FEDERAL COURT OF AUSTRALIA

SZTHL v Minister for Immigration and Border Protection [2014] FCA 1178

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA), which was delivered on 11 July 2014. The sole ground of appeal is that the FCCA “has not made a finding that the RRT committed jurisdictional error”.

2    The appellant represented himself both here and below. In his notice of appeal, he requested that he be provided with a pro bono lawyer by the Court. He was advised by the Court Registry that the Court was not obliged to provide him with such assistance but he was given the names of several organisations who might be able to provide him with pro bono assistance. The Court Registry advised the appellant on 16 October 2014 that his appeal would be heard on 5 November 2014.

3    The day before the hearing (i.e. 4 November 2014), the appellant telephoned the Court Registry and advised that he would not be attending the hearing because he had an illness and would be seeing a doctor about it on either of those two days. He was asked to confirm this by email, together with a doctor’s certificate if possible. Later on 4 November 2014, the Registry received a medical certificate dated that day in which a doctor from the Civic Park Medical Centre in Pendle Hill certified that the appellant “has a medical condition and will be unfit for work/daily activities/studies from 04/11/2014 to 04/11/2014 inclusive”. Attached to the medical certificate was a prescription dated 4 November 2014 by the same doctor prescribing 30 40 mg Nexium tablets for the appellant.

4    In my view, it is significant that the medical certificate did not cover the day of the hearing. This, coupled with the fact that the certificate did not identify the relevant medical condition, diminishes the weight to be given to the medical certificate. I do not consider that the appellant provided a sufficient evidentiary basis to support any request for the hearing to be adjourned.

5    Under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the Court may order that an appeal be dismissed where an appellant fails to attend a hearing relating to the appeal. In the circumstances here, I prefer to adopt the course taken by Flick J in Hu v Minister for Immigration and Citizenship [2009] FCA 1288 and proceed to hear and determine the appeal in the appellant’s absence.

Summary of background facts

6    The following summary of the background facts draws heavily on the FCCA’s reasons for judgment. The appellant did not challenge the correctness of any of the following facts.

7    The appellant is a citizen of Sri Lanka who arrived in Australia on 28 June 2012 as an “Irregular Maritime Arrival”. On 15 November 2013 he applied for a protection (Class XA) visa. He claimed to fear harm from the Sri Lankan Army, Sinhalese people and from paramilitary groups. He claimed that at the end of 2005, he was accused of being a member of the LTTE and was badly beaten.

8    The Minister’s delegate refused to grant him a visa. The appellant sought a review of that decision by the Refugee Review Tribunal (the Tribunal). He was represented at the hearing and an earlier representative provided written submissions in support of his application. On 19 August 2013, the Tribunal affirmed the delegate’s decision to refuse him a protection visa.

The Tribunal’s decision

9    The appellant’s then representative submitted to the Tribunal that the applicant feared harm by reason of his race, imputed political opinion and membership of the following social groups: young Tamil males; a person who has resided out of Sri Lanka for a period of time and an asylum seeker returnee from a western country. Arguments were also advanced in support of his complementary protection claim, which was mainly directed to his contention that he had a suspicious profile as a Tamil male without a stable residence in Sri Lanka.

10    The Tribunal found the appellant to be not credible. It rejected his claims that he had been detained by the authorities in Sri Lanka. The Tribunal found that the appellant’s “story and dates of when and where he lived and worked have in part changed” and that some of the variations were major and impacted significantly on his overall credibility. It identified the most significant variations as those relating to his claims of harm in both Colombo and Trincomalee in mid and late 2005 respectively. The Tribunal attached particular significance to the changes in the appellant’s claims as made to the Minister’s delegate and then subsequently to the Tribunal on the question whether or not he returned to work with a bank in Colombo after the alleged incident in Trincomalee in late 2005 and prior to him leaving Sri Lanka in 2006. The Tribunal concluded that the change in the appellant’s claims on this subject was intended to cover “the obvious issue”, which was that if he continued to work in Colombo for six months after the alleged Trincomalee incident, this indicated that he was of no ongoing interest to the authorities arising from that incident. The Tribunal also found it to be relevant that the appellant had provided false and misleading information in his original application, when he claimed that he was assessed by the UNHCR in Sri Lanka to be a refugee and was then sent by them to India. Although the appellant later retracted this claim, the Tribunal found that it impacted adversely on his credibility.

11    The Tribunal did not accept that the appellant was of any adverse interest to Sri Lankan authorities after he left that country in mid-2006. It also noted that he made no claims of belonging to or having an association with any political party or group.

12    Having regard to country information, the Tribunal was not reasonably satisfied that the appellant would face any future harm in connection with his Tamil ethnicity, or because he was a Tamil from the east of Sri Lanka or as a young male. While the Tribunal accepted that the appellant might be questioned on his return to Sri Lanka, it did not accept that he would face any consequential harm.

13    As to the appellant’s claim that he would be arrested for having illegally departed Sri Lanka, the Tribunal found that he had departed legally in 2006 and would not be arrested.

14    The Tribunal rejected the appellant’s claims under both sub-ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act).

The FCCA proceeding

15    The appellant brought proceedings under s 476 of the Act. He raised the following five grounds of review (without correction):

Ground 1

The Tribunal committed jurisdictional error as it did not properly look at my social group.

Particulars

The Tribunal did not look at my social group being young Tamil male from my part of Sri Lanka instead the Tribunal looked at the young male from particular region. The Tribunal did not look at my residence in India.

Ground 2

The Tribunal committed jurisdictional error as it did not properly look at my complementary protection.

Particulars

The Tribunal did not look at my situation, my father's involvement in politics and the risk it posed to me as young Tamil male from my part of Sri Lanka.

Ground 3

The Tribunal erred in its assessment of well-founded fear.

Particulars

The Tribunal did not look at my encounter with the authorities.

Ground 4

The Tribunal erred when it adopted a particular standard of proof instead of looking at the (see RRT decision paragraphs 31-39).

Ground 5

The Tribunal committed jurisdictional error as it denied procedural fairness by the Tribunal not allowing the Applicant to properly present its case.

16    The primary judge found grounds 1 to 4 to lack substance. As to ground 1, the primary judge held that the appellant’s claims as particularised were clearly dealt with, as was apparent from [39] of the Tribunal’s reasons for decision. As to ground 2 and the claim that the Tribunal erred in considering the complementary protection criteria by failing to consider the appellant’s situation, including his father’s involvement in politics, the primary judge observed that the Tribunal did not accept that the appellant’s father’s activities were of any consequence to him and it did not accept that he had ever been of adverse interest to the Sri Lankan authorities.

17    The primary judge also rejected the appellant’s submission that the Tribunal erred by relying on its findings concerning his claims to be a refugee to also dispose of his claims to complementary protection (citing and applying SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57] per Robertson J).

18    As to ground 3, the primary judge found that, contrary to the appellant’s assertion, the Tribunal did consider the appellant’s claim that he had had an encounter with Sri Lankan authorities after a bombing in Trincomalee in 2005 (as reflected in [24] and [25] of the Tribunal’s reasons for decision).

19    As to ground 4, the primary judge found that the Tribunal had not adopted the wrong standard of proof and that it had clearly applied the “language of the [Act]”.

20    Ground 5, which alleged procedural unfairness, was also rejected by the primary judge in relation to the following three matters which were advanced by the appellant:

(a)    as to his claim of having been disadvantaged at the Tribunal hearing because of a hearing impairment, the primary judge found that the appellant did not raise this issue at the Tribunal hearing. His Honour added that the appellant’s hearing seemed unaffected at the FCCA hearing. Also, medical evidence indicating that the appellant suffered from a hearing impairment post-dated the Tribunal hearing;

(b)    the primary judge also rejected the appellant’s claims that there were interpretation difficulties at the Tribunal hearing. He noted that the appellant was proficient in both English and Tamil and could therefore have raised any interpretation difficulties with the Tribunal if in fact there were any; and

(c)    as to the appellant’s claim of procedural unfairness in being unable to present “corroborative documents” to the Tribunal after the hearing, the primary judge found that it was open to the appellant or his representative to raise any additional material during the period April to August 2013 (i.e. the period between the hearing and publication of the Tribunal’s decision) and they failed to do so.

21    The primary judge reviewed the “corroborative documents” which the appellant said supported his case. His Honour noted that many of them post-dated the hearing and he described as “debatable” whether the documents lent any support to the appellant’s claims. However, one document which the primary judge said was “of some significance” was a document which purported to be a photocopy of the appellant’s identity card, issued by the government of Tamil Nadu State in India. That document identified the appellant as a refugee, at least for the purposes of the State Government in India. His Honour commented that this document in particular might have supported the appellant’s claims but the fact remained that the appellant had not provided it, or any of the other “corroborative documents” to the Tribunal. Accordingly, there was no procedural unfairness arising from his failure to provide the additional documents to the Tribunal.

Disposal of the appeal

22    As noted above, the only ground of appeal was that the primary judge erred in not finding that the Tribunal had committed jurisdictional error. In his affidavit in support of his appeal, the appellant also stated that he did not agree with the decisions of either the Tribunal or the FCCA. He added that he had already stated the grounds of review in his FCCA application and that he still relied on those grounds. The appellant did not seek to file a written outline of submissions (nor was he directed to do so). As noted above, the appellant failed to attend the hearing of his appeal.

23    In my respectful opinion, the primary judge did not err in finding that the appellant had failed to establish that the Tribunal had committed jurisdictional error. I respectfully agree with his Honour’s reasons, as summarised above, for rejecting the appellant’s judicial review claims in respect of each of the five grounds raised by him. It is unnecessary to repeat that reasoning.

24    As the appellant was unrepresented, I have also considered whether the primary judge erred in not finding jurisdictional error in the Tribunal’s decision and reasons in a manner which was not directly pleaded by him. I discern no such jurisdictional error.

25    The appeal must be dismissed and the appellant should pay the respondents’ costs. Orders will be made accordingly.

Associate:

Dated:    5 November 2014