SZMNU v Minister for Immigration - [2008] FMCA 1681

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1681

MIGRATION – Review of decision of RRT – where applicant claimed persecution as a benefactor and not an adherent of the Shouters religious sect – where applicant provided inconsistent evidence to the delegate and Tribunal – where Tribunal sent s.424A letter – whether applicant effectively seeking merits review.

Migration Act 1958 (Cth), s.424A

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v The Commonwealth (1999) 197 CLR 510
SZATG v Minister for Immigration [2004] FCA 1595

Applicant:

SZMNU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1872 of 2008

Judgment of:

Raphael FM

Hearing date:

5 December 2008

Date of Last Submission:

5 December 2008

Delivered at:

Sydney

Delivered on:

5 December 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1872 of 2008

SZMNU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 14 September 2007 and who applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 29 October 2007. On 25 January 2008 a delegate of the Minister refused to grant a protection visa and on 22 February 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 16 June 2008 determined to affirm the decision under review. It handed that decision down on 24 June 2008.
The applicant claimed that he was entitled to the protection of Australia for the convention ground of religion/imputed political opinion because in about October 2005, having been deeply moved by the experience of a close friend whose brother had been rescued from a serious drug habit by the efforts of a local church (a Shouter church) he gave RMB 50,000 Yuan to the church in order to finance a printing centre at which religious propaganda, including Shouter’s bibles, could be printed and distributed.
The applicant told how in March 2006 the secret printing centre was discovered by the PSB and his friend’s brother as well as others were arrested. They were all transferred to labour camps or other forms of detention but they did not reveal the applicant’s involvement. The friend returned home after being released in March 2007 and told the applicant what had happened to the others, all of whom appear to have been given much longer sentences. The applicant told of the death of the friend’s brother at the hands of the police.
In July 2007 the applicant’s friend obtained the news that one of the other major members of the church who had been arrested had become ill and was not being provided with the necessary medical treatment. The applicant told how he and his friend arranged protests before the 17th National Congress of the Communist Party, including the preparation and signing of a petition.
Early in September 2007 the cousin of the church member who was imprisoned was arrested because she had been found sending a petition to the central Government. So was her husband. They involved the applicant’s friend and possibly the applicant, but by that time, he says, he had already escaped to Australia.
At the Tribunal hearing the applicant was questioned about all these matters. The reported responses were slightly less detailed than the history which I have just rehearsed. There were a number of concerns that the Tribunal had about the statements made to it, so on 31 March 2008 the applicant was sent a letter pursuant to s.424(A) of the Migration Act 1958 (the “Act”) at [CB 77]:
“At a Tribunal hearing held on 31 March 2008 you told the Tribunal that when the PSB came to your home they found two bibles in your home that you had kept since 2005/6. In your application for a protection visa you did not inform the Department that you had bibles in your home. This information is relevant as it may suggest that you have provided inconsistent information to the Department and the Tribunal. It may suggest that you are not a witness of truth.
At the Tribunal hearing you told the Tribunal that you had only signed one petition when you were in China. You told the Tribunal that you had not sent any other letters to the Government. In your application for a protection visa you told the Department that your friend and you sent many letters to the PSB and other relevant Government agencies urging the authorities to provide proper medical treatment to Hui Ping Ding and to release Hui Ping Ding as soon as possible. It may suggest you are not a witness of truth. This information is relevant as it may suggest that you have provided inconsistent information to the Department and the Tribunal. If the Tribunal forms the view that you are not a witness of truth, the Tribunal may reject all your claims and find that you are not entitled to the visa sought.”
The applicant responded to the letter with a statutory declaration dated 15 April 2008 at [CB 80]. He explained that he was under huge pressure at the Tribunal hearing on 31 March and that was the reason why he could not explain what had happened to him very clearly. He said that the reason that he did not refer to the finding of the two bibles in his home in his PVA was because he knew nothing about it until the middle of November 2007. All he knew at the time that he had lodged the PVA was that his home had been searched by the police. He said that his wife, who was not an educated person, was very scared and she did not know what the police had taken away from her home. It was only when his brother and sister were subjected to PSV investigation that he realised that they had found the two bibles.
The applicant said that his friend and he did, indeed, send many letters to the PSB and other relevant Government agencies, but because it was a very sensitive time, the letters were anonymous. Neither he nor his friend signed any of those letters. They did sign the petition and unexpectedly the authorities would not even tolerate that petition, so Ms Ai Ling Chen, who organised the petition, was arrested in September.
The Tribunal questioned the applicant about his knowledge of the Shouters sect and his association with it. The applicant’s responses were not considered by the Tribunal to be particularly indicative of a person who had any knowledge of the sect. At [CB 98] the Tribunal concludes that the applicant cannot be accepted as a witness of truth. Whilst it accepted the Shouters had non-standard bibles and that members of the religion were singled out for radical treatment by the Government, it felt that the applicant was unable to explain to the Tribunal what the Shouters bible was about. The Tribunal formed the view that a person who undertook such risky activity as keeping a forbidden bible in his home would at least be able to provide some information in relation to its content:
“Secondly, the applicant told the Tribunal that he had 2 Shouters bibles in his home for a period of two years which were discovered by the Chinese PSB when they searched his home, after his departure to Australia. The applicant did not claim to the Department in his PVA that the PSB had found 2 Shouters bibles in his home. When this omission was put to him at the Tribunal hearing, he responded that he did not tell details to the Department because he does not know anything about Australian law … his explanation for such an important omission that goes to the core of his claim does not refer to the actions or inactions of his migration agent. Rather, the applicant stated that he knew nothing about the bibles being located until the middle of November 2007. When he lodged his PVA he only knew that his home had been searched by the police … it was not until his brother and sister were subjected to investigation in November 2007 that they realised the police had found 2 bibles in his home. The applicant did not provide any explanation of his brother’s and sister’s involvement to the Tribunal … I am of the view that had the PSB located Shouters bibles in the applicant’s home, some mention would have been made in his PVA especially as this activity would result in severe consequences for the applicant. It does not ring true. It is a late invention made to bolster the inconsistency in his evidence.”
The Tribunal also referred to the inconsistency between the applicant’s statement to it that he had only signed one petition and his PVA where he told the Department that many letters had been sent to the PSB and other relevant agencies. The Tribunal did not accept the applicant’s explanation that he did not sign any of these other documents. Because the Tribunal did not accept the applicant as a witness of truth, it did not accept that he had been or was perceived to be a follower or a member of the Shouters faith, nor that he had been involved in any activity as a Shouter, including the printing activities, and nor would he be involved in such activities on his return to China. The Tribunal did not accept that the applicant wrote any letters expressing adverse political opinions whilst in China so it did not accept that he would be involved in any adverse political activity upon his return or that such activity will be imputed to him should he return.
The applicant filed an application for review in this court on 21 July 2008. There are four grounds for the application, but they do appear to me to all be argumentative of the Tribunal’s fact finding rather than indicative of jurisdictional error into which the Tribunal is said to have fallen. In the first ground the applicant says that the member ignored his motivation as to why he undertook such risky activity of keeping forbidden Shouters bibles in his home. He then repeats the motive that was contained in his original PVA and repeated to the Tribunal; namely, the association between his close friend, his close friend’s brother the drug addict, and the church. This matter was clearly one considered in some detail by the Tribunal and was not ignored by it. The applicant is, in effect, seeking merits review of the Tribunal decision which this court is unable to provide.
In the second ground the applicant deals with the finding of the two Shouters bibles in his home and the inconsistency in his evidence about them. He deals with them in a way similar to that contained in his statutory declaration in response to the s.424(A) letter, and so once again he is merely rehearsing his arguments in the hope that the court will be able to take a different view about his credibility than the Tribunal did. This again, because credibility is a matter of fact, and the function of the decision maker par excellence; Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J, the court is unable to do.
Third the applicant refers to the nervousness he experienced during the Tribunal hearing. This again is a matter which he raised in his statutory declaration and was dealt with by the Tribunal at [CB 99]:
“Nor do I accept that the applicant was ‘very nervous due to huge pressure and I felt nothing in my mind, so I did not explain the reason clearly and properly’. The applicant did not appear at the hearings to [be] so nervous that he could not remember details of his claim. Nor was there any medical evidence produced to the Tribunal suggesting he suffers from any medical condition affecting his ability to recall facts and events or that made him nervous so that he had nothing in his mind and did not explain his reasons clearly or properly.”
The applicant claims that the Tribunal never gave him an opportunity or led him to understand that it needed medical evidence in relation to his condition. If the applicant wished to make this point, it would be necessary for him to produce evidence either by way of transcript or tape of the Tribunal hearing, but even if the Tribunal did not make the point to the applicant that the lack of medical evidence might tell against him, it is difficult to see that this is anything more than the Tribunal requiring the applicant to make his own case, which is something that has been clear to those involved in these processes since the decision of the High Court in Abebe v The Commonwealth (1999) 197 CLR 510 at [187] confirmed by Healy J in SZATG v Minister for Immigration [2004] FCA 1595 at [36].
In the fourth ground the applicant refers to the Tribunal’s views about his claims in relation to the petition. He repeats the sensitive nature of the situation in China before the 17th Congress of the Communist Party and explains why in those circumstances the sending of the petition became a particularly sensitive matter that resulted in the arrest of Ms Ai Ling Chen and the attempted arrest of himself. The applicant said that the Tribunal’s view on these matters constituted an error of law.
The concern which the Tribunal expressed was the inconsistency between his claim that he had sent many letters to the PSB and other relevant Government agencies, and the statement that he had made to the Tribunal that he had not sent any other letters to the Government other than the one petition that he had signed. The Tribunal does not appear to have passed any judgment about the seriousness of sending the petition in the first place. It considered that the inconsistency might lead it to believe that the applicant never sent any petition at all because none of his story rang true. Once again this is a decision on credibility that is for the Tribunal to make and not for this court to interfere with.
Before me today the applicant claimed that the review was unfair for the reasons explained in the application but also because he had told the Department and the Tribunal that he was not a Christian, nor a member of the local church, and that was the reason why he did not know anything about the Shouters bible. He had helped the church because it had helped his friend’s brother. In his statutory declaration attached to his PVA [CB 35 - 36] the applicant says:
“I tried my best to help Mr L and his brother to spread the gospel.”
He also told the Tribunal he read the bible at home [CB 94]. He said that he put the bibles in a place in his home where the family members did not know where they were because “the local church is good and he asked for copies to read”. The Tribunal was not expecting the applicant to provide it with a treatise on the Shouters version of Christianity, but it did expect a better answer than that given by the applicant at [CB 98] from a person who had been so intimately involved with the printing of this book and who claimed to have read it. The Tribunal having concluded that the applicant was not a credible witness for reasons which were made upon a reasonable basis, it is not open to the court to disturb those findings and provide the applicant with the relief he seeks.
I dismiss the application. I order the applicant to pay the First Respondent’s costs which I assess in the sum of $3,500.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: