SZJXF v Minister for Immigration & Citizenship [2008] FCA 137

FEDERAL COURT OF AUSTRALIA

SZJXF v Minister for Immigration & Citizenship [2008] FCA 137

SZJXF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL No NSD 2012 of 2007

FINN J

22 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2012 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXF

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE OF ORDER: 22 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. 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 2012 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXF

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE: 22 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for an order of review of a decision of the Refugee Review Tribunal refusing the grant of a protection visa to the appellant.

THE CLAIMED FEAR AND THE TRIBUNAL'S DECISION 2 The general character of the claims made for a protection visa is revealed in the statutory declaration which accompanied the appellant's visa application. The appellant is a Chinese national. In the declaration it is stated (to use the Tribunal's précis) that: "… since July 1983 he has worked in a tyre repairs workshop, 'Old Zhong Tyre Repairs Shop' in Honglu St., Honglu Town, Fuqing City, which was opened by his father on 4 March 1980. In August 2003 the applicant's father retired and transferred the tyre repairs shop to the applicant. At that time, there were 6 employees and the applicant was the manager. In January 2004, 2 officials from Honglu Town local government visited the shop and suggested that the applicant move the shop, as the local government had allocated the land to Mr Xing Jian Zhang, a supporter of Mr Qing Lin Jia who was the Mayor of Beijing from 1996 after having been the President of Fujian Province. The applicant's father did not allow him to move the shop. On 8 March 2004 Mr Qiao Hua Zhang, the nephew of Mr Xing Jian Zhang, and about 20 people including police broke into the shop and destroyed everything. They also assaulted the applicant and all employees. The applicant was hospitalised for 2 months and his left hand was seriously injured. The applicant lost everything. His father was very upset and made many enquiries of the police. On 30 April 2004 the applicant's father was arrested and put into a detention centre while the applicant was still in hospital. The applicant returned home around 10 May 2004 and spent all his savings to save his father who was released from the detention centre on 30 September 2004. Because of his left hand injury the applicant could not obtain work and he took legal action against Mr Qiao Hua Zhang and Mr Xing Jian Zhang. On 1 July 2005 the applicant, his wife, parents, 2 children and about 20 relatives had a sit in protest in front of Mr Xing Jian Zhang's house. On that evening the applicant was taken by police in an ambulance to a mental hospital in Fuzhou where he was held until Chinese New Year. After his release he was continually threatened and warned by the police and eventually a friend arranged the money for the applicant to go overseas." 3 Because one of the grounds of challenge to the Tribunal's decision alleges a breach of s 425 of the Migration Act 1958 (Cth) I should note in passing that the Minister's delegate refused the application because he found the appellant's claims to be general and unsubstantiated; that the evidence lacked details on a number of matters; that no documentary evidence had been provided; that his actions and behaviour were inconsistent with those reasonably to be expected of a person who was being continually threatened and who held a genuine fear for his life or safety; and that his ability to legally depart China on his own passport suggested he was not of significant adverse interest to authorities. The Tribunal dismissed the appellant's application to it for reasons which were largely similar to those of the delegate. As the Federal Magistrate indicated (at [3]-[4] of his decision), the Tribunal noted there was no supporting evidence for the appellant's claims; it did not believe the appellant's narrative provided at the Tribunal hearing; and it pointed to vagueness in his evidence and to aspects of the history which it regarded as implausible.