SZMUZ v Minister for Immigration
[2008] FMCA 1655
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1655 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – Tribunal not satisfied applicant suffered harm claimed, although accepting some factual claims – applicant delayed seeking protection in Australia for 12 years – Tribunal found the applicant did not genuinely fear harm in China – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.425 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham(2000) 168 ALR 407 |
| Applicant: | SZMUZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2568 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 9 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2568 of 2008
| SZMUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 19 September 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon membership of a particular social group and religion. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 5 December 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 12 of those written submissions:
In a statement attached to his protection visa application (“PVA”), the applicant claimed to fear harm in the People’s Republic of China (“PRC”) on the basis of his membership of a social group, namely “people who are the subject of a complaint to the PRC authorities and who lack the ability to effectively respond to the threat”. In 1992 or 1993, the applicant was involved in breaking up a fight over property that took place between his father and a neighbour. As a result he feared police arrest and went into hiding. He met a “snakehead” who for 200,000 RMB assisted him in obtaining a false passport and accompanied him to Australia. He arrived in Australia on 29 December 1995. He feared that if he returned to China police will arrest him and he will face imprisonment. court book (“CB”) 42-43.
In a decision dated 28 July 2008, a delegate of the Minister refused to grant the applicant a protection visa: CB 61 - 66. The delegate found that if he were to accept the applicant’s claims, his fears would be the subject of a private property dispute and not Convention related: CB 63. The delegate also found several inconsistencies in the applicant’s claims and concluded that the applicant did not have a well founded fear of serious harm for a Convention reason should he return to the PRC, finding his claims were “unconvincing, inconsistent” and generally lacking in veracity.: CB 65.
Proceedings before the Tribunal
On 30 July 2008, the applicant filed an application with the Tribunal for review of the delegate’s decision: CB 68–71.
By a letter dated 6 August 2008 to the applicant’s representative, the Tribunal invited the applicant to attend a hearing on 11 September 2008 to give oral evidence and present arguments in support of his case: CB 75 – 77.
The Tribunal decision contains a record of matters discussed at the hearing. During the hearing the applicant gave evidence that he arrived in Australia on 29 December 1995 on a business visa that was valid for 3 months and had subsequently remained in Australia unlawfully: CB 28. The Tribunal questioned the applicant as to why he had been asked to be removed from Australia. He stated that he was intending to return to the PRC but his father had told him not to return as what had happened to the family had not been “fixed”: CB 33 – 34. He said that the fight had occurred in “1994 and 1995” between his father and a neighbour and related to property. He intervened, telling them they should not hurt each other and the neighbour had then alleged the applicant had hit him, injuring his shoulder. The police did not attend but he had fled in any case. He was subsequently told someone had notified the police about the neighbour’s injuries and it was alleged that he had initiated the fight. The police wanted to arrest him: CB 93.
The Tribunal indicated that the applicant’s response to flee seemed extreme in the circumstances and asked the applicant if the neighbour had been connected to anyone powerful. The applicant said he had heard from his father that the neighbour had a relative in the Public Security Bureau (“PSB”).
When queried about the 12 year delay in lodging his protection visa, the applicant stated that he had engaged a “snakehead” to lodge one for him when he arrived in Australia, however he had taken his $500 and not done any work for him. The Tribunal also noted that the applicant had been issued with an ID card in 1999 and that it was difficult to accept this would have occurred if he was wanted by the PRC authorities. He said perhaps his wife had offered bribery: CB 94.
At the end of the Tribunal hearing the applicant claimed to be a Christian. The Tribunal noted at no time previously had the applicant claimed to be a Christian and asked him to explain. He said he had been attending mass in Australia, but when asked by the Tribunal if he was claiming fear of harm on this basis, he said this is not a problem for him: CB 94. When questioned about fundamental Christian beliefs, such as who Jesus was, the applicant could not answer and simply said “I know but I can’t tell” CB 95.
The Tribunal made a decision on 19 September 2008 to affirm the decision under review. The Tribunal accepted that a fight occurred between the applicant’s father and a neighbour, however it did not accept that the applicant had suffered any of the harm he alleged. The Tribunal also found that it was not satisfied he would face a real chance of suffering any of the claimed harm in the reasonably foreseeable future due to “serious doubts about the veracity of his claims”. Specifically, the Tribunal relied on the following inconsistencies and implausibilities in his evidence:
a)The Tribunal found the applicant’s claim to have fled his home immediately after the fight implausible, noting it an “extreme response” in claimed circumstances. It therefore did not accept that the applicant had left in the circumstances claimed: CB 96;
b)it noted the applicant’s 12 year delay in lodging his PVA and found that the fact he only lodged after being detained by the Australian authorities raised “fundamental doubts about the genuineness of his fear of persecution, the veracity of his claims and credibility” and was “inconsistent with the conduct of a person who had fled their country in fear”: CB 96;
c)the Tribunal was satisfied on the basis of the available information that the fact his ID card was issued in 1999 after the alleged events was evidence that the applicant did not have a concern about approaching PRC authorities: CB 97; and
d)the applicant’s new claim to be a Christian, raised at the end of the Tribunal hearing, “suggested fabrication and an attempt to bring his claims within a Convention ground”. His inability to explain any of the basic tenets of the faith led the Tribunal to believe he had never been involved in the Christian faith in the PRC or Australia. Further his attempt to bolster his case with this late claim to be a Christina raised doubts in the Tribunals mind about other claims that he had made: CB 97.
In light of the above matters, the Tribunal did not accept that the applicant had a genuine fear after the fight in 1992 or 1993, or any of his subsequent claims: CB 98.
Accordingly, the Tribunal was not satisfied the applicant was owed protection obligations, and affirmed the delegate’s decision: CB 98.
These proceedings began with a show cause application filed on 7 October 2008. In that application the applicant asserts his membership of a particular social group and Christian faith. Although that application did not point to any jurisdictional error by the Tribunal, I listed it for hearing today in the hope that the applicant might take advantage of the opportunity I afforded him to file and serve an amended application. Unfortunately, he has not taken up that opportunity. Neither did he take up the opportunity to make oral submissions today, apart from explaining why he has not returned to China.
In my view, the Tribunal decision is free from jurisdictional error.
The Tribunal met its obligation to invite the applicant to a hearing pursuant to s.425 of the Migration Act 1958 (Cth). The applicant attended and gave evidence. The hearing opportunity was a real one.
Although the Tribunal was prepared to accept the core fact asserted by the applicant of a fight occurring between 1993 and 1995, the Tribunal was unwilling to accept the applicant's assertions about what flowed from that. The Tribunal considered all of the applicant's claims, including his belated claim made at the hearing that he was a Christian. The Tribunal also took into account the applicant's level of education.
The Tribunal did not need to consider the asserted Convention nexus with the applicant's particular social group because it found no real chance that the applicant would suffer any of the claimed harm he asserted in the reasonably foreseeable future.
I otherwise agree with and adopt for the purposes of this judgment, with amendments, paragraphs 13 and 14 of the Minister's written submissions:
The application for judicial review contains only one ground of review. It states: “People who are the subject of a complaint to the PRC authorities and who lack the ability to effectively respond to the threat” and “Applicant is a Christian”. This is simply a restating of the Convention-grounds under which the applicant claimed to fear harm before the Tribunal, and does not allege or identify any error of law by the Tribunal.
The Tribunal’s credibility findings were findings of fact[1] open to it for the reasons it gave. No error has been established and there is no jurisdictional error on the part of the Tribunal.
[1] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham(2000) 168 ALR 407 at [67].
I see no error in the Tribunal's reasoning or in the procedure followed by the Tribunal. I will order that the application be dismissed.
Costs should follow the event in this case. The Minister seeks costs fixed in the sum of $3,400. Scale costs would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 December 2008
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