SZHFH v Minister for Immigration and Citizenship [2007] FCA 699

FEDERAL COURT OF AUSTRALIA

SZHFH v Minister for Immigration and Citizenship [2007] FCA 699 SZHFH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 215 OF 2007

SIOPIS J

11 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 215 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHFH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 11 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent is varied to "Minister for Immigration and Citizenship". 2. The appeal is dismissed. 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 215 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHFH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 11 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against the judgment of a Federal Magistrate of 25 January 2007, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal's decision was made on 27 July 2006 and handed down on 17 August 2006. It affirmed the decision of a delegate of the first respondent (the delegate) to refuse to grant the appellant a protection visa. This was the second Tribunal decision made in respect of the appellant. A previously constituted Tribunal had on 11 August 2005 affirmed the decision of the delegate. However, that decision had been set aside, and the appellant's claim for review was sent back for reconsideration by the Tribunal. Background 2 The appellant is a 34 year old male who was born in the People's Republic of China (China). He arrived in Australia in December 2004 and applied for a protection visa on 24 January 2005. The appellant sought a protection visa on the Convention ground of political opinion. He claimed his participation in political activities had brought him to the adverse attention of Chinese authorities and he would suffer persecution if he were to return to China. The appellant is in the construction industry. The appellant said he had asked a lawyer, Mr Chen, to assist him in recovering payment from the mistress of a government official who had refused to pay him for building work carried out for her. Mr Chen had then been detained by the authorities. The appellant claimed he had in early August 2004 been involved in a week long protest, in front of the offices of the Public Security Bureau (the PSB), against the detention of Mr Chen. The appellant said that the police did not arrest him whilst the protests were in progress. However, he said that he was arrested a short time thereafter, and he was detained by the police between 16 August and 31 August 2004. He was beaten, and only released because he signed a confession. After his release from detention he learned in September 2004 that the lawyer had been sent to a labour camp and he organised the distribution of anti‑government petitions. The appellant claimed that these activities brought him to the attention of the PSB and he was advised in November 2004 that he was on a list of persons who the PSB wanted to investigate. He relocated to Shenzen City to avoid detection by the authorities, and departed soon after for Australia. 3 The delegate did not accept the appellant's claims. The delegate observed: Country information indicates that the Chinese authorities are swift and severe in retaliating against activities that are perceived to be against the government. In this context I find the [appellant's] profile and departure to be at odds with his claimed political actions. 4 The delegate also observed: It is highly unlikely that the [appellant] could have conducted his propaganda campaign for so long undetected, considering that he was only recently detained for two weeks and was known to have participated in demonstrations and organised petitions to the government for the release of the solicitor. Nor is it likely under the circumstances that the PSB would not have suspected him until late November 2004. The [appellant] appears to have been the only demonstrator or petition signer to have been arrested, questioned and detained. If the [appellant] had been of adverse interest to the authorities as claimed, country information cited below indicates that he would have been located and questioned, and possibly arrested and barred from departing the country, depending on the authorities' level of interest.