SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197

FEDERAL COURT OF AUSTRALIA

SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197 SZEBX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1957 of 2004 ALLSOP J 9 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1957 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEBX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 9 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents 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 1957 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEBX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 9 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against orders made by a Federal Magistrate dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the "Tribunal") which affirmed the decision of a delegate of the respondent not to grant a protection visa. 2 The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 3 The appellant is a citizen of the People's Republic of China. He claims to fear persecution for reasons of his political opinion. He claims that he was, as a small business owner along with other small business owners, coerced to pay a donation to the local government to fund some building works in his local province. While he had made the payments in the past he was unable at the point in time in question to do so due to the effect of the SARS epidemic on his business. He sought, with other local small businessmen, a waiver from the donation. This was refused. Most of the other businessmen chose to pay the donation but the appellant and three others wrote to the authorities appealing its decision, which was successful. This success was the impetus for the four applying to establish a local chamber of commerce, which was refused. The four continued to push for the chamber, this time through the distribution of propaganda materials, petitions and the use of contacts. This led to the appellant and his colleagues being interrogated and detained for anti-government activities by the Public Security Bureau (PBS). Whilst detained the appellant claims he was forced to sign a confession. The appellant claims that he was forced to close his business and was regarded as a troublemaker and political dissident, that had to report regularly to the PBS and that he had to be prepared for frequent investigations by the Bureau. 4 The Tribunal was not satisfied that the appellant was being truthful in his claims and found that he was not a credible witness. It found that his responses at the oral hearing were often vague and inconsistent with his written claims and those in his protection visa. Among these inconsistencies was that during the hearing the appellant said he came to Australia on the basis that he was a refugee but did not know until he was in Australia that he could apply for protection. Further, the appellant was unable to describe other than vaguely the content of the propaganda material that he claimed he distributed. The Tribunal was not satisfied of the veracity of his claims about his dealings with the PBS. Further, it was not satisfied that he was a wanted political dissident given that country information indicated that exit checks in China were thorough and no wanted political dissident would be able to leave the country without being apprehended. The Tribunal found it to be implausible that his wife had been forcibly sterilised as a result of her husband's claimed activities which the Tribunal had earlier considered and rejected and further, that the appellant's wife would not have made international phone calls of sucha sensitive nature and endanger her own and her children's lives even if the calls were made from a friend's phone. 5 Before the Federal Magistrate the appellant relied on an amended application which claimed the following grounds: There was an error of law in the Tribunal's decision constituting a jurisdictional error