FEDERAL COURT OF AUSTRALIA

SZTEP v Minister for Immigration & Border Protection [2015] FCA 1499

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellant’s application on 23 April 2015 to adjourn the hearing of his application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision not to grant him a protection visa was refused by the primary judge in the Federal Circuit Court of Australia. His application was ordered to be dismissed. He now appeals from the order of dismissal.

2    At the hearing of the appeal the appellant sought to tender six photographs, which are apparently of an army camp at a place called Udappuwa. He also sought to tender certain documents: folios from UN report concerning abuses of human rights in Sri Lanka; a report entitled “Torture of Tamil detainees in Sri Lanka has continued, says charity”. He also sought to adduce additional evidence.

3    The first respondent opposed the tenders.

4    I reject the tender of this material. Neither the photos nor the documents were before the Tribunal. In any event, the photos would not have added anything to the appellant’s arguments there. Likewise, the documents related to human rights in Sri Lanka, which was the subject of country information considered by the Tribunal.

5    Although the Notice of Appeal is “from the whole judgment and all the orders”, there is no ground to the effect that the primary judge erred in the exercise of her discretion in ordering that the application for an adjournment be refused. If there had been I would have rejected it. Her Honour’s reasoning in that respect discloses no error of law. This, of itself, is sufficient reason to dismiss the appeal.

6    Nonetheless I will deal with the appellant’s stated grounds of appeal. I do so because his first language is not English and he was self-represented before me: see also SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262 at [7]-[10].

The Federal Circuit Court proceedings

7    The appellant’s counsel conceded before the primary judge that as her Honour proposed to refuse the application for an adjournment that the application for judicial review could not succeed. Accordingly, the application was dismissed.

8    The reason for the refusal to adjourn the hearing lay in two grounds relied upon by the appellant in his application for judicial review. The first ground was the same as one rejected by Driver J in a number of cases in the Federal Circuit Court but which were then subject to appeals to this Court. The appellant argued that his hearing should be adjourned in order to await the outcome of those appeals. The appeals were from the following judgments: SZTAL v Minister for Immigration & Anor [2015] FCCA 64, SZTCY v Minister for Immigration & Anor [2015] FCCA 85, and SZTGM v Minister for Immigration & Anor [2015] FCCA 87.

9    The appellant also sought an adjournment having regard to the issues raised in his second ground for judicial review. This relied expressly on a decision of North J in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477 at [30] and [45]. It was conceded by the appellant before the primary judge that this decision was no longer good law having regard to later decisions of the Full Court of this Court in several other cases. One of these is SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497. However, the appellant sought the adjournment because WZAPN was on appeal to the High Court and judgment had been reserved: at [15]-[16] of her Honour’s reasons.

10    Additionally to the appellant's written submissions, counsel for the appellant made further oral submissions to the primary judge that the application for an adjournment in relation to the claims put in the second ground in the Further Amended Application was now maintained on the basis of an argument made to the High Court in relation to the appeal from the decision in WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82, which was heard at the same time as the appeal in WZAPN: at [19] and [20] of the reasons.

11    The primary judge considered herself bound to follow the Full Court decisions.

12    As to the first ground of the Further Amended Application, the primary judge concluded that she was not satisfied that it would be in the interests of the parties and the administration of justice to adjourn the hearing to await the decisions of the Full Court of the Federal Court in relation to the appeals against the decisions of Driver J: at [14]. Likewise, in relation to the adjournment sought having regard to the issues raised in the second ground, her Honour concluded that this was not a case in which it would be in the interest of the parties or in the administration of justice that there be an adjournment while the matter of WZAPN remained the subject of appeal to the High Court: at [17].

13    Her Honour also concluded that, in relation to the issue which the appellant now said was raised before the High Court in WZARV, there was authority of the Full Court of the Federal Court (SZTEQ) relevant to the issue that the appellant wished to raise in the second ground, and that she was bound to follow this rather than adjourn the matter while the issue was determined in the High Court: at [23]-[24].

The appeal

Ground 1

14    Ground 1 was not raised before the primary judge. Leave to raise this ground was not sought. Even if I were minded to grant leave to the appellant to raise this new ground, and I am not, the appellant made no written or oral submissions in relation to either a grant of leave or the substantive ground itself.

15    I accept the first respondent’s submission that in any event ground 1 has no merit. The Tribunal referred to the High Court decisions of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 and concluded that the Sri Lankan Immigrants and Emigrants Act “is a law that on its face applies equally to all persons and the information before the Tribunal indicates that it is not being selectively enforced or applied in any way”. This conclusion was reasonably open to the Tribunal.

Ground 2

16    Ground 2 asserts that the primary judge erred in failing to apply the reasoning of WZAPN to the appellant’s case.

17    I reject this. As I have explained, the primary judge observed at [16] that it was conceded that the authority of WZAPN was no longer good law having regard to the decisions of the Full Court of the Federal Court in SZTEQ, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41. Again, as I mentioned, her Honour also noted at [17] that the prospects of the High Court WZAPN appeal were not addressed and that, having regard to the arguments accepted by the Federal Court in SZTEQ, it had not been established that there were reasonable or arguable prospects of success in relation to WZAPN. No error is manifest in so concluding.

18    In any event, the decision of WZAPN has been overturned by the High Court: Minister for Immigration and Border Protection v WZAPN (2015) 146 ALD 480. Ground 2 fails.

Ground 3

19    Ground 3 asserts that the primary judge erred in failing to find that the Tribunal had misconstrued or misapplied ss 5 and 36(2A) of the Migration Act 1958 (Cth) (the Act).

20    Ground 3 of the Notice of Appeal is similar to Ground 1 of the Further Amended Application. The particulars are confined to the issue of the appellant's likely brief detention in the event that he returned to Sri Lanka and the conditions of detention accepted by the Tribunal.

21    There was no error by her Honour in failing to uphold Ground 1 of the Further Amended Application.

22    The primary judge set out the following at [10]-[11]:

10.    Counsel for the Applicant appeared to suggest that the reason the matter should be adjourned related to whether it was an error for the Tribunal to consider intention in the way that it did. In this case the Tribunal considered a number of issues in relation to the definitions of the concepts that amount to significant harm as follows (at [156]-[157]:

While I accept, based on the available media reports, that the conditions of detention the applicant will face whilst detained will be crowded, cramped and unpleasant, I do not accept that, having regard to my findings about the circumstances and duration of the detention the applicant will face, there is a real risk that the applicant will be subjected to pain and suffering that could reasonably be characterised as ‘cruel or inhuman treatment or punishment’ or that he would be intentionally subjected to treatment or punishment that would amount to ‘degrading treatment or punishment’ within the meaning of subsection 5(1) of the Act. I find that the conditions the applicant would face will not cause extreme humiliation which is unreasonable and that the treatment or punishment he would face on remand for a short period could not reasonably be regarded as degrading treatment or punishment.

I find, on the basis my assessment of the applicant’s evidence and profile and the available country information, that there are not substantial grounds for believing that there is a real risk the applicant will face ‘significant harm’ either during the processing at the airport or while he is detained on remand or after the applicant returns to Udappu for reasons relating to his status as a failed asylum seeker and/or his illegal departure from Sri Lanka. (Footnotes omitted).

11.    In other words, there was an omnibus finding in relation to a number of issues but including the issue of intention. The findings of the Tribunal in this case were not limited to the question of intention, but extended to various aspects of the definitions of significant harm, having regard to the nature of what would be experienced by the Applicant on remand.

[Emphasis added.]

23    Those findings were reasonably open to the Tribunal.

24    SZTAL is authority for the proposition that the phrase “intentionally inflicted” under s 5 of the Act requires an actual, subjective intention on the part of the person bringing about the suffering by his or her conduct: at [47], [49] and [57]. An appeal from this is pending.

25    No submission was put to me that SZTAL is plainly wrong. I, for my part, am of the view that it was correctly decided and I would not depart from it.

26    Ground 3 also fails.

Grounds 4 and 7

27    I do not know what the appellant means to challenge in Ground 4. Ground 7 appears to seek merits review. The grounds do not in their terms disclose appealable error on the part of her Honour.

Ground 5

28    Ground 5 is difficult to understand. Again no submissions were put as to this by the appellant. I reject this ground.

Ground 6

29    Ground 6 asserts that the primary judge failed to consider or apply the heavy burden on the respondents in considering whether to dismiss the proceedings. I reject this ground. The reasons of the primary judge to which I have referred are detailed and disclose orthodox reasoning, paying due regard to binding precedent.

30    In those circumstances, and in the absence of any ground of appeal challenging her Honour's decision refusing to grant an adjournment of the hearing, the appellant cannot succeed in relation to Grounds 2 and 3 of his Notice of Appeal. The appeal in relation to those grounds should accordingly be dismissed with costs.

Conclusion

31    For these reasons the appeal will be dismissed with costs.

Associate:    

Dated:    23 December 2015