SZLHN v Minister for Immigration

[2007] FMCA 2028

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2028

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.91R(3)

Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425

Applicant: SZLHN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2802 of 2007

Judgment of: Smith FM

Hearing date: 27 November 2007

Delivered at: Sydney

Delivered on: 27 November 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. 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.

2. The applicant must pay the first respondent’s costs in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2802 of 2007

SZLHN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant applied for protection in Australia against return to The People’s Republic of China. In a statement attached to her visa application, she claimed that she had commenced to study and practise Falun Dafa in 1997, and had set up a Falun Dafa study group. After the Chinese Government commenced to suppress Falun Gong in July 1999, “we persisted in the practice for seven (7) years”, by keeping absolutely secret that “we were practicing and studying Falun Dafa at home and refraining from talking about the practice”. However, she was “seen practicing on the balcony of my home” in November 2006 by the head of the neighbourhood committee. They called the police, who broke into her house, searched it and found books and documents, and took her for questioning. She was “often abused” and they beat her, and she was held for seven days and then required to report to a sub‑police station once a week, and was placed under “the constant surveillance by the staff of the neighbourhood committee”. When she tried to leave her town she was told to return. However, she obtained a passport, was granted an Australian visa and came to Australia in February 2007. She said:

   As soon as I arrived in Australia, I got in contact with the Falungong organisations in Australia and have participated in the practice and study.  I have also been involved in the protest activities against the CPC persecution of Falungong. 

2. She later presented to the Tribunal some photographs and a statement in corroboration of her activities in Australia, but presented no corroboration of her claimed history in China.

3. A delegate refused the visa application on 24 March 2007, and her decision was affirmed by the Tribunal in a decision handed down on 21 August 2007.

4. The Tribunal assessed the evidence given by the applicant at a hearing she attended on 10 July 2007. The Tribunal concluded that she was not a credible witness, and was not “a genuine Falun Gong practitioner”. It found her claim to have been caught practising Falun Gong on her balcony implausible, and concluded generally from her evidence that she “appeared to make up her claims as she was giving evidence during the hearing”. It also thought some of her responses to its questioning about her activities in Australia were evasive and inconsistent.

5. The Tribunal did not accept any of the applicant’s claims about her practice of Falun Gong in China, and as a result of its adverse credibility conclusions was not satisfied that her activities in Australia had been engaged in otherwise than for the purpose of strengthening her claims to be a refugee. It was therefore required to disregard that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth). The Tribunal had warned the applicant about that provision at the hearing.

6. Because the Tribunal thought that the applicant was not a genuine Falun Gong practitioner, it concluded that she had no real chance of suffering serious harm if she returned to China, and was not satisfied that she had a subjective fear of Convention‑related persecution.

7. The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider her refugee claims. Her 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 her application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has not, however, filed any documents additional to her original application.

8. In that application she claimed that “the Refugee Review Tribunal had bias against me”, but the only particular given to support that allegation is that “the Tribunal member didn’t believe the truth” of her claimed history.

9. The applicant has not shown the Court a transcript of the hearing nor been able to point to any action by the Tribunal before it arrived at its decision which might, even arguably, give rise to an apprehension of bias under the principles referred to in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425. It was the duty of the Tribunal to interview the applicant and arrive at a conclusion on credibility, and the fact that the applicant was not believed does not support the allegation of bias.

10. I have generally considered the material before me and am unable to identify any arguable jurisdictional error affecting the Tribunal’s procedures or reasoning.

11. The applicant today asked for a further opportunity to present more evidence to the Tribunal, however, I do not have power to order that in the absence of any jurisdictional error on the part of the Tribunal.

12. For the above reasons 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  7 December 2007