SZMIK v Minister for Immigration - [2008] FMCA 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1224

MIGRATION – RRT decision – 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), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.424AA, 424A(1), 424A(2A), 424A(3)

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant:

SZMIK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1374 of 2008

Judgment of:

Smith FM

Hearing date:

19 August 2008

Delivered at:

Sydney

Delivered on:

19 August 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms J Dinihan

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 $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1374 of 2008

SZMIK

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 October 2007, and on 29 October 2007 he applied for a protection visa. A very brief statement attached to his visa application explained why he claimed to fear return to the People’s Republic of China.
The applicant said that he had been practising Falun Gong since early 1999. After it was banned, he “continued to practice it underground”. He said: “I became the organizer of our Falun Gong group. I was the one to do a lot of administration work and led other members for our activities”. He said: “our team was getting stronger and stronger … I was detained at end of 2006 when they found me practicing Falun Gong. They arrested me and intended to charge me; I paid bribery money to get myself safe, and tried to get away as soon as possible”. These events were unexplained, and uncorroborated.
A delegate refused the application on 14 December 2007. The delegate noted that the applicant did not attend an interview to which he was invited, and said that minimal information had been provided with the visa application. The delegate was not satisfied that the applicant’s refugee claims were credible.
The applicant appealed, and attended a hearing held by the Tribunal on 15 February 2008. A transcript of what happened is not in evidence, although the applicant has been given an opportunity to present it.
According to the Tribunal’s description of the hearing set out in its statement of reasons, it questioned the applicant about why he came to Australia, and about his claims to have practised Falun Gong in China and to have been persecuted as a result. The Tribunal sought to test the applicant’s claims of a commitment to Falun Gong, by exploring his knowledge of its literature and practices.
At the end of the hearing, the Tribunal informed the applicant about a number of concerns which might lead it to form the view that he was not a witness of truth. It invited his comments, and offered him additional time. According to the Tribunal: “the applicant indicated that he would like to comment on and respond to the information and that he did not require any additional time to do so”. The Tribunal then identified its concerns and heard the applicant’s responses.
On 22 April 2008, the Tribunal handed down a decision affirming the delegate’s decision. Under the heading “Findings and Reasons”, the Tribunal said that it had “formed the view that the applicant’s material claims lack credibility and cannot be accepted”.
Based on its questioning of the applicant about Falun Gong, the Tribunal said that his evidence showed a lack of theoretical and practical knowledge of Falun Gong, and that he had given inconsistent evidence about his own practice. The Tribunal, therefore, did not accept that the applicant was a genuine Falun Gong practitioner nor that he practised Falun Gong in China.
The Tribunal examined the applicant’s evidence about how he had been involved in a Falun Gong group, and identified inconsistencies and contradictions in his evidence, including the original statement accompanying his visa application. The Tribunal identified similar difficulties in his evidence about being caught practising Falun Gong by the police, which he claimed had occurred both in 2006 and again in 2007. The Tribunal, therefore, did not accept any of the particular claims of persecution made by the applicant. It thought that he was not a witness of truth, but was “prepared to fabricate his claims to give himself the profile of a refugee”. It accepted only that he had come to Australia because it was difficult to live in China, and because he needed to make a living. The Tribunal found that the applicant did not have a well‑founded fear of persecution for a Convention reason if he returned to China.
The application to the Court asks it to set aside the Tribunal’s decision and to remit the matter for further consideration. It has been set down today for a hearing on whether there is an arguable case for the making of these orders. The applicant has been given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice.
Unfortunately, the original application filed by the applicant and his amended application are unhelpfully prepared from precedents, and provide no particulars in relation to their contentions of jurisdictional error.
The original application asserts that “the Tribunal had bias against me and made a decision on my application based on the officer’s assumption”. However, no evidence has been presented to support this contention, and I am unable to find anything in the material to give any arguable substance to a ground of actual or apprehended bias or a failure by the Tribunal genuinely to consider the claims before it.
The original application and the amended application both contend that the Tribunal failed to invite written comments pursuant to s.424A(1) of the Migration Act 1958 (Cth), but do not identify any ground for such an obligation arising.
In my opinion, there is no arguable merit in this contention. As I have indicated, the Tribunal appears to have followed the procedure under s.424AA, so that s.424A(2A) would make s.424A(1) inapplicable. Moreover, the Tribunal relied only upon information given by the applicant to it, or general information, both of which are excluded from obligations under s.424A(1) by s.424A(3). To the extent that the Tribunal referred to the applicant’s visa statement to identify inconsistencies, this did not make use of information giving rise to obligations under s.424A(1) (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609). For all these reasons, this ground does not hold any prospects of success.
The original application and the amended application make unclear criticisms of the Tribunal for its use of independent information. It is clear that the Tribunal did rely upon sources of general information to inform itself about Falun Gong, and possibly also about exit procedures from China. However, I am unable to discern any argument to establish jurisdictional error in how the Tribunal relied on this information. In my opinion, it was clearly all relevant, and it was clearly open to the Tribunal to make use of that information.
The amended application has a further ground that “the Tribunal failed to consider my claims because of the limited knowledge of China”. This appears only to argue against the merits of the Tribunal’s conclusions. It also appears not to be based upon how this particular Tribunal decided the matter, which essentially was based on its assessment of the applicant’s credibility by reference to his evidence at the hearing.
The applicant made a submission today which did not advance any argument of particularity or merit which could establish a jurisdictional error.
Taking into account all the applicant’s submissions and his documents, 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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 3 September 2008