SZLQE v Minister for Immigration & Anor [2009] FMCA 159 (2 March 2009)

Last Updated: 5 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 159

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R(3), 424A, 425

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609

Applicant:

SZLQE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3381 of 2008

Judgment of:

Driver FM

Hearing date:

2 March 2009

Delivered at:

Sydney

Delivered on:

2 March 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr B O'Brien DLA Phillips Fox

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) 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, fixed in the sum of $2,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG3381 of 2008

SZLQE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 25 November 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. He arrived in Australia on 31 May 2007. On 8 June 2007 he applied to the Minister's Department for a protection visa. The Minister's delegate refused that application on 23 June 2007. The applicant sought review by the Tribunal which affirmed the delegate's decision on 18 October 2007. The applicant sought judicial review of that decision in this Court.
2. On 19 August 2008 this Court set aside the first Tribunal decision and remitted the matter by consent to the Tribunal for redetermination according to law. The Tribunal was unable to make a favourable decision on the papers and by letter dated 4 September 2008 invited the applicant to a hearing on 1 October 2008. The applicant attended and gave evidence and presented arguments. A Father Paul McGee also attended as a witness for the applicant. The Tribunal explained to the applicant that it would take into account evidence presented at the first Tribunal hearing. The Tribunal raised with the applicant a question of his identity. The Tribunal was dissatisfied with the applicant's responses.
3. The Tribunal also asked the applicant numerous questions in order to test his adherence to the Christian faith. The applicant was able to answer some of the questions put to him but got into increasing difficulties over time. In particular, the applicant did not know who St Peter was and sought to explain his difficulty by stating that he was a Catholic rather than a Christian. The applicant got into further difficulty by asserting that the Catholic Bible was different to the Christian Bible.
4. The Tribunal did not accept the applicant's account concerning his identity and took the view that the applicant had sought to adopt a different identity in order to promote a claim that he left China by irregular means. The Tribunal also found the applicant's evidence in relation to his Catholic faith to be highly problematic. The Tribunal found that the applicant demonstrated a significant lack of knowledge in relation to the important figures of John the Baptist, St Peter and St Paul. The Tribunal noted that, when it raised its concerns with the applicant at the hearing about his limited knowledge of Christianity, the applicant consistently sought to establish that the reason was that the questions he was asked were about Christianity whereas he was a Catholic.
5. The Tribunal concluded that the applicant's lack of knowledge was highly adverse to his claims he was a genuine Christian and a practising Catholic in China since he was young. The Tribunal found that the applicant was not a witness of truth in respect of his practise as a Catholic in China and in relation to the circumstances which allegedly led him to travel to Korea in February 2007 and to Australia in May 2007 (court book, page 160).
6. The Tribunal did not accept that the applicant was a genuine Christian and a practising Catholic in China since he was young and did not accept that the applicant was a member of the underground Catholic Church since 2004 as he had claimed. The Tribunal also found that having regard to its adverse conclusion on the applicant's identity a letter of support that he produced in relation to his asserted identity was not about him. The Tribunal gave the letter no weight.
7. Having made those findings, the Tribunal did not accept any of the applicant's claims concerning past harm in China. The Tribunal considered the applicant's claims in relation to his conduct in Australia, including the evidence of Father McGee. The Tribunal accepted that the applicant had attended church services and activities in Australia. The Tribunal also accepted that the applicant had been present at the World Youth Day activities in July 2008.
8. However, given the findings about the applicant's identity and the credibility of his evidence relating to his Christian beliefs and practise in China the Tribunal did not accept that the applicant's conduct in Australia was engaged in because he was a genuine or committed Christian of the Catholic faith. The Tribunal concluded that the dominant purpose of the applicant's conduct in Australia was to strengthen his refugee claims. The Tribunal accordingly disregarded that conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
9. These proceedings began with a show cause application filed on 22 December 2008. The applicant continues to rely upon that application. There are two grounds in the application which I incorporate in this judgment:
   • 1. RRT did not give me a letter to comment on the doubts.
   • 2. RRT refusal decision is not fair. They use more negative cases to refuse my application. RRT failed to assess my risk to return China. I am Catholic. I will be put in jail if I return.
10. I received an affidavit filed with that application as a submission. I declined to receive a further affidavit filed on 23 February 2009 on the basis that the material in it was not available to the Tribunal and was irrelevant to the question of the validity of the Tribunal decision. I received as evidence the court book filed on 12 February 2009.
11. There is no substance to either of the grounds of review. The first ground, while not particularised, appears to be an assertion that the Tribunal failed to comply with s.424A of the Migration Act. The Tribunal certainly had doubts about the applicant's claims which were ventilated at the hearing conducted by the Tribunal. However, the Tribunal was under no obligation to give the applicant a written notice of those doubts pursuant to s.424A. That section does not require the Tribunal to disclose its own thinking processes[1]. The allegation of unfairness may be an asserted breach of s.425 of the Migration Act. There is no substance to such a claim. The applicant was invited to attend a hearing and did attend. The record of what occurred at that hearing in the Tribunal decision satisfies me that the hearing opportunity was a real and effective one.
12. To the extent that the second ground includes an allegation of bias, there is no evidence to support such an allegation. The adverse credibility conclusions reached by the Tribunal were open to it on the material before it. The applicant's oral submissions were directed to the merits of the Tribunal decision which are beyond the scope of this proceeding. The applicant's conduct in Australia was properly disregarded in accordance with the requirements of s.91R(3).
13. I find that the applicant has failed to demonstrate an arguable case for jurisdictional error. Neither is any arguable case of error apparent to me from my own reading of the material.
14. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
15. Costs should follow the event in this case. The Minister seeks costs fixed in the sum of $2,000. Scale costs in this instance would be $2,500. The applicant asserted an inability to pay but as has been repeatedly stated impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 March 2009

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[1] SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609