SZJIU v Minister for Immigration and Citizenship

[2008] FCA 382

FEDERAL COURT OF AUSTRALIA

SZJIU v Minister for Immigration and Citizenship [2008] FCA 382

SZJIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2092 OF 2007

SIOPIS J
25 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2092 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	25 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The appeal is dismissed.

2The 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 2092 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	25 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the decision of a Federal Magistrate.  The time is now 2.40 pm.  The appeal was listed for hearing at 2.15 pm this afternoon.  The court officer has called the matter outside the courtroom.  There is no appearance by the appellant.

2. Counsel for the first respondent has referred to correspondence from his instructing solicitors, which was addressed to the appellant’s address for service.  This correspondence comprised letters dated 16 November 2007, 4 January, 18 January and 7 February 2008 respectively.  There is also a letter dated 14 November 2007 from the Court and also a second letter dated 7 December 2007 from the Court addressed to the appellant at his address for service, advising the appellant of the time and hearing of this appeal.

3. Counsel for the first respondent has advised me that in the letter of 18 January 2008 the solicitors for the first respondent advised the appellant that in the event that he did not appear the first respondent would seek orders that the appeal be dismissed.

4. The Court has power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal where there is a non‑appearance by the appellant. I dismiss the appeal in the exercise of that power. I also dismiss the appeal on the merits. These are my reasons for doing so.

5. The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 13 April 2003.  On 24 February 2006, the appellant lodged an application for a protection visa.  The appellant claimed to be a businessman from Tianjin who had made a poor investment in a company run by criminals who refused to refund his money.

6. The appellant stated that he had sued the company and been awarded judgment in his favour in August 2002.  However, the company refused to abide by the court order and the appellant complained to higher authorities.  He visited the Special Bureau of the Tianjin Public Security Bureau (PSB), which dealt with economic problems.  The appellant said that when the company learned of his complaints to the higher authorities, the company sent people to “smash him” and he suffered serious injuries.  He then decided to complain to the Beijing Economics Issues Appeal Office.  He visited those offices with Mr Yang, another aggrieved investor, and left documents at the office.  The appellant claimed these documents were “very key” to the criminal conduct of some members of the central government who had a corrupt association with the company.

7. On his return to Tianjin, he was warned by an old classmate of his in the PSB that officers of the Tianjin government were corruptly involved in the case.  His friend also said that the documents the appellant and Mr Yang had left in Beijing had been referred to the central government.  The appellant went on to claim that about a week later a passing motorcyclist had fired two shots at him whilst he was driving his taxi.  As a result, the appellant says that he moved to Shanghai.  However, he said that whilst he was in Shanghai he returned home one night to his accommodation to find that it had been filled with gas and the gas valve was fully open.

8. He fled and travelled by train to Guangzhou.  From there, he contacted a friend in Shanghai to get him a visa for Australia.  The appellant claimed that gangsters from the company and the government officials from Tianjin and the central government would chase him and kill him, if he were to be returned to China.

9. A delegate of the first respondent refused the application for a protection visa on 12 April 2006.  The appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the decision.  The decision of the Tribunal was quashed by an order of the Federal Magistrates Court and the matter was remitted to the Tribunal for a decision according to law.  The appellant attended a hearing of the reconstituted Tribunal on 3 April 2007 and gave oral evidence to the Tribunal.

10. The Tribunal sent the appellant a letter under s 424A of the Migration Act 1958 (Cth) (the Act), inviting the appellant to comment on the fact that the appellant had delayed about 22 months after arriving in Australia to apply for a protection visa, and also that his passport was seized during a raid by immigration officials on a friend’s house in August 2004. The Tribunal said that the latter consideration may be relevant in forming an adverse conclusion as to his claims that he was unfamiliar with protection visa procedures in Australia. That consideration was relevant to his explanation in relation to the delay in applying for a protection visa. The Tribunal was not satisfied by the appellant’s evidence and found that it consisted in the main of a number of unsubstantiated assertions.

11. The Tribunal was prepared to accept that the appellant was physically assaulted.  However, the Tribunal did not accept the appellant’s claim that the documents that he and Mr Yang, had provided to the Beijing authorities showed that there were strong financial connections between the company and senior government officials and that it was this factor which caused him to be singled out from other investors in the company who had suffered losses.  The Tribunal did not accept that the discussions with the Beijing authorities extended beyond his particular financial dispute with the company.

12. The Tribunal also considered the appellant’s claims as to the attempt on the appellant’s life by the motorcyclist and the gas incident whilst he was in Shanghai.  The Tribunal said that the evidence of these instances was not sufficiently detailed so as to permit the conclusion that these incidents were carried out at the instance of the criminals organised by the company or the local or central governments of China or any combination of them.  The Tribunal found that the harm which the appellant feared was related to a private grievance about money, which was not within the scope of Convention‑related persecution.  The Tribunal also found that the fear which the appellant did have was not well‑founded because the appellant’s wife and family are still living without danger or difficulty in Tianjin.  Further, the Tribunal found that the other persons involved in the economic dispute had not been harmed.  As to the question of delay in applying for a protection visa, the Tribunal did not accept the appellant was unaware of the protection visa system in Australia until April 2006 when he applied for a protection visa.  Accordingly, the Tribunal rejected the appellant’s explanation for the delay in applying for a protection visa.

13. Before the Federal Magistrate, the appellant raised several grounds of review.  These can be summarised as follows:

    1.The Tribunal failed to consider the claim by the appellant and failed to find he was a member of a particular social group and feared persecution such that he fell within the terms of the Convention;

    2.The Tribunal failed to consider the evidence before it and made a finding without evidence when it failed to accept his allegations about the threats on his life;

    3.The Tribunal was biased; and

    4.The Tribunal misunderstood or misrepresented the appellant’s delay in lodging his protection visa application.

14. The Federal Magistrate found that the Tribunal had not erred in finding that persecution, which the appellant claimed to have suffered, was due to his own personal actions in making an unfortunate investment.  The Federal Magistrate found that the Tribunal’s finding that the appellant was not a member of a particular social group was a finding which was open to it on the evidence before it.  In any event, whether he was a member of a particular social group was subsidiary to the question of whether he had a well‑founded fear of persecution for a Convention reason and the Tribunal had found that this was not the case.

15. The Federal Magistrate also found that the Tribunal had considered the evidence before it in relation to the alleged threats on the appellant’s life.  The Federal Magistrate also said that there was nothing before the Court to support an allegation of bias.  He said that the Tribunal’s decision demonstrated a contentious attempt to elicit from the appellant his version of events and the basis of his claims to fear persecution.  Finally, the Federal Magistrate found the Tribunal’s finding in relation to delay in making the application, was a finding of fact that was open to the Tribunal and could not be reviewed or reversed by the Court.  The Federal Magistrate also found that, in any event, it was a finding that was not critical to the Tribunal’s decision.

16. In his reasons the Federal Magistrate also considered the question of state protection which the Tribunal had made a passing reference to but did not develop.  The state protection question was not raised in the grounds of appeal.  There is, therefore, no need to consider that aspect of the Federal Magistrate’s decision any further.

    The appeal

17. There are two grounds of appeal.  The first ground asserted that the Tribunal had failed to take the facts into account giving rise to jurisdictional error.  The second ground claimed, in effect, that in drawing an adverse inference from his delay in applying for a protection visa, the Tribunal had overlooked the fact that the appellant had no knowledge of English or of the Act.

18. As to the first ground of appeal, the Federal Magistrate did not err in finding that the Tribunal had considered the appellant’s claims.  A reading of the Tribunal’s decision reveals that the Tribunal did consider each of the integers of the appellant’s claim.  The particulars provided in support of the ground amount to an impermissible attack on the factual findings made by the Tribunal and its conclusions.  The Tribunal found that the evidence of the appellant was not detailed enough to satisfy the Tribunal that materials left at the Beijing office revealed a corrupt connection between the company and the government officials, nor that there was any such connection in relation to the shooting and gas incidents referred to by the appellant.  This was a factual finding that was within the preserve of the Tribunal to make.  The Federal Magistrate did not err by declining to revisit the merits of the appellant’s claim and the factual findings of the Tribunal.

19. As to the second ground, this is also an impermissible attack on the factual findings and conclusions of the Tribunal.  The Tribunal rejected the appellant’s explanation for the delay in making the protection visa application on the basis of the appellant’s close connection with other unlawful non‑citizens who had been raided by immigration officials, the fact that the appellant had after the raid by those officers avoided contact with the Australian authorities and the appellant’s knowledge of the way and means open to him to remain in Australia.  That was a conclusion open to the Tribunal.  In making these findings, the Tribunal did not refer specifically to the fact that the appellant did not speak English but this was unnecessary as that was obvious and was implicit in the Tribunal’s findings, in any event.

20. Accordingly, I would dismiss the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        20 March 2008

Counsel for the Appellant:	The Appellant did not appear.
Counsel for the First Respondent:	Mr Rohan White
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	25 February 2008
Date of Judgment:	25 February 2008