FEDERAL COURT OF AUSTRALIA

MZYOB v Minister for Immigration and Citizenship [2012] FCA 139

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of the Federal Magistrates Court which dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had refused the appellant’s application for a protection visa: see MZYOB v Minister for Immigration and Citizenship [2011] FMCA 901.

2    The appellant is a citizen of China who arrived in Australia on 2 September 2010. On 18 October 2010 he lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). A delegate of the Minister refused the application.

3    The appellant applied to the Tribunal for a review of that decision.

BACKGROUND

4    In August 1997 the appellant’s parents borrowed 800,000 yuan from friends and relatives at a high interest rate. The loan was sought to enable his parents to build a pig farm. The business was going well. In November 2005 the village government informed the family that there was a policy to eliminate pollution and that, as a result, the pig farm would be demolished. The loan had not been paid off and the small amount paid by way of government compensation did not meet the cost of the loan. The appellant’s family ended up still in debt without a way of earning a living. On 12 December 2005 the pig farm was demolished. In the process the pigs were harmed and the appellant got into a fight with a local official. Government officials beat the appellant and, in defending himself, the appellant hit one of the officials with a spade. This caused serious injury to the official. The police came and beat the appellant with batons. The appellant lost consciousness. He was detained for 15 days. The people from whom the appellant’s family borrowed the money demanded repayment.

5    The appellant joined with other villagers whose land or businesses had been subject to forced demolition. This group approached the town government for compensation. On 9 February 2006 the appellant was part of this group who were protesting when the police arrested and detained them. The appellant was beaten and threatened by the police. On 9 October 2006 the appellant climbed on to the roof of a government building with a bottle of gasoline threatening to kill himself by jumping off the roof. The appellant came down after a local official promised to fix the problem. Once the appellant had descended the police surrounded him and attempted to detain him. He threw his burning clothes at the police and escaped on a friend’s motorcycle. The appellant went to a village in Fuzhou and worked on a family’s farm. The farmer’s family took the appellant in and he married their daughter. The appellant’s wife is a Christian. A few years later the appellant called his home to tell his family where he was and how he was going. The appellant’s home phone was being monitored by the police. The police then came after him. The appellant, however, managed to evade them and, with the help of a friend, entered Hong Kong. He obtained a false passport to enter Taiwan. From Taiwan the appellant flew to Australia.

refugee review tribunal

6    On 29 June 2011 the appellant appeared before the Tribunal. He gave evidence with the assistance of an interpreter. The Tribunal was concerned that the appellant could not remember the amount of compensation his family had received for their farm. The Tribunal had regard to the appellant’s evidence that the police visited him in August 2010 after the appellant had contacted his family in January 2009 and again in May 2010. The Tribunal was concerned that the appellant’s evidence had changed since his initial interview with the delegate. The appellant claimed to have attended church in Australia but was unable to give the name of the church. The Tribunal was also sceptical about the claim that the appellant had assaulted an official with a spade but was then released after 15 days. The Tribunal had regard to independent country information which indicated that the maximum penalties for injuring local officials were more severe than the detention imposed on the appellant. The Tribunal did not accept that the appellant was found by local police who were monitoring his family phone. The Tribunal did not accept the appellant’s evidence regarding the incidents involving the police or the demolition of the pig farm. The Tribunal concluded that the appellant was not a Christian. The Tribunal refused the application. It held that he did not have a well founded fear of persecution.

federal magistrates court

7    On 1 August 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. That application contained the following grounds:

1.    The Tribunal failed to comply with the duties imposed by s 430(1) of the Migration Act 1958 (Cth).

2.    The Tribunal’s credibility finding was in error.

3.    The Tribunal did not have regard to the influence the appellant’s history has had on his memory.

4.    The Tribunal did not have enough regard to the appellant’s risk of persecution by the Chinese authorities on the basis he has sought protection in Australia.

5.    The Tribunal did not properly apply the well founded fear test as required by MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559.

8    The Federal Magistrate rejected each of these grounds.

9    It is not necessary, on this appeal, to essay all of her Honour’s reasons for doing so. This is because the grounds of appeal only seek to impugn her Honour’s findings on two of the grounds relied on by the appellant before her. Those were grounds 2 and 3.

10    The Federal Magistrate noted that the adverse credibility findings which had been made by the Tribunal were based, in part, on the appellant’s inconsistent accounts of relevant events. There was no doubt that inconsistent accounts had been given. The appellant had not sought to persuade the Tribunal that such inconsistencies were attributable to memory loss. No medical or other evidence had been called, either before the Tribunal or the Federal Magistrates Court, with a view to establishing any such mental condition. On the evidence, it had been open to the Tribunal to conclude that the appellant’s claims lacked credibility. The Tribunal’s findings, in this regard, could not be characterised as being manifestly unreasonable or based on no evidence.

Appeal to this court

11    On 24 November 2011 the appellant filed a notice of appeal in this Court. That appeal contained the following grounds:

“1.    The Refugee Review Tribunal (RRT) made an error of law from a denial of natural justice in my case. I provided evidence and explained the specific situation about my case (eg. the bogus passport, the business contract). The evidence was negligently ignored by RRT and the FMC. I am under the serious risk of persecution, which was undervalued by the RRT.

2.    The RRT made an unfair statement that I am not a credible witness (para. 42, Decision record). The FMC did not consider my situation either. I fled from China and my whole family experienced fear and threat. There are overwhelming painful memories I can recall, and it is reasonable if any part mingled or modified. It is understandable that I may recall memory about details, which I tried to erase them from my memory. There have been persecutions happening to me and my family since the day we pursuing justice in China.”

12    Ground 1 was not argued before the Federal Magistrates Court.

13    As I understand ground 2 it seeks to challenge the adverse findings made by the Federal Magistrate in respect of grounds 2 and 3 of the appeal to the Court below.

14    The appellant appeared in person on the hearing of his appeal. He had the assistance of an interpreter.

15    The appellant said that he had not drafted his notice of appeal and that it had not been translated for him before he signed it. He said that it had been prepared by a friend. I had the grounds translated for him.

16    As to ground 1 he said that the Tribunal had ignored what he described as the agreement with the government relating to the taking over of the family pig farm, photos of the demolition of the farm and his use of a false Taiwanese passport to enter Australia.

17    The appellant’s claims relating to the demolition of the family pig farm and the inadequate compensation which he said had been offered by the local government prior to the demolition were both matters referred to in the statement he made in support of his application for a protection visa. So too was the fact that he had obtained a false Taiwanese passport and used it to enter Australia. These matters were specifically referred to in the Tribunal’s reasons for decision.

18    The Tribunal did not specifically refer to the written agreement pursuant to which compensation was paid or to photos which the appellant said depicted the demolition of the farm. Such a failure is not necessarily indicative of jurisdictional error. As Lander and North JJ said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]:

“[A]n error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim.”

19    There can be no doubt that the Tribunal in the present case fully understood the applicant’s claim. For reasons which it explained, it did not accept them. Its failure to mention the two items of evidence did not give rise to a denial of natural justice or any other ground of review.

20    As to ground 2, the appellant seeks to challenge an adverse credibility finding. The Tribunal explained in detail the differing accounts of relevant events which had been given by the appellant. A number of these discrepancies went to material matters. The adverse credibility findings were open to the Tribunal and were not amenable to judicial review: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 559.

21    The appellant sought to explain the discrepancies by reference to his psychological condition. There was, however, as the Federal Magistrate pointed out, no evidence to support his claims relating to memory loss.

22    The Federal Magistrate was correct in rejecting this ground of review.

23    In oral submissions the appellant said that he had been searching for additional evidence to support his case. He was attempting to obtain a statement from a person he said had been a witness to the altercation between himself and local government officials at the time of the demolition of the farm.

24    He produced a copy of a newspaper – The Singtao Daily – which was dated 24 November 2011. The newspaper contained an article which recorded that two residents of a village in China had been jailed, each for 15 days, following Court hearings which took place in May and June 2010. The persons concerned were named. The appellant was not one of them. The article also referred to the resistance of certain residents when government officials came to the village to demolish buildings.

25    This edition of the newspaper post-dated the decisions of the Tribunal and the Federal Magistrates Court. The material in the article is of dubious relevance. This Court is not in a position, on an appeal, to determine whether or not the material appearing in the article supports or does not support the merits of the appellant’s case. More importantly, for present purposes, is the fact that this material was not before the Tribunal at the time which it made its decision.

DISPOSITION

26    No appellable error on the part of the Federal Magistrates Court has been established.

27    The appeal must, therefore, be dismissed with costs.

Associate:

Dated:    27 February 2012