SZLBK v Minister for Immigration
[2007] FMCA 1696
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1696 |
| MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no arguable case – application dismissed at show – cause hearing. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001 (Cth), r44.12(1)(a) |
| Applicant: | SZLBK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2182 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 2 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms E Baggett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12(1)(a) 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 2182 of 2007
| SZLBK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant has applied for a protection visa on the ground that he fears persecution if he returns to the People's Republic of China. A brief statement attached to his application made vague claims that he had become a Falun Gong practitioner, and had been “put into detention centre in which I was tortured and was forced to have a brain wash”. After he was freed, the local police often came to his home which “greatly affected my regular work and life”.
No supporting evidence for his claims was ever provided to the Department of Immigration nor to the Tribunal. A delegate refused the visa application on 10 August 2004. The applicant appealed, and attended two hearings held by the Tribunal, the first held by a member who gave a decision which was subsequently set aside by consent.
The present Tribunal considered the evidence given to both Tribunals, and also a written response which the applicant lodged, after being sent a written invitation to comment on possible implications from country information concerning the control over people's movements within China and out of China. The Tribunal concluded that the applicant was not a witness of truth. In particular, it assessed his explanations for receiving a permission to live in Beijing, a passport in his own name, and a trouble-free departure from China. It concluded that these events were inconsistent with his claims to have been a person of interest to Chinese authorities, and that his explanations about these matters had been “made in order to enhance his claims”.
The Tribunal was not satisfied that the applicant had been a Falun Gong practitioner in China or in Australia after he arrived in Australia. It was not satisfied that he faced harm as a result of applying for protection. It did not accept that he would practice Falun Gong in China, or would engage in anti-communist activities, or be perceived to engage in anti-communist activities. It did not accept that there was a real chance that he would suffer harm now, or in the reasonably foreseeable future, if he returned to China.
The Tribunal's decision was handed down on 19 June 2007. The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider his refugee claim.
His application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend the grounds of his application, and to file further evidence and submissions after receiving a bundle of relevant documents and a referral for free legal advice. He has filed an amended application.
I have considered the arguments in the amended application and also in his original application, but have been unable to identify any arguable ground of jurisdictional error arising from the Tribunal's procedures or reasons.
The applicant's original application made unparticularised complaints of bias by the Tribunal, failure to understand the applicant's response to the invitation for comment, and reference to irrelevant independent country information. He also complained that the decision was not based on sufficient evidence or material. However, I am unable to see any substance in these complaints raised in material before me, and do not consider that they have any prospect of success.
The applicant's amended application has three grounds. The first complains that the Tribunal did not properly consider the applicant's claims. However, I am unable to identify any claim which was not addressed by the Tribunal, and I consider that its reasoning was plainly open to it on the material before it. I cannot see any arguable basis for finding that the Tribunal did not consider the matter according to law.
The second ground complains that the country information relied on by the Tribunal was out of date and/or based on hearsay. However, so far as I can detect in the material, the country information was pertinent and relevant to the matter to be decided by the Tribunal. I can see no arguable jurisdictional error in the use which the Tribunal gave to that information when assessing the credibility of the applicant's evidence.
The third ground complains that the Tribunal failed to consider “information provided in response of the s.424 letter. The Tribunal failed to understand my explanation, and failed to fully consider the information provided”. The applicant's explanation for being permitted to move to work in Beijing, and to obtain and use a passport, was that he was only known adversely in his home province, and that he was able to get his passport and other permissions there through bribery. However, the Tribunal considered those explanations, and rejected them for reasons which it gave, and which were rational and open to it on the material. I do not consider that the applicant has any prospects in his argument that the Tribunal failed to give consideration to his explanations.
On all the material before me, including the applicant's submissions today, I am not satisfied that the application has raised 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 10 October 2007
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