SZOJA v Minister for Immigration & Anor [2010] FMCA 789 (11 October 2010)

Last Updated: 26 October 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 789

MIGRATION – RRT decision – Chinese applicant claiming persecution as Christian – disbelieved by Tribunal – conceded to Court that Tribunal made correct decision – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

Applicant:

SZOJA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG851 of 2010

Judgment of:

Smith FM

Hearing date:

11 October 2010

Delivered at:

Sydney

Delivered on:

11 October 2010

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr M Izzo

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG851 of 2010

SZOJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in July 2009 on a short tourist visa. On 3 September 2009 she applied for a protection visa. The application stated that she received assistance from a person who was not a registered migration agent, and was completed in very brief terms to explain why she sought protection in Australia against return to The People’s Republic of China. It contained the following statements:
   • 41 Why did you leave that country?
     • In China there are many religions are not allow, although today Christian is allow in China but there are still many disallow in our belief. To be able to pursue our own belief the only way is to leave China and go to a country which allow people to have their own freedom to choose our own belief.
   • 42 What do you fear may happen to you if you go back to that country?
     • If I go back to China, I shall be prosecuted for my belief [illegible] as today China still disallow my belief in China and I would lost my faith.
   • 43 Who do you think may harm/mistreat you if you go back?
     • To be without a faith to me is just like sentencing death to me, my faith and belief is what that is keeping me moving on with my life in today world.
   • 44 Why do you think this will happen to you if you go back?
     • This will happen to me if I go back because China control all the religions in the country. And they do not allow people to have their own belief. People are only allow to believe what the Communist government say to belief.
   • 45 Do you think the authorities of that country can and will protect you if you go back? If not, why not?
     • No.. Because they are they one that will harm me but not protect me.
2. The applicant was invited to attend an interview with the delegate, but did not attend. The delegate then made a decision on 26 November 2009, refusing the application. The delegate said that the applicant had provided “no detail or evidence to substantiate a claim that she herself is at risk”. The delegate was not satisfied that she was of any interest to the authorities in China for a Convention-related reason.
3. The applicant applied to the Tribunal for review, employing a migration agent, Ms Weiming Qian. She was invited to attend a hearing on 16 February 2010, and did attend. Shortly before the hearing and at the hearing, she submitted a number of documents including a “personal statement” typed in English. In the statement she referred to her husband having come to Australia in 2006 and making a claim for a protection visa on the ground of being a persecuted Falun Gong practitioner. His claims have been unsuccessful, including in proceedings recently in this Court. The statement referred to her having received news in late 2008 that her husband had suffered serious health problems in Australia, for which surgery had left him with further incapacities.
4. In relation to her claim to be a Christian, the statement said that she “got to know Christianity in October 2007”, and had participated in a home church. In April 2009 six people attending the church had been taken to the police station for interrogation, and she had been mistreated and forced to sign a statement before getting released the next day. The statement said: “therefore I decided to flee the country where I have neither human rights nor religious freedom, and I also decided to find my husband who suffered illness”.
5. At the Tribunal’s hearing, she presented evidence of her husband’s health treatment, and a false marriage certificate which she claimed to have used to obtain the tourist visa. She told the Tribunal that the main reason she came to Australia was so that she could see her sick husband. She said that she did not want to return to China, because “her husband’s health is not good and her parents are no longer there in China” because they had died. When referred to the statement sent to the Tribunal, the applicant maintained her claim is to have been a Christian and to have been persecuted.
6. The Tribunal made a decision on 24 March 2010 which affirmed the delegate’s decision. The Tribunal referred to the evidence presented by the applicant, and recounted the evidence given at the hearing.
7. In its “Findings and Reasons”, the Tribunal said that it did not accept that the applicant was a witness of truth in relation to her claims to have been a Christian in China, and to have been detained, ill treated and interrogated as claimed. The Tribunal examined how the applicant had responded to questions at the hearing, and concluded that the only reason she had come to Australia was that she wanted to be with her husband. The Tribunal detected inconsistencies in her evidence and referred to other reasons for arriving at that view.
8. The Tribunal accepted that she had attended a Christian church on occasions in Australia, a fact which was corroborated by a statement from a church pastor, but was not satisfied that this had occurred “otherwise than to strengthen her claim to be a refugee”. The Tribunal therefore was obliged to disregard that attendance, pursuant to s.91R(3) of the Migration Act 1958 (Cth).
9. The Tribunal concluded:
   • 52. In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer persecution in her country from authorities or from anyone else, because of her religion, because she is a member of a particular social group, because of her political opinion or imputed political opinion, or for any other Convention reason, either now or in the reasonably foreseeable future, if she returns to China.
   • 53. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in China within the meaning of the Convention.
10. The applicant applied to this Court to set aside the Tribunal’s decision and to remit the matter for further consideration by the Tribunal. I have power to make those orders, only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
11. The application contains three grounds:
    • 1. RRT considered my case unfairly. They doubt my claim without substantive evidence.
    • 2. Procedural Fairness has been denied by RRT.
    • 3. RRT did not consider my situation in China. I will be put in jail if I go back.
12. The applicant has not filed any amended application nor written submissions to explain these grounds. They do not contain particulars allowing me to identify any arguable jurisdictional error, and my consideration of the Tribunal’s decision was also unable to find an arguable ground of review.
13. When invited to explain her arguments to me today, the applicant said, with some distress, that she had decided to tell the Court the truth that she was not a Christian in China. She conceded that the Tribunal had made the correct decision about this claim. She explained to me that she had come to Australia because of the medical situation of her husband, and her belief that he had suffered injuries at the hands of medical authorities in Australia. She explained that she was caught in a dilemma between wanting to return to China where her son is living, and wanting to stay in Australia to look after her husband.
14. In effect, the applicant’s concession that she had no argument to show error of either fact or law affecting the Tribunal’s decision requires me to dismiss the application.
15. I have advised the applicant that she should seek advice about the various compassionate matters she explained to me, to consider whether further applications may be made by her and her husband in relation to their continued residence in Australia.

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

Associate:

Date: 26 October 2010