SZMZN v Minister for Immigration - [2009] FMCA 523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 523

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Christian – disbelieved by Tribunal – did not attend hearing on application for judicial review – inadequate explanation for absence – insufficient merits in substantive application – application to set aside default order refused.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424A(2A), 424AA, 476

SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291

Applicant:

SZMZN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3143 of 2008

Judgment of:

Smith FM

Hearing date:

26 May 2009

Delivered at:

Sydney

Delivered on:

26 May 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Baggett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The applicant’s application filed on 11 May 2009 under r.16.05(2)(a) to set aside orders made on 7 April 2009 is refused.
The applicant must pay the first respondent’s costs in the sum of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3143 of 2008

SZMZN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an interlocutory application filed on 11 May 2009 which should be understood as an application to set aside an order I made on 7 April 2009. I then dismissed the applicant’s substantive application with costs, due to the applicant’s absence from the appointed hearing. The hearing had been appointed at a first court date on 23 December 2008 conducted before myself. The substantive application was brought under s.476 of the Migration Act 1958 (Cth), seeking judicial review of a decision of the Tribunal which affirmed the refusal of a protection visa.
At the first court date, the applicant had the assistance of a Mandarin interpreter, and I am confident that he was aided by the interpreter to fill out the information sheet and other documents. It was probably explained to him outside the Court that a hearing would be appointed which he should attend. In any event, I am confident that I followed my usual procedure, which is to make written orders while the applicant is sitting at the Bar table with the interpreter, to give him a copy, and to explain to him the effect of the orders. In particular, I am confident that I explained to him, and it was properly interpreted to him, that the final hearing in his case would be on 7 April 2009 at 10.15 am in the present court room. I am also confident that I explained to him that if he did not attend, his case would be dismissed. This is my invariable practice.
In support of the application to set aside the default order, a document purporting to be an affidavit has been filed, witnessed by a Justice of the Peace. It is signed by the applicant in Chinese characters and he tells me he cannot read English. The affidavit is in English without the jurat for non‑English speaking deponents, and the affidavit therefore is not a proper affidavit. However, it was shown to the applicant in the witness box, and he affirmed the truth of its contents under oath. The affidavit says:
1.I missed changed court date. I didn’t receive letter on time.
2.I missed the hearing. I hope the judge could make another hearing date.
The assertion in paragraph 1 that someone sent him a letter changing the date for the hearing is completely untrue. The appointed hearing date was never changed.
The applicant’s other evidence under oath did not impress me, and I did not find anything the applicant said to be believable. At most, however, it raises the possibility that the applicant did not listen carefully at the first court date, did not read the orders he was given, and for some reason developed a mistaken belief that his hearing would be on 24 April 2009. He claimed to have been in Canberra during April until the 22^nd, and therefore to have missed the hearing. For the same reason he claimed not to have received a letter from the Minister’s solicitors confirming the hearing. This was sent to the address which he last gave the Court, and I think the effect of his evidence is that it was still his address.
Even assuming that he did genuinely suffer from a mistaken memory as to the hearing date, I do not consider that his evidence raises an acceptable explanation for that mistake. On the applicant’s evidence to the Court, I would not find that he has shown an acceptable reason for his absence and for the Court setting aside the Court order.
However, I may have overlooked the inadequacy of his explanations, had I been able to detect any reasonably arguable ground of review in the substantive matter. For the reasons which follow I have not found any such merits.
The applicant came to Australia in May 2007, and on 8 June 2007 he applied for a protection visa against return to the People’s Republic of China. A typed insertion into the form narrated events which the applicant claimed gave rise to a fear of persecution.
He claimed to have suffered persecution in 1997 after having a third child, as a result of the actions of his city family planning commission. The persecution included a period of imprisonment from which he was released in October 1998. He then claimed to have attended an official church from October 1999, but to have been uncomfortable with its connection with the State, and to have been introduced to a “family church” after December 2003. He claimed to have participated in its services, and from January 2004 to have undertaken work spreading the gospel in villages. He claimed to have been arrested in the course of these activities by police and mistreated. He was also sacked from his employment, but “I started organising family gatherings in my house and spread the Christian message to my neighbours”. He claimed to have been again sentenced to one year’s imprisonment, from which he was released in October 2005. After that time he received constant harassment “because I continued to have contact with the underground church”.
The applicant was interviewed by a delegate in the Department of Immigration on 27 July 2007. He was questioned about a statement from the travel agency which organised his travel to Australia, and the inconsistent employment background given to the tourist agent, compared to that in his protection visa application. The delegate also questioned him about other matters.
On 20 August 2007 the delegate refused the protection visa application. The delegate did not find the applicant’s claims to have been persecuted for involvement in underground Christian activities to be credible, and did not accept that he had ever been detained or mistreated. The delegate said that the information supplied in support of his visitor’s visa application “is irreconcilable with the material in his Protection visa claim”, and did not accept the applicant’s claims to have lost his job and to be in bad financial circumstances. The delegate thought that the applicant had been “lucratively employed in his wife’s store and operating road building machinery”, before he came to Australia. The delegate noted that several Chinese language documents had been given, but without translations.
On appeal, the applicant attended two hearings of the Tribunal. The first hearing was conducted on 13 December 2007 by a Tribunal member whose decision was subsequently set aside in the Federal Court, due to non‑compliance with s.91R(3) of the Migration Act 1958 (Cth). On remitter, the Tribunal as presently constituted took into account the evidence given by the applicant to the first Tribunal hearing, and also questioned the applicant about many matters at a hearing held on 25 September 2008. These included the evidence given to the first Tribunal member about the Chinese travel agency’s information, and about the applicant’s claims in relation to the one child policy. In this respect, the applicant told the Tribunal that the policy would “probably not … definitely not” result in future persecution because of what had already occurred. The Tribunal also elicited more information about his claimed involvement in Christian churches, and tested his familiarity with basic aspects of Christianity.
The Tribunal noted the Chinese documents which were on the file, and gave the applicant an opportunity to submit translations. These were received subsequent to the hearing. The Tribunal had foreshadowed to the applicant that it might take into account country information about document fraud in China, and the possible adverse implications of his evidence that he had previously engaged an agent to submit false documents for his visa to come to Australia.
The Tribunal handed down a decision on 12 November 2008 which affirmed the delegate’s decision. In its “Findings and Reasons”, the Tribunal said:
The Tribunal has serious concerns about the applicant’s overall credibility. It found his oral evidence about his personal and travel circumstances to be vague and changeable, including on issues such as his religious practice in China.
The Tribunal said that the applicant had given “a misleading account of his employment and finances in China, and of his travel from China”, and was unable to arrive at a finding about the truth of his claimed employment history. It thought that the ability of the applicant to acquire a passport in 2004, depart China on it in 2007, and obtain a replacement passport in August 2007 was “further evidence that he is of no adverse interest to the PRC authorities”. It said:
The Tribunal finds that the applicant’s personal and family circumstances, and his travel documentation and arrangements, are inconsistent with the profile of a person who has recently experienced and who continues to fear persecution. It considers that he has given false information in order to enhance his application for refugee status. This leads the Tribunal to doubt his credibility, and the veracity of all his refugee claims.
The Tribunal considered the applicant’s claims in relation to the one child policy, and found that “he does not really fear future harm arising from the One Child Policy”. The Tribunal noted his disagreement with that policy, but found that it did not amount to “a political opinion, and does not give rise to a real chance of Convention‑related persecution”.
Addressing the applicant’s claims to have suffered persecution as a member of a prohibited house church, the Tribunal said that it did not even accept that he was a “genuine Christian”. It referred to his confused and uncertain evidence about his experience in churches in China, and considered that his evidence about his knowledge of Christianity was “inconsistent with his claimed involvement with various churches, and his commitment to the Christian faith”.
The Tribunal explained these conclusions, and rejected all of his relevant claims. It pointed to further aspects of his claimed history in China which, in the Tribunal’s opinion, provided evidence that he had not suffered persecution for religious or any other Convention‑related activities.
The Tribunal considered evidence from the applicant that he had attended a church in Campsie in Australia, but was not satisfied that that conduct was otherwise than for the purpose of strengthening his claim to be a refugee, and therefore disregarded it in accordance with s.91R(3).
The Tribunal found that there was no real chance of the applicant experiencing serious harm for any religious, political or other relevant reason if he returned to China.
The applicant’s original application set out the grounds of his application, and he never availed himself of the opportunity to file an amended application, written submissions and additional evidence about the proceedings before the Tribunal. His original application contained the following grounds:
1.RRT did not give me a chance to explain the doubts. They did not weigh my evidence.
2.Procedural Fairness has been denied. RRT did not use favourable cases to my application.
These grounds are unexplained in the application, and the applicant has not explained them to me in written or oral submissions. I can find no evidence that the applicant was denied an opportunity to present his case to the Tribunal, nor that it did not consider and “weigh” his evidence to it.
I can find no evidence of a procedure required to be followed by the Tribunal which was not followed, nor any denial of procedural fairness in so far as its obligations are imposed under the Migration Act on the Tribunal. I do not understand the assertion: “RRT did not use favorable cases to my application”.
The Minister’s written submission addressed whether the Tribunal complied with obligations to put information to an applicant pursuant to procedures under s.424A(2A) and s.424AA. I accept the submission that, in so far as the Tribunal made reference to the information about the visa upon which he entered Australia, that information appears to have been fully put to the applicant and explained to him in terms of s.424AA at the first hearing which he attended. Certainly I am not persuaded, in the absence of a transcript, that this did not happen, either at that hearing or at the second hearing. I accept the Minister’s submission that compliance with jurisdictional obligations under ss.424A and 424AA may be afforded in the course of the proceedings on the review which occurred before a remitter. This, at least, was settled by SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291.
Considering all the material before me, I do not consider that the applicant’s application to the Court raises an arguable case for the relief he seeks, and I do not think that the applicant has pointed to sufficient merit to justify overlooking the inadequacy of his explanation for his absence from the hearing. For all the above reasons, I refuse the application to set aside my default order.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 June 2009