FEDERAL COURT OF AUSTRALIA SZSQZ v Minister for Immigration and Border Protection [2014] FCA 49 Citation: SZSQZ v Minister for Immigration and Border Protection [2014] FCA 49 Appeal from: SZSQZ v Minister for Immigration [2013] FCCA 1850 Parties: SZSQZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 2284 of 2013 Judge: JAGOT J Date of judgment: 17 February 2014 Catchwords: MIGRATION Cases cited: SZSQZ v Minister for Immigration [2013] FCCA 1850 Date of hearing: 10 February 2014 Date of last submissions: 10 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: B D Kaplan Solicitor for the First Respondent: J Nand of Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2284 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSQZ Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 17 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2284 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSQZ Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 17 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT The appeal 1 This is an appeal from a decision of the Federal Circuit Court of Australia (SZSQZ v Minister for Immigration [2013] FCCA 1850). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (RRT) which had affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant to the appellant a protection visa. 2 The procedural and factual history of the matter is set out in the reasons of the primary judge (at [3]-[17]). The appellant is a national of Malaysia of Chinese ethnicity. She arrived in Australia on 6 May 2012 and made an application for a protection visa on 20 June 2012. The Minister's delegate refused the appellant's application and, on 5 September 2012, the appellant applied for review of the delegate's decision by the RRT. 3 In her initial visa application, the appellant claimed to fear harm in Malaysia because of her Chinese ethnicity and because of violence which she said had occurred around the time of general elections, prior to her departing for Australia. She also claimed, before the delegate, that she had been the victim of a robbery in Malaysia. On review before the RRT, the appellant raised for the first time further claims, including that her neighbour in Malaysia had been robbed, raped and killed and that after the appellant herself had been robbed she had reported the event to the police. On 13 February 2013, the RRT affirmed the delegate's decision, finding that the appellant's evidence regarding her claims lacked credibility and that there was otherwise a lack of supporting information: RRT Statement of Decision and Reasons at [39]-[50]. 4 On 18 March 2013, the appellant lodged an application with the Federal Circuit Court seeking judicial review of the RRT's decision. The appellant's grounds of review before the primary judge ([10]) were: (1) Living in Malaysia as a Malaysian Chinese is very hard as everyone knows. There are many discriminations and mistreatments against us. RRT accepted the fact that Malaysian Chinese were discriminated and they shall accept my claim as been persecuted in Malaysia. (2) I am a faithful Catholic. RRT could not deny my involvement in Catholic based only on the fact that I could not tell the name of the church and its pastor. This was unfair. 5 The appellant put nothing before the Court in support of her application beyond the initial application itself ([13]). The primary judge held that the grounds of the appellant's application lacked any substance or merit. His Honour characterised ground one as the appellant taking issue with the RRT's finding that she would not be persecuted in Malaysia despite it having found that ethnic Chinese-Malaysians may be subject to discrimination: [19]. His Honour dealt with this ground as an assertion of illogical reasoning. The primary judge held that it was open to the RRT, on the material before it, to find that the appellant would not be persecuted in Malaysia ([20]-[22]): 20. … However, as it is required to do, the Tribunal had regard to the applicant's actual circumstances, as presented in her own evidence, and found that this circumstance of general institutionalised discrimination had not impacted on the applicant, given her own evidence about her study, education and work opportunities in Malaysia. … 22. The applicant's complaint, when understood in light of the evidence that she gave to the Tribunal and indeed in the absence of anything that she was able to say to the Court today to explain that evidence to the Tribunal, really seeks this Court to engage in impermissible merits review. (Citation omitted) 6 In respect of ground two, the primary judge found it to lack any substance or merit for a number of reasons which are set out at [25]-[33]. His Honour found that the bases for the RRT's findings were not merely that the appellant was unable to name a church or its pastor, although this was itself probative, but also that the appellant did not know that most Catholic churches are named after saints and, despite claiming to be a practising Catholic, was unaware of a Catholic church which was "very close" to the Anglican church which she claimed to have attended after moving to Australia. The appellant also had provided no letters of support from any parishioner or clergy at the Anglican church, despite claiming to have a close relationship with another parishioner. His Honour said (at [29]-[30]): 29. Fourth, as the Minister, in my view, correctly submits, the Tribunal did not have to uncritically accept all or any of what the applicant said to it. In relation to the matters of the applicant's claimed religious practice, the Tribunal made findings which were reasonably open to it on what was before it, and for which it gave reasons. 30. Fifth, I note, and agree with the Minister's submissions, that this is not a case where the Tribunal acted as what has been described as the arbiter of religious doctrine. While it appears from the Tribunal's account of the hearing that it did not explore matters of doctrine, as such, with the applicant, its discussion about the importance of saints and the names and locations of churches can reasonably be seen as exploring the level of the applicant's knowledge of the Catholic religion. Again, its findings and conclusion were open to the Tribunal. 7 The primary judge also found that there was no failure by the RRT to accord procedural fairness or anything to indicate that the RRT acted in "bad faith" or that there was any apprehension of bias. Consideration 8 The appellant's grounds of appeal in this Court are: 1. I will experience fear and threat. RRT did not consider my situation carefully. RRT unvalued my situation. 2. FMC did not have support evidences and made an illogically conclusion. 9 Both grounds lack substance. Ground one does not identify any error, legal or otherwise, on the part of the primary judge. In any event, as the primary judge found, the RRT made its decision based on factual findings which were reasonably open to it. 10 Ground two, although asserting error on the part of the primary judge, is unsustainable. It is plain that his Honour had regard to the material before him, including in particular the decision record of the RRT. There is nothing to suggest that the RRT's record of the hearing before it was inaccurate or incomplete. The appellant has not pointed to any material upon which his Honour is said to have failed to rely or any particular respect in which his Honour's reasoning is said to have been illogical. This ground should also be rejected. 11 When invited to make oral submissions in support of the appeal the appellant said only that she had been unable to locate the documents relevant to her police report as it happened too long ago and that she could not say who her priest had been. The appellant did not elaborate upon these statements when invited to do so. They do not advance her claims of jurisdictional error by the RRT or the primary judge. Conclusion 12 For the reasons given, the appeal must be dismissed. The appellant should pay the first respondent's costs of the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 14 February 2014