply with s.424A(1).
In the applicant's written submission, and in a written statement in Chinese which the applicant asked the interpreter to read to me today, it is argued that breaches of s.424A(1) occurred because:
The presiding member has considered the following pieces of information as the reason, or part of reason, in making his findings:
- my claims regarding to size of each shipment for Bibles seems to be inconsistent:
- my oral evidence is in relation to what has happened since my leaving seems to be inconsistent with my written statement provided to the Department:
- information regarding my religious activities in Australia.
However, the first and second matters identified concern information which undoubtedly was given to the Tribunal by the applicant at the hearing, and is therefore covered by the exemption in s.424A(3)(b). Neither counsel for the Minister nor I can identify any use of information such as is suggested in the second particular, which is even arguable on behalf of the applicant. I therefore do not consider that there is any prospect of success for the applicant in grounds three and four.
In relation to ground five, as I have indicated above, on the material before me I can identify no arguable substance in an allegation that the Tribunal did not give the applicant the opportunity required by s.425 of the Migration Act. The applicant has been given an opportunity to present a transcript of the hearing to the Court to support that allegation, but has not done so.
The other arguments in the applicant's written submission, and in her submissions to me today, argued only, in my opinion, with the merits of the factual assessments arrived at by the Tribunal, and I was unable to identify any arguable ground of jurisdictional error presented by the applicant.
For the above reasons I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider that it is appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 19 March 2007