SZLEU v Minister for Immigration

[2008] FMCA 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 119

MIGRATION – Review of RRT decision – whether Tribunal failed to comply with s.424A Migration Act 1958 – whether Tribunal considered documents provided by applicant.

Migration Act 1958, ss. 91R(3), 424A

SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZLEU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2509 of 2007

Judgment of: Raphael FM

Hearing date: 31 January 2008

Date of last submission: 31 January 2008

Delivered at: Sydney

Delivered on: 31 January 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Ms McWilliam

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2509 of 2007

SZLEU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 12 April 2007 and who applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 7 May 2007.  He was refused a visa by a delegate of the Minister on 22 May 2007 and applied to the Refugee Review Tribunal for review of that decision on 8 June 2007. 

2. On 20 June 2007 the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited the applicant to a hearing on 9 July 2007. The applicant attended the hearing. Prior to the hearing, on 20 June 2007, the Tribunal wrote to the applicant care of his migration agent a letter pursuant to s.424A Migration Act 1958 (“the Act”).  This set out a number of pieces of information that would, subject to any comments the applicant might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  The applicant responded to that letter on 2 July 2007 [CB 63].  On 12 July 2007 the Tribunal determined to affirm the decision under review and handed the decision down on 24 July 2007. 

3. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that he was a Christian who had been arrested and spent a year imprisoned in China because of his beliefs.  He was threatened and told that if he was caught again attending illegal church gatherings he would be sentenced to 10 years’ imprisonment.  He believed there was no real religious freedom in China and sought refuge in Australia where he could practice freely.  The applicant claimed that upon arrival in Australia he joined the Hillsong congregation and was a volunteer and a regular churchgoer.  He provided evidence in connection with his attendance at the Hillsong congregation. 

4. The applicant had travelled to Australia as the holder of a class UC Temporary Business Entry subclass 456 visa. He was due to remain in Australia for four days seeking business opportunities as the general manager of a trading company. Information concerning the application for this visa is found at [CB33]-[37]. It would appear from those documents that some very thorough checks were made and that the onsite consular office was satisfied that the visa applicant was the person he stated he was and he had those reasons for travelling.

5. The discrepancy between the 456 visa application and the statement provided by the applicant in his protection visa application [CB19], which made no mention whatsoever of this job and which indicated that the applicant had been unemployed since he left detention in March 2004, was the subject of considerable questioning by the Tribunal.  It also questioned the applicant at some length about his knowledge and practice of Christianity. 

6. The applicant produced for the benefit of the Tribunal two documents. The first purported to evidence the fact of his detention and release. The second was the death certificate of his mother, who the applicant claimed had died following his detention. The Tribunal referred the applicant to certain independent country information, about both the practice of Christianity within China and the incidence of document fraud which indicated that the certificate from the prison might not be genuine. The Tribunal also discussed with the applicant and referred in its decision to exit procedures which suggested that the applicant would not have been a person in respect of whom the Chinese government were interested if he was able to leave the country on his own passport. All these matters were referred to in the s.424A letter. In the applicant's response, he told that he had got his passport with the help of a friend and that because he used his own passport to leave his country did not mean that he was not persecuted. He advised that what he had told on his application form for the protection visa was true and that he was unemployed before he came to Australia. He had just given money to his friend and did not know how he had got the visa for him.

7. The Tribunal found that the applicant was not a credible witness. It did this because of its views about the manner in which he responded to questions and the fact that those responses were in general vague and lacking in detail. It felt that the applicant's evidence was confused and did not accept that this was due to nervousness, forgetfulness or lack of education. The Tribunal determined that in regard to the application for the business visa, it could not accept the applicant's evidence: [CB 92].

   “ … the Tribunal does not accept that the information provided with the Business visa application was false.  The Tribunal is of the view that the inquiries made by Immigration officers established the applicant's employment with LSB Trade Co and accepts such information.  The Tribunal finds that the applicant's information concerning his employment, provided with the protection visa application to be false.  For this reason also, the Tribunal finds the applicant was not a credible witness.”

8. In regard to the Tribunal's questioning of the applicant about his religious knowledge, it found [CB 93]:

   “ … the applicant displayed highly limited knowledge about religion.  For example, he was unable to name the apostles or describe a single story from the Bible or to state what Easter represents.  The applicant stated that he forgot and was ‘a bit stupid’, that he was nervous and that his involvement with religion was not very deep as he did not understand what was going on during the gatherings and was uneducated.  The Tribunal rejects these explanations as the Tribunal's questions were directed at the very basic matters concerning Christianity and the Tribunal would expect the applicant to be cognisant of such matters, despite his shortcomings, if he was involved with Christianity since at least 2002 as he claimed.”

9. The Tribunal made a finding that the applicant did not have a strong commitment towards Christianity and he would not engage in practice of Christianity either in a registered or a family church if he returned to China. The Tribunal found that if he did return to China now or in the reasonably foreseeable future there was no real chance that he would face persecution because of his involvement in Christianity. The Tribunal also considered the documents provided by the applicant: [CB 93].

   “Given the Tribunal's findings about the applicant's lack of involvement in the Church in China, the Tribunal also rejects the applicant's claims that he was detained in China for 12 months or that he was monitored by the authorities following his release from detention.  The Tribunal acknowledges the Release certificate presented by the applicant however, having regard to the applicant's poor credibility and to the above-cited advice about the widespread availability of fraudulent official documents, the Tribunal gives this certificate no weight.”

10. The Tribunal accepted that the applicant's mother had passed away, but was unable to draw any conclusion that the death had been affected by his detention as it did not accept that he had ever been detained. 

11. The Tribunal accepted that the applicant had become involved with the Hillsong church, but given its views generally about the applicant's commitment to the Christian faith, it found that s.91R(3) applied with respect to his conduct in Australia.

12. In his application to this court the applicant suggested that the Tribunal had fallen into jurisdictional error because it had ignored his evidence and that procedural fairness had been denied.  He stated that he was a Christian and he feared to go home.  Before me today the applicant stated that the Tribunal did not consider the important documents that he had provided; namely, the certificate from the gaol and his mother's death certificate.  If the notion of consideration was explained to the applicant, I have little doubt that he would agree that both those documents were considered and that what he really meant was that they were not accepted.  But an argument about the acceptance or otherwise of documents is an argument about the merits of the applicant's claims and is not a debate that this court is permitted to indulge in.  It will be clearly seen from the précis that I have provided of the proceedings before the Tribunal that those documents were considered but they were rejected as being of little importance. 

13. The applicant stressed that he was a genuine Christian and informed the court that he was most distressed by the way in which his commitment to the faith had been treated by the Tribunal. 

14. In SZDFO v Minister for Immigration [2004] FCA 1192 Allsop J at [8]-[12] explained the role of a court in relation to an application of this nature. He explained more lucidly than I am able the nature of a jurisdictional error and conformably, I believe, with High Court authority that "factual error is rarely reflective of jurisdictional error". He explained that "findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power" and that the courts were severely restricted in the manner in which they could interfere with the exercise of that power. He ended at [12] by saying:

    “It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations.”

15. What this applicant was attempting to do today, not unreasonably and not unexpectedly, was to persuade me that he was such a person. But these efforts must regrettably fall on deaf ears. If, as I must find, the Tribunal in this case has not fallen into jurisdictional error in the manner in which it reached its decision, then there is no more I can do. The Tribunal certainly provided the applicant with procedural fairness. It sent him a letter under s.424A of the Act and it discussed those matters with him at the hearing. It came to its conclusions on the applicant's credibility based upon information and evidence that was clearly before it. The decision it reached was equally clearly available to it. The applicant has not suggested any other ground upon which jurisdictional error could be asserted. I have perused the green book and have been unable to see one myself.

16. The application is dismissed. The applicant must pay the first respondent's costs, which I assess in the sum of $3,900.00. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  7 February 2008