SZLJD v Minister for Immigration - [2007] FMCA 2142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2142

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – 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(1), 424A(3)(a), 424A(3)(b), 425

Applicant:

SZLJD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2949 of 2007

Judgment of:

Smith FM

Hearing date:

18 December 2007

Delivered at:

Sydney

Delivered on:

18 December 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2949 of 2007

SZLJD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia, where she has a brother who is studying. She arrived using a passport with an Australian visa which had been issued to a different person, and with the applicant’s photograph substituted. With the assistance of an agent, Priscilla Yu, she lodged a protection visa application claiming to be a different person, with a name shown in a Chinese identity card. A typed statement set out her claims to fear persecution if she returned to the People’s Republic of China.
The applicant claimed that she had been introduced to Christianity and became a member of an underground Christian church, while she was studying at school. She claimed to have joined her teacher’s bible study group, and helped distribute “religious propaganda materials supplied by some churches in the overseas such as Taiwan, Malaysia, or United States”. She claimed to have been arrested once by the police from the Public Security Bureau (“PSB”), who confiscated her bible and all of her religious propaganda material. She was detained again in February 2006, and was mistreated by police. However, she continued to organise religious propaganda material for distribution and, when she began to teach in a kindergarten, she introduced her children to stories about the bible, although she was warned to stop.
She claimed that in November 2006, a classmate was arrested, and confessed to the PSB about the bible study group. She was not herself arrested, because she was not at the kindergarten when the police came. She said that she “went for hiding in a secret place. Since then, the police have many times gone to my home, my vocational school, and [the kindergarten] for me; and I have become the target of the PRC authorities”. She claimed: “It was definitely impossible for me to leave my country with my genuine identity”.
No support for these claims was given to the Department nor to the Tribunal, although the applicant presented to the Tribunal a letter from a minister of a Congregational church in Sydney, which said that she had been attending his church and was “a committed Christian”.
A delegate refused the application on 21 March 2007, and his decision was affirmed by the Tribunal in a decision handed down on 28 August 2007.
The Tribunal considered evidence given by the applicant at a hearing which she attended. It accepted that she had entered Australia on a passport in a different name, but noted that this “could conceivably relate to the visa(s) it contained and not relate to anything else”.
The Tribunal found that the applicant had some Christian knowledge “consistent with having been attending a church for several weeks or months at least”, but was not satisfied that her religious knowledge or involvement pre‑dated her arrival in Australia. The Tribunal said that her evidence had comprised many confusions and inconsistencies. It said her evidence concerning her involvement in an unregistered church in China had been “quite vague and unimpressive”. It found implausibility in aspects of her story, and inconsistencies and implausibility about her claimed activities at the kindergarten. It concluded:
Because of the extent of the Applicant’s lack of reliability in the present matter, the Tribunal does not accept that the Applicant’s involvement with the church in Padstow is genuine. In the event, say, that it does involve some element of sincerity, the Tribunal is not satisfied that this means the Applicant would choose to belong to an unauthorised church in the PRC. The Tribunal is not satisfied on the evidence before it that the Applicant draws any genuine, principled distinction between authorised and unauthorised churches in the PRC. The Tribunal is not satisfied that the Applicant would avoid belonging to an unauthorised church in the PRC in order to avoid persecution, but [sic: finds] that she has no genuine, principled reasons for being attracted to unauthorised churches in the PRC.
In view of the unreliability of the Applicant’s claims about her involvement in an underground church in the PRC, the Tribunal gives no weight to her claimed reasons for using the passport on which she traveled to Australia. The Tribunal is not satisfied that the use of that particular passport adds any weight to the Applicant’s case.
The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back to the Tribunal to reconsider her refugee claims. Her application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend the grounds of her application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice.
She has not filed any further documents, in particular, a transcript of the hearing held by the Tribunal or other evidence in support of her application.
She relies upon the arguments set out in her original application. It contains six particulars of general allegations of error of law and procedural error amounting to jurisdictional error. The particulars are:
1.The Tribunal made its finding based on incorrect information and completely wrong evidences.
-I have never given the evidence at the Tribunal’s hearing or another occasion that I “…did not use the passport to travel from the PRC proper to Hong Kong SAR…”; and I have never said that I was “…smuggled across the border in Hong Kong…”.
-My evidences given at the Tribunal’s hearing was that I had followed a person who had taken me from PRC to Hong Kong; and the passport, which I used to enter Australia, was in his hand during the trip from PRC to Hong Kong. The person used the passport to make me depart from China and enter Hong Kong; because he had special contacts with officials at the customers both in China and in Hong Kong. The person did not give me the passport until I had prepared to leave for Australia in Hong Kong.
2.The Tribunal made its finding based on nothing apart from its assumption.
-The Tribunal accepted that I have “…some scriptural knowledge…”; but made a finding, based on nothing apart from its assumption, it was “…consistent with having been attending a church for several weeks or months at least…”.
-However, significant evidence is that if I had obtained my scriptural knowledge only owing to my attending church in Australia, then how could I impress my “pastor in Sydney with” my “diligence”?
3.The Tribunal made its finding based on its poor knowledge about the difference between official church and unofficial church in China.
-The core issue between official church and unofficial church is whether or not there is any genuine freedom of religion and whether or not there is any genuine independent religious practice. It is obviously not the issue of “teaching”, but the one in relation to “freedom” and independency”.
4.The Tribunal has obviously misstated or distorted my evidences.
-I have never accepted the allegation of “…In a body of evidence comprising many confusions and inconsistencies…”. I strongly believe that my evidences have been misstated or distorted.
5.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
-The Tribunal has never provided me particulars of the information that it has considered as a reason or part of reason in making its finding; and the Tribunal has never ensured me to understand that it would be in relation to my review application; and the Tribunal has never invited me to comment on it.
6.The Tribunal failed to comply with her obligations under s.425 of the Act.
-The Tribunal did not give me a genuine opportunity to give my oral evidences or to present my argument against the issue arising from the review. On one hand, the Tribunal many times interrupted me at the hearing before it; and on the other hand, the interpreter at the hearing was able to interpret some of my important evidences properly and accurately.
I never ever believe that my application has been assessed by the Tribunal, fairly and properly.
(emphasis in original)
The first particular appears to argue with the Tribunal’s description of the applicant’s evidence at the hearing concerning her departure from China and Hong Kong. However, no transcript has been put before the Court to show that the Tribunal made any errors. Moreover, in my opinion the errors which are contended go only to the merits of the Tribunal’s consideration of the matter, and do not raise any arguable jurisdictional error.
In my opinion, the second, third, and fourth particulars make contentions arguing only with the Tribunal’s assessment of the applicant’s evidence and with its use of independent country information. I do not consider that they raise arguable jurisdictional errors.
Particulars 5 and 6 repeat a frequently seen precedent, which lacks any particulars making the contentions referrable to the particular matter. For myself, I am unable to identify any arguable breach of s.424A(1) of the Migration Act 1958 (Cth). In my opinion, the Tribunal drew clearly only upon evidence given by the applicant to it at the hearing and general information not specific about the applicant. That material is excluded from obligations under s.424A(1) by s.424A(3)(a) and (b).
The contentions about failure to comply with s.425 of the Migration Act are given no particularity, nor any substance by any evidence or submissions of the applicant. I can find no arguable substance in them on the material before me.
The applicant herself today read to me a submission which repeated the grounds set out in the application without revealing further arguments. I have been unable for myself to identify any arguable jurisdictional error.
In my opinion, the application does not raise an arguable case for the relief claimed and it is appropriate to dismiss the application under Rule 44.12(1)(a).

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

Associate: Lilian Khaw

Date: 10 January 2008