SZKAY v Minister for Immigration

[2007] FMCA 630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 630

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

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

Applicant: SZKAY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 144 of 2007

Judgment of: Smith FM

Hearing date: 10 April 2007

Delivered at: Sydney

Delivered on: 10 April 2007

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms T Quinn

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 $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 144 of 2007

SZKAY

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 16 January 2007, 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 dated

   
   

   29 November 2006 and handed down on 19 December 2006.  The Tribunal affirmed a decision of a delegate made on 12 August 2006, refusing to grant a protection visa to the applicant. 

2. The application was returnable before me at a first Court date on 13 February 2007.  The applicant attended and had the assistance of an interpreter.  The nature of the proceedings was explained to her by me and in an information sheet, and she was given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents. The applicant was warned that her application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.

3. The applicant declined the opportunity to receive a referral for free advice, but did file an amended application which I shall refer to below.  She attended today and asked that a written submission in Mandarin Chinese be read to the Court by the interpreter, and this was done.  I shall describe her arguments below.

4. The applicant arrived in Australia in May 2006, and filed an application for a protection visa on 23 May 2006.  The application disclosed no person assisting her.  It claimed:

   If I go back to China, the Chinese police will take me to the jail and kill me.  I am a Falungong member.  I never give up Falun Gong.

5. A typed statement was attached to the application.  In it, the applicant claimed to have commenced exercising Falun Gong and “started to read materials and books about Falun Gong six years ago”.  She claimed to have organised public exercises, meetings, lectures and assemblies.  She claimed “after one year I became one of the leaders in our centre”.  She claimed that after the crackdown in 1999 she was sacked by her factory, and in 2000 she was detained for ten days after taking part in an assembly.  She said:

   Now no one is allowed to practice Falun Gong whatever publicly or privately.  But from my heart I could not give up Falun Gong which had become my life belief.  I realised that I must leave China if I want to continue Falun Gong activity.

6. No details or corroboration of her claims were given to the Department, nor on appeal to the Tribunal. 

7. A delegate refused the application on the ground that he or she was not satisfied that the applicant was targeted by the Chinese authorities.  The delegate pointed out that the information she provided was uncorroborated, broad, and lacking in detail, and the delegate noted that the applicant had obtained a passport in 2005 and had left China legally without any difficulties.

8. The applicant attended a hearing held by the Tribunal on 29 November 2006, and showed the Tribunal her passport.  This showed other travel to Japan and Singapore in 2005.  The Tribunal questioned the applicant about her claims, which she maintained.  However, she knew little about Falun Gong, and did not know the names of the five exercises.  She told the Tribunal that she had seen a group practicing Falun Gong in Campsie, but had not joined them. 

9. In its statement of reasons, the Tribunal referred to defects in the applicant's knowledge about Falun Gong, and said:

   It is astonishing that the applicant did not appear to know even the most basic information associated with the Falun Gong movement.  The applicant left the Tribunal with the distinct impression that she knows very little about the Falun Gong.  Given her level of knowledge about the Falun Gong, the Tribunal finds that the applicant was not a member of the Falun Gong in China. 

10. The Tribunal therefore found all of her claims of persecution not to be credible.  It was not satisfied that she had a well founded fear of persecution on her return to China. 

11. I have considered the reasons and procedures followed by the Tribunal, and cannot see any arguable ground of jurisdictional error. 

12. The applicant's application and amended application consist of general assertions of bias, failure to consider claims, and failure to comply with procedures required by s.424A. However, they provide no details of any argument making these assertions applicable to her case. I am not able to identify any substance in them.

13. The written statement which was read to the Court today consists of a longer list of general assertions of jurisdictional errors, without any particular argument showing that any assertion is arguable in her case. 

14. The applicant herself had nothing to say to me.  

15. 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).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  30 April 2007