FEDERAL COURT OF AUSTRALIA

MZYDG v Minister for Immigration and Citizenship [2009] FCA 1338

Federal Court Rules

Jess v Scott and Others (1986) 70 ALR 185

Spires v Secretary and the Department of Family and Community Services [2002] FCA 578 

MZYDG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 536 of 2009

MIDDLETON J

12 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be refused.

2.                  The applicant pay the costs of the first respondent.

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.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for an extension of time to appeal a decision of the Federal Magistrates Court given on 25 June 2009. 

2                     Order 52 r 15 of the Federal Court Rules provides: 

(1)       The notice of appeal should be filed and served:

(a) within 21 days after:

(i) the date when the judgment appealed from was pronounced.

(iii) any later date fixed for that purpose by the court

appealed from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2)       Notwithstanding anything in the preceding sub-rule, the court or a judge for special reasons may at any time give leave to file and serve of a notice of appeal. 

3                     The principles surrounding ‘special reasons’ were considered by the Full Federal Court in Jess v Scott and Others (1986) 70 ALR 185 at paragraph 193:

What is needed to justify an extension of time is indicated in r15(2) by the words “for special reasons”.  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.

4                     In Spires v Secretary and the Department of Family and Community Services [2002] FCA 578, Mansfield J also considered, at paragraph 1, that:

It is relevant, in my judgment, to have regard inter alia to the importance of the questions sought to be raised by the proposed appeal, the question of whether there is any arguable question to be raised in the proposed appeal, and the explanation for the delay.

5                     I go directly to the issue of whether there is an arguable case. 

6                     The applicant claimed he would be persecuted by Indian authorities because he converted from Hinduism to Christianity.  He initially claimed that he would be gaoled because of the anti-conversion laws implemented in 2003, but abandoned this claim at the Refugee Review Tribunal (‘Tribunal’) hearing.  The applicant claimed there was violence against Christians and that the police were either inactive or complicit. 

7                     At the Tribunal hearing, the Tribunal clarified the particular incidents when he claimed he was abused.  The applicant claimed he was abused on two or three occasions.

8                     The Tribunal asked the applicant why he converted and how he practised Christianity.  The applicant replied that he studied Christianity and learnt a few good things so decided to convert to Catholicism in October 2007. 

9                     The applicant told the Tribunal that Jesus was crucified on 25 December and he would give sweets to children on Good Friday when Christ was reborn.  He could not recall who Jesus’ mother was, nor the name of the Christian books that he studied.  He had converted by himself through prayer and worship with others by cleaning the church for service.  The applicant was not aware of any main prayer.  The applicant also considered he did not attend church in Australia. 

10                  The Tribunal did not accept that the applicant converted to Christianity in October 2007, based on his vague evidence about why he decided to convert to Catholicism, the conversion process, and how he said he practised Catholicism.  In particular, the Tribunal was critical of the fact that the applicant believed that Jesus was crucified on Christmas day.  The Tribunal also did not accept that the applicant had attended church in India.  The Tribunal noted the applicant did not use the term church until the term was used by the Tribunal. 

11                  The Tribunal also rejected the applicant’s specific claims of abuse.  The Tribunal found the applicant’s evidence about each event was vague and inconsistent. 

12                  The Tribunal was also critical that the applicant abandoned claims in his Protection Visa application, which were contradictory to his oral claims, and found this made the applicant less credible.  The Tribunal concluded the applicant did not have a well founded fear of persecution if he returned to India. 

The Federal Magistrates Court Decision

13                  The application to the Federal Magistrates Court restated factual matters, and inter-mingled grounds of review without relevant particulars.  The applicant made further claims at the Magistrates Court hearing itself.  The applicant alleged that the Tribunal asked the wrong question, failed to deal with the claims he made, misinterpreted s 91R(1) and failed to accord natural justice or comply with the procedures of the Migration Act 1958 (Cth).  The applicant also alleged that the Tribunal was biased, and did not act with good faith, and was unreasonable. 

14                  The Federal Magistrate dealt with each ground raised by the applicant.  The Federal Magistrate set out the Tribunal’s concerns, particularly with the applicant’s answers to questions about Christianity, and the Tribunal’s findings about whether the applicant experienced past persecution.  The Federal Magistrate then dealt with each ground in the application in detail, and rejected the applicant’s claims of error. 

CONSIDERATION

15                  In the draft Notice of Appeal, before this court, the applicant claims that: 

(1)       … Judge Riley dismissed the case on 25 June 2009 without substantial reasons. 

(2        … the [Court] could have examined the persecution and torture that I have received in India before seeking protection in Australia; and

(3)       Section 39B of the Judiciary Act 1903, ss 47, 65, and 414 of the Migration Act 1958 (sic) was not considered (sic), and alternatively pursuant to s 256 of the Migration Act. 

16                  No particulars were provided to these claims. 

Ground One: 

17                  The first ground does not disclose any error.  The Federal Magistrate dealt with the grounds in the applicant’s application, and provided detailed reasons for judgment.  I agree with those reasons. 

Ground Two: 

18                  The second ground cannot be sustained.  The Federal Magistrates Court application was for judicial review of the Tribunal decision.  The Federal Magistrates Court cannot consider the merits of the claim, and whether the applicant was persecuted in India. 

Ground Three: 

19                  The applicant refers to various statutory provisions, but it is not clear what error the applicant alleges.  I can ascertain no error by reference to any of the statutory provisions relied upon by the applicant. 

CONCLUSION

20                  For the above reasons, the application for an extension of time to appeal to the Federal Court of Australia is refused. 

21                  Even if an extension of time was not necessary, I would have dismissed the appeal for the reasons set out above. 

Associate:

Dated:         17 November 2009