SZKQX v Minister for Immigration - [2007] FMCA 1398

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1398

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

Federal Magistrates Court Rules 2001 (Cth), r44.12(1)(a)

Migration Act 1958 (Cth), ss.91R(3), 424A, 476

Applicant:

SZKQX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1583 of 2007

Judgment of:

Smith FM

Hearing date:

7 August 2007

Delivered at:

Sydney

Delivered on:

7 August 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms E Knight

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed under r.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

SYG 1583 of 2007

SZKQX

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 21 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) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 April 2007 and handed down on 1 May 2007. The Tribunal affirmed a decision of a delegate made on 18 December 2006, refusing to grant a protection visa to the applicant.
The application was returnable before me at a first Court date on 12 June 2007. The applicant attended and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to him by me and in an information sheet, 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. 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 has been sent a referral and was given legal advice, but he has not filed an amended application nor any evidence. I shall consider the grounds in his original application further below.
The applicant arrived in Australia in October 2006, and within days of his arrival he lodged an application for a Protection Visa. He was assisted by a person who was not a migration agent. His application foreshadowed an explanation as to why he sought protection against return to China in a statement in Chinese, and this was translated into English and forwarded to the Department.
In the statement, the applicant claimed to have been introduced to Falun Gong literature in September 2003, and to have started practising at home with a friend. He claimed that in the middle of August 2006 he received another book, which caused him to form political opinions hostile to the Chinese Government, and to start distributing Falun Gong literature by putting copies “sent to people’s mailboxes, under their doors and also made phone calls to people.” He claimed that in October 2006, he was warned that his fellow practitioner had been arrested and his home searched. His family then obtained a tourist visa for the applicant to come to Australia.
No corroboration of his claims about events in China was provided to the Department of Immigration, nor on appeal to the Refugee Review Tribunal. The delegate refused the application on the grounds that his claims were unsubstantiated, including a claim to be practising Falun Gong at Ashfield, in Sydney. The delegate also thought that the applicant’s travel to Australia without trouble showed that he was not of significant adverse interest to the Chinese authorities.
On appeal, the applicant attended a hearing held by the Tribunal on 1 March 2007 with two witnesses. He was subsequently given the tapes of the hearing, but has not filed a transcript in this Court.
According to the Tribunal, the witnesses said they had attended Falun Gong study lessons with the applicant in Australia, but that “their impression was that the applicant had only begun to practise Falun Gong after his arrival in Australia.” They also said that the applicant had not discussed his experience of practising Falun Gong in China with them.
The Tribunal questioned the applicant to test his knowledge of Falun Gong exercises, and found some deficiencies in his knowledge about the exercise which he was invited to demonstrate.
Following the hearing, the Tribunal sent the applicant a s.424A letter inviting him to comment on the information given by his two witnesses, and also upon the Tribunal’s impression that his knowledge of Falun Gong “was consistent with someone who has only recently begun to practise and study Falun Gong, rather than someone who has been practising and studying Falun Gong for more than three years as you claim.”
The applicant responded to these points, maintaining his claims. He also said: “I am wondering if you can give me another opportunity to answer your queries in front of you”. But the Tribunal was under no obligation to invite him to a second hearing.
In its findings and reasons, the Tribunal said,
“The Tribunal has considered the applicant’s comments but nonetheless is not satisfied on the evidence that the applicant practised Falun Gong in China as he has claimed. In addition, the Tribunal does not accept that from August 2006 the applicant disseminated Falungong-related material to others and sought to convert others to the practice of Falun Gong until his departure from China in October 2006, as he has claimed.”
Those conclusions were based upon the evidence given to the Tribunal and its impressions from the hearing. The Tribunal also gave weight to the fact that he had travelled on a genuine Chinese passport without difficulty.
The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner in China. It said that he had not satisfied the Tribunal that his conduct relating to Falun Gong since arriving in Australia was for reasons other than for the purpose of strengthening his claim to be a refugee. It was therefore required to disregard that conduct under s.91R(3).
It concluded:
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant’s application refers to two parts of the Tribunal’s reasoning in relation to the Tribunal’s impression that the applicant had only recently begun to practise Falun Gong. The application contends:
The Tribunal still did not accept the facts. That the Tribunal is not justice for the clients.
In relation to the Tribunal’s conclusion that his travel suggested he was not a person of interest to the Chinese authorities, the contention is made:
The Tribunal might not know the Chinese law completely that an ordinary Falun Gong practitioner who is not sentenced by the authorities is not on the “black list” and can get his passport without difficulty. The Tribunal’s view is wrong.
I have considered both of these arguments but, in my opinion, they argue only with the factual conclusions of the Tribunal. I cannot see them raising any arguable ground of jurisdictional error.
The applicant today had no submissions either in writing or orally.
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 twenty one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 22 August 2007