SZJQK v Minister for Immigration - [2007] FMCA 1417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1417

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – 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), ss.91R(3), 422B, 424A, 476

Applicant:

SZJQK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1618 of 2007

Judgment of:

Smith FM

Hearing date:

7 August 2007

Delivered at:

Sydney

Delivered on:

7 August 2007

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 r.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

SYG1618 of 2007

SZJQK

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 23 May 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”) dated 18 April 2007 and handed down on 26 April 2007. The Tribunal affirmed a decision of a delegate made on 1 June 2006, refusing to grant a protection visa to the applicant. An earlier decision of the Tribunal was set aside by consent order in this Court.
The application was returnable before me at a first court date on 12 June 2007. The applicant attended and had the assistance of an interpreter. The nature of the proceeding was explained to her by me and in an information sheet, and I gave her an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that I might dismiss her application today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant was sent a referral and legal advice was sent to her, but she has not filed any amended application nor evidence, including any transcripts of the two hearings which she attended. I shall consider the grounds of her original application below.
The applicant came to Australia in February 2006. Her son is studying here, and she had made an earlier visit to Australia in 2005 and had returned to China. Her application was lodged without any assistance being revealed, but subsequently the applicant obtained the assistance of a migration agent.
In her visa application she made unclear statements that she had started to learn Falun Gong in 2002, and had practised every day. She said: “many friends practiced Falun Gong together sometimes”. Her application referred to the persecution of Falun Gong practitioners after 1999, and said without any details: “before I arrived in Australia I was taken to the police station many times in China. The Chinese police harmed me. So I think the Chinese police will harm and catch me again if I go back”.
No corroboration of her claims as to what had happened in China was provided to the Department. The delegate refused the application, referring to “a number of factors which casts serious doubts on the credibility of her claims, and the genuineness of her claimed fear of Convention related persecution”.
On appeal to the Tribunal, the applicant presented evidence of her activities in Australia, being statements, photographs and a letter of support signed by several people who claimed to have practised Falun Gong with her in Australia.
She attended a hearing held by the first Tribunal on 28 August 2006, and a description of her evidence is contained in its decision. Her evidence given at that hearing was subsequently considered by the reconstituted Tribunal. It appears that the applicant was questioned about her practice of Falun Gong in China and in Australia. She was vague about where she practised in Australia, and could not answer questions addressing simple knowledge of the history and philosophies of Falun Gong. More significantly, the applicant showed significant defects in her knowledge of the exercises.
After the hearing, the applicant was sent a s.424A letter suggesting inconsistencies between her account of persecution in China, and what she had said in her visa application. A second s.424A letter was also sent by the reconstituted Tribunal, referring to pieces of information which might cause the Tribunal to find that she was of no interest to authorities, including her previous travel to Australia.
The applicant attended a second hearing held by the reconstituted Tribunal on 16 April 2007, and a description of the hearing is set out in the Tribunal’s reasons. As with the first hearing, the applicant was subsequently sent tapes of the hearing. The reconstituted Tribunal again questioned the applicant to test her knowledge of Falun Gong, and she showed significant advances in her knowledge. The Tribunal referred to questioning the applicant about this. It suggested to her that the state of her knowledge at the first hearing might appear inconsistent with her claim that she had been a practitioner since 2002. The Tribunal also took evidence from the applicant’s son. He did not appear to have knowledge of her having practised Falun Gong in China.
In its statement of reasons, the Tribunal set out information concerning the situation of Falun Gong practitioners in China.
Under the heading “Findings and Reasons”, the Tribunal gave reasons for concluding that the applicant had never been involved in the practice of Falun Gong in China. It referred to the “very limited knowledge about Falun Gong in her oral evidence given in her previous appearance before the Tribunal”, and concluded that “she did not start practising the exercises until after the first Tribunal hearing and that she had not performed the exercises in China prior to coming to Australia”. The Tribunal also referred to the applicant’s previous travel to Australia, and her failure to seek protection at that time. It did not accept any of her claims of persecution in China.
The Tribunal referred to the evidence provided of the applicant engaged in Falun Gong exercises in Australia, but it said that it was not satisfied that the applicant engaged in the practice otherwise than for the purpose of strengthening her claim to be a refugee. It therefore was obliged to disregard her conduct in Australia in accordance with s.91R(3) of the Migration Act.
The Tribunal concluded:
The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and that she will not be involved in the performance of the exercises or the practice of Falun Gong or participate in any Falun Gong related activities if she were to return to China now or in the reasonably foreseeable future. The Tribunal also does not accept that the applicant will tell others about Falun Gong. The Tribunal finds that there is no real chance that the applicant will face persecution in China now or in the reasonably foreseeable future because of her involvement with, or the practise of, Falun Gong or her alleged association with other practitioners or for any other reason related to Falun Gong.
I have considered the reasoning and procedures of the Tribunal, and I am unable to identify an arguable ground of jurisdictional error affecting its decision.
The applicant’s application contains the following grounds:
1.Refugee Review Tribunal’s decision contains errors of law;
2.Refugee Review Tribunal has failed to consider current situation in the home country of the applicant;
3.The Refugee Review Tribunal did not provide the applicant with procedural fairness.
4.The applicant has not been given the benefit of the doubt, and
5.The Tribunal has made some administrative errors as to the year of the written submission to the Tribunal in response to the request from the Tribunal pursuant to Section 424A of the Migration Act 1958.
All these grounds suffer from an absence of any particulars allowing them to be meaningfully applied to the present proceeding of the Tribunal. The applicant was unable to provide any arguments today orally or in writing to elucidate the grounds, nor to give them any substance.
I am unable to identify any arguable error of law made by the Tribunal.
The Tribunal did consider the current situation in China according to information to which it referred.
I can see no element of unfairness in the proceeding which might allow a finding of a failure to follow a procedure required under Div.4 of Pt.7 of the Migration Act, so as to escape s.422B.
I cannot identify any information used by the Tribunal as a reason for affirming the delegate’s decision which was not put to the applicant in the s.424A invitations.
I do not understand the complaint made in Ground 5, nor how it could provide jurisdictional error affecting the decision.
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).

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 August 2007