SZTFZ v Minister for Immigration and Border Protection

[2015] FCA 1347

FEDERAL COURT OF AUSTRALIA

SZTFZ v Minister for Immigration and Border Protection [2015] FCA 1347

Citation:	SZTFZ v Minister for Immigration and Border Protection [2015] FCA 1347
Appeal from:	SZTFZ v Minister for Immigration & Anor [2014] FCCA 1861
Parties:	SZTFZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number(s):	NSD 1131 of 2014
Judge(s):	BUCHANAN J
Date of judgment:	2 December 2015
Legislation:	Migration Act 1958 (Cth), ss 36, 36(2)(a), 36(2)(aa)
Date of hearing:	24 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Appellant:	A Kumar
Counsel for the First Respondent:	P M Knowles
Solicitor for the First Respondent:	N Maddocks of DLA Piper
Counsel for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1131 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	2 DECEMBER 2015
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The name of the second respondent be changed to Administrative Appeals Tribunal. 

THE COURT ORDERS THAT:

2.The appeal be dismissed with 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 1131 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	2 DECEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal against a judgment of the Federal Circuit Court of Australia (“the FCCA”) raises for consideration whether the Refugee Review Tribunal (“the RRT”) made a jurisdictional error when it assessed claims by the appellant to be granted a protection visa. 

2. The appellant is a citizen of Sri Lanka.  He arrived in Australia by boat on 11 May 2012 and applied for a protection visa on 10 August 2012.  A delegate of the Minister refused the application and the appellant then applied to the RRT to review the delegate’s decision.  On 6 August 2013, the RRT affirmed the decision of the delegate. 

3. On 5 September 2013, the appellant applied to the FCCA for judicial review of the decision of the RRT.  The application for judicial review was dismissed on 17 October 2014 (SZTFZ v Minister for Immigration & Anor [2014] FCCA 1861). Although the notice of appeal in this Court was filed promptly, hearing of the appeal has been delayed pending clarification of some aspects of the applicable legal principles by the High Court.

4. In written and oral submissions in support of the present appeal, two related matters have been relied upon.  The first contention is that the RRT failed to give separate and proper attention to the appellant’s claims to “complementary protection”.  The other is that when assessing those claims the RRT made a jurisdictional error by failing to consider and deal with assertions by the appellant that he had been attacked by two persons on a motorbike in 2008.  The argument that the RRT had failed to consider the significance of this incident was put in various ways but the central premise was the same.  Assessment of this argument requires an understanding of the approach taken by the RRT and of the fact that there is now no challenge to the RRT’s findings that the appellant should not be granted a protection visa for “Convention reasons”. 

5. The grant of a protection visa for Convention reasons is dealt with by the Migration Act 1958 (Cth) in s 36(2)(a). The grant of a protection visa for “complementary protection” reasons is dealt with in s 36(2)(aa). A reading of the decision of the RRT makes it apparent that the RRT understood the matters relevant to each source of the possible grant of a protection visa and addressed its attention to such of those matters as were relevant to the circumstances of the appellant.

6. The incident in question is referred to in the reasons of the RRT as follows: 

   41.He recalled another incident in 2008 when he was on the street and approached by two men on a motorcycle who assaulted him.  One of them put a gun at his head and the men said the applicant had not listened to them.  The man fired the gun in the air and they left the scene once other people including the applicant’s mother approached. 

   42.The men did not say why they were attacking the applicant.  He thought they were connected with the army and possibly they thought he was in the LTTE.  The applicant found out one week after this incident that one of the men involved had been killed.  This made the applicant afraid as well in case he was suspected of involvement with that murder. 

   …

   50.When asked what he was afraid would happen if he returned to Sri Lanka, the applicant said he was afraid that the army would kill him.  When asked why they would do that, the applicant said he did not know.  He thought it could be related to the murder of the man who was involved in the incident in 2008 when the applicant was stopped on the street and a gun put to his head. 

   51.When asked if his fear of the army was the only reason he did not wish to return to Sri Lanka, the applicant said that was correct.  He thought they could watch him and then abduct him. 

7. For reasons which it explained, the RRT found that the appellant was “not a witness of truth”.  The RRT said: 

   98.As regards the period of his life from 2007 when he commenced his own business, due to the Tribunal’s concerns about his credibility discussed above and which led the Tribunal to find that the applicant is not a witness of truth, the Tribunal does not believe that the applicant had an employee who was involved with the LTTE; that the army took that employee away and that people would stand outside his shop and come into the shop asking if he was involved in the LTTE; that in 2008 he was assaulted by men on a motorcycle who put a gun to his head; that he closed his business in 2010 in fear of the army and related agencies and that he was ever threatened by them after that. 

   99.For the same reasons, the Tribunal also disbelieves claims the applicant made in his statutory declaration that, in this period, the army would make him do work for them, not pay for it, treat him badly, monitor his shop, make him have a flag showing at the shop and that they caused difficulties to him in that respect.  The Tribunal finds that there is no credible evidence about the applicant’s difficulties with the army or anyone else in Sri Lanka in the period from 2007 after he commenced his own business. 

   100.Accordingly, the Tribunal finds there is no credible evidence as to the true reasons the applicant left Sri Lanka.  As the Tribunal finds he is not a witness of truth the Tribunal also disbelieves his claim that the army went to his parents’ home and his wife’s home after he left Sri Lanka looking for him.  The Tribunal finds there is no credible evidence as to why the applicant does not want to go back to Sri Lanka. 

8. The RRT also found: 

   140.There is no credible evidence before the Tribunal as to why the applicant left Sri Lanka and so the claim that he would be forced to live in fear (or at risk) of harm in Sri Lanka and suffer psychological harm is rejected.  There is no aspect of this applicant’s conduct that he has to modify to avoid suffering serious harm. 

9. Based on those and other findings, the RRT found that the appellant should not be granted a protection visa on Convention grounds.  It then turned its attention to the claim based on complementary protection grounds and said: 

   165.In essence, it is claimed that the applicant meets the complementary protection criteria on the same grounds that his fear of persecution is well founded.  For the same reasons the Tribunal finds the applicant does not have a well founded fear of persecution, it also finds that there is not a real risk he will suffer significant harm in Sri Lanka. 

10. It is clear from these findings (which are not reviewable in the present proceedings) that the RRT rejected as a matter of fact the claim by the appellant that he had been attacked by two persons on a motorbike in 2008. Part of the reason for rejecting that claim was that the appellant was not believed about a range of assertions made by him, for reasons which the RRT explained in its decision and which it is not necessary to repeat here. As the factual basis for this assertion was rejected it could not provide a foundation for a claim to a protection visa under either s 36(2)(a) or s 36(2)(aa).

11. There was no jurisdictional error, therefore, made by the RRT in dismissing the claim for a protection visa upon the ground argued in the present appeal. 

12. The same view was reached by the FCCA.  I can see no error in the analysis made by the FCCA about the question of whether jurisdictional error had been committed by the RRT. 

13. As no error has been shown in the judgment of the FCCA, and no jurisdictional error shown in the decision of the RRT, the present appeal must be dismissed.  It is appropriate to dismiss it with costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        2 December 2015