SZKOP v Minister for Immigration
[2007] FMCA 1336
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1336 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – 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(1), 476
| Applicant: | SZKOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1377 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 31 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1377 of 2007
| SZKOP |
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 1 May 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) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 March 2007 and handed down on 27 March 2007. The Tribunal affirmed a decision of a delegate made on 2 November 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 22 May 2007. The applicant was not in attendance, but I gave him a further opportunity to attend on 5 June 2007. He did attend on that day, and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to him, and he 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. He was warned that I might dismiss his case today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has been sent a referral for advice, but has not filed any amended application or evidence. I shall consider the ground raised in his original application below.
The applicant arrived in Australia in July 2006, and lodged an application for a protection visa on 3 August 2006. No person assisting him was disclosed. A typed statement set out his claims for seeking protection against return to the People’s Republic of China. He claimed:
I started practicing Falun Gong before 1999 but, after the crackdown, I gave up practicing. If I did not give up, I would have been sent into jail. But I still believe Falun Gong is good for health, and I resumed my practice after I came to Australia.
The applicant claimed that he had not been persecuted for Falun Gong activities, but that he had been questioned by police following his participation in a demonstration in July 2005 against land confiscations. He said:
When they came to my home, they brought up my Falun Gong history as an issue, and questioned my daily behaviour. I told them I was no longer a Falun Gong member, and I participated the protest only but did not fight with police. They didn’t believe me and took me to the police station. Finally they refused to pay my family the compensation of the lands and house, and took the money as penalties of my behavior.
The applicant did not explain how he managed to obtain a passport to come to Australia.
A delegate refused the application on the ground that the applicant’s departure suggested he was not of interest to the authorities, and that his claims in relation to Falun Gong were “general and unsubstantiated”.
The applicant presented no corroborative evidence either to the Department or the Tribunal, but attended a hearing of the Tribunal on 7 February 2007.
According to the Tribunal’s statement of reasons, it questioned him concerning the claimed land confiscation and protest, and he gave answers which appeared to the Tribunal to be confused and inconsistent. The applicant told the Tribunal that he had obtained a passport in early 2005 because “he wanted to go out of China to make money and had intended to go to Canada”. The Tribunal said:
Asked about his claim to have practised Falun Gong the Applicant said he only did so for a period when his health was poor. Asked if he had practised in Australia he said he had not and that he no longer practised.
Asked if there was anything he wished to add he said living in Australia was better than living in China where the local people were looked down on by the authorities.
Under the heading “Findings and Reasons”, the Tribunal said that it was not satisfied as to the accuracy of the applicant’s claims concerning his fear of persecution. It was not satisfied that he faced any risk of harm for his claimed involvement with Falun Gong up to 1999. The Tribunal said:
Contrary to the claim in his application for protection the Applicant stated at the hearing that he had not practised Falun Gong while in Australia. Given that that there are no restrictions on Falun Gong in Australia and that it is practised openly and freely at public sites in Sydney and elsewhere I am not satisfied that there is a basis for concluding that the Applicant has any deep or genuine commitment to the faith or that he would practise it in China but for the fact that to do so could expose him to severe punishment. Nor am I satisfied, in the light of his failure to take up the faith in Australia, that significant evidentiary weight can be placed on what are no more than simple and unsubstantiated assertions about his earlier Falun Gong practice in China. I do not accept his evidence on this point and I am not satisfied that he was a Falun Gong practitioner in China up to 1999, that he was arrested for this reason or that he has a record in China as a former Falun Gong practitioner.
The Tribunal addressed the applicant’s claimed involvement in a protest, and the subsequent attendance of police. The Tribunal found implausibility in his account of this, and was not satisfied by his evidence. It said that his evidence concerning the penalty imposed on him was “also confused and inconsistent”. It concluded:
In the light of these responses I am not satisfied as to the accuracy of the Applicant’s unsubstantiated claims to have been involved in July 2005 in a protest against government land seizures. I am not satisfied that he was, in fact, involved in such a demonstration and I am not satisfied that he was visited subsequently by police who subsequently imposed a financial penalty on him.
…
On the evidence before the Tribunal I am not satisfied that while he was in China he held a political opinion adverse to the government and there is nothing in the evidence to indicate that he has formed such an opinion since his departure. It follows that I am not satisfied there is a real chance that he would suffer serious harm in China for these reasons in future.
I have considered the reasons and procedure followed by the Tribunal and can see no arguable jurisdictional error affecting its decision.
The application to this Court has one ground:
1.The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the S424A of the Act.
The RRT found that the applicant had not practiced Falun Gong in Australia, and on the basis of this finding the RRT formed its opinion that the applicant is not a genuine Falun Gong practitioner. The RRT failed to invite the applicant to explain why he had not practiced Falun Gong in Australia.
This appears to contend that s.424A(1) required the Tribunal “to invite the applicant to explain why he had not practiced Falun Gong in Australia”. However, I can see no argument which could persuade me to that effect. The information relied upon by the Tribunal in its decision was information given by the applicant to the Tribunal, and I can see no information which arguably fell within the duties under s.424A(1).
If a different argument is being suggested, I am not persuaded that it is reasonably arguable that the applicant was not given a full opportunity to present to the Tribunal at the hearing his explanations for not practising Falun Gong in Australia.
The applicant had no submissions to make to me today.
I am not satisfied that his 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 August 2007
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