SZMCC v Minister for Immigration
[2008] FMCA 877
•17 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 877 |
| MIGRATION – RRT decision – Chinese applicant claiming fear as ‘Shouter’ Christian – 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) |
| Applicant: | SZMCC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 724 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 17 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms D Attard |
| 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 724 of 2008
| SZMCC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in February 2007. On 23 March 2007 he made an application for a protection visa against return to the People’s Republic of China. An attached statement said that he had travelled on a visitor’s visa to visit his son, who was studying in Australia. However, he claimed that he would suffer persecution if he returned to China, because he was a believer “of Shouters Group in China”.
He claimed to have been introduced to that group in 1996 by a customer at his work, who gave him “some publication written by Lord Li Chang Shou and the bible”. He was introduced to other believers and they “taught me many knowledge of the Shouters Group”. They kept their activities underground, but in 1997 one believer was arrested and they then stopped their religious practice. However: “in year 2005 we thought that government’s monitoring was no longer tough. So we reunited and founded a small group of about 12 believers, I was the coordinator of the study group. … At the end of July last year (2006), we were practicing in Brother Yu’s home and police broke into the house”. The applicant and others were taken into detention, and later released on reporting conditions. He was threatened that if he continued to practice he would be sent to gaol. The applicant said that he then thought it was “convenient to apply for a visitor visa to be free from the government’s mistreatment”.
No support for these claims was presented to the Department of Immigration. A delegate refused the application on 23 June 2007. The delegate found that there were a number of factors “which casts serious doubts on the credibility of his claims, and the genuineness of his claimed fear of Convention related persecution”. The delegate referred to some of those matters.
On appeal, the applicant attended a hearing held by the Tribunal on 4 September 2007. He was questioned about his claims, and various concerns in relation to the consistency of his evidence were put to him by the Tribunal. The Tribunal also tested his involvement in the Shouters Group against general information about the practices and beliefs of that group. Its concerns that some of his evidence was inconsistent with that general information were also put to the applicant.
All these concerns were again put to the applicant in a letter inviting his comments sent to him on 12 October 2007. The letter invited a response by 6 November 2007, but no response was ever received.
The Tribunal handed down its decision on 21 February 2008. It affirmed the delegate’s decision. It said:
The Tribunal did not find the applicant to be a truthful or credible witness. The Tribunal did not accept the applicant’s claim that he was a member of the Shouters Church. In reaching this view the Tribunal has had regard to the significant inconsistencies between his written claims and the oral evidence, internal inconsistencies in his oral evidence and inconsistencies with independent country information as well as the other reasons as detailed below.
The Tribunal then identified numerous such inconsistencies. Some of these were of a minor nature, but gained significance when viewed cumulatively. In the course of its reasoning, the Tribunal considered the applicant’s explanations for inconsistencies which he had given at the hearing. In my opinion, it was clearly open to the Tribunal to arrive at a conclusion that they were “a result of the applicant’s attempts to manufacture claims of persecution where none has actually been suffered or is actually feared”.
The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would be perceived as a member of the Shouters Church by the Chinese authorities, nor that he had a well‑founded fear of persecution because of any involvement with the Shouters Church or for any other Convention reason, should he return to China.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. He has been given an opportunity to amend his application and present further evidence, after receiving a bundle of relevant documents and legal advice under the free referral scheme. He has, however, not filed any additional documents and relies on his original application.
This contains the following two grounds:
1.The RRT decision was affected by jurisdictional error.
The applicant claims that he left China because of the governmental persecution due to my Christianity. He provided oral evidence before the hearing and the Tribunal found inconsistencies among the evidence he gave at the hearing and the evidence he gave to the Department.
The applicant explained that he could not speak English well so he asked a friend to prepare my visa application. The friend did not put in his claims properly.
2.The applicant claimed the Tribunal failed to invite him to comment on adverse information.
The particulars under Ground 1 do not articulate any arguable jurisdictional error. The Tribunal was not obliged to accept the applicant’s explanations for the inconsistencies it detected. It considered all his evidence and, in my opinion, there is no arguable ground that the Tribunal’s conclusions were not legally open to it. Under the Migration Act 1958 (Cth) it is the duty of the Tribunal and not the Court to assess whether refugee claims should be believed.
Ground 2 in the application is plainly untenable, since the Tribunal did invite comments from the applicant on its concerns, both at the hearing and in its written letter. No particulars of any argument have been presented to the Court which give content to this ground, and I am not satisfied that there is any arguable ground that the Tribunal failed to follow some procedure required by law.
The applicant attended today, but sought only to explain why he thought his application had been poorly presented to the Tribunal due to his difficulties understanding a foreign country. However, his points did not provide any argument which might give the application any prospects of success.
I am not satisfied 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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 June 2008
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