SZKAD v Minister for Immigration - [2007] FMCA 599

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 599

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), s.476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZKAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 70 of 2007

Judgment of:

Smith FM

Hearing date:

3 April 2007

Delivered at:

Sydney

Delivered on:

3 April 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms I Quinn

Solicitors for the Respondent:

DLA Phillips Fox

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 70 of 2007

SZKAD

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 9 January 2007, in which the applicant seeks orders 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 23 November 2006 and handed down on 14 December 2006. The Tribunal affirmed a decision of a delegate made on 25 August 2006, refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on

30 January 2007. The applicant appeared and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to her by me and in an information sheet. I gave the applicant an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. She was warned that her application might be dismissed today if I were not satisfied that it raised an arguable case.
The applicant has been sent a referral for legal advice, and has filed an amended application which I shall consider below.
The applicant arrived in Australia in June 2006, and filed an application for a protection visa on 14 July 2006. The application indicated that the applicant was assisted by a person who was not a registered migration agent. A statement attached to the application explained her reasons for seeking protection in Australia against return to her country of nationality, the People’s Republic of China.
The applicant claimed to have started practising Falun Gong in about 1998, to have discussed that practice with her brother and with other people, and to have “read Master’s article”. Her statement referred to some of the principles of Falun Gong. She claimed to have become a victim of the Chinese government crackdown on Falun Gong, when in 2001 she was taken to a police station and held for 15 days before being released. She also claimed to have been dismissed from her work unit, and to have been required to find another job in May 2003. She claimed to have been under close surveillance, and that in December 2005 the police raided her home and took her husband because she was not at home. The applicant claimed to have acquired a passport and business visa to travel to Australia. Her passport showed that she had previously travelled to South Korea and returned to China.
A delegate refused the application because he was not satisfied that she had substantiated a claim of well-founded fear. The delegate referred to the absence of details in her statement, the absence of letters of support from Falun Gong associations, and the travel revealed in her passport, including that she had acquired a business visa and departed China legally.
The applicant attended a hearing by the Tribunal on 23 November 2006, and presented her passport but no corroborative evidence. She was questioned by the Tribunal about her travel to South Korea and gave inconsistent explanations of her trip. She told the Tribunal that she had come to Australia with her employer in connection with the company business. She gave confusing evidence about how she had been released in 2001. The Tribunal expressed an adverse opinion of her knowledge of Falun Gong, after questioning her about its philosophies and literature.
In its statement of reasons, the Tribunal explained its finding that it found her an unreliable witness, and was not satisfied that she faced a real chance of Convention-related persecution in the People’s Republic of China. The Tribunal considered that her travels suggested that she lacked fear of persecution in the People’s Republic of China for any reason at all. In relation to her knowledge of Falun Gong, the Tribunal said:
The Tribunal accepts that the Applicant has some knowledge of Falun Gong tenets and exercises but gives no weight to this evidence. The Tribunal is not satisfied on the evidence before it that the Applicant’s knowledge is that of a genuine Falun Gong adherent, let alone one who has eight years of experience. The Tribunal is not satisfied that the Applicant’s knowledge goes beyond what one could learn from a videotape, DVD, an Internet lesson or some other medium providing a “crash course” in Falun Gong.
The Tribunal is particularly concerned at the lack of familiarity displayed by the Applicant in respect of Falun Gong principles and symbolism. The Tribunal finds that this lack of familiarity is not consistent with what one would reasonably expect to find in a person professing to have been so dedicated an adherent of Falun Dafa over the last eight years that she was prepared to flout the government’s ban, to risk implementing her husband and her parents, and then use irregular processes to obtain a passport to seek a country where she could practice Falun Gong freely.
The Tribunal is also particularly concerned at the lack of familiarity displayed by the Applicant in Falun Gong source books. Overall, her knowledge, to the extent that her familiarity can be called that, is generally limited to visual knowledge. There is scant evidence in this case suggesting that she has spent much time listening to Falun Dafa teaching or reading it, let alone in order to find out why and how it does the things it is said to do.
On the evidence given by the applicant at the hearing, the Tribunal did not accept that that she ever came to the adverse attention of the PRC authorities over allegations about adherence to Falun Gong.
The Tribunal considered whether the applicant “could possibly be simply a new convert to Falun Gong, not nearly as experienced as she claims, but genuine nonetheless”. However, the Tribunal pointed out that she had not provided any evidence of association with the Falun Gong movement in Australia, and found no basis for accepting that she might be a genuine, new convert.
I have considered the procedures and reasoning followed by the Tribunal and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant’s original application to the Court claimed that the Tribunal “made an error” and “failed to carry out its statutory duty”, but did not present any particulars of an argument supporting these propositions.
Her amended application alleges that “the Tribunal had bias against me”, but the argument which is presented seeks only to argue with the factual conclusions arrived at by the Tribunal. I do not consider that it raises any arguable substance for the allegation of bias. There is no support for any concern as to bias in the material before the court.
The amended application also criticises the Tribunal because it “did not refer to any independent information for the consideration of my application”. However, that complaint does not give rise to jurisdictional error. The Tribunal did address the applicant’s claims, and decided them upon an assessment of her credibility.
The amended application also alleges that the Tribunal “failed to consider my claims according to s.91R of the Migration Act”, but no error is particularised, and I cannot give substance to that allegation.
The applicant attended today, but had no arguments to make showing arguable 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 19 April 2007