SZJXL v Minister for Immigration

[2007] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 482

MIGRATION – RRT decision – Chinese applicant did not maintain any Convention claim – 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), s.476

Applicant: SZJXL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3874 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 K Rose

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3874 of 2006

SZJXL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 22 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 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 October 2006 and handed down on 21 November 2006. The Tribunal affirmed the decision of a delegate made on 4 August 2006, refusing to grant the applicant a protection visa.

2. The application was returnable at a first court date before me on 17 January 2007.  The applicant attended and was assisted by an interpreter.  The nature of the proceedings was explained to her by myself and in an information sheet.  She was given an opportunity to file an amended application, any evidence including a transcript, and written 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. 

3. A referral for legal advice was sent to her on 18 January 2007 by the Registry.  The applicant has not filed any evidence nor further documents. 

4. The applicant arrived in Australia in July 2006, and four days after her arrival a protection visa application was lodged.  It did not disclose any person assisting her, but there was filed a receipt authorising a person called Ms Yuanbing Han to lodge her application.  The application purported to be signed by the applicant. 

5. The application form contained a very brief reason for the applicant seeking protection in Australia against return to her country of nationality, the People’s Republic of China.  She said: 

   40Why did you leave that country? 

   I am a Falun Gong practitioner.  Falun Gong is prohibited in China.  Police are forcing us to give it up. 

   But Falun Gong is my faith.  I can not give it up.  I am afraid of staying at home.  I am not allowed to work there.  I have to find a way to live in this world.  I have to leave China. 

6. The applicant also claimed that she was on a “name list of Falun Gong practitioners” held by the Chinese police, and feared that she would be arrested. 

7. No further details or supporting documents were provided for these claims, and the delegate refused the application for the reason that it was “devoid of any details and lacks substance”. 

8. The applicant attended a hearing by the Tribunal on 13 October 2006.  In its statement of reasons, the Tribunal gave a description of the hearing, and in the absence of a transcript I have no reason not to accept this.  The applicant described how she had paid large sums of money in China to obtain travel to Australia after she was unable to get a tourist visa.  She said that this money had been put together by her family so that she could come here, and then assist other relations to come here.  She said she did not know what claims had been made in the application form, since she did not fill it out, and the agent she engaged did not tell her what was written in it.  In response to questions by the Tribunal, seeking to elicit whether she had any claim that was covered by the Refugees Convention, the applicant was unable to present any such claim.  The Tribunal said: 

   The Tribunal reminded the applicant of the definition of a refugee the Tribunal explained at the beginning of the hearing and asked the applicant if she feared persecution if she was returned to China.  The applicant claimed that the Chinese authorities would detain her as soon as she returned because she had made a refugee application overseas.  She said that if she went back life would be very difficult for her because of this.  The Tribunal asked the applicant if she had been persecuted before she left China.  The applicant told the Tribunal that it didn’t matter what she did in China she always had to pay someone some money.  She was trying to run a business and had to pay “agents” for everything that she needed to do.  In the end, she claimed that there was no money left for her because the agents got everything.  The Tribunal asked the applicant if she was ever arrested or detained for any reason and the applicant said she was not.  The Tribunal asked the applicant if there were any other claims that she wanted to make and she said she did not. 

9. Under the heading “Findings and Reasons”, the Tribunal accepted the applicant’s evidence at the hearing that she was unaware of what written claims had been made, and that she did not wish to pursue those claims.  The Tribunal therefore found that the claims made to the Department about her interest and involvement in Falun Gong had no basis in fact.  It found that the applicant “has no subjective fear, let alone well‑founded fear, of persecution on this basis”. 

10. The Tribunal identified the only fear held by the applicant to be that she would be persecuted if she returned to China because of having made an unsuccessful refugee status application.  The Tribunal thought, on country information, that: 

    … the applicant would face nothing more than some questioning upon return if she comes to the attention of the authorities.  The Tribunal is not satisfied that this constitutes serious harm within the meaning of s91R(1) of the Act.  The Tribunal is therefore not satisfied that her application for refugee status would lead to a real chance of persecution in the relevant sense. 

11. The Tribunal concluded: 

    The Tribunal accepts that the applicant is unhappy with her life in China but is not satisfied on the basis of her evidence that she has faced or might face significant economic hardship that threatens her capacity to subsist, whether for a Convention reason or otherwise, or any other form of serious harm in the relevant sense. 

    The Tribunal finds that the applicant is not a person who is of adverse interest to the Chinese authorities and is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention if she returns to China now, or in the reasonably foreseeable future. 

12. I have considered the reasons and procedures of the Tribunal, and am unable to identify any arguable ground of jurisdictional error affecting its decision.  

13. The applicant’s application contains the following grounds: 

    1.I was denied procedural fairness in connection with the making of the decision. 

    2.It is not reasonable for the Refugee Review Tribunal to state that I will not face significant economic hardship that threatens my capacity to subsist while the Tribunal accepts my unhappy experience living in China. 

    3.The decision was made in excess of the jurisdiction of the Tribunal. 

14. No particulars are given in relation to Ground 1, and I am unable to give it any substance.  

15. Ground 2 appears only to argue with an assessment of fact in a statement by the Tribunal, which was probably not material to its decision.  It does not identify any jurisdictional error. 

16. Ground 3 is an assertion without any apparent substance. 

17. The applicant’s submissions to me today sought to suggest that there may have been translation problems at the hearing held by the Tribunal.  However, she has not presented to the Court any evidence giving any substance to that claim.  

18. For the above reasons, I have not been able to identify jurisdictional error affecting this decision which is arguable, and I am not satisfied that the application raises an arguable claim for the relief sought. I consider it appropriate to dismiss the case under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  12 April 2007