SZFSJ v Minister for Immigration and Citizenship

[2007] FCA 315

FEDERAL COURT OF AUSTRALIA

SZFSJ v Minister for Immigration and Citizenship [2007] FCA 315

SZFSJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNAL

NSD 1743 of 2006

LINDGREN J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1743 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.        The appeal be dismissed.

3.        The appellant pay the first respondent’s costs of the appeal.

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 1743 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals against a decision of the Federal Magistrates Court of Australia given on 22 August 2006 ([2006] FMCA 1297). That Court dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’).

2. The Tribunal had affirmed a decision of a delegate of the first respondent (‘the Delegate’ and ‘the Minister’ respectively), not to grant a protection visa to the appellant.  The Tribunal’s decision was signed on 10 December 2004 and the decision record and reasons were handed down on 6 January 2005.

3. The application to the Federal Magistrates Court for review of the Tribunal’s decision was filed on 10 February 2005.  The application to that Court did not identify any jurisdictional error in the Tribunal’s reasons beyond complaining that there was an error of law because the Tribunal ignored the facts and made an inappropriate decision. 

4. In the appellant’s notice of appeal filed in this Court on 11 September 2006, the appellant stated as his ground of appeal simply that the Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 (Cth) (‘the Act’) and denied the appellant procedural fairness.

5. The appellant was not represented before the Federal Magistrates Court and has not been represented on the hearing today.  I invited the appellant to say anything he wished to say in support of his appeal and he said that all that he had to say is that he would like to remain in Australia.

6. I also pointed out to the appellant the limited grounds on which the Federal Magistrates Court and this Court can set aside a decision of the Tribunal. 

7. The appellant arrived in Australia on 2 September 2004 and applied for the protection visa on 16 September 2004.  The Delegate refused to issue the visa on 22 September 2004, and the appellant lodged with the Tribunal his application for review of the Delegate’s decision on 19 October 2004.  The appellant gave oral evidence to the Tribunal on 9 December 2004.

8. The Tribunal accepted that the appellant is a national of the People’s Republic of China (‘PRC’) and had worked in the south-east of China for approximately 20 years.  The Tribunal accepted that since about 1988 the appellant had made complaints about the manager of the factory at which he worked.  Apparently the complaints were to the effect that the manager had bribed a particular authority.  The claim was that the factory manager told the appellant that he could “leave the factory”, and also that he (the factory manager) “knew some high ranking government officials and he was not afraid of anyone”. 

9. The appellant continued to work in the factory but complains that he was assigned to a different workshop where the work load was much heavier, yet his income remained the same.

10. Eventually the appellant left his job at the factory because his income was not sufficient for him to pay for his son’s tuition.  He then obtained work as a street merchant.  He said that the factory manager stated that his salary would have been increased if he had not spoken about the bribery years earlier.

11. The Tribunal found that the appellant was not fired, dismissed or retrenched from his job in the factory, and that he left because he did not receive a salary increase which he believed was due to him. 

12. Contrary to the appellant’s claims, the Tribunal found that the factory manager did not retain any continuing adverse interest in him.  The Tribunal made the point that it was not plausible that the factory manager would, on the one hand, allow the appellant to continue working for some ten years after the appellant made the complaint, yet, on the other hand, would continue to target the appellant for six years after the appellant left the factory, by somehow preventing him from securing other work commensurate with his skills.

13. I make the additional point that this particular finding is readily understandable when one notes that for the factory manager to continue pursuing the appellant would expose the factory manager to the risk that the issue of bribery would rear its ugly head again.

14. The Tribunal noted that independent country information showed that there were growing job opportunities in the PRC private sector and that the appellant would have been able to secure other employment commensurate with his skills if he had sought such work.  The Tribunal did not accept that the appellant’s alleged “bad record” would have prevented him from securing other work as he claimed.  In any event, the Tribunal said, the appellant would not have been allowed to continue working in the factory until 1998 if his work record was as bad as he claimed.

15. In summary, the Tribunal concluded that the appellant was not prevented from securing employment commensurate with his skills for the reasons he claimed;  that neither the factory manager nor anyone else had any continuing adverse interest in him;  and that even if they did, it was not the case that a significant and essential reason for any such interest was one of the reasons identified in the definition of ‘refugee’ in the United Nations Convention Relating to the Status of Refugees (‘the Refugees Convention’).

16. In relation to this last matter, it does, indeed, seem clear that the complaint made by the appellant was simply that he was targeted by an individual, the factory manager, because of the threat that he made to expose him to the authorities – a matter which lies outside the reasons specified in the definition of “refugee” in the Refugees Convention.

17. The Federal Magistrate found no jurisdictional error in the reasons of the Tribunal, finding that its conclusions were open to it on the evidence before it.

18. I agree. 

19. No error is shown in the reasons of the Federal Magistrates Court and the appeal should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             12 March 2007

The Appellant appeared in person.
Counsel for the Respondent:	Mr B O’Donnell
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007