SZJIU v Minister for Immigration and Citizenship
[2008] HCASL 407
SZJIU
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 407
S117/2008
The applicant, a citizen of the People's Republic of China, arrived in Australia on 13 April 2003. On 12 April 2006 a delegate of the first respondent refused his application for a protection visa. On 22 August 2006 the Refugee Review Tribunal affirmed the delegate's decision, but on 19 December 2006 the Federal Magistrates Court remitted the matter to the Tribunal for reconsideration. On 1 May 2007 a differently constituted Tribunal affirmed the decision to refuse his application. The applicant claimed to have been a businessman and to have been defrauded by a criminally-run company. He claimed that he had successfully sued the company for the defrauded sum, but that the company had refused to comply with the court order. The applicant claimed that the Tianjin Government was corruptly involved in his case, and that government officials had assisted the company in making two attempts on his life, in retribution for his involvement in the court case.
The Tribunal wrote to the applicant pursuant to s 424A of the Migration Act 1958 (Cth), inviting comment upon his 22-month delay in lodging an application for a protection visa. The Tribunal ultimately accepted that the applicant had been assaulted by persons associated with the company, but it found that his grievance was of a personal nature, and was beyond the scope of the Convention. The applicant's delay in seeking protection indicated that he was not confident that he would meet the Convention requirements for protection.
On 2 October 2007 the Federal Magistrates Court (Cameron FM) dismissed an application for review of the Tribunal's decision. His Honour found that the Tribunal had not failed to consider whether he was a member of a particular social group. The Tribunal had dealt with this issue, in finding that other people in dispute with the company had not been harmed. The Tribunal's decision did not manifest bias or lack of good faith, and the Tribunal was entitled to rely upon the applicant's delayed application in reaching its findings.
The Federal Court (Siopsis J) dismissed the applicant's appeal on 25 February 2008. The applicant did not attend the hearing, and his Honour dismissed the appeal on the basis of non-appearance (pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth)) and on the merits. His Honour found that the applicant's grounds of appeal went to the merits of the Tribunal's decision. The Tribunal's findings were open to it: its reliance upon the applicant's delay in applying for a protection visa was a factual finding within its jurisdiction.
The applicant has not advanced any question of law that would justify the grant of special leave to appeal. The Tribunal's decision was open to it, and there is no reason to doubt the correctness of the decisions below.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
W.M.C. Gummow S.M. Kiefel 31 July 2008
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