SZODC v Minister for Immigration

[2010] FMCA 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 326

MIGRATION – Review of decision of RRT – where applicant claims to be a Christian in fear of repercussions should he return to China was not accepted by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91R(3), 422B, 424A

WALT v Minister for Immigration [2007] FCAFC 2

First Applicant: SZODC

Second Applicant: SZODD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 188 of 2010

Judgment of: Raphael FM

Hearing date: 5 May 2010

Date of Last Submission: 5 May 2010

Delivered at: Sydney

Delivered on: 5 May 2010

REPRESENTATION

Counsel for the Applicants: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 188 of 2010

SZODC

First Applicant

SZODD

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a father and son, citizens of China, who arrived in Australia on 14 April 2008 and applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 24 July 2009. On 30 September 2009 a delegate of the Minister refused to grant them protection visas and on 26 October they applied for review of that decision from the Refugee Review Tribunal. The applicants attended a hearing before the Tribunal and, after the hearing was completed, the Tribunal wrote to them a letter pursuant to s.424A of the Migration Act 1958 (the “Act”) on 10 December 2009 [CB 92]. The applicants responded to that letter on 4 January 2010 (by fax).  On 5 January 2010 the Tribunal determined to affirm the decision not to grant protection visas and handed that decision on 6 January.

2. It was the father who completed the application Form C claiming that he had a well‑founded fear of persecution should he return to China for the convention reason of religion.  His son completed Form D which indicated that he had no independent claims of his own.  Throughout the Tribunal decision, and in these reasons, the father will be referred to as “the applicant”.

3. The applicant claimed that his wife became a Christian in May 2003 and that because this turned her into a modest, forbearing and warm‑hearted person he, himself, was encouraged to become a Christian which he says he did on 11 March 2007 when he began to participate in religious gatherings which his wife was organising in a family church.  The applicant and his wife had a business selling construction materials through a retail outlet and a warehouse.  After the applicant left China with his son, who intended to study in this country, his wife cleared out the warehouse and used it as an illegal church. 

4. In July 2009, when the applicant and his son were preparing to return to China, he received information from his father that his wife had been caught and that the police had raided the warehouse and a number of people, including his wife, had been arrested.  The applicant was told that his wife was tortured and she said that her husband was responsible for the illegal church gatherings.  The applicant’s father told him that on 10 July 2009 his wife was sent to a labour camp for three months.  He was told that, because of what his wife had said to the PSB, it would be dangerous for him and the son to return.  The applicant stated that since he had been in Australia he had been a regular attendant at church. The applicant was interviewed by the delegate who concluded that he did not find the applicant’s evidence credible in a well reasoned decision that is found at [CB 50‑61].  The applicant was provided with a copy of this decision and would have had it before him when he made his application to the Tribunal.

5. When the applicant appeared before the Tribunal he gave evidence about the events which have been discussed above and, in relation to the history of his wife’s arrest, was inconsistent in some of his evidence concerning the number of persons who were in the premises at the time the police raided it and the number of police utilised.  The Tribunal expressed concern about this inconsistency orally, and it was a matter referred to in the 424A letter at [CB 92].  The applicant indicated in his response that the inconsistencies were understandable because he was not present when the arrest took place and he had obtained this information from his father and from his daughter and that there was an inconsistency between what they had told him.

6. The Tribunal also expressed concerns to the applicant that, when the son gave evidence, he did not appear to be aware that meetings were taking place on a regular basis in the matrimonial home.  The Tribunal pointed out that if religious gatherings were taking place in his home for approximately five years and on average once a month one would expect that both the applicant and his son would have been aware of those meetings and could provide similar evidence relating to them.  The applicant responded to this to the effect that his son had been in boarding school and was not at home as often he was.

7. The Tribunal questioned the applicant upon his religious knowledge in a manner which would appear to me to comply with the observations of the Full Federal Court in WALT v Minister for Immigration [2007] FCAFC 2. The applicant’s responses indicated to the Tribunal that his knowledge was scant even though he claimed to be reading the bible regularly and practising as a Christian for at least two years. For these and the other reasons expressed in the Tribunal’s decision it concluded that it did not consider the applicant to be a credible witness. It did not believe that his wife had been arrested for running a local church. It could not be satisfied that the wife was, in fact, a Christian. It did not accept that the applicant was a Christian and it disregarded the applicant’s churchgoing and practice of Christianity within this country pursuant to the provisions of s.91R(3) of the Act. The Tribunal was unable to be satisfied that, if the applicant returned to China, he would be persecuted by the authorities for reason of his religious views.

8. On 2 February 2010 the applicant filed an application in this court.  There were three grounds.  The first was:

   “1.RRT considered my case unfairly.  They doubt my claim without substantive evidence.”

   The gravamen of this complaint is that the Tribunal should have acted as a contradictor and put evidence to the applicant as to why it could not believe the story that he had given it.  This, of course, is not what the Tribunal is permitted or set up to do.  It is the obligation of the applicant to satisfy the Tribunal, standing in the shoes of the Minister, that he is a person to whom Australia owes protection obligations; it is not the responsibility of the Tribunal to persuade an applicant that he is not. 

9. The second ground was that:

   “2.Procedural fairness has been denied by RRT.”

   The applicant does not assist the court by providing it with any particulars of the denial of procedural fairness and, without particulars, the court is hamstrung, especially when one has regard to the provisions of s.422B of the Act, which provide for a code relating to the provision of procedural fairness in these matters. Section 442B constitutes an exhaustive statement of the natural justice hearing rule.

10. Finally, the applicant argued that:

    “3.RRT did not consider my situation in China.  I will be put in gaol if I go back.”

    This claim cannot possibly be made out.  The Tribunal considered the applicant’s situation at length.  It came to the conclusion that he would not be put in gaol if he returned to China because he had not done anything which would involve him in any problems with the Chinese government and he was not a person to whom Australia owed protection obligations.  The application cannot succeed on this basis. 

11. When the applicant attended before me today he told me that he was not satisfied with the decision of the Tribunal that his evidence was not true because he had told the Tribunal the truth.  Indeed, he said he told them nothing but the truth.  He did not agree with the Tribunal’s decision.  In response I was referred to the helpful submissions of Mr Baird who indicated that the Tribunal did address the applicant’s claims and made findings which were open to it on the evidence including those findings in relation to inconsistencies in the applicant’s evidence, the vagueness of the son’s evidence, the failure of the applicant to satisfy that he had sufficient knowledge of Christianity to warrant him being considered a genuine Christian and that the Tribunal did not overlook any claims by the applicant or make a decision on irrational bases. 

12. The applicant criticised the Tribunal’s findings on inconsistency.  If this matter was an appeal, rather than a review by the court, I might be sceptical about the value of finding an inconsistency in evidence which was admittedly hearsay.  The applicant never tried to hide the fact that his knowledge of what occurred to his wife had come from family in China.  There may not really be very much between the fact that one of those reporters suggested that there were 10 people in the room and another a few less.  However, the court is not hearing this matter on appeal and it is clear that the Tribunal was entitled to utilise these inconsistencies in coming to its view about the applicant’s credibility, which is a matter for the Tribunal “par excellence”. 

13. The applicant also told me that he was a committed Christian and that he had attended church in this country but, he said, “I am not a Christian yet.” I take from that only that the applicant’s knowledge of Christianity was not perhaps as full as the Tribunal appeared to have expected, but again, this is a matter for the Tribunal and not for me. I cannot see that in the light of the Tribunal’s findings its application of s.91R(3) is any way inappropriate. It follows from the above that I am unable to find any ground upon which the Tribunal made a jurisdictional error in the manner in which it came to its decision in this particular case.

14. I dismiss the application.  I order that the Applicants pay the First Respondent’s costs assessed in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  12 May 2010