SZLMH v Minister for Immigration - [2008] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 392

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – disbelieved by Tribunal – application dismissed for non appearance at show-cause hearing – application to set aside – no arguable merit in substantive application – futile to reinstate – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

Applicant:

SZLMH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3185 of 2007

Judgment of:

Smith FM

Hearing date:

18 March 2008

Delivered at:

Sydney

Delivered on:

18 March 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms D Attard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 22 January 2008 is refused.
The applicant must pay the first respondent’s costs in the sum of $450.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3185 of 2007

SZLMH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia from the Peoples Republic of China in May 2007, and on 11 May 2007 he applied for a protection visa. His application claimed that he had often attended an underground church, after being introduced to it by his uncle in July 2002. He claimed to have read the Bible, shared God's love and followed Jesus. The applicant claimed that in July 2003, the police had taken eight brothers and sisters from the gathering to the local police station, where “we were tortured and beat badly”. He claimed that he was put in a labour reform camp for a year, and his uncle was held for a year and a half. He claimed that a friend helped him to get a passport to come to Australia.
At various times, he showed the Department of Immigration and the Tribunal a Chinese passport in his own name, and also a passport in a different name which apparently contained the visa upon which he entered Australia.
A delegate refused the application on 28 May 2007, on the ground that his claim was not substantiated.
The applicant appealed to the Tribunal, and attended a hearing held by it on 17 August 2007. He provided a certificate to show that he had been baptised at a Sydney Anglican church in July 2007. He told the Tribunal that he had been introduced to Christianity in 2002, but he showed only a limited knowledge of the gospels and of Christian beliefs.
After the hearing, the applicant sent the Tribunal a letter asking for a further hearing, because “when I faced you for interview, I was very tired. My brain was empty”. He also sent a letter from the Anglican church, which noted that he had attended its Mandarin worship service, and said: “he expresses great desire to become Christian and to join the Church as communicant member”.
The Tribunal handed down a decision on 20 September 2007, affirming the delegate's decision. In its statement of reasons, it explained why it did not accept the applicant's claims to have been persecuted for attending an underground church in China. The Tribunal said the applicant's evidence had been vague and lacking in detail, and that he had displayed: “a limited and superficial knowledge of Christianity and Christian religious practice at the Tribunal hearing, despite his claims that he had been a committed practising Christian since 2002.” It thought that his responses at hearing “appeared to be rehearsed and he was unable to provide detailed answers” to demonstrate a knowledge of Christianity.
The Tribunal specifically addressed the applicant's claim in his post hearing letter to have had some memory problems at the hearing, and his request for a second hearing. It said:
The Tribunal has had regard to the applicant’s evidence that he knew more about Christianity and the Bible, but he had memory problems due to being bashed while in a labour camp. The Tribunal has also had regard to the applicant’s letter in which he states that he was not feeling well on the day of the hearing and therefore could not answer the Tribunal’s questions properly. The Tribunal does not accept these claims. The applicant has presented no medical evidence to demonstrate that he suffers from memory problems that would impair his ability to talk about his claimed Christian beliefs. Nor has he provided any medical evidence to demonstrate that he was not competent to give evidence on the day of the Tribunal hearing. In addition, the applicant had no difficulty remembering other aspects of his life in some detail and giving evidence and dates about where he had worked, lived and the claimed date he was detained. Some of these events related to matters that occurred many years ago, while the Tribunal’s questions about the applicant’s Christian beliefs and everyday practice, would form a key part of his current everyday life if he was in fact a committed Christian.
The Tribunal has had regard to the applicant’s request in his letter for a second hearing. The Tribunal has declined to grant the applicant’s request. The applicant had an adequate opportunity to present his case at the hearing. As stated above, he has not provided any medical evidence to demonstrate that he was not competent to give evidence on the day of the Tribunal hearing. The applicant had no difficulty remembering other aspects of his life in some detail. For these reasons, the Tribunal will not give the applicant a second opportunity to appear before it.
The Tribunal concluded:
Based on the applicant's evidence on the above key aspects of Christianity and his evidence about his Christian practice in China, the Tribunal does not accept his claims that he is a committed Christian who regularly attended underground Christian gatherings in China.
The Tribunal considered the evidence about his church attendances in Australia, and accepted that he had been baptised and attended church. However, it was not satisfied that this conduct was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal said, therefore, it was obliged to disregard that conduct pursuant to s.91R(3) of the Migration Act.
As a result of finding that the applicant was not a committed Christian, it was not satisfied that he had been detained and sent to a labour camp, nor that the Chinese authorities had been seeking him because of his religious practice. The Tribunal was not satisfied that there was a real chance that he would become involved in practicing Christianity in underground churches if he returned to China, and was not satisfied that he had a well founded fear of being persecuted for reasons of his religion.
The Tribunal expressly addressed the applicant's use of a false passport to enter Australia, but was not satisfied that this demonstrated that he was of adverse interest to the Chinese authorities because of his religion.
The principal application to this Court seeks orders setting aside the Tribunal's decision and remitting the matter for further consideration. That application was set down for a first Court date before me on 6 November 2007. The applicant attended, and I gave him a copy of the orders which I then made, and explained them to him. The orders gave him the opportunity to file an amended application and evidence about the Tribunal hearing, after receiving a bundle of relevant documents and a referral for free legal advice. My orders listed the application for a show cause hearing on 22 January 2008, and the applicant was advised that his application would be dismissed if he was not in attendance.
However, the applicant did not attend at the listing on 22 January 2008, and did not contact the Court. His application was therefore dismissed under r.13.03A(3) because of his absence.
On 22 February 2008, the applicant filed an application seeking to set aside that dismissal. The affidavit in support said “I lost my way to the hearing place on 22 January 2008”, without explaining this. It is unclear to me how this could have happened, given his attendance at the first Court date. However, the applicant has not been cross-examined, and I would give him the benefit of any doubts about his excuse for his absence, and I would have reinstated his application, if I were satisfied that he had an arguable case for succeeding in his principal application. However, I am not so satisfied.
Notwithstanding the opportunity given to the applicant to improve his arguments and to file evidence in support, he has not filed any further documents other than his original application. This contains the following grounds:
1.Jurisdictional error has bee(n) made. RRT take the cases which are against me. They did not take the successful case to support me.
2.Procedural Fairness has been denied.
3.RRT did not give me letter to explain doubts. They have no(t) much knowledge about persecution of Christians in China.
The arguments in grounds 1 and 2, that there was jurisdictional error and a denial of procedural fairness, have not been explained in any submissions or evidence. I have above explained how the Tribunal dealt with the applicant's request for a resumed hearing and his claim to have suffered memory problems. On the evidence before the Court, I do not consider that the applicant has raised an arguable case to show that the Tribunal made any jurisdictional error, when deciding to proceed to make a decision without appointing a second hearing.
The applicant has not presented any medical or other evidence to this Court supporting a suggestion that he was not able to make use of the opportunity to present his evidence and submissions to the Tribunal at the hearing which he attended on17 August 2007, as is required under s.425 of the Migration Act. Nor has he filed anything which gives arguable substance to the suggestion that the Tribunal might have appeared biased against him.
The suggestion at ground 3 that the Tribunal failed to comply with obligations under s.424A(1) has, in my opinion, not been shown to have any arguable substance. The Tribunal's reasoning was essentially based upon its rejection of the applicant's credibility, upon its assessment of the evidence given by the applicant at the hearing. In those circumstances, s.424A(1) was not engaged.
The applicant today had no argument to show jurisdictional error on the part of the Tribunal. He indicated that he sought an opportunity to present to the Tribunal further documents corroborating his refugee claims, which he hoped to obtain from China. However, this could not provide a reason for reinstating his case. Fresh evidence supporting his refugee claims would not provide a ground for remitting the matter to the Tribunal.
I have carefully considered all the material before me, and am unable to identify any arguable ground of jurisdictional error. I therefore consider it would be futile to restore the matter, and for that reason I would refuse the present application to set aside my earlier order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 31 March 2008