SZTBD v Minister for Immigration - [2013] FCCA 2182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBD v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2182

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to take into account relevant consideration – whether the Tribunal assessed the applicant’s claims in relation to complementary protection – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 46A, 91R, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZSFK v Minister for Immigration and Anor [2013] FCCA 733
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
QAAR v Refugee Review Tribunal [2005] FCA 1818
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 1088

Applicant:

SZTBD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1591 of 2013

Judgment of:

Judge Nicholls

Hearing date:

6 November 2013

Date of Last Submission:

6 November 2013

Delivered at:

Sydney

Delivered on:

17 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitors for the Applicant:

Success Lawyers and Barristers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The title of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application made on 12 July 2013 and amended on 17 September 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1591 of 2013

SZTBD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 July 2013 and amended on 17 September 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made 7 June 2013, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

Background

The applicant is a national of Sri Lanka (Court Book – “CB” – CB 3). He arrived in Australia on 28 June 2012 and was classified as an “irregular maritime arrival” (CB 38). The Minister acted pursuant to s.46A(2) of the Act, and the applicant was able to make a valid application for a protection visa (CB 17). He did so on 15 November 2012 (CB 20 to CB 105) with the assistance of a firm of lawyers and migration agents (CB 20).
The applicant’s claims to protection were initially set out in his “Statutory Declaration” attached to his application (CB 86 to CB 88). Essentially, the applicant claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity, and because he would be suspected of being a former member or supporter of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2182
Decision Date: 17 December 2013

CaseChat Overview and Summary

This matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia. The applicant, SZTBD, sought judicial review of a decision made by the Minister for Immigration, which concerned the applicant's claims of future fears of abduction. The core of the dispute revolved around whether the Tribunal had adequately considered the applicant's claims and whether the applicant had been afforded procedural fairness.

The legal issues before the Court were twofold. Firstly, whether the Tribunal had failed to consider the applicant's claims regarding future fears of abduction, including both general and specific abduction matters. Secondly, whether the Tribunal had denied the applicant procedural fairness by failing to provide an opportunity to address these claims.

The Court found that the Tribunal's decision, when read in context, plainly encompassed both the general and specific abduction matters claimed by the applicant. The Court noted that the applicant's assertion that the Tribunal only considered the claim from the perspective of "mixed ethnicity" could not be substantiated. Regarding the procedural fairness complaint, the Court observed that the applicant, who was legally represented, had not provided evidence, such as a hearing transcript, to support the assertion that he was denied an opportunity to address the claims. The Tribunal's record indicated that the applicant was given opportunities to elaborate on his claims, including the "incidents of 2008" and the claimed abduction. The Court concluded that the premise underlying the procedural fairness complaint was not made out, as the Tribunal had identified and dealt with the abduction claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s “conclusion” at [49] (at CB 288) under the heading of “Future fears of abduction” and the reference there to “…the Tribunal is not satisfied on evidence before it that the applicant has or will have in the reasonably foreseeable future…” (emphasis added), when read in context plainly encompasses both the “general” and “2008 specific” abduction matters claimed by the applicant. The applicant’s claim in submissions (see [25] of the applicant’s written submissions) that the Tribunal only considered this claim from the perspective of “mixed ethnicity” cannot be substantiated. The second complaint in the ground, as stated above, asserts a denial of procedural fairness. The applicant claimed that the Tribunal denied the applicant the opportunity to address this claim. If such a failure was said to have occurred at the hearing then the applicant (who was legally represented before the Court) has not provided any evidence to the Court, for example by way of a transcript of the hearing, to support this assertion. What is before the Court, is the Tribunal’s report of what occurred at the hearing as variously referred to in its decision record. In relation to the “incidents of 2008” and the claimed abduction, the Tribunal’s report reveals that the applicant was given the opportunity to comment (for example at [20] at CB 281, “… [f]urther, when asked to elaborate on the questions he was asked when he was taken away by these claimed people…”). The Tribunal, relevantly, had regard to the applicant’s personal circumstances as put by the applicant himself (see at [9] at CB 278) and directly addressed the applicant’s claim ([26] at CB 283):“…that the applicant’s Tamil race creates and/or compounds his risk profile and gives him an imputed political opinion in support of or linked to the LTTE and opposed to the Sri Lankan authorities, which gives rise to a real chance of serious harm in the reasonably foreseeable future…” The reference also in that paragraph to the applicant’s representative’s “submission made in support” ([26] at CB 283) make it clear this included the references in those submissions to, amongst other fears, the claim of a fear of harm in the future of abduction because he is a Tamil male. The applicant was given the opportunity to present his claims in this regard. The matters of his ethnicity, and consequent fears because of this, were, as the Tribunal makes plain, “…necessarily… informed also by what is accepted of the applicant’s own circumstances ([27] at CB 283). These “personal” circumstances were discussed at the hearing ([9] at CB 278) and ultimately were not in dispute. In any event, when the wording of the ground is understood in light of the applicant’s written submissions (see [28] of the applicant’s written submissions), the complaint of a denial of procedural fairness appears to be based, and predicated, on the proposition that the applicant was denied an opportunity to address this matter because the Tribunal failed to identify and deal with the abduction claim. For the reasons set out above, it did not fail to do so. The premise underlying the procedural fairness complaint is therefore not made out.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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