SZKHA v Minister for Immigration - [2007] FMCA 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 834

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – 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), ss.424A, 476

Applicant:

SZKHA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG728 of 2007

Judgment of:

Smith FM

Hearing date:

22 May 2007

Delivered at:

Sydney

Delivered on:

22 May 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Palaniappan

Solicitors for the Respondents:

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

SYG728 of 2007

SZKHA

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 2 March 2007, in which the applicant seeks an order 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 (“the Tribunal”) dated 9 January 2007 and handed down on 30 January 2007. The Tribunal affirmed a decision of a delegate made on 11 September 2006, refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 20 March 2007. The applicant appeared and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him in an information sheet and by me, and the applicant was given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. I warned the applicant that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
A referral was sent to the applicant by the Court on 23 March 2007. The applicant has filed an amended application, to which I shall refer below.
The applicant arrived in Australia in July 2006, and filed his application for a protection visa on 15 August 2006. No person assisting him was disclosed. A brief typed statement attached to the application explained his reasons for applying for protection in Australia against return to the People’s Republic of China.
The applicant claimed to have been given Falun Gong books to read in 1998, and at that time:
I became to know what Falun Da Fa is all about, and I became interested in practicing it gradually. I met these people periodically, and we had discussion about Falun Gong almost every week. After a few months practicing, I promoted Falun Gong to people when I promoted my products to people.
His statement referred to the Chinese government crackdown in 1999, and claimed that he participated in protest activities in Beijing. After this, he said:
I was kept a bad record with the government, and I was paid attention by the police since then. Because of my promotion of Falun Gong, I was detained ten days by police in 2004, and my company was order to close down by the government because I was suspected to promote Falun Gong through my business activities.
Details of these events were not provided to the Department, and no corroborative evidence was given to the Department or to the Tribunal on appeal.
The applicant attended a hearing held by the Tribunal on 28 November 2006, and showed the Tribunal his passport. The Tribunal explained in its statement of reasons that it tested the applicant’s claims by questioning him about his knowledge of Falun Gong beliefs and practices. The Tribunal formed an opinion that he knew very little about Falun Gong, and put this to the applicant.
The Tribunal also put to the applicant in a s.424A letter information given by the applicant in his visa application and to the Tribunal at the hearing, and invited him to give written comments. That letter, dated 11 December 2006, clearly drew the applicant’s attention to the fact that it might doubt his credibility generally, and might conclude that he had not given a truthful account of his past experiences in China.
In its statement of reasons, after referring to its questioning of the applicant about Falun Gong, the Tribunal concluded:
The Tribunal finds the applicant’s lack of knowledge of the principles and meaning of Falun Gong and his inability to even name the exercises to be highly inconsistent with his claim to have practised Falun Gong over a 6 year period, even if periods of that practice were done in secret. In light of the deficiencies in the applicant’s evidence, the Tribunal does not accept that the applicant was a Falun Gong practitioner in China or that he continues to be in Australia. The Tribunal does not accept that the applicant’s claim that he has taken Falun Gong as his religion demonstrates that he is or was a Falun Gong practitioner, particularly in light of his inability to demonstrate any knowledge of the 5 exercises or to demonstrate any knowledge of the Falun. The Tribunal does not accept that the applicant was, or currently is, a Falun Gong practitioner. It follows that the Tribunal does not accept that the applicant was detained for 10 days in 2004 for publicly practising Falun Gong or for any other reason.
The Tribunal does not accept that the applicant has had or is perceived to have had any association with Falun Gong, or has suffered serious harm in China as a result of being a Falun Gong practitioner or because of any association with Falun Gong. Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future, there is a real chance that the applicant will be perceived to be a Falun Gong practitioner or that he will be persecuted for reasons of any real or imputed religious beliefs or membership of any particular social group for the purposes of the Convention on the basis of his claimed involvement with Falun Gong. As the applicant has not claimed any other reason for fearing to return to China, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to China.
I have considered the procedures and reasons of the Tribunal, and can see no arguable jurisdictional error affecting its decision.
The applicant’s application to this Court followed a precedent containing general allegations of jurisdictional errors without any particulars giving them meaningful application to the case. His amended application is similar, and contains the following grounds:
1.The Tribunal failed to refer to necessary and relevant information for the consideration of my application. The Country Information relied on was irrelevant and hearsay.
2.The Tribunal had bias against me and did not consider my application in accordance with Migration Act 1958. The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reason. I was active with Falun Gong activities in China and in Australia.
In relation to Ground 1, I can see no arguable basis for challenging the Tribunal’s use of country information. In my opinion, it was plainly relevant and admissible.
In relation to Ground 2, the applicant has been given the opportunity to present to the Court a transcript and other evidence to support his claim of bias, but has not presented any such evidence. The contention of bias has not been shown to have any arguable substance.
In relation to the contention that there was a failure to observe s.424A, no particulars of information coming within that provision have been given, and I am unable to identify any. The ground is stated in a manner which suggests that it proceeds on a misconception of the Tribunal’s duties. Section 424A does not require the Tribunal to foreshadow its thought processes. In any event, as I have indicated, the applicant was clearly put on notice that the credibility of his claim to have been a Falun Gong practitioner, and to have suffered persecution as a consequence, was in serious doubt. He was given an opportunity to comment upon that and to present further support, but did not take that opportunity.
The applicant attended today and read a submission to me, written in Chinese. It contained some general allegations of jurisdictional error, without showing any particular arguments giving them substance. He also addressed me by reference to further matters, which he thought supported his claim to deserve refuge in Australia, and he sought to present further material to me to show this. However, his material had not been given to the Tribunal and, as I have explained to him, it is not my task to decide whether he is a refugee or should be allowed to stay in Australia.
On 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 it under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 1 June 2007