SZKEU v Minister for Immigration
[2007] FMCA 1319
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1319 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. If the applicant fails to attend the Tribunal hearing the Tribunal may reschedule the hearing and may also adjourn the hearing – Tribunal not required to positively try to believe the applicant – applicant has to satisfy the Tribunal that he meets the criteria for a protection visa. |
| Migration Act 1958, ss.91X, 424A, 425, 426A, 427 |
| Applicant: | SZKEU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 471 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 July 2007 |
| Date of Last Submission: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. D. Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 471 of 2007
| SZKEU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 6 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 16 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 13 May 2005 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 4 November 2005 which was quashed by order of this Court dated 30 August 2006 (Court Book (“CB”) page 98).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Case history
The Tribunal wrote to the applicant on 6 November 2006 to advise that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a Tribunal hearing on 12 December 2006.
On 4 December 2006 the Tribunal, in accordance with its obligations under s.424A, provided to the applicant in writing information that would, subject to any comments made by the applicant, be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. The applicant was invited to comment on this information at an interview. The Tribunal had intended to schedule this interview at the same time as the Tribunal hearing on 12 December 2006 but because the s.424A letter was not prepared in time to comply with notice requirements, the interview was scheduled for
14 December 2006.
The Tribunal records show that the applicant did not attend the hearing scheduled for 12 December 2006 (CB 110) but that he did attend on
14 December 2006 (CB 113).
Background facts
The Tribunal described the applicant as follows:
[The applicant] lists his ethnic group as Chinese and his religion as Christian and states that he speaks, reads and writes Chinese. He states that he travelled to Australia on a Japanese passport but that he is a citizen of China. He lists 11 years of education [but] provides no details of any formal qualifications and states that he worked with his father from September 2002 until August 2004. (CB 137).
The applicant claims to fear persecution in China because of his religious activities and his involvement with an underground Christian church.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 3 – 11 of the Tribunal’s decision (CB 137 - 145). Relevantly, they are in summary:
a)in primary school the applicant was introduced to ideas of Christianity and God by Teacher Lin;
b)in 1995 Teacher Lin was arrested by the Public Security Bureau (“PSB”) for being a Christian in an underground church. She was denounced for spreading illegal ideologies in school and for poisoning children with “ill-religion”;
c)in 1997 the applicant met Teacher Chen, a friend of Teacher Lin, in middle school;
d)in the applicant’s statutory declaration dated 3 December 2005 he stated:
I was involved in the activities of the underground Christian church for the first time in summary [sic] school holidays of 1999 (between July and August). At that time Teacher Chen organised a small study group including about 10 students.
I was one of them elected by Teacher Chen. It was actually a Bible study group belonging to the underground Christian church, and Teacher Chen was arranged by the church to conduct us to study the Bible. The major gathering place was at the home of Mr Yu. He was one of my classmates in school. Both of Mr [Yu’s] parents were also members of the underground church. Teacher Chen came to our group sometimes during the school holidays for teaching us how to study Bible.
After the new school term was started in September 1999, the Bible study group continually had its regular gatherings every weekend and I insisted [on] participating in those activities. The group was developed to over 30 students in the end. I was baptised by a priest from Fuzhou City at the Christmas party of 1999 in the underground church.
In February 2001, both [of] Mr Yu’s parents were arrested by the PSB because it was reported that there was a secret Bible study group at Mr Yu’s home. … Mr Yu’s father took all of responsibility in order to protect Teacher Chen. As a result Mr Yu’s partner was sentenced to one year labour reform and Mr Yu was dismissed by the school. (CB 137 – 138);
e)the applicant also stated in his statutory declaration that:
From January 2003, with assist [sic] of Teacher Chen, I began to organise a Bible study group in my village Shanli Village in Longtian Town. All of the members in the Bible study group were young men around my age. We gathered together every weekend and studied the Bible or other religious materials which were normally provided by Teacher Chen. However in order to avoid attention of the PSB our gathering place was often moved from one place to the other. Teacher Chen sometimes gave us some speeches by himself and sometimes arranged some priests to come to my group for lectures. Meanwhile Teacher Chen instructed me to organise my members to distribute propaganda materials for spreading the Gospel, mostly to primary or middle schools in different villages around Longtian area. My Bible study group was developed from 10 members to 60 young persons.
One day in the late part of August 2004, when I worked together with three young men in [a] construction site which was nearly finished some policemen suddenly came to look for Teacher Chen. Fortunately, Teacher Chen moved to a new construction site together with my father. … After the police left I immediately contacted my father and informed him about this matter. My father immediately arranged Teacher Chen to hide in a friend’s home. (CB 138).
f)early in November 2004, the applicant’s father arranged for someone called Ar Qiang to contact the applicant. This person gave the applicant two Japanese passports with different names. The applicant went to do some shopping for the trip but when he returned the applicant saw Teacher Chen being taken away by the police. The applicant ran away and went to Hong Kong that evening. From there he went to Singapore and eventually arrived in Australia on 17 November 2004;
g)the applicant states that his Bible study group was destroyed by the PSB after he left China and that he is on a black list because of his involvement with the Bible study group and his relationship with Teacher Chen. His father has been subject to investigation and he will also be persecuted if he returns to China; and
h)the applicant continues to practise his religious activities in a church in Australia. The applicant provided to the Tribunal a certificate from the Carlingford Uniting Church Chinese Congregation dated 14 October 2005 stating that he attended that church on seven occasions from March to October.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant has a genuine commitment to Christianity or that he would engage in religious activities on his return to China which would result in him facing harm from the Chinese authorities, noting that;
i)in his two years in Australia the applicant had had very limited involvement in religious activities;
ii)the Tribunal considered that the applicant’s level of involvement in religious activities in Australia was at odds with his claimed involvement in Christian activities in China;
b)the Minister’s department’s records indicate that the applicant attempted to enter Australia in April 2003 on a fake Malaysian passport via Papua New Guinea at the same time that he claims that he was involved in Bible study sessions in China. Accordingly the Tribunal did not accept the applicant’s claim that from January 2003 he was organising a Bible study group in his village every weekend and distributing materials to spread the Gospel; and
c)the Tribunal did not find the applicant to be a credible witness and did not accept his claim to have been involved in an underground Bible study group in China which came to the attention of the authorities and resulted in his departure from China. As a result, the Tribunal did not accept that the applicant faces harm from the Chinese authorities on his return to China by reason of his claimed past religious activities.
In essence the Tribunal found:
The Tribunal does not accept that the applicant is a Christian and/or a Shouter or that he was involved in an underground Christian church, was baptized in 1999 or that he organised Bible study sessions in China. As the Tribunal does not accept these claims … the Tribunal does not accept that the applicant is sought after by the Chinese authorities or that his father was investigated by the authorities because of his religion or that he faces harm on his return to China by reason of his religious beliefs. (CB 145).
Proceedings in this Court
The grounds of the amended application are set out as follows:
1. The Tribunal ignored the fact that I am a Christian and the evidence from the local church. No evidence shows that I am the person who arrived at Australia in April 2003.
2. The RRT failed to carry on [sic] its statutory duty. I feel confusion about the hearing date on the letters from RRT on 6/11/2006 and 4/12/2006. It made me lost [sic] the first hearing chance on 12/12/2006.
3. The RRT had jurisdictional errors at the processing at my review.
4. The Tribunal did not try to believe me but set out to disbelieve what I said. It is not fair.
Dealing with each of these grounds in turn:
The Tribunal ignored the facts
A consideration of the Tribunal’s decision, as summarised above at [10] – [11], demonstrates that the Tribunal considered the facts which had been put to it by the applicant. The Tribunal’s decision also records the applicant’s claim to be a practising Christian together with the claim that he worships at the Carlingford Uniting Church. The fact that the Tribunal did not accept the applicant’s professions of Christianity was a finding of fact within jurisdiction and one which was open to it on the material before it. Consequently, no jurisdictional error is demonstrated in respect of it.
In relation to the claim that no evidence showed that the applicant was the person who arrived in Australia in April 2003, the information contained in the Tribunal’s decision demonstrates that this allegation has no basis in fact. As set out in the Tribunal’s s.424A letter to the applicant dated 7 October 2005, the Minister’s department’s file indicated that:
… a person with your name, date of birth, and PRC identification card [number cited], attempted to enter Australia on 11 April 2003 with a false Malaysian passport in the name of [name given]. When the person was interviewed he provided the above details, he was detained, and deported back to Port Moresby on 13 April 2003. The file contained several photographs on file and they appear to be photographs of you. (CB 140).
The issue was also canvassed at the interview the Tribunal held with the applicant on 14 December 2006 as set out at CB 143 where the applicant produced his PRC identification card which had been issued on 26 March 2000 and which contained the same identification number that was cited in the interview in Brisbane in April 2003. On this basis, there was evidence before the Tribunal upon which it could reach a conclusion that it had been the applicant who was in Brisbane in 2003 and that he was not in China at that time as he claimed. The Tribunal’s conclusion that it had been the applicant in Brisbane in 2003 was one which was open to it on the information before it and was again a finding of fact within jurisdiction and no jurisdictional error is demonstrated in respect of it.
Consequently, this ground is not made out.
Confusion over hearing date
The applicant failed to attend the hearing listed for 12 December 2006 which had been advised to him in the Tribunal’s letter of 6 November 2006 and, instead, attended on 14 December 2006 in response to the Tribunal’s s.424A letter inviting him to attend an interview.
The Tribunal described this issue in the following terms:
The applicant did not attend the further hearing scheduled for
12 December 2006 but did attend the interview as scheduled. At the interview the applicant expressed some confusion about the invitation to hearing issued under section 425 of the Migration Act and the invitation to interview issued under section 424A of the Migration Act and stated that he did not attend the hearing despite having notified the Tribunal of his intention to do so because he assumed that the invitation to an interview replaced the invitation to hearing.
In the circumstances, the Tribunal decided to take further oral evidence and arguments from the applicant, in conjunction with the interview scheduled under s.424A. (CB 141 – 142).
On 14 December 2006 the Tribunal conducted the interview referred to in the s.424A letter dated 4 December 2006 to the applicant. Although he had been invited to a hearing on 12 December 2006 and had not appeared and the Tribunal noted that the applicant had already had a hearing before the Tribunal on a previous occasion it nevertheless asked him whether there was any other evidence he would like to provide to it. The applicant took up that opportunity and he proceeded to give evidence and present arguments to the Tribunal.
Section 426A permits the Tribunal to reschedule the applicant’s appearance before it if the applicant is invited under s.425 to appear before it but does not do so at the appointed day, time and place. Section 427(1)(b) permits the Tribunal to adjourn the review from time to time. In light of these statutory powers, the decision of the Tribunal to give the applicant the opportunity to give evidence and present arguments two days later than the hearing which had originally been appointed does not evidence jurisdictional error. Further, the fact that the applicant was given the opportunity to give evidence and present arguments demonstrates that the Tribunal discharged its obligation under s.425 to give the applicant such an opportunity.
Consequently, jurisdictional error is not demonstrated in respect of this asserted ground of review.
Tribunal guilty of jurisdictional error
No particulars of the claimed jurisdictional error have been provided and the applicant’s submissions at the hearing in these proceedings did not expand upon or elucidate this claim. In the absence of any particularised jurisdictional error, this ground appears to be no more than a catch-all assertion and is not made out.
Tribunal did not try to believe the applicant
The Tribunal’s task is not to try to believe the applicant but to consider the material before it and to decide whether or not it is satisfied that the applicant meets the criteria for a protection visa. It is for the applicant to put material and arguments before the Tribunal such that it can reach the required level of satisfaction. If the applicant is, in this ground, implying that the Tribunal’s mind was closed to evidence and arguments which he put before it then such an allegation needs to be clearly proved. No evidence has been adduced to support a conclusion that the Tribunal approached the consideration of the application before it with a closed mind. In the absence of any evidence to support this asserted ground of review, it cannot be made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 16 August 2007
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