SZEOW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 668

FEDERAL COURT OF AUSTRALIA

SZEOW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 668

MIGRATION – no issue of principle

SZEOW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 326 of 2005

CONTI J
18 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 326 OF 2005

BETWEEN:	SZEOW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	18 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to pay the respondent’s costs fixed at $4,500.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 326 OF 2005

BETWEEN:	SZEOW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	18 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the reasons for judgment of a Federal Magistrate delivered on 31 January 2005 which dismissed an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 3 May 1999 affirming a decision of a delegate of the Minister made on 22 January 1998 to refuse to grant the appellant a protection visa. 

2. The appellant is a citizen of the People’s Republic of China and arrived in Australia on 18 September 1997.  The appellant claimed that he had a well-founded fear of persecution upon his return to China by reason of his actual or imputed political opinion.  Although the appellant has not discussed his claims at all during today’s hearing, a brief account of the same appears in his visa application and in the written statement and oral submissions that he gave to the Tribunal.  Counsel for the Minister has helpfully summarised those claims in [2] of his written submissions, which read as follows:

   ‘In summary, the appellant claimed:

   (i)as a school student he had listened to Taiwan radio with his friends and doubted Communism and Socialism;

   (ii)in December 1995 he received a conscription notice and after passing the health test [for admission to the armed forces] was advised by the government that China was preparing to attack Taiwan;

   (iii)he did not believe in fighting Taiwan as he did not believe in “Chinese fighting Chinese” so he avoided conscription and went to a mountainous area of Guangdong province [outside of his native Fujian province];

   (iv)later he went to the cities in Guangdong.  He was detained and sent under escort to Changle [in Fujian province] where he was imprisoned for over four months;

   (v)his father found money for bail and he was released.  He was not supposed to leave Changle and the authorities forbade any factory or company employing him;

   (vi)he was introduced to a Taiwanese agent who told him he could arrange for him to leave China, which he did by flying to Vietnam and then to Australia.’

3. The Tribunal referred to country information and recorded that China is reducing the size of its armed forces and that it tends to recruit people with higher education qualifications than those of the appellant.  Because of this, and because the appellant had not claimed before the Minister’s delegate that he was conscripted, the Tribunal doubted the accuracy of that claim.  The Tribunal further found that even if the appellant had been conscripted, the laws relating to conscription (or to desertion therefrom) are not discriminatory in nature or effect and as such, could not ground a claim of a well-founded fear of persecution.  The Tribunal additionally found that the alleged rationale for deserting (being that the appellant would be involved in a war against Taiwan) could not ground a well-founded fear of persecution since this reason did not disclose a sense of conscientious objection.  In any event the Tribunal found that there was no evidence that the appellant had been punished at any stage for his desertion; finding instead that his detention in Guangdong was the result of his violation of a domestic law relating to temporary entry permits.  The Tribunal member found no evidence to suggest that his subsequent detention in Fujian province was punishment for abstention from military service.  The Tribunal member rejected the appellant’s claim that the authorities had prohibited factories and companies from employing him, pointing to the lack of interest the appellant said the authorities took of him subsequent to his release and the high rates of unemployment in China. 

4. Before the Federal Magistrate, the appellant did not particularise any proper grounds of review in either his application or his oral submissions.  The Federal Magistrate considered the Tribunal’s reasons for decision and the claims made by the appellant in his application. After thoroughly reviewing both, the Federal Magistrate concluded that he was unable to locate any jurisdictional error, and also expressed concern about the time delay between the cessation of the appellant’s involvement in the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal class action and the bringing of the current application, as well as apparent inconsistencies between the claims articulated by the appellant before the Federal Magistrates Court and the Tribunal. 

5. The appellant’s notice of appeal contains the following ground (read literally):

   ‘There are some particular reasons did not take into consideration’.

6. The appellant has failed to particularise this purported ground of appeal either by way of written submission, affidavit or by oral submission to the Court today.  When asked whether any particularisation would be forthcoming, the appellant informed me merely that he was waiting to hire another migration agent to assist him.

7. In my opinion, this appeal is completely misconceived and the notice of appeal provides no fair or reasonable or proper basis according to law for the bringing of this appeal.  The appellant has not identified anything that may vaguely resemble jurisdictional error and I would unfortunately conclude that this appeal was brought in the hope of delaying the inevitable return of the appellant to his place of origin.  I therefore dismiss the appeal, and I order the appellant to pay the Minister's costs assessed at $4500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            26 May 2005

The appellant appeared in person
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2005
Date of Judgment:	18 April 2005