SZLUA v Minister for Immigration
[2008] FMCA 390
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 390 |
| MIGRATION – Chinese applicant claiming persecution for Falun Gong practice – 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) |
| First Applicant: | SZLUA |
| Second Applicant: | SZLUB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3872 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 applicants must pay the first respondent’s costs in the sum of $2,500
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3872 of 2007
| SZLUA |
First Applicant
| SZLUB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband and wife, who came to Australia from the Peoples Republic of China in June 2007. On 3 July 2007, they applied for protection visas. Only the husband made claims to fear persecution if they returned to China.
A brief statement attached to his application said that he had started to practice Falun Gong in 1998, and that he had gone to Beijing in July 2002 “to appeal for Falun Gong”. He was then illegally detained for one month. He was again arrested in December 2003 “for clarifying the truth about the persecution of Falun Gong”, and was detained for three months.
A delegate refused the application on 25 July 2007. He said that the absence of verifiable details suggested that the applicants’ situation was not as claimed, and he was not satisfied that the applicant husband was a genuine and active Falun Gong practitioner.
On appeal, the applicant husband attended a hearing by the Tribunal. The applicant wife is noted as being “sick” and therefore not being present. The applicant husband was questioned about his involvement in Falun Gong. He claimed to have been introduced to it by his aunt, who was subsequently sentenced to eight years in gaol for involvement with Falun Gong.
According to the Tribunal, it drew his attention to concerns the Tribunal had developed about his credibility, and he was given an opportunity to respond at that time or after the hearing, but did not do so.
The Tribunal handed down a decision affirming the delegate's decision on 22 November 2007.
The Tribunal noted that the applicant husband had been unable to give any information about Falun Gong, other than claiming it was good for people's health. It formed a view that he had only “an extremely limited knowledge of Falun Gong”, and did not accept that he was committed to that practice. It did not accept that he was ever arrested, imprisoned or mistreated in China for reason of his practice of or support for Falun Gong. The Tribunal thought that there was not a real chance that he would be persecuted for any Convention reason if he returned to China.
The Tribunal noted that no Convention claims were made on behalf of the applicant wife, and thought that her application could not satisfy the secondary criteria set out in s.36(2)(b) of the Migration Act.
The applicants now ask the Court to set aside the Tribunal's decision and to order it to reconsider the matter. Their application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicants have been given an opportunity to amend their application and file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, they have not filed any documents other than the original application.
It contains the following four grounds:
1.The Tribunal committed jurisdictional error of law by failing to deal with an integer of the applicant’s claim.
2.The applicant belongs to a particular social group.
3.The applicant is likely to suffer convention related harm by reason of his membership of the particular social group.
4.The Tribunal should take into account information that “in practice the jurisdiciary was not independent”.
In my opinion, there is no arguable substance shown for the contentions in grounds 1 and 4, that there was a failure by the Tribunal to deal with an integer of the applicants' claims or any other relevant material. The Tribunal’s disbelief of the applicant husband did not turn upon its consideration of general information, but upon his patently inadequate knowledge of Falun Gong.
Grounds 2 and 3 appear to do no more than assert refugee claims, but it is not the function of the Court to decide whether a person is a refugee. They therefore do not provide arguable grounds in support of the application.
In my opinion, the application raises no arguable case for the relief claimed. I cannot discern such a case from my own reading of the material before the Court.
At today's show cause hearing, only the applicant wife attended. She said that her husband had a stomach ache and was therefore absent. She did not present any medical evidence to support this assertion, and did not apply for an adjournment of the case. In all the circumstances, including my assessment of the merits of the matter, I considered it appropriate to proceed with today’s hearing.
The applicant wife had no submissions to make to show jurisdictional error on the part of the Tribunal. In my opinion, it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court rules on the grounds that it does not show an arguable case for the relief claimed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 31 March 2008
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