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MIGRATION - RRT decision - Chinese Christian feared persecution for evangelising - Tribunal assessment of delay in application and ease of departure from China - no error found.

SZDLZ v Minister for Immigration [2004] FMCA 943 (24 November 2004)

SZDLZ v Minister for Immigration [2004] FMCA 943 (24 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLZ v MINISTER FOR IMMIGRATION
[2004] FMCA 943




MIGRATION - RRT decision - Chinese Christian feared persecution for evangelising - Tribunal assessment of delay in application and ease of departure from China - no error found.




Migration Act 1958 (Cth), s.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Abebe v The Commonwealth (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:
SZDLZ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1311 of 2004




Delivered on:


24 November 2004




Delivered at:


Sydney




Hearing date:


24 November 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


In person




Counsel for the Respondent:


Ms L. Clegg




Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $3600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1311 of 2004

SZDLZ



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 15 March 2004 and handed down on

8 April 2004. The Tribunal affirmed the refusal of a protection visa application which had been lodged on 5 May 2003.

2. The visa application attached a short statement as to the applicant's claims to be accepted as a refugee, which the delegate summarised tersely:

The applicant claims he is a Christian, that he has participated in meetings and other activities to promote religious freedom and democracy in the PRC and that, as a result, he has been questioned by the PRC police. He fears that, if he were to return to that country he will be imprisoned or mistreated because of his participation in such activities.

3. The delegate assessed the claims against country information, and also against the applicant's history of movement between China and Australia. The delegate noted:

I have also considered the applicant's actions since his arrival in Australia. The applicant first entered Australia in June 1996 on a Business visa. The applicant states that he frequently travelled between PRC and Australia on business (B1:11) and Departmental movement records (B1:22-25) indicate that he last entered Australia in January 1999. Although the applicant claims that it was immediately prior to this most recent entry into Australia that he was questioned by the PRC police and began to fear for his safety in that country, he did not lodge an application for a protection visa until 5 May 2003. Departmental records (B2:10) indicate that this was less than 3 weeks after he came to the attention of the Department's Compliance section as a visa overstayer. Both the delay in lodgement of his application (B9) and the proximity of the lodgement date to the date that his unlawful status came to the Department's attention suggest that, in applying for a Protection visa, the applicant was motivated by a desire to regularise his immigration status and extend his stay in Australia, rather than by any fear of persecution in the PRC.

4. The applicant attended a hearing before the Refugee Review Tribunal and gave more details of his history. The Tribunal summarised these:

The applicant claimed that during the student movement in Beijing in 1989, he was working for a company in Beijing. At the time of the Tiananmen Square incident he used to attend rallies and listen to the speakers but did not participate. Later his employers accused him of have "contaminated ideology" and he was dismissed.

In 1992 the applicant obtained a position in a trading company and made his first visit to Australia in June 1996. He claimed that he became a Christian in 1993-4 when he was converted by a Korean missionary. He was not aware of the name of the protestant sect which he joined in China. While in Australia he attends services with the (name of church). A character reference by the Rev Dr P... was tabled before the Tribunal. Stating that the applicant was known by the Reverend for seven years and that he attended his church regularly. The Tribunal asked the applicant questions about Christianity and he appeared to have limited knowledge of fundamental Christian teachings.

The applicant claimed that during his visits to Australia he experienced religious freedom. On his return to China in November 1996 he was warned by police not to attend religious meetings in private homes, but continued to do so on Fridays or Sundays.

On one occasion the police raided the house and some of those attending were detained. Subsequently, the congregation did not reform. The applicant was taken to a police station where he was held for about one and a half hours and questioned about his statements concerning the need for Christian religious freedom. He was beaten up and his head and right eye-lid damaged. When he regained consciousness he was in hospital. A senior police official came to see him and apologised for the assault. The applicant was asked not to report the incident. In return the police officer offered to overlook his earlier hostile statements which had lead to the complaint that he was attempting to undermine the state and disturbing the social order, provided he ceased inciting people to seek greater freedom of religion in China.

Due to his injuries he took a year to recover and again lost his employment. As the applicant had a valid passport and a business visa to visit Australia, he decided to get re-involved in exporting and made a second visit in 1997.

The Tribunal asked the applicant why he didn't apply for refugee status on that occasion? He replied that at that time he had no difficulty with the Chinese authorities. He remained in Australia for a period, during that time his knowledge of Christianity grew, as did his appreciation of the freedom to worship and evangelise which was denied to him in China.

The applicant claimed that when he returned to China in 1997 the local police asked him questions about his movements and religious activities as he had continued to attend house meetings and to evangelise. He was warned by the police to discontinue his activities. The applicant made more visits to Australia on business without any further problems from the PSB.

In November 1998 the applicant made his second visit to Australia. While at Beijing airport on his return, the applicant claimed that he had phoned his wife and was advised not to come home because one of his distant nephews, a detective with the local Public Security Bureau in Ji Lin Province had warned that he had been listed as an offender.

The applicant claimed that he had not been `black listed' on a national data base because he believed that the PSB were not well served by technology. Furthermore his passport was valid for five years and he had a valid employer's certificate and a valid Australia visa. This enabled him to travel outside China without difficulty. The applicant claimed that he remained in Beijing through to January 1999 when he returned to Australia. While in Beijing he lived in a university hostel as they were not subject to regular checking as were hotels, and travelled extensively between Beijing, Shanghai and northern China.

The applicant said that if he returned to China he feared that he would be arrested. This would have a bad effect on his children's future, as having Christian parents was grounds for discrimination at school and in government employment. The applicant volunteered that he could move to another province, however, as a Korean speaker, with poor Mandarin he was more at home in northern China. The Tribunal pointed out to him that in his original application he had claimed to be a Mandarin speaker.

5. The Tribunal noted in relation to the applicant's wife:

The applicant's wife Ha Zi Jin Hua previously made two visits to Australia from February to September 1996 and from January to July 1999, when she was detained for breaching her visa requirements. Subsequently she lodged a refugee application which was later withdrawn and she returned to China. According to the applicant his wife has had no difficulties with the authorities since her return.

6. Under the heading "Findings and Reasons", the Tribunal refered to country information concerning the situation of Christians in China before assessing the applicant's history as claimed. The Tribunal accepted his account of being involved in the student movement in 1989, of becoming a Christian in 1993-4, and of attending unofficial Christian church groups while in China. It did not accept that he was active in evangelising in China, because it thought he had shown a limited knowledge of Christianity.

7. The Tribunal did accept that he was detained in 1996 and had been assaulted by a policeman. It also accepted that the applicant did not claim refugee status on earlier visits to Australia in November 1997 because he did not consider himself to be at risk of persecution before 1998, despite his assault in1996 and his being warned by police in 1997 not to evangelise.

8. The Tribunal noted that the applicant had made in all six visits to Australia between 1996 and 1999 without encountering any serious difficulties with the Chinese authorities on his return. It concluded that during that period he was not at risk of persecution in China. Its reasoning then concluded:

The fact that he was allowed to travel between China and Australia freely leads the Tribunal to determine that at no time was he considered to be a "person of interest" by the authorities. Furthermore, had the applicant a subjective fear during that period he could have applied for refugee status during one of his earlier visits to Australia.

On the basis of the applicant's evidence the Tribunal is not convinced that if he returns to China he will be at risk of persecution for either his religious or political beliefs now or in the foreseeable future. The Tribunal is not convinced of the applicants `bona fides' because although the applicant arrived in Australian in January 1999 on his sixth and last visit, he did not lodge his application for a Protection visa until 5 May 2003, over four years later.

The applicant did not provide the Tribunal with an explanation for this delay in applying for refugee status. This has left the Tribunal to conclude that there is an issue of credibility which was not satisfactorily explained by the applicant. Nor did he satisfactorily explain to the Tribunal why at not time between 1996 and 2003 why he did not have a subjective fear of being persecuted by the Chinese authorities on account of his religious or political beliefs.

The Tribunal does not accept as credible the applicant's claim that in November 1998, while at Beijing airport, his wife advised him not to come home because a relative had warned that he had been listed as an offender.

The Tribunal has reached this view because although the applicant claims that the police warned him about evangelising in 1996 and 1997 he was not arrested. Furthermore the Tribunal also noted that the applicant was able to leave China and return to Australia subsequently without difficulty.

On the basis of country information, noted above, if the applicant was wanted by the authorities in late 1998 as claimed, because of his political beliefs, his departure from China would have been problematic. The Tribunal does not accept the applicant's claim that the PSB did not have an effective data base, at that time, as the reason why he was not `black listed'. Country information states clearly that the authorities maintained a close watch on the movements of persons whom they believed were of interest and they could have prevented his departure is necessary.

Furthermore the history of the applicant and his wife in regard to their earlier claims, has led the Tribunal to determine that the applicant's later evidence in regard to incidents in 1998 is not reliable.

The Tribunal is not satisfied that the applicant has a well-founded fear that he will be persecuted in his return to China nor that there is a real change that he will be persecuted now or in the foreseeable future.

9. Although the applicant has not been able to develop an argument of legal error in the above reasoning I have considered it carefully.

10. I had a concern whether the references by the Tribunal to being "not convinced" that the applicant will be at risk of persecution nor of the applicant's "bona fides" might show that it had misapprehended the standard of satisfaction upon which it should decide whether it was satisfied that the applicant's fears of persecution were "well-founded&q;
uot;. However, I consider that the Tribunal probably used "convinced" as meaning merely "not persuaded by argument or proof" (c.f. Macquarie Dictionary, revised 3rd Ed), and should not be understood to have set itself an unacceptably demanding standard when deciding if it was "satisfied" as to a claim for protection coming within s.36(2) of the Migration Act (c.f. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277).

11. The Tribunal makes clear findings rejecting the credibility of the applicant's claim that in November 1998 he was advised not to come home because he was listed an offender. It also made a clear finding refusing to accept this claim on the basis that it was inconsistent with country information concerning departure from China of suspected persons. It has also pointed to rational reasons in the immigration history of the applicant and his wife for disbelieving the applicant's evidence concerning incidents in 1998.

12. In my view the Tribunal's reasoning shows a legally permissible assessment of the evidence concerning the claims before it and a failure to be satisfied as to essential elements in those claims. I do not think the Tribunal's reasoning reveals a misapprehension of the issue for its decision amounting to a jurisdictional error.

13. The applicant's application to this Court set out effectively three grounds for review, but without any particulars allowing them to be considered. No further particulars have been given, but in a filed document headed "Amended Application" the applicant takes issue with the Tribunal's reasoning based upon his delay in claiming a protection visa. Two contentions appear to be made: first, that there were additional explanations which he could put forward to explain the delay, and secondly, that the Tribunal member "did not even ask me about this and did not inform me that he would refuse my application because of this."

14. In relation to the first contention, it is enough for me to note that it does not allege error of law in the Tribunal's reasoning, but seeks to argue with it at the level of fact and based on further evidence that was not before the Tribunal. This does not provide a ground for the Court to give relief.

15. In relation to the second contention, I was concerned that the transcript was not before me and gave the applicant an opportunity to give evidence on oath about what he said had happened at the hearing. In that evidence he said that in fact the Tribunal did ask questions about his delay in making his protection visa application and that he had responded. I can therefore only conclude that whoever wrote the amended application on his behalf misunderstood his complaint. There is no material in front of me upon which I could be satisfied that there was any failure to raise this matter with the applicant.

16. There is no evidence that the applicant was misled about whether the issue of delay was important to his case. As I have indicated above, it was a significant element in the delegate's reasoning and the applicant should have been well aware of its importance. Even if it was not further explored by the Tribunal at the hearing, the Tribunal is not obliged generally to warn about the possibility of adverse findings on an applicant's narrative (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [76] and [208]).

17. At the hearing before me, the applicant repeated his complaint that some of his evidence had not been accepted by the Tribunal and that he could not understand, in particular, why the Tribunal had not accepted his evidence of the phone call from his wife in November 1998. He affirmed that he did have a genuine fear which was causing him to stay away from China, and told me that he believed that if he went back he would have difficulties. Unfortunately these are all points which do not provide any ground for sending his case back to the Tribunal.

18. The Court's jurisdiction under s.483A to give relief pursuant to s.39B of the Judiciary Act 1903 (Cth) is subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 these leave the Court with power to intervene only if the Tribunal's decision was vitiated by a serious error which can be characterised as jurisdictional error. I can find no such error.

19. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

20. I order the applicant to pay the Minister's costs in the sum of $3600.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 10 December 2004
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