SZJUY v Minister for Immigration - [2007] FMCA 497

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 497

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.424A(1), 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZJUY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3632 of 2006

Judgment of:

Smith FM

Hearing date:

20 March 2007

Delivered at:

Sydney

Delivered on:

20 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant In Person

Counsel for the First Respondent:

Ms M Palmer

Solicitors for the Respondents:

Sparke Helmore

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 3632 of 2006

SZJUY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This application was filed on 6 December 2006, and 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 dated 18 October 2006 and handed down on 7 November 2006. The Tribunal affirmed a decision of a delegate made on 1 June 2006 refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 16 January 2007. The applicant attended, and the nature of the proceeding was explained to him by me and in an information sheet. I allowed the applicant to file an amended application and any evidence after receiving a referral for free advice and a bundle of relevant documents. 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 has received advice, and has filed an amended application to which I shall refer below.
The applicant arrived in Australia in February 2006, and his protection visa application was filed on 7 March 2006. His claims to fear persecution if he returned to his country of nationality, the Peoples Republic of China, were set out in a brief typed statement.
The applicant claimed that he had become a member of Falun Gong in 1997, and since that time had “started to promote Falun Gong to my colleagues in our factory”. He claimed that, after the crack down on Falun Gong in 1999, he had been printing leaflets for the promotion of Falun Gong with other colleagues in his printing factory. He claimed that in 1999 he had been caught once by police and persecuted “by the authorities severely”. He claimed:
One night at end of 2005, we were caught at our factory for printing illegal Falun Gong promotion leaflets. I was caught and sent to police for interrogation. I was told that I would be charged of attending illegal activities by printing Falun Gong leaflets. Worrying about my safety, I paid large sum of money for the secure of my release. As I got my passport issued in 2003, and I applied for a tourist visa through the help of my friend. I came to Australia for protection.
When refusing the application, the delegate said that he was not satisfied about the credibility of the applicant's claims, and considered that “the applicant has fabricated claims that he fears persecution in the People's Republic of China because he is affiliated with Falun Gong”. The delegate pointed to the applicant's use of his own passport, including travel out of China and back to China from Saipan in 2005 before leaving China to come to Australia.
The applicant attended a hearing held by the Tribunal on 29 August 2006, where he showed the Tribunal his passport. The Tribunal described the hearing in its statement of reasons, and no transcript has been tendered to show that the description is inaccurate or gives the wrong impression. The Tribunal questioned the applicant about his refugee claims, which he maintained.
The Tribunal tested the applicant’s claims by questioning him about aspects of Falun Gong, including the names of its exercises and its philosophies. It also questioned him upon information it had about his travel to Australia with a woman, and information which had been given to the Australian Embassy when his visa was granted. The applicant confirmed to the Tribunal:
That he did not have any difficulty obtaining any visas from the Chinese authorities and left for and returned from Saipan without any problems. His departure for Australia was also without any official interest.
Following the hearing, the Tribunal served an invitation on the applicant to comment under s.424A(1) in relation to information concerning his visitor's visa application, and upon records of his flight into Australia showing he travelled with a woman who sat next to him and now resided at his address. The applicant responded, claiming that he did not know what was in his visa application in China, and saying the woman came to Australia with him because the same agent had helped them both.
Under the heading "Findings and Reasons" the Tribunal said that it did not accept “that the applicant has anything but a cursory familiarity with the Falun Gong movement”. It gave reasons for that finding, and said:
The Tribunal is not satisfied that he has practiced Falun Gong in the past or that he will in the future. Further, the Tribunal cannot be satisfied that, due to his alleged Falun Gong activities the applicant was detained or suffered any ill-treatment at the hands of the authorities, as he alleges. The fact of his having damage to his teeth, which is not in dispute, in no way corroborates his claim that he suffered any harm. There is no evidence at all to show any link between the alleged mistreatment and the loss of his teeth.
The Tribunal considered the applicant's claim to have worked in a printing factory, and noted that this was inconsistent with information given to the Australian authorities in Beijing that he worked for another organisation. The Tribunal said that it accepted that this information had been provided by someone on the applicant's behalf, but it said: “this does not explain the independent verification provided by the alleged employer” which had been conveyed on an inquiry by the Australian Embassy.
The Tribunal pointed to the unlikelihood that an employer would allow his staff to engage in printing Falun Gong material for six years while it was illegal. The Tribunal said:
This leads the Tribunal to conclude that the applicant did not in fact work in the factory where he was able to print Falun Gong material. The Tribunal therefore rejects the applicant's claim that he was involved in printing Falun Gong material and was detained and ill-treated as a result.
The Tribunal also noted that the applicant was able to leave and return to China without difficulty, and said “this would indicate that he was not of any interest to the PRC authorities”.
The Tribunal concluded that it was not satisfied that the applicant had a subjective fear of Convention related persecution in China, or that he faced a real chance of such persecution. It was not satisfied that he had a well founded fear of being persecuted in the relevant sense.
I have considered the procedures and reasoning of the Tribunal, and I am unable to identify any jurisdictional error affecting its decision which is even arguable.
The applicant's application and his amended application follow unhelpful precedents, and lack particulars relating their contentions to the particular matter. It contains allegations of bias, failure to consider claims, failure to comply with legal requirements, failure to refer to independent information, and an allegation that the decision was “not based on a rational and logical foundation”. I can see no substance in any of those claims. Nor can I see any arguable substance in unparticularised claims that the Tribunal failed to comply with s.424A, and that there was “not evidence and materials to support the decision”.
The applicant today argued with some of the factual assessments of the Tribunal, but I do not think his arguments identified any arguable ground of jurisdictional error.
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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 10 April 2007