SZIXF v Minister for Immigration - [2006] FMCA 1371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1371

MIGRATION – RRT – Chinese applicant claiming to be Falun Gong and a Christian – 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:

SZIXF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1593 of 2006

Judgment of:

Smith FM

Hearing date:

5 September 2006

Delivered at:

Sydney

Delivered on:

5 September 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms B Griffin

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1593 of 2006

SZIXF

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 5 June 2006, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act in relation to a decision of the Refugee Review Tribunal dated 5 April 2006 and handed down on 9 May 2006. The Tribunal affirmed a decision of the delegate made on 5 December 2005 refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 4 July 2006. The applicant attended on that day and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him by me and in an information sheet. I made orders allowing the applicant to file an amended application and any additional affidavits after receiving a bundle of relevant documents and a referral for free legal advice. The Court’s file indicates that a referral was made on

7 July 2006.
At the first Court date, I warned the applicant that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed. The applicant has not filed any further documents but attended today. The Minister’s written submission had not reached the applicant, but was explained to him orally.
The applicant arrived in Australia in August 2005, and applied for a protection visa on 7 September 2005. His application to the Department and to the Tribunal did not appoint an agent or authorised recipient. His claims for protection in Australia against return to the People’s Republic of China were contained in a brief typed statement. This referred to no circumstances occurring to the applicant in China as giving rise to a fear of return.
It claimed that the applicant had joined Falun Gong in Australia, and:
Now I attend group practice in Parramatta about four times a week and also practice at my own home every day. I am taking part in some other activities organised by Falun Gong groups as well. …
As a member of Falun Gong now, I am not willing to return to my home country and wish to seek protection of Australian Government owing to fear of being persecuted by the authority of my home country for my religion, belief and membership of Falun Gong.
No mention was made in his protection visa application and statement to a claim to fear persecution as a Christian.
When the applicant attended a hearing to which he was invited by the Tribunal on 20 March 2006, the applicant told the Tribunal that he had only read a pamphlet about Falun Gong given to him by a woman in the street in Sydney and that he had “assisted in giving out some leaflets”. He told the Tribunal that he “was not deeply involved” in Falun Gong. He made no claim to follow that practice.
He also made a new claim that he had been persecuted because “he was a member of a Christian church in China”. When questioned by the Tribunal about this, he said that he could not give details of the church services or meetings he had attended, and told the Tribunal that in fact “he had only been two or three times”. He told the Tribunal that the church visits occurred in May/April 2005. He made a claim to the Tribunal that he had lost his job “because his work unit knew that he was going to church”. However, he also told the Tribunal that he had been unemployed for over 18 months and had lost his job because of restructuring. He displayed no knowledge of the religion of Christianity.
Under the heading “Findings and Reasons” the Tribunal noted that the applicant had not pursued his claim in relation to Falun Gong. It said that it was satisfied that he had no interest in Falun Gong and “will not come under adverse regard for such interest if he were to return to China”.
In relation to the applicant’s claimed fear of persecution by reason of involvement in an underground Christian church, the Tribunal referred to the applicant’s inconsistent evidence given at the hearing and his lack of knowledge of Christianity. The Tribunal said that it accepted that he had been on at least one, perhaps two or three occasions, to a Chinese language church service while in Sydney, but it did not accept there was evidence of any “real interest in Christianity”. The Tribunal made a finding:
If the applicant were to return to China, I am satisfied that he would not wish to pursue an interest in Christianity – not for fear of persecution, but simply due to lack of interest.
On the basis of all the evidence before me, I do not find that the applicant has suffered serious harm amounting to persecution for a Convention reason in the past. I find that the chance of such harm befalling him in the reasonably foreseeable future is remote. It follows I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. He is not a refugee.
I have considered the reasoning of the Tribunal and its procedures, and am unable to identify any arguable ground of jurisdictional error which could win this case for the applicant.
His application gives three particulars of a ground that:
The Tribunal failed to comply with its obligation pursuant to Migration Act 1958 and denied the applicant procedural fairness.
The particulars are:
(a) The Tribunal did not consider the information about the Applicant’s activities in relation to Falun Gong contained in his PVA applicant and made finding that the Applicant has no interest by the authorities of the Applicant return to China.
(b) The Tribunal formed the view what the Applicant suffered was actually his dismissal from his place of employment. It is not correct to say that.
(c) The Tribunal did not accept the Applicant was a Christian even though it is true that Applicant is a Christian.
In my opinion, it is clear that the Tribunal did address the applicant’s claim in relation to Falun Gong, and I can see no arguable contention that it failed to address any element in that claim.
The other particulars appear to argue with the merits of the Tribunal’s assessment of the applicant’s evidence. However, in my opinion, the Tribunal’s conclusion was unarguably open to it on the material before it.
The applicant filed an affidavit in support of his application, but this merely states his refugee claims, in some respects in terms different to those which had been made to the Tribunal. They do not show any arguable ground of jurisdictional error.
The applicant today had no submission to make, except that he regarded the Tribunal’s conclusion that he would not be persecuted as a Christian to have been wrong. However, that argument cannot win him the case.
On all the material before me 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 today under r.44.12(1)(a).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 September 2006