SZLPM v Minister for Immigration
[2008] FMCA 115
•6 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 115 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 417, 424A |
| Applicant: | SZLPM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3405 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3405 of 2007
| SZLPM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 9 October 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her asserted Christian faith and a motor vehicle accident in China which resulted in the death of her husband. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 29 January 2008. I adopt as background for the purposes of this judgment paragraphs 2 to 4 of those submissions:
The applicant, a citizen of the People’s Republic of China (“China”), claimed that following her husband’s death in a motor vehicle accident, she was denied any support or compensation from the authorities and had great difficulty supporting her family. She then claimed that she came into contact with and gained support from “friendly Christians” and began to attend Christian gatherings. She was baptised in May 2006 and suffered persecution as a result of her Christian activities. In October 2006, the applicant was arrested and detained for one month by the Public Security Bureau (“PSB”). See generally court book (“CB”) 25 - 30.
On 14 August 2007, the Tribunal invited the applicant to appear before it to give oral evidence and present arguments as it was unable to make a favourable decision on the materials before it. The applicant responded to the invitation and appeared at the hearing on 24 September 2007. CB 52 – 55, 62.
The Tribunal considered the claims of the applicant but rejected them on the basis of adverse credibility findings. The Tribunal found that the applicant’s evidence “lacked cogency” and was “vague and internally inconsistent about important matters”, such as where and when she was detained and her family’s continuing involvement with the underground church: CB 79.2-79.7. Having regard to all the inconsistencies and vagueness in her account, the Tribunal could not be satisfied that the applicant was a Christian in an underground church in China, nor that she was detained by the police for any reason relating to religion: CB 80.3. Whilst the Tribunal was sympathetic as to the applicant’s circumstances, it found that the difficult social and economic circumstances following her husband’s death did not constitute persecution attributable to the Convention: CB 80.5. Finally, the Tribunal found that the applicant had attended Church in Sydney merely for the purposes of strengthening her claim to refugee status and as such was entitled to disregard her conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 80.4.
The applicant relies upon her show cause application filed on 5 November 2007. That is supported by a short affidavit annexing the decision of the Tribunal. I also have before me as evidence the court book filed on 5 December 2007. The application asserts a breach of s.424A of the Migration Act in relation to country information. It further asserts a failure to deal with an integer of the applicant's claims and identifies both her claim based on religion and her claim based on the death of her husband.
Both parties took the opportunity to file written submissions. I have already referred to the Minister's written submissions filed on 29 January 2008. The applicant's submissions were filed on 31 January 2008. They purport to raise two additional issues. The first is an assertion that the Tribunal failed to consider important evidence relating to the applicant's claim based upon her religion. The submissions seek to draw a distinction between the official church in China and unofficial churches. The submissions further assert that the Tribunal failed to consider the applicant's evidence fairly and properly. The particulars draw attention to the applicant's psychological state following the death of her husband.
There is no substance to any of the grounds raised by the applicant. The Tribunal decision is based essentially on the applicant's own evidence. To the extent that the Tribunal decision was also supported by country information referred to by the Tribunal, the disclosure of that information was not required pursuant to s.424A. Neither did the Tribunal overlook any element or integer of the applicant's claims. The Tribunal's decision, commencing on CB 69, appears to deal thoroughly with those claims. The distinction between the official and unofficial churches in China was not material to the outcome of this case because the applicant's claim to have been a Christian in China in any church was rejected on credibility grounds (CB 80).
The Tribunal took into account the applicant's claim based upon the death of her husband and accepted that her husband's death led to a period of considerable emotional suffering for her and it caused her financial hardship (CB 79). However, there was no Convention nexus between that accident and the Refugees Convention. Although the applicant asserted during the course of oral argument today that there was a connection between her Christian faith and the accident, she explained that it was the accident that caused her to become a Christian. It would logically follow that her Christian faith could not have been a factor in the accident itself.
The applicant was emotionally upset during the course of today's hearing. She is genuinely distressed that she was not believed by the Tribunal. However, her concern is with the outcome of her case before the Tribunal and the adverse credibility findings. In the absence of jurisdictional error, the Court cannot interfere with those findings. I advised the applicant of the opportunity she has to seek Ministerial intervention pursuant to s.417 of the Migration Act. That is beyond the scope of this proceeding.
I accept the Minister's submissions that there is no jurisdictional error in this Tribunal decision. It follows that the decision is a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event in this case. Scale costs would be $5,000. The Minister seeks $2,600. The applicant said that she would be unable to pay such an amount. However, the issue for me is whether the costs claimed have been properly and reasonably incurred. I have no doubt that the costs claimed on behalf of the Minister have been properly and reasonably incurred when assessed on a party-party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 February 2008
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