SZNIC v Minister for Immigration
[2009] FMCA 870
•13 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 870 |
| MIGRATION – Review of decision of RRT – whether applicant satisfied Tribunal of his need for protection on the convention ground of religion. |
| WALT v Minister for Immigration [2007] FCAFC 2 SBCC v Minister for Immigration [2006] FCAFC 129 |
| Applicant: | SZNIC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 671 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 August 2009 |
| Date of Last Submission: | 13 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 671 of 2009
| SZNIC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 25 February 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 1 August 2008. On 29 October 2008, after an interview with a delegate, he was refused the visa and on 26 November 2008 he applied to the Refugee Review Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal at a hearing which determined on 20 February 2009 to affirm the decision under review. That decision was handed down on the same day.
The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion. The applicant told that as far back as 1988, through his grandmother and mother, he was enlightened by the religion of Christianity. He joined a group at the end of 1990 that he indicated was not part of the official church. He told that in 1994 he had been arrested along with twelve or so others whilst attending a church. He was placed in detention and whilst there suffered persecution. He told how he had studied a book known as “The Book of New Evangelicals”. He was held in detention for approximately three months and then released. His home had been searched.
Thereafter he continued in his faith but became less active in the church because of work commitments after 2000. He said that his grandmother and his mother attended the same group. When he advised the delegate of this information the delegate told him that he thought that this was inconsistent with country information regarding the treatment of Christians in Fujian province, from where the applicant came, as the authorities in that province were tolerant of persons attending unregistered churches.
The applicant was married until 1999 when he became divorced. He has a daughter and a son. His son was granted a student visa to study in this country on 30 April 2007. The son was issued with a passport on 23 May 2007 and arrived in Australia on 27 May. On 19 July 2007 the applicant was granted a passport in China and given a student guardian visa to visit his son on 29 January 2008. The applicant told the Tribunal that he had a close relationship with his son and had come to Australia to be with him. He hoped that his son could continue to study in Australia and attend university.
The Tribunal questioned the applicant closely upon his knowledge of the form of Christianity he purported to practice. I am satisfied that the form of questioning carried out by the Tribunal was consistent with that approved of by the Full Bench in WALT v Minister for Immigration [2007] FCAFC 2 which indicated that the Tribunal could explore a person’s religion to determine whether his claim his genuine although the Tribunal could not take on the role of arbiter of doctrine with respect to any religion; SBCC v Minister for Immigration [2006] FCAFC 129.
The Tribunal’s grounds and reasons would seem to indicate that the applicant had very little knowledge of some of the basic tenets of the religion. He could not name the gospel book that he said had been taken by the police. He did not appear to understand the notion of baptism. He could not name the apostles and he was totally unable to provide any illumination as to the nature of The Book of New Evangelicals. The Tribunal noted that the applicant claimed that he had attended church in Lidcombe every Sunday since he had arrived in Australia. The Tribunal questioned him about that attendance but the applicant neither knew the name of the church nor the pastor. He could not understand the services and it would appear that his knowledge of Christianity was limited to the fact that he was aware that Jesus Christ was allegedly born on 25 December and that Easter fell between 21 March and 25 April in any one year.
The Tribunal based its decision to affirm that of the delegate on the view that it held that the applicant was not a credible witness. The Tribunal could not accept that he was, or had ever been, a Christian.
Furthermore the Tribunal noted that the applicant did not know the difference between the official and underground churches in China and he did not know whether the church he said that he attended was one or the other. In regard to the applicant’s attendance at church in Lidcombe, the Tribunal concluded that, as he was unable to tell anything, including the name of the church or the pastor, it could not be satisfied that he had attended such church since coming to Australia. Because the applicant was not, and had not, been a Christian, he could not be a person to whom Australia owed protection obligations on the Convention ground of religion. The Tribunal felt that in all probability the applicant had come to Australia for the purposes of seeing and remaining with his son.
On 20 March 2009 the applicant filed an application with this court seeking review of the decision of the Tribunal. The only ground of the application was:
“The RRT decision was affected by jurisdictional error in that it failed to consider the applicant’s religious practice in Australia. The applicant claims before the Tribunal, that he had been attending a church in Lidcombe regularly. If he returns to China, he will not be able to continue his religious practice.”
It will be clear from these reasons, that the Tribunal did consider whether the applicant had practised Christianity within Australia. It came to the conclusion that he had not. In those circumstances the applicant’s claim is one for impermissible merits review, as he wishes the Tribunal to change its views about him. This court is unable to assist the applicant in that regard.
Before me today the applicant said that he was not happy with the decision made by the Tribunal. He thought he would be persecuted if he went back to China so he is afraid of doing so. He then told me that he was divorced and that his son was here and that his daughter was married and that if he went back to China there was no-one there for him. He told me that his son’s tuition fee was very expensive and that he had not been given a work permit. He asked me to provide him with a work permit so that he could continue to pay for his son’s study. He asked me to let him stay in Australia. The applicant may not be aware that a court providing judicial review is unable to provide either visas or work permits. The only power vested in this court is to decide whether the Tribunal came to the decision which it did in a lawful manner. If it did not the applicant will be referred back to the Tribunal for a rehearing. In this particular case I am satisfied that the Tribunal acted within the law and there has been no ground articulated to me upon which the applicant can succeed.
The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 September 2009
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