MZYEY v Minister for Immigration
[2010] FCA 527
FEDERAL COURT OF AUSTRALIA
MZYEY v Minister for Immigration and Citizenship [2010] FCA 527
Citation: MZYEY v Minister for Immigration [2010] FCA 527 Appeal from: MZYEY v Minister for Immigration & Citizenship & Anor [2010] FMCA 209 Parties: MZYEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 146 of 2010 Judge: TRACEY J Date of judgment: 27 May 2010 Cases cited: MZYEY v Minister for Immigration & Citizenship & Anor [2010] FMCA 209 Date of hearing: 27 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 The Appellant appeared in person Counsel for the Respondents: Ms M Ngo Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 146 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYEY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
27 MAY 2010
WHERE MADE:
MELBOURNE
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.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 146 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYEY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
27 MAY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate delivered on 15 February 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 12 May 2010: see MZYEY v Minister for Immigration & Citizenship & Anor [2010] FMCA 209. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of China who arrived in Australia on 14 March 2007. She entered on a student guardian visa in order to be with her son who was attending a school in Melbourne. On 22 August 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 10 June 2008. On 10 July 2008 the appellant applied to the Tribunal for a review of that decision.
In her application for a protection visa, the appellant claimed to fear persecution in China by reason of her being a member of a local family church. She claimed that she was detained twice by PSB officials and suffered physically and mentally on those occasions. She feared further harm from the authorities by reason of her activities in distributing church materials, and decided to come to Australia. Since arriving in Australia, the appellant had attended church meetings in Melbourne.
REFUGEE REVIEW TRIBUNAL
The Tribunal was prepared to accept the appellant’s claims to be a Christian, to have been a member of the local family church in China and to have attended church in Australia. The Tribunal was satisfied that her attendance at church in Australia was otherwise than for the purpose of strengthening her claims to be a refugee.
The Tribunal did not, however, accept that the appellant had been persecuted in the past as she claimed, and, in particular, did not accept that she had been arrested, detained and abused on two occasions by Chinese authorities for reason of her religion. In coming to this view, the Tribunal took into account independent country information, information from DFAT in respect to forged documents in China, the inconsistencies in her evidence, and the similarities between the appellant’s evidence and that given by other applicants before the Tribunal.
The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugee Convention, and affirmed the decision under review.
FEDERAL MAGISTRATES COURT
The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 9 June 2009. That application contained the following grounds:
“1. I was not considered fairly by RRT. They did not weigh my evidence both here and in China. I did not go to church to strengthen our refugee claims. I serve God in my life.
2. Procedural fairness has been denied. RRT did not consider my evidence fairly. I live in fear in China.”
The Federal Magistrate noted that these grounds were not supported by any particulars or submissions. The appellant was unable to explain or elaborate on either of the grounds. The Federal Magistrate found that the Tribunal carefully considered all of the claims raised by the appellant and that there was nothing to indicate that the appellant had been denied procedural fairness. She noted that the Tribunal had accepted that the appellant had not attended church in Australia in order to enhance her claim to be a refugee.
Having found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the application.
APPEAL TO THIS COURT
The notice of appeal to this Court was filed on 5 March 2010. The following grounds are raised:
“1. RRT had bias against me and did not make fair decision for my application.
2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application at my hearing date, it is not fair.
3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.”
No particulars were supplied under any of these grounds.
SUBMISSIONS OF THE APPELLANT
The appellant appeared in person at the hearing which was held this afternoon. She had the assistance of an interpreter.
I invited the appellant to explain each of her grounds in greater detail. She complained that the Tribunal had been biased against her because applicants who had made the same or similar claims to those which she had made had succeeded in obtaining favourable decisions. She considered it to be unfair that she should be treated differently from these successful applicants. She said that grounds 2 and 3 were different ways of expressing the same point. That point was that she disliked and disagreed with the Tribunal’s decision but the Federal Magistrate chose simply to agree with the Tribunal.
FINDINGS
These contentions cannot succeed. The bias ground is misconceived. The appellant provided the Tribunal with reasons for decision in some earlier cases in which applicants had succeeded. Those applicants had made claims which the Tribunal had accepted. The Tribunal in the present case was not bound by any other decisions of the Tribunal. Those decisions were made by different members. More significantly, however, the Tribunal in the present case did not accept the appellant’s claims. An important consideration which led to a rejection of her evidence was that some of her claims, made in written submissions, were identical in wording or substantially similar to the wording of other statements made by other applicants who had claims pending in the Tribunal. This had occurred despite the appellant claiming that she was the author of her own statement.
The second and third grounds must also fail. The Federal Magistrate did not simply endorse the decision of the Tribunal. As her reasons disclose the Federal Magistrate carefully examined each of the grounds for judicial review which had been advanced by the appellant and determined, for reasons which she gave, that they could not be sustained.
The reasons of the Federal Magistrate disclose no appellable error.
ORDERS
The appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 27 May 2010
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