SZMAE v Minister for Immigration & Citizenship - [2008] FCA 1701 - FCA 2008 case summary — Zoe

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SZMAE v Minister for Immigration & Citizenship

[2008] FCA 1701

Federal Court of Australia|2008-11-18|Before: Edmonds J

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Court

Federal Court of Australia

Decision date

2008-11-18

Before

Edmonds J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court, given on 22 July 2008, dismissing an application for review of a decision of the second respondent ('the Tribunal'): SZMAE v Minister for Immigration and Citizenship & Anor [2008] FMCA 979.

[2]

Background 2 The appellant is a citizen of China, who arrived in Australia on 29 May 2007 and applied for a protection visa on 11 July 2007. The appellant's claims were set out in a statutory declaration attached to her protection visa application. A delegate of the first respondent ('the Minister') refused the appellant's application on 3 September 2007. 3 On 28 September 2007, the appellant applied to the Tribunal for review of the Minister's decision. On 16 November 2007, the appellant attended a hearing of the Tribunal at which she gave evidence. 4 The appellant claimed to have a well-founded fear of persecution in China due to her religion as a member of the Local Church or 'Shouter' Christians. In summary, she claimed to have begun attending bible study classes with members of the Local Church in January 2006, and to have been baptised in May 2006. The appellant claimed that she was detained by the Public Security Bureau ('the PSB') for a period of ten days in February 2007, during which time she was interrogated and beaten. Following her release, the appellant claimed that she, together with two other members of the Local Church, organised, drafted and distributed 10,000 leaflets calling on the Chinese authorities to protect religious freedom and to release Christian leaders, including the leader of the appellant's group, from prison. The appellant departed China when she believed that the authorities would take steps against her. The appellant claimed that since her departure, the PSB had searched her home and questioned her husband about her activities.

[3]

The Tribunal Decision 5 On 5 February 2008, the Tribunal handed down a decision affirming the decision of the Minister refusing the appellant's application. The Tribunal found that the appellant's evidence lacked specific detail, and was at times vague and contradictory. It also noted that the appellant had submitted no supporting documents to substantiate her claims. In particular, the Tribunal found as follows: (1) The appellant's evidence regarding the founder and organisational structure of the Local Church was hesitant and vague. (2) The appellant's inability to provide details of the location of a secret religious meeting house was unconvincing; especially in circumstances where she claimed to have attended the house three times per week. (3) The appellant's claim that her husband drove her and her child to the meeting house three times per week was implausible given the distance and time involved. (4) The appellant's claim to have undergone a single baptism was inconsistent with country information that Shouters promote multiple baptisms and, accordingly, it did not accept she had been baptised in the Local Church. (5) Given the large number of leaflets involved, it was unconvincing that the appellant could not recall the contents, cost or mode of distribution of a leaflet she claimed to have drafted and distributed. (6) The appellant's claim that she was a member of the Shouter Church or had been recognised as a Christian in China was not accepted. Similarly, her claim that she had been involved in the printing and distributing of illegal religious material, been engaged in any illegal religious activity in China or that she had been detained was also rejected, as was the appellant's account of the arrests of others she claimed to have known. (7) The appellant's evidence that she had been involved in religious activities in the Local Church in Australia was also not accepted. 6 Accordingly, the Tribunal was not satisfied that the appellant held a well-founded fear of persecution for a Convention reason or that she was a person to whom Australia has protection obligations under the Convention.

[5]

Ground One - Procedural Breaches 13 Her Honour found no breach of s 424A of the Act. Her Honour held that country information did not constitute information for the purposes of s 424A (at [31] - [44]) as it falls within the statutory exception contained in s 424A(3)(a) of the Act, referring to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178. Her Honour also held that inconsistencies and lack of detail in evidence did not constitute 'information' for the purposes of s 424A. Therefore, neither the inconsistencies between the appellant's evidence and country information, nor a lack of documentary evidence constituted 'information' engaging the obligation under the section (at [38] - [41] and referring to, inter alia, SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609). 14 Her Honour considered whether the appellant's general assertion of a failure to fairly provide the appellant an opportunity to comment on the alleged 'information' might give rise to a breach of s 425 of the Act (at [45] - [53]). Her Honour considered the decisions of both the Minister and the Tribunal and held that the issues arising in relation to the decision under review were clearly raised with the appellant and no breach of s 425 arose, referring to SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152. 15 Her Honour held that the Tribunal had understood the nature of the appellant's claims, had considered the appellant's evidence properly, and had made findings of fact open to it on that evidence (at [54] - [56]). 16 Her Honour also rejected the appellant's assertion that the Tribunal had failed to give the appellant the benefit of the doubt. While noting the Tribunal did not specifically refer to the difficulties an applicant may face in obtaining documentary evidence, the Tribunal's findings were not based solely on this finding and her Honour concluded that the Tribunal did not err as asserted (at [57] - [61]).

SZMAE v Minister for Immigration & Citizenship

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