SZMFE v Minister for Immigration
[2008] FMCA 1129
•30 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1129 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Christian – disbelieved by Tribunal – no arguable case for relief – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b) |
| SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 |
| Applicant: | SZMFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1108 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 30 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
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 1108 of 2008
| SZMFE |
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 August 2007, and lodged an application for a protection visa on 17 August 2007 with the assistance of a migration agent. Her application explained her reasons for claiming protection against return to the People’s Republic of China.
She claimed that she had been introduced to a Christian house church by her mother, and from August 2003: “I gradually believe in God. I attended their gathering and read the Bible”. In November 2004 she had been arrested with her mother and the organiser of the church by the police, and detained for seven days. The organiser had been sent to a reform camp for one year. She claimed to have been dismissed from her employment as a result in December 2004.
She claimed to have continued with her mother in attending the Christian services, and to have visited Pakistan in 2007 for five months where she “spread Gospel to them too”. She claimed that she feared that if she returned to China she would be put in gaol for one year, like the organiser.
No corroboration for these claims was presented to the Department, nor on appeal to the Refugee Review Tribunal. A delegate refused the application on 2 November 2007, suggesting, in particular, that the travel shown in her own passport indicated that the Chinese authorities had no interest in her prior to her departure, nor if she returned.
On appeal, the applicant attended a hearing held by the Tribunal on 6 February 2008, and was questioned by the Tribunal about her claims and her knowledge and commitment to Christianity. The Tribunal gave the applicant an opportunity to respond after the hearing in writing to some of its concerns about her evidence, and she did so.
In a decision handed down on 25 March 2008, the Tribunal affirmed the delegate’s decision. The Tribunal commenced its “Findings and Reasons” with the following paragraph, explaining generally why it did not find the applicant to be credible or truthful:
The Tribunal does not find the applicant to be a credible or truthful witness for the following reasons. The evidence which the applicant has given at various times has been contradictory and inconsistent. She has given two different versions of her employment in China prior to coming to Australia. She has given two different versions of the length of time she was held in detention in China. The Tribunal notes that she has explained that these inconsistencies are due to her being mixed up and that she meant one week, not one day. However, the Tribunal did not note any undue nervousness on the part of the applicant. She gave ready answers to all questions asked. She did not appear to have any problem in understanding the questions put to her and made no comment that she was unable to understand. She is a well educated woman, who had professional employment in finance and accounting in China. The Tribunal has formed the view that the inconsistent evidence is not due to the applicant having mixed up her answers as she asserts.
The Tribunal said that, in view of the applicant’s claims to have been involved in the Christian religion, attending gatherings and reading the Bible, it would expect that she would have a reasonable knowledge of the basic people and events associated with the Christian religion found in the Bible. It said:
However, she showed a very significant lack of knowledge about the Christian religion when asked about basic Christian beliefs by the Tribunal. She incorrectly named the four Gospels. She could only name one of the twelve Apostles. She was unable to tell the Tribunal what saints were. She gave incorrect information as to what is celebrated at Christmas, saying it was “Jesus Christ being betrayed by Judas”. She was unable to nominate Joseph as the father of Jesus on earth, stating, with considerable hesitation, “Adam” and “Eve”. She was unable to tell the Tribunal a story from the Old Testament.
The Tribunal said that it did not accept that she was a Christian in China, and it referred to other aspects of her evidence where there was inconsistencies or implausibility which caused it to disbelieve her.
The Tribunal assessed the applicant’s evidence about practising her religion in Australia and, in particular, as to her attendances and claim to have regularly attended a church. However, it found that she had travelled to a church only with her migration agent on a couple of occasions, and had not attended subsequently. It found she was not a regular attendee at the church, and gave reasons for that finding.
The Tribunal referred to s.91R(3) of the Migration Act 1958 (Cth) (numbering added):
1.Under the provisions of s.91R(3) of the Migration Act 1958, when determining whether a person has a well founded fear of being persecuted for a Convention related reason any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.
2.The Tribunal is not satisfied that the applicant attended church in Sydney otherwise than for the purpose of strengthening her claim to be a refugee.
3.Given that the Tribunal is not satisfied that the applicant has practiced as a Christian in China; and that her church involvement in Australia was solely for the purpose of strengthening her claims as a refugee, the Tribunal is not satisfied that the applicant would practise as a Christian if she returns to China.
4.For completeness, the Tribunal considered the applicant’s evidence about her daughter in China, in relation to her father’s treatment of her and the grandparents’ refusal to allow her to be with the applicant. However, the applicant made no specific claims of ahem [sic] or persecution in relation to her daughter.
5.The Tribunal has considered the applicant’s claims independently and cumulatively. The Tribunal finds that the applicant has not suffered harm and does not have a well‑founded fear of serious harm on the basis of her religion. It has disregarded her religion related conduct in Australia as it is not satisfied that she engaged in that conduct otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal does not accept that she will practice the Christian religion on her return to China.
6.In summary, on the basis of the evidence as a whole, the Tribunal does not accept that there is a real chance of the applicant suffering Convention‑related harm in China in the reasonably foreseeable future. It follows that the Tribunal does not accept that she has a well‑founded fear of being persecuted in the relevant sense.
The application to this Court asks it to set aside the Tribunal’s decision, and to remit the matter to the Tribunal. The application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been given the opportunity to file an amended application showing better arguments and evidence supporting her arguments, after receiving a bundle of relevant documents and free legal advice. The applicant has, however, not filed an amended application or evidence.
Her application presents the following two grounds:
1.Jurisdictional error has been made. I explained the doubts but RRT did not accept the reason.
2.Procedural Fairness has been denied RRT.
The first ground does not explain the jurisdictional error which is alleged, except in a manner which suggests that the applicant’s complaint concerns the merits of the Tribunal’s decision only. However, it is not the function of the Court to decide whether the Tribunal’s decision was correct on its merits.
The second ground alleging procedural unfairness has not been explained at all, and I am unable to identify any arguable basis for finding that the Tribunal conducted its proceedings in an unfair way or otherwise contrary to procedures required by the Migration Act.
In her submissions to me today, the applicant suggested that she had difficulties at the hearing understanding the interpreter, and due to her nervousness. A similar complaint was made to the Tribunal in the applicant’s post‑hearing written submission, and the Tribunal addressed it in its opening paragraph which I have extracted above. The applicant has presented no evidence by way of transcript or otherwise to give support to her criticism. I am not satisfied that she has raised an arguable case relating to these matters.
The applicant’s other submissions attempted to persuade the Court as to the truth of her claims to be a refugee. However, as I have explained to the applicant, it is not my function to make a decision about that.
I raised with the representative of the Minister the Tribunal’s discussion in which it purported to apply s.91R(3). Such reasoning now needs to be considered in the light of the Full Court’s judgment in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105, which was given after the present Tribunal’s decision.
It is clear that the Tribunal was not satisfied as to the motives of the applicant’s conduct when attending church in Sydney, and that it therefore did not make a finding about that conduct in terms of s.91R(3)(b). Accordingly, applying SZJGV, it was not entitled to take into account the applicant’s conduct in Australia whether negatively or positively when making its determination of her refugee status.
A possible doubt about this might arise from para.3 of the extract above, where the Tribunal referred to being “not satisfied that … her church involvement in Australia was solely for the purpose of strengthening her claims as a refugee”. However, in my opinion, read carefully, I think the Tribunal has become tangled in its negatives, and that there is clearly a “not” missing between “was” and “solely” in that phrase. The Tribunal in that paragraph was applying its finding in the preceding paragraph, to explain a consequence of its being bound to disregard the applicant’s conduct in Australia. Any uncertainty as to this, in my opinion, is resolved by the Tribunal’s clear and unequivocal statement in para.5 that it had “disregarded her religion related conduct in Australia”. In my opinion, there is no reasonable prospect in this case of the Court being able to conclude that the Tribunal made an error such as was found in the three cases addressed in SZJGV, of taking into account conduct in Australia as a negative factor in its determination of refugee status.
For the above reasons, I am not persuaded that the present application raises any arguable case for the giving of the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 August 2008
0
1
0