SZSQZ v Minister for Immigration

[2013] FCCA 1850

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1850

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to consider evidence – possible complaint of unreasonableness or illogicality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth)

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Applicant: SZSQZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 531 of 2013

Judgment of: Judge Nicholls

Hearing date: 21 October 2013

Date of Last Submission: 21 October 2013

Delivered at: Sydney

Delivered on: 21 October 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms L Weston

Solicitors for the Respondents: Minter Ellison

ORDERS

1. That the title of the first respondent be amended to read ‘Minister for Immigration and Border Protection’.

2. The application made on 18 March 2013 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 531 of 2013

SZSQZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), on 18 March 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 February 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. I also have before me today a bundle of relevant documents that the Minister has filed in these proceedings, the Court Book (“CB”).

Background 

1. The applicant is a national of Malaysia, of Chinese ethnicity (CB 30). She arrived in Australia on 6 May 2012 and made an application for a protection visa on 20 June 2012 (CB 1 to CB 31). Her claims to protection were initially set out in an attached statement. I note the statement is reproduced in Mandarin characters at CB 31, and in English translation at CB 30. The applicant 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 (CB 30).

2. Before the delegate, she further claimed to have been the victim of a robbery in Malaysia (CB 62). Following an interview with the applicant, the delegate refused the application. The delegate found that the applicant’s claims lacked the necessary connection to the Refugees Convention (CB 64). The delegate found further that the applicant did not meet the complementary protection criterion relevantly set out in the Act for a protection visa (CB 66).

The Tribunal

1. The applicant applied for review to the Tribunal on 5 September 2012 (CB 69 to CB 74). She attended a hearing before the Tribunal as is made clear by the Tribunal’s record, and from the Tribunal’s decision record itself (CB 98 and [25] at CB 112). The applicant also appointed a representative, a registered migration agent from Auburn, New South Wales to assist her. I note the agent did not attend the hearing (CB 98).

2. The only account of what occurred at the hearing that is before the Court, is that contained in the Tribunal’s decision record ([25] at CB 112 to [35] at CB 113). That account reveals that the applicant raised new additional claims before the Tribunal, including that her neighbour in Malaysia had been robbed, raped and killed ([26] at CB 112). Further, that after she herself had been robbed, she had reported that event to the police, and that her parents had in their possession a police report ([28] at CB 112).

3. The applicant also gave evidence to the Tribunal that she had attended an Anglican church after arrival in Australia and had been attending a Catholic church in Malaysia ([29] at CB 112 to [33] at CB 113).

4. The Tribunal found the applicant’s evidence in relation to her claims to be lacking in credibility and concluded that the applicant was not a reliable, credible or truthful witness.

5. The Minister has put written submissions before the Court where he has helpfully summarised details of the Tribunal’s findings (see at [12]). I adopt those submissions as background for the purposes of my judgment today:

   “Ultimately, the Tribunal found that the Applicant lacked credibility. In reaching its decision, the Tribunal made the following observations and findings:

   (a) The Tribunal did not accept that the claim of generalised rioting, violence, the kidnap of children and girls in car parks or murder had been occurring frequently, noting that there was no independent country information offered in support of such a claim, nor had the Tribunal been able to find such reports itself. Combined with the Applicant's lack of credibility the Tribunal rejected the claim and found such incidents had not occurred.

   (b) The Tribunal accepted there was institutionalised discrimination against ethnic Chinese in Malaysia, through affirmative action programs for indigenous Malays. However, the Tribunal was not satisfied that this had impacted upon the Applicant.

   (c) The Tribunal was not satisfied that the Applicant had been a victim of robbery, noting that the claim had not been raised in her written statement. The Tribunal considered that this finding was strengthened by the Applicant's failure to produce a police report, which she claimed her mother possessed.

   (d) The Tribunal was not satisfied that the Applicant's neighbour had been robbed, raped and murdered. The Tribunal noted that that this claim was raised for the first time at the hearing, despite its significance, and that no evidence had been provided in support of the claim.

   (e) The Tribunal did not accept the Applicant's claim raised at the hearing that she was a practising Catholic, given that she did not know the name of a Catholic Church near where she lived, she did not know that Catholic Churches are normally named for Saints, and she could not name any of the priests in Bintulu. The Tribunal noted that the Applicant was also unaware of a Catholic Church in Griffith and it did not accept that she had attended an Anglican Church in Australia, as claimed.

   (f) The Tribunal also did not accept that the Applicant's parents had sent her to Australia as claimed. It considered it not credible that the Applicant would be sent to a country with a high cost of living, where she knew no one and was unable to work, to relieve her family of financial burden.”

Application Before the Court

1. The application to the Court contains two grounds of review:

   “(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 being 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.”

2. The applicant appeared in person at the first Court date in this matter. She was assisted by an interpreter in the Mandarin language.  I attempted at that time to explain to the applicant that, on their face, her grounds lacked any legal merit. I urged her to take steps to speak to the lawyer who would be assigned to assist her with legal advice.  That is, a lawyer on the Court’s RRT Legal Advice Scheme. The applicant if there were no legal grounds, or legal arguments, that she could put to the Court, then the Court would probably not be able to assist her.

3. Before the Court today, the applicant, again, appeared in person.  She was again assisted by an interpreter in the Mandarin language. Ms L. Weston appeared for the Minister.

4. Despite the opportunity given to her by orders made at the first Court date, the applicant has put nothing before the Court beyond her initial application. When asked if there was anything that she wished to say the applicant replied that she had “nothing” to say.  After being pressed by the Court, the applicant explained that she did not speak to the panel lawyer because she did not receive any correspondence or other communication, from him or indeed from anyone else.

5. I note that at the first Court date, while the applicant gave her home address, she insisted that all correspondence be sent only to a post  office box address in Auburn, New South Wales, even though she claimed to be living in Griffith, NSW.  Nonetheless, I note from the Court’s file that correspondence from the Court’s Registry was sent to both addresses.

6. I have regard to the Registry’s correspondence sent to both the addresses that the applicant gave and I also have regard to a Certificate by the panel lawyer certifying that advice was given to the applicant by letter after a telephone call, and other electronic messages to the applicant elicited no reply from her.  I note that the applicant provided a mobile telephone number to the Court’s Registry.

7. I am satisfied that the applicant has been given every opportunity to advance her claims before the Court.  She told the Court today that the home address that she had previously provided at the time was not her home address, but was the address of “a friend”. Further, that the post office box was also not in her name but in a “friend’s name”.

8. That the applicant made, and insisted on, certain arrangements for receiving correspondence from the Court (and consequentially, the panel lawyer) and did not “receive” any correspondence directed to these addresses as a result, remains a matter for her.  I note, in any event, that any failure in obtaining legal advice is not in itself a denial of procedural fairness to the applicant as there is no entitlement to such advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

Consideration

1. The grounds of the application before the Court lack any substance or merit.  I note that the Minister, in his submissions, has generously sought to cast a wide net over what may have been meant or implied by these grounds. But, even with that generous view of the applicant’s grounds, no legal error is revealed in the Tribunal’s decision record. 

2. Ground one takes issue with the Tribunal’s finding that the applicant would not be persecuted in Malaysia. In light of the Tribunal’s finding that ethnic Chinese-Malaysians may be subject to discrimination ([41] at CB 114), the Minister submits that by this the applicant seeks to argue that the Tribunal’s conclusion was illogical in these circumstances.

3. It is the case that the Tribunal did have regard to what it described as “country information”, which said that there is “institutionalised discrimination” in Malaysia against ethnic Chinese ([41] at CB 114) and that this is derived, or arises, as a result of affirmative action programs for indigenous Malays. 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 ([41] at CB 114).

4. That finding was open to the Tribunal on what was before it.  The Minister’s submissions refer to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”), in particular, the joint judgment of Crennan and Bell JJ (see also the judgment of Heydon J in the same case). The Minister’s position is that there is no error of illogicality in this case of the type considered in SZMDS and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (per Rares J and McKerracher J). With respect, I can only agree.

5. 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 (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

6. As I said earlier, the Tribunal’s relevant findings in this regard were reasonably open to it on what was before it, and for which it gave reasons. No illogicality, or for that matter, irrationality or even unreasonableness, as understood in light of relevant authorities, is evident in this case.

7. Ground two of the application asserts that the applicant is a “faithful Catholic”, and takes issue with the Tribunal’s finding that she was not a practicing Catholic in Malaysia. The applicant says it was “not fair” of the Tribunal to reach its finding based only on her inability to give the name of the church and its pastor. There are a number of elements in answer to the applicant’s complaints in ground two.

8. First, the Tribunal’s findings in relation to the applicant’s claimed involvement with the Catholic Church were not limited to her inability to name the church or its pastor, as she claims. I note also that the Tribunal’s findings in this regard, even just confined to those two matters, were probative of the evidence that was before it.

9. The applicant claimed to be a practicing Catholic in Malaysia. A central part of the Tribunal’s relevant reasoning, and on which its findings were also, in part, based, was that the applicant, despite claiming to be a practicing Catholic, was unable to identify the Catholic churches in her home district, nor to give names of relevant priests. Noting, as it did, that it is common, or the “norm” for Catholic clergy to be called “priests”, and by implication, that “pastors” (as used by the applicant) are normally clergy in non-Catholic denominations of the Christian Church. The failure of the applicant to give the “correct” name of the priests of the church to which she claimed to belong was a relevant factor for the Tribunal to take into account. As was, indeed, her claimed ignorance about the fact that normally Catholic churches are usually named after saints. 

10. Second, despite her claim to be a practising Catholic, the applicant said that in Griffith, where she moved after arrival in Australia, she attended an Anglican church which the Tribunal found was “close” to a Catholic Church.  In fact, the Tribunal’s finding was that it was very close ([46] at CB 114)

    “She was also unaware of the existence of a Catholic Church in Griffith, even though it was very close to the Anglican one that she claimed she attended…”

11. Third, the Tribunal found that despite claiming a close relationship with another parishioner, the applicant provided no letters of support from any parishioner, or clergy, at the church that she claimed to have attended ([46] at Cb114). In context, the Tribunal’s reasoning here was not that it did not believe the applicant given the absence of corroboration, but rather that its relevant finding was ([46] at CB 114):

    “…strengthened by the fact that, despite this relationship with the Church and her friend who provided her lodging and trusted he with her child(ren) she did not provide any letters of support from any parishioners or clergy for an important hearing.”

12. 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 (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). 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.

13. 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 (see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108). 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.

14. Sixth, the applicant complains that the Tribunal’s finding in this regard was “unfair”. As the Minister submits, the obligation of the Tribunal is not necessarily to make the “correct” or, in that sense, the “fair” decision, but to provide the applicant with a fair hearing.  That is, to be fair in the procedures that it adopts in the conduct of the review.  The Minister here relies on these principles and what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. I also note what was also said by the High Court in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.

15. In the current case the applicant was invited to a hearing before the Tribunal and given the opportunity to address the issues determinative of the review. No difficulties with the adequacy of the level of interpretation at the hearing provided by the Tribunal are apparent. Nor, it must be said, does the applicant make any complaint in this regard before the Court. The Tribunal’s account of the hearing, which the applicant has not challenged before the Court, even by way of submission, let alone by any evidence to the contrary, reveals that the Tribunal discussed the applicant’s claimed church attendance, both in Malaysia and in Australia.  No error is revealed in this regard. 

16. Seventh, to the extent also that the applicant asserts some unfairness on the part of the Tribunal, I note for the sake of completeness that there is nothing to indicate that the Tribunal acted in “bad faith” or that any apprehension of bias arises in the circumstances (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. Ground two is also not made out.

17. As I noted earlier, the applicant put nothing before the Court in support of the grounds of her application or to even explain them. However, I cannot otherwise see any jurisdictional error in the Tribunal’s decision record. The applicant has had a fair opportunity before this Court to present her case. She has had a reasonable period of time since the first Court date to present some coherent assertion of legal error on the part of the Tribunal and was referred for legal advice for that purpose. However, it is quite clear by her own action, or inaction, that she has been unable to progress, or prosecute, her case beyond what was in the grounds of the application as initially stated.

Conclusion

1. As no legal error is apparent from the grounds as asserted before the Court, nor is any legal error otherwise discernible on what is before the Court, it is appropriate that the application be dismissed.  I will make an order accordingly.

1. It is also appropriate that an order for costs be made in the usual way as sought by the Minister.  Nothing has been put to the Court to argue against the making of any such order.  As to the amount, I note that it is below the amount set out in the relevant schedule to the Federal Circuit Court Rules 2001 (Cth) of this Court applicable to matters of this type that have reached a final hearing. In any event, I am otherwise satisfied, having regard to the work that has been done by the Minister’s solicitors in this matter, that the amount sought is a reasonable amount.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  11 November 2013