SZKLH v Minister for Immigration - [2007] FMCA 1131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1131

MIGRATION – RRT decision – Chinese applicant claimed 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), r.44.12(1)(a)

Applicant:

SZKLH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1087 of 2007

Judgment of:

Smith FM

Hearing date:

9 July 2007

Delivered at:

Sydney

Delivered on:

9 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms S Kantaria

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 $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1087 of 2007

SZKLH

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 3 April 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 (“the Tribunal”) made on 10 February 2007 and handed down on 1 March 2007. The Tribunal affirmed a decision of a delegate made on 7 October 2006, refusing to grant a protection visa to the applicant.
The application was listed before me at a first Court date on 8 May 2007. The applicant appeared and was assisted by a Mandarin interpreter. I gave him leave to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant did receive a referral for free advice, and has filed an amended application to which I shall refer below.
The applicant arrived in Australia in September 2006, having spent a period of time in Chile after leaving the People's Republic of China. His application for a protection visa was lodged on 13 September 2006. It did not identify any person who assisted him, and gave extremely brief reasons for seeking protection.
In answer to the question “Why did you leave China?”, the applicant said:
I left PRC because I was a member of Falun Gong, and police detained me in May 2005, I paid RMB 60,000 to secure my release, and left China for Chile to avoid persecution from Chinese government. Now I can not stay in Chile any more, I have to apply for protection visa, I will be persecuted by the Chinese government on my return to China. I was detained because of my involvement with Falungong, I paid money to leave China, If I return there, I would be detained again.
No details of these claims nor corroborative evidence was ever provided to the Department of Immigration. The delegate refused the application on the ground that he or she was not satisfied that the applicant had substantiated a claim of well-founded fear of persecution.
On review, the applicant attended a hearing of the Tribunal held on 20 December 2006. Neither party has tendered a transcript of that hearing, but the Tribunal gave a description in its statement of reasons.
The Tribunal questioned the applicant about his claim to have practised Falun Gong in China. He claimed to have followed Falun Gong since 1999, and to have practised at home after it was made illegal, “but not often”. The applicant claimed to have been detained in May 2005 “because somebody had reported to the police that he practised Falun Gong”. The applicant claimed to have, at that time, been taken to a detention centre, beaten up, made to confess, and forced to pay money so that he could be released. He said that “he had in fact been released on bail and that he had been supposed to appear in Court again in three months but that he had run away to Chile”.
The Tribunal questioned the applicant about whether he had practised Falun Gong in Australia, and he told it “that he had actually been to a practice site in Campsie on two or three occasions but there had been too many people practising there and he had only been able to stand at the back and watch”.
The Tribunal sought to test his knowledge of Falun Gong, in particular, as to its five sets of exercises and its philosophy. Under the heading, "findings and reasons", the Tribunal referred to the applicant's responses to its questions, and to areas where it felt he showed an inadequate knowledge. The Tribunal said:
As I put to the applicant, the information available to me suggests that any genuine Falun Gong practitioner would be able to perform the five sets of exercises.
The Tribunal concluded:
I do not accept on the basis of the applicant's evidence at the hearing before me that he is a genuine Falun Gong practitioner. I do not accept that, as he claimed, he has read a Falun Gong book called Falun Dafa. I accept that he has visited the Falun Gong practice site in Campsie on two or three occasions but I consider that, as he said, all he did was stand at the back and watch. I do not accept that the applicant has a genuine interest in Falun Gong or a desire to practise Falun Gong.
Based on those findings, the Tribunal did not accept that the applicant had ever practised Falun Gong in China, or been detained, or that there was a real chance that “he will want to practise Falun Gong”. The Tribunal did not accept that there was a real chance that the applicant would be perceived by the Chinese authorities as a Falun Gong practitioner, nor that there was a real chance that he would be persecuted “because of his claimed involvement in Falun Gong if he returns to China now or in the reasonably foreseeable future.”
I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable ground of jurisdictional error affecting its decision.
The applicant's application has followed a precedent, making unparticularised allegations of failure to consider “my application in accordance with s.91R of the Migration Act”, failure to comply with s.424A of the Migration Act, and failure “to refer to sufficient independent information”. His amended application repeats three of these allegations without providing any further argument to give them substance. I can see no substance provided in the evidence before me in relation to any of these allegations.
There is no evidence suggesting that the Tribunal made its decision after closing its mind to a proper consideration of the applicant's claims.
Section 424A has no apparent application to the reasons of the Tribunal for affirming the delegate's decision.
The Tribunal did refer to relevant independent information, and I am unable to identify any other information which it was obliged to address.
The applicant's submissions to me today did not advance his arguments any further. 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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 18 July 2007