SZMAF v Minister for Immigration
[2008] FMCA 601
•12 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 601 |
| MIGRATION – Refusal of protection visa – applicant claiming religious persecution in China – applicant not believed – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91, 424A, 424AA |
| Applicant: | SZMAF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 518 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald DLA Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 518 of 2008
| SZMAF |
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 29 January 2008. 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 arrived in Australia on 5 August 2007. She applied for a protection visa on 10 August 2007, making claims of religious persecution in China. The Minister’s delegate rejected that application on 31 August 2007. The applicant sought review by the Tribunal on 5 October 2007.
The Tribunal was unable to make a favourable decision on the papers, and invited the applicant to a hearing. She attended a hearing on 7 December 2007. At the hearing the Tribunal expressed serious concerns about the applicant’s lack of knowledge of Christianity, and inconsistencies in her written and oral claims. The Tribunal also put to the applicant country information concerning stringent Chinese exit controls. In its decision the Tribunal found the applicant was not a truthful and credible witness. The Tribunal took into account the applicant’s lack of knowledge about Christianity, inconsistencies in her evidence and the country information.
These proceedings began with a show cause application filed on 4 March 2008. The applicant now relies upon an amended application filed on 30 April 2008, in which she raises allegations of reliance upon irrelevant country information and a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant continues to rely upon her affidavit filed on 4 March 2008, in which she also raises an allegation of bias. I treated that affidavit as a submission. The only evidence I have before me is the court book filed on 8 April 2008.
In the course of oral argument today the applicant read from a prepared statement. The statement was simply a list of assertions of jurisdictional error. The applicant accused the Tribunal of failing to follow the Migration Act, of bias, of failing to understand the grounds of her application, of making assumptions rather than relying upon evidence, of failing to follow s.91 of the Migration Act, of unreasonableness, of failing to comply with s.424A of the Migration Act, and of depriving her of the opportunity to respond to the Tribunal’s concerns, of generally breaching the Migration Act, and of generally failing to follow due process.
In the absence of particulars, all of these allegations are meaningless. On my reading of the available material, there is no substance to any of them. Nor is there any substance to the claims in the amended application and the affidavit.
The Tribunal did not rely upon any information that required disclosure pursuant to s.424A of the Migration Act. The Tribunal decision turned upon serious inconsistencies between the applicant’s written and oral claims, the lack of credibility of her oral evidence and the country information about stringent Chinese exit controls. None of that required disclosure pursuant to s.424A.
I note further, from pages 80 to 82 of the court book, that the Tribunal embarked upon a course of oral disclosure at the hearing, pursuant to s.424AA of the Migration Act. It may strictly have been unnecessary for the Tribunal to follow that course in relation to the issues raised, but the course followed was a prudent one in order to ensure procedural fairness. The Tribunal invited the applicant to provide written comments in reply to its concerns, but no response was received from the applicant.
In my view the Tribunal did at least what was expected of it in order to ensure that the hearing opportunity given to the applicant was a meaningful one. There is no substance whatever to the allegation of bias. The Tribunal’s analysis of the applicant’s claims was thorough, objective and fair. It is true that the Tribunal put to the applicant probing questions about her Christian faith. Some of those questions, if considered in isolation, might be a cause for concern. For example, on page 80 of the court book, the Tribunal records that the applicant was asked when Jesus was born. The applicant did not know. The correct answer would have been that no one knows. There is no historical record of Jesus’ birth at any particular time. The answer that the Tribunal apparently expected was Christmas Day. Indeed, when prompted about Christmas, the applicant said that Christ was born at Christmas. However, that was simply a date arbitrarily selected by the Emperor Constantine in the 4th Century, based upon a pre-existing pagan festival.
The applicant was also asked who Jesus’ father and stepfather were. His family antecedents are, according to the bible, highly unusual, and the use of the expression “stepfather” may have been confusing. However, considered generally, the Tribunal’s questioning about the applicant’s faith was fair. Her knowledge of Christianity was, at best, superficial. The applicant even laboured under the misapprehension that Jesus lived in Italy.
I conclude that there is no arguable case of jurisdictional error in the Tribunal decision. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application, having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant raised several issues, but nothing in relation to costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 May 2008
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