SZKNV v Minister for Immigration - [2007] FMCA 1226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNV v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1226

MIGRATION – RRT decision – Chinese applicant claimed persecution as underground Christian – disbelieved 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), r44.12(1)(a)

Applicant:

SZKNV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1297 of 2007

Judgment of:

Smith FM

Hearing date:

17 July 2007

Delivered at:

Sydney

Delivered on:

17 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms E Knight

Solicitors for the Respondents:

Australian Government Solicitors

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 1297 of 2007

SZKNV

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 23 April 2007, 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 respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 March 2007 and handed down on 27 March 2007. The Tribunal affirmed a decision of a delegate made on 23 November 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first Court date on

15 May 2007. The applicant attended and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him by me and in an information sheet, and he was given an opportunity to file an amended application and evidence after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that I might dismiss his application today if I was not satisfied that it raised an arguable case for the relief claimed.
The applicant has been sent a referral but has not filed an amended application. He read today a prepared written argument in support of the grounds in his original application which I shall consider below.
The applicant arrived in Australia in August 2006. On 26 September 2006, a protection visa application was lodged on his behalf by an agent, Priscilla Yu. A statutory declaration narrated a history upon which he claimed protection in Australia against return to the People's Republic of China. He claimed:
I am a devote Christian; and particularly, an activist of the Underground Christian Church in (location) of China; and my activities/role in the church made me become the target of the Public Security Bureau ("PSB"); and therefore, I had to seek a protection in Australia.
The statement related a history whereby the applicant had been working in “various temporary jobs” but had incurred a “huge debt” to obtain the registration of a third child. In June 2003, he began to participate in an unofficial church, and was baptised in that church in October 2003. Members of the church assisted him to repay his debts. In April 2004 a person at the church invited him to join him in a location away from his home, where they would “establish and develop a new religious group”. This group was organised at a restaurant, and the applicant, with his friend, “used the restaurant as an important liaison centre to establish and develop religious gathering groups”. He claimed to have gathered more than 100 believers, and distributed thousands of religious propaganda materials.
The applicant claimed that from the middle of 2005 he was subject to investigation by the PSB, and in September was arrested and detained for about one week. He claimed that in January 2006, “I got troubles with the PSB for the second time” when police broke into a meeting at the restaurant. He claimed to have been kept in a cell, tortured and interrogated for one month until February 2006. However, after he was released, in May 2006 he was instructed to transport Bibles, and he did so. He was away from the location of the church in August 2006 when the restaurant “had been sealed by the police” and people were arrested. He claimed to have been advised to go into hiding and “fortunately, I made some preparation in advance, and thus, I was able to leave the country with helps of my friend”. He claimed that further religious activists like him have been arrested by the PSB since his departure. No supporting evidence for this history was provided to the Department, nor subsequently to the Tribunal.
The Department officer obtained, from China, the documents upon which the applicant had been granted a business visa. This showed the applicant working for a company affiliated with an Australian company and being sponsored to attend technical training in Australia from

26 August 2006 to 8 September 2006. When this was put to the applicant, the applicant's agent forwarded a short statutory declaration saying “My trip to the overseas was arranged by a friend of mine; and I do not know anything in details about it”. He denied the truth of the material presented to the Australian Embassy.
The delegate, in her reasons, referred to the applicant's travel and to his claim that the travel documents upon which the visa was obtained were false. The delegate, however, was satisfied that the applicant did not depart China using a false identity nor a false passport. The delegate was not satisfied that the claims made by the applicant “are credible, given the evidence regarding the applicant's passport and departure details.”
On appeal, the applicant attended a hearing held by the Tribunal on 23 February 2007. He showed the Tribunal his passport. The Tribunal set out in its statement of reasons the evidence given by the applicant, which repeated the history in the statement given to the Department. When questioned about Christianity, he showed knowledge of basic aspects of that religion. He told the Tribunal that since coming to Australia he had a variety of jobs, mostly in Sydney as a housepainter and doing Gyprock work. He claimed to have attended a church in Sydney, but could not tell the Tribunal what suburb it was in.
Under the heading “Findings and Reasons”, the Tribunal expressed a firm opinion about the credibility of the applicant's claims. It said:
In dealing with this application the Tribunal has formed the view that the applicant’s critical claims lack credibility and cannot be accepted. During the course of the hearing the applicant gave his evidence in a well rehearsed and parrot like fashion. His answers were often not responsive to the questions asked but merely repeated his claims using almost identical language. When asked questions that were incidental to his claims his answers were more hesitant and often contradictory. The Tribunal found that some of the applicant’s claims and evidence were highly implausible. This together with the applicant’s demeanour and the manner in which he gave his evidence seriously affected his credibility.
The Tribunal then identified a series of concerns in relation to his evidence, explaining its general conclusions about his credibility. It found implausible that he would have been able to leave China using his own passport, if he had been a person suspected of crimes in the manner claimed. It did not accept his evidence that since coming to Australia he had attended church every week. Its conclusion was:
The Tribunal finds that the applicant fabricated his evidence in an attempt to enhance his claims for refugee status. The Tribunal is of the view that the applicant has learnt some basic information about Christianity and the bible to strengthen his claims. The Tribunal is of the view that the applicant’s arrival in Australia and his lodgement of an Application for a Protection Visa was motivated by economic reasons and not because he had any genuine reason or reasons to claim refugee status.
I have considered the Tribunal's reasoning, and it appears to me to be rational and open on the material before it. I am unable to identify, in its procedures or reasoning, any arguable jurisdictional error affecting the Tribunal's decision.
The applicant's application follows a precedent which I have frequently seen. Its first ground argues that the Tribunal failed to comply with obligations under s.424A(1), without identifying particulars of "the information" which is alleged not to have been put to the applicant in writing. The general argument which is presented is that the Tribunal used information obtained from the hearing, but that information was “misstated or misunderstood by the Tribunal” and therefore was not within the exception in s.424A(3)(b). The exact details of what was "misstated or misunderstood" are not identified in the application nor in the submission read to the Court by the applicant today. I am unable to identify it. In my opinion, there is no arguable substance to the contention that the Tribunal was in breach of s.424A(1) shown in the material before me.
The second ground is that the Tribunal “has failed to comply with its obligations under s.425 of the Act”. It is alleged that the Tribunal failed to provide the applicant with a:
genuine opportunity to give my oral evidence in support of my review application; and failed to allow me to present my arguments against the issues arising from the Tribunal in relation to my application.
This contention has not been elucidated in the application nor in the submission read to me by the applicant. I am unable to give it any arguable substance, particularly in the absence of a transcript of the hearing held by the Tribunal.
The third ground is that:
I have never believed that my review applicant has been fairly and carefully assessed by the Tribunal.
This appears to challenge only the merits of the Tribunal's decision. As I have indicated above, I am unable to identify any jurisdictional error which has arguably occurred when the Tribunal arrived at its decision.
I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 27 July 2007