SZMZQ v Minister for Immigration
[2009] FMCA 187
•13 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 187 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – jurisdictional error not alleged – application dismissed. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZMZQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3147 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 March 2009 |
| Date of Last Submission: | 3 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms V. McWillam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3147 of 2008
| SZMZQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who claims to fear persecution there because of his association with illegal religious activities.
After his arrival in Australia on 6 September 1997, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 22 November 1999. After previous ineffective attempts to notify the applicant of the delegate’s decision, the department purported to notify him of the decision made on 22 November 1999 by letter dated 1 October 2008. The applicant subsequently applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 193 – 197). Relevant factual allegations are set out below.
In his application for a protection visa made in July 1999, the applicant claimed that he left China because his eel farm business was terminated and the authorities were going to arrest him for obstructing public duties and for carrying out illegal religious activities. He alleged that he would be gaoled if he returned. He claimed that in 1995 he and another named person set up a Taoist group which expanded and came to the attention of the authorities. They ignored warnings from the authorities, had confrontations with the police and as a result he went into hiding in Guangdong and with the help of a friend obtained his passport. He also claimed that although he left China legally he had difficulties obtaining his travel documents and had to pay bribes and use connections to get his documents.
On 28 October 2008, the Tribunal received an undated statement from the applicant in which he claimed that:
a)his real name is different from the name given in his visa application and he is married, although his relationship with his wife has broken down;
b)in January 1995, he met a Christian preacher from Taiwan who encouraged him to worship and spread the word of Jesus. The preacher offered him money to travel to churches in Fujian and between January and October 1995 he went to eight or nine churches with the preacher;
c)on 25 October 2007, the preacher was arrested and the police came to the applicant’s house to look for him but he was at a friend’s house. The police were interested in his association with the preacher and thought he had been involved with illegal Christian activities;
d)he fled to Guangdong province for more than a year in fear of being arrested. His wife told him in early 1996 that the authorities had again come to his house;
e)he met a man who helped him get an identity card and passport in the false name used on his visa application; and
f)he did not receive the letter from the Department notifying him that his application for protection was refused.
On 31 October 2008, the Tribunal received a further extracted copy of the applicant’s earlier statement and country information sent by his adviser, who submitted that the applicant has a subjective fear of serious harm in China because of his imputed religion and imputed political opinion because of his perceived membership and support of unregistered churches.
On 11 November 2008, the applicant appeared before the Tribunal to give evidence and present arguments, making the following additional claims:
a)when questioned as to his identity, his true and false names and his documents, the applicant claimed that:
i)he gave the ID card in his real name to the Minister’s Department after his son sent it to him;
ii)the passport he used to enter Australia in his false name was accidentally burned at a farm when he first arrived in Australia;
iii)the first person he told about his false name was his boss at the farm where he worked, on 19 September 1997; and
iv)he did not know why the passport was issued in a false name. The boss from a factory helped him get it and he gave that person his correct name and photographs, however, the passport was issued with his photograph and a different name and date of birth;
b)in 1995 he became acquainted with a preacher who stayed in his cousin’s hotel. He handed out papers for the preacher whom he took to eight places in China to preach, however he could not remember exactly when that occurred as it was more than ten years earlier and does not know what happened to the preacher;
c)he stated the preacher’s religion was “Eastern Lightning”, but the applicant did not join the religion, he had just seen that name on the book. The preacher’s books talked about religion and God and “doing good deeds”;
d)although he had named the preacher in his statement sent on 31 October 2007 and said that this person was a Christian preacher, the applicant claimed he never knew what the preacher’s name was, or his religion. The applicant said that he had paid his adviser to do the statement, that “he did not make it clear” and that he is not well-educated;
e)in 1995 he went to Canton and helped his boss count bricks in a brick factory for more than one year in return for meals, cigarettes and accommodation at the factory. He did so without harm as the factory was in a remote place;
f)he obtained the money to get his passport and visa when he and his wife borrowed money in 1997;
g)when asked about the length of time between his arrival in 1997 and his 1999 application for protection he gave various responses, including that:
i)he was staying on a farm in Melbourne and there were no people around;
ii)he asked an immigration agent to get him a visa after his 1997 visa expired but did not know if the agent did this;
iii)he was scared to lodge the application for protection in 1999 because his life was threatened in China;
iv)when he entered Australia he thought he could stay legally for one month and then would stay illegally in Australia; and
v)he learned about protection visas from a friend who has now returned to China; and
h)the applicant said that the main reason he came to Australia was to work and does not want to return to China because he and his wife have separated, he has no money and has “no face” to see his children. He said that there was nothing else worrying him about a return to China.
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 considered the issue of the applicant’s identity, noting the ID card presented to the Department and found that it accepted, not without some doubt, that he is a citizen of China, that he is who he claims to be and that he came to Australia using a false passport in another name;
b)however, it did not accept that the applicant fears harm in China or that he left China for the reasons that he claims, noting that:
i)if he had travelled with a preacher to several places in China he would have known the name of the preacher and his religion. The Tribunal found that the applicant gave inconsistent evidence on this point, stating at the hearing on 11 November 2008 that he did not know the preacher’s name and his religion, although he had provided the name and identified religion as Christian in a statement sent to the Tribunal on 28 and 31 October 2008; and
ii)although at the hearing the applicant referred to the religion as “Eastern Lightning”, which the Tribunal accepted is related to Christianity, he also stated that he did not remember the preacher’s religion because he was not well educated and the preacher just asked him to hand out some papers;
c)it found his evidence that he was able to support himself in a brick factory in China from late 1995 and avoid harm because the factory was in a remote place was not reasonable or plausible;
d)further, the applicant’s evidence to have thus escaped harm was inconsistent with his claims to have been threatened with harm for the reasons he alleged; and
e)given the applicant’s own oral evidence towards the end of the hearing, the Tribunal found that the main reason he came to Australia was to work and, further, that he does not want to return to China as he is now separated from his wife, has no money and has lost face with his children.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)People who are the subject of a complaint to the PRC Authorities and who lack the ability to effectively respond to the applicant’s involvement in pro democracy movement in China.
Without intending disrespect to the applicant, as pleaded, the ground appearing in the application commencing the proceedings is meaningless. It makes no reference to the conduct of the Tribunal hearing, to the facts found by the Tribunal or to the conclusion which the Tribunal ultimately reached. The pleading cannot be construed in any way which amounts to an allegation of jurisdictional error on the part of the Tribunal. As already observed at [3] above, the only basis upon which the Tribunal’s decision may be set aside is if it is affected by jurisdictional error. Absent any such allegation, the application must fail.
In any event, a review of the Tribunal’s decision does not disclose any error of that sort. It clearly understood the tests which it had to apply, as well as the evidence which was before it. Having made findings of fact which were open to it on the evidence, the Tribunal reached a decision as to the merits of the case which cannot be disturbed by this Court. Moreover, there is no indication in the Tribunal’s decision record that it erred in the conduct of its review, for instance by proceeding in breach of any of the provisions of div.4 of pt.7 of the Act.
Conclusion
Jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 March 2009
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