SZCUY v Minister for Immigration and Citizenship [2007] FCA 700

FEDERAL COURT OF AUSTRALIA

SZCUY v Minister for Immigration and Citizenship [2007] FCA 700 SZCUY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 312 OF 2007

SIOPIS J

11 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 312 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCUY

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 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 312 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCUY

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 a judgment of a Federal Magistrate of 14 February 2007,dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 7 August 2006, handed down on 22 August 2006. The Tribunal had affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant a protection visa to the appellant. This Tribunal was a reconstituted Tribunal following a successful application by the appellant for judicial review. 2 The appellant is a citizen of the People's Republic of China. At the hearing before the Tribunal the appellant claimed to have a well‑founded fear of persecution because he assisted anti‑government protesters to evade police. The appellant claimed to have managed a restaurant in China catering to long‑distance truck drivers. The appellant claimed that very late one night in July 2000, three men came to eat at his restaurant. One of the men, a truck driver at the local mine, Mr Shao, was a friend of the appellant. After the three men left, police came and questioned the appellant about the men, stating that they were wanted in connection with anti‑government activities. The appellant denied any knowledge of the men. On the following day the appellant learned that the three men may have led a protest of mine workers against the government in relation to two caving accidents in the Sanlidong coal mine in June 2000. 3 The appellant said that his friend telephoned him two days later, saying his transport had failed and that one of the party needed medical attention. The appellant arranged for them to stay with his uncle, who practised Chinese medicine, and the uncle attended to the injured man. The appellant claimed that they stayed at his uncle's home until August, at which time he paid a truck driver to take the men to Mongolia. The appellant said that he believed that the Mongolian government returned the men to China. 4 The appellant said that in November 2000, he and his uncle were arrested. The appellant was detained from November 2000 to May 2001. The appellant claimed that he had been able to communicate with his uncle in exercise periods whilst in detention, and learned that his uncle had claimed responsibility for the escape of the three men, before he was "tortured to death" in the detention centre. He claimed that his restaurant had been confiscated. The appellant went on to claim that in July 2002 he was able to leave China, with the assistance of a businessman, Mr Wen, who had previously been aided by the appellant's uncle. 5 The Tribunal found the appellant was not a credible witness. It accepted that the appellant owned a restaurant but did not accept his other claims. The Tribunal found the appellant's claims regarding his friend, the other protestors, his contact with his uncle in detention, and his own arrest and departure were internally inconsistent, inconsistent with independent country information, confused and far‑fetched, and also had the appearance of having been learnt by rote. 6 The appellant also provided the Tribunal with a statutory declaration signed by Hong Mei Li dated 17 July 2006, in support of his claim. The Tribunal found that it could "not place any weight on the statement as credible" given its adverse credibility findings against the appellant.