MZYDI v Minister for Immigration and Citizenship [2009] FCA 1351

FEDERAL COURT OF AUSTRALIA

MZYDI v Minister for Immigration and Citizenship [2009] FCA 1351

MZYDI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 521 of 2009

NORTH J

10 NOVEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 521 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYDI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: NORTH J

DATE OF ORDER: 10 NOVEMBER 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The Appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 521 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYDI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: NORTH J

DATE: 10 NOVEMBER 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from orders made by the Federal Magistrates Court on 23 June 2009. On that day the Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal made on 3 February 2009, which affirmed the decision of the delegate of the first respondent not to grant the appellant a protection visa. 2 The appellant is a citizen of China who claims a fear of persecution on two bases. The first relates to violations of the family planning policy, resulting from him having two children. As a consequence of these violations he claims to have been fined 10,000 Yuan and forced by the village government to undergo a sterilisation operation. 3 The second element of his claim relates to his alleged conversion to Christianity. He claims that the church to which he belonged was banned by the government. He claims that the police attacked the worshippers at a church gathering, following which he was detained for 15 days on a charge of gathering illegally and disturbing social security. He was released when his wife paid a fine of 1000 Yuan and he wrote a repentance statement. He was told that if he returned to the church he would be arrested again. 4 In relation to his claims of forced sterilisation, the Tribunal did not accept his claims. It found that these claims were inconsistent with independent country information which indicated that Fujian Province, the province in which the appellant lived, did not require sterilisation for breach of the family planning regulations. The balance of the country information indicated that there had been no accounts of recent forced sterilisations in the area. 5 The Tribunal also found that there was a delay between the appellant's sterilisation procedure in April 2007 and his departure for Australia in July 2008. The Tribunal regarded this delay as an indication that the appellant did not have a well founded fear of persecution in China as a result of the application of the family planning law. 6 The Tribunal also rejected the appellant's claims to fear persecution on the basis of his religious beliefs. It found that the evidence of the appellant at the hearing demonstrated only a superficial and limited knowledge of Christianity and was inconsistent with his claim to have been a committed, practising Christian since July 2007. The Tribunal found that his evidence concerning attendance at the church gatherings was vague and lacking in detail and was inconsistent with evidence given at the departmental interview. The Tribunal held that the appellant was not arrested due to his participation in underground church gatherings. 7 The Tribunal did not accept that the appellant had given a credible account of his claims and it did not accept that he was telling the truth about why he could not return to China. The Tribunal found that the appellant was not a credible witness. The Tribunal then reviewed the appellant's churchgoing activities since his arrival in Australia and found that the dominant purpose was to strengthen his claim to be a refugee. The Tribunal held that it was required to disregard this conduct in accordance with s 91R(3) of The Migration Act 1958 (Cth) (the Act). 8 The appellant then applied for review to the Federal Magistrates Court. The grounds of review, as stated in his application, were: 1) the RRT did not give me a chance to explain the doubts in writing; 2) procedural fairness has been denied; and 3) the RRT failed to assess my risk to return to China, worship God is the only thing I do in my life. 9 The Federal Magistrate dismissed the application. In so doing, she reviewed the reasoning of the Tribunal and concluded that its consideration was both careful and thorough. She interpreted the grounds of appeal as potentially raising an argument under s 424A of the Act and determined that the Tribunal had complied with the provisions of the section. She also concluded, in relation to the second ground of the application, that the Tribunal had raised with the appellant the matters which were of concern to the Tribunal. Consequently, she determined that there was no failure to comply with ss 425 or 424A of the Act. In relation to Ground 3, the Federal Magistrate determined that the Tribunal had carefully considered all aspects of the appellant's claims. 10 On 14 July 2009, the appellant filed a Notice of Appeal to this Court. The grounds of appeal are, as stated in the application: 1) Refugee Review Tribunal had bias against me and did not make fair decision for my application; 2) I lodged application to the Federal Magistrates Court to give my reasons why RRT is not fair, but they ignored my application and the judge refused my application, I provided my evidence but I still refused, it is not fair; 3) I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court, I do fear to go back to China. 11 At the hearing of the appeal, the appellant appeared without legal representation. Consequently, it was explained to the appellant that the only errors which this Court can correct are jurisdictional errors, and not errors of fact. The appellant was invited to make oral submissions, bearing in mind the distinction explained to him. He indicated that he did not wish to say anything. 12 The first ground of appeal was not raised before the Federal Magistrate. If it is to be seen as raising the legal doctrine of bias, then the appellant requires leave to rely on this argument for the first time. There is no particularisation of the allegation of bias, except that it is asserted that the Tribunal did not make a fair decision for the application. Neither is there any evidence of bias in the legal sense. Reading the three grounds together, it seems to me that the essence of the appellant's complaint is that the Tribunal came to the wrong conclusion on the facts. 13 Insofar as the grounds of appeal take issue with the fact findings of the Tribunal, the appeal does not establish any jurisdictional error. The determination of the merits of the application was a matter for the Tribunal to determine. Insofar as the grounds of appeal raise allegations of procedural deficiencies, I agree with the Federal Magistrate that the Tribunal acted in accordance with the law and made no jurisdictional error. It follows that the appeal must be dismissed. The order of the Court will be that the appeal is dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.