FEDERAL COURT OF AUSTRALIA

SZTOV v Minister for Immigration and Border Protection [2014] FCA 942

THE COURT ORDERS THAT:

1.    The Amended Application for an extension of time and leave to appeal from the decision of the Federal Circuit Court refusing an adjournment is allowed.

2.    The decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708 is set aside.

3.    The Amended Application for an extension of time to appeal from the decision of the Federal Circuit Court dismissing the proceeding pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) is allowed.

4.    Leave to appeal from the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 2) [2014] FCCA 735 is refused.

5.    The First Respondent should pay the costs of the Applicant in respect to the Amended Application for an extension of time and leave to appeal in respect to the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708.

6.    The Applicant should pay the costs of the First Respondent in respect to the Amended Application for an extension of time and leave to appeal from the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 2) [2014] FCCA 735.

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

REASONS FOR JUDGMENT

1    In November 2013 the Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

2    In December 2013 an Application was filed in the Federal Circuit Court of Australia seeking review of the decision of the Tribunal. In that Court the Applicant was called upon to “show cause” why a remedy should not be granted. That Court published two decisions, namely:

    a decision published on 8 April 2014 refusing an application for an adjournment (SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708); and

    a decision published on the same date dismissing an application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that “the application has [not] raised an arguable case for the relief claimed” (SZTOV v Minister for Immigration & Border Protection (No 2) [2014] FCCA 735).

The Applicant now seeks an extension of time and leave to appeal from these two decisions.

3    The Application for extension of time and leave to appeal was first filed on 9 May 2014 but later amended on 30 July 2014. At the same time, the Applicant also filed an Outline of Submissions.

4    The Applicant appeared before this Court represented by Senior Counsel; the Respondent Minister was also represented by Counsel.

5    It is concluded that an extension of time and leave to appeal should be granted in respect to the former decision of the Federal Circuit Court refusing the adjournment and that that decision should be set aside. It is further concluded that a necessary consequence of the Federal Circuit Court wrongfully refusing the adjournment was that the Applicant was denied a proper opportunity to advance his case when it was called on for hearing before that Court to “show cause” why a remedy should not be granted. But it is concluded that the Amended Application for leave to appeal from that decision should be refused.

The requirements to extend time and grant leave

6    An extension of time is required because an application for leave to appeal must be filed within 14 days “after the date on which the judgment was pronounced”: Federal Court Rules 2011 (Cth), r 35.13(a) (“Federal Court Rules”). More than 14 days elapsed between the two Federal Circuit Court judgments on 8 April 2014 and the filing of the Application for extension of time and leave to appeal on 9 May 2014.

7    Leave to appeal is required because an appeal to this Court from an interlocutory judgment is not to be “brought ... unless the Court or a Judge gives leave to appeal”: Federal Court of Australia Act 1976 (Cth), s 24(1A). In the present proceeding, leave to appeal is required because:

(i)    in respect to the former decision, a decision refusing an adjournment is an interlocutory decision: Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165 at [27], (2002) 42 ACSR 128 at 135 per Sackville, Kenny and Allsop JJ; and

(ii)    in respect to the latter decision, the Application was dismissed by the Federal Circuit Court Judge pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(2) expressly provides that to “avoid doubt, a dismissal under paragraph 1(a) is interlocutory”. See also: SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [20] per Cowdroy J; Vatti v Minister for Immigration and Border Protection [2014] FCA 893 at [2] to [3] per Mortimer J.

In Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ summarised the circumstances in which leave may be granted as follows:

[4]    In the light of our conclusion that the orders below are interlocutory, it is necessary to consider whether leave to appeal should be granted. That requires application of the test enunciated by another Full Court of this court in DÉcor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397. That test is:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

[5]    As indicated by the conjunctive “and,” that test is cumulative. It is not satisfied unless each limb of the test is made out…

See also: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [34] per McKerracher J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [30] per Cowdroy J. The onus lies on the party seeking leave to appeal: cf. Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdroy J; SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] per Flick J.

8    Of present relevance is the oft-repeated observation that an application for leave to appeal should not be conducted as though it is a preliminary hearing of the appeal itself: Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1446 at [26]. Reeves J there referred with approval to the “rough and ready” approach suggested by Brennan CJ and McHugh in Jackamarra v Kraouer [1998] HCA 27, (1988) 195 CLR 516. Their Honours there observed:

[9]    One reason that an appellate court does not go into “much detail on the merits” in considering whether the time for an appeal should be extended is because ordinarily it only has “limited materials and argument”. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess “the merits” in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases - this was obviously one - where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself "that one story is good until another is told” and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.

See also: Petroulias v Commissioner of Taxation [2011] FCA 795 at [45], (2011) 84 ATR 110 at 122 to 123 per Reeves J; ACE Insurance Ltd v Trifunovski [2012] FCA 235 at [9], (2012) 291 ALR 46 at 49 per Flick J; Cash’s (Australia) Ptd Ltd v Foster’s Australia Ltd [2013] FCA 695 at [5] per Davies J.

9    Rule 35.14 of the Rules of this Court sets forth the manner in which an application for an extension of time to seek leave to appeal is to be made, including r 35.14(3) which provides as follows:

The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2);

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

The refusal of the adjournment & its aftermath

10    It is the refusal of the adjournment which attracts greatest concern.

11    The proceeding in the Federal Circuit Court commenced with an Application filed on 3 December 2013. The Grounds of application were there set forth as follows (without alteration):

1.    The Tribunal failed to indicate to me it was suspicious about the credibility of my claims in clear words and therefore the Tribunal confused itself regarding the facts of my case.

2.    The Tribunal did not comply with its obligations Pursuant to Section 424A and 424AA and thereby made jurisdictional errors. Full particulars will be provided.

3.    I fear going back to Sri Lanka because my life is in danger by the authorities and paramilitaries. I am currently seeking advice and the full particulars will be provided.

Thereafter, it would appear from the reasons for decision of the Federal Circuit Court Judge that:

    on 12 March 2014 there was a directions hearing at which the limitations upon the role of that Court were explained to the Applicant and the “consequences that would flow to him if a costs order was made against him” ([2014] FCCA 735 at [8] to [10]). The Applicant was “provided contact details of legal services provided and translating and interpreting services” ([2014] FCCA 708 at [3]). Directions were made for the filing of an amended application and any further evidence and the matter was set down for hearing on 8 April 2014; and

    on 8 April 2014 the Federal Circuit Court was advised by the Applicant that he had an appointment with a lawyer on 23 April 2014 and that “this date was the first available appointment” ([2014] FCCA 708 at [1]).

By 8 April 2014 there had not been filed any amended application or any further evidence. The application for an adjournment was refused.

12    The reasons for refusing the adjournment were shortly stated as follows:

[5]    In my view, the applicant has had a reasonable amount of time to seek legal advice. There has been no Notice of Appearance filed on behalf of the applicant, nor an amended application. I am mindful that there is a public interest in ensuring that administrative decisions are finalised (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]). Further, as McHugh J stated at [17]:

“An applicant‘s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari.”

Reference was then made to the “wholly unparticularised grounds” set forth in the Application and the reasons of the Federal Circuit Court Judge continued:

…

[8]    It is of concern to the Court that matters set down for hearing on the basis they do not raise an arguable case can be delayed by an applicant making an appointment with a lawyer some time after the date of the scheduled hearing. As stated above, the lawyer identified by the applicant has not filed a Notice of Appearance and no other document has been filed by or on behalf of the applicant in circumstances where directions were made on 12 March 2014, today being 8 April 2014 and in respect of which the applicant said he told the lawyer.

[9]    In considering the overall interests of justice, in view of all of the circumstances, the applicant‘s application for an adjournment should be refused.

13    An affidavit sworn 5 May 2014 has been filed in this Court by the legal representative with whom the Applicant maintained he had an appointment, a Mr Pathmanathan. That affidavit was obviously not available to the Federal Circuit Court Judge. It deposes to the fact that the Applicant had approached Mr Pathmanathan in March 2014 and confirms the appointment on 23 April 2014. But the fact of the forthcoming conference was made known to that Court. The lawyer states that he thought the 8 April 2014 date was a mention and not the hearing date.

14    In reviewing the decision of the Federal Circuit Court Judge to refuse the adjournment, it is to be recognised at the outset that appellate courts and courts entertaining a proceeding by way of judicial review will rarely disturb the decisions of judicial officers or tribunals to grant or refuse adjournments: Squire v Rogers (1979) 39 FLR 106 at 113 to 114 per Deane J. In Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 Kirby P (as his Honour then was) made similar observations but went on to further observe:

Nevertheless, the foregoing principles do not go so far as to hold that adjournments are effectively unreviewable, that an injustice occasioned by their refusal is irrelevant and that challenges by way of appeal or to the prerogative writs are hollow gestures to be met always by the incanted mantra upholding the primary decision-maker, whatever he or she has done. Each application to this court invokes its jurisdiction which is then to be exercised judicially. If a serious injustice has been occasioned by a refusal of an adjournment, and particularly one which can and should be readily corrected, this court may provide relief and in the appropriate case should do so.

A “failure to accede to a reasonable request for an adjournment can constitute procedural unfairness”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40], (2002) 209 CLR 597 at 611 per Gaudron and Gummow JJ. Instances can thus be provided where the refusal of an adjournment has been held to be a denial of an opportunity to be heard: e.g., Warrell v Fair Work Australia [2012] FCA 267 at [9] per Perram J. The refusal of a short adjournment may mean that an application is “doomed to failure”: cf. Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [76], (2014) 308 ALR 280 at 295 per Allsop CJ, Robertson and Mortimer JJ. But a refusal to grant an adjournment to enable a party to secure legal representation may not constitute a denial of procedural fairness: e.g., Papas v Westpac Banking Corporation [2014] FCA 290. Whether there has been a denial of procedural fairness depends upon the facts and circumstances of each individual case. See also: SZRBN v Minister for Immigration and Citizenship [2012] FCA 984 at [14] to [16] per Flick J.

15    In the circumstances of the present case, it is concluded that:

    the exercise of the discretion to refuse an adjournment has miscarried; and that

    the refusal of the adjournment denied the Applicant a meaningful opportunity to be heard.

Without attempting to be exhaustive, two considerations relevant to the exercise of the discretion included the amount of time for which the adjournment was sought and the absence of prejudice to the opposing party. But such matters were apparently not taken into account. In circumstances where the proceeding was commenced in December 2013, an adjournment to accommodate a consultation with a legal adviser, some two weeks later in April 2014, does not seem to be unreasonable in the absence of prejudice. The timely disposition of proceedings seeking to challenge administrative decision-making, together with the failure to comply with the directions made on 12 March 2014 and the time that had already been available to obtain legal advice, are but other considerations to be taken into account. Those factors, it would seem, dictated the conclusion in the present case that the adjournment was to be refused. But that conclusion could only be potentially upheld where there has been an exercise of discretion that properly takes into account other relevant considerations.

16    One can readily understand judicial scepticism as to the motives of those who belatedly seek adjournments – especially where there has already been more than adequate time in which to seek legal advice. But the importance of properly exercising a judicial discretion remains, especially one which potentially precludes a party from advancing his claims in the best manner possible – or, indeed, at all. And, contrary to the conclusion of the Federal Circuit Court Judge, the Grounds upon which review was sought may well have attracted greater scrutiny – with respect – than they received. Although perhaps inelegantly expressed and although they may well have been ultimately unsuccessful, it was most probably erroneous to conclude that the Application was one which did not raise an “arguable case” and one which was to be summarily dismissed. Reasons which simply conclude “that matters set down for hearing … do not raise an arguable case…” ([2014] FCCA 708 at [8]) will not suffice. But, in the present case, it would (perhaps) be permissible to read the reasons in respect to the refusal of the adjournment in combination with the reasons separately provided for dismissing the proceeding: [2014] FCCA 735 at [15] to [29]. The discretionary powers being exercised – one to refuse an adjournment and the other to dismiss the proceeding pursuant to r 44.12(1)(a) – are truly significant powers to be exercised with great care. And, when exercised, adequate reasons should be provided. The mere expression of a conclusion that there is “no arguable case” – without other explanation – would not have been sufficient.

17    Without conceding that the Federal Circuit Court Judge erred in refusing the adjournment, Counsel for the Respondent Minister quite properly made limited submissions in opposition to that conclusion.

18    In the present proceeding, it is concluded that the Applicant should not have been denied the opportunity to seek legal advice and the opportunity to potentially recast the existing Grounds, or to provide further particulars or to provide further Grounds. The fact that the Grounds may ultimately be found to be wanting and the fact that those Grounds may not have been able to be meaningfully recast subsequent to legal advice being received, does not detract from the importance of ensuring the Applicant was given the opportunity to be properly advised.

19    An extension of time and leave to appeal should be granted with respect to the decision refusing the adjournment: SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708. And the appeal from that decision should be allowed.

20    The necessary consequence of the refusal of the adjournment was that the Applicant was confined when called upon to show cause as to why his proceeding should not be dismissed to the Grounds then set forth in his Application filed in December 2013. The conclusion that the adjournment should have been allowed, it is respectfully considered, necessarily leads to the further conclusion that an extension of time should be granted in respect to the application for leave to appeal from that decision. But the refusal of the adjournment does not also lead to the conclusion that leave to appeal should be granted in respect to the decision to dismiss the proceeding.

Substantial injustice v arguable error?

21    A necessary consideration relevant to the grant of leave to appeal in respect to the decision to dismiss the proceeding was the strength of the arguments sought to be now canvassed.

22    On behalf of the Respondent Minister it was contended that the arguments sought to be canvassed – and, possibly, the same arguments that could have been advanced had the adjournment been granted – lacked sufficient merit to warrant leave being now granted.

23    Whether the arguments now sought to be advanced would have been the same had the adjournment been granted matters not. What matters is that any prejudice that may previously have been occasioned to the Applicant by his being denied the benefit of legal advice and denied the benefit of advice in respect to perceived error on the part of the Refugee Review Tribunal has now been remedied. Since the decisions of the Federal Circuit Court, the Applicant has had the benefit of legal advice from his solicitor, Junior Counsel and now Senior Counsel.

24    With the benefit of legal advice, the Applicant’s Outline of Submissions in this Court relevantly focussed attention upon two jurisdictional errors said to be found in the reasons for decision of the Refugee Review Tribunal and/or the approach of the Federal Circuit Court Judge, namely:

    a misconstruction and application of s 91R of the Migration Act; and

    a failure to comply with ss 424A and 424AA of that Act.

25    As required by r 35.14(3) of the Federal Court Rules, the affidavit of Mr Pathmanathan annexed a Draft Notice of Appeal. The proposed Grounds of Appeal were then expressed as follows:

10.    Judge Emmett incorrectly found that the allegation of breach of s424A and s424AA could be summarily dismissed because the RRT’s reasons made clear that no information that formed part of the RRT’s reason’s for affirming the decision under review that was required to be given to the applicant for comment pursuant to either ss424A or 424AA of the Act (at [23]).

11.    Judge Emmett failed to have regard to the use made by the RRT, as part of its reasons, of information provided by the applicant orally to the Department within the meaning of the proviso to the exception in s424A(3)(ba)- see [8] of the Tribunal Decision (footnote 2) and the aggregation of those claims – particularly at [14] which information is used inaccurately, incompletely and to the applicant’s detriment at [59] and [60] of the Tribunal’s reasons. See also [21] (footnote 3) the oral statement to the Department that the person taken in the white van was related to him was distinguished from other versions of the statement and then discounted by omission at [58].

The Amended Application filed in this Court in July 2014 proposed a further Ground of Appeal, namely:

14.    Judge Emmett erred by finding that there was no jurisdictional error apparent on the fact of the record.

Although Senior Counsel for the Applicant briefly flirted with the argument founded upon ss 424A and 424AA of the Migration Act 1958 (Cth) (“Migration Act”), it was a breach of s 91R that was the focus of attention during the course of oral submissions before this Court. Presumably reliance upon s 91R was sought to be embraced by Ground 14.

26    Section 91R provides as follows:

Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person's life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(3)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

On behalf of the Applicant it was variously contended that the decision of the Refugee Review Tribunal exposed jurisdictional error in respect to what constituted “serious harm” for the purposes of s 91R(1)(b) and (2); on behalf of the Respondent Minister it was contended that the facts as found by the Tribunal were not capable of constituting “significant physical harassment” or “significant physical ill-treatment” for the purposes of s 91R(2)(b) and (c) and were not capable of constituting “systematic” conduct for the purposes of s 91R(1)(c).

27    There remained, however, disagreement between the parties as to how far this Court should go in resolving those arguments. For the Applicant it was contended that this Court should go no further than resolving the question as to whether those arguments were sufficient to show “arguable error” – that being sufficient to resist the dismissal of his application when he was called upon by the Federal Circuit Court to “show cause”. For the Minister it was contended that this Court should go further – this Court, it was submitted, should in the present proceeding resolve the arguments as if on a final hearing.

28    The cautionary restraint urged on behalf of the Applicant has been resisted. The arguments now relied upon, it is respectfully concluded, should be finally resolved. The arguments were fully developed by Senior Counsel for the Applicant and Counsel for the Minister was content to present argument as if on a final hearing. The resolution of the arguments sought to be raised involved nothing more than a consideration of the reasons for decision of the Tribunal. A different approach could well be pursued where (for example) an applicant seeking leave to appeal may not be in a position to place before the Court all materials relevant to the hearing of an appeal as opposed to an application for leave to appeal. A resolution of the arguments sought to be advanced in the present proceeding can just as readily be resolved finally by this Court without the necessity for the same arguments to be resolved by the Federal Circuit Court.

29    The arguments, it is concluded, should be rejected.

Section 91R

30    With the benefit of the legal advice that was previously denied to him, the Applicant finally settled upon an argument as to jurisdictional error arising by reason of a misconstruction or misapplication of s 91R of that Act.

31    These errors contended that:

    the Tribunal by characterising conduct involved in the forced performance of “manual labour” as “unpleasant” failed to have regard to what constituted “serious harm” for the purposes of s 91R(2) – that error, it was contended, was exposed by paragraphs [59] and [62] of its reasons for decision;

    the Tribunal erred in failing to apply the correct test in paragraph [64] of its reasons for decision by reason of failing to recognise that the Applicant “was a Tamil with particular attributes, namely who had been subjected to various conduct, namely that earlier identified in paragraph 55 through to 58 …, including [the] … omission in the reasoning to identify any link with his father and the link to the fact that his father had been threatened and beaten…”; and

    the Tribunal erred “in respect to the complementary protection issue” by “the rolling together of the tests” in paragraphs [118], [120] and [122] of its reasons for decision.

The Applicant’s written Outline of Submissions also contended that:

    the Tribunal had “directed attention to whether ‘serious harm’ had in fact been suffered, rather than to whether there was a real chance of serious harm occurring if the applicant was returned thus revealing a misunderstanding of the correct statutory test”.

Each of these arguments, it is respectfully concluded, missed their mark.

32    Any analysis of the reasons for decision of the Tribunal necessarily starts with its “Consideration of Claims and Evidence”. Under that heading, the Tribunal addressed claims that persons were forced to do “manual labour such as cutting up wood, chopping trees or carrying sandbags”. After recounting those claims, the Tribunal’s reasons recounted the following:

11.    The applicant comes from the village of Ondachimadan in the district of Batticaloa. His mother, his brother and sisters live in that village. They are all supported by his father who works in a jewellery shop in Jaffna.

12.    The applicant attended a college in Batticaloa and completed his education in 2007. After that, he worked in his grandfather’s jewellery shop in Batticaloa for one and a half years and lived with his maternal aunt for that period.

13.    After that he returned to his native village and began his own business which was a CD shop. At times the army would come to the shop and take things but not pay. He ran this business for approximately one year before closing it in the latter part of 2009 because the army had damaged the premises.

14.    This happened because someone went into the army camp and shot another person. The soldiers were angry and damaged properties in the area including the applicant’s shop. In addition they came to his home and took his father to the camp and held him overnight. They beat him and threatened that if a person died then he would die. After that incident, the applicant’s father returned to his work in Jaffna and came back to the native village to see family.

…

17.    He said this happened again on occasions after that. When asked if he was ever taken to a camp or police station to be interrogated he said that they would come to the house in his native village and take people from there to a camp where they had to do manual labour such as cutting up wood, chopping tress or carrying sandbags. He was not questioned on any of these occasions and when asked if he was ever beaten he said only if he refused to do the work.

18.    The applicant would do this work from morning to the evening, go home and report for work again the following day for however long it took to finish it. Most men in the village were asked to do this work, including his brother. When asked if this applied to Sinhalese as well, he said they did not live in that village. He thought the last time he was called up to do this work was at the end of 2011. On occasions, when he was running his business in his native village, the army would come and take some people who worked in the shop to do that work but not him.

19.    This also happened on occasions when he returned to his native village in the period that he lived with his grandfather and worked in his grandfather’s shop. However, it was only when he was in his native village that this happened. He was never taken away by the army to do this or for any other reason when he lived with his grandfather in Batticoloa. He added that in that period when he was living and working with his grandfather the occasions on which he would be stopped on the street by the army and asked about identification occurred when he returned to his native village.

20.    When put to the applicant that it appeared he had never been questioned on suspicion he was supporting the LTTE, the applicant said that on one occasion when he was running his business in his native village there was a roundup and he was asked about that.

33    Thereafter, and under the heading “Findings”, the Tribunal’s reasons include the following:

56.    The Tribunal finds credible the applicant’s account that on occasions he was stopped on the street by the army and hit if he did not have identification although this principally occurred in his native village (and not in his grandfather’s home in Batticaloa).

57.    The Tribunal finds credible his claim that, like others in his native village, he was rounded up and made to do unpaid labour on occasions (including when he returned to his native village while living with his grandfather); that the army detained his father and damaged his business in his native village after someone was shot in the army camp; that the army would come to his business, take things and not pay and that, on one occasion when he was running his business, the applicant was questioned on suspicion of supporting the LTTE.

58.    The Tribunal finds credible his claim that unknown persons got into his grandfather’s home, stole property and threatened the applicant and others not to report them to the police and that on one occasion greasemen got into the family home in the native village and were then frightened away. Finally, the Tribunal accepts as credible his claim that two people he knew (be they friends and a distant relative) had been abducted in a white van and he had heard of other people being abducted in his native area.

59.    However, even considering these matters cumulatively, they do not amount to serious harm. While occasionally being stopped on the street by the army and being made to do manual labour would be unpleasant for the applicant that does not amount to serious harm. The applicant was questioned only once by the army about a suspicion of supporting the LTTE and while the army detained his father and damaged his business premises (and took things without paying for them) the applicant was able to find other employment with his grandfather.

60.    While living and working with his grandfather, the only difficulty really encountered by the applicant was that unknown persons got into the grandfather’s home and stole property and threatened those present. This only happened once. While the applicant knew two people abducted in white vans, he did not know why they had been taken. While he claims that others had been abducted, in all his life in Sri Lanka that did not happen to him. On one occasion greasemen intruders entered the family home in the native village but no harm was caused and they have not been back.

61.    The applicant has been able to receive an education in Sri Lanka, obtain accommodation and also relatively continuous employment. His last place of residence in Sri Lanka was his grandfather’s home in Batticaloa where, as stated above, the only difficulty he has encountered was the one occasion on which intruders got into the home.

62.    His fear of returning to Sri Lanka is that unknown persons will harm him on suspicion that he is involved with terrorists (the LTTE). However, he could not say who these persons were and the applicant did not suffer serious harm in Sri Lanka in the past. There is no evidence that the army or anybody else in Sri Lanka has any adverse interest in this applicant. Based on the claims he has put forward, there appears not to be a real chance that, if he returns to Batticaloa, where he lived with his grandfather and where his native village is situated, he will suffer serious harm.

34    It is respectfully concluded that Counsel for the Respondent Minister was correct in her submission that these “claims” and “findings” as made by the Tribunal were not susceptible of bringing the Applicant within the phrase “serious harm” for the purposes of s 91R(1) and (2)(b) or (c) nor within the phrase “systematic … conduct” for the purposes of s 91R(1)(c).

35    There has, in particular, been no “misunderstanding of the correct statutory test”, as was the Applicant’s contention. In focussing attention upon the necessity to make an assessment as to whether there is a “real chance” of persecution if a claimant is returned to his country of nationality, Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 observed:

…a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality… I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

Contrary to the submission of the Applicant, the Tribunal has assessed both past conduct and the prospect of future harm and has done so by reference to whether there was established a “real chance” of “serious harm” being suffered in the future. That was the very task the Tribunal was undertaking (for example) in paragraph [62] of its reasons for decision.

36    There was, however, uncertainty as to the extent to which the Applicant was required to perform “manual labour”. Paragraph [18] of the reasons for decision when setting forth the “claims” made, for example, refers to “that work” – but goes on to state that the “last time he was called up to do this work was at the end of 2011” and that the army “would take some people who worked in the shop to do that work but not him”. The “Findings” made by the Tribunal at paragraph [57] record, however, that the Applicant “was rounded up and made to do unpaid labour on occasions…”. Similarly, paragraph [59] concludes that the Applicant was “occasionally … stopped on the street by the army” and made “to do manual work…”. But such “claims” and “Findings”, it is considered, would not bring the difficulties confronting the Applicant within the expression “serious harm”. The characterisation of the claims at paragraph [59] that the performance of “manual labour would be unpleasant” is not, in the context in which that observation is made, inappropriate.

37    Nor does the Applicant’s reliance upon the difficulties confronting his father expose any jurisdictional error. There has been no failure on the part of the Tribunal (at paragraph [57] of its reasons) to resolve “the full integers of that claim” (as set forth in paragraph [14] of its reasons). The claims made in respect to that conduct, as set forth in paragraphs [13] and [14], expose the fact that no claim was made in respect to the father subsequent to 2009. And the events that were described as occurring in 2009 was a response to a specific incident that had occurred, namely the shooting of a person at an army camp.

38    The finding made at paragraph [59] of the reasons for decision, being the paragraph identified by Senior Counsel on behalf of the Applicant as “the key paragraph”, is free of jurisdictional error.

39    It is separately concluded that the “findings” made by the Tribunal were not susceptible of being characterised as “significant physical harassment” or “significant physical ill-treatment”. Even if such findings fell within the description of “significant” physical harassment or physical ill-treatment, difficulty would be experienced in characterising such conduct as “systematic” for the purposes of s 91R(1)(c).

CONCLUSIONS

40    Leave to extend time in which to appeal from the decision of the Federal Circuit Court refusing the adjournment should be granted. Leave to appeal should also be granted and that decision should be set aside.

41    An extension of time should also be granted in respect to the Amended Application for leave to appeal from the second decision of the Federal Circuit Court dismissing the proceeding. But leave to appeal should be refused. Even if the adjournment had been granted and the Applicant afforded an opportunity to obtain legal advice in respect to potential challenges to the decision of the Refugee Review Tribunal, such arguments as were now relied upon lack sufficient merit to warrant the grant of leave to appeal. Indeed, each of those arguments should be rejected. The Applicant has not suffered any substantial injustice as to warrant the grant of leave to appeal.

42    To the extent that reliance was placed upon an asserted contravention of s 424A or s 424AA and not abandoned during the course of oral submissions, no error is exposed in this respect in the reasoning of the Federal Circuit Court Judge. The Applicant’s Written Outline of Submissions simply stated that it was “clear that the Tribunal did have regard to information which the applicant gave during the process that led to the decision under review which was given orally to the Department and so within the proviso to the exception in s 424A(3)(ba)”. But the “information” to which these submissions were directed remained unidentified. Greater specificity was, perhaps, provided by Ground 11 as set forth in the Draft Notice of Appeal. But, in any event, the acceptance by the Tribunal of the Applicant’s claims, rendered it difficult to envisage what oral evidence could potentially have fallen within ss 424A and 424AA.

43    The arguments founded upon s 91R have been found to be wanting.

44    Care should obviously be taken by the Federal Circuit Court in exercising its discretionary power to dismiss a proceeding. That power nevertheless exists and remains available to be exercised in an appropriate case. Care should also be taken by this Court in too readily resolving claims and arguments which the Legislature has entrusted to the Federal Circuit Court at the outset.

45    The appropriate order to be made as to costs is that costs should follow the event in respect to each of the two Applications advanced – the Applicant having been successful in one such Application, but unsuccessful in respect to the second.

THE ORDERS OF THE COURT ARE:

1.    The Amended Application for an extension of time and leave to appeal from the decision of the Federal Circuit Court refusing an adjournment is allowed.

2.    The decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708 is set aside.

3.    The Amended Application for an extension of time to appeal from the decision of the Federal Circuit Court dismissing the proceeding pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) is allowed.

4.    Leave to appeal from the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 2) [2014] FCCA 735 is refused.

5.    The First Respondent should pay the costs of the Applicant in respect to the Amended Application for an extension of time and leave to appeal in respect to the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 1) [2014] FCCA 708.

6.    The Applicant should pay the costs of the First Respondent in respect to the Amended Application for an extension of time and leave to appeal from the decision of the Federal Circuit Court in SZTOV v Minister for Immigration & Border Protection (No 2) [2014] FCCA 735.

Associate:

Dated:    2 September 2014