FEDERAL COURT OF AUSTRALIA

SZKQQ v Minister for Immigration and Citizenship [2008] FCA 242

SZKQQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2228 OF 2007

MIDDLETON J

25 FEBRUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent, fixed at $2,800.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of Cameron FM of the Federal Magistrates Court given on 23 October 2007 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  That decision affirmed a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

Background

2                     The appellant is a citizen of the People’s Republic of China.  The appellant arrived in Australia on 25 October 2006 and on 7 November 2006 he lodged an application for a protection (class XA) visa.  After the Minister’s delegate refused the appellant’s protection visa application on 5 February 2007,the appellant applied on 5 March 2007 to the Tribunal to review that decision. 

3                     Before the Tribunal, the appellant claimed to have been involved in protests against the construction of a factory in Fujian province.  The appellant had maintained a loquat plantation he claims was affected by construction.  The appellant stated that he and other local residents became concerned about the environmental impact of a proposed Taiwanese-owned factory.  The appellant claimed that he and other residents attempted to protest to the local authorities, but that the authorities had been bribed by the factory-owner and threatened the protesters instead.

4                     The appellant claims that in February 2006, he and fellow protesters went to Fuqing City to plead with higher authorities.  He claims that they were confronted by the Public Security Bureau (PSB) and later imprisoned.  As a result, the appellant claims that he was jailed from 6 to 30 March 2006 and subjected to inhuman treatment.  He was forced to work on a construction site under supervision for a further five months and placed under surveillance once he had returned home.

5                     The appellant fears persecution if forced to return to the People’s Republic of China as he is perceived to be a leader of anti-government actions.

The Tribunal’s decision

6                     The appellant attended a hearing on 10 April 2007 and gave oral evidence to the Tribunal. 

7                     The Tribunal found the appellant’s evidence implausible. The appellant was unable to tell the Tribunal what areas he cultivated, nor did he know enough about the commercialisation of the loquat fruit. The Tribunal member went on to say that while the appellant demonstrated some knowledge of the fruit’s cultivation, this was information easily acquired in the province which was the home of the loquat, what he did not know persuaded the Tribunal that he was not a loquat farmer.

8                     The Tribunal was concerned that the appellant did not:

·        indicate what the factory was to produce;

·        give a legitimate explanation as to how he managed to renew his passport while in detention; or

·        explain how he managed to leave the country while under the constant scrutiny of the PSB.

9                     In the circumstances, the Tribunal did not accept that he was detained or that he suffered in any way while in detention, that his land was taken for a Taiwanese chemical factory, or that he had problems with the PSB.

10                  The Tribunal accordingly found that the appellant did not have a well-founded fear of persecution for a Convention reason.

Proceedings in the Court Below

11                  Before the Federal Magistrate, the appellant raised two grounds in an amended application dated 27 July 2007.  Firstly, that the Tribunal did not comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’).  Particulars accompanying the ground referred to information relating to:

(a)        the propagation and commercialisation of loquat trees,

(b)        inconsistent findings by the Tribunal, and the

(c)        renewal of the appellant’s passport.

12                  The second ground asserted that the Tribunal had misstated or misunderstood the appellant’s claims, evidence or ‘information’.  This ground was also accompanied by particulars, asserting:

(a)        that the appellant did not inform the Tribunal that the chemical factory had been built and had polluted the soil and water; and

(b)        that the Tribunal never asked the appellant what area he had cultivated loquats in or discussed the method used.

13                  Regarding particular (a) of ground 1, his Honour found that the information relied on was a conclusion drawn by the Tribunal, namely the appellant’s ignorance of the characteristics of the fruit trees in question.  This is not considered to be ‘information’ for the purposes of s 424A.

14                  Regarding particular (b), his Honour found that the Tribunal noted that there were inconsistencies between the written and oral information but did not base its decision on the fact of these inconsistencies, but relied on the information the appellant gave at the Tribunal hearing.

15                  In relation to last particular, the Federal Magistrate found at [19] that:

The Tribunal’s decision makes it clear that the ease with which a person might obtain renewal of a passport in China was not an issue which was considered by the Tribunal at all. Rather, it did not accept what the applicant said to it concerning the renewal of his particular passport. These are quite different matters. Consequently this asserted ground is not made out.

16                  Regarding ground 2, his Honour found in relation to particular (a) that it was apparent that the appellant’s evidence at the hearing was not clear or straightforward.  Nevertheless the Tribunal was able to distil the appellant’s story from the evidence he gave and neither misstated or misunderstood the appellant’s claims or the evidence he gave.

17                  Concerning particular (b) of ground 2, his Honour found that there was no evidence to suggest that the Tribunal misunderstood the appellant’s evidence in relation to cultivation and method used. Moreover, the Tribunal’s statement that the appellant was not able to tell what area he cultivated did not form the basis of any part of the Tribunal’s conclusion.

18                  At the hearing, the appellant submitted that the Tribunal’s adverse finding as to his credibility was wrong because it depended on the question of how loquats are grown. In this regard the Federal Magistrate found the credibility finding reached by the Tribunal was open to it based on the evidence before it.

The Appeal to this Court

19                  The appellant commenced the present proceedings by notice of appeal filed on 12 November 2007, which raised two grounds of appeal and two particulars appearing to correspond to the respective grounds raised in the Federal Magistrates Court.  The first ground asserts that the Federal Magistrate erred in law.  What appears to be the related particular states that the Tribunal failed to comply with its obligations under s 424A(1) of the Act.  The second ground claims that the Federal Magistrate was wrong in finding that the Tribunal acted properly in relation to its findings.  The associated particular asserts that the Tribunal misstated or misunderstood the appellant’s claims or ‘my evidences or the information I have given to the Tribunal’ (appellant’s terminology).

Conclusion

20                  The notice of appeal simply repeats the grounds that failed before his Honour.  No written submissions have been received from the appellant.  The appellant made oral submissions today which effectively repeated matters raised before the Federal Magistrate.  In essence, the appellant attacks the findings of fact and credibility and repeats the contentions made in respect of the operation of s 424A(1) of the Act.

21                  The Tribunal’s credibility conclusions are findings of fact: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67].  So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559; W148/00A v MIMA (2001) 185 ALR 703 at [64]-[69].  The Tribunal’s findings were open for the reasons it gives.  The court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].

22                  As for the operation of s 424A as applicable to this case, I agree with the reasons of the Federal Magistrate.

23                  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct.

24                  The appeal should be dismissed.

Associate:

Dated:         5 March 2008