SZTNT v Minister for Immigration & Border Protection
[2015] FCCA 771
•31 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTNT v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 771 |
| Catchwords: PRACTICE & PROCEDURE – Whether applicant should be granted an adjournment in the interests of justice – no utility in granting an adjournment – application for an adjournment refused. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 46A, 65, 91R, 411, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZTNT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2888 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 March 2015 |
| Date of Last Submission: | 31 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Ms Rachel Francois |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2888 of 2013
| SZTNT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 17 October 2013 and handed down on that date (“the RRT”).
The applicant claims to be a citizen of Sri Lanka and of Sinhalese ethnicity, who fears harm from unidentified parties in Sri Lanka.
The issues raised in this case depended on the decision of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”). That decision has now been the subject of a decision of the Full Court of the Federal Court of Australia in three decisions, being SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 which declined to follow North J in WZAPN. The applicant accepts that this Court is bound by those decisions in the Full Court of the Federal Court of Australia and that the issues raised in the grounds identified by the applicant in his initiating application are no longer arguable.
For the sake of completeness, these reasons set out the background of this matter, the legislative framework and a summary of the applicant’s claims for protection, together with the written submissions of both parties and the Court’s conclusion.
Background
The applicant arrived in Australia on 26 June 2012 having departed illegally from Sri Lanka.
On 20 August 2012, the applicant was interviewed by an officer of the Department of Immigration and Citizenship (“the Department”) for the purpose of an Irregular Maritime Arrival Entry Interview.
On 11 October 2012, the Department wrote to the applicant informing him that the Minister for Immigration and Citizenship (“the Minister”) had granted the applicant a Subclass 050 Bridging (General) visa (BE). The letter also informed the applicant that the Minister had exercised his power under s.46A of the Act to allow the applicant to lodge an application for a Protection visa.
On 7 November 2012, the applicant lodged an application for a protection (Class XA) visa with the Department.
On 22 March 2013, the Delegate refused the applicant’s application for a protection visa.
On 27 March 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 17 October 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 21 November 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act define “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant, via his migration agent, provided a statement in support of his protection visa application in which he stated:
a)In 2009, the applicant had supported Nimal, a candidate for the United National Party (“the UNP”), in an election.
b)The applicant had attended Nimal’s rallies and had generally sought to promote Nimal by putting up posters and cut-outs, as well as going from house to house asking people to vote for him.
c)After Nimal lost the election, the applicant had little contact with him.
d)In early 2010, three or four people forced the applicant into a van, slapped him and asked him where Nimal was. The applicant said he did not know and, after an hour, was released. The applicant does not know who these people were.
e)The applicant tried to keep a low-profile. Once, when he was away from home, his mother said that people had come looking for him.
f)In around December 2011/January 2012, the applicant was again taken. Four or five people blindfolded him and took him to a jungle area. Again, the applicant was questioned about the whereabouts of Nimal. The applicant said he did not know. He was kept for two hours before being released.
g)The applicant had no support from other people in the village, who were mainly supporters of the government.
h)The applicant’s father arranged for him to leave Sri Lanka.
The proceeding before this Court
The applicant was represented before this Court by Mr Paul Bodisco, of counsel.
On 28 February 2014, Orders were made, by consent, in chambers. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.
On 5 March 2015, the applicant filed an affidavit of Jacqueline Zinck, affirmed 4 March 2015, which annexed a transcript of the applicant’s interview with the RRT.
Counsel for the applicant, Mr Bodisco, appeared before me this morning. Mr Bodisco had filed submissions on 17 March 2015, which disclose the grounds relied upon by the applicant and provide submission in support of those grounds. The grounds remained the same as those in the applicant’s initiating application and are referred to in the written submissions of the parties. Those submissions are as follows:
“INTRODUCTION
1.This is an application seeking to quash a decision of the Refugee Review Tribunal in regards to the granting of a Protection (Class XA) visa to an offshore entry person.
2.The applicant was interviewed on 25 June 2012 by the then Department of Immigration & Citizenship. The applicant affirmed:
a) That he was born on 9 August 1994;[CB 1]
b) That he was from the Thoduwa Village, Puttalam District, North Western Province, Sri Lanka; [CB 1]
c)That he is a Roman Catholic, speaks Sinhalese and is of Sinhala ethnicity;
d) That he travelled with his Passport. [CB 3]
3.In his detention client interview, the Applicant affirmed:
a) That he was seeking protection for “political issues”; [CB 14]
b) That he had worked as a fisherman; [CB 17]
c)That he had experienced being “beaten by political opposition”. [CB 18]
4.In his irregular maritime arrival interview, the Applicant affirmed:
a) “In 2009 there was an election and I supported the party. The party that I supported lost the election. There was a person by the name of Nimal; he went missing. Then in 2010 a group of people came to my house, after Nimal went missing, and put me to a van and took me away.” [CB 29]
b) That he had supported the United National Party; [CB 29]
c)That he was taken in 2010 and had been in hiding since then; [CB 29]
d) That he was taken twice by these people; [CB 29]
5.On 11 October 2012, the Applicant was informed that the Minister had exercised his power under section 46A(2) of the Act to allow him to lodge a Protection Visa application. [CB 36]
6.On 6 November 2012, the Applicant applied for a Protection (Class XA) Visa. By way of a statement forwarded with the application and dated 18 October 2012, the Applicant reaffirmed his reasons for leaving Sri Lanka – consistent with the earlier iteration. [CB 71-3]
7.On 20 November 2012, correspondence was received from the Applicant affirming significant mental health issues – including hospital admissions and self harm. [CB 100-102] These issues occurred after the death of his girlfriend. [CB 120]
8.On 22 March 2013, the applicant was refused by the delegate in his application for a Protection (Class XA) Visa. [CB 109] However, critical were the following findings:
“The applicant has generally provided materially consistent information at interviews conducted by Australian Immigration officers about why he left Sri Lanka and why he does not want to return to his home country, Sri Lanka. Furthermore, after having interviewed him for the purpose of his PV application, I have noted the manner and spontaneity of his responses to the questions I put to him. I am satisfied in the light of this that the applicant was recalling evidence from his personal experience. I have accepted his claims in their totality.” [CB 121]
9.On 27 March 2013, the Applicant applied for a Protection (Class XA) Visa. [CB 141]
10.On 11 October 2013, the Tribunal conducted a hearing. An affidavit of the hearing annexing a transcript of the proceedings is to be in evidence.
11.During the hearing, the following exchange occurred:
M. Now, you also make claims to fear harm because you left Sri Lanka illegally. What harm do you fear in connection with that?
A. As I left illegally when I left Sri Lanka I will have big trouble from the government side because I left illegally. I will be persecuted for, if they release me without anything, in a few months they can get rid of me.
M. I haven’t seen any evidence of the Sri Lankan authorities getting rid of people or kill people because they left illegally. Why do you think they would get rid of you?
A. Because I was abducted twice, that was the reason I was abducted.
The Tribunal then put some information regarding the Country Information for a person suspected of departing Sri Lanka illegally – of which he was accepted as being. [see Transcript, p39-40]
12.On 17 October 2013, the Tribunal affirmed the decision.
13.Critically, the Tribunal made positive findings in support of the Applicant:
a) That he is a Sinnhalese male from Thoduwawa, Puttalum District, where his parents continue to live; [CB 231 at 9]
b) That he was issued with a Passport in his own name; [CB 231 at 9]
c)That he had girlfriend in Sri Lanka who was terminally ill and in need of treatment who has since passed away; [CB 231 at 9]
d) That he was a paid employee of a UNP candidate in the 2009 Provincial elections (although has no ongoing involvement in politics); [CB 233 at 17]
e) That he was abducted shortly after the elections in 2009 and he was held by them for an hour before being released; [CB 235 at 24]
f) That the police were unable to respond (although not for a Convention reason); [CB 235 at 24]
g) That if the Applicant’s arrival occurs over a weekend, the Applicant would face being remanded for some days in a prison. [CB 242 at 48]
14.The conditions in that prison were described elsewhere in the decision as “uncomfortable and unpleasant”. [CB 243 at 52]
PROPOSED ADDITIONAL GROUNDS ONE AND TWO
15.The Applicant will seek leave to file an application pleading two additional proposed grounds. The remaining grounds are formally abandoned.
GROUND ONE:
That the RRT erred in failing to apply the incorrect test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.
Particulars
a) By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].
GROUND TWO:
That the RRT denied the Applicant procedural fairness.
Particulars
a) By failing to put to the Applicant evidence that the period he would experience on remand “involves or gives rise to differential treatment for a Convention reason”, the Tribunal failed to apply the reasoning of his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [75].
THE FIRST GROUND:
16.The critical issue in the appeal is whether his Honour North J’s correctly held in WZAPN v Minister for immigration and Border Patrol [2014] FCA 947 [“WZAPN”] that section 91R(2)(a) of the Migration Act 1958 (Cth) [“the Act”], crouched as it is in absolute terms, can be accepted as defining a “threat to the person’s life or liberty” would constitute “serious harm”.
17.In WZAPN, the grounds of appeal were directed was a claim that the applicant would, as a Faili Kurd, be detained and questioned by the Basij, a religious/political group charged with the protection of Islamic values in Iran: WZAPN at [7]. As stated by the Tribunal in that decision:
“I accept there is a real chance that the claimant will be questioned periodically, and probably detained for short periods when he fails to produce identification, in the reasonably foreseeable future should he return to Iran, but having regard to the guidance provided by s.91R(2)(a), (b) and/or (c), I do not accept that the frequency or length of detention, or the treatment he will receive whilst in detention, will involve serious harm within the meaning of the Act.”
18.The authority of WZAPN is to be the subject of a special leave application by the Minister before the High Court of Australia in April 2015. The authority is also currently the subject of deliberations by the Full Court of the Federal court of Australia in the matters BZAFM, SZTEQ and SZTIQ v Minister for Immigration & Border Patrol.
19.On the basis of the imminent decisions by the Courts above – and the binding nature of these decisions – the Applicant submits that there would be utility in adjourning the instant matters until resolution of these matters.
20.However and notwithstanding this, and in light of the binding authority of WZAPN, a qualitative assessment by the decision maker as to the severity of the consequences is indicative of jurisdictional error. [CB 242 at 48]
21.This interpretation is consistent with the ordinary meaning of the statue.
a) In the definitions of “serious harm” contained in section 91R(2) of the Act, only section 91R(2)(a) is crouched in absolute terms.
b) Unlike physical harassment, physical ill-treatment and economic hardship, each of which must be “significant”, there must only be a threat to liberty.
c)This interpretation is consistent with common law principles citing arrest and imprisonment as “grave interference with the rights of the individual”.
22.This is also consistent with a strong line of authority cited by his Honour North J in WZAPN at [33]-[34], including remarks by Dawson J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ at [390] and McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1.
23.Further, this approach is consistent with jurisprudence in tort law, where the rule for an action lies for false imprisonment in circumstances where the imprisonment amounts to a total restraint of the liberty of the person, for however short a time: Goldie v Commonwealth [2004] FCA 156 at [17], where his Honour French J (now CJ) stated:
“Wrongful arrest and imprisonment even for a short time is a serious matter whose seriousness is measured not solely by the length of the period of incarceration. Arrest and imprisonment involve a grave interference with the rights of the individual coupled with humiliation which is both private and public. The arrest in this case occurred in a public setting and added to the indignity suffered by Mr Goldie. The physical constraint applied to him was undignified, albeit not unreasonable from the point of view of the ACM officers who were apprehending him. The pat searches and interrogations and the removal of his tie and belt and shoelaces, which followed at the Detention Centre, were all factors to be taken into account in measuring the extent of the interference with his rights associated with the imprisonment and the humiliation and indignity thereby inflicted on him.” [my emphasis]
24.During the Tribunal hearing of 22 March 2013, the following propositions were raised by the Tribunal with the Applicant: [T.39-40]
Now your Representative has provided submissions and a range of information addressing issues around illegal departure and failed asylum seekers. But I also want to put to you information that I must consider and which you may want to
25.In regards to the situation for those who had left Sri Lanka illegally, the Country Information was equally unequivocal. [CB 242 at 47]
26.The factual foundation for the Applicant’s claim is clearly accepted. The Tribunal accepted the Applicant may be remanded in the Negombo prison and may remain there for some days before being released.
Outline of Argument:
27.In short compass, the Applicant relies on the reasoning of His Honour North J in WZAPN at [30] and [45].
a) The express statutory formulation contained in s91R(2)(a) is not contingent on a qualitative (or adjectival) expression of the harm, the reasonable inference of which is that the threat to life or liberty is without reference to the severity of the consequence to life or liberty. This may be contrasted with the adjectives used elsewhere in s91R(2);
b) This construction – of a threat to liberty as absolute and devoid of qualitative assessment – accords with Australia’s international obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees 1967;
c)The absolute nature of the protections afforded to the right to liberty is consistent with other Australian statute and tort law.
28.The protection accorded to a threat to liberty is consistent with that present in the Human Rights Commission Act 1986 (Cth) and other statutory instruments. The Applicant would also cite consistent with jurisprudence in tort law, where the rule for an action lies for false imprisonment in circumstances where the imprisonment amounts to a total restraint of the liberty of the person, for however short a time: Goldie v Commonweealth [2004] FCA 156 at [17].
29.The statutory formula present in section 91R(2) of the Act reads as follows:
(2) Without what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
1.a threat to the person’s life or liberty;
…[my emphasis]
30. As stated by His Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45]:
30. The conclusion from the language and structure of s91R(2) is that serious harm in s91R(1)(b) is constituted by a threat to life and liberty, without reference to the severity of the consequences to life or liberty.
…
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the applicant of s91R(2)(a), and thereby fell into jurisdictional error.
31. The Tribunal’s further observations that the “process [does not] involve or give rise to differential treatment for a Convention reason” is consistent with those elsewhere observed in WZAPN – and were simply not put to the Applicant throughout the course of the hearing.
32.The observations made by His Honour North at [48] and [51] regarding the law of general application are prescient. As stated by His Honour in that decision:
48. Earlier judgments of the High Court have held that conduct undertaken pursuant to a law of general application does not amount to persecution if the law is, “appropriate and adapted to achieving some legitimate object of the country concerned”: see Applicant S at [43], adopting the test articulated by McHugh J in Applicant A (1997) 190 CLR 225; 1997 HCA 4, at 258. At [45], the High Court further explained the concept by reference to the comments of the plurality in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; 2000 [HCA] 19 (Chen), at [29] that:
[w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
…
51. When assessing a law of general application, the essence of the international human rights approach and of the appropriate and adapted test is similar. Both ask whether the detention was lawful, in the sense of being pursuant to s domestic law, but also by reference to the object of that law and whether the detention was proportionate to that object. The human rights approach asks whether the detention, whilst perhaps lawful, was arbitrary, whilst the question whether the law was applied arbitrarily is implicit in the appropriate and adapted test. If applied arbitrarily, the law may not be appropriate and adapted in the sense of proportionate in the means used to achieve its object: Applicant S, at [48]. Finally, the human rights approach asks whether the detains was treated with humanity and inherent dignity for the person, whereas conduct pursuant to a law of general application will not be considered appropriate and adapted if it offends the standards of civil societies which seek to meet the calls of common humanity: Chen, at [29].
33. On a fair reading of the Tribunal transcript, the laws relating to the Applicant for having left Sri Lanka illegally as being the result of a law of general application were simply not put to the Applicant.
34.The reasoning of his Honour North J in WZAPN at [75] is therefore prescient:
75. The applicant’s argument that he was denied procedural fairness should be accepted. The information before the refugee status assessment officer provided some background to the way in which the Basij operated. However, it did not address whether, and if so, how this conduct was appropriate and adapted to achieving a legitimate national objective of Iran. Yet, the reviewer determined that the reason for the detention was a result of the application of such a law or policy. It was on that basis that the reviewer concluded that the essential and significant reason for the detention was not as the applicant claimed. The reviewer was bound in fairness to alert the applicant to information, if there was any, which demonstrated that the conduct of the Basij was in pursuance of a legitimate national objective, and that the detention was appropriate and adapted to achieving that objective. Alternatively, in the absence of such information, the reviewer was bound in fairness to identify to the applicant the issue that the conduct of the Basij may be regarded as conduct appropriate and adapted to achieving a legitimate national objective. By failing to provide reference to any such information, or alternatively, to alert the applicant to the critical issue, the reviewer denied the applicant procedural fairness.
35.In conclusion, the Applicant submits that jurisdictional error is established by virtue of the failure to apply the reasoning of huis Honour North J in respect of the qualitative assessment undertaken. Section 91R(2)(a) of the Act, crouched as it is in absolute terms, defines a “threat to the person’s life or liberty” in absolute terms such as to constitute “serious harm”. It was simply not put to the Applicant that these penalties would be the result of the application of a law of general application.
36.The instant matter should be remitted to the Tribunal to be determined in accordance with law.”
On 25 March 2015, the respondent filed submissions in response and I refer to those submissions in full as follows:
“On 21 November 2013, the applicant filed an application for judicial review. On 17 March 2015, the applicant filed submissions and foreshadowed an amended application abandoning all the earlier grounds of review and raising two new grounds as follows:
“1. That the RRT erred in failing to apply the incorrect (sic) test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.
Particulars
a. By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].
2. That the RRT denied the Applicant procedural fairness.
Particulars
a. By failing to put to the Applicant evidence that the period he would experience on remand “involves or gives rise to differential treatment for a Convention reason”, the Tribunal failed to apply the reasoning of his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [75].
Ground 1 cannot now succeed as the Full Federal Court has held that WZAPN v MIBP [2014] FCA 947 at [30] and [45] was wrongly decided in circumstances which are indistinguishable from the present case: SZTEQ v MIBP [2015] FCAFC 39; SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.
Ground 2, as pleaded, does not make sense. The applicant’s written submissions filed 17 March 2015 (AS) indicate the alleged error is that the Tribunal did not put to the applicant that it considered the laws governing entry and exit from Sri Lanka to be a “law of general application.” (AS [33]). This ground of review cannot be sustained for the following reasons.
Firstly, the Tribunal made no finding that the relevant laws were a “law of general application.” Rather, the Tribunal held that there was no “differential treatment for a Convention reason” in the application of the laws and processes (CB 241 [43], CB 242 [48]). This finding is plainly directed to section 91R(1)(a) and (c) of the Act.
Second, this issue was expressly raised by the applicant’s migration agent after the delegate’s decision which had discussed country information which generally indicated that there was no differential treatment except for people smugglers: see delegate’s decision at CB 127 – 128 & 131; migration agent submissions at 198.7. Accordingly, the applicant was clearly well aware of that this was in issue.
Third, the Tribunal is not in the positon of the Independent Merits Reviewer in WZAPN. It is not required to put adverse independent country information to the applicant: section 424A(3)(a) of the Act: MIMIA v NAMW (2004) 140 FCR 572; VJAF v MIMIA [2005] FCAFC 178; SZJJD v MIAC [2008] FCAFC 93; MIAC v SZHXF (2008) 166 FCR 298; SZMCD v MIAC (2009) 174 FCR 415.
Finally, the Tribunal’s finding that there was no “differential treatment for a Convention reason” was not dispositive of the application. Having found that the treatment did not involve “serious harm” for the purpose of section 91R(1)(b) of the Act, the applicant could not satisfy section 91R(1). Accordingly, even if there was an error (which there is not), this ground could not succeed: see SZTBE v MIBP [2014] FCA 1230; SZSPT v MIBP [2014] FCA 1245; SZSXY v MIBP [2014] FCA 1183; SZSSA v MIBP [2014] FCA 1284; SZSRU v MIBP [2014] FCA 1252; MZZUO v MIBP [2014] FCA 1267; SZTBW v MIBP [2014] FCA 1277; SZTUL v MIBP [2014] FCA 1427; AZAEK v MIBP [2014] FCA 1415.”
On 24 March 2015, the Full Court of the Federal Court of Australia published its decisions in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41. Mr Bodisco conceded that the effect of these decisions is that the grounds upon which the applicant in the case before this Court relies, no longer have any prospect of success and that this Court is bound by those decisions. Nevertheless, Mr Bodisco sought an adjournment of the hearing of this matter based on the following further written submission:
1.“In the instant matter, the Applicant accepts that the Court is bound by the decision of the Full Federal Court in SZTEQ v Minister /or Immigration and Border Protection [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister Immigration and Border Protection [2015] FCAFC 41.
2.On this basis, the Applicant concedes that the arguments based on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 must fail.
3.The Applicant notes that leave has been granted in for determination by the High Court of Australia in WZAPN v Minister for Immigration and Border Protection, listed to be heard on 15 April 2015.
4.The Applicant proposes that the matter should be adjourned to allow this matter to be properly ventilated before the Full Court, noting that the decision will ultimately be determinative of the instant application.
5.On 25 March 2015, the Applicant appeared in the matter of SZUQU v Minister for Immigration and Border Protection before His Honour Driver FCCJ
6.The Applicant was made aware of a pend ing appeal also to be ventilated before the Full Court of the Federal Court regard ing appeals against decisions by His Honour Driver FCCJ in the matters of SZTGM v Minister for Immigration and Border Protection [2015] FCCA 87, SZTCY v Minister for Immigration and Border Protection [2015] FCCA 85 and SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64.
7.The approach adopted by His Honour in SZUQU v Minister for Immigration and Border Protection was to adjourn the matter until the determination of these matters by the Full Court and the grant leave for the Applicant to amend the application in light of these pending decisions.
8.The Applicant submits that this would be the preferred approach in the instant matter.
9.Leave is to be sought to amend the instant application in identical terms to the grounds as pleaded in SZTAL v Ministerfor Immigration and Border Protection [2015] FCCA 64. The proposed ground is as follows:
The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a.The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka:
b.The Tribunal found that prison conditions in Sri Lanka that "are cramped, uncomfortable and unpleasant".
c.The Tribunal erred in holding that poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.”
The applicant’s application for an adjournment of this matter was opposed by counsel for the first respondent, Ms Rachel Francois, and refused by the Court. Mr Bodisco did not require written reasons for the refusal to adjourn on the basis that exchanges between counsel and the Court made clear the reasons. In short, those reasons centred around the utility of granting such an adjournment in the light of the prospects of success of the appeal to the High Court of Australia of WZAPN and an appeal to the Full Court of the Federal Court of Australia in three similar matters, SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 (“SZTAL”); SZTGM v Minister for Immigration and Border Protection [2015] FCCA 87; SZTCY v Minister for Immigration and Border Protection [2015] FCCA 85.
Mr Bodisco then withdrew a further application for leave to rely on new grounds that were similar to grounds pleaded in SZTAL and which had been dismissed.
In the circumstances, the proceeding before this Court, commenced by way of application filed 21 November 2013, should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 March 2015
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