SZSPT v MIBP

Case [2014] FCA 1245

FEDERAL COURT OF AUSTRALIA

SZSPT v Minister for Immigration and Border Protection

[2014] FCA 1245

Citation: SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
Appeal from: SZSPT v Minister for Immigration and Border Protection [2014] FCA [2014] FCCA 1388
Parties: SZSPT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number: NSD 737 of 2014
Judge: RARES J
Date of judgment: 3 November 2014
Catchwords: MIGRATION – whether the Tribunal failed to consider the appellant’s claims
Legislation: Migration Act 1958 (Cth) s 36(2B)(c)
Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied
Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 applied
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 referred to
Coulton v Holcombe (1986) 162 CLR 1 applied
SZSPT v Minister for Immigration and Border Protection [2014] FCCA 1388 referred to
University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481 approved
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 distinguished
Date of hearing: 3 November 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 25
Counsel for the Appellant: Mr L Karp
Solicitor for the Appellant: Rasan T Selliah & Associates
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 737 of 2014
BETWEEN:

SZSPT
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

3 NOVEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs.

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 737 of 2014
BETWEEN:

SZSPT
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RARES J

DATE:

3 NOVEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

  1. This is an appeal from a decision of the Federal Circuit Court refusing the appellant Constitutional writ relief on the one basis that he advanced, namely, that the Refugee Review Tribunal misconstrued the provisions of s 36(2B)(c) of the Migration Act 1958 (Cth): SZSPT v Minister for Immigration and Border Protection [2014] FCCA 1388.

    Background

  2. The basis of the argument below and one of the two grounds pressed in this appeal was that the Tribunal had committed a jurisdictional error in rejecting the appellant’s claim that there was a real risk that he would suffer significant harm, within the meaning of s 36(2)(aa), if he were removed from Australia to Sri Lanka, because he was a member of the particular social group of failed Tamil asylum-seekers who had left Sri Lanka illegally.

  3. The appellant contended that the Tribunal had erred in holding…

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Details
AGLC
SZSPT v MIBP [2014] FCA 1245
Case
[2014] FCA 1245
Decision Date

CaseChat Overview and Summary

In the case of SZSPT v MIBP, the appellant challenged the decision of the Tribunal, arguing that it had failed to properly consider certain aspects of Sri Lankan law in determining whether he was eligible for complementary protection. The Federal Court was tasked with reviewing the Tribunal's decision to ensure it was legally sound. The central issue before the court was whether the Tribunal had erred in its consideration of the appellant's claims under the complementary protection provisions, particularly whether it had correctly interpreted the exception in section 36(2B)(c) of the Migration Act 1958 (Cth).

The court examined the appellant's arguments that the Tribunal had not adequately assessed the appropriateness and adaptation of Sri Lankan law in the context of his individual circumstances. The appellant contended that the Tribunal should have recognised a distinction between the risk faced by the general population and the specific risk he faced due to his illegal departure from Sri Lanka. However, the court found that although the Tribunal did not explicitly evaluate the appropriateness and adaptation of the Sri Lankan law, it had implicitly considered the appellant's claims by finding that there was no mistreatment of returned Tamil asylum-seekers who had left Sri Lanka illegally. This finding effectively negated the appellant's claim that he faced a unique and heightened risk of significant harm. The court concluded that the Tribunal's decision was legally sound and that the appeal had no prospect of success.

The court rejected the appellant's argument that the Tribunal had misapplied the exception in section 36(2B)(c). It held that the exception was intended to exclude risks faced by the general population from being considered as significant harm for the purposes of complementary protection. Since the risk of facing legal penalties for breaking the law was a general risk faced by all citizens of Sri Lanka, it did not constitute a unique risk for the appellant. Therefore, the court found that the Tribunal had correctly applied the exception and dismissed the appeal. The court also ordered that the appellant pay the costs of the first respondent, MIBP.

In conclusion, the court dismissed the appeal and ordered the appellant to pay the costs of the respondent. The decision underscores the importance of ensuring that the Tribunal's assessment of complementary protection claims is legally robust and that any exceptions under the Migration Act are correctly interpreted.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although the Tribunal did not, in terms, engage in an evaluation of whether the Sri Lankan law complained of was appropriate and adapted to a legitimate end, it did find that there was no mistreatment of returned Tamil asylum-seekers who had left Sri Lanka illegally. In those circumstances, it is difficult to see how the new ground would have any prospect of success. I reject it.Conclusion For these reasons, the appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

The appellant sought to articulate, in a number of ways, that in order to be applicable, the exception in s 36(2B)(c) had to arise in a way that was different from the facts of this case, where it is was common ground that the appellant was a Tamil whose claim for asylum had failed, that he left Sri Lanka illegally and that he became subject to the ordinary processes of Sri Lankan criminal law. He asserted that the risk that he would be punished by imprisonment in circumstances that the Tribunal described as harsh, and where the Sri Lankan Government’s human rights record was extremely poor, meant that he was differentially at risk of significant harm that was not faced by the population generally, who were not in the same position; i.e. the population generally had not breached the law of general application by leaving Sri Lanka illegally. He argued that the exception in s 36(2B)(c) covered such things as disasters, involving a general breakdown of lawful authority, war, natural disasters and the like, and that it did not cover “plainly…situations where individuals may in the future act in a way that exposes them to risk”. He argued that the error that the trial judge made was to say that the risk applied to any person who broke the law and that his Honour failed to appreciate that, in order to bring oneself within that criterion, one had to act in a particular way. He argued that his Honour had added a gloss to the plain words of the legislation in error.Consideration – s 36(2B)(c) I am unable to understand that argument. The scheme of the complementary protection ground in s 36(2)(aa) is that it required the Minister to have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to, relevantly, Sri Lanka, there was a real risk that he would suffer significant harm. However, if the Minister were also satisfied within the meaning of s 36(2B)(c), that that risk was one faced by the population of the country generally and not faced by the appellant personally, then the risk was deemed not to amount to a real risk of “significant harm” for the purposes of s 36(2)(aa). In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged. Here, the risk faced by the population of Sri Lanka generally was that if its citizens broke the law, they became liable to such penalties as the law applied to the relevant contravention. Every citizen who broke such a law necessarily faced a risk personally that the consequences of such an infraction would be applied to him or her by law. But that was not any different to a risk faced by the population of the country generally. Ordinarily, citizens or persons present in any nation state are bound by the system of law applied by that state, and become subject to the penalties entailed by that law when they break it.