SZNAM v Minister for Immigration
[2009] FMCA 278
•24 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 278 |
| MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – 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) |
| First Applicant: | SZNAM |
| Second Applicant: | SZNAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3219 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 24 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2009 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Ms B Anniwell |
| 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 3219 of 2008
| SZNAM |
First Applicant
| SZNAN |
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 in June 2008, and on 1 July 2008 lodged applications for protection visas. Only the husband made claims to be a refugee, although those claims encompassed a claim that his wife had also been involved in Falun Gong. The husband’s claims were set out in a brief statement attached to his visa application.
He claimed that he had become a Falun Gong member in 1998 before it was declared illegal in 1999, and that he then stopped. However, he said he was also ordered to attend classes and “to stop any related activities”. He also claimed that after becoming manager of a new company in 2005 he “secretly helped other staff to become Falun Gong members. I taught them Falun Gong after hours, I took them to meetings and related activities”. He claimed to have been detained in December 2007 “because of my involvement with Falun Gong”. No further details of these claims nor corroboration was provided to the Department of Immigration, or to the Tribunal on appeal.
Neither of the applicants attended an interview to which they were invited by the delegate, and on 13 August 2008 the delegate refused the applications on the ground that he was not satisfied that the applicant husband had substantiated his claim.
On appeal, the applicant husband, but not the wife, attended a hearing of the Tribunal held on 30 October 2008. A summary of his evidence is contained in the Tribunal’s statement of reasons and I have no reason on the evidence before me to doubt that summary.
The Tribunal attempted to discover whether the applicant husband had an understanding of, and commitment to, Falun Gong practice and philosophies, but found his answers deficient. The Tribunal also explored the inconsistency between the applicant saying that he stopped practicing Falun Gong in 1999, but that in 2005 he had actively promoted it to his colleagues. According to the Tribunal “the applicant did not reconcile the discrepancy”. The applicant referred to his also teaching his wife but, according to the Tribunal, “based on what the applicant said at the hearing, this would appear to amount at best to the practice of sitting silently.”
The Tribunal handed down a decision dated 30 October 2008 which affirmed the delegate’s decision. The Tribunal set out the evidence, and then found “that the applicant’s claim to be an adherent and promoter of Falun Gong is based entirely on vague, unimpressive and inconsistent evidence.”
The Tribunal briefly pointed to the flaws which it had discerned in the course of the hearing, and it made a finding that it did not accept “that the applicant was ever genuinely interested in embracing Falun Gong, or that he is genuinely interested in it at present.” It accepted that he might have become familiar with “a few facts about Falun Gong” before it was banned, but found that he would not involve himself in Falun Gong in China “even discreetly or secretly”, because he was not genuinely interested in the practice.
The Tribunal did not accept the husband’s unreliable evidence that he had promoted Falun Gong to his colleagues or to his wife after 2005. It said “the applicant simply lacks credibility overall”. Implicit in this finding is the rejection of the applicant’s claim that he came to the attention of the Chinese authorities at that time as a result of these activities.
The Tribunal was therefore not satisfied that the applicant husband faced a real chance of Convention related persecution in China. It was not satisfied that either of the applicants were persons to whom Australia had protection obligations under the Refugee Convention.
The applicants now ask the court to set aside the Tribunal’s decision and to remit the matter. Their application has been set down today to consider whether it raises an arguable case for the making of these orders. They have had the opportunity to file an amended application and further evidence and submissions, after receiving a bundle of relevant documents and a referral for free legal advice. However no further documents have been filed.
The application contains three grounds:
1.The Refugee Review Tribunal failed to consider my claims for a protection visa according to law.
2.The decision made by the Refugee Review Tribunal is illogical.
3.In making the decision, the Tribunal failed to consider the whole of my relevant information. The Tribunal should accept that I am a genuine Falun Gong practitioner.
These grounds remain unexplained by any particulars, argument or submissions. The applicant husband attended today representing his wife and himself, but his submissions were confined to maintaining that his refugee claims were “all true”. However that contention in itself does not assist the identification of jurisdictional error affecting the Tribunal’s decision.
I am unable to identify any claim made by either the husband or the wife which was not addressed by the Tribunal’s adverse findings on the applicant husband’s credibility and commitment to Falun Gong. I do not consider any arguable basis for establishing the first ground is shown in the material before me.
In relation to the second ground, in my opinion, the Tribunal’s decision is far from illogical, but clearly shows a rational and genuine attempt to assess the applicant’s credibility and evidence. I do not consider that the second ground has any arguable prospect of success.
The third ground does not appear to add to the other two grounds. In the absence of particulars indicating any particular relevant information that was overlooked, I am unable to give it any substance as raising jurisdictional error.
For the above reasons I consider that the application does not raise an arguable ground for the giving of the relief sought, and that it is appropriate to dismiss the application today under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 3 April 2009
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