SZJWW v Minister for Immigration
[2007] FMCA 480
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 480 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – no arguable case raised – 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), 476
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
| Applicant: | SZJWW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3788 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 G Broderick |
| Solicitors for the Respondents: | Clayton Utz |
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 |
SYG3788 of 2006
| SZJWW |
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 15 December 2006, 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 27 October 2006 and handed down on 21 November 2006. The Tribunal affirmed a decision of a delegate made on 4 August 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 in person and was assisted by an interpreter. The nature of the proceeding was explained to her by myself and in an information sheet, and the applicant was given an opportunity to file an amended application and any evidence including a transcript and submissions after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that her application might be dismissed today if it did not raise an arguable case for the relief claimed.
A referral to a lawyer was sent to her by the Registry on 18 January 2007. The applicant has filed an outline of submissions, but no other documents. I shall consider her submission below.
The applicant arrived in Australia in July 2006. On 12 July 2006 she filed an application for a protection visa, disclosing no assistance being given. Her claims to fear persecution if she returned to her country of nationality, the People’s Republic of China, were set out in a typed statement.
In this, she claimed to have joined Falun Gong “as early as 1999”, and in that year to have joined protests which were harassed by the local police. She claimed that her home was raided by police in May 2000, and that she was locked up in bad conditions with other people and acquired a lung infection requiring treatment. She claimed she then practiced Falun Gong activities “underground” but was dismissed from her job. She claimed that in April 2004 she organised a “signature collection”, and in December 2005 the police raided her home and “they took my husband” since she was not at home. She then hid herself and “arranged by Falun Gong supporters, I got my visitor’s visa to Australia in June 2006”.
No corroboration of her claims was ever provided to the Department or the Tribunal.
The delegate refused the application on the ground that her claims were “devoid of any details and lacked substance”, and there was no evidence that the applicant had been practicing Falun Gong since arrival in Australia. The delegate was not satisfied that the applicant “is a genuine, committed Falun Gong practitioner”.
The applicant attended a hearing to which she was invited by the Tribunal on 12 October 2006. In its statement of reasons the Tribunal recorded its questioning of her, and her statements to the Tribunal. There is no suggestion in its description that the Tribunal encountered any problems of communication.
The Tribunal questioned the applicant about her knowledge of Falun Gong practices and philosophies, and her Falun Gong activities in China. The applicant disclaimed several of the claims made in the written statement, which she said had been filled out by a person who had assisted her to come to Australia. She said she did not know what that person had claimed in the statement. The Tribunal said: “the applicant stated that the Tribunal should accept her verbal claims and disregard the claims made in her written statements”.
To the Tribunal, she maintained a claim that she had been a practitioner of Falun Gong, and said that in April 2004 she had been detained and ordered to write a statement of guarantee and repentance. She claimed in March 2004 to have staged a sit‑in, and to have been arrested because of her role in that sit‑in. She claimed that she was detained for about a month after that, and then spent time in hospital. She told the Tribunal: “after her release from detention/hospital the applicant claimed she continued to work for Falun Gong distributing publications in the villages right up until the time she left the country”.
The applicant said that in Australia she had joined a Falun Gong group in Campsie that practiced in a square in the town, but could not demonstrate exercises to the Tribunal when requested.
Under the heading “Findings and Reasons”, the Tribunal considered that the applicant had demonstrated “only a very basic knowledge and limited understanding of Falun Gong practices”. The Tribunal thought that her claims about her arrest and detention were “vague and unsubstantiated”, as were her alleged activities in distributing Falun Gong material up until her departure. It said that it was unlikely that the applicant was able to remain living in her home and distributing literature for two years after the alleged detention without being further detained or questioned.
The Tribunal thought that her participation in Falun Gong activities in Australia was “extremely limited”. It concluded:
The applicant’s limited understanding and limited knowledge of Falun Gong was not what would have been expected of the practitioner who claims to have been practising for 7 years. The Tribunal expects an applicant to know sufficient about the practice of that which they are purportedly prepared to risk their life for, however, in the present case and notwithstanding her claim to be anxious at the Tribunal hearing, the Tribunal is not satisfied that the applicant was a Falun Gong practitioner in China. The Tribunal does not accept that the applicant was ever a Falun Gong practitioner and finds that she does not have the profile of a committed practitioner either in China or Australia.
In relation to the applicant’s “minor activities in Australia”, the Tribunal did not consider that they would cause her to be of interest to the Chinese authorities, nor cause her “any problems on her return to China”.
The Tribunal also said any activities which she had conducted in Australia were “recently done to strengthen her claim”. It was therefore not satisfied in terms of s.91R(3), and was obliged to disregard her conduct in Australia.
The Tribunal concluded:
As the Tribunal found that the applicant is not, nor ever has been a Falun Gong practitioner and has no Falun Gong commitment, it also finds that if she returns to China she will not follow or promote Falun Gong. The Tribunal finds that the applicant is not a person who is of adverse interest to the Chinese authorities and does not accept that she faces a real chance of being persecuted now or in the reasonably foreseeable future if she returns to China in relation to an alleged political opinion or religion or membership of a particular social group arising from her claimed involvement in Falun Gong.
Considering the applicant’s claims cumulatively the Tribunal finds that he has suffered no past persecution and there is no real chance that he will suffer persecution now or in the reasonably foreseeable future. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
I have considered the procedures and reasoning of the Tribunal in this case, and am unable to identify any arguable ground of jurisdictional error affecting its decision.
The grounds set out in the application filed by the applicant assert:
1.The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based on the member of a Falun Gong in China.
2.The Tribunal failed to consider my claims according to S91R of the Migration Act 1958.
3.The Tribunal failed to carry out its statutory duty.
In the absence of any particulars I am unable to give any of these grounds any arguable substance.
The applicant’s submission filed recently contains further contentions in paras.11, 12 and 13:
11.In the hearing, the interpreter did not carry out her duty, because I am from Tianjin, although I speak Mandarin, but I have a very strong local accent, the interpreter spoke to me couple of times that she could not understand what did I said, she is asking me try to write what I said in the paper, but it is impossible for me to write every single words within 2 hours times.
12.I believed that the interpreter did not translated my words and sentences correctly to the Tribunal officer because she did not understand what I said, and the officer thought that I did not answer correctly what they asking, that is why the officer thought that I have limited understanding and knowledge of Falun Gong.
13.This RRT decision in not on my best interest.
The contention that the applicant encountered difficulties of communication through the interpreter at the Tribunal hearing is not given any substance by any evidence filed by the applicant nor in the documents presented from the Tribunal’s files. In those circumstances, the submission presents mere allegations which do not raise an arguable case (cf. VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723). The applicant has been given an opportunity to present supporting evidence, but has not taken that opportunity.
Considering all the material before me, 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) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 April 2007
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