SZKJS v Minister for Immigration
[2007] FMCA 920
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 920 |
| MIGRATION – RRT decision – Chinese applicant claiming fear of persecution for Falun Gong activity – 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), r44.12(1)(a) |
| Applicant: | SZKJS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 936 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms M Mafessanti |
| 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 936 of 2007
| SZKJS |
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 19 March 2007, 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 respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 January 2007 and handed down on 15 February 2007. The Tribunal affirmed a decision of a delegate made on 19 September 2006, refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on 10 April 2007. The applicant attended and had the assistance of a Mandarin interpreter. He was given an opportunity to file an amended application and evidence, after receiving a referral for free legal advice and a bundle of relevant documents. The nature of the proceeding was explained to him, and I warned him that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant was sent a referral by the Federal Court Registry on 12 April 2007, and was sent a bundle of documents on around 24 April 2007. He has filed an amended application which I shall refer to below.
The applicant arrived in Australia on a transit visa from Fiji in February 2004, but did not apply for protection until 7 August 2006. His application did not disclose any assistance in making the application, and attached a brief typed statement explaining his reasons for seeking protection against return to his country of nationality, the People's Republic of China.
He claimed to have become a practitioner of Falun Gong in early 1999. After Falun Gong was banned, he went to Peking to demonstrate. As a result “there was a bad record of everyone who had been to Peking”, and “we were forced to attend brainwash class many times and I eventually lost my job because the above mentioned reason”. The applicant continued to promote Falun Gong to the other staff of his company, and he said:
We set up our secret branch of Falun Gong in Fuzhou. I then became a head of our branch. During this period of time, I organised underground Falun Gong meetings, kept in contact with Falun Gong branches, acted as coordinator for branches in China. At end of 2003, Falun Gong Fujian informed me that police would take action against me as they had suspected my role in Falun Gong. I came to Australia for protection. I received calls from my wife that police had questioned her many times about me. I have been an active member of Falun Gong after I came to Australia. I would face persecution from the Chinese government on my return to China.
No supporting evidence for these claims nor greater detail was provided to the Department, and no corroboration was given to the Tribunal after the applicant appealed.
The delegate's statement of reasons referred to the claim as being “general in nature”, noted that no evidence was provided and that the applicant did not attend an interview when invited. The delegate was not satisfied as to the veracity of the applicant's claims.
The applicant did attend a hearing held by the Tribunal on 21 December 2006, and showed the Tribunal his passport. The Tribunal described its questioning of the applicant in its statement of reasons, and I have no reason not to accept this. The applicant has not tendered a transcript of the hearing.
The Tribunal questioned the applicant about his travel and the lodgement of his protection visa application in September 2006. He gave vague information about practising Falun Gong in Australia and about its history, but showed gaps in his knowledge and was unable to demonstrate one of the exercises. He did not know where the Chinese Embassy was in Sydney, although he claimed to have demonstrated there. He gave contradictory evidence when asked to explain how he was able to obtain a passport in 2002.
In its statement of reasons, under the heading “Findings and Reasons” the Tribunal referred to problems with the applicant's evidence, and said that it “formed the view that the applicant's critical claims lacked credibility and cannot be accepted”. It gave good reasons for that conclusion, and made a finding that: “the applicant is not, and never was, a Falun Gong practitioner. The Tribunal also finds that the applicant will not be perceived to be a Falun Gong practitioner by Chinese authorities.”
I have considered the reasons given by the Tribunal and its procedures, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant's application followed a precedent alleging breach of s.424A and bias. However, no arguable substance for either allegation is shown in the material before me.
These assertions are repeated in the amended application without any supportive argument being shown. There is also an unparticularised claim that the Tribunal “relied upon irrelevant materials” but I can give no substance to that contention.
The applicant, today, complained that the Tribunal did not investigate his evidence. However, in my opinion the Tribunal was obliged to do no more than what it did, that is, assess the applicant's claims based on the evidence he presented to it at the hearing.
The applicant also maintained to the Court that he was a refugee. However, as I have explained to him, it is not the function of the Court to determine that question.
Considering all the material before me, I am not satisfied that the applicant has raised an arguable case for the relief he claims from the Court, 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: 18 June 2007
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