SZITD v Minister for Immigration
[2007] FMCA 726
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 726 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – not believed by Tribunal – no arguable case raised – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.424A, 476 Federal Magistrates Court Rules 2001 (Cth), r44.12(1)(a) |
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142
SZGNY v Minister for Immigration & Citizenship [2007] FCA 384
SZILQ v Minister for Immigration [2007] FMCA 483
| Applicant: | SZITD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 511 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 8 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms K Hooper |
| 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 $2,500
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 511 of 2007
| SZITD |
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 15 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”) made on 20 December 2006 and handed down on 11 January 2007. The Tribunal affirmed a decision of a delegate made on 11 January 2006 refusing to grant a protection visa to the applicant.
A previous decision of the Tribunal handed down on 11 April 2006 was set aside by consent order of this Court made on 21 August 2006. I deduce that the grounds for the order were that the previous Tribunal failed to put information relied upon to the applicant pursuant to s.424A(1) of the Migration Act.
The present application was returnable before me at a first Court date on 6 March 2007. The applicant attended in person and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him by me and in an information sheet, and he was given an opportunity to file an amended application and any additional evidence after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant was sent a referral for free advice on 8 March 2007, and the Court has been informed by the barrister that advice was given on 16 April. The applicant has not filed an amended application. However, at the hearing today a precedent list of grounds of application was read to me at his request from a piece of paper in Chinese. I shall consider this below.
The applicant arrived in Australia in November 2005 and lodged his application for a protection visa on 13 December 2005. It disclosed no assistance being given in the preparation of the application, and attached a brief statement explaining why the applicant sought protection against return to the People's Republic of China. He claimed to have become a Falun Gong member in 1997 and to have become “a senior member”. He claimed that in 2003, he was “found” to be a senior member and police came to a site and detained him for investigation. He claimed to have been kept in a police station for four days and “suffered physical and mental persecution from the Chinese Communist Party”. He claimed to have been helped by a relation in the Security Bureau and “continued my involvement with Falun Gong and acted as a head of the area.” He claimed to have practised Falun Gong secretly and that in January 2005 “my brother-in-law helped me to get a passport and in November 2005, I came to Australia.”
No corroboration of his claimed activities in China was presented to the Department of Immigration, nor on appeal to the Tribunal. The applicant did, however, present to the reconstituted Tribunal some material purporting to corroborate an involvement in Falun Gong while in Australia subsequent to the first decision of the Tribunal.
On 31 March 2006 the applicant attended a hearing before the Tribunal as originally constituted, and the reconstituted Tribunal said in its statement of reasons that it “carefully listened to the tape of the first hearing”. It said that the taped hearing was consistent with the description given by the first Tribunal member of what had happened at the hearing, when that member sought to discover the applicant's knowledge of Falun Gong exercises and philosophies.
The Tribunal described the applicant’s evidence given at the first hearing and contrasted it with his knowledge of Falun Gong demonstrated to the Tribunal when he attended a second hearing on
13 December 2006. It said:
The applicant’s evidence before the second Tribunal was consistent, and he demonstrated a good level of knowledge of Falun Gong history and practices. However, this is at odds with the applicant’s performance before the first Tribunal. In this regard the description of the events of the first Tribunal hearing is crucial as it describes what physically occurred. The tape is more graphic. At that hearing the applicant said that Falun Gong practice simply involved sitting on the floor and meditating with hands clasped or cupped together against the forehead which he demonstrated from his seat in the hearing room. He stated vaguely that there were “several,” main exercises, possibly ten exercises, and then revised it to “fourteen or fifteen.” When asked to demonstrate the fourteenth exercise he stood and moved around the room with his arms positioned as if holding a rifle. His behaviour was described as in no way remotely resembling any of the exercises taught by Falun Gong practitioners.
When the first Tribunal asked the applicant to perform what he understood to be the fifth exercise, the first Tribunal described his action as standing with his feet apart, hunching forward and placing the weight of his upper body on straightened arms, with his hands pressed on his thighs just above the knees. It was stated that the applicant’s posture did not remotely resemble any of the exercises taught by Falun Gong practitioners, let alone the fifth exercise which involves sitting the whole time with both legs crossed. The applicant stated that the fifth exercise progressed onto the sixth exercise which, according to independent information, does not exist. The first Tribunal concluded that the applicant was not performing Falun Gong exercises ( ).
Moreover, Dr. Benjamin Penny has stated that in assessing whether an applicant is a genuine Falun Gong practitioner, that all practitioners would know of their existence and should be able to perform them confidently.
Having carefully listened to the tape of the first hearing, this Tribunal finds that the applicant did not display the requisite knowledge that would indicate that he was a Falun Gong practitioner at that hearing. He did not know that there were five main exercises, and he could not display any exercise. This contrasts with the second hearing where he displayed a good knowledge of Falun Gong.
The Tribunal made a finding based upon the contrast in the applicant's evidence that “the applicant was not a Falun Gong practitioner prior to the first Tribunal hearing”. It then found that the applicant was not a Falun Gong practitioner in the People's Republic of China, and rejected all the applicant's claims. Specifically, the Tribunal rejected “that he was detained by the police and suffered at the hands of the CCP.”
The Tribunal took into account the evidence presented by the applicant as to his practice of Falun Gong in Australia by way of three pro forma purported statutory declarations, and it placed “little weight” on that evidence for reasons cogently explained by the Tribunal. It also made a finding that:
the applicant would not practice Falun Gong if he were to return to the PRC, as he did not previously, and he has only learned it in Australia to progress his claims to be a refugee.
The Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to the PRC now or in the reasonably foreseeable future.
I have considered the reasons of the Tribunal and its procedure, and can identify no arguable jurisdictional error affecting its decision.
The application filed by the applicant in the Court contains the following grounds:
1.The Tribunal failed to consider the information provided in reply of the letter from the RRT under S424A of the Migration Act 1958. The Tribunal did not consider all the information provided for my application for a protection visa.
2.The Tribunal had bias against me and refused to consider my comment upon the reason for affirming the decision. The tribunal failed to carry out its statutory duty.
3.The Tribunal failed to consider my claims because of the Tribunal’s bias against me. The Tribunal failed to consider my application according to S91R of the Migration Act 1958.
Paragraph 1 refers to a s.424A letter sent to the applicant on 15 November 2006, which put to the applicant information from his protection visa application that he had no difficulties in obtaining a travel document such as a passport in the PRC and leaving legally. The letter said:
1.This suggests that you were not of any adverse interest to the PRC government when you departed the PRC.
2.Without such proof it is difficult to accept that you are a Falun Gong practitioner, and your credibility is in issue.
The applicant responded to that letter:
In answer to Q47 and Q48 of my application for a protection visa, I stated that I left China legally, because I had used my own passport to leave China. At the same time, I marked yes to Q48 (I marked No as well by mistake), that indicated that I had met difficulties in obtaining my passport. Meanwhile, on my claims of my application, I mentioned my Brother-In-Law was a government official, he had closed relationship with the head of the Security Bureau and he helped me out and in January 2005, he helped me to get a passport and I came to Australia in November 2005. I did have difficulties in obtaining a travel document in my home country.
It is clear that the Tribunal was aware of this correspondence, including the applicant's response, when it gave its statement of reasons, since it recited those documents. I am not persuaded that it did not consider the applicant's response and give it such weight as was relevant to its decision. The reasoning of the Tribunal, upon which its decision was ultimately based, drew adverse inferences by comparing the applicant's evidence and conduct at the two hearings, and did not rely upon the applicant's travel arrangements and travel. In this circumstance, I do not think that it is reasonably arguable that relevant material was overlooked by the Tribunal, as appears to be suggested by this ground.
To the extent that the ground alleges some other un-particularised breach of s.424A(1). I am unable to identify any information falling within that provision which was used by the Tribunal as a reason for affirming the delegate's decision and was required to be put to the applicant under that section. On Full Court authority which I have applied in previous cases, it was open to the Tribunal to rely on information concerning the applicant's conduct and evidence given by him at the first Tribunal hearing without putting that information to the applicant in a s.424A letter (see SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [18]‑[25], upheld by Emmett J in SZGNY v Minister for Immigration & Citizenship [2007] FCA 384, and SZILQ v Minister for Immigration [2007] FMCA 483 at [24]-[32]).
The allegations in paragraphs 2 and 3 of the application, that the Tribunal had “had bias” are un-particularised and have no substance shown in the material before me.
No particulars are given of the allegation of failure to “consider my application according to S91R”, and I can see no arguable substance to that contention.
The applicant today asked the Court to hear a submission written in Chinese on a piece of paper. When read to the Court by the interpreter, it consisted of a list of un-particularised complaints of jurisdictional error in terms frequently seen in this Court in applications. The submission gave no particulars of any argument that would give any of the complaints any arguable substance.
The applicant had nothing else to say to me which would point to an argument which could win him this case.
For the above reasons, I am not satisfied that the application raises an arguable case for the relief claimed and I consider it appropriate to dismiss the applicant under rule 44.12(1)(a).
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 22 May 2007
0
3
2