SZGHZ v Minister for Immigration - [2007] FMCA 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 569

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

Migration Act 1958 (Cth), ss.424A(1), 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

SZGHZ v Minister for Immigration & Anor (2006) FMCA 1170

Applicant:

SZGHZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 19 of 2007

Judgment of:

Smith FM

Hearing date:

27 March 2007

Delivered at:

Sydney

Delivered on:

27 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Ms K McNamara

Solicitors for the Respondents:

DLA Phillips Fox

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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 19 of 2007

SZGHZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 January 2007, in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth), (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal dated 17 November 2006 and handed down on 7 December 2006. The Tribunal affirmed the decision of a delegate made on

13 January 2005 refusing to grant a protection visa to the applicant.
The interval between the delegate's decision and the Tribunal's decision is accounted for by an earlier decision of the Tribunal which was arrived at after the applicant did not attend a hearing. It was held in SZGHZ v Minister for Immigration & Anor (2006) FMCA 1170 that the Tribunal's reasons revealed a failure to follow procedures under s.424A(1) with regard to some information concerning the applicant's passport. The Court therefore quashed the first decision.
Following the remittal of the matter, the Tribunal gave the applicant an opportunity to give further information, both at a hearing and in response to a s.424A letter, and the previous error has clearly not been repeated.
The present application to the Court was returnable before me at a first Court date on 23 January 2007. The applicant attended and had the assistance of an interpreter. The nature of the proceedings was explained to him in an information sheet and by me. The applicant was given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. I warned him that his application might be dismissed today, if I were not satisfied that it raised an arguable case for the relief claimed.
A referral was made on 25 January 2007, and the applicant has filed an amended application which I shall refer to below.
The applicant arrived in Australia in December 2004, and his protection visa application was lodged on 31 December 2004. His claims to fear persecution if he returned to the People's Republic of China were set out in a brief typed insertion, which said:
My wife is the head of Falungong in our town, and influenced by her, I became a Falungong member in 1999 after it has been denounced to be an evil religious group. My wife used to have very bad health, after practicing Falungong for a period of time, she became healthy again and she was very active to promote Falungong to our neighbours, friends and people around as she strongly believes in Falungong after her actual experiences from Falungong. She became the leader in our town and in September 2003, she was detained and was sentenced to two year imprisonment. As her husband, after she was put into jail, I became the head of our town and continued to organise Falungong activities. In August 2004, when we were practicing Falungong, police came to arrest us. I was detained for 4 days and suffered both mentally and physically. I was released 4 days later. However, I had to report to local police once a week, I lost freedom and basic human rights. With the help of my friend, I came to Australia for protection.
The delegate refused the application on the ground that the applicant's claims were general, lacking in detail, and not supported by any documentation. The delegate also referred to the ability of the applicant to depart China legally on a passport issued in his own name, and thought that this did not suggest any continued adverse interest of the Chinese authorities.
When the applicant attended a hearing to which he was invited before the second Tribunal on 3 November 2006, he was questioned about his claims. A transcript of the hearing has not been put into evidence by either party, but the Tribunal gives a description in its statement of reasons.
The Tribunal questioned the applicant about the philosophies and practices of Falun Gong generally, including whether it was regarded by its adherents as a “religion”, and also as to the applicant’s own Falun Gong activities in China and in Australia. The applicant maintained a claim that he had, after his wife's imprisonment, become a leader of his group, and that he had taught its members what he had learned from his wife and their practice together. The Tribunal also questioned the applicant about how he had been able to be issued with a passport. In relation to his practise of Falun Gong in Australia during the two years of his presence here, the applicant said that he had not practised publicly in Australia but had seen people practising.
Subsequent to the hearing, the Tribunal served a s.424A notice on the applicant raising issues for his comment, including his references to Falun Gong as a religion, and the absence of evidence of his being involved in Falun Gong activities while he had been in Australia. It also raised with him the fact that he had been legally issued with a Chinese passport and did not claim to have had difficulties leaving China.
These points were later referred to in the Tribunal's “findings and reasons”, explaining a clear conclusion that “the applicant is not a Falun Gong practitioner and is not a credible witness”. The Tribunal explained how it arrived at these findings, and then applied them to reject all of his claims as to what had happened to him in China.
Although the reasoning of the Tribunal is somewhat tortuous, I do not think it is arguable that it has failed to make a genuine effort to determine the issue of credibility with which it was faced. In short, it had a claimant without corroborative evidence, claiming little involvement in Falun Gong, either in China or Australia, who travelled on an apparently valid and easily obtained passport. I can see no argument with any prospects of success that would indicate that the Tribunal's conclusions on his credibility were not open to it.
The applicant's amended application repeats the points made in his original application, in a format which has often been seen by the Court in other cases. It lacks any particulars showing how the complaints relate to this particular case. The grounds set out in the amended application are:
1.The Tribunal did not have enough evidence and materials to refuse my application. The Tribunal had bias against me and the decision was induced by actual bias of the officer.
2.The Tribunal failed to assess the chance of my persecution on my return to China based on my membership with Falun gong. The Tribunal failed to consider my application according to S91R of the Migration Act 1958.
3.The Tribunal relied on some out to date independent information for the consideration of my application.
I am unable to see any substance in the complaints that the Tribunal had bias, or failed to assess the chance of the applicant facing persecution, or made any legal error.
The proposition that the Tribunal “did not have enough evidence and materials to refuse my application” is wrongly premised as to the question which the Tribunal had to decide. This was whether it was satisfied that the applicant met the Convention definition of refugee, not whether it had evidence that he was not a refugee. The applicant's evidence did not satisfy the Tribunal as to the truth of his claims. In my opinion, this conclusion is not open to any arguable complaint of jurisdictional error.
The reference in ground 3 to the Tribunal's reliance on “some out to date independent information” is not explained, and I am unable to give it any substance.
The applicant's submissions to me today sought to explain his evidence further, by answering the factual points made by the Tribunal. However, he has not presented any transcript of what happened at the hearing to give substance to suggestions that the Tribunal misunderstood his answers, or did not give him a proper opportunity to present his case. On the material before the Court these suggestions have not been given any arguable substance.
Taking into account all that the applicant has said, I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 19 April 2007