SZRRV v Minister for Immigration

[2012] FMCA 997

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRV v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 997

MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application on account of the applicant’s failure to appear.

Migration Act 1958 (Cth), s.91R
Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZRRV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1666 of 2012

Judgment of: Driver FM

Hearing date: 30 October 2012

Delivered at: Sydney

Delivered on: 30 October 2012

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms R Jones
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be sent by ordinary pre-paid post to the applicant at her last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1666 of 2012

SZRRV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 31 July 2012 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) dated 4 July 2012 and certified on behalf of the Tribunal’s district registrar the following day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The background facts relating to the applicant’s visa claims and the Tribunal decision on them are set out in the Minister’s outline of written submissions filed on 19 October 2102. 

3. The applicant is a citizen of the People's Republic of China (from Fujian Province) who first arrived in Australia on 12 April 2007 on a student visa.

4. The applicant first applied for a protection visa on 4 August 2011, however, she subsequently withdrew that application. The applicant claimed that the application had been prepared by a migration agent who had not truthfully recorded her claims. Although the applicant signed the application, she claimed that she was not aware of what had been written at the time it was submitted.

5. The applicant submitted a further application for a protection visa on 26 October 2011.

6. The applicant claimed to fear harm in China because she is a practising member of the Local Church. She claimed that she became a Christian and joined the Local Church when she moved to Australia in 2007 as a student and that she began regularly attending the Local Church in Sydney from September 2011.

7. The applicant claimed that she visited her family in China in January 2008 and distributed materials about her faith. During this time, the police arrested her at a gathering of worshippers and confiscated the “illegal” material. She was detained for two days and was not allowed to eat or sleep.

8. The applicant claimed that she has continued to send material about her faith to her mother in China and that her computer was hacked. She told the Tribunal that the police had warned her mother that they will arrest her if the applicant does not return to China.

Tribunal’s decision

1. The Tribunal found that the applicant was not a credible witness[1].

   [1] Relevant Documents (RD) 140 [86]

2. In relation to the applicant’s previous visa application which she had withdrawn, the Tribunal was satisfied that the applicant would have been aware that her statement contained false information when she signed it and found that this undermined her credibility[2].

   [2] RD 141 [87]-[89]

3. The Tribunal found that the applicant gave inconsistent and vague evidence regarding her church attendance in Melbourne[3] and her claim that she sent material to China[4].

   [3] RD 141-142 [90]

   [4] RD 143 [94]

4. On the applicant’s own evidence, she did not attend church in Sydney until September 2011, despite moving there in November 2010[5]. The Tribunal found that the only purpose of this conduct was to strengthen the applicant’s refugee claims and disregarded it pursuant to s.91R(3) of the Migration Act 1958 (Cth) (the Migration Act)[6].

   [5] RD 144-145 [102]

   [6] RD 147 [117]

5. The Tribunal did not find it credible that the applicant was the only person detained after the illegal gathering as she was only 18 years of age[7]. It also did not accept that the applicant would have waited three weeks before departing China and been able to depart without any difficulties if she had been detained[8].

   [7] RD 143 [95]

   [8] RD 143 [96]

6. The Tribunal found that the applicant had a limited understanding of the Local Church and its practices[9] and had not been baptised despite claiming in her application that she had[10].

   [9] RD 145 [103]

   [10] RD 146 [110]

7. The Tribunal also took into account the delay between the applicant being detained in China in January 2008 and her initial application for a protection visa on 4 August 2011[11].

   [11] RD 146-147 [113]

8. The Tribunal concluded that the applicant was not a genuine member of the Local Church and that she did not have a well-founded fear of persecution for reasons of her religion or any other Convention reason, now or in the reasonably foreseeable future, if she returns to China[12].

   [12] RD 148 [121]

9. The Tribunal also considered whether the complementary protection provisions applied and determined that they did not[13].

   [13] RD 149 [123-125]

10. The matter came before me for first court date directions on 23 August 2012. At that time, I made a number of orders by consent including an order listing the matter for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules) at 2.15 pm today. The applicant attended in person with the assistance of a Mandarin interpreter and I have no doubt that she understood the orders which she had agreed to.

11. Since that time, the Minister has written to her on 22 October 2012 to provide the Minister’s written submissions and reminded the applicant of the hearing today and of the likely consequences of non-attendance. The Minister’s solicitors had earlier written to the applicant’s panel adviser by letter dated 27 August 2012, enclosing a bundle of relevant documents, known as the green book.  That letter also advised of the hearing fixture today.

12. The correspondence file records that the applicant’s panel adviser attempted to arrange an interview with the applicant but the applicant failed to attend.  The panel adviser provided written advice on 17 September 2012.

13. The applicant failed to appear when the matter was called today.  The matter has been called twice and on each occasion there was no response to the call.  There is no explanation for the applicant’s non-attendance.  Before I came on the bench, my associate made an attempt to contact the applicant by telephone but that attempt was not successful.  There was no answer and there was no facility on the applicant’s mobile telephone for a message to be left.

14. In the circumstances, the Minister submits that the application should be dismissed with costs on account of the applicant’s non-attendance.  I agree. 

15. I note in passing that if the applicant had attended there would have been issues that I would have wanted to explore for the purposes of the show cause hearing, based upon [64]-[66] of the Tribunal’s reasons[14]:

    The Tribunal asked the applicant whether she believed that while she was in Australia she had followed a devoted Christian life.  She said that she had.  The Tribunal noted that she had been living with the man for about a year.  The applicant confirmed that she had been having a sexual relationship with this man and that she had fallen pregnant to him.  She said that she had never married this man.

    The Tribunal put to the applicant that all Christian churches consider that pre-marital sex is a sin and is not permitted.  The Tribunal put to the applicant that the fact that she was living with a man for a year and fell pregnant to him indicated that she was not leading the life of a devoted Christian which called into question the statement she had made about her belief in Christianity.  Further, it called into question the credibility of her answers.

    The applicant said that she had wanted to marry the man that she had been living with.  However, his family did not approve of the marriage.  The Tribunal said that this was not the position that was being put by the Tribunal, but whether she was aware that Christian churches do not condone pre-marital sex.  She said that she was aware that Christian churches do not approve of pre-marital sex.  She agreed that despite this, this is the way that she had led her life.

16. I have some concern about those paragraphs in as much as the Tribunal appears to have been attempting to test the applicant’s Christian faith by reference to her heterosexual lifestyle.  I doubt that such a line of questioning would have been appropriate had the applicant been homosexual and I doubt that the line of questioning was any more appropriate in the case of a heterosexual.  Further, the questioning appears to have been based on a modern view of marriage and church attitudes to marriage which have more to do with secular legal requirements for marriage and the bureaucratic role played by churches in relation to marriage.  That has little to say about basic concepts of faith.  It is wrong to assume that modern concepts of marriage have much to do with fundamental Christian beliefs or indeed, whatever concepts of marriage existed at the time of Jesus.  To the extent that the Tribunal was seeking to test the applicant on some appropriate biblical reference, the Court offers the gospel of John, chapter 7 from verse 53 to chapter 8 verse 11.

    [14] RD 130

17. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

18. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

19. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be sent by ordinary pre-paid post to the applicant at her last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  1 November 2012