SZLNL v Minister for Immigration - [2008] FMCA 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 72

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), ss.91R(3), 424A, 424A(3)(b)

Applicant:

SZLNL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3255 of 2007

Judgment of:

Smith FM

Hearing date:

22 January 2008

Delivered at:

Sydney

Delivered on:

22 January 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

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 3255 of 2007

SZLNL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant entered Australia in March 2007 on a transit visa, issued by reason of a Samoan visa in her passport. She had previously visited Australia in 2006 as a tourist, and her passport also contained visas to visit other countries in 2006. On 22 March 2007, she applied for a protection visa on a ground that she had been persecuted in 2001 in China for practising Falun Gung. She said that she had been arrested, tortured, detained for 28 days, released after the payment of a fine, and required to report weekly for a year. She also claimed that, after visiting Australia in 2006, she took copies of the “Nine Commentaries” back to China, and made copies and distributed them there. As a result, she was investigated by the Public Security Bureau and “this put me in a panic”. She claimed that in Australia she had been practising Falun Gung, and had taken part in activities “against the CPC persecution of Falun Gung”.
She explained these claims to the Tribunal at a hearing held on 28 August 2007, after a delegate refused the protection visa application on 14 May 2007. She showed the Tribunal photographs of herself at the front of some Falun Gung demonstrations in Australia, and she also showed the Tribunal her passport. The Tribunal questioned her about her refugee claims and her travel.
In its decision handed down on 11 October 2007, the Tribunal affirmed the delegate’s decision. It did not accept the credibility of the applicant’s claim to have distributed the “Nine Commentaries” after her 2006 visit to Australia. It found her claim not to be credible in its content and in the manner in which it was explained to the Tribunal. It found her evidence unconvincing and improbable, including her account of her travel arrangements to Australia on her most recent visit.
The Tribunal also did not accept that previously she had a longstanding commitment to Falun Gung going back to 1998, and did not accept any of her claimed history of persecution. It thought that this claimed history was incongruent with her return to China in May 2006 after her first visit to Australia. The Tribunal addressed the photographs of the applicant attending Falun Gung demonstrations, and thought that they appeared “somewhat staged”. It was not satisfied that the applicant had engaged in Falun Gung activities in Australia “otherwise than for the (sole) purpose of strengthening her claim to be a refugee”. It, therefore, disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth). It did not accept that she faced harm on her return to China, and was not satisfied that she had a well‑founded fear of persecution for a Convention reason on her return to China.
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 the opportunity to amend her application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has not filed any further documents, but relies on her original application and some further submissions she made today.
Her application contains the following grounds:
The application claims:
1.The [sic] involved an error of law that:
(a)The decision involved an important exercise of the power conferred Migration Act Regulations.
(b)The respondent did not carefully consider the information which is in favour of the applicants.
(c)There was no evidence or the other materials to justify the making of the decision.
The ground of the application:
(a)We are citizens of China. If we back to our country, we will be risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees.
(b)Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.
(c)The Tribunal failed to comply with its obligations under s424A of the Migration Act 1958(Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in our protection, which information was not provided to the applicants in accordance with s424A.
(d)Member of the Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided;
(e)The respondent refused to grant our protection visa without any proper grounds and proper investigation;
(f)The decision made by the Tribunal is illogical.
I am unable to find any substance in the allegations in claim 1(b) and grounds (b) and (d) that the Tribunal did not consider the information before it and the applicant’s claims. No particulars have been provided, and I can see no arguable basis for these contentions.
The contention in claim 1(c) misapprehends the legal issue for the Tribunal. The Tribunal was required to affirm the delegate’s decision unless it was satisfied that the applicant qualified for the visa, not the converse.
Claim 1(a) and ground (a) reassert the applicant’s refugee status, but this is not a matter which the Court can decide for itself.
The contention in ground (c), that there was a failure to comply with s.424A of the Migration Act, has no arguable substance in my opinion. The Tribunal’s reasons show that it determined the matter against the applicant upon an assessment of the evidence she gave it at the hearing, including the contents of her passport which she showed the Tribunal. The information which provided the reasons for affirming the delegate’s decision was, therefore, covered by the exclusion in s.424A(3)(b).
The contentions in grounds (e) and (f) that the Tribunal arrived at a decision “without any proper grounds and proper investigation”, and that it made a decision which was illogical, have no arguable substance in my opinion. The Tribunal gave reasons based on a view of the applicant’s credibility, which in my opinion clearly showed it performing its jurisdictional task.
The applicant’s oral submissions to me today repeated arguments that the Tribunal had not properly addressed or understood the refugee claims made by the applicant. However, I do not consider that they reveal any arguable jurisdictional error made by the Tribunal, but merely raise arguments going to the merits of its decision.
In my opinion, the application has not raised an arguable case for the relief claimed, and it is appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 4 February 2008