SZLOD v Minister for Immigration
[2008] FMCA 81
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 81 |
| 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), r.44.12 |
| Applicant: | SZLOD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3323 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 22 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms C Chaffey |
| 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3323 of 2007
| SZLOD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in April 2007, and applied for a protection visa against return to the People's Republic of China. A very brief statement attached to her application claimed that she was a “genuine Falun Gong practitioner” who had started practising Falun Dafa “in the early of 1999”. She claimed, without giving any details, that: “I was summoned to go to police station for many times. And I was sentenced to jail for four months. I was ever under 24 hours surveillance a day. I was suffered terribly only because I am Falun Gong practitioner.”
A delegate refused the visa application on 23 May 2007, and the applicant appealed to the Tribunal. She attended a hearing of the Tribunal on 29 August 2007. The Tribunal questioned her about her claimed involvement in Falun Gong in China, and sought to test the extent of her knowledge of its literature, doctrines and exercises. It also questioned her about how she had been able to leave China on her own passport without difficulty.
In its statement of reasons, handed down on 25 September 2007, the Tribunal explained why it affirmed the delegate's decision. It said that it was not satisfied that she “is or ever has been a Falun Gong practitioner in China or in Australia”. It thought that her responses to questions “designed to draw out the nature of her claimed Falun Gong practice in the first half of 1999 were generally uninformative, vague and lacking in circumstantial details”. It thought that the applicant had been “clearly ignorant” of some elementary aspects of Falun Gong, and was not satisfied as to the truth of any of her history.
The Tribunal considered the applicant's claim that she did not practice Falun Gong in Australia because of a fear of arrest, but found that she had “no interest in involving herself in the faith in Australia”. It was not satisfied that she would suffer serious harm amounting to persecution in China, nor that she had a well-founded fear of persecution for a Convention reason should she return.
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 relief claimed. 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 filed any further documents and relies on her original application.
This has the following grounds:
1. There is no other material to demonstrate that I was not a Falun Gong practitioner when I was in China.
2. The Tribunal has not addressed my claims that I was ever tortured and arrested by the police.
3. There is a real possibility of risk of being put into jail if I return to China.
The first ground misconceives the issue required to be addressed by the Tribunal. The Tribunal was obliged to affirm the delegate's decision, unless it was satisfied that the applicant met the definition of "refugee" under the Refugees Convention as adopted by the Migration Act, not the converse.
In relation to ground 2, I have considered the Tribunal's reasoning, and am unable to identify any claim which arguably was not addressed by the Tribunal. Clearly the Tribunal rejected all of the applicant's claimed history of persecution, based on its opinion about the credibility of her claimed Falun Gong involvement.
In relation to ground 3, it is not the task of this Court to arrive at the conclusion for itself upon the risk that the applicant would be persecuted if she returned to China.
The applicant's submissions to me today maintained her claim to be a refugee. She said that it had been hard to get evidence to prove this, and invited the Court to order a further consideration of her case. However, the Court would not have power to do that in the absence of an established jurisdictional error by the Tribunal.
I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate to dismiss it 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: 31 January 2008
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