SZKIT v Minister for Immigration
[2007] FMCA 1012
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1012 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Migration Act 1958 (Cth), s.91R(3) Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZKIT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 861 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 28 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr I Muthalib Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 861 of 2007
| SZKIT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 29 January 2007 and was handed down on 8 February 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and arrived in Australia on 2 October 2006. He applied to the Minister’s department for a protection visa on 17 October 2006. The Minister’s delegate rejected that application on 28 October 2006. On 21 November 2006 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant had claimed a well-founded fear of persecution in China based upon his Christian religion. He claimed that he had suffered harm in China at the hands of the Chinese police because of his membership of a Christian house church. The applicant was invited to attend a hearing before the Tribunal. He did so and gave evidence. The Tribunal records what occurred at the hearing in the book of relevant documents, which I have before me, on pages 74 to 77. It appears from that record that the Tribunal explored in some detail with the applicant his claims.
It appears in particular that the Tribunal had difficulty accepting the applicant’s claims of arrest and detention. The presiding member could not understand why a small house church of only seven members would be of adverse interest to the Chinese authorities. On page 77 of the court book the Tribunal said:
The Tribunal asked the applicant why he thought the Chinese government wanted to persecute Christians in China and the applicant claimed that China is a one party state and while they may tell the outside world that things are OK, inside there is still suppression. The Tribunal put to the applicant the country information above and asked why the applicant thought that the authorities would be interested in the activities of a very small house church of seven members when a house church of some 3,000 members was able to operate without interference from the authorities in his home province. The applicant claimed that the priest told him subsequent to their arrest that their church did have several branches and the CCP still puts restrictions on their church. He thought that perhaps the local officials were very corrupt and greedy and land inequality had led to many demonstrations and protests. The applicant claimed that many members of the church were also involved in those protests and demonstrations and those local officials will target them for those activities.
The Tribunal accepted that people involved in the underground Protestant house church movement in China could be exposed to a real risk of serious harm in China. However, the Tribunal did not accept the applicant as a witness of truth. The Tribunal found that the applicant’s knowledge of the Christian faith was rudimentary.
The Tribunal was not satisfied that the applicant was a member of a house church in China. On page 79 of the court book the Tribunal said:
In the absence of any further evidence and lack of relevant detail, the Tribunal does not accept that the applicant will be of adverse interest to the Chinese authorities if he returns to China. The country information above indicates that the authorities are inclined to tolerate house churches, particularly the smaller ones of which the applicant claims to be a member. The applicant was unable to tell the Tribunal why his small church would come to the attention of the authorities and again, country information indicates that it would be unlikely to.
The Tribunal continued, referring to country information that had been put to the applicant during the course of the hearing:
When this information was put to the applicant he suggested that the authorities in his area were greedy and corrupt, however, on balance, the Tribunal is not satisfied that, even if the applicant is a member of a house church and comes to the attention of the authorities, he is likely to be subject to conduct that would constitute “ serious harm” amounting to persecution.
The Tribunal went on to consider the applicant’s claims of arrest and detention. The applicant had claimed he was arrested and detained on two occasions for participating in an illegal gathering. The Tribunal found that as the applicant was not a genuine or committed Christian, his claim of arrest and detention could not be supported. The Tribunal found that the applicant was not arrested and detained by the authorities for the reasons he had claimed or for any other Convention related reason.
The Tribunal also dealt with the applicant’s claim of having attended church in Australia. The Tribunal accepted the fact of those attendances but disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
These proceedings began with a show-cause application filed on 14 March 2007. The application came before me on 11 April 2007 for the first time. The applicant required an extension of time for the application which I granted. I also made orders for the filing of further material and for the conduct of a show cause hearing today.
The applicant had the opportunity to file and serve an amended application and additional evidence, including a transcript of the Tribunal hearing. He has not done so. The applicant was also required to provide particulars of ground 3 in his application that asserted bias on the part of the Tribunal. He has not done that either. In the light of that default, ground 3 in the application is struck out pursuant to order 5 made by me on 11 April 2007. The other grounds in the application are unparticularised assertions of a denial of procedural fairness, error of law and a failure to exercise jurisdiction in relation to the rejection of the applicant’s credibility. In the absence of particulars, they are meaningless.
The applicant sought and was given the opportunity to make oral submissions today in support of his application. He raised first the assertion that he had never received the audio tape of the Tribunal hearing. He claimed that he had been asked about the audio tape when he appeared before a judge on 25 May 2007. When I explored this with the applicant, he said that he had appeared at John Maddison Tower. He accepted that this must have been the first court date on
11 April 2007.
I have checked my notes of that hearing and I made no mention of any issue having been raised about the audio tape. Nevertheless, the applicant now asserts that he never received it. The applicant told me that he had attended an interview with a free legal advisor under the Minister’s panel advice scheme. I note from the correspondence file that the applicant had asked to participate in that scheme and that he had been referred to Mr Matthew Tyson of Selborne Chambers. The correspondence file does not record whether any advice was given but the applicant says that he did attend an interview with Mr Tyson and received advice.
I received as an exhibit a letter dated 2 May 2007 from the Minister’s solicitors to Mr Tyson providing the Tribunal audio tape. The applicant initially claimed that Mr Tyson had told him that he had not received the tape. When I pressed him on that, he said that Mr Tyson had said nothing about the tape. The applicant told me that he had presumed that Mr Tyson had not received the tape because he had not mentioned it. If, as he claims, the applicant had raised at the first court date the question of not receiving the audio tape, I find it hard to believe that he would not himself have raised it with Mr Tyson at their later interview.
In all the circumstances, I consider that the applicant has had a reasonable opportunity to put before the Court evidence to support his application.
The applicant also made submissions that the Tribunal erred in not dealing with an element or integer of his claims. He said that he had claimed that he had participated with others in a demonstration of local villagers concerned at the government resumption of the village and the inadequate payment of compensation. Although the interpreter on several occasions used the word “confiscation,” the applicant later insisted that it was not an issue of confiscation but inadequate compensation on compulsory acquisition.
The applicant claimed that he had raised this before the Tribunal for the first time orally. There is no mention of the claim in the written material submitted by the applicant to either the Minister’s department or the Tribunal. I explored this claim with the applicant during argument in order to see whether I could identify any mention of it in the Tribunal’s reasons. The applicant told me from the bar table an increasingly elaborate story that appeared to me to suffer from numerous internal contradictions and implausibilities. The applicant claimed that he and others were singled out at a demonstration over the land acquisition as troublemakers. He did not adequately explain how he could have been identified as a troublemaker.
At various times the applicant referred to a demonstration or multiple demonstrations, although he ultimately insisted that there was only one. The applicant told me that the local government authorities had spoken to the demonstrators and given an assurance that the issue of compensation would be properly dealt with. On the face of it, that seems a reasonable response by the government officials. However, the applicant also said that after the demonstration the police had attended his home and for some unexplained reason threatened him.
I pressed the applicant to explain whether he was singled out as a Christian or whether he was singled out for some other reason. He insisted that he and others were singled out as Christians. He told me that it was the Christians in his village who had organised the demonstration. I accept that the applicant had said something about this at the Tribunal hearing. There is a brief reference referred to above at [3] about the applicant having referred to corruption on the part of local officials which had led to demonstrations and protests in which members of his church were involved.
That assertion was dealt with by the Tribunal in its reasons. The Tribunal did not find the applicant’s evidence at the hearing plausible or persuasive. The Tribunal was not satisfied that the applicant was of adverse interest to the Chinese authorities as a Christian or for any other Convention-related reason. On the basis of the material before me, it does not appear to me arguable that the Tribunal failed to deal with any element or integer of the applicant’s claims. Neither does any other arguable case of jurisdictional error arise from the show cause application or the book of relevant documents.
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,200. Scale costs under the court rules at this stage of a migration proceeding would be $2,500. The additional costs sought by the Minister relate to the fact that today’s hearing was adjourned from 28 May 2007 to today.
As best I can recall, the reason for that adjournment was in order to ensure that the applicant received advice under the panel advice scheme. I am not persuaded that there is sufficient reason to depart from the court scale. The applicant’s submissions were not directed to the issue of costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules in the sum of $2,500.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 5 July 2007
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