SZQLQ v Minister for Immigration

[2011] FMCA 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLQ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 880

MIGRATION – Review of Refugee Review Tribunal decision – persecution –  grounds not particularised – whether Tribunal need take into account international treaties not incorporated into Australian law – where applicant claimed to be a Shouter – merits review – whether Tribunal entitled to take into account delay in making of protection visa application.

Migration Act 1961 (Cth) ss.424A

Abebe v Commonwealth (1999) 197 CLR 510
SZQGE v The Minister [2011] FCA 1018
Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347
Applicant Mzkao v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1484
Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632

Applicant: SZQLQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1561 of 2011

Judgment of: Raphael FM

Hearing date: 4 November 2011

Date of Last Submission: 4 November 2011

Delivered at: Sydney

Delivered on: 4 November 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1561 of 2011

SZQLQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on

   
   

   27 December 2007 as the holder of a student visa.  That visa was due to cease on 15 March 2010, however, it had previously been cancelled in August 2008 for non-compliance.  The applicant disappeared into the community until he was found on 12 January 2010.  He was given a bridging visa when it was later discovered that the cancellation of his student visa was defective.  The student visa was restored on 16 March 2010 although it had expired on 15 March 2010.  The applicant again disappeared into the community and was found again on 31 January 2011, or around that date, and taken into detention where he made an application for a protection visa.

2. On 18 March 2011 the delegate of the Minister refused to grant the protection visa and on 24 March 2011 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The Tribunal held a hearing with the applicant.  He was represented by a firm of solicitors and migration agents.  On 5 May 2011 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1961 (Cth).  That letter was responded to by his lawyers.  On 24 June 2011 the Tribunal determined to affirm the decision under review. 

3. The ground upon which the applicant claims to be a person to whom Australia owed protection obligations was that of religion.  He claims to be a member of the Shouters Church in the PRC and to have suffered under the hands of the PRC authorities since childhood as a result of this affiliation.  At the hearing of the Tribunal he was questioned at length about his association with the Shouters Church in China and his conduct in regard to religious practice since he came to Australia.  The matters that caused the Tribunal concern were all relayed to him in the s.424A letter of 5 May.  The letter referred to some particular matters concerning the applicant’s conduct in Australia and mentioned the fact that it might make findings about his limited knowledge of the Shouters religion. 

4. The Tribunal was particularly concerned, it would appear, by two facts.  The first was that although the applicant claims to have been a Shouter from birth and that his family are Shouters, he did not make any attempt to find a Shouter Church in Australia, worshipping instead, first at an unspecified church and then later at a Methodist Church.  The second matter that concerned the Tribunal was the fact that the applicant did not appear to be aware that there was a difference between the Recovery Bible used by Shouters and the ordinary Bible used in the Methodist Church.  The Tribunal noted that the applicant had said that he attended church in Carlton in Sydney but that one of the seven Shouter Churches in Sydney was located in that suburb and he had not attended it. 

5. The Tribunal was also concerned about the fact that the applicant did not apply for protection until after he was taken into custody for the second time.  He had already been in Australia for three years. 

   
   

   He claimed he needed Australia’s protection in order to allow him to practice his religion freely. 

6. The Tribunal’s conclusion about the applicant’s evidence and claims was that it did not find he was a credible witness and it did not believe that he had ever been a genuine, practicing member of the Shouter religion in China or that he was a committed Christian.  It did not believe that he would become a practising member of the Shouter religion or the Christian religion in China upon his return or that he would be imputed as a member of those religions.  Therefore, it did not accept that there was a real chance that he would be persecuted for reasons of his religion or for any Convention reason if he returned to China now or in the reasonably foreseeable future. 

7. On 22 July 2011 the applicant filed an application in this court seeking a review of the decision of the Refugee Review Tribunal.  There were four grounds of application.  The first was:

   Error of law in the decision it self [sic] and in the manner in which the REFUGEE REVIEW TRIBUNAL conducted the hearing and matter. 

8. Although the applicant was given leave to file an amended application at the directions hearing, prior to this case being set down, he did not do so.  This ground of application is not particularised in any way and the court does not believe that it should attempt to guess what the author of the grounds meant by it.  It is for the applicant to make his case in this court as it is for him to make his case before the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510. There is no merit in this ground as pleaded.

9. The second ground is “[f]ailing to take into account very relevant facts of the matter”.  Once again there are no particulars to this ground and once again the court should not struggle to try to interpret it.  The ground has no merit as pleaded. 

10. The third and fourth grounds referred to the Tribunal failing to take into account Australia’s obligations under the International Covenant on Civil and Political Rights or the International Covenant against Torture and other Cruel or Inhuman or Degrading Treatment or Punishment.  Whilst these are matters that the Tribunal will soon have to take into account, it was not obliged to do so at the time of this hearing.  In SZQGE v The Minister [2011] FCA 1018 Bennett J said of similar grounds (at [13]):

    “Grounds 4 and 5 refer to international treaties to which Australia is a party.  The treaties are not part of Australian law except to the extent that they are incorporated by legislation.  The relevant legislation s 36(2)(a) of the Act which directs attention to the Refugees Convention as amended by the Refugees Protocol, not the treaties … I see no basis for grounds 4 and 5.”

    I would respectfully follow Her Honour’s views. 

11. The applicant appeared before me today.  He told me that the bible that he used in China was the same as other Christian Bibles and that in his Shouters Church there was no requirement to use the Shouters Bible.  He felt it was unfair that the Tribunal had rejected his case based upon the single bible point.  He believed it was unfair that the Tribunal did not believe that he had been a Christian since birth.  The applicant also said that he was asked why he did not go to a Shouters Church, instead he went to a normal church.  He told me that he had told the member quite clearly that he had just arrived in Australia and had no idea that there was a Shouters Church.  He did not understand why he was not believed.

12. The applicant also raised a point about owing money for his tuition.  This is something that was mentioned by the Tribunal and referred to in the s.424A letter but, as Mr Baird, who appears for the Minister, submits, did not really form a significant ground for the Tribunal’s decision.  It had been referred to as follows (at [92 CB 94]):

    The Tribunal has not accepted that the applicant was a Shouter in China or that he was a Christian in China. The Tribunal has considered the applicant’s claim that he began attending church in Australia long before he lodged a protection visa application.  However, the Tribunal is satisfied on the basis of the applicant’s evidence that he wanted to stay in Australia in order to work and send money to his parents to repay a large debt.  The Tribunal is of the view that the applicant has attended church in Australia because he believed that he might eventually need to apply for protection in order to prolong his stay.  However, the Tribunal also accepts that the applicant may be attending church in Carlton because his friends do so and that part of his motivation is therefore to socialise.  Therefore, the Tribunal has not disregarded this conduct in accordance with subsection 91R(3) of the Act. 

13. This is the only reference to the money question in the decision and, at its most significant, would appear to do no more than confirm the Tribunal’s view of the applicant’s lack of genuine Christian belief.  The applicant did not say that the Tribunal fell into the jurisdictional error, only that he did not believe that it was unreasonable for a son to wish to assist his parents to repay a very substantial debt. 

14. Mr Baird submits, and I agree with him, that the findings made by the Tribunal concerning the applicant’s lack of knowledge of the Shouter religion and, in particular, the use of the Recovery Bible were matters that were open to it on the evidence given by the applicant himself and also on the substantial independent country information found between ([72] CB 86) and ([80] CB 91).

15. The Tribunal also relied on the delay in the applicant seeking Australia’s protection.  There is substantial authority for the proposition that this is a matter that the Tribunal is entitled to take into account: Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347, Applicant Mzkao v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1484, Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632.

16. All in all, I am of the view that the applicant has not raised any matter in respect of which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached its decision.  The application must be dismissed and the applicant should pay the respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  11 November 2011