SZKER v Minister for Immigration
[2007] FMCA 860
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKER v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 860 |
| MIGRATION – Reference permitted to relevant religious knowledge of the Tribunal – applicant must establish their case – no duty to grant adjournment. |
| Migration Act 1958, ss.476, 424A, 425, 474 |
| Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | SZKER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 451 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 21 May 2007 |
| Date of Last Submission: | 21 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M.A. Wigney |
| Solicitors for the Respondents: | Ms S. Kantaria of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 451 of 2006
| SZKER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 12 February 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 14 May 1963 and claims to be from China and of Han ethnicity and Christian faith (“the Applicant”).
The applicant arrived in Australia on 24 June 2006 on a visitor’s visa issued in Guang Zhou on 13 June 2006.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 July 2006. In this application she claimed a fear of persecution based on her religion, namely that she was a Christian and a member of a house church. The applicant provided a lengthy statement about house churches in China and information about penalties inflicted generally upon Christians in China, but she did not make any specific claims of persecution in regard to herself (CB 32-48).
This application was refused by a delegate of the first respondent on 9 September 2006.
On 4 October 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 8 December 2006.
On 13 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. After considering the applicant’s claims, the Tribunal found (CB 86-89) (emphasis added):
The Tribunal is satisfied that the applicant is a citizen of the Peoples Republic of China. Accordingly, her claims to refugee status will be assessed against the PRC, as her country of nationality. There is no evidence before the Tribunal to suggest that she has rights to enter or reside in any other country.
The applicant’s claim is that she is in need of protection because she is a member of the house church in China. Because she is a member of the house church she will be arrested if she returns to China. Although the applicant did not expressly make the claim that she may be imputed to be a house Christian because of her association with her mother-in-law, the Tribunal will also consider this claim.
The Tribunal first of all considers the statement that the applicant provided to the Department. After the claim in that statement that she is a house Christian there is nothing in the document that refers to the applicant’s own experiences in China except the words on page 10 which are “My husband was arrested for his religious activities”. The applicant’s evidence at hearing is that her husband has never been arrested. She was twice asked whether her husband had been arrested. The Tribunal accepts her oral evidence that her husband had never been arrested. The Tribunal is satisfied that the words “My husband was arrested for his religious activities” was included in the statement by mistake.
As to the balance of the statement the Tribunal finds that the statement is what is says it is. It is a statement made by some house church leaders, who joined together on behalf of all house churches, and composed the Statement of Faith of Chinese House Churches in November, 1998, for the purpose of making known the true faith of the church. As such the document sets out the beliefs and circumstances of the house church in China. It does not provide any evidence relating to the applicant’s own experiences in China.
The applicant’s evidence is that she did not have a fear about living in China prior to her return to China in November 2005. Her evidence is that she would not have returned to China after her first and second visit to Australia if she had been afraid at that time. The Tribunal accepts this evidence.
Her evidence is that her fear arose after her mother-in-law was arrested and detained for several days. Her mother-in-law is a house Christian. She became fearful because she is a house Christian. The Tribunal does not accept this evidence for the following reasons.
The visa applicant’s evidence is that she became a house church believer in 1984. She went to church at least twice a week between 1984 and 2000 and after 2000 she went almost every Sunday.
The visa applicant’s evidence is that she believes in Jesus. The Tribunal asked the applicant what her belief meant to her. Her answer was that she did not know what she believes about Jesus. When asked further what was significant about Jesus her answer was that Jesus has a good heart and does good things. The Tribunal considers that Jesus plays an essential role in Christian belief. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would be able to provide further evidence on the meaning of her belief in Jesus.
Her evidence is that Jesus is in Heaven. He is always in Heaven. She has never heard that Jesus has been on earth. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would have known that Jesus came to earth as this belief is an essential part of Christian faith.
The applicant’s evidence that that she has heard that when she dies she will go to Heaven. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would have been able to explain that after death, if one has a belief in Jesus and salvation, she would go to Heaven. She would have not have just heard that she will go to Heaven
She did not ask about God. Catholics believe in God. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would have known the role that God played in the Christian faith. Her evidence that Catholics believe in God suggests that she does not see God as a part of her Christian faith.
Her evidence is that Christmas is a Christian celebration. It is the birthday of Jesus. When the Tribunal asked the applicant to explain the significance of Jesus birthday her evidence was that its significance is that the students dance and talk about testimony. It is the custom in the country. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would have known that the birth of Christ marked the arrival of Jesus on earth as a man.
Her evidence is that she does not know of any other Christian celebrations. When asked again by the Tribunal if there were any other Christian celebrations she gave evidence that there may have been other celebrations on the days when she did not go to church. The Tribunal considers that if the applicant had been to church at least 26 times a year for 22 years she would have known of the Easter celebration. The Tribunal considers that Easter plays a fundamental role in Christian belief. The Tribunal does not accept that in 22 years of being a Christian the applicant would not have heard of Easter, as a core part of her belief, or that she would have missed the celebration of Easter.
As the Tribunal was concerned that the applicant did not know of the celebration of Easter it asked the applicant whether the ‘cross’ had meaning for her. Her evidence is that her son wears a cross. When asked why he wore the cross her answer was that he wears it for peace and safety. If a person believes in Jesus the person should wear a cross. The Tribunal considers that the cross is a symbol of the death that Jesus underwent so that believers in him would be saved. That the applicant was unable to provide an answer that touched upon this aspect of symbolic nature of the cross concerns the Tribunal.
The visa applicant was unable to ascribe any meaning to the words ‘holy spirit’.
When the Tribunal considers the matters discussed above in relation to the applicant’s claim she is a Christian it reaches the conclusion that the applicant is not a Christian. She was unable to give evidence that showed that she had an understanding of the core beliefs of the Christian faith. She was unable to name Easter. She did not know that Jesus had come to earth. She did not understand the significance of Jesus. She had little understanding of the religious meaning of Christmas. She has scant knowledge of God and Heaven. As her evidence is that she went to church at least 26 times a year for 22 years it is not credible that she was unable to provide more evidence about the essential nature of Christianity. In reaching this decision the Tribunal recognises that a house church member in China may not have as much detailed knowledge of the basis of Christian belief as a Christian person in Australia may have. Nor may she have a clear knowledge of the symbols of Christianity. However the applicant’s knowledge of Christianity is so scant as to make her claim that she is a house Christian not credible.
Further the Tribunal is satisfied that the applicant is not a witness of credit. The Tribunal is satisfied that the applicant made the claim that she was a house Christian not because she was a Christian but in order to bolster her application for a protection visa.
As the Tribunal has found that the applicant is not a house Christian it does not accept her claims that she will be arrested if she returns to China. The Tribunal recognises from the independent country information that house Christians may be subject to arrest and detention. However in this case the Tribunal is not satisfied that the applicant is a house Christian.
The Tribunal now considers the claim that the applicant may be imputed to be a house Christian because of her association with her mother-in-law. The Tribunal does not accept the applicant’s evidence that her mother-in-law was detained. The Tribunal does not accept this evidence because the Tribunal has found that applicant is not a witness of credit. The Tribunal has found that the applicant was prepared to give evidence to bolster her application for a protection visa. The Tribunal finds that as it does not accept that the applicant’s mother- in-law was detained it finds that the applicant will not be subject to arrest and detention because she will be imputed to be a Christian because of association with her mother-in-law.
The Tribunal has found above that is does not accept the applicant’s claims that she will be arrested because she is a house Christian, and it has also found that she will not be arrested because she is imputed to be a house Christian. The Tribunal is not satisfied that the applicant would be subject to persecution because of a Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In her application, the applicant set out the following grounds and particulars:
(1)RRT failed to carry out its statutory duty.
Particulars:
(i)RRT’s duty under the Act s.424A arises at the time which the Tribunal receives information which would be the reason, or part of the reason, for affirming the decision under review.
(ii)In this case, the Tribunal had such information at some time prior to date of decision. In a letter, the Tribunal said: “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
(iii)The information before the Tribunal was: “The Tribunal has before it the Departmental file, which includes the protection visa application and the delegate decision record. The Tribunal also has regard to the material contained in the Tribunal file, including the Application for Review.”
(iv)The Tribunal, therefore, had information caught by s.424A and failed to give particulars of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.
(v)The Tribunal should have included particulars of the information and explanation in its letter. A failure to do so is a jurisdictional error.
(2)As a matter of fact, the Tribunal has apparently failed to give me the important information, completely and clearly, during the hearing, which have been used as the reasons or part of reasons, for affirming the decision that is under the review;
(3)RRT has, particularly, failed to ensure me during the hearing, to well understand why the information, normally called as “independent country information” (ICI), is relevant to the review;
(4)It is because of the reason above that it is impossible for me to have a fair chance to comment on the ICI before RRT affirming the decision;
(5)RRT failed to observe its obligations under s.425 of the Act. At the hearing, I should be entitled to give oral evidence to support my claims as well as to comment on adverse information. Such of my rights were deprived of and restricted at the hearings. I was often interrupted by the Member and the interpreter. I often lost my thoughts and flow of thinking due to such interruptions and restrictions.
(6)The fact that I did not file further submission after the hearing was because it was very risky for me to have evidence of persecution transferred to us in Australia from China. It could even take a long time because I need to wait for suitable opportunity and trusted friend to bring them to Australia.
(7)It is true that I suffered persecution in China. Several my friends in similar situation as mine have been granted refugee status (protection visas) in Australia. I have been treated differently by different Tribunal Member.
Findings as to the grounds in the application
Grounds 1-4 allege a breach of s.424A of the Migration Act 1958 (“the Act”). The Court will consider those grounds together.
The reason the Tribunal did not accept the applicant to be a witness of truth and as a result it rejected her claims, was the applicant’s inability to give details about basic tenets and practices of Christianity.
As found by the Tribunal at CB 87:
…it [the Tribunal] reaches the conclusion that she is not a Christian. She was unable to give evidence that showed that she had an understanding of the core beliefs of the Christian faith. She was unable to name Easter. She did not know that Jesus had come to earth. She did not understand the significance of Jesus. She had little understanding of the religious meaning of Christmas. She has scant knowledge of God and Heaven.
The Court accepts the submission for the first respondent that information relied on by the Tribunal in reaching its decision was the applicant’s own evidence (exempted from s.424A by 424A(3)(b)).
The Tribunal did not cite any country information (as alleged in Ground 3), which in any event would be exempted by s.424A(3)(a). Relevant religious knowledge was obviously within the expertise of the Tribunal and reference to it by the Tribunal is permitted, see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [24]. It is covered by the exception in s.424A(3)(a). Grounds 1, 2, 3, and 4 are rejected.
Ground 5 alleges a breach of s.425 of the Act. The applicant claims that she was prevented from making submissions by interruptions and restrictions. The applicant has not placed a transcript of the Tribunal before the Court. There is no evidence before the Court to support this claim. The applicant must establish her claim and she has failed to do so. Ground 5 is rejected.
Ground 6 alleges that the applicant did not file any further material after the hearing because it “was very risky for me to have evidence of persecution transferred to us in Australia from China. It could even take a long time…” It has not been put by the applicant that she asked the Tribunal for time to obtain further material, and the applicant has not alleged that the Tribunal refused to grant an adjournment. Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule under the Act. There is no duty under that Division to grant an adjournment should one be requested: it was not, and it was not denied. This ground is rejected.
Ground 7 alleges that the applicant should be granted a visa because friends of the applicant have been granted refugee status in Australia. Each application must be dealt with on their own facts. This ground does not show any error of law by the Tribunal. Ground 7 is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Migration Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 5 June 2007
0
2
1