SZNEB v Minister for Immigration

[2009] FMCA 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 684

MIGRATION – Review of decision of RRT – where all matters of concern to Tribunal had been put before the applicant in the delegate’s decision and s.424A letter.

Migration Act 1958 (Cth), s.424A

Perera v Minister for Immigration [1999] FCA 507

Applicant: SZNEB

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 114 of 2009

Judgment of: Raphael FM

Hearing date: 10 July 2009

Date of Last Submission: 10 July 2009

Delivered at: Sydney

Delivered on: 10 July 2009

REPRESENTATION

For the Applicant: In person

Counsel for the First 

Respondent:

Ms S Sirtes

Solicitors for the First

Respondent:

Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 114 of 2009

SZNEB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 19 April 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 28 May 2008. On 20 August 2008, following an interview, a delegate of the Minister refused to grant a protection visa. The applicant sought review of that decision from the Refugee Review Tribunal. On 7 October 2008 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”).  The applicant responded on 29 October.  On 9 December 2008 the applicant attended a hearing before the Tribunal and on 17 December 2008 the Tribunal determined to affirm the decision under review.

2. The basis of the applicant’s claim that she was a person to whom Australia owed protection obligations was her belief in and practice of the Christian religion in an underground church.  She told how in 2005 her father had been taken to hospital and whilst he was there an uncle came with two of her aunts and they prayed over him.  He made a recovery and thereafter both her father and herself became Christians.  She would go to a family church every Sunday.  The applicant stated that on 11 November 2007 she was studying the Bible at the church.  At about 7.00 p.m. three people broke in and took the applicant and four other people away to the local police station.  In her statement with her PVA she said she had been detained for 15 days and released after her husband paid a fine of 5,000.00 RMB yuan. She was tortured and abused.  She later clarified this with the Tribunal saying that she had been ordered to remain in custody for 15 days but was released after three days following her husband’s payment of the fine.

3. The applicant stated that following her release she was dismissed from her employment.  She opened up a restaurant and it became a gathering place for sisters and brothers from her church.  This aroused the suspicions of the authorities and the restaurant was closed.  The applicant claims that if she returned to China she would be arrested.  The applicant told the Tribunal that she had left the country without problems via Hong Kong and that since her arrival in Australia she had attended church at Burwood.

4. The Tribunal questioned the applicant in relation to her practice of Christianity within China and her association with the underground church. Certain inconsistencies in her statement had been the subject of comment by the delegate in his decision [CB 55-67] and were referred to in the s.424A letter [CB 74-80] as were references to the ability of persons who were of concern to the Chinese authorities to leave the country. Thus all the issues that were likely to concern the Tribunal had been telegraphed to the applicant well before the hearing and the Tribunal’s concerns about her inadequate responses entitled it to come to a conclusion that she could not satisfy it that her adherence to the Christian faith was completely genuine.

5. The Tribunal’s reasons for coming to this conclusion included the applicant’s failure to answer in a manner the Tribunal expected some simple questions concerning Christianity, the Bible and the religious practices of underground churches. The Tribunal also expressed concerns about certain inconsistencies in her evidence about the arrest and about her dismissal from her employment. In this regard the Tribunal pointed to the fact (disclosed in the s.424A letter) that an inquiry had been made of her employer who she said had dismissed her but who had responded to the inquiry that she was still employed. The Tribunal also felt that the applicant did not respond satisfactorily to concerns it had raised about her ability to have left the country and had felt that had she been a genuine refugee she might have taken advantage of seeking asylum in Japan, a country that she had visited in January 2008. The Tribunal expressed its concern about the applicant’s inability to describe in any detail her attendance at church services in this country. It concluded that the applicant was not a Christian, had not been arrested and will not practice Christianity in an underground church should she return to her home country. It concluded that the applicant had not satisfied it she was a person to whom Australia owed protection obligations because she did not have a well founded fear of persecution for a Convention reason.

6. On 16 January 2009 the applicant filed an application with this Court.  It had two grounds.  The first was that the Tribunal did not weigh her evidence in China and in Sydney and that her application was refused unfairly.  As I gather from her submissions today what the applicant meant by this was she could not actually understand why the Tribunal had not believed her.  She could only assume that some of the Tribunal’s questions had not been interpreted to her properly or that the interpretation of her responses was insufficient to convince the Tribunal.  This is the first time that any concern about the interpretation services was raised and in the absence of a tape recording or a transcript, I am unable to come to any conclusions that would allow me to find a jurisdictional error of the type considered by the Federal Court in Perera v Minister for Immigration [1999] FCA 507.  As it is the Tribunal’s responsibility “par excellence” to make up its own mind about the credibility of an applicant this Court cannot re-hear the application and substitute its own views for those of the Tribunal.

7. The second ground is that procedural fairness was denied and that the Tribunal did not use favourable cases to her application. It did not count the risk she faced if she returned to China. There are no particulars of the lack of procedural fairness and it seems to me that this particular applicant was well aware of the matters of concern that would be raised by the Tribunal in the interview because, as I have said, she had had a previous interview with a delegate and had been sent a letter under s.424A. The matters that concerned the delegate and the Tribunal in the letter were the matters which later became significant in its decision. I am not sure what the applicant means by the fact that the Tribunal did not use cases that were favourable to her application but I can say that the Tribunal did consider the risk she would face if she returned to China and came to the conclusion that there was no risk. The applicant sought to persuade me this morning that she must be telling the truth because she had a good job, a nice family, a young child and a wealthy lifestyle and that she would not have left China had she not feared persecution. These are matters of fact which do not go to a consideration of the manner in which the Tribunal reached its decision, and that is all this Court can consider.

8. I dismiss the application. The applicant is to pay the respondent’s costs which I assess in the sum of $4,700.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  20 July 2009