SZJWN v Minister for Immigration
[2007] FMCA 547
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 547 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – no arguable case – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 425, 476(1) Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
| Applicant: | SZJWN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3748 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 L Gazi |
| Solicitors for the Respondents: | Australian Government Solicitors |
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 $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3748 of 2006
| SZJWN |
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 14 December 2006, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal dated 19 October 2006 and handed down on
7 November 2006. The Tribunal affirmed the decision of a delegate made on 30 June 2006 refusing to grant a protection visa to the applicant
The application was returnable before me at a first Court date on
17 January 2007. The applicant attended and was assisted by an interpreter. The nature of the proceedings was explained to him by me and in an information sheet. I gave the applicant an opportunity to file an amended application and evidence including a transcript and a written submission, after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if it did not raise an arguable case for the relief claimed.
The applicant was sent a referral on 18 January 2007, but has not filed an amended application nor any other documents since his application. I shall consider the grounds of the application below.
The applicant arrived in Australia in April 2006, and on 31 May 2006 he lodged an application for a protection visa. His claim to fear persecution if he returned to his country of nationality, the Peoples Republic of China, was set out in a brief typed statement. He said:
I am a Falun Gong practitioner and one of the leaders of the Falun Gong organisation in our city …
I was detained by the police for almost three months in my home city, being tortured by the policemen. I was forced to declare separation from Falungong. I did not see anything wrong with Falungong, and I still kept practicing secretly after I got released. I received warnings from the local police lots of times, and the policemen visited my home in company frequently. I have heard that the police were planning to put me into gaol for two years.
I realised that I was in such dangerous situation. I borrowed money to bribe a government officer to issue a passport. …
No supporting documents were ever presented to the Department, nor to the Tribunal, to support these claims.
The delegate refused the application, noting that the applicant had provided: “scant detail of his level of involvement in Falun Gong”. The delegate pointed to aspects of the claim that were not believable, and said that he was not satisfied that the applicant was a Falun Gong practitioner.
The applicant attended a hearing of the Tribunal on 5 September 2006, but left his passport at home. The Tribunal explained in its statement of reasons how it questioned the applicant about his knowledge and practice of Falun Gong and his claimed detention and torture. The applicant maintained what he had claimed in his statement, but the Tribunal said that it: “put to the applicant that for a number of reasons I did not accept that he was a Falun Gong practitioner”. It explained its concerns at the end of the hearing.
Under the heading "Findings and Reasons" the Tribunal said:
I am not satisfied that he is now, or was prior to his departure from the PRC, a committed Falun Gong practitioner.
The Tribunal referred to a lack of the knowledge that would be expected on the part of the applicant. The Tribunal also referred to the applicant's vagueness about the circumstances in which he claimed to have practiced in China, and his initial statement to it that he had been detained at a period prior to the official banning of Falun Gong. When this was pointed out, he claimed to have made a mistake, but the Tribunal did not think it was a mistake that would be made by a genuine Falun Gong practitioner.
The Tribunal said:
Coupled with the applicant's lack of knowledge of Falun Gong which leads me to conclude that he was not a practitioner of Falun Gong in China, the deficiencies in his evidence about his claimed detention further strengthen my finding that he was not in fact ever detained in connection with his practice of Falun Gong.
The Tribunal referred to the applicant's claims to have attended public Falun Gong activities twice in Australia. It said that, even assuming that this had occurred, which it doubted, “there is no credible evidence before me to suggest that there is a real chance that this would lead to difficulties for him if he were to return to the PRC”.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee's Convention.
I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable ground of jurisdictional error affecting its decision.
The applicant's application contains the following grounds:
1.RRT failed to carry out its statutory duty.
Particulars
a.(i) RRT’s duty under the Act s424A arises at the time which the Tribunal receives information which would be the reason, or part of the reason, for affirming the decision under review.
(ii) In this case, the Tribunal had such information at some time prior to date of decision. In a letter, the Tribunal said:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”.
(iii)The information before the Tribunal was: ”The Tribunal has before it the departmental file, which includes the protection visa application and the delegate decision record. The Tribunal also has had regard to the material contained in the Tribunal file, including the Application for Review”.
(iv)The Tribunal, therefore, had information caught by s.424A and failed to give particulars of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.
(v)The Tribunal should have included particulars of the information and explanation in its letter
A failure to do so is a jurisdictional error.
2.As a matter of fact, the Tribunal has apparently failed to give me the important information, completely and clearly, during the hearing, which has been used as the reasons or part of reasons, for affirming the decision that is under review;
3.RRT has, particularly, failed to ensure me during the hearing, to well understand why the information, normally called as “independent country information” (ICI), is relevant to review;
4.It is because of the reason mentioned above that it is impossible for me to have fair chance to comment on the ICI before RRT affirming the decision;
5.RRT failed to observe its obligation under s425 of the Act. At the hearing, I should be entitled to give oral evidence to support my claims as well as to comment on adverse information. Such of my rights were deprived of and restricted at the hearings. I was often interrupted by the member and the interpreter. I often lost my thoughts and flow of thinking due to such interruptions and restrictions.
6.The fact that I did not file further submissions after the hearing was because it was very risky for me to have evidence of persecution transferred to us in Australia from China. It could even take a long time because I need to wait for suitable opportunity and trusted friend to bring them to Australia.
7.It is true that I suffered persecution in China because of my Falun Gong involvements. Several my friends in similar as mine have been granted refugee status (protection visas) in Australia. I have been treated differently by this different Tribunal Member. I feel that I was treated unfairly by the RRT Member.
In relation to grounds 1, 2, 3 and 4, I am unable to identify any arguable failure by the Tribunal to comply with requirements under s.424A(1). I do not understand the point sought to be made in particular 1(ii). In relation to particular 1(iii), I am unable to identify any information which the Tribunal has taken from the departmental file, which it has used as a reason for affirming the delegate's decision, and which was not given again by the applicant to the Tribunal for the purposes of his review. In relation to the further particular of breach suggested in ground 3, any use by the Tribunal of general information would in my opinion clearly be covered by the exemption in s.424A(3)(a).
In relation to ground 5, in the absence of a transcript and on the Tribunal's own description of the hearing, I am unable to identify any arguable breach of the Tribunal's obligations under s.425. The complaint that the applicant was “often interrupted” has not been given any substance in any evidence before me.
Grounds 6 and 7 do not, in my opinion, raise contentions of jurisdictional error. The decision-making in relation to other applicants is not something that any evidence before me might cause me to inquire into.
Considering the present reasoning of this Tribunal I am unable to identify any arguable jurisdictional error. In my opinion, the application does not raise an arguable case for the relief claimed, and it is 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: 17 April 2007
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