SZJUH v Minister for Immigration
[2007] FMCA 1094
•2 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1094 |
| MIGRATION – RRT decision – Chinese applicant fearing 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, 424A, 476
| Applicant: | SZJUH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3561 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 2 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2007 |
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 applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3561 of 2006
| SZJUH |
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 1 December 2006, in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 October 2006 and handed down on 2 November 2006. The Tribunal affirmed a decision of a delegate made on 10 August 2006, refusing to grant a protection visa to the applicant.
The application was transferred into my docket after a number of listings before a Registrar. The applicant has been given the opportunity to file an amended application after receiving a bundle of relevant documents and a referral for free legal advice. She was sent that advice, and has filed an amended application which I shall address below.
At the last listing before a Registrar on 27 April 2007, the applicant appeared and had the assistance of a Mandarin interpreter. The applicant was warned that her application might be dismissed today if the Court was not satisfied that it raised an arguable case for the relief claimed.
The applicant arrived in Australia in April 2006, and filed her application for a protection visa on 12 May 2006. Her application did not disclose any person assisting her, and attached a brief typed statement explaining her reasons for seeking protection against return to the People’s Republic of China.
The applicant claimed to have been a member of Falun Gong since 1998 and “I became a head at our area in 1999”. She claimed to have been required to attend reform class, and since then had practiced Falun Gong secretly. She made a previous visit to Australia “for business activities” in 2004, and after her return to China, she said:
Early this year, I received information that police would take action to me for my role in Falun Gong in China. I worried that I would be put into jail by government officials day and night. I was depressed and could not continue my normal life. I sent my children to my relative and tried to get a visa to come to Australia. I would face persecution from the Chinese government on my return to China.
No further details of these claims were given to the Department, and no corroboration was provided to the Department or on appeal to the Tribunal. The delegate refused the application, referring to having “strong doubts as to the veracity and credibility of the applicant’s claims”.
The applicant attended a hearing on 5 October 2006 to which she was invited by the Tribunal, and showed the Tribunal her passport.
A description of the hearing is given in the Tribunal’s statement of reasons, and neither party has tendered a transcript. The Tribunal questioned the applicant about her knowledge and practice of Falun Gong in China and in Australia.
The Tribunal formed a clear conclusion from her evidence, which it summarised in its “Findings and Reasons”:
The evidence before the Tribunal indicates that the applicant is not an adherent of Falun Gong and that her claims have been fabricated in an attempt to invoke Australia’s protection obligations. The applicant states that she has been involved in the practice of Falun Gong in Australia, however there has been no endorsement of her application by a Falun Gong Association in Australia or by any fellow practitioners.
The Tribunal referred to her travel on her passport without difficulty, and it said that it was not satisfied that “all the statutory elements of the grant of Protection have been made out”.
I have considered the procedures and reasoning of the Tribunal, and can see no arguable ground of jurisdictional error affecting its decision.
The applicant’s application follows a formulaic precedent which has been also followed in her amended application. They make allegations of “bias”, that the Tribunal “did not consider my application according to S91R”, and that its decision was “not based on a rational and logical foundation”. However, no particulars of these contentions are provided by the applicant, and I am unable to identify any arguable substance in them.
Nor can I find any arguable merit in the third ground, which contends that the Tribunal failed to comply with s.424A. In my opinion, the Tribunal’s decision was based on its assessment of the evidence given by the applicant at the hearing, which identified defects in her claim to have been a practitioner of Falun Gong over many years. There was no reference to information specifically about the applicant which was not given by the applicant at the hearing.
I am not satisfied that the application raises 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 13 July 2007
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