SZFSL v Minister for Immigration
[2007] FMCA 61
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFSL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 61 |
| 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), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476
| Applicant: | SZFSL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2798 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2798 of 2006
| SZFSL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 29 September 2006 in which the applicant applies for an order that the respondent show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 August 2006 and handed down on 29 August 2006.
The Tribunal affirmed a decision of a delegate made on 8 November 2004 refusing to grant a protection visa to the applicant. A previous decision of the Tribunal was remitted by consent order, but it is unnecessary to examine the reasons for that order.
The present application was returnable at a first court date before me on 31 October 2006. The applicant appeared and was assisted by a Mandarin interpreter. The nature of the proceedings was explained to her by myself and in an information sheet, and she was given an opportunity to amend her application after receiving a referral for free legal advice and a bundle of relevant documents. She was warned that her application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received advice, and has filed an amended application to which I shall refer below.
The applicant made her application for a protection visa on 20 October 2004 shortly after arriving in Australia. It contained a brief typed statement explaining why she sought protection against return to the People’s Republic of China. No supporting evidence for her claims was ever provided, and few details were given of a claim that she feared persecution as a Falun Gong practitioner.
The applicant attended a hearing before the reconstituted Tribunal on 7 August 2006, and a detailed account of that hearing is provided in the Tribunal’s statement of reasons.
The applicant told the Tribunal that she had worked in a Government agency for all of her working life until she came to Australia. She said that she had been given Falun Gong tapes, had listened to them, and become involved in Falun Gong. Her work unit knew about this, and after July 1999 her work unit asked her to inform on people, and “ ‘they’ started to chase her every day”. She claimed that she had been detained in October 1999 as a result of her Falun Gong activities, and that in January 2000 she and a few of her friends had gone to Beijing to lodge material, and had subsequently been given unfavourable treatment in her employment. She claimed that she had been detained in Beijing for 100 days, but according to the Tribunal she “could not describe the place or her circumstances in any detail”. The Tribunal also questioned the applicant about the practices and beliefs of Falun Gong, and the extent to which she had practised that activity in Australia.
In its reasons, the Tribunal made a clear finding:
The applicant’s knowledge of the beliefs and practices associated with the Falun Gong movement is not consistent with a person who has been a long time practitioner and claims to have been involved in protest activities as a result of her involvement.
The Tribunal did not accept that the applicant had practised Falun Gong in China, nor in Australia. It did not accept the consequential activities claimed by the applicant, nor the mistreatment which she claimed to have suffered.
The Tribunal noted a statement by the applicant that she intended to return to China to attend her daughter’s graduation, and made a finding that “the applicant does not have a genuine fear of persecution for reasons of her Falun Gong practice and does not have any apprehension of harm upon her return”.
I have considered the Tribunal’s reasoning and its procedures, and can see no arguable jurisdictional error affecting its decision.
The applicant’s application to this Court asserts that the Tribunal’s decision was not reasonable. However, as I have described above, I do not consider that it is arguable that the reasoning followed by the Tribunal was so unreasonable as to provide evidence of jurisdictional error.
The second ground of the application is misconceived, since it asserts “there is no other information or evidence before the Tribunal in making of the decision that I was not ever detained for a short period”. However, the task of the Tribunal was to decide whether it was satisfied that she had been detained, and not whether there was evidence establishing that she had not been persecuted. The Tribunal gave reasons why it was not satisfied as to the applicant’s claims, and I can see no arguable jurisdictional error in how it arrived at its conclusion.
The applicant’s amended application contains assertions such as those I have dealt with above, and reasserts the merits of the applicant’s refugee claims. I cannot find an argument of substance in the amended application.
The applicant today maintained her refugee claims. She also criticised the Tribunal’s hearing on the basis that the interpreter had not fully interpreted everything she said. She also claimed, somewhat inconsistently, that she had thought that the Tribunal had accepted all that she had said. However, she has presented no evidence to give any substance to those contentions, and I can see no support for them in the material before me.
For the above reasons, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 January 2007
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