SZNCA v Minister for Immigration
[2009] FMCA 283
•24 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 283 |
| 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) |
| Applicant: | SZNCA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3382 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 24 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Ms L Weston |
| Solicitors for the Respondents: | DLA Phillips Fox |
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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3382 of 2008
| SZNCA |
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 June 2008, and on 8 July he lodged an application for a protection visa. It attached a short typed statement, in which the applicant claimed that he was a member of Falun Gong and “I went to Beijing to appeal several times”. He claimed that he was caught by the police in 2003, and was sent to a labour camp for ten months where he was mistreated. After his release he was under surveillance and was required to report to police. He said that he decided to go overseas to avoid further persecution.
No details of these claims nor corroboration was provided to the Department of Immigration, and the applicant did not attend an interview with the delegate to which he was invited. The delegate refused the application on 21 August, indicating that he could not be satisfied that the applicant was a genuine Falun Gong practitioner.
On appeal, the applicant did not present any further corroboration, but attended a hearing of the Tribunal on 21 November 2008. The only evidence before me about what happened at this hearing is in the Tribunal’s statement of reasons.
The Tribunal discussed with the applicant information as to the knowledge likely to be held by a genuine Falun Gong practitioner as to its exercises, literature, and theories. However, the applicant refused to give any evidence of his own knowledge, but told the Tribunal that he did not wish to discuss these matters “because of the spiritual pain it caused him when he remembered the way he was treated in China”. He maintained this position, even when warned that the Tribunal might draw an adverse conclusion from his refusal to show knowledge concerning Falun Gong.
The Tribunal made a decision on 21 November 2008 confirming the delegate's decision. The Tribunal referred to the position taken by the applicant at the hearing, and said:
The Tribunal has formed the view that the applicant was unable to demonstrate any real knowledge regarding Falun Gong because he has never had any involvement with, or interest in, Falun Gong. The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and does not accept as credible his claim that he was involved with Falun Gong in China.
The Tribunal therefore did not accept his claims that he had been harmed or targeted by Chinese authorities, nor that he faced a real chance of persecution for being a Falun Gong practitioner if he returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal. 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 amend his application and make written submissions with additional evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, he has not filed anything additional, and relies on the grounds in his original application.
These are:
1.The Tribunal Member did not carefully consider my application in my favour.
2.I was denied procedural fairness in connection with the making of the decision.
3.I would face a risk of being jailed if I return to China.
None of these contentions is explained by details of an argument raising jurisdictional error. The applicant's oral submissions today only maintained that he should have been believed, including as to his explanation for not responding to the Tribunal's questions seeking to discover his knowledge of Falun Gong. However, it is not the task of this Court to reconsider the applicant's credibility.
I can find no arguable substance supporting any of the three grounds in the material before me. It appears to me that the Tribunal clearly did consider the claims made by the applicant. It genuinely sought to test their veracity and, in my opinion, its adverse conclusion about the applicant’s credibility was open to it in view of the applicant’s refusal to co-operate with the Tribunal.
Certainly no arguable case has been raised, particularly in the absence of a transcript, showing any arguable jurisdictional error affecting the Tribunal's procedures or decision arising from the conduct of the hearing.
I am therefore 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 3 April 2009
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