SZMJE v Minister for Immigration - [2008] FMCA 1283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1283

MIGRATION – Chinese applicant claiming fear of persecution for Falun Gong associations – 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(1), 430A(1)(a), 430B(1)(a), 430D(1)

Applicant:

SZMJE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1451 of 2008

Judgment of:

Smith FM

Hearing date:

26 August 2008

Delivered at:

Sydney

Delivered on:

26 August 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Crittenden

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 $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1451 of 2008

SZMJE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in December 2007, and on 17 December 2007 he applied for a protection visa. A brief statement attached to the application explained why he feared to return to The People’s Republic of China.
The applicant said that his sister had commenced to practise Falun Gong in 1994, and that an improvement to her health induced him to read a Falun Gong book. He said: “from then on, together with many other practitioners, I practice Falun Gong”. He came to know other practitioners, some of whom were later persecuted when the Chinese government commenced to “crack down Falun Gong” in 1999. The applicant claimed that he was “forced to attend brainwashing classes”, and was not allowed to practise Falun Gong. However, he claimed to have practised Falun Gong secretly.
No details of these claims were provided to the Department of Immigration with the protection visa application, nor was any corroborative evidence ever presented to the Department or Tribunal. The applicant attended an interview conducted by the delegate on 28 February 2008. The delegate explained in his statement of reasons how the applicant significantly departed from the claims he had made in his written statement. His new claims were that he had never regularly practised Falun Gong, but feared that he would be persecuted for having spoken at Falun Gong conferences and given support to the movement. The delegate identified reasons for doubting the credibility of the new claims, and said that the applicant revealed little knowledge or interest in the teachings of Falun Gong. The applicant told the delegate that since arriving in Australia he had “completed the daily exercises between 12 and 20 times”.
The delegate refused the visa application, in a decision made on 4 March 2008. The delegate indicated doubts as to the credibility of the applicant’s claims, and was not satisfied that he was a genuine Falun Gong practitioner. Nor was he satisfied that the applicant had been, or would be, of interest to Chinese authorities.
On appeal, the applicant attended a hearing held by the Tribunal on 21 May 2008. At the conclusion of the hearing, the Tribunal gave an oral decision which affirmed the delegate’s decision. It later provided a written statement of its decision and reasons.
In its statement of reasons, the Tribunal narrated its questioning of the applicant, which attempted to test his refugee claims and his association with and knowledge of Falun Gong. The Tribunal said it found his oral evidence to be vague and at times evasive, and that “he knew almost nothing” in response to questions about Falun Gong beliefs.
The Tribunal’s description of the hearing in its statement of reasons is a significant condensation, but it is the only evidence before the Court as to what happened. The applicant was warned at the first court date before me that he should consider filing a transcript of the hearing, if he wished to maintain grounds criticising what had happened, but he has not filed such evidence.
In its statement of reasons, the Tribunal gave brief reasons for rejecting all of the applicant’s claims on grounds of credibility. The Tribunal said:
33.The applicant’s claim to association with Falun Gong is completely without credibility. Despite 11 years of such association, during which time, he claims to have practiced occasionally, printed material and dined with fellow practitioners, he has learned nothing at all of the fundamental philosophy of Falun Gong. In addition to his basic ignorance, his claim to want to organise Falun Gong practitioners to expose wrongs in Chinese society demonstrated a complete misunderstanding of the nature and purpose of Falun Gong.
34.Moreover, it defies credibility that a person with such slight association or knowledge would engage in the dangerous practice of printing Falun Gong material in his office.
35.The claim that he was denounced to the security authorities and obliged to spend 24 hours at a police station as a result of remarks made at a dinner party in his house lacks the detail necessary to be credible. In addition, the subsequent action of his company providing a “grace and favour” trip to Australia as a reward for service would be inconceivable in such circumstances. Even if a decision to offer this reward had been made previously, it would have been withdrawn if he had run foul of the security authorities for reason of association with Falun Gong.
The Tribunal said that it had also considered whether the applicant might have tried to recruit Falun Gong practitioners for a political purpose, but said it was not satisfied that he had done such a thing. The Tribunal also noted that his own career did not appear to have suffered by reason of a family history of opposition to the Communist revolution.
The Tribunal did not accept that there was a real chance that the applicant would suffer harm amounting to persecution by reason of his political opinion, his membership of a particular social group or for any other Convention reason should he return to China in the foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. His application has been set down today to consider whether it raises an arguable case for the making of 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 free legal advice.
He has filed an amended application but, as I have indicated, no evidence in support of a claim in his original application that the Tribunal “had bias against me”. In the absence of such evidence, I can find no basis for this allegation, and it remains unexplained by the applicant in his documents and submissions to me.
The Tribunal appears to have formed a strong opinion about the credibility of the applicant’s claims. However, there is no evidence before me which could support a contention that an apprehension might arise that the Tribunal arrived at its opinions prematurely, and without being open to hear the applicant’s evidence in support of his claims.
The amended application contains two further grounds. The first is:
The Tribunal failed to consider the fact that I have been practicing Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
It is unclear whether such a claim was ever put in those terms to either the delegate or the Tribunal. However, as I have indicated, the applicant did claim to the delegate that he had attended some Falun Gong practice in Australia. The Tribunal shows that it was aware of his evidence to the delegate and, in my opinion, it is reasonable to understand the Tribunal’s reasons as rejecting this claim, as well as all the other elements of the applicant’s claims upon which he relied. After explaining its adverse general opinion of the applicant’s credibility, the Tribunal referred to all of his claims, and said:
I simply reject them all, individually and as a whole.
I therefore do not consider that an arguable case in support of this ground is made out.
I note that the Tribunal’s rejection of the truth of the applicant’s claim to have attended Falun Gong practice in Australia means that s.91R(3) of the Migration Act 1958 (Cth) did not become engaged at all.
The applicant’s second ground in his amended application, as with his second ground in his original application, makes an unparticularised contention that the Tribunal failed to comply with an obligation to invite written comments pursuant to s.424A of the Migration Act.
However, I can detect no arguable substance for that contention, on the Tribunal’s description of the hearing and its reasons. It has relied entirely upon its assessment of the applicant’s credibility based on the evidence he had given to the Tribunal, and possibly also its inconsistencies with evidence previously presented to the Department of Immigration. However, s.424A(1) is not engaged in relation to the use of such information.
The applicant attended today, and expressed discontent with the fact that the Tribunal announced a decision at the end of the hearing, without taking time to reflect further. However, the Tribunal followed a procedure envisaged by the Act (see ss.430A(1)(a), 430B(1)(a), and 430D(1)). I am not persuaded that any arguable jurisdictional error has been revealed on the evidence before me as to the Tribunal’s procedures when making and announcing its decision.
For the above reasons, 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 twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 September 2008