SZIMA v Minister for Immigration
[2006] FMCA 653
•25 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 653 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZIMA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG706 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 25 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Rose Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG706 of 2006
| SZIMA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 9 February 2006. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had claimed a protection visa on the basis of her practice of Falun Gong. Relevant background is set out in the Minister's written submissions. I adopt as background for the purposes of this judgment paragraph 3 through to paragraph 10.6 of those written submissions:
The applicant is a female citizen of the Peoples' Republic of China born on 10 January 1958.[1] She first arrived in Australia in 1994.[2] The applicant has entered and exited Australia numerous times since her first visit. Her most recent entry to Australia was on 31 October 2004.[3]
[1] court book, page 2
[2] court book, page 93
[3] court book, pages 28-36 (applicant's passport)
The applicant applied for a protection visa (Class XA) on 23 August 2005 .[4] The application was refused on 19 September 2005.[5]
[4] court book, page 26
[5] court book, pages 39-50
The applicant applied to the RRT for review of the original decision on 18 October 2005.[6]
[6] court book, pages 51-54
The RRT, by letter dated 5 December 2005, invited the applicant to attend a hearing on 13 January 2006.[7] The applicant returned a completed Response to Hearing Invitation form on 20 December 2005, indicating that she wished to attend the hearing, that she required a Mandarin interpreter, and that no witnesses would be called on her behalf.
[7] court book, pages 57-58
The applicant presented her passport to and gave oral evidence before the RRT on 13 January 2006.[8] The RRT handed down its decision on 9 February 2006.
[8] court book, pages 60-73
The applicant's claims
The applicant had claimed in her original visa application that she had been a Falun Gong member since 1997. She claimed that she remained a Falun Gong member after the ban placed on it by the Chinese authorities in 1999, and that she was involved in Falun Gong activities after she came to Australia. She went back to China several times without any problems; however, when she returned to China in late 2004 to visit her son, she found that the Chinese authorities had been paying attention to her because of her Falun Gong activities in China and Australia, and she returned to Australia. She claimed that she now fears persecution if she returns to China.
At the RRT hearing, the applicant gave evidence that:
a)she has visited Australia regularly since 1998. She purchased a coffee shop with her husband in Sydney, but they eventually sold the business and divorced in 2005[9];
[9] court book, page 93
b)she travelled to China in September 2004 to inform her son that she intended to apply for a divorce. She stayed for approximately one month before returning to Australia at the end of October 2004[10];
[10] court book, page 93
c)she began practising Falun Gong in 1997 in China for health reasons and continued in Australia with 'several friends … sometimes at the friend's house and sometimes practised outside the house', sometimes 'on the street outside', and sometimes 'in front of Immigration'. The applicant explained that 'sometimes older women and several Falun Gong practitioners would practise Falun Gong outside of the Immigration Department when they were waiting to have their passports renewed';[11]
[11] court book, pages 93-94
d)she could not provide any information as to particular beliefs surrounding the practice of Falun Gong, and she did not have any contact with the Falun Dafa Association in Australia because she just practises with her friends and she was too busy running her shop;[12]
[12] court book, page 94
e)her name was on a list held by the Chinese authorities because she practised Falun Gong. She stated Chinese authorities had 'tried to approach her but she had run away' and that since Chinese authorities persecute Falun Gong practitioners, 'she would be on their records and…she was in fear of harm from the authorities'. She claimed that her name 'was on a list since she started practising Falun Gong in 1997. When asked why she had not encountered difficulties in returning to China on several occasions, she stated that two Falun Gong practitioners, who were friends of hers, had been arrested and 'the authorities would have pushed her friends to divulge her name'. She knew this because 'family members of her friends had told her this'.
The decision of the RRT
The RRT found that[13]:
a)the applicant was not a credible witness on key aspects of her claims;
b)the applicant's oral evidence was 'unconvincing in that it was highly generalised and lacking the specificity';
c)the applicant was not a genuine Falun Gong practitioner nor that she was of any adverse interest to the Chinese authorities;
d)the applicant had made numerous trips between Australia and China since 1998 without event and she had passed through security checks at the airport on these trips to and from China without event;
e)the applicant had made no claims as to having been detained or questioned by the authorities in the past;
f)accordingly, the RRT was not satisfied that the applicant has a well founded fear of persecution for Convention reason on her return to China.
[13] court book, pages 96-97
This proceeding began with a show cause application filed on 9 March 2006. In that application the applicant asserted notification of the RRT decision on 20 February 2006. On that basis I find that the application was filed within time.
It was not apparent to me on the face of that application whether it disclosed an arguable case. For that reason I ordered a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I conducted a show cause hearing on 3 May 2006. The applicant was given leave to file a further application in court on that day. That application asserted a breach of s.424A of the Migration Act1958 (Cth) (“the Migration Act”. I did not regard that application as having any reasonable prospect of success, given that the RRT decision was plainly based upon what the applicant said at the hearing conducted by the RRT.
However, it did appear to me that an arguable issue arose from the original application filed on 9 March 2006. I ordered that the Minister show cause why relief should not be granted in relation to ground 5 of the original application on the basis that the ground should be taken to have contained the following particulars:
The applicant asserted in her protection visa application as set out on page 20 of the court book that while she had been back to China several times and did not experience any problems with the authorities she experienced problems on a visit to China late in 2004. The applicant reiterated those claims at the hearing conducted by the RRT on 13 January 2006. The RRT found that the applicant had claimed no difficulties having been experienced with the authorities (court book, page 96). In so finding, the RRT overlooked an element or integer of the applicant’s claims.
I also gave the parties the opportunity to file additional evidence.
I received as evidence today the court book filed on 18 April 2006.
I also received the affidavit of Kimberley Karen Rose filed on 31 May 2006. That affidavit introduces a transcript of the hearing conducted by the RRT on 13 January 2006.
The applicant presented to the Court on 31 May 2006 a further amended application. I gave leave for that further amended application to be filed in court today. Rather unhelpfully, the further amended application continues to assert a breach of s.424A of the Migration Act. It also alleges bias. Neither allegation can be sustained. There is nothing to support the allegation of bias. I reject it. The asserted breach of s.424A of the Migration Act must also fail. That is because the RRT decision was not based upon any information other than information given to the RRT by the applicant for the purposes of the RRT review.
That leaves the issue raised by me at the show cause hearing. The Minister's submissions deal with that issue at paragraphs 16 to 21.
I agree with and adopt for the purposes of this judgment those submissions with minor amendments:
At the show cause hearing on 3 May 2006 (held pursuant to rule 44.12 of the Federal Magistrates Court Rules), [the Court] ordered, inter alia:
a)That ground 5 of the original application ('The Tribunal failed to consider my claims') is to be read as if it contains the following particulars:
The applicant asserted in her protection visa application (court book, page 20), while she had been back to China several times without problems, she experienced problems on a visit in late 2004 and she reiterated those claims at the hearing conducted by the RRT on 13 January 2006. The RRT found that the applicant had claimed no difficulties experienced the authorities (court book, page 96). In so finding, the RRT overlooked an essential element/integer of the applicant's claims.
b)That no other ground in the original or the amended application has been shown to have a reasonable basis.
At court book, page 20, the applicant states '….when I returned to China to see my son late last year, I found that the Chinese authorities had been paying attention to me, and I left the country as soon as possible. I can not return to China now. I will face persecution'.
At court book, page 96, the RRT states 'the Tribunal notes that the applicant has made numerous trips between Australia and China since 1998 without event and the applicant has made no claims as to having been detained or questioned by the authorities in the past and that she passed through security checks at the airport on her numerous entries to and exits from China without event.'
The respondents' submissions
The respondent submits that the applicant has not demonstrated that the RRT made any jurisdictional error with respect to the sole ground alleged by the applicant. The respondent submits that the RRT did not fail to consider any of the applicant's claims nor overlooked an important element or component integer of her claims, namely the applicant's claim to have experienced problems with the Chinese authorities on her return to China in late 2004.
The applicant gave oral evidence at the RRT hearing on 13 January 2006. The following paragraphs contain information taken from the transcript of that hearing:
a)the applicant returned to China in September 2004 to tell her son that she was divorcing his father. She stayed in China for 35 days (lines 44-46, page 7; lines 1-11, page 8);
b)the applicant has not returned to China since October 2004 (lines 9-12, page 9);
c)the applicant started practising Falun Gong in 1997 in China. In China, Falun Gong practitioners are persecuted and if she was to return to China, she would be scared (lines 29-35, page 10);
d)the applicant was asked by the presiding member whether she had any difficulties with the Chinese authorities when she went back to China on various occasions. (lines 22-24, page 13) The applicant responded that 'Yes, they are trying to approach me to make trouble with me, but I have to run away from them. I stay here these days and another place – some other place' (lines 26-28, page 13);
e)the presiding member then asked the applicant to be more specific, and the applicant replied that she had been approached at her home in China, and then she went to stay with different friends (lines 34-37, page 13);
f)the applicant was asked by the presiding member who approached her and why, and she replied that it was the 'Chinese authority and other phone calls' and that she believed she was being approached because she practised Falun Gong (lines 39-46, page 13);
g)the applicant stated that the last time she returned to China she felt 'more pressure' because she felt the authorities were more strict with Falun Gong practitioners (lines 29-31, page 14). When asked by the presiding member why the authorities would be interested in her, the applicant stated that she had been told by a friend's family that her name was on a list of Falun Gong practitioners (lines 33-45, page 14; lines 1-22, page 15);
h)the presiding member indicated to the applicant that she did not believe that the Chinese authorities were interested in the applicant, as she has entered and departed China numerous times without difficulty. The applicant responded that on the last occasion she returned to China she felt things were 'more serious' and she had 'more fear' (lines 12-20, page 16).
At no point in the RRT hearing did the applicant ever claim to have been detained or questioned by the Chinese authorities on any of her multiple trips to China. The highest that the applicant's claims can be put is that she claimed to have been approached by Chinese authorities on her last trip to China in September 2004, but she ran away. The presiding member attempted to explore the applicant's claims with her at several points in the RRT hearing, and to invite greater detail and specificity from the applicant. No such detail or specificity was provided by the applicant so as to enable the RRT to be satisfied of the applicant's claims.
The transcript of the RRT hearing establishes to my satisfaction that the presiding member understood the applicant's claims but was troubled by the generality of them. She probed the applicant for more information but the applicant's responses were unconvincing. Ultimately, the applicant told the presiding member that the reason she made a protection visa application was because on her final visit to China, someone in her friend's family told her that China was not safe. This was because of persecution of Falun Gong practitioners. I accept that the presiding member considered the applicant's claims as they were put. There was nothing in the applicant's evidence that suggested that she had suffered any harm at the hands of the Chinese authorities. She was apprehensive of some harm coming to her. She was not able to give the presiding member sufficient information about her adherence to Falun Gong to persuade her that she was a genuine practitioner.
I conclude that the RRT dealt adequately with the applicant's claims as put. There is no jurisdictional error. The RRT decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,200. Under the Federal Magistrates Court Rules, a sum of $5,000 would ordinarily be payable at this stage of the proceeding. The Minister properly seeks a lesser amount. The applicant was concerned about her capacity to pay but impecuniosity is not a reason for the Court to refrain from making a costs order. I accept the Minister's estimate of costs on a party-party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,200.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 August 2006
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