SZMFT v Minister for Immigration - [2008] FMCA 1147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1147

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – 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), 425

SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105

Applicant:

SZMFT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1186 of 2008

Judgment of:

Smith FM

Hearing date:

5 August 2008

Delivered at:

Sydney

Delivered on:

5 August 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

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 1186 of 2008

SZMFT

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 November 2007, and on 26 November 2007 she applied for a protection visa. The application attached a brief statement explaining why she feared to return to the Peoples Republic of China.
The applicant said that she had practised Falun Gong since 1998, and had “transmitted” the practice to her friends and practised with them. She said that in June 2002 she had been stopped by a patrolling policeman when posting Falun Gong flyers. She was beaten up by the policeman, and taken to a detention centre for eight months. Her statement said “I realised that I would face more serious treatments if I stayed in China” so she came to Australia. No details of these claims nor supporting evidence was provided to the Department of Immigration.
A delegate of the Minister refused the visa on 28 December 2007. The delegate referred to the fact that the applicant had held a passport since 2001, which she had renewed in 2006, and that she had been able to depart China using this passport without trouble. The delegate also referred to the brevity of the refugee claims and their lack of support, and indicated that he had concerns about the applicant's credibility.
On appeal to the Tribunal, the applicant appointed a migration agent to assist her in the course of the proceeding. She did not present further material nor respond to an invitation for comments, before she attended a hearing before the Tribunal. The hearing was rescheduled at the request of the applicant, and then was adjourned to 28 March 2008, because the applicant claimed that she needed an interpreter speaking a Shanghainese dialect. Such an interpreter was found by the Tribunal, and the Tribunal conducted a lengthy hearing which it described in its statement of reasons. The applicant was given the tapes of the hearing, but has not presented the Court with a transcript. I see no reason not to accept the Tribunal's description.
At the hearing, the applicant presented the Tribunal with photographs showing her participating in Falun Gong activities in Australia. After the hearing, she presented a Chinese document which was claimed to have been an official detention notice from 2002.
The Tribunal handed down a decision on 15 April 2008, affirming the delegate's decision. In its ‘Findings and Reasons’ it presented several reasons why it did not believe any of the applicant's claims to have been involved in Falun Gong in China and to have been persecuted there.
The Tribunal examined the applicant's explanation for the brevity of her original claims, for which she blamed an agent. However, it considered that the applicant had ample opportunities fully to set out her claims and evidence. The Tribunal thought that the failure to do this indicated a lack of interest in the application, and pointed to the absence of genuine fear of persecution.
The Tribunal said that the applicant's responses when questioned by the Tribunal and her demeanour appeared evasive. She appeared to have memorised aspects of her evidence, and gave inconsistent and tailored responses. It found her not to be a credible witness.
The Tribunal thought that the failure of the applicant to bring forward her departure from China, and her explanations that she departed because of the Olympics, caused it to doubt the truthfulness of the events she described.
The Tribunal said that it did not give weight to the detention document, because of its finding that she was not a credible witness.
The Tribunal said that it had considered her involvement in Falun Gong in Australia, about which it had questioned her. It thought that she displayed a limited knowledge and understanding of Falun Gong, but accepted that she had some involvement in the practice of Falun Gong in Australia. However, it was not satisfied that she had engaged in the activities otherwise than for the purpose of strengthening her claims to be a refugee. It said “the Tribunal disregards the applicant's conduct in Australia in accordance with s.91R(3) of the Act”.
In my opinion, the Tribunal’s application of s.91R(3) gives rise to no arguable jurisdictional error. The applicant had been clearly warned about the effect of this provision in the course of the hearing. I am also unable to find any suggestion in the Tribunal's reasoning that it had regard to her conduct in Australia for any purpose whatsoever, when making its determination about the applicant's refugee status (cf. SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105).
The Tribunal made a finding that the applicant would not engage in the practice of Falun Gong or any other Falun Gong activity, and would not associate with Falun Gong practitioners if she returned to China. It concluded that there was no real chance that she would be persecuted for Convention reasons.
I have considered the procedures and reasoning of the Tribunal and cannot identify any arguable jurisdictional error.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. The application has been set down today to consider whether it raises an arguable case for making these orders. The applicant has been given the opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for legal advice. It is clear that such a referral was posted to the address given by the applicant to the Court, and the Court's file indicates that the barrister who received the referral attempted unsuccessfully to make contact with the applicant. I consider that she has had a reasonable opportunity to give more substance to her case.
The applicant has not filed any amended application or evidence. The application contains the following two grounds:
1.Jurisdictional error has bee(n) made. RRT did not weigh my evidence.
2.Procedural Fairness has been denied. The interpreter seemed not translate my express.
I am unable to give any substance to the first ground. The Tribunal clearly did consider carefully the evidence given by the applicant and, in my opinion, it is not arguable that there was any part of it which was overlooked.
In relation to ground 2, there is no evidence that the interpreter provided by the Tribunal performed their function defectively. I do not consider that an arguable case for contending this has been shown to the Court.
The applicant today made several submissions criticising the Tribunal's failure to believe her and her evidence. However, I do not think her points raised any jurisdictional error.
She also criticised the Tribunal in relation to its conduct of the hearing, both in relation to the accuracy of the interpretation and because the Tribunal appeared not to believe her. However, no substance has been shown to me in any evidence that the applicant was denied the opportunity required under s.425 of the Migration Act, nor that anything happened at the hearing which might give rise to a reasonable apprehension of a closed mind.
The applicant claimed that she could not go back to China because she would be arrested as a result of her activities in Australia. However, the Tribunal addressed that issue and, in my opinion, applied the provisions of section 91R(3) of the Migration Act without any arguable error.
Taking into account all that the applicant has said to me, I am not persuaded that her application has raised any arguable case for the granting of relief. I consider it appropriate to dismiss the application under rule 44.12(1)(a).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date:14 August 2008