SZMBW v Minister for Immigration - [2008] FMCA 817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBW v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 817

MIGRATION – RRT decision – Chinese applicant claiming persecution for Christian activities – 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.91R(3), 424A, 424A(1), 424A(3)(b)

WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZMBW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 700 of 2008

Judgment of:

Smith FM

Hearing date:

10 June 2008

Delivered at:

Sydney

Delivered on:

10 June 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Warner Knight

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 700 of 2008

SZMBW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia on 24 April 2007, travelling on her own passport and visa. On 7 June 2007 an application for a protection visa was lodged on her behalf by an agent, Ms Priscilla Yu. A statutory declaration in English attached to the application set out the history upon which she claimed protection against return to the People’s Republic of China.
The applicant claimed that she had been introduced to a congregation of “underground” Christians in the “Local” or “Shouters Church” in March 2006. She claimed to have been baptised in May 2006, and to have converted her husband, thereby reforming his previous violent behaviour towards her. She claims she also “spread Gospel to others”, and came to be regarded by the police authorities as “one of the key members of the Local Church” who had played an important role in recruiting new members for that congregation.
She claimed to have been advised to obtain a passport in December 2006. On 17 April 2007, she attended a gathering in a religious sister’s home, when she was told by her husband on the telephone that the police had surrounded the restaurant of the congregation’s leader and had arrested about six to seven Christians. Her husband immediately arranged for her to go to Guangzhou with her brother, and then to come to Australia. She claimed that her husband had been arrested on 21 April 2007 before she left on 23 April 2007, and that “I have been confirmed that the police had actually looked for me on 21 April 2007”. She claimed that “I have found the Local Church in Australia”, but did not give details of her religious activities in Australia.
No support for these claims was given to the Department of Immigration, and the applicant was interviewed by the delegate on 24 July 2007. According to Departmental records which subsequently were sent to the Tribunal, the delegate was assisted by an interpreter, Mr Aaron Yu, who also subsequently assisted in the hearing held by the Tribunal. According to the Tribunal’s record, Mr Yu acted as an interpreter in the language of “Fuqing (Chinese)”, this being a dialect spoken in the region where the applicant comes from.
The delegate refused the visa application on 17 August 2007. In his reasons, he referred to a significant lack of knowledge about the Christian religion shown by the applicant in her interview, and said: “I have serious doubts concerning the credibility of her claims”. The delegate thought that her ability to leave China on her own passport two days after the claimed date when she was being sought for arrest, suggested that she was, in fact, not a person of significant interest to the Chinese authorities.
On appeal, the applicant attended a hearing of the Tribunal on 1 November 2007, where, as I have indicated, she was assisted by a relevantly qualified interpreter. She presented to the Tribunal a one‑line letter purporting to be signed by two “Responsible Brothers” at the Local Church in Sydney, which said: “This is to confirm that [the applicant] has been meeting regularly with the church since May 2007”.
In the course of the hearing, the Tribunal sought more information from the applicant about her history and commitment to Christianity, and it also asked her about her attendances at the Local Church in Sydney. She claimed to have attended at a venue in the city, but was vague about how she got there. She also gave other evidence, and the Tribunal brought to her attention that in the absence of supporting evidence the Tribunal might conclude that her claims were not genuine.
The Tribunal allowed the applicant more time to present such evidence. It also served on her an invitation to comment in writing upon adverse information, including the delegate’s description of his interview, and warned her about the effect of s.91R(3).
Following the hearing, the applicant’s agent forwarded to the Tribunal documents purporting to be a facsimile letter from her husband in China corroborating that she “played an important role in our village’s underground Church activities”. The agent also forwarded a statutory declaration from a person claiming to be “a Christian in the Local Church in Sydney” and to have known the applicant, and to have “witnessed personally that [the applicant] has prayed for those Christians of the Local Church in China for several times” and to have believed the history which she told him. The applicant also sought to clarify contradictions in her evidence given to the Tribunal.
By decision handed down on 26 February 2008, the Tribunal affirmed the delegate’s decision. The Tribunal addressed the applicant’s claim that she spoke a dialect described as “Fuqingness” and that this explained her unsatisfactory evidence to the delegate. However, it said that there had been no indication “at any time during the hearing” that the applicant had had any difficulties understanding the questions put to her or in giving evidence to the Tribunal “with the assistance of a Mandarin interpreter”. In this respect, the Tribunal seems to have mistaken the qualifications of the interpreter, and his probable use of the “Fuqing” dialect. However, that mistake was not material to its decision, at least, not adversely to the applicant.
The Tribunal said that it did not find the applicant to be a credible or truthful witness and gave several reasons for that opinion. They were substantially based on the evidence she had given to the Tribunal itself, where she had appeared to be speaking from a memorised statement, and was very vague on other aspects. She also contradicted herself significantly about whether she had a brother living in Australia and was living with him. The Tribunal did not accept that there had been any language issue at her interview before the delegate, and accepted that she had “showed a very significant lack of basic knowledge about the Christian religion when interviewed by the Department”.
The Tribunal was not persuaded to form a different view of the applicant by reason of the documents submitted by the applicant. It did not accept that she was a Christian or a member of the Shouters in China, nor that she was active in that religion in China.
In relation to her activities in Australia, it found that she had attended the Local Church “at some time, but not on a regular basis”. It was not satisfied in terms of s.91R(3) of the Migration Act 1958 (Cth) that her attendances had been “otherwise than for the purpose of strengthening her claim to be a refugee”. It therefore disregarded that conduct. It was not satisfied that she would practise as a Christian or a Shouter if she returned to China.
In relation to her claimed history of domestic violence, the Tribunal found that currently she “does not fear she will suffer harm for this reason should she return to China”. The Tribunal did not accept that there was a real chance of the applicant suffering Convention‑related harm in China in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. The application had been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has had the opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has not filed any additional documents, but relies on the contentions made in her original application.
The first ground contends that the Tribunal failed to comply with obligations under s.424A(1). In particular, it is argued that the Tribunal failed to give the applicant particulars of its reasons for rejecting the three corroborative documents submitted by the applicant and inviting her to comment in writing. However, this argument misconceives the effect of s.424A. The Tribunal’s reasoning about information and evidence given to it by the applicant in the course of an application is not required to be put to the applicant for written comment, because it is not “information” within s.424A(1). Even if it were, it would be excluded under s.424A(3)(b).
I therefore consider the contentions made in relation to Ground 1 are not reasonably arguable as a basis for establishing jurisdictional error affecting the Tribunal’s decision.
The second ground contends that “the Tribunal failed to consider my claims properly and fairly”. However, this contention and the argument presented in support addresses only the merits of the Tribunal’s reasoning about the statement provided from the Local Church witness in Australia. The Tribunal undoubtedly did consider the weight to be given to that statement, and it was plainly open to it to give the statement no weight as corroborative of the applicant’s history in the light of its views about her credibility (see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70]).
I do not consider that the arguments presented under Ground 2 provide a reasonably arguable basis for finding jurisdictional error.
The third ground also attacks the Tribunal’s reasoning, characterising it as demonstrating “a reasonable apprehension of bias”. However, in my opinion its reasoning provides no such evidence, but shows only that the Tribunal attempted a genuine assessment of the evidence presented by the applicant. The Tribunal’s reference to s.91R(3) can provide no support for a bias allegation, since the statute itself obliges the Tribunal to address the issue raised by that subsection.
The applicant attended today and was assisted by an interpreter who speaks her dialect. She had a written submission which was read to the Court by the interpreter, and this repeated the arguments found in the application. Her other submissions to the Court maintained the truth of what she had told the Tribunal. However, as I have explained to her, it is not my function to decide whether she is a witness of credibility.
Taking into account all that is before me, I do not consider that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 23 June 2008