SZFHH v Minister for Immigration

[2007] FMCA 1890

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1890

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.36(2)

Applicant: SZFHH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2565 of 2007

Judgment of: Smith FM

Hearing date: 6 November 2007

Delivered at: Sydney

Delivered on: 6 November 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2565 of 2007

SZFHH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in 2004 from China, and applied for a protection visa. He claimed that he had been a Falun Gong believer in early 1996 before it was outlawed in 1999. One of his friends was persecuted, and this caused him “to practice Falungong and attend Falungong activities secretly”. He said that during a business visit to Germany in December 2003, “I met many Falungong followers”, and he returned to China with “many Falungong materials and newspapers”, which were discovered in his bag at Beijing Airport. He claimed that he was then arrested, held for one week, beaten up and released on conditions of reporting to the police every week. He then came to Australia on his own passport in July 2004.

2. A delegate refused his application on 14 July 2004, and this decision was eventually affirmed by the Refugee Review Tribunal in a decision handed down on 17 July 2007, after two previous decisions were set aside by consent.

3. The Tribunal considered the applicant’s evidence given at two previous hearings which the applicant attended, and also his evidence at a hearing on 19 June 2007. It formed the view that he was not a credible witness, and did not believe that his inconsistencies and vagueness were produced by memory deterioration. It identified a number of weaknesses in his evidence, including on whether he had practised Falun Gong exercises after 1999, and the inconsistency between his presenting himself as a person who was timid as a result of persecution, and his claim to have brought Falun Gong material through Beijing Airport. It considered that the fact that the applicant left China using his passport raised a serious doubt whether he was of any adverse interest to Chinese authorities. It was not satisfied that the applicant had been involved in any Falun Gong activities, nor that he had suffered, or would suffer, any harms if he returned to China.

4. The applicant now asks the Court to set aside the Tribunal’s decision and remit it for a third time for reconsideration.

5. The application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend the grounds of his application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He has, however, not filed any documents additional to his original application.

6. His application contains three grounds:

   1.That a breach of the rules of natural justice occurred in connection with the making of the Decision. 

   2.The Tribunal have no other evidence to make the decision that I had not involved in activities about Falun Gong in China. 

   3.The Tribunal failed to consider the current situation in relation to the persecution of Falun Gong in China. 

7. The applicant has not identified any particular unfairness in the proceeding of the Tribunal, and I am unable for myself to detect any breach of the rules of natural justice or of a provision of the Migration Act 1958 (Cth) requiring observance of fair procedures.

8. The second ground is falsely premised on the proposition that the Tribunal must uphold a refugee claim unless it is disproved. However, under s.36(2) of the Migration Act, the Tribunal must be positively satisfied that an applicant is a refugee before it can decide in his favour. In that situation, the Tribunal’s failure to be satisfied with the applicant’s uncorroborated claims was clearly open to it on the evidence before it, and I can see no arguable jurisdictional error in how it has reasoned.

9. The third ground is not, in my opinion, arguable, since the Tribunal’s conclusion that the applicant’s claimed personal history should not be accepted meant that it did not have to consider further the current situation facing Falun Gong practitioners in China.

10. The applicant today had submissions which only went to the merits of his claims to be a refugee and to be believed. However, I am not satisfied that his application raises an arguable case for the relief claimed, and I think it appropriate to dismiss his application under r.44(12)(1)(a).

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  14 November 2007