SZIYB v Minister for Immigration and Citizenship

[2007] FCA 357

FEDERAL COURT OF AUSTRALIA

SZIYB v Minister for Immigration and Citizenship [2007] FCA 357

SZIYB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2110 OF 2006

BESANKO J
14 FEBRUARY 2007
SYDNEY   

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2110 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIYB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended from ‘Minister for Immigration and Multicultural Affairs’ to ‘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 2110 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIYB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. The appellant applied to the Federal Magistrates Court for constitutional writs in respect of a decision of the Refugee Review Tribunal. The Magistrate dismissed the application. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 24 September 2005 using a passport in a name which was not his name. On 8 November 2005 the appellant applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 6 February 2006 a delegate of the Minister for Immigration and Multicultural Affairs decided to refuse the appellant’s application. On 7 March 2006 the appellant applied to the Refugee Review Tribunal for a review of that decision.

3. The appellant was invited to a hearing before the Tribunal. He attended a hearing on 21 April 2006 and he gave evidence to the Tribunal.

4. The appellant’s case before the Tribunal was that he was born on 7 November 1974. His case was that he worked in his own business as a watch repairer throughout his adult life, doing so in his home village, Xiting in Longtian town, Fuqing City, Fujian Province, until 2003. His case was that he moved from Xiting village to Fengyi County, Jiangxi Province in March 2003 in order to set up a watch repair business next to a coal mine. There he had become involved in illegally organising workers which now led to his fear of being arrested in China.

5. The Tribunal member said that the appellant gave his evidence in a ‘hesitant’ manner and that his responses to certain questions were ‘vague or non-committal’. The Tribunal member said that the appellant claimed to have been the founder and leader of a union in China whose aim was to improve the safety of miners at a particular mine. However, the Tribunal member found that the appellant’s evidence was internally inconsistent as to when an explosion, which he said had motivated him to establish the union, had occurred. The Tribunal member also said that while claiming that the general aim of the union was to protect the safety of mine workers, the appellant was unable to be any more specific as to what the safety problems were and what practical changes were being sought by the union. The Tribunal member said that that inability was inconsistent with his claim to have been the leader of a mine workers’ union. In addition, the Tribunal member noted that the appellant was initially unable to state what month the union had been established, despite claiming that it was only last year and there was a particular meeting at which its formal establishment took place. The Tribunal member noted that the appellant was initially only able to state that this occurred at some time between March and July 2005, while later volunteering that it was, in fact, in the first half of August. The Tribunal member said that this ‘vagueness’ was not consistent with his claim to have been the leader of the union. The Tribunal member noted that there was ‘a general implausibility’ in his claim that despite having never been previously involved in any activity of a political nature and having no experience at all in the mining industry, a person of his background might have been regarded by coal miners as a suitable leader of a union representing their interests. The Tribunal member concluded that the appellant’s claim was ‘highly implausible’ and she did not accept that the appellant had been involved in any union activity or any activity which was regarded as anti-government within China. The Tribunal member did not accept that the appellant was or is being sought by the authorities in China because of a political opinion imputed to him or that he left China for the reasons he has claimed. The Tribunal member concluded that the chance that the appellant might face any serious harm in China for the reason of political opinion was remote in the extreme. The Tribunal member concluded that considering the evidence as a whole she was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 5 of the Act.

6. As I have said, the appellant issued an application in the Federal Magistrates Court seeking constitutional writs in respect of the decision of the Tribunal. The application came on for hearing before a Magistrate and on 11 October 2006 the Magistrate dismissed the application.

7. The grounds of appeal to this Court are as follows:

   ‘1.       The learned Federal Court of Australia erred in law.

   2.The learned Federal Court of Australia was wrong in finding that the Refugee Review Tribunal acted properly in its findings.

   Particulars

   The learned Federal Court of Australia failed to consider that:

   1.The Refugee Review Tribunal (‘the Tribunal’) failed to consider my claims, properly and fairly.

   2.The Tribunal failed to comply with its obligations under s 424A(1) of the Act.

   3.The Tribunal failed to comply with its obligations under s 425 of the Act.’

8. In one way or another, the appellant’s submissions today relate to one of the three particulars. As to the first particular, the appellant has not pointed to any claim that the Tribunal failed to consider. Nor has he identified any claim that the Tribunal did not consider properly. I cannot detect any unfairness or, as was put today, bias in the approach of the Tribunal. The appellant’s real complaint is as to the merits of the Tribunal’s decision. The Magistrate rejected this ground of challenge to the Tribunal’s decision and he was, with respect, correct to do so.

9. As to the second particular, the Magistrate’s approach to the complaint was correct. Insofar as the complaint was that the Tribunal had relied on independent country information and that the obligation in s 424A(1) arose in relation to that information, the answers to that contention are that the Tribunal did not rely on independent country information and, even if it had done so, such information falls within an exception to the obligation in s 424A(1) (s 424A(3)(a)). Insofar as the complaint was that the Tribunal had relied on inconsistencies in the appellant’s evidence and that the obligation in s 424A(1) arose in relation to the information giving rise to the inconsistency, the answer to that contention is that, on the evidence, the Tribunal relied on information the appellant gave for the purpose of the application for review and such information falls within an exception to the obligation in s 424A(1) (s 424A(3)(b)).

10. As to the third particular, I think that on any view the Tribunal met its obligations under s 425 of the Act. The Magistrate concluded that the available evidence about the Tribunal hearing indicated that the Tribunal member’s difficulty in accepting the appellant’s story was made clear to him. I have read the Tribunal member’s reasons for decision and I have no reason to doubt that conclusion. It is unnecessary in the circumstances to consider the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

11. All grounds of appeal fail and the appeal must be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:       14 March 2007

The Appellant:	The appellant in person.
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	14 February 2007
Date of Judgment:	14 February 2007