SZMNP v. Minister for Immigration & Anor

"[1] The applicant is a citizen of China. He arrived in Australia on 27 October 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 6 November 2007. On 1 February 2008, after an interview, the delegate refused to grant a protection visa and on 20 February 2008 the applicant applied for review of that decision by the Refugee Review Tribunal. The Refugee Review Tribunal held a hearing which the applicant attended with the assistance of a Mandarin interpreter on 23 April 2008. On 24 April 2008 the Tribunal wrote to the applicant inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or responses he might make, be the reason or part of the reason for affirming the decision under review. The applicant responded to the letter and then provided certain further information. The further information was taken into account by the Tribunal which, on 10 June 2008, determined to affirm the decision under review and handed that decision down on 19 June 2008.

[2] The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion. The applicant told how that he had been a taxi driver since October 1992. In 2004 the assistant manager of the taxi company asked the applicant to drive him to a meeting and on the way the manager advised him that he was a Christian and encouraged him to believe in God. Through this introduction the applicant began to take an interest in Christianity and participate in family church groups which held activities every Friday evening from 7.00p.m. to 9.00p.m. at the manager’s home. The applicant used his position as a taxi driver to introduce bible knowledge to customers. On 18 September 2006, when he was sending a bible publication to a customer, he was arrested and detained for fifteen days by the local police for propagandizing Christianity and disrupting social order. The applicant told in his protection visa application (“PVA”) that after his release he was dismissed by the company and his wife became depressed. He left his home and began making a living selling baubles in a market stall in another town. Whilst in this town he got two named persons to join a church group and claimed in his PVA that they were nearly arrested several times but he avoided this. Because of a feeling that he was under a risk of being arrested he arranged to go abroad and came to Australia on 27 October 2007. Since being in Australia he has been an active participant at the West Sydney Chinese Christian Church. The applicant produced documents in support of his application from two persons connected with the West Sydney Chinese Christian Church.

[3] At [CB 134] the Tribunal makes reference to a piece of information that is of critical importance in this decision:

“There is on file a report from a third party essentially noting that the applicant had travelled to Australia with a tour and that a female (X) with whom he is in a relationship, had travelled with him. The information indicates that the applicant has known the female for many years and that their wedding is planned for the end of the year.""

""There is information that female X had also absconded, that she had applied for a protection visa (on different grounds), that she has the same residential and postal address as the applicant and that she had engaged the same migration agent.""

""The applicant was interviewed by the Department on 6 December 2007 and during the interview, he provided the photograph located at folio 53. In the course of the interview, the applicant denied knowing the female who bears a striking resemblance to the female with whom he is in a relationship.”

[4] At the Tribunal hearing the applicant was asked whether he knew any person who was on the tour with him. He stated that he did not. The Tribunal then turned to the applicant’s claims of Christianity and he confirmed the history set out in his PVA. The Tribunal then asked the applicant about other Christian related activities in which he may have been involved and he spoke about going to family gatherings and disseminating Christian related information to customers. The Tribunal noted at [CB 135] at [40] his responses were vague and they appeared to be scripted. At [CB 135] at [41] the Tribunal noted that the applicant’s responses lacked detail and indicated to him that the lack of details and vagueness and the incoherency could raise doubts about the veracity of his claims. The Tribunal noted that the applicant claimed that he was nervous but did not give the appearance of being so. The Tribunal continued to question the applicant about his Christian activities in China and continued to remark upon the vagueness of the responses. It then turned to the circumstances of his detention. The Tribunal noted an inconsistency between his statement at hearing that he was caught giving a customer material in his car and the information provided in his PVA that he had been caught sending a publication to a customer. When the Tribunal asked the applicant when he was released and he gave a date the Tribunal noted that he had not given a date in his PVA. The Tribunal advised the applicant that it considered that the reason he had given for his detention “propagandizing Christianity and disrupting social order” appeared to be inconsistent with his oral evidence that he was arrested for disseminating illegal publications. The applicant advised the Tribunal that he had a warrant but the Tribunal noted that this had not been mentioned in his statement in support of his PVA.

[7] On 24 April 2008 the Tribunal sent to the applicant a letter under s.424A which is extracted at [CB 140]. The relevant parts of the letter is reproduced at [67]:

“...There is in the Departmental file a report from a third party essentially noting that you had travelled to Australia with a tour and that a female (X) with whom you are in a relationship, had travelled with you. For reasons of confidentiality and privacy, the Tribunal cannot release the name of the female. The information before the Tribunal suggests that you had known the female for many years that your wedding is planned for the end of the year. The information suggests that female (X) had also absconded, that she had applied for a protection visa (on different grounds), that she has the same residential and postal address as yourself and that she had engaged the same migration agent, Ms Weiming Qian.""

""This information is relevant because the above common features between your application and that of the other applicant could suggest fabrications of claims, which could raise doubts about your claims and your credibility generally.""

""You were interviewed by the Department on 6 December 2007 and during the interview, you provided a photograph showing you with five other people. In the course of the interview and the hearing, you denied knowing the female standing in the middle of the back row. The Tribunal notes that the female whom you denied knowing bears a striking resemblance to the female with whom it is alleged that you are in a relationship and had travelled with (i.e. female X as referred to above). The Tribunal showed you a copy of the photograph of the woman, contained in the Departmental file.""

""This information is relevant because your denial of knowing female X when there is information that could suggest the contrary, could raise doubts about your claims and your credibility generally ...”

[10] In the Tribunal’s findings and reasons it set out in paragraphs [75 – 85] [CB 142 – 144] its views upon the applicant’s testimony concerning his Christian activities in China and what had occurred to him there. The vagueness and inconsistencies previously referred to were reiterated and constituted the Tribunal’s grounds for concluding that the applicant’s testimony lacked credibility or veracity. In regard to the certificate of baptism the Tribunal noted that the applicant had not been baptised in China and the fact that he was baptised after the hearing raised issues about his intentions and could suggest that he had engaged in that conduct for the purposes of strengthening his application for a protection visa. The Tribunal’s conclusions concerning the information that it had are contained at [CB 144]:

“The applicant was interviewed by the Department on 6 December 2007 and during the interview, he provided a photograph showing the applicant with five other people. In the course of the interview and the hearing, he denied knowing the female standing in the middle of the back row. The Tribunal notes that the female whom he denied knowing bears a striking resemblance to the female with whom it is alleged that he is in a relationship and had travelled. Whilst the Tribunal may be in agreement with the applicant when in the response to the s.424A letter, he said this issue was not relevant to his claims, this information is relevant because his denial of knowing female X when there is information that suggests the contrary, raises doubts about his claims and credibility generally. The distinction he made between knowing and meeting, whilst valid, does not explain his responses abut this female. Relevantly, post-hearing, the applicant provided a letter from [friend] stating that the applicant had lived “ín the same address and moved out now”, that the author of the letter had known in China the woman in the photograph, “female X” whom the applicant had not met prior to coming to Sydney, that the woman and the applicant had come from different areas in China and that they “won’t stay as loving couple”. The applicant also provided a letter reiterating his earlier advice that he did not know “female X” prior to meeting her in Sydney, a copy and translation of application/certificate of marriage and the photograph of the applicant with his wife and daughter.”

""There is before the Tribunal information that the applicant had travelled to Australia with a tour and that female (X) with whom he is alleged to be in a relationship, had travelled with him. The information suggests that he had known the female for many years and that his wedding is planned for the end of the year. The information suggests that female X had also absconded, that she had applied for a protection visa (on different grounds), that she has the same residential and postal address as the applicant and that she had engaged the same migration agent, Ms Weiming Qian. The Tribunal has carefully considered the applicant’s explanations that he did not know this person but finds them unconvincing. The Tribunal has also considered the letter from [friend] but given the credibility concerns and in consideration of the evidence as a whole, the Tribunal does not give the letter weight. The Tribunal is satisfied that the common features between the applications indicate fabrication of claims, raising doubts about the applicant’s claims and his credibility generally. Furthermore, this issue is one of the many concerns that the Tribunal has about this applicant.”

[11] The Tribunal concluded that given the adverse credibility finding it could not accept that the applicant was a genuine Christian or any of his claims about his activities and persecution in China. The Tribunal found that it cannot be satisfied that the applicant had engaged in Christian related activities in Australia otherwise than for the purpose of strengthening his application for a protection visa and therefore disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (the “Act”) . "