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.