SZGYX v Minister for Immigration and Citizenship

[2007] FCA 1241

FEDERAL COURT OF AUSTRALIA

SZGYX v Minister for Immigration & Citizenship [2007] FCA 1241

SZGYX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 660 OF 2007

BENNETT J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 660 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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 660 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China who claimed that he faced persecution because he attempted to disclose corrupt activities of local Chinese authorities.  He said that he spent two and a half months in gaol and could no longer obtain work in the construction industry in China.  His claim to a well-founded fear of persecution was, he said, because he had been arrested and detained by authorities in China for attempting to disclose the corruption practices of government officials in the building industry.  A Delegate of the first respondent refused his application for a protection visa.  That decision, in turn, was affirmed by the Refugee Review Tribunal.

2. The notice of appeal raises three grounds of appeal in respect of the Tribunal decision.  That decision was the subject of an application for review to the Federal Magistrates Court in SZGYX v Minister for Immigration & Anor [2007] FMCA 477. One of those grounds of appeal, failure to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’) was before Lloyd-Jones FM. His Honour dismissed the application.

3. The Tribunal was satisfied that, notwithstanding the appellant’s claim to have exposed corruption by local government officials, his release and subsequent difficulties in continuing as a self-employed building contractor in China were because of his own corrupt practices, which related to the use of less cement than was required in the construction of buildings.  Accordingly, the Tribunal was not satisfied that the significant and essential reason why the appellant may be targeted for harm in China was for having allegedly exposed corruption of government officials.  The essence of the Tribunal’s decision was that the appellant’s claim lacked a Convention nexus.

4. Federal Magistrate Lloyd-Jones concluded that the Tribunal’s finding was based on evidence given by the appellant at the hearing before the Tribunal and was thus information that fell within s 424A(3)(b) of the Act. For that reason, there was no obligation on the Tribunal under s 424A(1) to provide that information to the appellant in writing.

5. The appellant appears in person assisted by an interpreter. I find nothing in the Tribunal decision to suggest that it failed to comply with the requirements of s 424A of the Act. I see no basis for error in the Federal Magistrate’s conclusion in that regard and the appellant was unable to point to any basis or give further particulars for that ground of appeal. There is, perhaps, a single observation on the part of the Tribunal which is not reflected in the detail the Tribunal set out as to what the appellant said at the hearing. That relates to the consequence of the use of less cement than is required in the construction of buildings. However, that is part of the reasoning process of the Tribunal, or a conclusion drawn by the Tribunal from the fact of the use of less cement. It was not said to be the basis of any charge in China and I am not satisfied that it formed any basis for the Tribunal’s decision, or any part of the reason for the Tribunal’s decision.

6. The Minister objects to the raising of the grounds of appeal that were not raised before the Federal Magistrates Court.  On the assumption that the appellant is seeking leave to raise those fresh grounds, I will consider whether they have any prospect of success.

   The Tribunal misunderstood the appellant’s claims

7. No particulars are given as to what the allegedly misunderstood claims might have been and the appellant, when asked, was unable to provide any information or particulars in that regard.  Accordingly, this aspect of that ground of appeal has no prospect of success.

   Section 91R of the Act

8. The appellant also alleges that the Tribunal failed to consider the appellant’s claims according to s 91R of the Act. It is not clear from the notice of appeal what part of s 91R the Tribunal is said to have failed to comply with. The appellant was unable to provide any assistance.

9. The Minister submits that it is clear from the Tribunal decision and from the wording of the Tribunal decision, which mirrors in part the wording of s 91R, that the Tribunal not only considered the claims according to s 91R of the Act, but was also careful to phrase its reasons to make that clear. As the Minister points out, the Tribunal concluded that there was no Convention nexus for the purposes of s 91R(1) of the Act but still considered the question of serious harm under s 91R(2), as a claim of significant economic hardship within s 91R(2)(d). The Tribunal was satisfied that the appellant would be able to secure work, if not in the building industry then other work commensurate with his skills in China. The Tribunal was not satisfied that his capacity to subsist would be impaired. The appellant has not established any prospect of success on the basis of this alleged failure on the part of the Tribunal.

   The Tribunal referred to irrelevant independent information

10. The appellant was unable to give any particulars of the allegedly irrelevant information.  The only country information referred to by the Tribunal was information that related to the prevalence of corruption in China and the steps taken by the authorities to curb that corruption.  It is not clear how this could be considered irrelevant to the consideration of the appellant’s claims, as those claims were based upon his purported attempts to expose such corruption.

11. The appellant has not demonstrated any merit in the proposed grounds of appeal.  Accordingly, I refuse leave to the appellant to rely upon the additional grounds of appeal.  The appellant has not demonstrated any jurisdictional error on the part of the Tribunal, nor any error in the decision of the Federal Magistrate.  It follows that the appeal should be dismissed.

12. I order that the appeal is dismissed and the appellant is to pay the first respondent’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        21 August 2007

The Appellant appeared in person.
Counsel for the First Respondent:	J D Smith
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	2 August 2007
Date of Judgment:	2 August 2007