SZKJL v Minister for Immigration and Citizenship

[2008] FCA 655

FEDERAL COURT OF AUSTRALIA

SZKJL v Minister for Immigration and Citizenship [2008] FCA 655

Migration Act 1958 (Cth) s 424A(1), 424A(3)(b)

SZKJL v Minister for Immigration & Anor [2008] FMCA 17

SZKJL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 142 OF 2008

MCKERRACHER J
13 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 142 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	13 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The appellant is to pay the costs of the first respondent to be taxed if not agreed.

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 142 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	13 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is appealing a decision of a Federal Magistrate (Lloyd-Jones FM) delivered on 15 January 2008 (SZKJL v Minister for Immigration & Anor [2008] FMCA 17) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 February 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as it was then known) refusing to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 16 August 2006.  On 24 August 2006 the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (as it was then known).  A delegate of the first respondent refused the application for a protection visa on 1 November 2006.  On 30 November 2006 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to fear persecution from the authorities as a political dissident protesting corruption in the Shanghai stock market.

4. The appellant claimed that he was introduced in 2000 to the stock market by friends.  The appellant claimed he was cheated by government officials and senior management of Kelong Company into investing in Kelong Electrical Equipment stock and that these persons gave misrepresentations to him that the stock price would increase.  He claimed the share price of that particular stock had been artificially controlled by corrupt officials and businessmen.  He indicated his siblings and mother were encouraged to buy the shares and that he lost 1 billion Yuan in the first half of 2006 on those shares.

5. He gave evidence of protesting the corruption and being persecuted for such actions.  He claimed that from 2005 to 2006 he organised other investors and petitioned government agencies in Shanghai five times requesting legal order in the stock market. The appellant claimed he was detained for a day by the Public Security Bureau (PSB) and mistreated.  Subsequently he was interrogated on various occasions.  He claimed that in May 2006 he organised a protest of around 100 people affected by investment in Kelong Electrical Equipment stock in front of the Shanghai stock market.  The appellant was detained for one month and was released on payment of a bribe. 

6. The appellant claimed that he was informed by a friend he was targeted by the PSB.  He claimed that on the day of his arrival in Australia, the police came to his home with a warrant for his arrest.  He claimed his wife, currently in China, had been questioned by police twice.

7. At the hearing before the Tribunal the appellant gave evidence as to his claims, including that the market was the Shenzhen stock market.

   THE TRIBUNAL’S DECISION

8. The Tribunal did not consider the appellant was a credible witness and that his evidence at the hearing was implausible, inconsistent and completely lacking in reliability.  The Tribunal found the claims were fabricated and did not accept any claim of well-founded fear of persecution. 

9. The Tribunal found the appellant’s claims regarding how he became involved in the stock market to be far-fetched and fanciful.  The Tribunal asked the appellant questions relating to the Shenzhen stock market and the company into which he invested his savings but found his knowledge of these two to be negligible.  The Tribunal also found the appellant’s claims of persecution for complaining against corruption were contradicted by the independent evidence, including information from the internet, which suggested there was major anti-corruption against government officials and commercial bribery.

10. In coming to its decision to affirm the delegate’s decision to refuse the appellant’s refugee claim the Tribunal made the following findings:

    (a)The appellant was not a credible witness, his evidence was implausible, inconsistent and completely lacking in credibility;

    (b)The appellant was not truthful in his claims and those claims were mendacious and that he fabricated them to enhance his claim for a protection visa;

    (c)The appellant did not produce a shred of documentary evidence to support his claim he was an investor in anything;

    (d)The appellant had a complete lack of knowledge of the Shenzhen stock market;

    (e)The appellant’s claims were inconsistent with the country information on the Shenzhen stock market;

    (f)By reason of the adverse credibility findings, the claims by the appellant were fabricated.

11. The Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention reason (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967) and affirmed the decision of the delegate to refuse grant of the visa.

    THE FEDERAL MAGISTRATE’S DECISION

12. On 19 March 2007 the appellant sought judicial review of the Tribunal’s decision. An amended application was filed on 4 July 2007 and asserted that the Tribunal misunderstood the appellant’s claim and incorrectly assessed his credibility because the appellant did not claim to be a professional investor yet the Tribunal assessed his knowledge of the stock market upon that basis. Further, the appellant claimed the Tribunal assessed the appellant against the wrong stock exchange and that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) in relation to information from the internet and that the Tribunal did not assess the appellant’s claims fairly and carefully.

13. The Federal Magistrate considered the material before the Tribunal.  His Honour noted that although the appellant indicated in his protection visa application that he invested in the Shanghai stock market, the Tribunal had information before it that the Kelong Company was not listed on the Shanghai stock market but rather the Shenzhen stock market and proceeded to assess the appellant against that market.  The Federal Magistrate noted the appellant did not dispute before the Tribunal the listing of the company on that market.  The Tribunal proceeded to assess the appellant’s credibility and found his evidence ‘implausible, inconsistent and completely lacking in reliability’.  His Honour found the findings of the Tribunal were open to it on the evidence.

14. His Honour held that the appellant’s credibility was not ‘information’ for s 424A as it related to the Tribunal’s conclusions and the information informing the conclusion came from the hearing was exempted by s 424A(3)(b) of the Act. His Honour also held there had been no denial of procedural fairness or bias and as there was no jurisdictional error dismissed the application.

    GROUNDS OF APPEAL

15. In the notice of appeal filed on 5 February 2008, the appellant raises three grounds of appeal which allege that the Federal Magistrate (in summary):

    1.Failed to find the Tribunal incorrectly assessed credibility;

    2.Failed to find the Tribunal did not comply with s 424A if the Act;

    3.Did not properly and fairly consider the application.

16. At the hearing of the appeal before me the appellant did not appear.

17. Given the appellant’s failure to appear, the appeal was dismissed under the provisions of s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

    1.The appeal is dismissed.

    2.The appellant is to pay the costs of the first respondent to be taxed if not agreed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        14 May 2008

The Appellant did not appear.
Counsel for the First Respondent:	MP Cleary
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	13 May 2008
Date of Judgment:	13 May 2008