SZMGQ v Minister for Immigration - [2008] FMCA 1255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMGQ v MINISTER FOR IMMIGATION & ANOR

[2008] FMCA 1255

MIGRATION – Review of RRT decision – where applicant claimed protection based on religious beliefs – where Tribunal questioned the applicant regarding her religious beliefs but did not make a negative finding on that basis – impermissible merits review.

Migration Act 1958, s.424A

Applicant:

SZMGQ

First Respondent:

MINISTER FOR IMMIGATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1243 of 2008

Judgment of:

Raphael FM

Hearing date:

27 August 2008

Date of Last Submission:

27 August 2008

Delivered at:

Sydney

Delivered on:

27 August 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1243 of 2008

SZMGQ

Applicant

And

MINISTER FOR IMMIGATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 10 June 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 24 July 2007. On 15 October 2007 a delegate of the Minister refused to grant a protection visa. On 16 November 2007 the applicant applied for review of that decision from the Refugee Review Tribunal.
The Tribunal held a hearing on 30 January 2008 which the applicant attended and gave evidence. Following that hearing the Tribunal wrote to the applicant on 5 March 2008 pursuant to s.424A of the Migration Act 1958 (the “Act”) inviting her comments on information that the Tribunal considered would, subject to those comments, be the reason or part of the reason for affirming the delegate’s decision. The applicant responded through her migration agent with a statutory declaration dated 19 March 2008. On 8 April 2008 the Tribunal determined to affirm the decision and handed its own decision down on 17 April 2008.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that she was a member of the unofficial Catholic Church and had come to the notice of the police in China as a result of her activities. She told the Tribunal that she had been brought into the Church by a Ms Wang, who was a nurse in a hospital to which her son had been taken in August 2001 after a serious accident from which he died. Ms Wang provided the applicant with sympathy and understanding and the applicant began to attend the gatherings of the underground church in her home town some six months after this tragedy.
The applicant began to attend Church more regularly from January 2004. She explains her motives as being a desire to have a baby boy to replace the son that she had lost but commented [CB 85] that the effect of attending church was to provide her with love and stability. In August 2005 she gave birth to twins, one of whom was a boy.
The applicant told how she had supported the church financially from the business which she ran with her husband that was very profitable. She advised that her involvement in the church gradually came to the attention of the authorities who investigated her from February 2007. She claims to have been interrogated and had a fear of being arrested. She was released on each occasion although she indicated that she had had given a bribe to a policeman.
In May 2007 she stated that with the assistance of Ms Wang she obtained a visa to Australia and left the country in early June. The applicant claimed that on 24 June 2007 Ms Wang and five other Catholics were arrested by the PSB and that the PSB then came to her company and investigated her husband and the accountant. The husband left the town where he was living. She had communication with him on about 27 June when he provided her with this information which he claimed he obtained from the police.
The Tribunal questioned the applicant about her claims and indicated some concern about that part of the story which related to her communication with her husband and the way in which she discovered what had occurred to Ms Wang and the other members of the church [CB 91].
The tribunal asked the applicant some questions concerning Roman Catholicism, most of which the applicant appeared to be able to answer satisfactorily, and it expressed some concern as to why the applicant needed to have utilised the services of Ms Wang to get her visa and noted that this was inconsistent with information that it had received from the department, that the department had contacted the applicant itself about her visa.
All the concerns raised by the Tribunal in the hearing were then repeated to the applicant in the letter under s.424A, and the Tribunal explained in that letter why the answers which she had given might cause it to not accept her evidence as truthful leading to a belief that she was not persecuted because of her claimed religious beliefs and activities.
The applicant responded to the letter with the statutory declaration previously referred to. In its findings and reasons, the Tribunal referred to that document and considered both its concerns and her responses. One of the concerns that the Tribunal held was the applicant’s inability to recognise the Pope from a photograph.
“The Tribunal put the mis-identification of the Popes to the applicant and her response as to why she could not recognise the current Pope was because all Westerners looked the same to her. While the Tribunal is prepared to accept that she may have some difficulty recognising the average Western face, the Pope is the leader of the Church and thus would be a very important person to her. The Tribunal thus found her explanation somewhat hard to accept but, given that she could name the two Popes, it is prepared to accept that she may have been confused at the time.” [CB 100]
Another matter raised by the Tribunal and responded to by the applicant was why she did not know about the existence of registered churches in her home city. The applicant gave an explanation in respect of which the Tribunal said at [CB 99-100]:
“The Tribunal would have thought that a genuine Roman Catholic would know something about the churches of the same religion in her city. However, the Tribunal is prepared to accept that not knowing this does not necessarily mean that her claims are not true.”
The Tribunal was not so accepting of some of the other responses of the applicant, in particular those concerning the obtaining of a visa and the paying of a bribe to Ms Wang and some inconsistencies in her evidence concerning her husband and his safety. In respect to the latter matter:
“The Tribunal considered that the applicant’s evidence at hearing on this issue was vacillating and inconsistent and appeared improvised, according to the specific question asked. The Tribunal considers that her written response was an unsatisfactory attempt to best explain away a serious inconsistency without success.” [CB 101]
The Tribunal remained concerned about the explanation of how Ms Wang and her friends were arrested on the bus and how the applicant’s husband knew all about this and the applicant’s explanation for taking approximately six weeks to make an application for a protection visa:
“The Tribunal considered the truthfulness of the applicant’s claims overall. The applicant had a reasonable knowledge of the Roman Catholic religion. However, she has been unable to explain to the Tribunal’s satisfaction why she was unable at hearing to give a coherent and meaningful explanation for the difference between an unregistered and registered Catholic church and why she wished to attend an unregistered church in China.
Further, the Tribunal has identified serious implausibilities and inconsistencies in her evidence overall. This has led the Tribunal to conclude that it was implausible that Ms Wang or a friend organised an Australian visa for her and it is more likely, on the evidence before it, that she applied for it herself. Further, she has not explained to the Tribunal’s satisfaction the implausibilities and inconsistencies in her oral evidence concerning the current risk to her husband in China, the concerns as to how she found out about the details concerning the arrest of Ms Wang and her church-mates, the concerns regarding her contact with her husband while in Australia, and the concerns regarding her delay in lodging her protection visa application.
Altogether, these concerns lead the Tribunal to include that the applicant has not been truthful in her claims overall to the Tribunal. The Tribunal does not therefore accept her claims as to her practice of an underground Roman Catholic religion in China is either truthful or credible. This leads the Tribunal to conclude that she did not suffer persecution in China at any time in the past based on her religion.”
In her application for review to this court the applicant sets out in detail the matters that were raised by the Tribunal in the 424A letter stating that the Tribunal failed to consider properly and fairly her responses. There are 12 of these matters. In her helpful submissions, Ms Griffin has addressed two of the grounds raised by the applicant, the first relating to her lack of knowledge of the registered church in her home city and the second her explanation as to why she was unable to identify the Pope noting they were misconceived claims because, in fact, the Tribunal did not make a negative decision about the applicant based upon her responses. All the other matters were considered by the Tribunal and discussed by it in its reasons for decision. In reality, the applicant is asking this court to conduct a merits review which would result in the court accepting her evidence and concluding that she was entitled to Australia’s protection. This is something which the court is unable to do, as was explained to the applicant.
Before me today the applicant appeared and repeated the matters that had been well articulated in her application questioning why the Tribunal did not accept her responses and indicating that she believed this failure to accept her responses was unfair. She told me that she used to be a successful businesswoman in China who had provided funds to sponsor the activities of the church and that there was no reason for her to come to this country if that was not the truth. Leaving aside the possible motive of wishing to be with her daughter who is studying in this country and with her other relatives who are resident here, that is a question which goes to the merits of her case and not to the legality of the way in which the Tribunal reached its decision.
I am satisfied that the Tribunal was able to come to the conclusions which it did based upon available evidence, that it fully complied with the provisions of s.424A of the Act. I am unable to see how the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application and I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: