SZMRQ v Minister for Immigration - [2008] FMCA 1607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRQ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1607

MIGRATION – RRT decision – Chinese applicant claimed persecution as underground Christian – 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:

SZMRQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2195 of 2008

Judgment of:

Smith FM

Hearing date:

25 November 2008

Delivered at:

Sydney

Delivered on:

25 November 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

DLA Phillips Fox

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 $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2195 of 2008

SZMRQ

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, and on 30 January 2008 she applied for a protection visa. She was assisted by a registered migration agent. A statement attached to the application explained why she claimed to fear persecution if she returned to the People's Republic of China.
The applicant claimed that she had come to Australia “to free myself from persecution due to my Christian faith”. She was part of an “illicit underground church”. On an unstated occasion when the congregation was meeting at her home, a group of policemen arrested the members of the group, including the applicant, and she was “slapped …in the face” and threatened before being released. She also referred to an event, which might have been the same incident, of being arrested in 2003 “when my fellow prayers assembled at my home”. The applicant said that she obtained her passport and visa “through informal way”, and claimed that she had to use it “to travel Russia immediately before my journey to Australia”. Her statement claimed that, after she left China, her father had been approached by police and threatened, and had been sacked from his employment as a result of the applicant's Christian beliefs.
No further details of these claims or supporting evidence were provided to the Department of Immigration, nor subsequently to the Tribunal, except for some photographs.
A delegate refused the application on 12 February 2008. In her reasons she concluded:
Therefore I am satisfied that if the applicant had been detained, interrogated and tortured as claimed, and that the consequences on her family were as claimed because she worshipped in an underground church as claimed, it is very unlikely that she would have been able to depart the PRC legally using a passport that had been issued in her own name. That she did so is a strong indication that her claims concerning these matters are not based in fact.
On appeal, the applicant attended a hearing held by the Tribunal on 30 April 2008. The Tribunal has set out details of her evidence, and her responses when questioned by the Tribunal. At the end of the hearing, it put to the applicant various adverse matters which it was concerned about. The applicant responded to these.
On 24 June 2008, the Tribunal handed down a decision which affirmed the delegate's decision. The Tribunal said that it had concluded:
Significant aspects of the applicant's oral evidence were vague, hesitant and confused. There are considerable inconsistencies between the applicant's oral and written evidence and she made an important new claim before the Tribunal.
The Tribunal explained that the applicant had given testimony about her Christian activities which “seemed rehearsed”, and she gave a response which was “vague and uncertain” when invited to clarify what had attracted her to Christianity. The Tribunal thought that there was inconsistency in her failure not to mention in her protection visa statement that she had begun attending Christian gatherings while living in Beijing temporarily. It thought that her evidence about her religious practice in her hometown was confusing, and there were, in particular, discrepancies about the number of times that she had difficulties with the police. At the hearing, the applicant had said this occurred more than 20 times. Due to the problems with the applicant's evidence, the Tribunal concluded she was not generally truthful, and it found that the important elements in her claims were “fabricated”.
The Tribunal considered the photographs presented to it by the applicant, but concluded that they should not be given weight. It also noted that the applicant had travelled on a passport which had been issued in Zimbabwe without the applicant being there, but was not ready to draw inferences from this which supported her refugee claims.
The Tribunal accepted a statement of a witness that the applicant had attended some bible meetings in Australia. However, it found positively that this was engaged in for the sole purpose of strengthening her claim that she was a refugee. That finding necessarily required the Tribunal to disregard that conduct pursuant to s.91R(3) of the Migration Act.
The Tribunal concluded from such of the applicant's evidence as it accepted that she would not be monitored if she returned to China, and that her parents and sister would not be in trouble by reasons of her religion. It concluded that there was not a real chance that she would be persecuted in the reasonably foreseeable future if she returned.
I have considered the Tribunal's reasons, and they do not appear to me to suggest any arguable jurisdictional error affecting its decision.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter. Her application has been listed today to consider whether it raises an arguable case for the making of these orders. She has been given an opportunity to obtain legal advice and file an amended application, after receiving a bundle of relevant documents. However, she has not filed an amended application nor additional evidence, and relies upon the grounds in the original application.
The original application has the following grounds:
1.The applicant has shown evidence of being torture while in China because of her religion.
2.The applicant has demonstrated that she’s a Christian and continued participating in church activities.
3.The applicant had evidence of being denied exiting China.
I do not consider that any of these grounds are framed so as to raise jurisdictional error. Prima facie, they appear only to invite the Court itself to decide that the applicant qualifies for a protection visa as a refugee. However, it is not the function of the Court to make such a decision.
If the grounds are suggesting that the Tribunal did not consider the applicant's evidence, I am not persuaded that there is any substance to that contention. In my opinion, the Tribunal's reasons show that it fully considered the applicant's evidence. It arrived at a finding on credibility which, in my opinion, was legally open to it on the material before it.
The applicant today made two points to me. She first criticised the Tribunal for considering the purposes for which she had attended bible study meetings in Australia, suggesting that this was an irrelevant matter. However, it was legally relevant for the Tribunal to consider this, because it was obliged to comply with the direction in s.91R(3) of the Migration Act.
The applicant's other point was that the inconsistencies in her evidence were explained by the fact that the visa application had been presented by a migration agent. The applicant asserted that her later account of events was her true evidence. However, the applicant had the opportunity to present her explanations for inconsistencies to the Tribunal, and did so. I am not persuaded that the manner in which the Tribunal considered her explanations reveals any arguable jurisdictional error.
For the above reasons I am not persuaded that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 3 December 2008