SZMPG v Minister for Immigration

[2008] FMCA 1703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1703

MIGRATION – Review of decision of RRT – where applicant claimed persecution on grounds of religion – where there were no particulars of grounds of review.

WALT v Ministerfor Immigration [2007] FCAFC 2
SBCC v Ministerfor Immigration [2006] FCAFC 129
SZIOF v Ministerfor Immigration [2007] FCA 1858

Applicant: SZMPG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2008 of 2008

Judgment of: Raphael FM

Hearing date: 10 December 2008

Date of Last Submission: 10 December 2008

Delivered at: Sydney

Delivered on: 10 December 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2008 of 2008

SZMPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 9 December 2007 and applied to the Department of Immigration & Citizenship for a protection (class XA) visa on 24 January 2008.  On 10 April 2008 a delegate of the Minister refused to grant a protection visa and on 14 May 2008 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision.  On 19 June 2008 the Tribunal wrote to the applicant inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or responses, be the reason or part of a reason for affirming the decision that is under review.  It proposed to the applicant that he attend a pre-hearing interview on the same day as the hearing took place, being 8 July 2008.  The applicant attended the pre-hearing interview and the hearing and on the hearing date, the Tribunal advised him that it proposed to affirm the decision of the delegate.  On 9 July 2008 the reasons for the Tribunal's decision were provided to the applicant.

2. In his application for a protection visa the applicant indicated that he was a Christian:

   “I participated in activities to ask for freedom of religion in China as there are a lot of restrictions over control our Christians in China.  We organised meetings to discuss our religious belief and we discussed bibles at our homes.  In early of  2000, we decide to organise our own church.  But the Chinese Government believe our church have close relationship with overseas churches.  They sent agent to keep watch our activities.  At the end of 2000, when we were having religious activities of our church, police came to arrest all of us, and I was detained for three days for investigation.  The 3 days I suffered mental and physical torment from Chinese authorities.  I was released as they could not found any evidence to against us, but I start to worry about my safe.  I change my job; turn all our activities underground, secretly.  March 1, 2007 my close friend told me, Chinese Government had found out our underground religious activities, will take action any times.  As soon as I know that, I pay a large sum of money to get my passport, and I tried to escape to some country as I worried that I would face persecution from the Chinese authorities again, but I can't; I have to hide myself at Guang Xi at that time.  In help of my friends, finally I could leave China to come to Australia to look for protection.” [CB 27]

3. In a letter written by the Tribunal to the applicant the Tribunal told him that it had obtained his application for a business visa and that contained information which conflicted with the claims he was now making.  The Tribunal referred to the address of employment details being given as different from those in the PVA and that his bank records were inconsistent with his claim that he was in hiding for several months before leaving for Australia in that they showed regular income during that time.  At the hearing the applicant told the Tribunal that he had nothing to do with the visa application and that the documents were "false in China but not in Australia". 

4. The Tribunal turned to the applicant's claims of persecution for reason of religion: 

   “[26]I asked him a series of questions about his knowledge of the bible, since he told me that his group read the bible, sang hymns and copied materials.  He was not able to tell me where in the bible one would find Genesis.  He was not able to name any other book in the bible.  He was not able to tell me into which two parts the bible is divided.  When I asked him to tell me any story from the bible, he said that Judas betrayed Jesus who was crucified.  However when I asked him how that had happened and who had crucified Jesus and why, he was unable to tell me.

   [27] On several occasions his answer was to recite an obviously learned piece of religious text having nothing to do with my question.  Similarly, he had an idea of the theological significance of baptism, but his explanation for not having been baptised made [no] sense and he had no idea of the formalities of baptism.  Again what he knew appeared to have been learned for the occasion.  [CB 63]

5. The Tribunal did not accept the applicant's claim to be, or ever have been, a Christian.  It therefore did not accept that he had been detained for that reason or was being pursued by the Chinese Government Authorities.  It did not accept that there was a real chance of such things happening to him for any reason at all should he return to China in the foreseeable future.

   “[30]I do not accept that he lived in hiding prior to travel to Australia for any reason at all.  I do not accept he had to pay a large sum of money to obtain his passport.  The passport he showed me at the hearing clearly indicated that it was issued in replacement of a previous passport.  In short, the applicant is, in relation to his protection visa application, without credibility.”   [CB 63]

6. On 9 September 2008 the applicant filed an amended application in this court.  There were two grounds of application.  The first was that the Tribunal had misunderstood his claims and "and my application was refused based on some wrong information". The applicant has provided no assistance to the court in analysing exactly what claims were misunderstood.  No particulars have been provided.  However, a reading of the Tribunal decision would appear to indicate that he claimed to be a Christian and the Tribunal questioned him upon his knowledge of that faith in order to ascertain whether or not he was indeed a person whom Australia owed protection obligations because of his faith.

7. In WALT v Ministerfor Immigration [2007] FCAFC 2, the Full Bench Mansfield, Jacobsen and Siopis JJ, indicated that whilst a Tribunal could not become the arbiter of doctrine it was entitled to question an applicant about his knowledge of the religion which he alleged he espoused. Provided that the Tribunal does not set a level of knowledge of, or commitment to the religion which the appellant was required to meet to satisfy a Tribunal of his beliefs and merely explores the level of knowledge and understanding and his commitment, no jurisdictional error will have occurred. See also SBCC v Ministerfor Immigration [2006] FCAFC 129 at [45-48] per French, Lander and Besanko JJ.

8. The Tribunal's rehearsal of the questioning of the applicant about his religion seems to me to fall into the category of permitted questioning and although the applicant told me today that he was very nervous when he was being asked these questions and that the Tribunal had adjourned the hearing before he had finished answering the questions, he has produced no evidence about this in the form of a transcript or even a tape, notwithstanding being ordered to do so by the Registrar by 2 October 2008.

9. The second ground of application was that the Tribunal failed to notify the applicant in writing of the reason or part of the reason for affirming the decision.  In SZIOF v Ministerfor Immigration [2007] FCA 1858 Collier J gave a summary of what did and did not constitute information:

   “28 The term "information" within s 424A(1) was considered by the Full Court in VAF 206 ALR at 476 and defined by Finn and Stone JJ in that case to refer to:

   "...knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [3], irrespective of whether it is reliable or has a sound factual basis: Win v Minister for Immigration and Multicultural Affairs[2001] FCA 56; (2001) 105 FCR 212 at [19] – [22].”

   29The factual basis of "information" was reiterated by the majority of the High Court in SZBYR 235 ALR 616 whether their Honours said in relation to "information" in s.424A(1):

   “However broadly, information be defined, it's meaning in this context is related to the existence of evidentiary material or documentation not the existence of doubts inconsistencies or the absence of evidence.””

10. In this case the applicant appears to be asking for a preliminary indication of the Tribunal's views about his application.  That is clearly not information as defined.  I am unaware of any other information that the applicant claims was not provided to him and the court should not be required to guess what particulars the applicant might have provided had he been prepared to do so.  Before me today, in addition to the other matters raised, the applicant said that the Tribunal hearing was too short and he did not get an opportunity to explain himself.  As Mr Reilly points out, the evidence from the court book [CB 50 - 51] seemed to indicate that the Tribunal hearing went on for over an hour which would appear to be sufficient time to come to the conclusions drawn by the Tribunal in its findings and reasons.  In these circumstances I am unable to assist the applicant by finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in his case.

11. I dismiss the application.  I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,200.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: