SZNQW v Minister for Immigration - [2009] FMCA 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 830

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:

SZNQW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1369 of 2009

Judgment of:

Smith FM

Hearing date:

19 August 2009

Delivered at:

Sydney

Delivered on:

19 August 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

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 $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1369 of 2009

SZNQW

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 November 2008, and on 9 December 2008 he lodged an application for a protection visa. The application did not disclose any assistance being given, and attached a brief typed statement explaining why the applicant claimed to fear persecution if he returned to the People’s Republic of China.
The applicant claimed to be a genuine Falun Gong practitioner, and to have started practising Falun Gong in 1997. He had been “kidnapped by police” in November 2003, and was beaten and abused before being released 10 days later. He continued to practise, and attended a protest in Beijing in February 2006, where he was arrested and held in detention. He said: “I was turned over to the custody of police from my home province. Travelling back with the police, I escaped by jumping off the train.” His statement did not indicate what he did in the ensuing years, nor how he acquired his passport and visa to come to Australia. No details of his claims were provided, and no supporting evidence.
The applicant did not attend an interview to which he was invited at the Department of Immigration. A delegate then made a decision refusing the application on 17 February 2009. The delegate said she was not satisfied that the applicant had a long-term genuine commitment to Falun Gong, nor that he had a profile which would bring him to the adverse attention of the Chinese authorities.
The applicant appealed to the Tribunal, and did not present any additional evidence, apart from attending a hearing on 29 April 2009.
According to the description of the hearing in the Tribunal’s statement of reasons, it explored with him the circumstances in which his visa application form had been completed. The applicant then gave some elaboration to the claims in his original statement, including by claiming to have been arrested by local police in November 1997. He also claimed that, after being arrested and detained in 2006, he had been hiding in China for two years while someone else arranged for him to get a passport. He claimed to have acquired the passport in October 2008. The applicant, however, also admitted that he had travelled to Thailand in December 2007 as shown in his passport.
The Tribunal questioned the applicant, to test whether he had knowledge of Falun Gong consistent with his claims to have been a long-term committed practitioner. The applicant was unable to demonstrate any of the exercises, and had no knowledge of how many exercises there were, nor who was the founder of Falun Gong, nor of any of its literature.
According to the Tribunal, it fully discussed with the applicant the concerns it had about his evidence. These included a concern whether the applicant’s passport was “really his passport”.
The Tribunal made a decision on 7 May 2009, affirming the delegate’s decision.
In its statement of reasons, the Tribunal accurately summarised the claims of the applicant made in his visa application and at the hearing. It referred to the inadequacies of the applicant’s knowledge of Falun Gong exercises and background, and it concluded:
The applicant did not demonstrate even the most basic knowledge about Falun Gong nor could he demonstrate exercise three or how he would start exercise three or even what he stated he practised twice a week from 1997.
…
The Tribunal finds that the applicant is not a Falun Gong practitioner and was not a Falun Gong practitioner in the PRC.
The Tribunal referred to various inconsistencies and unsatisfactory aspects of other parts of the applicant’s evidence. The Tribunal found that the applicant was not a truthful witness, and that his statements both to the Department of Immigration and to the Tribunal lacked credibility. It therefore rejected each of the elements in the applicant’s refugee claims, and said it was not satisfied that he had a well-founded fear of persecution for a Convention reason if he returned to China.
The applicant has applied to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. His application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to file an amended application and further evidence, after being given a bundle of relevant documents and a referral for free legal advice. He has however not filed any additional documents and relies on the grounds in his original application.
These were:
1.The Tribunal failed to consider the whole of my claims.
2.It is not reasonable for the Tribunal not to accept that I face a risk of being arrested if I return to China.
3.The Tribunal did not adequately consider that I would be put into danger if I went back to China.
In my opinion, it is not reasonably arguable that the Tribunal failed to address the claims made by the applicant to be a refugee. The Tribunal plainly set out all the claims made by the applicant, and accurately summarised them at paragraph 52 at the commencement of its “Findings and Reasons”. I can see no prospects for success of any ground of jurisdictional error falling within the contention in ground 1.
Nor can I see any prospect of success for grounds 2 and 3. These grounds essentially invite the Court to reconsider the merits of the Tribunal’s decision. However, the Court does not have the power to decide whether the applicant is a refugee. The reasoning followed by the Tribunal was plainly rational and open to it on the evidence before it. It was the task of the Tribunal to decide whether it believed the applicant, and it identified cogent reasons for finding him not to be a truthful witness.
The applicant today had few submissions to make. He maintained that he had told the truth to the Tribunal. However, the Tribunal found otherwise, and its decision is not affected by any arguable jurisdictional error which I can perceive.
For the above reasons, I consider it is appropriate today to dismiss the application under rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 31 August 2009