SZSPT v Minister for Immigration and Border Protection

[2015] HCASL 114

SZSPT

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 114
S296/2014

1. The applicant is a citizen of Sri Lanka, of Tamil ethnicity.  He applied for a Protection (Class XA) visa but his application was refused by a delegate of the first respondent.  That decision was affirmed by the Refugee Review Tribunal ("the Tribunal").  The Tribunal accepted that if the applicant returned to Sri Lanka he was at risk of being punished for leaving Sri Lanka illegally, but found that this risk did not engage Australia's Refugee Convention or complementary protection obligations because it was a risk faced by all persons who leave Sri Lanka illegally.

2. The Federal Circuit Court of Australia (Raphael J) dismissed the applicant's application for judicial review of the Tribunal's decision. The applicant had contended that the Tribunal erred by misconstruing s 36(2B)(c) of the Migration Act 1958 (Cth) as the risk of being punished for illegal behaviour is not a risk faced by the population of Sri Lanka generally because not all Sri Lankans break the law. Raphael J rejected that contention and dismissed the application for review.

3. On 3 November 2014, the Federal Court of Australia (Rares J) dismissed the applicant's appeal. Rares J held that the natural and ordinary meaning of s 36(2B)(c) is that if the relevant decision‑maker is satisfied that the given risk is one faced by the population of a country generally, as opposed to the person claiming complementary protection by reason of his or her exposure to the given risk, the complementary protection obligations are deemed not to be engaged. His Honour found that, in the present case, the risk of being punished for illegal behaviour was one which applied, not just to the applicant or Tamils, but to the population of Sri Lanka generally.

4. The applicant seeks special leave to appeal to this Court.  He requires an extension of time to do so.  There is no reason to doubt the decisions of the Courts below.  An appeal would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  It would therefore be futile to grant the extension of time.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application, with costs.

S.M. Kiefel
18 June 2015 P.A. Keane