SZMXV v Minister for Immigration
[2009] FMCA 160
•18 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 160 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.424AA of the Migration Act 1958 operates subject to s.424A(3). |
| Migration Act 1958, ss.424, 424AA, 424A |
| SZMMP v Minister for Immigration & Citizenship [2008] FMCA 1509 |
| Applicant: | SZMXV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2939 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 February 2009 |
| Date of Last Submission: | 18 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2939 of 2008
| SZMXV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a member of an underground church. He claims to fear persecution in China on the basis of his Christianity.
The applicant first arrived in Australia on 5 March 2006 as the holder of a student visa. He completed his New South Wales Higher School Certificate at the end 2007 and departed Australia on 20 January 2008. He returned on 26 February 2008 and subsequently lodged an application for a protection visa. This was refused by the Minister’s delegate on 10 June 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Relevant Documents (“RD”) pages 103 – 106). Relevantly, they are in summary:
Protection visa application
The applicant made the following claims in his protection visa application:
a)a schoolmate in China introduced him to the Bible and to the underground family church. He was deeply impressed but did not tell his parents as they believed in Buddhism and would oppose such activities;
b)after he came to Australia he did some work to reduce the financial burden on his family. He felt heavy pressure. On 4 June 2006 a schoolmate took him to church and his mental pressure was reduced to some degree. The priest sent him a Bible and he started reading it every evening;
c)he returned to China in January 2008 to visit his parents. He managed to get in touch with his former schoolmate;
d)he was reported to the authorities. On 20 February 2008 the police came to his home and questioned his parents around his involvement in promotional activities for the underground family church. The police said that they would arrest him as soon as they had the evidence;
e)his parents arranged for him to stay at a relative’s home for a few days before he returned to Australia. After he returned to Australia he called his parents and they told him not to come back to China because the government knew what he had done;
f)he is eager to continue his studies at university but his parents have stopped providing him with financial support; and
g)he wants to stay in Australia so he can know more about his religion and have the freedom to enjoy religious activities.
Tribunal hearing
At the hearing before the Tribunal the applicant claimed that:
a)he was introduced to Christianity in China in about June 2005 when a classmate took him to a Christian gathering at a neighbour’s house. There were seven to eight other people there talking about the Bible, chatting and telling personal stories about their sufferings;
b)he continued to attend these gatherings every one or two weeks on Wednesday nights and Sunday mornings. The gatherings were held at different places and they would talk about the Bible;
c)he started to believe in Christianity at the first gathering because it made him feel free and comforted. He felt good when he went to a Christian church;
d)he started attending Christian gatherings in Padstow, Sydney in June 2006 at a Chinese church. He attended every week or two on Sundays;
e)he was baptised in China. He did not get baptised in Australia because he was too nervous and did not have time;
f)when he returned to China in 2008 he went to the family church twice with his friend. Ten to twenty people attended. He told them about the freedom of the church in Australia and encouraged them to actively participate in the church in China;
g)on 21 February 2008 the police came to his house when he was not there and questioned his parents about his Christian activities. They also wanted to question him. He hid at relatives’ houses for a few days before returning to Australia;
h)he wants to continue practising Christianity and will attend a family church if he returns to China. His mother has told him not to go back to China as the police have been to the house and have asked about him; and
i)he could not attend church regularly during his first two years in Australia as he was busy studying. He worked on weekends. He only started attending more regularly after he lodged his protection visa application.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was, or is, a practising Christian, noting that:
i)he displayed only a superficial and limited knowledge of Christianity and Christian religious practice and could not adequately explain his motivation for taking up the religion;
ii)he demonstrated a very limited knowledge of the Bible. On this basis, the Tribunal rejected his claim to have read the Bible regularly since 2005;
iii)the applicant’s nervousness during the hearing, and his claim to have started practising at a relatively young age, did not adequately explain his lack of knowledge about Christian practice and the Bible, particularly given his claim to have been practising Christianity for more than three years;
iv)while the applicant displayed some limited knowledge of Christianity and claimed to have genuine faith, this in itself did not demonstrate that he was a genuine or committed Christian who had been practising Christianity since 2005, nor did it overcome the Tribunal’s concerns about the applicant’s lack of knowledge and understanding of key aspects of Christian belief and practice;
v)the applicant’s evidence regarding his attendance at Christian family gatherings in China was vague and lacking in detail. Specifically, he could not provide clear details on where the gatherings took place and what he did there, other than talking and reading the Bible. Given this vague evidence and having already found that the applicant lacked knowledge about the Bible, the Tribunal did not accept that he actually attended Christian family gatherings in China either before 2006 or when he returned in 2008;
b)in light of these matters, the Tribunal was not satisfied that the applicant was a committed practising Christian, that he worshipped in a family Christian gathering in China prior to 2006 or in 2008 or that he was speaking from actual personal experience when he spoke of his claimed religion at the hearing. The Tribunal therefore did not accept that the police questioned the applicant’s parents about him or that he would be detained or arrested for practising his religion if he returned to China; and
c)the Tribunal did not accept that the applicant actually attended church or practised Christianity in Australia given his limited understanding of Christianity and Christian worship and the absence of independent evidence to support his claim. The Tribunal noted that the applicant’s own evidence was that he had had a very limited involvement with Christian practice while in Australia and that he did not have his own copy of the Bible despite being in the country for more than two years.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal failed to complied [sic] with S424AA by putting its concerns to the applicant at the Tribunal hearing explaining the adverse consequences that it may draw therefrom and providing the Applicant with the opportunity to have more time to comment, under S424(3) of the Act, The Tribunal failed to take it account [sic].
Section 424AA of the Act provides:
424AAInformation and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
At paragraph 38 of its decision (RD 106) the Tribunal recorded that it had put to the applicant particulars of information which it considered would be the reason or part of the reason for affirming the decision under review. The Tribunal continued:
Each time, the Tribunal explained why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review. The Tribunal invited the applicant to comment on or respond to the information. The Tribunal asked the applicant if he wished to seek additional time to comment on or respond to the information. The applicant stated that he did not wish to seek additional time.
In the paragraphs following the passage just quoted the Tribunal set out the information which it put to the applicant in satisfaction of its s.424A obligations. In broad terms, the Tribunal records that it put to the applicant deficiencies in his evidence concerning his knowledge and practice of Christianity which were ultimately to form the basis of its decision. As already noted above at [10], in addition to providing this information, the Tribunal records that it satisfied the requirements of s.424AA(b).
The first point to note when considering the applicant’s allegation is that the information provided to him was not required by the Act to be provided at all. This is because the information which the Tribunal gave to the applicant at the hearing fell within the exceptions to the obligation to provide such information, found in s.424A(3)(b), because the information provided to the applicant was information which he, himself, had provided to the Tribunal for the purposes of its review. For the reasons I discussed in SZMMP v Minister for Immigration & Citizenship [2008] FMCA 1509, such information need not be given to an applicant when the Tribunal acts pursuant to s.424AA.
The second point to note is that the applicant alleges that the Tribunal failed to put its concerns to him. Concerns and conclusions are not “information” as that term is understood for the purposes of ss.424AA or 424A. For that reason the Tribunal was not obliged to act in the way the applicant alleges it ought to have.
The third and final point in relation to the allegations concerning s.424AA, is to note that the applicant has led no evidence which would call into doubt the accuracy of the Tribunal’s decision record. For instance, no transcript of the Tribunal hearing has been put into evidence which would be the best evidence of exactly what was said at the hearing. In those circumstances I do not conclude that the Tribunal’s decision record is inaccurate.
However, I do conclude that the allegation made in the application concerning the Tribunal’s failure to comply with such obligations as s.424AA may have imposed on it, and most particularly, such obligations as may have existed under s.424AA(b), is not proved.
As to the reference in the application to s.424(3) of the Act, this is misconceived and without substance. Section 424(3) relates to the means by which an invitation to provide further information to the Tribunal, pursuant to s.424, not ss.424A or 424AA, is to be made. The cited subsection has no relevance to these proceedings.
Conclusion
For these reasons jurisdictional error on the part of the Tribunal has not been made out and the application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 March 2009
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