SZMXR v Minister for Immigration & Anor [2009] FMCA 448 (6 May 2009)

Last Updated: 15 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 448

MIGRATION – Review of RRT decision – applicant a citizen of China who claimed persecution on the ground of religion – where applicant essentially seeking merits review.

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

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Re Minister: Ex parte Cohen (2001) 177 ALR 473

Applicant:

SZMXR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2914 of 2008

Judgment of:

Raphael FM

Hearing date:

6 May 2009

Date of Last Submission:

6 May 2009

Delivered at:

Sydney

Delivered on:

6 May 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2914 of 2008

SZMXR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 4 March 2008 on a visa granted to her for the purposes of visiting her son who is a student in this country. On 17 April 2008 the applicant applied for a protection (Class XA) visa. On 27 May 2008, following an interview, a delegate of the Minister refused to grant her a protection visa and on 27 June 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended before the Tribunal on two occasions. On 15 September 2008 the Tribunal wrote to the applicant through her migration agent inviting her to comment or to respond to certain information that the Tribunal considered would, subject to any comments or response, be the reason or part of the reason for affirming the decision that was under review. The applicant responded to that invitation by the production of a statutory declaration [CB 116-123]. On 14 October 2008 the Tribunal determined to affirm the decision of the delegate. On 11 November 2008 the applicant filed an application in this Court seeking judicial review of the Tribunal's decision.
2. The grounds upon which the applicant claimed she was a person to whom Australia owed protection obligations was that of religion. The applicant told how in about 2000 her husband and her brother were working together in Guangdong Province and there was an accident in which her brother was killed. Her husband had sought recompense from the State for this loss but had been frustrated at every turn. This caused him to deteriorate psychologically, to take to drink and to "wallow in sensual pleasures". In about January 2007, through the intervention of an acquaintance, the applicant and her husband were introduced to a local church. This introduction had beneficial effects upon her husband who ceased his wayward conduct and became a responsible wage earner. The applicant, who the Tribunal accepted is a person without education and who may well be illiterate, found the changes in her husband so moving that she became a believer herself. She made regular attendance at meetings of this local church and eventually assisted them in the distribution of bibles through her seafood stall in the market of her hometown. She told how bibles would be packed inside cartons of oysters arriving from Hong Kong and Taiwan and delivered to her stall where they would be held before being taken away and distributed in Zhejiang Province.
3. The applicant explained to the Tribunal that in about February 2008 three sisters and a brother from the local church were arrested. The applicant became concerned and she was told to escape the country. After she had left, her business was transferred to a member of the church but in mid-March 2008 the PSB became suspicious and closed up the business and instituted a search for her, and her husband was made to go on the run. Since coming to Australia the applicant has attended a Chinese Protestant Church, two of whose members gave statements to the Tribunal confirming that she was a regular attendee.
4. The Tribunal questioned the applicant closely about the matters which formed the basis of her application. It is clear from the Tribunal decision record that the applicant was upset and had some difficulty in understanding the questions phrased by the Tribunal, but by the same token the Tribunal put itself out to assist her to overcome these difficulties. It asked the applicant to tell the Tribunal if she was having trouble with the interpretation. It gave her a break at a time when she appeared upset and held two separate hearings.
5. The questioning of the applicant concerned her husband's conduct and behaviour from 2000, the way in which she became involved with the underground church, the Bible distribution network and the manner in which she became aware of the PSB interest in her following her leaving the country. The Tribunal also questioned the applicant about the way in which she had obtained certain corroborating letters from China and her knowledge of Christianity as practised by the underground churches in her region. The report of the questioning and the responses is detailed. It indicates a successful attempt by the Tribunal to be thorough and wide-ranging. Certainly the s.424A letter, which Ms Johnson in her helpful written submissions submits was probably unnecessary on a strict reading of the Act, set out clearly and again in detail the concerns the Tribunal had arising from the applicant's evidence [CB 98-106]. There were nine separate areas of concern which included certain independent country information about the local churches and their treatment in China as well as the ability of a person who was of concern to the authorities to obtain a passport.
6. The applicant's response in her statutory declaration was equally detailed. Although it was late, the Tribunal took it into account. The applicant accepted the independent country information cited by the Tribunal but explained why it did not at all times refer directly to her. For example, the information about the manner in which Christianity was taught in the local churches was used to indicate that the applicant's responses about this were inaccurate or insubstantial. The applicant herself explained that she was illiterate, was unable to read the Bible, nor was she able for this reason to proselytise other than in the most elementary manner. In its findings and reasons the Tribunal indicated that the response was unsatisfactory because it felt that if a person had been attending as many meetings over as long a period as the applicant claimed, she would have had a better recollection of bible stories than she was able to demonstrate notwithstanding she could not read those stories.
7. One of the matters referred to in the s.424A letter was the discrepancy between certain submissions made in the application for the son's student visa and the applicant's testimony about her husband's earnings. In the student visa application it had been stated and established by an independent certificate that the husband was earning a profit of approximately 350,000 RMB from his occupation as a contractor. The applicant gave evidence that her husband was only earning between 10 and 20 thousand RMB per annum. The applicant's response to this concern was that she had nothing to do with the application for the student visa but all the details were completed by a friend of her husband's friend and that she had never heard of the organisation who wrote the confirmatory memorandum about his earnings, nor had she seen any part of the 350,000 RMB.
8. The Tribunal is determiner of fact. It conducts an inquisitorial proceeding (Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] per Allsop, Jacobson and Graham JJ). The Tribunal in this case for reasons which it set out fully concluded that it could not accept the applicant's explanations for those matters which led it to believe that she was not a credible witness. It had particular concerns about the transportation of the bibles, which, when one analyses the applicant's claims in any detail, would appear to be the most serious of her concerns. Her fear of persecution upon her return to China arose out of the fact that her seafood stall had been identified as part of a distribution chain for illegal bibles, so that if the Tribunal was unable to be satisfied that this had occurred, the claims of persecution would be seriously mollified.
9. The Tribunal also examined the applicant's conduct in attending church in Australia and read the supportive letters from the church leaders here. It came to a conclusion that it could not be satisfied that the applicant's attendance at church in this country was engaged in otherwise than for the purpose of strengthening her claim to be a refugee and therefore disregarded it for all purposes as required by s.91R(3) of the Migration Act 1958 (the “Act”).
10. The application dated 11 November 2008 to this Court contains 27 paragraphs of grounds of application. I do not propose to take my usual course of going through each of these paragraphs in turn because to my mind none of them indicate a jurisdictional error. They are all argumentative of the factual findings made by the Tribunal. They argue that the applicant is a refugee within the meaning of the Convention and that the Tribunal's conclusions about the applicant's evidence are incorrect. If I was to take these matters into account I would be providing the applicant with impermissible merits review.
11. Today the applicant appeared in person assisted by her son. A prepared statement was read to me. It told me that the applicant could not afford a lawyer and did not understand the court procedures. It told me that the applicant was illiterate and that she could not read the Bible but she still believed in God. It told me that the applicant felt that Jesus Christ would not give up a person who cannot read and write. The statement made the point, with which I would respectfully agree, that just because a person does not understand the Bible completely it does not mean that she is not a committed Christian; but this is not a matter upon which I can pronounce in the applicant's favour. The applicant stated that if she was not a Christian her church brothers would not have given evidence on her behalf. This again is a factual argument into which I cannot venture. Finally, the applicant told me that she had a good business and a comfortable life in China which she would not give up unless she was in trouble with the authorities. She told me that it was very hard for her in Australia. She had no security and no job and that she would not have come here unless she had genuine fear. This again is a matter that the Tribunal was required to decide and appears to have done so, contrary to her views.
12. As required in the case of an unrepresented litigant the Court has looked closely at the Tribunal decision and the contents of the court book. I have been unable myself to identify any areas in the Tribunal's decision that would indicate a jurisdictional error, including any errors of fact which might, within those very limited circumstances, be considered a jurisdictional error; Re Minister: Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J. In those circumstances I must dismiss the application and order that the applicant pay the first respondent's costs which I assess in the sum of $3,800.00.

I certify that the preceding 12Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twelvetwelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 13 May 2009