SZJYA v Minister for Immigration

[2007] FMCA 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 613

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – not believed by Tribunal – no arguable case – application dismissed at show-cause hearing.

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

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63

Applicant: SZJYA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3905 of 2006

Judgment of: Smith FM

Hearing date: 4 April 2007

Delivered at: Sydney

Delivered on: 4 April 2007

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms S Hanstein

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3905 of 2006

SZJYA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 28 December 2006, which seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth), (“the Migration Act”), in relation to a decision of the Refugee Review Tribunal dated

   
   

   22 November 2006 and handed down on 5 December 2006.  The Tribunal affirmed a decision of a delegate made on 4 August 2006 refusing to grant a protection visa to the applicant.

2. The application was returnable at a first Court date before me on

   
   

   7 February 2007.  The applicant attended on that day and was assisted by a Mandarin interpreter.  The nature of the proceedings was explained to her, and she was given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice.  She was warned that her application might be dismissed today if it did not raise an arguable case for the relief claimed.

3. The applicant was sent a referral by the Federal Court Registry on

   
   

   19 February 2007, but, according to the barrister to whom she was referred, he was unable to make contact with the applicant at the addresses provided by her.  She has filed an amended application, which I shall address below. 

4. The applicant arrived in Australia in April 2006, and on 15 May 2006 an application for a protection visa was lodged on her behalf by a Migration agent, Priscilla Yu.  The application attached a statutory declaration containing a narrative upon which the applicant claimed protection in Australia against return to her country of nationality, the People's Republic of China. 

5. She claimed that after finishing high-school in 2004, she had joined her brother as a shop assistant in a shop in a province of China.  During a holiday back to her hometown she was influenced by Mr Y, who was “a devote Christian; and particularly, he was a key member of the local Church which has been banned by the Chinese Government for many years”, to join him in religious gatherings, and to be baptised into that Church.  She discussed with him her observations of the local ethnic group in the village where her brother's shop was, where the population were Miao people, and in particular, her concerns about their smoking habits.  She then returned to her brother's shop with Mr Y, with the duty “to assist Mr Y to spread Gospel to the local people in (that province), particularly to those unfortunate people in the Miao village.”  She said Mr Y “asked me to organise a woman and children's Bible study group, spreading Gospel to local women and children and helping them to give up bad habit of smoking.”  Mr Y, himself, organised worship in the local Church, and after police questioned them, religious worship was organised in a cave not far from the Miao village.  She said:

   From October 2005 to January 2006, Mr Y organised religious worship almost in every weekend: and I organised those women of my group to study Bible in the cave at the same time.

6. She claimed that in January 2006, while she was back at her hometown, she learned that Mr Y and other local Church people were arrested “while they had a secret worship in the karst cave”, and that the police had come to the brother's shop with an arrest warrant for her.  She claimed that she had a message from Mr Y “to escape as soon as possible”.  She then came to Australia on a passport showing a false name.  A copy of that passport, and a copy of an identification card for the identity which the applicant claimed, was given to the Department, but no other corroboration of the narrative was provided. 

7. A delegate refused the application on the ground that, although it was accepted that “Shouters are regarded as an illegal sect in the PRC”, the applicant's account of her introduction to the Local Church and the actions of Mr Y lacked credibility.

8. The applicant's appeal to the Tribunal was assisted by her agent, and she attended a hearing on 5 October 2006.  Neither party has presented a transcript, but the Tribunal gives a description in its statement of reasons. 

9. The Tribunal questioned the applicant about her knowledge of the Miao people, and she appeared to have little knowledge of their clothing, language, customs, or cultural practices.  The Tribunal also questioned the applicant about her claimed involvement in the Local Church in China, and her claim that she had joined such a church in Sydney. 

10. After the hearing, the applicant's agent presented a reference purporting to come from two members of “The Local Church in Sydney”, confirming that she “started coming to the Church meeting approximately six months ago until she moved to Brisbane one month ago.”

11. After the hearing, the Tribunal sent to the applicant a s.424A invitation to comment on information and inconsistencies in her statements at the hearing, and upon country information concerning the Shouters and the Miao ethnic group. The letter concluded:

    These inconsistencies cast doubt on the claim that you will be persecuted if you return to China and may lead to a finding that you do not meet the relevant criteria for the grant of a protection visa.

    It also indicates that you may not be credible and that the evidence has been created and provided to the Department and Tribunal to obtain a protection visa.  This may lead the Tribunal to find that you will not be persecuted if you return to China and that you do not meet the relevant criteria for the grant of a protection visa.

12. The applicant's agent responded with a statement from the applicant seeking to explain the difficulties in her evidence, and indicating:

    I am very much willing to clarify any inconsistencies or unclear issues in my case.  Should you have any further questions, please do not hesitate to contact me as soon as possible. 

13. The Tribunal did not further contact the applicant, but delivered its decision.  Under the heading “Findings and Reasons”, the Tribunal summarised its reasoning at the commencement.  It said:

    The Tribunal found a number of aspects of the applicant's oral evidence problematic, in particular her lack of knowledge of the Miao ethnic group, her motivation for joining and continuing to participate in the Local Church, Mr Y's motivation for wanting her to join, and the events of August 2005 to January 2006 and the police interest.  These difficulties lead the Tribunal to find that the applicant is not credible and not being truthful.

14. The Tribunal then gave detailed explanations for these findings.  Its final conclusions were:

    Collectively the above matters lead the Tribunal to find that the applicant was not a credible witness and that she did not become a member of the Local Church in China as she claims. On the basis of the letter from the Local Church in Sydney the Tribunal accepts that the applicant has attended a church here but as it has not found her credible it is not satisfied that she engaged in this conduct other than for the sole purpose of strengthening her refugee claim. Accordingly, it has disregarded this conduct in assessing her case as required by s.91R(3).

    The Tribunal does not accept that the applicant was a member of the Local Church in China, it does not accept that she went to Guiyang as a member of the Local Church with Mr. Yu, and began groups for the local Miao group and it does not accept that she is currently a genuine practitioner. The Tribunal therefore does not accept that the Chinese authorities are searching for her as a member of the Local Church in China.

15. I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision. 

16. The applicant's original application contained several pages of argumentative grounds, which have been recast into an amended application filed on 23 March 2006.  This document is too long for me to extract into this judgment. 

17. The first ground is: “It is definitely impossible for me to believe that the Tribunal has considered my evidences, properly and carefully.”  The first particular under that ground asserts that the Tribunal, in a different matter, granted "the review application of my brother".  The application suggests that this was inconsistent with the refusal of her application in the present decision.  However, there is no evidence before me that the present Tribunal was ever told that her brother had refugee claims also before the Tribunal.  There is no evidence as to the content of those claims, nor how they were addressed by a different Tribunal decision.  The present Tribunal had the duty to address the claims of this applicant in the form they were presented by her and her agent, and has done so.  I cannot see any arguable ground of jurisdictional error raised by this particular. 

18. Particulars b. to f. of ground 1 are obscure.   They appear to argue that “it is apparently that I am a member of the Local Church, which has, in fact, been accepted by the Tribunal”, and that as a result the Tribunal's adverse conclusions must be flawed.  However, I consider that this raises no more than an argument going to the merits of the Tribunal's assessment.  It was not illogical, capricious nor perverse for the Tribunal to accept that the applicant in Australia had acquired knowledge of the Local Church and had attended its meetings, while concluding that she had not engaged in the Local Church activities in China which she claimed. 

19. Particulars g. to j. refer to legal authorities on jurisdictional error, and then make sweeping assertions of the existence of such errors.  However, no particulars are given which allow an arguable case to be identified for any of these errors. 

20. Similarly, particular k. gives no arguments raising any substance in relation to claims of apprehended bias or misunderstanding of law.

21. Particular l. of ground 1 and ground 3 claim that the applicant was misled by the Tribunal into believing that: “my claims have already been accepted and well understood.” However, neither a transcript of the hearing nor any affidavit evidence has been presented to show that this happened. There is nothing in the documents before me, including the Tribunal's description of the hearing, which gives this ground any substance. Moreover, it would appear surprising if the Tribunal had so suggested to the applicant, since its s 424A invitation to comment clearly drew to the attention of the applicant and her agent that the credibility of her whole account was in issue. I therefore do not consider that this complaint raises an arguable ground.

22. For the same reasons, I do not that an arguable case arises by reference to s.425(1) and the principles discussed by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63. The applicant was clearly put on notice by the delegate’s decision and the s.424A letter that the truth of her whole narrative was in issue.

23. Ground 2 claims: “the Tribunal failed to comply with its obligation under section 424A(1)”, but the argument does not identify any information which could be argued not to have been put to the applicant under s 424A(1) as required. The complaint which emerges, and which was repeated by the applicant in a written submission which she read to me today, is that the Tribunal did not invite her to have a second chance to present further evidence. However, neither s 424A, nor any other provision of the Migration Act, would require the Tribunal in the circumstances of this case to invite the applicant to a second hearing.  I do not consider that this ground raises any arguable ground.

24. After considering all of the points made in the applicant's amended application and in her submission to me today, I am not satisfied that her application raises an arguable case for the relief sought, and I consider it appropriate to dismiss the application under r 44.12(1)(a).

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  30 April 2007