SZLIG v Minister for Immigration - [2007] FMCA 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2007

MIGRATION – Review of RRT decision – applicant in detention – where applicant made request for Ministerial intervention under ss.417 and 48B Migration Act 1958 (Cth) – where Tribunal found applicant was not a credible witness – whether s.424A obligations met.

Migration Act 1958 (Cth), ss. 48B, 91R(1)(b), 189, 417, 424A.

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 W148/00A v Ministerfor Immigration (2001) 185 ALR 703

Applicant:

SZLIG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2849 of 2007

Judgment of:

Raphael FM

Hearing date:

19 November 2007

Date of last submission:

19 November 2007

Delivered at:

Sydney

Delivered on:

19 November 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2849 of 2007

SZLIG

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 26 December 2005 with a Republic of Korea passport. He applied for a protection visa in February 2006 in the name which appeared in his Korean passport. His application was refused in March 2006 and affirmed by the Tribunal, differently constituted, in July 2006. In December 2006 the applicant was detained under s.189 of the Migration Act 1958 (“the Act”) as an unlawful non-citizen and has remained in detention since that time.
On 19 December 2006 the applicant made a request for Ministerial intervention under s.417 and s.48B of the Act. On 16 May 2007 the Minister exercised his power under s.48B of the Act to allow the applicant to make a further application for a protection visa. The application was made on 1 June 2007 and on 18 June 2007 the delegate advised the applicant that he had determined not to grant a protection visa.
The applicant applied to the Refugee Review Tribunal, differently constituted, for review on 20 June 2007. The applicant was represented at the review before the Tribunal by a respected firm of solicitors whose representative was a former member of the Tribunal. The applicant gave evidence before the Tribunal on two dates. On 13 August 2007 the Tribunal wrote to the applicant, through its migration agent, a letter pursuant to s.424A of the Act.
The letter was responded to the by applicant providing a statutory declaration dated 19 August 2007. On 4 September 2007 the Tribunal determined to affirm the decision not to grant a protection visa and the applicant was advised on 6 September 2007.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the Convention reason of religion. He claimed that he was a member of an underground church in China near the Korean border where he lived. He told that his mother was a deacon in an official church in China and although she had asked him to attend church with her he did not commence to do so until the year 2000. He said that after he attended church with his mother he was introduced to someone known as Pastor Kim who appeared to be an itinerant evangelist associated with his own underground church movement. The applicant claimed that he became a follower of Pastor Kim and spent about three days each week travelling with him and singing hymns. He did not claim a sophisticated knowledge of the Christian religion and did not become baptised whilst in China.
The applicant claimed that in about October 2005 Pastor Kim was arrested, and that he was told about this the following day whilst he was with another missionary called Mr Lee. Nobody else was allegedly arrested at the same time as Pastor Kim and the applicant stated that this was because he was the pastor and the others were just ordinary members of the congregation. After Pastor Kim was arrested the applicant obtained a passport from a Korean immigration broker and travelled to Australia in January 2006.
The Tribunal questioned the applicant in some detail about his association with this underground church in China and, in particular, the apparent inconsistency between the association of his mother with an approved church and his own association with the underground church, when he had stated that he had not become involved in church activities until the year 2000 and then it was only through his mother. The Tribunal found it inconsistent and incongruous that his mother would introduce him to an underground church leader rather than keep him within her own fold in which she was a respected member. The Tribunal found it difficult to comprehend why the applicant had not been baptised in China if he was so involved with the Christian religion.
Whilst in detention in Villawood the applicant became more involved in Christian matters and he was eventually baptised in the Hillsong congregation. A witness, the Reverend Dr Park, was called. Dr Park officiates at the Chinese/Korean church in Australia and told the Tribunal that the applicant commenced coming to that church in December 2005 and had attended regularly for over a year including
Bible study sessions and morning services. But the Reverend Dr Park also said to the Tribunal that when the applicant started to attend the church he did not appear to have a very full knowledge of Christianity or the scripture.
The applicant also did not appear to have told the Reverend Park about his religious activities in China. The Tribunal questioned the applicant on these matters and in particular on why, after four years of accompanying Pastor Kim on his peregrinations the applicant had not learned more about the religion, his association with which, he claimed, put him in so much danger. In its findings and reasons commencing at [CB182] the Tribunal says:
“The Tribunal finds that the applicant was not a credible witness and that he was not honest in his evidence to the Tribunal. The Tribunal found that the applicant was at times evasive in his evidence and the Tribunal had to repeat its questions several times to elicit response [sic] from the applicant…The Tribunal is also concerned about the applicant's submission that he provided false claims with respect to his previous protection visa application, which indicates to the Tribunal the applicant's willingness to mislead the Tribunal to support his case.”
The Tribunal then went on to set out in point form a number of implausible descriptions of the events in China. These included the lack of interest in religion until 2000 and then the sudden enthusiasm about it, the association with Pastor Kim who appears to have immediately taken the applicant on as an assistant, when he was not previously known him and had been introduced by a deacon of the established church.
The Tribunal was concerned about the introduction of Pastor Kim by the mother and was concerned that the applicant was unable to explain to its satisfaction how he and Pastor Kim were able to escape the attention of the authorities between 2001 and 2005. Finally the Tribunal indicated at [CB183]:
“The Tribunal also considers the applicant's claim that the authorities came to look for him after his departure from China implausible. The applicant stated that he did not know and did not inquire from his wife when this occurred or who were the people looking for him. Only after further questioning by the Tribunal the applicant said that they were from the police or the authorities. The Tribunal considers it implausible that the applicant would display such a lack of interest about the authorities' search for him and that he would not ask such fundamental questions of his wife.”
The Tribunal considered the applicant's association with Christianity and his Christian activity in Australia. It accepted Dr Park's written and oral evidence about his attendance at the Chinese Christian Church since December 2005, but continued at [CB184]:
“However, in light of the Tribunal's finding about the lack of applicant's commitment to Christianity in China, the Tribunal is not satisfied that the applicant had engaged in religious practice in Australia, otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention. The Tribunal disregards such conduct in accordance with s.91R(3).”
The Tribunal also considered what the applicant might do in connection with his practise of Christianity should he return to China. It came to the view that if the applicant would engage in religious practice upon his return he would be able to do so in the official church at [CB185]:
“The Tribunal makes this finding not because it expects the applicant to modify its conduct [sic] to avoid persecution but because the Tribunal considers this to be the consistent [sic] with the level of the applicant's religious involvement and interest. No modification of the applicant's conduct will be required for his attendance at a registered church.”
Finally, the Tribunal considered the applicant's alleged fear of returning to China because he had travelled to this country on a false passport. The Tribunal concluded that any problems that the applicant might suffer as a result would not constitute persecution within the meaning of s.91R(1)(b) of the Act and noted that in any event "harm" would not constitute persecution if the law was one of general application and was not enforced selectively for a convention reason or with persecutory intent.
The application filed by the applicant in this Court just seeks a protection visa and states that the applicant wishes to appeal the RRT decision because he could not go back to China, his life would be in great danger. He has not filed any amended application providing any ground for saying that the Tribunal fell into jurisdictional error in the manner in which it reached its decision and today was unable to provide the Court with any assistance in that regard.
As Mr Reilly points out in his helpful written submissions the applicant failed to convince the Tribunal that he was a refugee because of the views held by the Tribunal about his credibility, a matter which is within the fact finding powers of the Tribunal and difficult to review: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I am satisfied that the findings made by the Tribunal in regard to the applicant's credibility were open to it for the reasons which it gives and this would exclude review by this Court W148/00A v Ministerfor Immigration (2001) 185 ALR 703 at [64]-[69].
The Tribunal provided the applicant with a detailed letter under s.424A of the Act [CB144] in which the matters of concern to the Tribunal that have been extracted in these reasons were set out and the applicant was asked for his comments. I am satisfied that the letter indicated to the applicant why these were matters of importance and what effect they might have upon the Tribunal's decision. In these circumstances there does not seem to me to be any ground upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it came to its decision and I am therefore obliged to dismiss the application, which I do.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 3 December 2007