SZMNT v Minister for Immigration
[2008] FMCA 1471
•21 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1471 |
| MIGRATION – RRT decision – Chinese applicant claiming religious persecution – 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), s.91R(3) |
| Applicant: | SZMNT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1866 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 21 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms C Kelso |
| 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 1866 of 2008
| SZMNT |
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 December 2007. She has a daughter studying here. On 1 February 2008 she lodged an application for a protection visa against return to the People's Republic of China.
An attached statement claimed that she had often attended a house church gathering with her father. She persuaded her husband to attend with her, and:
On Easter Sunday, April 11, 2006, my father led Sister L and me to next village to spread Gospel. Unfortunately, we were caught by the local police and detained at local police station.
The applicant claimed that she was then interrogated, and that her father was tortured and subsequently died in hospital. She claimed to have been warned by police not to appeal to higher authorities, and that she then obtained an Australian visa and accompanied her daughter to Australia. She claimed to attend a Sydney church “every Sydney [sic: Sunday]”.
A delegate of the Minister interviewed the applicant, and on 5 March 2008 refused the visa application. The delegate formed the opinion that she was “not a committed Christian who attends church regularly or has any prominent or organisational role in her church”. The delegate thought that the applicant's chance of persecution on account of her religion was no more than “within the realm of speculation, and at best, remote, and therefore not well-founded”. The delegate noted that she had been able to depart China in a lawful manner using her own passport, and thought that this suggested that she was not of interest to the authorities.
On appeal to the Tribunal, the applicant attended a hearing on 13 June 2008. The evidence she gave is set out by the Tribunal in its statement of reasons, and I have no reason not to accept its description. The applicant has been given the opportunity to file a transcript, but has not done so.
At the hearing, the Tribunal explored the claims she had made in writing and in the course of her interviews by the delegate and by the Tribunal, discussing some contradictions with her. The Tribunal attempted to explore the applicant's knowledge and commitment to Christianity, but was unable to obtain any responses to show this. Some direct questions elicited only some imperfect knowledge of the disciples of Jesus Christ and the books of the Bible. The Tribunal also explored the applicant's attendances at church in Australia, and her travel from China. The applicant declined an opportunity to make further responses to the Tribunal after the hearing.
On 24 June 2008, the Tribunal handed down a decision affirming the delegate's decision. The Tribunal did “not accept that the applicant had an association with an underground or "family" Christian Church, particularly a church of which her father had been an active leader”. It did not accept that she and her father had been arrested, and that her father had died as a result of mistreatment. It did not accept that she had an adverse profile with the PRC authorities.
Essentially, these conclusions relied upon some inconsistencies which the Tribunal identified, between her written claims and her oral evidence, and upon her lack of knowledge of Christian theology. In considering the latter, the Tribunal took into account the applicant's claim at the hearing that she had been nervous, and therefore unable to answer questions about her religion. However, it was not persuaded by this.
I have considered the Tribunal's reasons, and no arguable jurisdictional error appears on the material before me.
The applicant's application asks that the Tribunal's decision should be set aside and the matter remitted to the Tribunal. It was set down today to consider whether an arguable case for the making of these orders has been raised. The applicant has been given an opportunity to file an amended application and further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, she has not filed any additional documents.
Her original application contains the following two grounds:
1.Jurisdictional error has bee(n) made. RRT did not use favourable cases to my application.
2.Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am devoted Christian.
The argument presented in the first ground is entirely unexplained, and I am unable to give it any meaningful content. Nor am I able to identify any arguable breach of obligations of procedural fairness on the Tribunal arising under any provision of the Migration Act, as alleged in ground 2.
The complaint in ground 2, that the Tribunal failed to address a “potential sur place claim” has, in my opinion, no arguable merit. The Tribunal did consider the applicant's evidence about attending a church in Sydney and obtaining a Bible. However, it formed a positive opinion that this had been done “solely for the purpose of strengthening her claims for protection”. The Tribunal, therefore, disregarded that conduct, as it was required to do by s.91R(3) of the Migration Act. The complaint made by the applicant, therefore concerns a matter where the Tribunal has clearly performed its obligations according to law.
The applicant today repeated to the Court her explanation for the inadequacies in her evidence which she also gave to the Tribunal, as being her "nervousness". However, the Tribunal considered this explanation, and was not persuaded that it adequately explained the problems with her evidence. I do not consider that any arguable jurisdictional error arises in relation to that matter.
On all the material before me, I am not persuaded that the application raises an arguable case for the relief it claims. I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 24 October 2008
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