SZMPP v Minister for Immigration

[2008] FMCA 1365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPP v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1365

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424, 424A, 424AA, 425

SZMJB v Minister for Immigration & Anor [2008] FMCA 1186

Applicant: SZMPP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 228 of 2008

Judgment of: Driver FM

Hearing date: 29 September 2008

Delivered at: Sydney

Delivered on: 29 September 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Crittenden
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 228 of 2008

SZMPP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 10 July 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims of religious persecution on account of his Christian faith.  He arrived in Australia on 6 September 2007 and applied to the Minister's Department for a protection visa on 17 October 2007.  The Minister's delegate rejected that application on 4 January 2008.  The applicant sought review by the Tribunal on 4 February 2008.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  He attended on 28 March 2008.  He was questioned by the Tribunal about his claims.  That extended to his religious practice in Australia.  The applicant stated that he had been attending church for about five months at a church whose name he could not recall, but that it was on the border of Auburn and Lidcombe near a railway line.  The applicant was questioned about his Christian faith in China.  He was also asked about the difference between the registered church and unregistered churches.  He said there was no registered church in his village.  He also gave the Tribunal to understand that he thought registered churches were better.

3. On 8 April 2008, the Tribunal wrote to the applicant requesting evidence about his church attendance in Australia.  The Tribunal received a letter dated 30 April 2008 from Joshua Ying Sang Ng, chairman of the Christian Assembly of Sydney.  The letter is reproduced on page 65 of the court book, which I received as evidence.  The letter states that the applicant had been meeting with the church in September 2007.  The letter says nothing more about the applicant's church attendance, including where he might have attended church.

4. The Tribunal arranged a second hearing on 10 June 2008.  The Tribunal had asked the applicant to arrange for Mr Ng to attend but he did not.  The applicant told the Tribunal that Mr Ng was overseas and he did not know him personally.  The Tribunal questioned the applicant further about his religious faith and also about his religious practice. 

5. The Tribunal appeared to go through a process of disclosure at the second hearing pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”): court book, page 87. In its decision, the Tribunal found inconsistencies in the applicant's evidence concerning his alleged experiences in China. The Tribunal found significance in the applicant's inability to remember accurately the sequence in which the alleged events occurred. The Tribunal found that the alleged events did not occur.

6. The Tribunal noted that, at the first hearing, the applicant stated that he thought registered churches were better.  The Tribunal also found that the applicant's knowledge of Christianity was not consistent with someone who had been practising Christianity for over a decade.  The Tribunal found that the applicant either had not attended an unregistered church in China or had not attended for the period claimed.

7. The Tribunal considered the applicant's claimed church attendance in Australia.  The Tribunal found the letter by Mr Ng unpersuasive.  The Tribunal concluded that the applicant's claims about his church attendance in Australia lacked credibility.  The Tribunal concluded that the applicant either had not attended church in Australia at all or had not attended for the period he claimed.

8. Nevertheless, the Tribunal accepted that the applicant had some level of knowledge about Christianity.  The Tribunal made a forward-looking assessment of whether the applicant would face a real risk of harm in China because of some level of Christian faith.  The Tribunal found, apparently based on country information and the applicant's own evidence, that he would face no risk of harm in Fujian province in China should he pursue his faith at either a registered church or another church.

9. These proceedings began with a show cause application filed on 6 August 2008.  The applicant was given the opportunity to file and serve an amended application.  He continues to rely upon his original application.  That application asserts jurisdictional error by a failure to consider important evidence.  The particulars refer to the letter by Mr Ng and the applicant's claims about his current religious practice in Sydney.  The application secondly asserts error by failing to invite the applicant to comment on inconsistencies in his own claims.

10. The applicant invited me to look at written advice he has received from Mr Marcelo Urquijo under the Minister's panel advice scheme.  I advised the applicant that the advice was privileged, but he agreed to waive that privilege.  The advice discloses that Mr Urquijo considered the application before the Court did not have good prospects of success.  In particular, he considered that the Tribunal's process had been procedurally fair.  He invited the applicant to consider making an amended application and consider raising an argument that the Tribunal overlooked elements of the applicant's claims concerning his religious practice in China and Australia and the likelihood that he would resume membership of an underground church in China.  However, he did not consider that there was much prospect in trying to mount an argument along those lines.

11. In my view, there is no arguable case that the Tribunal fell into jurisdictional error.  The Tribunal was certainly aware of the applicant's claims concerning his experiences in China and his conduct in Australia.  There is no doubt that the Tribunal considered those claims.  The Tribunal was anxious to receive supportive evidence about the applicant's church attendance in Australia.  The very brief and uninformative letter it received from the Christian Assembly was of minimal value.  The applicant's own evidence was inconsistent and unpersuasive.

12. Contrary to the assertion in the applicant's show cause application, the Tribunal did put to the applicant at the second hearing what it saw as inconsistencies in his evidence. The Tribunal was probably not required to disclose those apparent inconsistencies, pursuant to either s.424A or s.424AA of the Migration Act but there is no error in the Tribunal exceeding its obligations. The Tribunal met its obligations pursuant to s.425 of the Migration Act. It took into account the additional evidence received that was requested pursuant to s.424.

13. The Tribunal was alert to the issue of the applicant's conduct in Australia in relation to s.91R(3) of the Migration Act. The Tribunal warned the applicant at the second hearing that it might have to disregard that conduct. As matters turns out, the Tribunal did not accept that the applicant had engaged in the asserted conduct. To that extent, there was nothing to disregard. The Tribunal found in the alternative that the applicant had not attended church in Australia for the period of five months he had claimed.

14. It is inherent in that alternative finding that the superficiality of the applicant's conduct in Australia meant that it was not conduct engaged in for the purpose of enhancing his protection visa claim.  Accordingly, the conduct did not need to be disregarded:  SZMJB v Minister for Immigration & Anor [2008] FMCA 1186.

15. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

16. The application having been dismissed, costs should follow the event. The Minister seeks scale costs in the sum of $2,500. The applicant made submissions indicative of a view that he felt all applicants to the Court in this jurisdiction were likely to fail. It is true that the majority of applications in this jurisdiction are unsuccessful. However, that does not bear on the issue of costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

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

Associate: 

Date:  2 October 2008