SZLIB v Minister for Immigration - [2008] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIB v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 302

MIGRATION – Review of decision of RRT – where what was to constitute “information” under s.424A was a document provided by applicant and information about bibles that did not form part of Tribunal’s decision.

Migration Act 1958, s.424A

Applicant:

SZLIB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2834 of 2007

Judgment of:

Raphael FM

Hearing date:

5 March 2008

Date of Last Submission:

5 March 2008

Delivered at:

Sydney

Delivered on:

5 March 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2384 of 2007

SZLIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 23 February 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 22 March 2007. On 10 April 2007 a delegate of the Minister declined to grant a protection visa and the applicant applied for review of that decision by the Refugee Review Tribunal on 11 May 2007.
The Tribunal held a hearing which the applicant attended on 6 July 2007. On 2 August 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 16 August 2007. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found in a statement made by him with his application [CB 27-32]. The statement is summarised in the Tribunal's decision at [CB 69-70].
In short, the applicant claimed that he was a miner from a small village in Yunnan Province. He had little education. In about February 2000 a friend of his suggested that he join him in Fujian Province where the friend's uncle ran a construction team. The applicant did this. He was lonely so far from home and in about April 2005 met a Mr L, who was kind to him and who took him into his home, gave him food and laundered his clothes.
The applicant and Mr L became friends and the applicant joined Mr L in the local church where Mr L was an active member. The applicant attended the local church regularly including Bible study evenings. In November 2005 he was baptised. Towards the end of that month he was arrested at the construction site at which he worked. He was interrogated and it was suggested to him that he was involved in illegal religious gatherings. The applicant denied any involvement of that type and claimed that he only went to Mr L’s home for meals. The applicant was detained for a month during which time he says he was beaten by the authorities and mistreated by other criminals in the cell with him. He stated that he was released in December 2005 when he returned to the Yunnan Province.
The applicant said that in February 2006 Mr L came to his remote village. The applicant found a job for Mr L in the mine and together they conducted Bible studies and church meetings, they distributed religious propaganda and Bibles. They were assisted in this endeavour by the friend who had originally introduced the applicant to work in Fujian.
On 16 November 2007 that friend was arrested. The applicant and Mr L were very frightened. The applicant claimed that he already had a passport, which had been issued in 2005, and so he and Mr L went to Shenzhen where they tried to find people smugglers who would arrange for them to leave the country. The applicant succeeded in doing this and came on a tour group to Australia. He says that Mr L was not so fortunate and had to travel to the Vietnamese border to see whether he could escape into Vietnam. It is not known whether he succeeded. The applicant claimed that he was frightened to return to China because he would be targeted as a person who was an active member of an illegal religious organisation.
At the hearing before the Tribunal the applicant was asked a number of questions about his passport. The Tribunal concluded from certain information that it had received, and which it discussed with the applicant, that there was a possibility that the applicant might not be the person he said he was but the Tribunal determined to give him the benefit of the doubt and to assume that he was that person. The Tribunal then questioned the applicant about his association with the local church and his knowledge of the church's activities. The applicant responded as best he could, although it appears that his knowledge of the Bible, and in particular, the book of Genesis, may not have been all that deep.
The applicant was asked questions about the arrival in his village of Mr L and the Tribunal made it clear that it had some doubts as to the ability of Mr L to have remained in that place without being found by the PSB when he was a person who was wanted by the PSB for his activities in Fujian and he was clearly a stranger in Yunnan. The Tribunal put to the applicant the usual doubts about his ability to leave China when he claimed to be a person who was wanted by the PSB and there was some discussion about a letter that the applicant had produced from the Australian local church, that stated:
“This is to confirm that Mr [Applicant] has been meeting regularly with the church for the past four months.” [CB 58]
The conclusions reached by the Tribunal and set out in its findings and reasons, commencing at [CB 76] deal first with the applicant's claim to have been a member of the Shouters Church in China. Whilst the Tribunal acknowledged that the applicant had some knowledge it felt that:
“When given a number of opportunities to explain in detail his actual activities within the church, including the nature of its worship and his work in evangelizising in his village and surrounding villages, his responses were notably brief, uninformative and lacking in circumstantial detail…. Having had the opportunity to hear the applicant's account of these activities I am not satisfied that it was based in any first-hand, authentic experience, or that it reflected more than an essentially superficial knowledge about the Shouters church and its services which he has learned. I am not satisfied that his oral evidence supports a conclusion that he was a member of the Shouters Church in China, or that he was ever active in spreading the Shouters religion in his area of Yunnan or anywhere else.”
The Tribunal also felt that the applicant's account of the role played in his education and association with the Shouters church, together with his co-religionist Mr L, was plausible. The Tribunal was not satisfied that his evidence about Mr L’s sojourn in Yunnan Province could be relied upon and felt that this added to its doubts about the applicant's religious activities.
The Tribunal dealt with the letter from the church in Australia. It noted that the letter did not state that the applicant was a member of the church or what was involved in the meetings which he had had with it:
“While I accept that the letter indicates that the applicant has had some form of contact with the church I am not satisfied that it is evidence of his membership of it or of his involvement in its religious activities. Given my lack of satisfaction as to the truth of the applicant's claims to have been involved with the Shouters church in China, I am not satisfied that his conduct in contacting the Local Church in Sydney has been undertaken otherwise than for the purpose of strengthening his claims to be a refugee and I am required to disregard this conduct in assessing his claims in accordance with s.91R(3) of the Act.”
Finally the Tribunal dealt with the ability of the applicant to leave the country and referred to independent country information relating to the checks that persons who are the subject of arrest warrants would have to go through at airports. The Tribunal noted certain inconsistency in the applicant's arguments:
“He argued that at the time he left the country W had not disclosed to the police the applicant's participation in church activities. Asked why, in that case, he had fled, he said that he had been afraid that W would divulge this information under torture. This claim was, however, contradicted by his further claim that he learned from his sister before his departure that police were searching his house and investigating his family. … Having considered these claims and the independent country information I am not satisfied that the applicant has provided a satisfactory explanation as to how, if he had genuinely been involved in illegal religious activities with L and was being searched for by the PSB, he was able to leave China using his own passport.”
The applicant has filed with the court a detailed application that makes a number of claims of jurisdictional error. Before me today he had the interpreter read out some submissions which basically followed the line of the application. The first claim made by the applicant is that the Tribunal's finding is "significantly inconsistent". My reading of the application is that the inconsistency arises out of the acceptance of the genuineness of the letter provided by the Australian Shouters Church and the lack of satisfaction held by the Tribunal that the applicant was a member of the church in China. Of course it is possible that a person who had no association whatsoever with the Shouters Church in China could attend meetings of the Australian branch. He may do so for a variety of reasons including an attempt to convince the Tribunal that he was a genuine adherent of that sect. There is to my mind no inconsistency in these findings.
The second point raised by the applicant is that the Tribunal made its findings on incorrect evidence or information. He quotes his evidence about the arrest of Mr W and the flight of himself and Mr L to Shenzhen. He reminds the court that he obtained his passport in August 2005 and therefore he did not have to go through any political checks or political examination again. He says that he came to the attention of the PLC authorities after he left China. In my view the Tribunal has explained its findings in relation to his leaving of China and its use of the independent country information in the extract from the findings and reasons that I have set out above. If, which I do not accept, the Tribunal has made some error of fact, that is not in itself a jurisdictional error.
Finally, the applicant argues that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. He refers to "some pieces of information," and then particularises two. The first piece of information is the letter from the local church in Sydney. The first thing to be said about that document is that it was accepted by the Tribunal and therefore cannot be said to be the reason or part of the reason for affirming the decision under review. The second thing to be said about it is that it was a document provided to the Tribunal by the applicant and therefore falls within the exemption found at s.424A(3)(b).
The next piece of information is, "information in relation to particular Bible which has been used by the local church and which has been smuggled by me." It is correct that the Tribunal asked the applicant a number of questions about the Bibles that he alleged he had been smuggling and suggested to the applicant that Bibles could be bought quite easily in China and there was no need to smuggle them [CB 72] but any concern that the Tribunal felt about this part of the applicant's claims does not appear to have found its way into the findings and reasons and therefore any information, if there was any, was not part of the reason for affirming the decision under review.
Ms Watson says, in her helpful written submissions, that the applicant is really just challenging the findings of fact and conclusions which the Tribunal has reached on material it was entitled to take into account. This is a summation of the applicant's case that I would endorse.
The application is dismissed as I am unable to find any jurisdictional error in the manner in which the Tribunal reached its decision. I order that the applicant pay the first respondent’s costs assessed in the sum of $4,000.00.

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

Associate:

Date: