SZMWM v Minister for Immigration & Anor [2009] FMCA 132 (17 February 2009)

Last Updated: 5 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 132

MIGRATION – RRT decision – Chinese applicant claiming persecution as Christian – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b)

SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105; (2008) 170 FCR 515

Applicant:

SZMWM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2746 of 2008

Judgment of:

Smith FM

Hearing date:

17 February 2009

Delivered at:

Sydney

Delivered on:

17 February 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Potts

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG2746 of 2008

SZMWM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant has a daughter who has been studying at high school in Sydney since 2006. He arrived on a visitor’s visa in October 2007, and soon went to stay in Perth, where he remained unlawfully. On 25 June 2008, while he was held in immigration detention in Perth, he made an application for protection assisted by a migration agent who was appointed to assist him.
2. A statement attached to the application claimed that the applicant had participated in an underground Christian group to which he was introduced by his wife, whom he had married in 1984. He said: “I did the praying, and people from the Church read the Bible to me because of my poor reading ability”. He said that his wife and he “did the religious practice at my home in Fujian”. She also helped missionaries from Taiwan to preach the gospel. In around August 1997, “the Chinese government learned about this and tried to arrest these people including my wife”. His wife escaped and “never returned home”.
3. The applicant said that the Public Security Bureau (“the PSB”) then searched his house “a few time a year for my wife and other personal items including religious publications”. The applicant “tried to hide away from home”, and moved to another province, where he stayed and worked from August 1998 to October 2007. In 2001, he was arrested on the day that he returned to see his mother, who had remained in the family home with his children. He claimed that “they wanted me to admit that evangelising the Gospel was a crime”. He said he was sentenced to six months gaol and was tortured and beaten in gaol. After he was released in November 2001, he returned to the other province “in order to stay away from the PSB in Fujian”.
4. He claimed to have divorced his wife in 2000, “hoping that the PSB would stop coming for my wife and searching my home”. However, these searches continued even after the applicant came to Australia. He said: “in 2007, a friend arranged for the issue of a visitor visa to Australia”. He collected his passport on a visit to Fujian, and came to Australia on his own passport and visa.
5. He said: “I genuinely believe that if I return to China, I will be subject to persecution and will be put to prison again because of the history of my divorced wife and the practice of my religion”. The applicant submitted facsimile copies of corroborative letters from his son and his employer. He also presented what was said to be an arrest warrant issued in 2001 in relation to the applicant only, but referring to him and his wife as being “involved in organising unlawful religious activities, inciting western democratic ideology, attacking communist party leaders, and protecting Taiwan missionaries (democracy activists), which has severely affected the stability and peace of this city”.
6. The delegate interviewed the applicant, and refused the application on 18 August 2008. The delegate accepted only that he had married a Christian woman and “may have participated on some occasions in Christian worship”, but did not accept that he was involved in evangelising, nor other parts of his history.
7. The applicant was assisted to appeal to the Refugee Review Tribunal by a migration agent in Sydney, where he had been transferred. He was subsequently released from immigration detention.
8. The Tribunal sent several letters to the applicant inviting him to comment and provide information. In particular, he was asked to comment upon documents contained on the Department of Immigration file relating to his daughter’s 2006 student visa application. They included documents verifying the applicant’s contact details and address in Fujian at that time. Some documents suggested that he was still married, and that his wife was cooperating in the visa application.
9. These matters were also put to the applicant in the course of a hearing which the applicant attended on 12 September 2008. As requested by the Tribunal, the applicant brought to the hearing a copy of his household registration issued in 2006, which also showed him still married and residing in Fujian at that time.
10. A transcript of the hearing is not in evidence, although the applicant has been given an opportunity to submit a transcript. The Tribunal provided a very detailed account of the hearing in its statement of reasons, and I have no reason not to accept this.
11. The applicant maintained the history he had claimed with his protection visa application, and attempted to explain the documentation on the student visa file as having been prepared by a friend with little involvement by him. In effect, he said the documents contained false information insofar as they suggested that he had remained living and working in Fujian and married.
12. The Tribunal handed down a decision on 1 October 2008 which affirmed the delegate’s decision. The Tribunal carefully recounted all the evidence before it, including country information about persecution of people who did not attend official churches in China. In its “Findings and Reasons”, the Tribunal considered the applicant’s claim that he suffered from a medical condition leading to poor memory, but did not accept this. It was uncorroborated, and the Tribunal thought that he “has been able to give detailed answers about various aspects of his claims (with the exception of his knowledge of religion)”.
13. The Tribunal explained why it found the applicant not to be a creditable witness. It referred to the substantially different information contained in the student visa application, when compared with the protection visa application. The applicant had admitted involvement in the preparation of some of the student visa documentation, and his fingerprint and photograph were included in it, together with a copy of his identity card and a statement of consent co-signed with the applicant’s spouse. The Tribunal said that, at least, “the applicant has been willing to engage in document fraud to achieve a migration outcome”. It said that this caused it to find “that the applicant is not a person of credibility and this also casts doubt about the authenticity of documents the applicant provided with his protection visa application”.
14. The Tribunal also referred to varying evidence the applicant had given about his employment, his household registration, and his divorcing his wife. The applicant appeared to have no knowledge about official churches in China, and the Tribunal said that he “displayed less than rudimentary knowledge of Christianity”. It explained this conclusion, and it appears to have been well open on the applicant’s responses to its questions. For example, the applicant was unable to recite the Lord’s Prayer, and thought that Jesus created the earth, the sky and the human beings.
15. The Tribunal did not accept that he had the level of religious involvement in China which he claimed. Although his household registration referred to him as being a Christian, the Tribunal did not accept that this was probative evidence of his involvement in an unregistered church. Based upon its findings about his credibility, the Tribunal did not accept any of the elements in the history which he claimed had given rise to his persecution and to his fear of return to China.
16. The Tribunal referred to his delay before applying for protection in Australia. It did not accept that he left China to avoid persecution, because it had rejected his history. It also did not accept his claim to fear persecution for an imputed religious belief arising from his relationship with his wife.
17. The Tribunal accepted that the applicant may have attended church in Australia, and it thought that “the limited religious knowledge the applicant has displayed was the result of his brief attendance at church in Australia”. However, it was not satisfied in terms of s.91R(3)(b) of the Migration Act 1958 (Cth), and therefore disregarded that conduct pursuant to that sub-section.
18. The Tribunal found that he would not engage in religious activity in an unregistered church or in proselytising if he returned to China now or in the reasonably foreseeable future, and it found that there was no real chance that he would suffer serious harm for a Convention reason if he returned.
19. I have carefully considered the reasoning of the Tribunal and its procedures, and I am unable to identify an arguable jurisdictional error affecting its decision. As I have explained to the applicant, I must be satisfied as to jurisdictional error before I have power to send his case back to the Tribunal. I do not have power myself to decide whether he should be believed or whether he qualifies for a protection visa or any other permission to stay in Australia.
20. The applicant’s original application contains one ground which is: “people who are the subject of a complaint to the PRC authorities and who lack the ability to effectively respond to their applicant is a Christian”.
21. It is difficult to understand how this contends error in the Tribunal’s reasoning, and impossible to discern an assertion of jurisdictional error. It appears to only maintain the truth of refugee claims which the Tribunal disbelieved. As I have indicated, I am not persuaded that its disbelief was not open to it on the material before it, nor that in any other way the Tribunal’s procedures or reasoning failed to amount to a proper exercise of jurisdiction by the Tribunal.
22. The applicant was unable to advance his case in submissions to me today. He maintained the truth of what he had previously told the Tribunal, and said that he was unable to present a legal argument.
23. Counsel for the Minister in his written submissions attempted to identify possible issues, in particular, concerning the Tribunal’s observance of the requirements of s.91R(3). I accept his submission that the Tribunal’s reasons are consistent with the view of that provision taken in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105; (2008) 170 FCR 515.
24. For the above reasons, I consider that the Tribunal’s decision was a privative clause decision, and I must therefore dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 4 March 2009