SZGNC v Minister for Immigration

[2007] FMCA 781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 781

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – 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), ss.424A(1), 476

Applicant: SZGNC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG617 of 2007

Judgment of: Smith FM

Hearing date: 15 May 2007

Delivered at: Sydney

Delivered on: 15 May 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Mansour

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed under Rule 44.12 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 $1,200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG617 of 2007

SZGNC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 22 February 2007, which 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 (“the Tribunal”) dated 21 December 2006 and handed down on 16 January 2007. The Tribunal affirmed a decision of a delegate made on 19 January 2005, refusing to grant a protection visa to the applicant.

2. An earlier decision of the Tribunal was made after the applicant did not attend a hearing to which he was invited. That decision was set aside by consent order in this Court on the ground, as I have been advised by the solicitor for the Minister, that the previous Tribunal referred to information which was not the subject of a s.424A(1) notice.

3. The applicant arrived in Australia in November 2004 and an application for protection was lodged on 26 November 2004.  His application did not disclose any assistance, and attached a brief typed statement explaining why he feared returning to his country of nationality, the People’s Republic of China.  The statement said: 

   Six years ago, I began to read Falun Dafa and practice it.  I have never stopped practicing it.  During that period, I kept a tight relationship with other FaLun Gong practitioners.  We always practised FaLun Gong together and we intend to seek a high‑level cultivation from the rationales of FaLun Gong, “Genuineness, Goodness and Tolerances”.  I believe I can keep my health and spirit through practicing and there is nothing wrong with FaLun Gong. 

   His statement claimed that he was harassed for practising Falun Gong, and that “one night the police surrounded my home and arrested us.  Fortunately, I escaped for I knew my house very well”. 

4. No details of these claims, and no corroborative evidence, was presented to the Department nor subsequently to the Tribunal. 

5. The applicant did attend a hearing to which he was invited by the reconstituted Tribunal, held on 21 December 2006.  Neither party has presented a transcript of that hearing.  According to the Tribunal’s description of the hearing, the applicant gave inadequate and contradictory responses to questions seeking to discover the details of his claimed arrest, which he told the Tribunal had occurred “six years ago in a public park”.  The applicant also gave contradictory evidence as to whether he stopped practising Falun Gong at that time, and about travel to Singapore and Malaysia shown in his passport.  When questioned to test his knowledge of Falun Gong he showed almost no knowledge. 

6. The Tribunal gave short reasons for affirming the delegate’s decision: 

   The Tribunal accepts on the basis of the passport tendered at hearing that the Applicant is a national of the PRC. 

   The Tribunal finds that the Applicant’s evidence as the circumstances of his alleged arrest six years ago and the circumstances of his release at that time is damaged by contradiction and implausibility.  He was inconsistent in his evidence as to whether or not he continued to practice Falun Gong in the PRC.  The Tribunal is not satisfied on the evidence before it that the Applicant left the PRC on either occasion in 2004 out of fear of persecution.  The Tribunal gives weight to the fact that the Applicant was able to return to the PRC in 2004 without facing persecution for any Convention‑related reason.  The Tribunal does not accept on the evidence before it that the Applicant has any familiarity with Falun Gong.  The Tribunal gives no weight to the Applicant’s explanations as to why he was unable to answer questions about Falun Gong practice and teaching. 

   The Tribunal finds on the evidence before it that the Applicant came to Australia for reasons not related to the Convention and then decided to remain here for reasons that are also not Convention‑related.  The Tribunal is not satisfied on the evidence before that any punishment or repercussions the Applicant might face, for failing to return to the PRC with his badminton team, would be in any way Convention‑related. 

   The Tribunal finds that the Applicant is an unreliable witness in this matter.  The Tribunal is not satisfied that the Applicant faces a real chance of Convention‑related persecution in the PRC.  His claimed fear of such persecution is not well founded.  He is not a refugee. 

7. I have considered the procedures of the Tribunal and its reasons, and am unable to identify any arguable jurisdictional error affecting its decision. 

8. The applicant attended the first court date held by me on 13 March 2007.  On that occasion the nature of the proceeding was explained to him and he was given an opportunity to file an amended application and evidence, after receiving a referral for advice and a bundle of documents.  He was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case. 

9. The applicant has not filed an amended application, and had nothing to say to me today to show an arguable case.  His original application contained the following three grounds: 

   1.The Tribunal Member did not carefully consider my application in my favour. 

   2.I was denied procedural fairness in connection with the making of the decision. 

   3.I would face a risk of being jailed if I return to China. 

10. To the extent that Ground 1 asserts that the Tribunal did not address his refugee claims, I do not consider there is any arguable substance to that contention. 

11. No particulars have been provided of the alleged denial of procedural fairness, and I am unable to identify any arguable substance in that ground.  Otherwise, his grounds reassert his refugee claims and do not provide arguable grounds in this Court. 

12. I am not satisfied that his application raises 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  24 May 2007