FEDERAL COURT OF AUSTRALIA

SZSZR v Minister for Immigration and Border Protection [2014] FCA 821

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant is to pay the first respondent’s costs in the amount of $4,113.

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

REASONS FOR JUDGMENT

1    This matter involves an application for leave to appeal a decision delivered on 11 April 2014 by Judge Nicholls in the Federal Circuit Court of Australia. In that decision, Judge Nicholls dismissed the applicant’s judicial review application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The applicant requires leave to appeal that decision because of its interlocutory nature. Under r 44.12, the Federal Circuit Court may dismiss an application for judicial review brought under s 476 of the Migration Act 1958 (Cth) (the Act) if it is not satisfied that the application raises an arguable case for the relief claimed. It is common ground that the Federal Circuit Court’s power to grant relief depended upon it being satisfied that the decision dated 24 May 2013 of the Refugee Review Tribunal (the Tribunal) to refuse to grant the applicant a protection visa was affected by jurisdictional error.

Background

2    Relying on Judge Nicholls’ summary of the relevant facts, the relevant background matters may be summarised as follows.

3    The applicant is a Sri Lankan national who arrived in Australia by boat on 18 May 2012 without a visa. The applicant applied for a protection visa which was refused by the Minister’s delegate on 9 October 2012. The applicant unsuccessfully sought a review of that decision by the Tribunal. He argued before the Tribunal that he feared persecution from Sri Lankan authorities for several reasons, namely:

(a)    his Tamil ethnicity;

(b)    his Hindu religion;

(c)    his occupation as a fisherman who worked in areas previously dominated by the Liberation Tigers of Tamil Eelam (LTTE); and

(d)    on return to Sri Lanka he would be imputed with an adverse political opinion because of his “irregular” departure from the country, his claims for protection in Australia, his association with his brother-in-law’s brother, whom he said is a known LTTE member, and his support for a particular political party in 2010.

4    In support of these claims, the applicant made the following factual assertions:

(a)    the Sri Lankan police came to his house in 2005 looking for him. They told his family that he should report to the police station, but he did not do so. He claimed that the police interest in him related to him having given a lift on his motorbike to his brother-in-law’s brother, who is a known LTTE member or because he had just returned from fishing in an LTTE controlled area;

(b)    in 2006 he was detained by police in a general round-up and was released after three hours without further incident;

(c)    his fishing business had been affected since the end of the civil war in Sri Lanka because of an increase in Sri Lankan soldiers in his fishing area and restrictions imposed on Tamil fishermen; and

(d)    a local politician had threatened Hindus in his home area.

5    The primary judge also noted the number of occasions when the applicant had departed and re-entered Sri Lanka before eventually coming to Australia. On the first occasion, prior to 2002, he was returned to Sri Lanka by Saudi Arabian officials. He said he was interrogated on return to Sri Lanka. In 2005, he returned to Sri Lanka from India and acknowledged that nothing adverse occurred to him on his return. Later in 2005, he went to Thailand and was flown back to Sri Lanka after being detained for two weeks for not having a visa. He initially claimed that nothing happened to him on his return, but in his protection visa application he said he had been interrogated and assaulted by Sri Lankan officials. In his interview with the Minister’s delegate he then said that he was treated “like a tourist” returning to the airport and had encountered no problems.

6    In his amended judicial review application below, the applicant complained that the RRT did not apply the correct test as required by the Act in finding that, while returnees were interrogated they may be kept in detention in harsh conditions for a few days whilst identity and background checks were being undertaken.

7    The primary judge found that the Tribunal had dealt with each of the applicant’s claims and that it made findings of fact which were reasonably open to it on the material to hand. The primary judge also noted that the Tribunal approached its task on the basis that, while there were some concerns about the applicant’s evidence, overall it found the applicant to be a mostly credible and reliable witness.

8    The primary judge then set out at some length in his reasons for judgment the Minister’s written submissions in respect of each of the applicant’s claims and adopted those submissions as an accurate description of the background to the proceedings.

9    At [13] of his reasons for judgment, the primary judge described the relevant question in a hearing under r 44.12 as whether the amended application raised an arguable case for the relief sought by the applicant.

10    The primary judge also noted at [15] that the applicant sought to pursue only one matter in the Court, which was directed to the treatment of returnees, presumably with the applicant’s profile, on return to Sri Lanka. His Honour pointed out at [16] that it had not been made clear what jurisdictional error was said to arise from the applicant’s complaint. His Honour further observed at [17] that the applicant acknowledged that the Tribunal had turned its mind to the treatment of returnees to Sri Lanka but that he complained that the Tribunal still found that he would not suffer either significant or serious harm if he were to return to Sri Lanka. His Honour described that complaint as relating to factual findings and conclusions made by the Tribunal, which constituted an impermissible request for the Court to engage in a merits review. At [18], Judge Nicholls said:

In light of what is set out in the Tribunal’s decision record, and as reported and addressed in those aspects of the Minister’s written submissions focused on the question of returnees which I have adopted for the purposes of this judgment, the applicant’s ground is simply a complaint about the factual findings, and conclusion, made by the Tribunal. Findings which, in relation to returnees to Sri Lanka were reasonably open to the Tribunal to make, and for which it gave reasons.

11    The primary judge also noted the essentially “unhelpful” nature of the applicant’s submissions and noted, in particular, that the applicant was unable to explain what the “correct test” was under the Act notwithstanding his complaint that the Tribunal had failed to apply the “correct test”.

12    The primary judge also made reference to the acknowledgement in the applicant’s written submissions that the Court was unable to consider any new country information which had come to hand after the Tribunal hearing on the question whether failed asylum seekers were detained and abused by Sri Lankan authorities. The primary judge noted that the applicant had stated in his written submissions that if the Court were to return his case to the Tribunal, his case could be looked at afresh by a new Tribunal member, which the primary judge said confirmed his view that the applicant’s complaint was with the factual findings made by the Tribunal.

13    The primary judge also added that he understood the applicant to complain that, even though the Tribunal found that he would be likely to be detained on return and kept in a harsh environment, it erred in not finding that this would amount to serious or significant harm. The primary judge noted that the Tribunal had explained why it considered that, even though the applicant might be detained and interrogated, this would not amount to serious or significant harm. Those reasons included the fact that the applicant was not a person who was of past interest to the Sri Lankan authorities, nor would he be perceived to be associated, or connected, with the LTTE. The Tribunal also pointed to the fact that there was country information which indicated that being a failed asylum seeker alone was not a reason for being harmed or targeted on return. It also drew attention to the fact that the applicant had not been harmed on his return to Sri Lanka on three previous occasions.

14    The primary judge found that, notwithstanding the applicant’s claims that the Tribunal had not applied the “correct test”, he considered that the Tribunal’s understanding and application of the relevant tests in respect of both Convention claims and those based on the complementary protection criteria were “entirely orthodox”. His Honour added that the application of those tests to the facts as presented and found were also without legal error.

15    While his Honour accepted that the applicant was aggrieved by the Tribunal’s findings and conclusions, no jurisdictional error was revealed and there was no arguable case in favour of the relief sought.

16    Finally, the primary judge addressed the question whether the applicant was also complaining that the Tribunal had fallen into the same error as that identified in SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123 (as affirmed on appeal by Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025), namely where a decision-maker focuses on the ultimate outcome of interrogation and detention rather than on the process of detention and interrogation itself. However, Judge Nicholls found that it was evident that the Tribunal was plainly aware of that distinction and made clear that it focused on the process at the airport as well as the outcome of that process, in considering both serious and significant harm.

17    For all these reasons, the primary judge concluded that there was no arguable case for the relief sought by the applicant and his application was dismissed summarily.

Application for leave to appeal

18    The grounds set out in the application for leave to appeal were as follows:

1.    The RRT did not apply the correct test when they found that I would be detained at the airport on my arrival.

2.    The RRT did not consider that while I was in detention in Colombo airport and the condition of the detention would fall under harm defined in the Refugee Convention.

3.    Jurisdictional error and breach of natural justice.

19    In support of his application, the applicant also filed a written submission in the following terms (which were in substantially identical terms to the written submissions filed in an unrelated proceeding heard earlier by the Court on the same day, namely SZSSC v Minister for Immigration and Border Protection, NSD361/2014):

I am the Appellant for my case. I have lodged my application by myself. I have given a Lawyer under the Legal Advice Scheme by Federal Circuit Court of Australia. I have met and sought his advice. The lawyer said that he could not help me in my court matter.

I do not agree with my RRT decision for the grounds that have been stated in my Amended Application that was filed on 7 November 2013 with the Federal Circuit Court of Australia and was posted to the Responded Lawyer.

The RRT accepted that returnees like me would be interrogated and would be held in detention in Sri Lanka. The RRT accepted that the detention was in harsh conditions for a few days where the returnees’ identity and background checks were undertaken and where enquiries may be made. Although the RRT made the above finings it did not apply the correct test on this fining (sic) as the correct test as required by the Migration Act. Therefore the RRT declined its jurisdiction when it reviewed my Protection Visa Application.

I have country information to convince this court that failed asylum seekers were detained and abused by the Sri Lankan authorities although this court has no power to take this information into account.

However, if this court sends my case back to the RRT I can provide it to the new member of the RRT when he freshly looks at me (sic) case.

20    The Minister opposed the application for leave to appeal on the basis that the decision below is not attended with sufficient doubt to warrant review of the exercise of the discretion summarily to dismiss the application.

21    For reasons which I will now set out, I accept that submission.

Consideration

22    As is evident from their terms, none of the three grounds set out in the application for leave to appeal is expressed as relating to the primary judge’s decision. Rather, they appear to relate to alleged errors committed by the Tribunal. Despite this drafting deficiency, I will approach them on the basis that the applicant intended to have those grounds apply to the decision of the primary judge in respect of which he now seeks leave to appeal.

23    As to the first ground, I do not consider that there is an arguable case that the primary judge erred in rejecting the applicant’s claim that the Tribunal had applied the wrong test after finding that the applicant would be detained at the airport on his return to Sri Lanka. I accept the primary judge’s reasons for concluding that the Tribunal applied the orthodox test at the hearing of his application, as summarised at [14] above. The applicant was unable to explain what he meant by “the correct test”.

24    Ground 2 appears to be a restatement in different terms of ground 1. The Minister submitted, however, that it might be read as raising an allegation that the Tribunal failed to consider whether the conditions faced by the applicant on detention at Colombo airport would amount to a relevant form of harm for the purposes of the Refugee Convention. The Minister submitted, and I accept, that if the allegation is read that way it is manifestly wrong having regard to the primary judge’s summary of the relevant parts of the Tribunal’s reasons.

25    Alternatively, the Minister submitted that if this ground is to be read as saying that the primary judge erred in not accepting his argument that the Tribunal had fallen into jurisdictional error by not concluding that the conditions he would face on return to Sri Lanka would amount to a relevant form of harm, two difficulties immediately arise. First, the Tribunal’s factual findings concerning the applicant’s treatment at Colombo airport were supported by country information which was referred to the Tribunal and such findings of fact are not open to judicial review in those circumstances (see Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J). Secondly, I also accept the Minister’s additional submission that the applicant has failed to identify any error in the primary judge’s finding that the Tribunal understood and applied the relevant law correctly.

26    As to ground 3 of the application for leave to appeal, it also involves some ambiguity because it is unclear whether the alleged jurisdictional error and breach of natural justice relate to the Tribunal, the Federal Circuit Court, or both. Assuming that the ground applies to the primary judge’s failure to find jurisdictional error and procedural unfairness on the part of the Tribunal, I accept the Minister’s submission that the Tribunal’s procedural fairness obligations are to be found in Div 4 of Pt 7 of the Act and the applicant has failed to identify any non-compliance with those obligations on the part of the Tribunal. In those circumstances, I am not satisfied that there is any arguable point in respect of procedural unfairness.

27    The applicant was also unable to identify any alleged jurisdictional error on the part of the Tribunal other than those which he raises in grounds 1 and 2 of his application for leave to appeal, which I have rejected on the basis that there is insufficient doubt as to the correctness of the primary judge’s reasons for not accepting the applicant’s contentions on those matters (see DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399).

28    Nor do I consider that any of the three grounds set out in the applicant’s draft notice of appeal warrant a grant of leave. The first of those grounds claims that the Court below did not make a finding that the Tribunal committed jurisdictional error. For the reasons given above, I agree with the primary judge’s reasoning for rejecting the applicant’s allegation of jurisdictional error. The second draft ground of appeal is to the effect that the Court below “has not made a finding that the RRT has gone (sic) its jurisdiction”. Assuming that the intention is to allege that the Court below should have found that the Tribunal had exceeded its jurisdiction, I consider that allegation to be unarguable for similar reasons to those given above in respect of draft ground 1.

29    The third draft ground of appeal is to the effect that the Court below did not find that the applicant had been denied procedural fairness by the Tribunal. Again, I consider this point to be unarguable having regard to the reasons set out above.

30    As Judge Nicholls observed, it is evident that the applicant’s essential concern is to have the Tribunal consider fresh information which was not available to it previously which the applicant says supports his case. That material was not placed in evidence before the Tribunal, the Federal Circuit Court or me. As I emphasised to the applicant in the course of the hearing he needed to persuade me that he had reasonable prospects of establishing that Judge Nicholls committed an appellable error in dismissing his application summarily. I am not so persuaded.

31    If the applicant wishes to pursue the new evidence which he says he can obtain, he might seek advice on the effect of ss 48A and 48B of the Act to his individual circumstances. The Court cannot advise him on those matters.

32    For all these reasons the application for leave to appeal should be dismissed with costs. I will make a fixed costs order pursuant to r 40.02(b) of the Federal Court Rules 2011 in the amount of $4,113.

Associate:

Dated:    7 August 2014