SZIQJ v Minister for Immigration - [2006] FMCA 1056

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQJ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1056

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

Migration Act 1958 (Cth), s.476

Federal Magistrates Court Rule 44.12(1)(a)

Applicant:

SZIQJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1039 of 2006

Judgment of:

Smith FM

Hearing date:

18 July 2006

Delivered at:

Sydney

Delivered on:

18 July 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitor

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 first applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1039 of 2006

SZIQJ

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 6 April 2006, in which the applicant seeks an order that the respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act. The applicants seeks orders by way of judicial review of a decision of the Refugee Review Tribunal, dated 28 February 2006 and handed down on 21 March 2006. The Tribunal affirmed the decision of the delegate, refusing to grant protection visas to the applicants. The second and third applicants are children of the first applicant, and their claims were dependent upon success by their mother. I shall therefore refer to the first applicant as “the applicant”.
The application was made returnable before me at a first Court date on 3 May 2006. On that occasion the applicant attended in person and was assisted by a Cantonese interpreter. The nature of the Court's jurisdiction was explained to the applicant by me and in an information sheet. The applicant was given an opportunity to file an amended application and affidavits by 7 July 2006, after receiving a referral for free legal advice and a bundle of relevant documents. My orders drew attention to the need for a transcript, if evidence of what happened at the Tribunal hearing was sought to be presented. I also warned the applicant that her application might be dismissed at today's listing, if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has filed an amended application, but it repeats the grounds which were set out in the original application, and which I shall consider below.
The applicant's application for a protection visa attached a brief statement explaining her reasons for seeking protection in Australia, against return to her country of nationality, the People's Republic of China. It claimed that the applicant had started to practise Falun Gong and had "joined in the Falun Gong organisation". She said:
I often took part in the activities of Falun Gong. However, I was caught by the local policemen during a meeting of Falun Gong. I was put in the detention at the government court three months. I suffered a lot in those days. They beat me, and did not give me enough food to eat, and insulted me. When I was out of from the detention centre, my children even could not recognise me.
She claimed that after she returned home:
The policemen always came to interrogate me, and they did not allow me to travel outside or take part in the Falun Gong activities.
She referred to having travelled to Vanuatu to make a new life, and then having arrived in Australia.
No further details were provided to the Department, and no supporting evidence was ever presented to the Department nor to the Tribunal.
The applicant did attend a hearing held by the Tribunal on 2 February 2006. The Tribunal gave a description of what happened at that hearing in its statement of reasons, and referred to concerns which it raised in the course of the hearing. The Tribunal said:
The applicant appeared anxious and confused during the hearing and some of her answers were incoherent. The Tribunal indicated to her that it would send her a letter, describing its concerns, so she had a further opportunity to comment on these matters.
The Tribunal did send such a letter, which fully and clearly should have brought to the applicant's attention concerns it had about her inability to demonstrate knowledge and understanding of Falun Gong movements, and inconsistencies which it identified in her evidence. The applicant was invited to comment. She sent to the Tribunal a brief letter but this did not respond to the matters raised by the Tribunal at all. It claimed: “because I studied Falun Gong, I was insulted and bullied by the government”, and asked for the sympathy of the Tribunal.
In its statement of reasons, the Tribunal identified the claims made by the applicant and set out, logically, three areas of her claims which it did not accept. It indicated that it did not accept as credible her claim that she “is or ever has been a genuine or committed Falun Gong practitioner”. Its reasons for this conclusion were her inability to provide, “some information regarding the group and its activities”.
The Tribunal said:
The Tribunal finds that the applicant could not provide any meaningful information regarding Falun Gong's history, core activities, or beliefs, because she is not and never has been a Falun Gong practitioner. The Tribunal finds that the applicant fabricated the claim to enhance her protection visa application and accordingly this claim is not accepted by the Tribunal.
The Tribunal rejected the applicant's claim to have been detained by the authorities in China during 1998, largely because, on the country information before it, Falun Gong practitioners did not attract the adverse attentions of the authorities until 1999.
The Tribunal also addressed what it described as “the applicant's broad claim that she may become involved with Falun Gong in the future”. It referred to the situation of Falun Gong members in China and concluded:
The Tribunal is not satisfied that the applicant has ever had an interest in Falun Gong or that she will develop an interest in Falun Gong in the reasonably foreseeable future. The Tribunal finds that her claim that she may resume her involvement with Falun Gong, like the applicant's other core claims, was fabricated to enhance the application. The Tribunal does not accept as credible the applicant's claim that she will be involved in any Falun Gong activities, in the reasonably foreseeable future, which will attract the adverse interest of the PRC authorities.
I have considered the procedures and reasoning followed by the Tribunal and am unable to identify any arguable ground of jurisdictional error affecting its decision.
The applicant's application and amended application contain four grounds:
1.The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment contained in Article 33 of the 1951 Convention Relation to the Status of Refugees (the Convention).
2.The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lack of bona fides.
3.The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.
4.The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.
The first and fourth grounds make allegations of legal error, without providing any meaningful particulars. No details of any argument have been provided in written or oral submissions, and I can see no arguable substance in these grounds.
The contention in ground 2 that the Tribunal acted with a "closed mind" is not supported by any evidence which has been presented by the applicant, and the contention appears to be based upon no more than the adverse outcome of the Tribunal decision. However, that cannot provide any prospect of success for a ground alleging bias. I can see no argument available to the applicant that the Tribunal failed to address the applicant's claims on their merits.
I consider that the contention as to absence of bona fides made in ground 3 is similarly lacking in arguable substance.
The applicant attended today's hearing but had no submissions to make to me.
Considering all the material before me, I am not satisfied that the application has raised an arguable case for the relief claimed. I consider it appropriate to dismiss the application under rule 44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 2 August 2006