SZTFL v Minister for Immigration and Border Protection

[2015] FCA 1323

FEDERAL COURT OF AUSTRALIA

SZTFL v Minister for Immigration and Border Protection [2015] FCA 1323

Citation:	SZTFL v Minister for Immigration and Border Protection [2015] FCA 1323
Appeal from:	SZTFL v Minister for Immigration & Anor [2014] FCCA 1620
Parties:	SZTFL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 868 of 2014
Judge:	JESSUP J
Date of judgment:	25 November 2015
Catchwords:	MIGRATION – Appeal – Jurisdictional error – Whether reasons ultimately disclosed were canvassed with appellant – Whether primary Judge should have found Tribunal did not correctly deal with appellant’s claim – Whether primary Judge should have found Tribunal did not correctly apply the statutory criteria in determining the complementary protection claim – No error found
Legislation:	Constitution s 75(v) Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 424A, 425
Cases cited:	Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467 SZBELv Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 WZAPN v The Minister for Immigration and Border Protection (2014) 229 FCR 477
Date of hearing:	25 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr H P T Bevan
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 868 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTFL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	25 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent Minister.

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 868 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTFL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	25 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court given on 1 August 2014, in which the appellant’s application for judicial review of a decision made by the Refugee Review Tribunal on 31 July 2013 was dismissed.  In that decision, the Tribunal had affirmed an earlier decision of a delegate of respondent Minister not to grant the appellant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (“the Act”).

2. The appeal was filed on 22 August 2014, at which time the appellant was legally represented.  An outline of submissions over the hand of counsel for the appellant was filed on 4 November 2014.  It was apparent that counsel for the appellant proposed to advance an argument which had been successful in the proceeding leading to the decision of this court in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477. I have been told that the view was then taken on behalf of the Minister that the viability of that argument would, or might, be affected by the outcome of a then pending Full Court appeal in another case. As a result, the appeal in this proceeding did not proceed at that time. Since then, an appeal from the judgment of the court in WZAPN has been upheld by the High Court:  Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467.

3. Additionally, the proceeding which was pending in the Full Court has since been determined in a way which would provide no sustenance for the argument originally proposed to be advanced on behalf of the appellant: SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497.

4. Very recently, the legal representatives originally engaged by the appellant have withdrawn, and the appellant has conducted his appeal before me today in person through the medium of an interpreter. 

5. The appellant’s submissions fall into two compartments.  The first compartment is the outline filed on his behalf on 4 November 2014.  He frankly said that he knew nothing about what was in that outline, and that, at the time when it was prepared, he was legally represented and it was his lawyers, rather than himself, who were responsible for the outline.  He did, however, take the opportunity to rely upon the outline in his appeal, and I shall give due consideration to it.

6. The other compartment of his submissions were those which he made himself this morning orally.  Those submissions were exclusively concerned with factual issues relevant to his own background and circumstances in Sri Lanka.  I trust it was made clear to him by his erstwhile solicitors that the proceeding which was conducted on his behalf in the Federal Circuit Court and this appeal was and are not concerned with the redetermination of questions of fact which were, or might have been, dealt with by the Tribunal.  Indeed, that proceeding and this appeal are not even concerned with the question whether the ultimate decision of the Tribunal was right or wrong.  The Federal Circuit Court was concerned only with the question whether the Tribunal’s decision was infected by jurisdictional error – most obviously, in the light of the grounds upon which the appellant then relied, an error of the kind constituted by a constructive failure to exercise jurisdiction.  This appeal, in turn, is concerned only with the question whether the Federal Circuit Court made an error in dealing with the questions and issues which were before it.  Although I appreciate the intensity with which the appellant views the factual circumstances which, as he says, brought him to Australia and, as he claims to fear, would constitute impediments to his return to Sri Lanka, nonetheless, because of the nature of the jurisdiction of the court, I have no alternative but to take no account of the factual matters which were the concern of the appellant’s oral submissions today.

7. That brings me to the outline of submissions filed on behalf of the appellant in November 2014. Those submissions must, of course, be considered with reference to the grounds of appeal upon which the appellant then relied and upon which he still relies. The first ground of appeal is as follows: “His Honour erred in finding that the Tribunal did not breach s 425 of the Migration Act 1958 (Cth) and was procedurally unfair.” Particularising this ground, it is said that the Tribunal made findings based on generalised information, that the Tribunal did not give the appellant the opportunity to present arguments as to the harm suffered by him, or claimed to have been suffered by him, in the area in which he sought to fish, and that the primary Judge should have found that the Tribunal thereby committed jurisdictional error.

8. This ground of appeal is concerned with paras 22 to 25 of the primary Judge’s reasons.  His Honour said (para 23):

   The Tribunal was prepared to accept that the applicant had worked as a fisherman in Sri Lanka.  However, it did not accept his claims to have experienced difficulties while doing so.  It also found that there was no credible evidence that the applicant would be unable to subsist in Sri Lanka.  The Tribunal formed an adverse view of the credibility of the applicant and it explained by reference to a number of particulars why it had reached that conclusion.  The matters to which the Tribunal referred were not minor or trivial and provided a rational basis upon which it was open to the Tribunal to find that the applicant’s evidence was not credible.
   [footnotes omitted]

   And at para 24:

   There was no information going to the findings regarding being a fisherman that required the applicant to comment pursuant to s.424A. As to the suggestion of a breach of s.425, I accept the Minister’s submission that what is really being urged upon the court is to find the Tribunal ought to have acted in the way inconsistent with the High Court decision in SZBEL v Minister for Immigration [(2006) 228 CLR 152].
   [footnotes omitted]

   Nothing contained in the appellant’s written outline cast any doubt upon the correctness of these reasons by the Federal Circuit Court. 

9. Those submissions did not engage directly, or in any satisfactory way, with his Honour’s disposition of the two major points which arose under the legislation, namely, compliance with ss 424A and 425. As noted above, the ground of appeal is concerned only with s 425, in which connection there appears to be no suggestion that the appellant was not invited to appear before the Tribunal. Indeed, he did so appear. Giving the submissions foreshadowed in the outline the most favourable understanding, they would still rise no higher than a complaint that the reasons ultimately disclosed in the Tribunal’s decision were not canvassed with him in ways which were held by the High Court in SZBELv Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 228 CLR 152 to be unnecessary.

10. In relation to Ground 1, the conclusion I reach is that nothing has been put to demonstrate error on the part of the Federal Circuit Court. 

11. Ground 2 is as follows:

    His Honour should have found that the Tribunal erred.  His Honour should have found that the Tribunal did not correctly characterise and deal with the appellant’s claim and was procedurally unfair.

    The particulars of this ground given in the Notice of Appeal are that the claim was one of harm from paramilitaries operating in the appellant’s area of residence, that the Liberation Tigers of Tamil Eelam (“LTTE”) were regrouping, and that the claim of risk of harm at the hands of these various groups was not considered. 

12. In what appears to have been the corresponding proposition advanced before the Federal Circuit Court, his Honour below dealt with it in the following terms (at paras 34-35):

    The applicant asserts that the Tribunal failed to consider a claim made by him of fear of the Eelam People’s Democratic Party, (EPDP). The claim is said to somehow arise from [75] of the Tribunal’s reasons. I am not persuaded that any claim by the applicant concerning the EPDP was made or that such a claim clearly arose from the available material. It may be that the asserted claim is said to arise from the Tribunal’s description of the applicant’s claims at [47]. The applicant appeared to believe that the EPDP was somehow part of the Sri Lankan army.

    In any event, in my view, such a claim, if it existed at all, was subsumed in findings of greater generality by the Tribunal at [110].

13. For the sake of the record, I shall set out para 110 of the Tribunal’s reasons:

    There is no credible evidence that Sri Lankan authorities or anyone else in Sri Lanka want to apprehend and harm the applicant.  There is no credible evidence as to why the applicant left Sri Lanka and why he does not want to return there.  The Tribunal accepts no more than that the applicant is a Tamil man who worked as a rickshaw driver and fisherman in both Udappu and Mullaithivu, where his family currently live.  The Tribunal accepts that the applicant left Sri Lanka illegally.

14. His Honour in the Federal Circuit Court seems to have taken the view that the Eelam People’s Democratic Party (“EPDP”) proposition put to him was so conspicuously devoid of merit in the light of the Tribunal’s finding about the appellant’s credibility as to justify a disposition in the brief terms that his Honour employed.  I can well understand why his Honour would have taken that view.  Counsel for the Minister submitted that there was nothing in the outline of submissions filed in November 2014 on behalf of the appellant which identified any error on the part of the primary Judge.  I accept that submission.

15. Ground 3 is expressed as follows: 

    His Honour … should have found that the Tribunal did not consider the residual complementary protection claims, conflated the complimentary protection with convention claims and RRT thereby erred. 

    Particularising this ground, it is said in the Notice of Appeal that the Tribunal considered what is described as the convention nexus; that the Tribunal did not go beyond the convention claims of the appellant; that the Tribunal conflated the findings and made no attempts to make the requisite findings in support of its decision; and that his Honour erred, in para 41 of his reasons, when he found that the Tribunal properly considered the convention nexus facts and correctly inferred the same facts supported complementary protection.

16. In dealing with the corresponding point in the Federal Circuit Court, his Honour said (at para 41):

    It would have been better if the Tribunal had engaged specifically with the criteria in s.36(2)(aa), as illuminated by s.36(2A) and (2B). However, I do not accept the applicant’s contention that the Tribunal conflated the test for refugee status protection and complementary protection. In [164] the Tribunal was not looking for a Convention nexus but was, on a fair reading, referring back to its earlier factual findings and relating those findings to the statutory criteria (including the exception provisions) in s.36.

17. These observations by the primary Judge are not satisfactorily assailed by submissions of the kind that were foreshadowed in the appellant’s outline of 4 November 2014. Those submissions would, it would seem, have gone no further than to reiterate the argument that his complementary protection claims invoking s 36(2)(aa) were not treated separately and discretely in the way the Tribunal approached the matter. It is clear from the Tribunal’s reasons, however, that the Tribunal accurately and correctly appreciated the tests that were to be applied under s 36(2)(aa) and (2A), and any criticism of the way in which it went about applying those tests, particularly in the circumstances of the present case and against the factual and credibility findings which the Tribunal made, would be a semantic one. A criticism of that kind, however valid at the theoretical level, is not the stuff of mandamus under s 75(v) of the Constitution.  I agree with the primary Judge that the appellant failed to establish that the Tribunal did not correctly apply the statutory criteria in the determination of his complementary protection claim. 

18. For those reasons, I propose to reject the three grounds of appeal set out in the Notice of Appeal, and to dismiss the appeal. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       2 December 2015