FEDERAL COURT OF AUSTRALIA SZVTH v Minister for Immigration and Border Protection [2019] FCA 1381 Appeal from: SZVTH v Minister for Immigration & Anor [2017] FCCA 1716 File number: NSD 1353 of 2017 Judge: RANGIAH J Date of judgment: 22 August 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – appellant seeks merits review – appeal dismissed Legislation: Migration Act 1994 (Cth) ss 36(2)(a), 36(2)(aa) and 438 Date of hearing: 22 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms C Juarez of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 1353 of 2017 BETWEEN: SZVTH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 22 AUGUST 2019 THE COURT ORDERS THAT: 1. The appeal is 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 (DELIVERED EX TEMPORE AND REVISED) RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 24 July 2017. The primary judge dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent to refuse the appellant a protection visa. 2 The appellant is a citizen of China who arrived in Australia on 7 April 2010 on a tourist visa. On 21 June 2013, he lodged his application for a protection visa. That application was rejected, and he applied for review to the Tribunal. 3 Before the Tribunal, the appellant claimed to fear persecution in China on the basis of his Roman Catholic religion. The Tribunal accepted that the appellant is genuinely a Roman Catholic. The Tribunal then continued: 78. Having found that the applicant is now practicing as a genuine Catholic I am satisfied that, if returned to China, he would attend underground Roman Catholic gatherings or activities in his capacity as a lay parishioner, as he has done in Australia. However, having regard not only to the country information referred to above in relation to ordinary Catholic parishioners in Fujian but also to my finding that neither the applicant nor his family have previously been the subject of any adverse attention by authorities in China, I am satisfied that the chance of any harm whosoever to the applicant by reason of his religion as a Catholic is remote. Consequently, I find there is no real chance that if he returns to China the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention. 79. Furthermore, I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm. 4 Accordingly, the Tribunal found that the appellant did not satisfy the criteria in ss 36(2)(a) and (aa) of the Migration Act 1994 (Cth) (the Act) and affirmed the decision under review. 5 The appellant then applied to the Federal Circuit Court for review of the Tribunal's decision. The primary judge observed that the substance of the appellant's oral submissions was that he should have been believed and he took issue with the Tribunal's understanding of the practice of Catholicism in China. His Honour considered that the appellant's oral submissions merely invited the Court to engage in impermissible merits review. The primary judge then considered the grounds set out in the originating application. His Honour concluded that the grounds did not identify or make out jurisdictional error. 6 The primary judge also noted that the Minister had drawn the Court's attention to the existence of documents the subject of a certificate under s 438 of the Act that ought to have been disclosed. However, his Honour was not satisfied that the appellant had been denied procedural fairness because disclosure of the documents could not possibly have impacted upon the outcome of the decision. Accordingly, the primary judge dismissed the application. 7 The appellant's grounds of appeal are as follows: 1. RRT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal which I believe it is a legal error 2. I am a Chinese citizen and Christian who will be facing persecution by Chinese government due to my believes 3. I cannot go back to China since I am very scared to be sentenced and discriminated. 4. RRT member and the Federal court did not well consider of my fears and persecution if return to my home country. (Errors in the original.) 8 The appellant is self-represented in the appeal. He appeared with the assistance of an interpreter. He has not filed any written submissions. His oral submissions were confined to saying that he will be persecuted if he is required to return to China. 9 As to the first and fourth of the appellant's grounds of appeal, there is no evidence from which it can be inferred that the Tribunal failed to consider the appellant's "explanation and supporting documents" or his fears of persecution. The Tribunal's decision is detailed and demonstrates consideration of the appellant's claims and the material before the Tribunal. The judgment of the primary judge also demonstrates that his Honour gave consideration to the grounds of appeal and the material before the Court. Accordingly, the first and fourth grounds cannot succeed. 10 The appellant's second and third grounds, as well as his oral submissions, simply assert that the Tribunal ought to have found that he will face persecution due to his beliefs if he is required to return to China. Those grounds do not assert or identify any jurisdictional error on the part of the Tribunal, nor do they assert or identify any error on the part of the Federal Circuit Court. Those grounds cannot succeed. 11 For the reasons I have given, the appeal must be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 29 August 2019