SZKRQ v Minister for Immigration
[2007] FMCA 1464
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1464 |
| MIGRATION – Chinese applicant claiming persecution as underground Christian – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.424A, 425, 476 |
| Applicant: | SZKRQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1664 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 14 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr O Young |
| Solicitors for the Respondents: | Blake Dawson Waldron |
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 $2,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1664 of 2007
| SZKRQ |
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 25 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 24 April 2007 and handed down on 3 May 2007. The Tribunal affirmed a decision of a delegate made on 15 February 2007, refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 19 June 2007. The applicant attended, and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to her, and she was given an opportunity to file an amended application after receiving a bundle of relevant documents and a referral for free legal advice. She was warned that her application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received a referral for advice, and has filed an amended application which I shall consider below.
The applicant arrived in Australia in December 2006. On 18 January 2007 an application for a protection visa was lodged on her behalf by an agent, Priscilla Yu. A typed statement signed by the applicant set out a history upon which she sought protection in Australia against return to the People's Republic of China.
The applicant referred to economic hardship she had encountered running a small business, and said that she was helped in January 2004 by a person who was a “devote Christian”. From 2004 she attended gatherings organised by that person, and in June 2004 she was baptised. She said the church to which she was brought was “an unofficial church…in other words, it was an underground Christian church”.
She claims that in October 2005 she was taken for questioning by the PSB when they arrested a small group of Christians. She was released after being "tortured physically and mentally". She claimed:
From October to December 2005, I was detained and subjected to persecution both by the police and those criminal suspects who had been detained together with me in the same cell at the detention centre. However, the police could not find any evidences against me in the end. Also, my husband tried every means to save me during that period, and he had spent a lot of money to bribe those corruptive police. Eventually, I was released in December 2005.
She claimed that other members of the small group “were not so lucky”, but were sent to a labour camp. She continued to assist another person in organising a religious group, but she decided to flee from her home town in November 2006 when two Christians were arrested by the PSB. She said “their confession made the police find my special role in the religious group, and they immediately paid special attention to me”.
She claimed to have left China using a Chinese passport not “in my genuine name”. She said that she had been informed that: “I have been regarded as a key member in the religious group. Obviously is it impossible for me to return to China.”
No corroboration of any of this history was ever provided to the Department or to the Tribunal, except by the provision of the passport which was claimed to be in a false name, and an identity document which was claimed to show the true identity of the applicant.
The delegate refused the application on the grounds that in recent Country Information, “there was no mention of any abuses for the reason of religion in Fujian Province” whence the applicant claimed to come, and that “most if not all of her claims were not substantiated by any documentary evidence”. The delegate concluded:
Considering the low profile of the applicant in the local church and given that the Fujian authorities tend to be liberal in their treatment of underground Christians, I do not consider the applicant to be facing a real chance of persecution should she return to China.
On appeal, the applicant attended a hearing. She presented to the Tribunal a statement from a minister of a Congregational church in Sydney, confirming the applicant's attendance at his church. According to the Tribunal the applicant repeated the claims made in her statement in relation to the incident of detention in October 2005. The Tribunal said:
The Tribunal asked the applicant about her role in church activities: was she a leader or simply a participant? She said that she was a participant although she had a role in communicating the time and place of church activities. She had no preaching or teaching role. In response to the Tribunal’s query, the applicant said that church activities/services usually involved around 7 to 10 people.
The Tribunal also said that it questioned the applicant, by putting to her country information about the more liberal treatment of Christians in Fujian Province than in other Chinese provinces. It said: “the Tribunal questioned whether the PSB would have bothered to detain the applicant for three months and send 10 of her fellow Christian practitioners to a labour camp for an indefinite period.”
In its statement of reasons, the Tribunal set out some background material supporting that proposition.
Under the heading "Findings and Reasons" the Tribunal noted:
The applicant was unable to articulate clearly the nature of her Christian beliefs - for example, at the hearing she was unable to tell the Tribunal whether the underground Christian activities in which she participated in China were related either to the Protestant or Catholic faiths.
However, the Tribunal said that it was: “willing to accept that the applicant may have participated in Christian activities in Fujian province”.
The Tribunal's essential reasons for affirming the delegates decision were explained briefly:
The Tribunal does not accept the applicant’s claims of persecution for her religious beliefs, including her claims of detention from October to December 2005 and harsh treatment by the police authorities. The Tribunal also does not accept the applicant’s claim that (the applicant) and 10 of her fellow Christians have been sent to a labour camp in west Fujian for an indefinite period. By her own admission, the applicant did not have a leadership role in her religious activities and those activities typically involved only a small number of people, 10 or less. The relevant country information available to the Tribunal, including the background information re-produced above, indicates that Christians in Fujian Province have generally been treated more liberally than in other Chinese provinces and such persecution that has occurred has usually involved leading clergy. The latest US State Department’s International Religious Freedom Report cited no incidents of the persecution of Christians in Fujian Province over the period covered (2005-6). This period also covers the timing of the applicant’s claimed persecution for her religious beliefs.
The Tribunal said that it was not satisfied that the applicant had suffered Convention-related harm in China, and was not satisfied that such harm would befall her in the reasonably foreseeable future if she returned to China.
I have considered the Tribunal's reasoning and procedures, and have not identified any arguable jurisdictional error affecting its decision.
The amended application in this Court has two grounds. The first ground argues that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act. The arguments presented in the particulars are, however, misconceived. It contends that the Tribunal was obliged to put to the applicant, in a written invitation for written comments, information it obtained at the hearing from the applicant and also information from the general country information which is relied upon. However, plainly both species of information are excluded from obligations under s.424A(1) by s.424A(3)(a) and s.424A(3)(b).
The particulars make a contention that the information which the Tribunal took from the applicant’s evidence at the hearing, and which it used adversely to the applicant, was not covered by the exclusion. This contention has no support in any authorities, and the language and intent of s.424A(3)(b) is plainly to the contrary.
The particulars also allege that there was a mistake made by the interpreter at the hearing, when interpreting “the religious term of the protestant”. However, no evidence has been presented to the Court to give substance to that contention. In any event, as I have indicated above, the Tribunal accepted that the applicant had participated in Christian activities in Fujian, notwithstanding that she could not identify the denomination of her church.
The second ground in the amended application makes reference to passages in a US State Department report concerning religious freedom generally in China. It is argued that “the Tribunal failed to consider important Independent Country Information such as "that report"”. It is also argued:
There is definitely no evidence that a major activist like me in the underground church will not be subjected to persecution by the PRC authorities.
However, in my opinion, the arguments presented in this ground challenge only the merits of the Tribunal's assessment of the applicant's claims and its choice of relevant country information. Moreover, there is no evidence that, in fact, the Tribunal's attention was drawn to the passages quoted, nor, indeed, does it appear to me that they would have caused any different assessment by it. I do not consider that this ground raises an arguable jurisdictional error.
The applicant attended today, and read a submission which repeated the arguments in the amended application. Her submission also argued that the applicant was not given a fair opportunity under s.425 of the Migration Act, to respond to the doubts of the Tribunal. However, in my opinion, no arguable substance for that contention has been shown. On the Tribunal's brief description of the hearing, she was clearly alerted to the issue upon which the Tribunal decided the case.
A submission was also made that bias was shown in the decision. However, this appears to rely upon the ultimate conclusions reached by the Tribunal. In my opinion they support no reasonable argument of bias.
For the above reasons, 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).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 24 August 2007
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