SZNCL v Minister for Immigration - [2009] FMCA 313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 313

MIGRATION – RRT decision – Chinese applicant claiming fear of persecution as Catholic – 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)

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant:

SZNCL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3450 of 2008

Judgment of:

Smith FM

Hearing date:

2 April 2009

Delivered at:

Sydney

Delivered on:

2 April 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3450 of 2008

SZNCL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a bricklayer and construction worker from China. He arrived in April 2008, after spending some years in Singapore. On 4 June 2008, he applied for a protection visa, assisted by a migration agent. A brief statement referred to the applicant’s origins in a rural area, and claimed that in March 2005 he was introduced to the “Holy Catholic Church” by a friend. The statement said: “I started to worship Catholic. Later, I often went with the church brothers and sisters to promote Catholic everywhere”. The statement did not refer to any persecution directed at the applicant, but suggested that he “wanted to go abroad” because of his strong religious opinions.
No corroboration, or details, of these claims were provided to the Department of Immigration in writing, but the applicant attended an interview with a delegate on 30 June 2008. At the interview he maintained his general claims to fear persecution because of his religion, but the delegate formed the view that “his knowledge of fundamental principles of Christianity is non-existent”. The delegate wasn’t satisfied that he was a “genuine Catholic”, nor that there was any evidence that he had been discriminated against or persecuted by the authorities prior to his departure from China in 2005.
On appeal to the Tribunal, the applicant continued to be represented by his migration agent. He attended a hearing of the Tribunal on 17 November 2008. Neither party has tendered a transcript, but the Tribunal gives a description of its questioning of the applicant, and there is no reason shown in the material for doubting its description.
At the hearing, the applicant gave a different account of how he was introduced to religion. He claimed that he belonged to a family where the Catholic religion was passed on from generation to generation, that all members of his family were Catholic, that he had attended church since he was a boy, and that he had been baptised although he couldn’t remember how this was done.
The Tribunal explored his knowledge of Catholic religious practices and beliefs. Although the applicant showed some improvement on his knowledge since his interview with the delegate, he continued to show a significant lack of the knowledge which would be expected. For example, he had no knowledge of who the worldwide head of the Catholic Church was, or the meaning of the word “pope”. The applicant referred to going to a Chinese church in Flemington every week. The Tribunal put to the applicant that it had difficulty believing him, and that there were reasons for being concerned about the different accounts he had given.
At the end of the hearing, the applicant was asked if he wished to make other comments, and the Tribunal also foreshadowed that it would put its concerns to him in writing for written comment. It did so subsequent to the hearing, and the applicant responded in a most unsatisfactory manner, seeking to explain inconsistencies by claiming a lack of recollection of what he had said at the Tribunal hearing. He also reverted to the claim that he joined the Catholic Church in 2005 and had been a Catholic “for not long”.
The Tribunal made a decision on 8 December 2008 which affirmed the delegate’s decision. The Tribunal referred to the inconsistent evidence given by the applicant in his original claims, at the hearing, and in his response to the written invitation, concerning how he joined the Catholic Church and what his religious activities had been. The Tribunal said: “more importantly, at the hearing the applicant displayed a distinct lack of knowledge about Christianity in general and Catholicism in particular”. The Tribunal said that it was not satisfied on his evidence at the hearing that he was a genuine Catholic.
The Tribunal considered the applicant’s attendances at church in Australia, and referred to his having some improvement in his knowledge compared with what he had said at the interview with the delegate. However, it said:
Having regard to the applicant’s overall credibility or lack thereof, the Tribunal is of the view that his very limited knowledge of Christianity has been acquired in Australia and his church attendance has been designed to assist him in his endeavour to remain in this country by strengthening his case for a protection visa.
The Tribunal said that it was therefore bound to disregard his conduct in Australia pursuant to section 91R(3) of the Migration Act. The Tribunal did not accept that the applicant had attended church or engaged in any Catholic related activities in China, and was not satisfied that there was a real chance that he would be harmed for a Convention reason if he returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. His application has been set down today to consider whether it raises an arguable case for the granting of this relief. The applicant has had an opportunity to file an amended application and evidence in support of his grounds, after receiving a bundle of relevant documents and a referral for free legal advice.
However, he has not filed any additional documents, and he relies on the following two grounds in his original application:
1.Because I am in my forties, and this is the first time for me to face such serious situation, I was very nervous. The case officer didn’t ask me some important and related questions which are useful to me, so I have no chance to express my situation well.
2.I think the interpreter didn’t interpret what I said correctly.
I am prepared to accept that the applicant may have been nervous when appearing before the Tribunal and previously at the delegate’s interview. He appeared to me to be nervous today. However, I do not accept that he has pointed to any evidence to give substance to his suggestion that the Tribunal did not give him a full opportunity at the hearing to explain his history in China, and to persuade the Tribunal that indeed he was a genuine adherent of Catholicism. He has not presented a transcript to show any defects in the hearing held by the Tribunal, and the Tribunal’s own description of the hearing lends no substance to the contention made in ground 1. I do not consider that the applicant has raised an arguable case in relation to that ground.
Nor has the applicant presented any evidence or material suggesting that there is substance to ground 2. He was unable today, when invited, to point to any particular material mistranslation which occurred at the hearing. He has presented no evidence suggesting there may have been any defect in the interpretation at the hearing on the matters upon which the Tribunal relied (compare Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, and VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723). There could be little doubt that the Tribunal’s adverse opinion of the applicant’s credibility was based on the applicant’s actual responses.
I can identify no arguable jurisdictional error which might otherwise arise on the material before me.
I therefore am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate today to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 20 April 2009