SZIWP v Minister for Immigration
[2006] FMCA 1316
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1316 |
| MIGRATION – RRT decision – Chinese person claiming persecution for Falun Gong activities – 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), s.476
| Applicant: | SZIWP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1508 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 29 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms G Broderick |
| Solicitors for the Respondents: | Clayton Utz |
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 |
SYG1508 of 2006
| SZIWP |
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 24 May 2006 seeking 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 relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 March 2006 and handed down on 18 April 2006. The Tribunal affirmed a decision made by a delegate on 20 October 2005 refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 21 June 2006. The applicant attended on that day and was assisted by a Mandarin interpreter. I made orders allowing him to file an amended application and affidavits, after receiving a bundle of relevant documents and a referral to a lawyer under the free legal advice scheme. The applicant was informed of the nature of the proceedings by myself and in an information sheet. He was warned that his 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 been sent advice under the free legal advice scheme, and has filed an amended application to which I shall refer below.
His application for a protection visa was lodged on 3 September 2005, the applicant having arrived in Australia on 13 July 2005. A brief typed statement explained why he sought protection in Australia against return to his country of nationality, the People’s Republic of China.
The applicant claimed to be a Falun Gong practitioner and to have been arrested and sent to a labour camp after travelling to Tiananmen Square in Beijing “to practice the Falun Dafa exercises” in October 2003. His statement said:
In the following two and half years I suffered all sorts of unfair treatment and assaults on both my body and mind. I was beaten until the latter half of the first night. I have suffered many beatings but in the process, I clarified the truth about Falun Gong to the guards. Still, the police said they had to stop me from practicing, using “orders from above” as an excuse. I was kept there for half of a year.
No details or corroboration of these events was provided to the Department nor to the Tribunal by way of written material or submissions. His application to the Tribunal merely repeated parts of his earlier statement.
The applicant attended a hearing held by the Tribunal on 23 March 2006, and the Tribunal gave a brief description of the hearing in its statement of reasons.
The applicant maintained his claim that he had been held in labour camps, but gave vague answers when questioned about his knowledge of Falun Gong and his Falun Gong practices since arrival in Australia. He was also questioned about his travel from China, and the Tribunal records him saying that he obtained his passport “without difficulty”.
Under the heading “Findings and Reasons”, the Tribunal found that the applicant was not a credible witness. It was not satisfied that he had travelled to Beijing, nor that he had been subsequently detained.
It could not find country references to any Falun Gong demonstrations in Beijing in October 2003. It thought that the applicant’s ability to obtain a passport and leave China without difficulty confirmed that he was not a person of interest to the Chinese authorities. It concluded:
The applicant’s inability to provide simple answers to questions regarding his association with the Falun Dafa Association in Sydney, leads the Tribunal to believe that he has not a relationship with the movement since his arrival and his inadequate knowledge of Falun Dafa philosophy has satisfied the Tribunal that the applicant is not a practising member of the Falun Dafa.
The Tribunal has also addressed the issue as to whether the applicant on his return to China would be able to continue practising Falun Gong exercises in private for health reasons, even if he is not a Falun Dafa adherent. On the basis of my previous findings the Tribunal is satisfied that on his return to China the applicant would not practise Falun Gong.
Consequently, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for reason of his religious opinion, or for any other Convention related reason, now [or] in the foreseeable future if the applicant returns to China.
I have considered the procedures and reasoning of the Tribunal and am unable to identify any arguable grounds of jurisdictional error. The Tribunal’s decision rests on the clear finding of disbelief in the applicant’s claim to be a practising member of the Falun Dafa.
The applicant’s application originally filed in this Court had three grounds:
1.The Refugee Review Tribunal failed to consider the whole of my case.
2.The decision made by the Refugee Review Tribunal is illogical.
3.In making the decision, the Tribunal’s finding of a number of jurisdictional facts was not reasonable.
No particulars of these have been suggested in an amended application nor in written or oral submissions. On my own reading of the papers, I am unable to give them any arguable substance.
The amended application essentially repeats his original refugee claims which were presented to the Department. These do not provide grounds of jurisdictional error which could obtain orders from this Court. As I have pointed out to the applicant, it is not the function of the Court to decide whether he should be believed.
For the above reasons I am not satisfied that the application has raised 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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 September 2006
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