SZMCF v Minister for Immigration and Citizenship [2008] FCA 1659

FEDERAL COURT OF AUSTRALIA

SZMCF v Minister for Immigration and Citizenship [2008] FCA 1659

Migration Act 1958 (Cth) s 424A SZMCF v Minister for Immigration and Citizenship [2008] FMCA 939 cited

SZMCF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1183 of 2008

TRACEY J

11 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1183 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMCF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 11 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with 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 1183 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMCF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE: 11 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 8 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 4 March 2008: see SZMCF v Minister for Immigration and Citizenship [2008] FMCA 939. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of the People's Republic of China. The appellant entered Australia on 30 January 2007 on a tourist visa. On 9 February 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known. A delegate of the first respondent refused the application for a protection visa on 30 April 2007. On 31 May 2007 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed that he used to run a successful restaurant with a close friend, Mr Min Yun Cao, but in October 2005 the restaurant was closed down and his friend was arrested after an argument between his friend and some Public Security Bureau ("PSB") officials. The appellant paid a bribe to have his friend released in December 2005. He went into debt because he was forced to borrow money to pay the bribe. 4 The appellant stated that, in order to earn money, they went to work in a coal mine in July 2006. On 26 November 2006, there was an explosion in the coal mine, resulting in the death of 8 people and the injury of others. The appellant was employed at in the mine at the time but was not working when the explosion occurred. He was not paid as most of the owners fled. In December 2006 he and Mr Cao organised coal miners to approach various government agencies, to ask them to investigate and take action against corrupt officials and the coal mine owners, to provide compensation to the victims of the explosion and to pay the money owed to the workers. On 22 December 2006 the appellant and Mr Cao organised about 200 coal miners to attend a protest in front of a government building, but the protest was quickly suppressed by armed police and more than 20 people, including the appellant, were arrested. 5 The appellant claimed that he was subjected to torture whilst in detention, and forced to write a statement promising not to make any more trouble for the government. He was released on 31 December 2006, but was regarded as a political dissident and had to report to the local police station weekly and was often questioned by the police. Mr Cao, who was not arrested during the demonstration, went to Beijing. The appellant managed to travel to Beijing in late January 2007 and, with the help of Mr Cao, who had arranged for him to leave the country as part of a tour group, was able to leave China. 6 On 31 January 2008, following the hearing at the Tribunal, the appellant was sent a letter, pursuant to s 424A of the Migration Act 1958 (Cth), which invited him to comment on various inconsistencies in his evidence including: · discrepancies between his version of the explosion at the coal mine and information reported in the China (PRC) national newspaper; · the appellant's claim that he was forced to hide his passport from authorities, yet used the same passport to exit China unhindered by border control authorities; and · the appellant's claim that his wife bribed officials to delete his adverse PSB history from official records but that, despite this, the appellant claimed that the police were "right now looking for [him]".