SZTCH v Minister for Immigration

[2013] FCCA 1895

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1895

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

GJ & Ors v Secretary of State for the Home Department [2013] UKUT 00319 (IAC)

Minister for Immigration v SZQPA [2012] FCA 1025
SZQPA v Minister for Immigration & Anor [2012] FMCA 123

Applicant: SZTCH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1680 of 2013

Judgment of: Judge Driver

Hearing date: 18 November 2013

Delivered at: Sydney

Delivered on: 18 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Stone

DLA Piper

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1680 of 2013

SZTCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 26 June 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant him a protection visa.  The applicant is from Sri Lanka and had made claims of persecution based upon a fear of imputed political opinion as a Liberation Tigers of Tamil Eelam (LTTE) sympathiser.

2. The applicant applied to the Minister’s Department for a protection visa on 15 November 2012.  The delegate refused that application on 4 April 2013.  The applicant sought review of that decision before the Tribunal.  He was invited to a hearing before the Tribunal and attended on 6 June 2013.  He was represented by lawyers who made a lengthy submission on his behalf.  The Tribunal, in its decision, discusses what occurred at the hearing.  

3. It is apparent that the Tribunal doubted at the hearing the applicant’s claims that the Sri Lankan authorities would have an interest in him because of any imputed political opinion.  The Tribunal had regard to country information about the applicant’s local area and the circumstances of returnees.  An issue in the applicant’s case was that he had left Sri Lanka illegally.  Another issue was the applicant’s concern that he would be identified on return as a failed asylum seeker. 

4. In its findings and reasons, the Tribunal rejected the applicant’s factual claims which supported his assertion that he would be of adverse interest to the Sri Lankan authorities.  The Tribunal considered whether the applicant would be of adverse interest to the authorities as a failed asylum seeker.  The Tribunal concluded that he would not.

5. At [62] of its reasons[1], the Tribunal accepted that people who exit Sri Lanka illegally may be questioned, detained for a relatively short period and then bailed.  It is apparent, although not explicitly stated, that the Tribunal regarded this as a law of general application which would not be applied in a discriminatory fashion.  At [63][2], the Tribunal also accepted the likelihood that after return the applicant might be visited by the authorities.  Again, the Tribunal did not accept that the applicant would come to serious harm for that reason. 

   [1] court book, page 251

   [2] court book, page 251

6. The Tribunal concluded that the applicant did not qualify for protection in Australia as a refugee.  Neither did the Tribunal accept that the applicant qualified for complementary protection.  This was based, in part, on the Tribunal’s rejection of the applicant’s factual claims of past harm and, in part, on the Tribunal’s reasoning that his likely short term detention would not amount to significant harm. 

7. The Tribunal was not satisfied that the applicant is a person in respect of whom in Australia has protection obligations under s.36(2) of the Migration Act 1958 (Cth).

8. These proceedings began with a show cause application filed on 23 July 2013.  There are two grounds in that application:

   1. The RRT member made serious errors in considering my evidence and making the decision.

   2. The RRT did not give me an opportunity to respond to negative information which it intended to use to refuse my application.

9. The application is augmented and explained by means of an affidavit filed on 2 October 2013.  The relevant assertions in that affidavit are in paragraphs 3 and 4:

   3. Two of my main Convention claims that being a Tamil returning from western country as a failed asylum seeker and a being a Tamil who departed Sri Lanka unlawfully were not dealt by the RRT and correct test was not applied in dealing with these elements of my Convention claims. ‘it is likely that he will then be held on reman until bailed.’

   4. The way the RRT has deal with the complementary protection issue is not sufficient.  It does not automatically follow that because a person does not satisfy the requirements for a protection visa on Convention grounds that they also will fail on complementary protection grounds.

10. The applicant asserted in that affidavit that he would submit a copy of a transcript of the Tribunal hearing before this Court hearing.  He has not done so, although I afforded him that opportunity in orders I made on 14 August 2013.  The applicant has also had the benefit of advice under the Minister’s panel advice scheme.  None of the grounds of review advanced by the applicant requires resort to an examination of what occurred at the Tribunal hearing.  Nevertheless, the applicant, as I understood it, sought an adjournment of today’s hearing on the basis that he had requested a copy of the sound recording of the Tribunal hearing from the Tribunal and had not received it.

11. I accepted as an exhibit correspondence between the Minister’s solicitors and the applicant’s panel adviser[3].  I accept from that that the panel adviser was sent the audio recording of the Tribunal hearing by the Minister’s solicitors.  Further, the information sheet which was read to the applicant on 14 August 2013 makes clear that the applicant could have requested the audio recording from the Minister’s solicitors.  I declined to adjourned today’s hearing. 

    [3] Exhibit R1

12. I also have before me as evidence the court book, filed on 3 September 2013. 

13. The applicant’s principal concern is that he will be harmed while in detention by the Sri Lankan authorities.  He is also concerned that he will remain at risk of harm upon release.  The Tribunal accepted that the applicant would be detained for a short time, having left the country illegally.  The applicant referred to previous authority where I had found fault in a tribunal decision which failed to address the applicant’s risk of harm while being interrogated in detention[4].

    [4] SZQPA v Minister for Immigration & Anor [2012] FMCA 123; Minister for Immigration v SZQPA [2012] FCA 1025

14. The factual situation here is markedly different.  The applicant in that case was plainly a member of a class of persons likely to be of adverse interest to the Sri Lankan authorities.  While the applicant before the Tribunal sought to place himself in such a class, the Tribunal rejected his factual claims on credibility grounds.  It is also clear that circumstances in Sri Lanka are evolving over time.  That was established, in my view, comprehensively by the UK Immigration and Asylum Chamber of the Upper Tribunal in GJ & Ors v Secretary of State for the Home Department[5].  The Tribunal decision is, in my view, consistent with that authority.

    [5] [2013] UKUT 00319 (IAC)

15. It was open to the Tribunal to conclude that the applicant did not have a well-founded fear of harm from the Sri Lankan authorities whilst in detention on return there.  I see no error in the Tribunal’s approach, either in relation to the risk of harm as a claimed refugee or in relation to the test for complementary protection. 

16. The applicant has failed to advance an arguable case of jurisdictional error by the Tribunal.  Noting that he is self-represented, I have myself considered whether any arguable claim of error and such error might be advanced.  I cannot see any.  

17. I have concluded that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and I will so order.

18. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the amount of $2,800.  The applicant opposed an order for costs, both based on the merits of his application and, as I understand it, on the public interest element inherent within it.  Costs should follow the event in this case.  There is some public interest component to any judicial review application in this jurisdiction, but the proceedings were instituted in order to obtain a private benefit.  I am satisfied that costs in the amount sought were reasonably and properly incurred on behalf of the Minister. 

19. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,800.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 28 November 2013