SZKUA v Minister for Immigration & Anor
[2007] FMCA 1562
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1562 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Shouter – 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), s.424A
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
| Applicant: | SZKUA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1887 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 4 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms M Mafessanti |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed under Rule 44.12(1)(a) 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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1887 of 2007
| SZKUA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant has applied for a protection visa on the ground that he fears persecution if he returns to the People’s Republic of China. He claims that he was a member of the “Shouters” sect of Christians in China, that “one of the believers” of his group was arrested in 1997 for illegally demonstrating against the government, and that this prevented him from continuing to practise his religion. He also claims that after January 2000 he “founded a small group of six people”, but that he learned of enquiries by policemen during 2006. This caused him to leave China on a business visa to seek refuge in Australia.
A delegate of the Minister refused his visa application on 6 February 2007, and the applicant presented his claims further to the Refugee Review Tribunal at a hearing which he attended. The Tribunal affirmed the delegate’s decision on 15 May 2007.
In its statement of reasons, the Tribunal concluded that the applicant was not a credible witness. It thought that he was “vague about aspects of his claim”, that “he showed little knowledge of the church”, and that his evidence was contradictory. It had “serious doubts about his claim that he has been a member of the Church since 1996”. It thought that “the fact that the applicant left China using his own passport supports a conclusion that he is of no adverse interest to the Chinese authorities”. The Tribunal therefore was not satisfied that he had ever been a member of the Shouters group, or had ever been involved in activities pertaining to that group, or had suffered any of the claimed harms. It was not satisfied that he had suffered, or would suffer, Convention-related harm in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider his refugee claims.
The application to the Court has been listed today to consider whether the applicant has raised an arguable case for the making of these orders. He has been given an opportunity to amend the grounds of his application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He did not file documents additional to his original application and affidavit, but today presented a written submission.
I have considered his submission and the other material which is before the Court, and have been unable to identify any arguable ground of jurisdictional error arising from the Tribunal’s procedures or reasoning.
The applicant’s original application and affidavit made allegations of a breach of s.424A of the Migration Act 1958 (Cth) and that the “Tribunal rejected my credibility on no reasonable ground”. Further arguments in relation to these grounds are raised in the written submission of the applicant and in his oral submissions.
In relation to s.424A, three particulars are argued. The first refers to a statement by the Tribunal identifying an inconsistency in relation to who introduced the applicant to the Shouters church. The statement accompanying his visa statement referred to a workmate, but the applicant gave evidence to the Tribunal that it was his wife, who was his girlfriend at the time. However, the Tribunal expressly said “in reaching its conclusions, the Tribunal has not relied on” this inconsistency, thereby suggesting that it was not “the reason, or a part of the reason for affirming the decision under review” within s.424A(1). Any breach of s.424A(1) in relation to the inconsistent evidence was, therefore, not a material jurisdictional error affecting its decision. A further reason for finding that this part of the Tribunal’s decision does not reveal a failure to follow s.424A(1) arises from the reasoning of the High Court in SZBYRv Minister for Immigration & Citizenship [2007] HCA 26 at [18] to [21]. I do not consider that this point raises an arguable ground of jurisdictional error.
The second and third particulars of alleged breaches of s.424A(1) refer to reasoning by the Tribunal which assessed the applicant’s knowledge about the Shouters church, and identified an inconsistency in his oral evidence to the Tribunal. I do not consider that it is reasonably arguable that either of these matters reveals a failure to comply with obligations under s.424A(1). In relation to the first matter, it clearly does not identify “information”, but concerns the Tribunal’s assessments of evidence. In relation to the second matter, it relates only to evidence given by the applicant at the Tribunal hearing which, if it was “information”, would clearly come within s.424A(3)(b). These particulars do not, therefore, raise any arguable jurisdictional error.
The applicant’s written and oral submissions make two arguments against the Tribunal’s reasons for rejecting the applicant’s credibility. The first is that the applicant claimed only to have been targeted by local police, and that this therefore would explain why he was able to depart China using his own passport without any problem. The second argument was that his inconsistent evidence concerning the month when his meeting was discovered by the police in 2006 was explained by his being nervous at the hearing and having memory problems. He submitted that the Tribunal should have given him more chance to clarify his evidence.
However, in my opinion, these points are clearly directed only at the merits of the Tribunal’s reasoning. I do not consider that they raise any reasonably arguable ground of jurisdictional error undermining the Tribunal’s conclusions on the applicant’s credibility.
For the above reasons, 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 28 September 2007
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