SZKQG v Minister for Immigration - [2007] FMCA 1358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1358

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.474, 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZKQG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1545 of 2007

Judgment of:

Smith FM

Hearing date:

31 July 2007

Delivered at:

Sydney

Delivered on:

31 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed under r.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 1545 of 2007

SZKQG

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 16 May 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 3 April 2007 and handed down on 12 April 2007. The Tribunal affirmed a decision of a delegate made on 25 November 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first Court date on 5 June 2007. The applicant attended and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to him in an information sheet and by me. He was given an opportunity to file an amended application and any evidence, including a transcript of the hearing held by the Tribunal, after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant was sent a referral to a barrister on 7 June 2007. However, he has not filed an amended application nor any evidence or submissions. I shall consider the grounds set out in his application below.
The applicant arrived in Australia in November 2006, and on

16 November 2006 he applied for a protection visa assisted by a Migration Agent. An attached statement set out his reasons for seeking protection in Australia against return to the People's Republic of China.
The applicant claimed to have come from parents who were “devout Christians”, and to have been baptised as an infant. He claimed that his father had been repeatedly harassed by police for his religious practices and was arrested several times. He was himself arrested by the police on numerous occasions, commencing in 1994 when “my father and I, as well as other brothers and sisters, were arrested when we participated in the same church meeting”. He claimed to have been tortured on that occasion.
He claimed to have been arrested again with the pastor of his church in 1998 and in 2002. In 2002, he claimed to have been beaten in detention, held for 15 days, and threatened “that I might be prosecuted to jail for two years”. He claimed that in March 2006:
The police ruined our gathering again when I prayed with other brothers and sisters. Other brothers stood in the front of the police when they rushed in to cover me and helped me escape. But the police saw me there. They searched me everywhere and told my wife they would put me into prison for 10 years if I didn't surrender myself to the police.
He claimed that a friend helped him obtain a passport to come to Australia, and that a tourist agent took his passport so that he was unable to show it to the Department of Immigration. The only evidence he presented to the Department, or subsequently to the Tribunal, to corroborate his claims was a copy of a Chinese identity card.
The Delegate refused the application on the ground that she was not satisfied by the claims, and did not “accept that the applicant would have been able to acquire the visa or depart China if he was of serious interest to the authorities.”
On appeal to the Tribunal, the applicant presented an edited version of his original statement, and attended a hearing on 16 February 2007. The Tribunal included in its statement of reasons a description of the hearing. This provides a full, but not verbatim, record. However, neither party has presented any better evidence as to what happened.
The Tribunal appears to have discussed the applicant’s account of events leading up to his departure from China, and pointed out contradictory aspects in it. It questioned the applicant extensively to test his claim that the church of which he was an adherent was the "Shouters" sect of Christians, whose members have been persecuted in China. The Tribunal found clear inadequacies in his knowledge of that sect, which it says it discussed with him. It found other aspects of his claims in relation to his religious practice which were not believable. The Tribunal also found unbelievable aspects of his claim to have been repeatedly detained. The applicant claimed that he had been attending a church in Australia “which was a Protestant Church”, but presented no corroboration of this and could not clearly explain the difference between that church's service and the Shouter's service.
The Tribunal, in its statement of reasons, set out information about the Shouters.
Under the heading ‘Findings and Reasons’, it identified the claims made by the applicant, and said that the applicant did not display knowledge of “basic information about the Shouters” and Christianity. The Tribunal said:
However, despite repeated questioning by the Tribunal the applicant was unable to express any knowledge of the "Shouters", even the most rudimentary.
The Tribunal concluded:
The Tribunal is not satisfied that the applicant, was a member of the "Shouters" house church in China in the past, or was perceived of as being a member of the "Shouters" house church either because of his own or his parents' activities. The Tribunal is also not satisfied that the applicant holds a genuine belief in, or commitment to, Christianity.
The Tribunal then addressed other aspects of the applicant's claimed history. It said:
The Tribunal is not satisfied that someone with the claimed profile of the applicant and his father would not have been of much more interest to the authorities than the applicant claims, and not have been detained for significantly longer periods of time.
It found the applicant's evidence about where he had lived, and where his father had lived, to have inconsistencies. It said:
For the reasons above, the Tribunal is not satisfied that the applicant was arrested and detained for the reasons claimed, or for any other reason, nor is the Tribunal satisfied that the applicant’s father, was, or is a Christian activist, and was ever arrested and/or detained for his Christian beliefs and/or membership of the "Shouters" as claimed.
It was therefore not satisfied that the applicant was at risk of being imputed with political opinions or membership of a persecuted social group.
The Tribunal also pointed to "profoundly unconvincing" explanations given by the applicant about his departure from China. Also, it was not satisfied that the applicant had attended a church service in Australia. In summary, it said:
For the reasons set out above, the Tribunal does not accept the present applicant as a witness of truth. The Tribunal is not satisfied that any of the applicant's material claims to invoke protection obligations in Australia are true.
I have considered the procedures and reasoning of the Tribunal, and am unable on the material before the Court to identify any arguable jurisdictional error affecting its decision.
The applicant's grounds in his application are:
1.RRT decision was unfair to my application for a protection visa. I was prosecuted in my home country and could not go back to China.
2.It is not fair to think I do not have any genuine interest in my believe in God. I am a genuine Christian and I truly believe in God.
3.I do not believe that I am not meet the Convention related reason of persecution and not a refugee.
I consider that these grounds essentially seek to maintain the merits of the applicant's refugee claims, and do not raise any argument showing jurisdictional error by the Tribunal.
If the first ground makes an allegation of unfairness in the procedures followed by the Tribunal, I am unable to identify any arguable unfairness. The applicant was given at the Tribunal’s hearing an opportunity to fully explain his case, and to persuade the Tribunal as to its truth. The fact that he was unable to satisfy the Tribunal, does not show that the Tribunal has followed any procedure which was not permitted by law. It was the task of the Tribunal to arrive at a decision on the truth of the claims.
The applicant's submissions to me today argued that there had been some difficulties of communication with the Tribunal in the course of the hearing, partly by his speaking in a low voice out of respect, and also through misunderstandings in the translation of his evidence. He suggested that this had occurred in relation to evidence which he gave as to the number of Shouters in his village, in which the Tribunal thought that inconsistent answers were given.
The difficulty facing the applicant with this contention is that he has not presented to the Court any evidence to give substance to these assertions. No transcript has been presented, nor any opinions from an expert as to the competence of the interpreter, to give any support for his claims. Reading the Tribunal's description of its hearing, I am unable to identify any support. The reasoning ultimately followed by the Tribunal pointed to an extensive failure by the applicant to show knowledge of the Shouters, and I am not persuaded that there is any substance in an argument that a particular failure of translation has distorted this outcome.
I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

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: 14 August 2007