FEDERAL COURT OF AUSTRALIA

SZTZY v Minister for Immigration and Border Protection [2018] FCA 911

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    The appellant is a citizen of Sri Lanka. He came to Australia on 23 July 2012. On 12 November 2012, he applied under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection visa. That application was refused by a delegate of the then Minister for Immigration and Border Protection on 4 April 2013. The appellant then sought promptly, on 9 April 2013, a review of the Minister’s delegate’s decision by the Refugee Review Tribunal. On 13 February 2014, for reasons given in writing and furnished to the appellant and his migration agent, the Tribunal decided to affirm the Minister’s delegate’s decision.

2    The appellant then applied to the Federal Circuit Court for the judicial review of the Refugee Review Tribunal’s decision. It was not until almost two years later, on 26 February 2016, the application having been filed on 12 March 2014, that the Federal Circuit Court came to hear the appellant’s application. Over 18 months passed following that hearing before judgment was delivered by that court. Apparently, that was because of a need to await the outcome of a test cast. That seems to have provided the occasion for the receipt, in the latter half of 2017, of further submissions, the last of which is recorded as having been made on 10 October 2017. On 24 November 2017, the Federal Circuit Court dismissed the appellant’s judicial review application.

3    The appellant thus had to wait a very long time indeed for an outcome in respect of his judicial review application. That is on any view unfortunate, although it cannot affect the fate of his appeal, but I should not wish him to think that the delay has gone unnoticed or is regarded as in any way ideal. It is just that the reasons for that delay cannot affect the fate of the appeal.

4    In the period which elapsed between when the applicant filed his judicial review application and when the Federal Circuit Court came finally to determine it, the role of the Refugee Review Tribunal was assumed by the Administrative Appeals Tribunal (Tribunal).

5    The appellant now appeals against the order of dismissal. The grounds of appeal are as follows:

The Federal Circuit court failed to find, in respect of the AAT (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court application.

Ground one-

The AAT has committed jurisdictional error in my case as the AAT failed to consider all my evidence and protection claims.

Ground-2

The IAA erred in consideration of “intention” in relation to the complementary protection Criterion.

In addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia.

I have no lawyer to represent me in this court.

6    As might be expected, the Tribunal has filed a submitting appearance. The Minister therefore is the only active party respondent.

7    Ground 1 in the notice of appeal would only be made out if the learned Federal Circuit Court judge had failed to uphold a ground of review that the Tribunal had failed to discharge its core statutory function of reviewing the Minister’s delegate’s decision. It is difficult to reconcile Ground 1 with either of the grounds stated in the amended judicial review application. However this may be, when one examines the reasons of the Tribunal and the claim made by the appellant for a Protection visa, it is apparent that the Tribunal addressed, and did so in considerable detail, the claim made by the appellant in each of its component parts.

8    Those claims are summarised by the Tribunal at paras 4 to 10 of the Tribunal’s reasons:

4.    The applicant is a 30-year old Tamil from Point Pedro in Jaffna district in northern Sri Lanka. Throughout his working life in Sri Lanka he was a fisherman, although he also worked casually in other capacities. He is a citizen of Sri Lanka.

5.    In 2006 he says he helped a young man who had been shot and badly injured by men from the Eelam People’s Democratic Party (EPDP). To the Tribunal he claimed that in 2012 he was told that the two victims involved were members of the Liberation Tigers of Tamil Eelam (LTTE), a group towards which the EPDP was opposed. The injured man was taken on the applicant’s motorcycle to hospital and survived. This man’s family gave the EPDP information, as a result of which the EPDP came looking for the applicant.

6.    He claims that between 2007 and 2011 he left Sri Lanka several times in unsuccessful attempts to seek protection, although he never actually lodged an application for protection anywhere in this period.

7.    After the shooting the applicant moved to Colombo and several months later, using his own passport, left Sri Lanka legally for Tanzania. Having overstayed his visa there he was told to leave Tanzania and he then returned to Sri Lanka. There he lived for two years in the fishing town of Chilaw, without problems from the authorities.

8.    The war between the LTTE and the Sri Lankan government ended in May 2009 with the defeat of the LTTE. In January 2010 he tried to travel to Canada using a false Canadian visa but was deported to Sri Lanka from Singapore. He again lived in Chilaw for about 18 months. In 2010 the CID questioned him about why he was in Chilaw if he was from Jaffna. He was released on the condition that he report to them if called (at his interview with the Department he said he was called 5-6 times).

9.    In July 2011 he went to India or a three-month tourist visa in the hope of travelling on to another country. He then stayed in Nepal for six months. Because the agent took his passport he approached the Sri Lankan Embassy there and was issued with an emergency travel document. He returned to Sri Lanka on 6 February 2012 and again stayed in Chilaw until May 2012 when he returned to Jaffna. While he was there men from the CID came to his mother’s house in Jaffna asking where he had been for so many years.

10.    Around July 2012 he left Sri Lanka for Australia by boat, without his passport.

To these he added the alleged fate which he would suffer as a returnee to Sri Lanka who had left that country contrary to its emigration law.

9    It may be that Ground 1 seeks to raise as error the conclusion of the primary judge that the appellant’s claims for protection had not been cumulatively considered by the Tribunal. That is the essence of the first of his amended judicial review grounds. The learned primary judge found no merit in that ground, holding that the Tribunal’s reasons disclosed that there had been a cumulative consideration of the components of his claim.

10    The Tribunal does not in terms use the word “cumulative” in its reasons. Even if it had, a formulistic incantation of such a term, when the reasons read as a whole disclosed to the contrary, would show that the components had not been cumulatively considered. As it is, when one looks at the reasons as a whole and, in particular, at that part of the Tribunal’s reasons under the heading “Fear of being persecuted because of a political opinion imputed to him for any or all of the following reasons” (emphasis added), appeal book p 313 and following, it is apparent that the Tribunal adopted a cumulative approach in any event.

11    Further, the point is one which necessarily I would have to decide in any event against the appellant in light of the Full Court’s judgment in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] to [35]:

32.    Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].

33.    Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].

34.    In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent.  It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.  It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

35.    In any event, it is, with respect to the primary judge, clear on the face of the IAA’s detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis.  On the refugee claim, for example, the IAA expressly refers and considers in detail submissions made by the respondent’s representative before it that a number of matters should be considered cumulatively (see [22]-[26] of the IAA reasons).  It is not necessary to recite those passages, because counsel for the respondent did not seek to argue that the IAA’s treatment of the respondent’s refugee claim involved any error of law, by lack of cumulative reasoning or otherwise.

12    The remaining ground of appeal takes up the other ground of review. It has as its focus the conclusion reached by the Tribunal in respect of the complementary protection aspect of the review of the decision. In short, the Tribunal found that the appellant would, as an illegal immigrant from Sri Lanka under that country’s law, probably face arrest and prosecution on return, with a short period of accommodation in conditions which could not be described as pleasant in terms of the quality of jail accommodation but would, within that short time, be released on bail and face a nominal fine.

13    The conclusion of the Federal Circuit Court judge that, in light of the High Court’s judgment in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, that there was no merit in the challenge to the conclusion reached by the Tribunal that no complementary protection arose on the facts as found by the Tribunal was undoubtedly correct.

14    As is apparent from the notice of appeal, the appellant also sought to rely on grounds set out in the judicial review application. I take it that this reliance was on the basis that the learned primary judge should have upheld one or the other of those grounds. The first of those grounds had in substance raised the failure to consider the “cumulatively” issue. For reasons which I have already given, there was no merit in that ground, as the primary judge also correctly concluded. The second judicial review ground took up the complementary protection issue. As I have already stated, the conclusion of the primary judge on that subject was correct.

15    The appellant did not seek, in respect of Ground 2 and the complementary protection issue, to develop in oral submissions quite what he meant by an error on the part of the Tribunal in consideration of “intention.” As it is, the Tribunal addressed the subject from the permissible perspective of whether, as a matter of foreseeable consequence of removal from Australia to Sir Lanka, there was a real risk that the appellant would suffer significant harm. There was no error in that approach.

16    It necessarily follows from the foregoing that the appeal must be dismissed.

Associate:

Dated:    15 June 2018