AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2010 >> [2010] FMCA 559

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

SZOJG v Minister for Immigration & Anor [2010] FMCA 559 (28 July 2010)

Last Updated: 3 August 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJG v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal finding the applicant was a Christian but was not at risk of harm because his claims of past harm were false and he would not undertake activities in the future that would expose him to risk – applicant elaborating upon his claims over time up to the judicial review hearing – it was open to the Tribunal to conclude that the applicant’s claims of serious harm as a result of evangelising and associating with underground groups were false – no reviewable error found – application dismissed.


Applicant:
SZOJG

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 892 of 2010

Judgment of:
Driver FM

Hearing date:
28 July 2010

Delivered at:
Sydney

Delivered on:
28 July 2010

REPRESENTATION

The Applicant appeared in person


Solicitors for the Respondents:
Ms D Watson
Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 892 of 2010

SZOJG

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 30 March 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s claims and the decisions of the Minister’s Department and the Tribunal on them are conveniently summarised in the Minister’s written submissions filed on 21 July 2010.
  2. The applicant is a citizen of China and claimed to fear persecution on the basis of his Christianity. In a statement attached to his protection visa application, he claimed to have been a chef who evangelised to interested customers and colleagues and that, in April 2009, he was threatened by local authorities and warned that he would be dismissed from his job. He also claimed to have been monitored and questioned by police and to have come to Australia by bribing people in China.
  3. The applicant attended two interviews with a delegate of the Minister’s Department at which he made additional claims and responded to information from his tourist visa application. The applicant later provided further documents in support of his application but these were received by the Department after the delegate had made his decision and the documents were returned to him.
  4. The applicant attended two days of hearing in the Tribunal at which he gave evidence. He was invited, on the second day of the hearing, to comment on information purportedly pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”), particularly with respect to information provided by the applicant to the Department during the interviews. The applicant responded to this information at hearing and the decision record notes that he said he did not require further time to comment.

Tribunal decision

  1. The Tribunal found as follows:
  2. The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution.

The application and evidence

  1. These proceedings began with a show cause application filed on 23 April 2010. The applicant continues to rely upon that application. The application is defective in that the grounds in it are simply a repetition of the applicant’s protection visa claims. However, under the heading “Orders sought by the Applicant”, the application does disclose intelligible grounds of review:
The Grounds of the Application are:
  1. The applicant filed a short affidavit with his application, which I accepted as a submission. He filed a further affidavit on 28 June 2010 which is in part a submission, but is in substance a more comprehensive statement of his protection visa claims than he has previously advanced. I received that affidavit as a submission to the extent that it made submissions and as evidence to the extent that it was relevant. In my view it has relevance in that it illustrates the difficulty that was faced by both the Minister’s delegate and the Tribunal. That difficulty was the way in which the applicant elaborated substantially upon his claims over time. The applicant relevantly states in the second affidavit:
  2. I received as evidence the book of relevant documents filed on 31 May 2010.

Submissions

  1. The applicant made oral submissions in which he reaffirmed his protection visa claims, including his Christian faith, and asserted the truth of everything that he told the Minister’s delegate and the Tribunal. The applicant asserted that his Christian faith would not permit him to lie and that he had taken the oath at the Tribunal hearing to tell the truth. He noted that he had on several occasions been invited by the Tribunal’s presiding member to put forward anything else that he had not revealed previously. He is concerned that when he did so he was disbelieved.
  2. The Minister submits that the application seeks merits review as the applicant is merely expressing disagreement with the Tribunal’s conclusions. The Minister further submits:

Reasoning

  1. The analysis of Tribunal decisions for jurisdictional error is principally concerned with issues of process rather than outcome. It is frequently necessary to explain to applicants that the Court cannot decide on the veracity of their protection visa claims. The issue before the Court is whether the Tribunal fell into jurisdictional error. To the extent that the applicant disagrees with the merits of the Tribunal decision, the Court cannot assist him.
  2. The applicant, both in his application and in his oral submissions, took some issue with the way in which he was questioned at one or both of the Tribunal hearings. To the extent that the applicant is referring to the invitation by the presiding member for him to say anything that he might have omitted, that was simply an attempt by the Tribunal to draw the applicant out. It is desirable for the Tribunal to attempt to ensure that applicants have the opportunity to tell their whole story. The problem in this case was that when so invited, the applicant put forward additional claims of substance that had not been previously mentioned. That turned out to be the determinative factor in the Tribunal’s reasoning.
  3. The Tribunal’s conclusion is set out at [100] of its reasons on page 159 of the court book:
  4. The Tribunal went on to explain its conclusions. The Tribunal was concerned that the applicant had changed his evidence in significant respects over the course of the processing of his application. The Tribunal gave as an example that it was only at the second Tribunal hearing that the applicant claimed he had attended illegal gatherings of seven to 20 people and that he was almost arrested at the end of 2008 or that the police went to see his wife when he was preaching, and that this was the reason he asked his friend to help him go overseas. It was only at the interview with the Minister’s delegate that the applicant claimed that in February 2009 the Chinese authorities arrested him in his house, detained him for seven days and that he left his employment and only later did he claim he was dismissed.
  5. The applicant’s written statement is reproduced on pages 28 and 29 of the court book:
  6. It is possible to read the third paragraph of the statement as containing within it a clue to the claims that were later made of the applicant being detained and questioned after arrest and of him having participated in unlawful gatherings, but it is hard to understand why the applicant would refer to the harm suffered by others and only reveal later the harm suffered by himself.
  7. The applicant also had difficulty in reconciling his initial claim that he was threatened with dismissal from his employment with his oral evidence as to his dismissal from employment in April 2009, having commenced work there in March 2007 and the documentary evidence he provided in the form of a witness letter reproduced on page 105 of the court book which states that he commenced work at the restaurant on 10 January 2007. That inconsistency was an additional concern for the Tribunal.
  8. The Tribunal questioned the applicant at some length about his knowledge of Christianity. That needs to be seen in the context of the delegate’s decision, wherein the delegate had not accepted that the applicant was a Christian at all. The Tribunal was more generous and accepted that the applicant was a Christian[1], and accepted that he had continued to practice Christianity in Australia and not solely to enhance his protection visa claims. However, the Tribunal reasoned that the applicant’s Christian faith was essentially passive as part of the officially recognised Christian churches in China. The Tribunal reasoned that the applicant had not, and would not in the future, participate in underground Christian activity that would bring him to the adverse attention of the Chinese authorities. That conclusion was open to the Tribunal on the material before it.
  9. The problem for the applicant, as demonstrated even up to the time of today’s hearing, is that his claims, like the church calendar, became a moveable feast. While the Tribunal presiding member was more generous than the delegate had been, it would have required a generosity of spirit sufficient to catapult the presiding member into the communion of saints to accept uncritically all of the changes to the applicant’s claims that he made over time. That was, frankly, unlikely.[2] The continual elaborating and clarification of the applicant’s claims weakened rather than strengthened his case.
  10. The Tribunal followed a fair process, purportedly pursuant to s.424AA of the Migration Act 1958 (Cth), of disclosing its concerns about the later augmentation of his claims at the Tribunal hearing. Whether or not that was strictly necessary for the purposes of s.424A, it served the purpose of ensuring that the applicant understood the essential and significant issues upon which the Tribunal decision was likely to turn. By following that procedure, the Tribunal ensured that it met its obligations under s.425 of the Migration Act.
  11. The applicant sought to explain the changeability of his claims to the Tribunal, but his explanation was not accepted. The adverse credibility conclusion reached by the Tribunal was open to it on the material before it. It was not simply the recent augmentation of his claims that justified that conclusion. It was also the inconsistency between his written and oral evidence of his employment and the witness letter, and the fact that although the applicant claimed to have proselytised in China, he had not done so in Australia.
  12. I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will also order.
  13. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000. The applicant did not wish to be heard on costs. 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 $4,000.

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


Associate:


Date: 2 August 2010

[1] or at least that he attended church and identified himself as a Christian
[2] In ambiguis orationibus maxime sentenia spectanda est ejus qui est protulisset

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2010/559.html