SZTPI v Minister for Immigration & Border Protection

The applicant, a citizen of Sri Lanka, sought judicial review of a decision by the Refugee Review Tribunal (RRT) which affirmed the delegate's refusal to grant him a protection visa. The applicant claimed to fear harm in Sri Lanka due to his Tamil ethnicity and his status as a failed asylum seeker who had left the country illegally. The RRT had considered country information and found that the risk of harm for a Tamil person, even one from an area previously controlled by the LTTE, was remote. It also found no evidence that the applicant would suffer harm as a failed asylum seeker, though it accepted he might face brief detention and a fine for illegal departure, which it did not consider to amount to serious harm.

The court was required to determine whether the RRT had erred in law in its assessment of the risk of harm to the applicant. Specifically, the court needed to consider whether the Tribunal's findings regarding the remoteness of harm based on ethnicity and the consequences of illegal departure were reasonable and supported by the evidence. The applicant's claims were that he feared suspicion of LTTE involvement due to his ethnicity and that his status as a failed asylum seeker would lead to harm.

Emmett J found that the Tribunal had not erred in law. The Tribunal had properly considered the available country information and applied the correct legal test for assessing the risk of harm. The Tribunal's conclusion that the risk of harm to the applicant, either due to his ethnicity or his status as a failed asylum seeker, was not a real chance of serious harm was a finding of fact open to it on the evidence before it. The Tribunal's assessment that any detention or fine for illegal departure would not constitute serious harm was also a reasonable conclusion. Therefore, the application for judicial review was dismissed.