FEDERAL COURT OF AUSTRALIA

SZRKL v Minister for Immigration and Border Protection [2017] FCA 1309

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the orders of the Federal Circuit Court of Australia made on 10 May 2017 dismissing, with costs, the application for judicial review made to that Court on 9 January 2015. The decision under review by the Federal Circuit Court was made on 12 December 2014 by the then Refugee Review Tribunal (Tribunal), affirming the decision not to grant the appellant a Protection (Class XA) visa.

2    The appellant was born in 1993 at Jaffna, in northern Sri Lanka. He is of Tamil ethnicity and follows the Hindu religion.

3    The notice of appeal to this Court took the following form:

The Appellant appeals from the whole of the judgment of the Federal Circuit Court of Australia given on 10 May 2017 in Sydney.

Grounds of appeal

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 Respondent erred in law, with the error being a jurisdictional error, by failing to consider and assess my claims of being a young single Tamil male from the North of Sri Lanka.

Particulars

There is nothing in the findings of the AAT in the respect of this ground. The Respondent made a finding that I will be held in degrading conditions in prison for arriving in Australia illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane

Ground 2

The Respondent made an error in law in assessing the criterion in s36(2)(aa).

Particulars:

The Respondent did not make any assessment and finding in this respect.

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

Proceedings in the Tribunal

4    The Tribunal proceeded on the basis that it could only consider the appellant’s claims under the complementary protection provisions in s 36(2)(aa) of the Migration Act 1958 (Cth). It did this applying the reasoning in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235.

5    At [44], the Tribunal said it did not accept the appellant’s claims about what happened to him in Sri Lanka before leaving for Australia because it did not accept that his evidence was credible. It set out a number of reasons for that conclusion, at [45]-[65].

6    At [70] and following the Tribunal considered the fact that some personal information about the appellant was unintentionally accessible on the Department’s website in February 2014.

7    At [77] and following, the Tribunal considered the appellant’s activities in Australia. The Tribunal accepted that the appellant had attended various Tamil community activities in Australia, including sport, and that he was living with a Tamil family. Otherwise the Tribunal did not accept the appellant’s claims because it had found that he was not a credible witness.

8    At [83] and following, the Tribunal considered the appellant’s return to Sri Lanka as a failed asylum seeker. The Tribunal found that the appellant had left Sri Lanka legally but concluded that it did not accept that there would be substantial grounds for believing that there was a real risk that the appellant would suffer significant harm if he returned from Australia to Sri Lanka. The Tribunal said it accepted the assessment made by the Department of Foreign Affairs and Trade at pages 22 to 23 of its 3 October 2014 Country Report on Sri Lanka, under the heading “Treatment of Returnees”. The Tribunal also referred to the Department’s “Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam”, also dated 3 October 2014.

The statutory provisions

9    Section 36 of the Migration Act provided relevantly as follows:

36  Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

The judgment of the Federal Circuit Court

10    The primary judge first summarised the relevant background of the case and then set out a summary of the Tribunal’s decision. His Honour then adopted the Minister’s application of numbers to what was set out in the “grounds”, so that some structure could be given to what the appellant had put before that Court. That took the following form:

[1] The RRT has declined its jurisdiction to me by failing to consider and assess one of my main claims for my Protection Visa and for my Complementary claims in Australia being I am a young single Tamil male from the North of Sri Lanka.

[2] The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A.

[3] I had a legitimate expectation that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments if they found any negative information in respect of my RRT review after the hearing.

[4] The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by was of a further hearing or respond to me in writing their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which RRT did not consider.

Particulars

The RRT did not raise/or put to me in writing part of parts of the adverse decision for me to comment in writing.

[5] The RRT has declined its jurisdiction to me by failing to consider the Refugee Convention criterion in s 36(2)(a) of my Convention claims.

I will provide the particulars of the grounds, before my final court hearing, after I have listened to the RRT hearing recording.

[Errors in original.]

11    The judge then considered ground 1 at [14]-[28], ground 2 at [29]-[36], ground 3 at [37]-[44], ground 4 at [45]-[48] and ground 5 at [49]-[50].

The submissions of the parties

12    The appellant filed no written submissions and made no oral submissions either in chief or in response to the submissions on behalf of the Minister.

13    The Minister submitted that the first ground of review, set out at [10] above, corresponded with the first ground of appeal. This ground was dealt with by the Court below at [14]-[28] and the judge found that the Tribunal fully considered the appellant’s claims and to the extent that the appellant’s submissions meant no more than the appellant did not agree with the Tribunal’s conclusions, that ground was not a proper ground of judicial review. The Minister submitted the reasons of the Court below regarding ground 1 did not disclose any appellable error; indeed, they were plainly correct.

14    The Minister submitted that the second ground of the amended application was never particularised, nor was any information identified which was said to attract the operation of s 424A. The Minister submitted the treatment of this ground by the judge was free from appellable error.

15    As to the third ground, the Minister submitted there was no basis for alleging legal error on the approach of the judge in this respect. The judge concluded that there was no basis for concluding that any “negative information” was relied upon by the Tribunal in reaching its conclusion. Nor had anything occurred after the hearing which may have warranted a further hearing invitation to be extended. The appellant had not pointed to any representation made by the Tribunal upon which he relied.

16    As to the fourth ground, the Minister submitted that, again, the primary judge noted that the appellant failed to identify the so-called “information” and that at the hearing the appellant explained that this complaint was that he did have further information to give to the Tribunal which, for reasons not explained, he elected not to give. The Minister submitted the primary judge was correct in rejecting this ground of review.

17    As to ground 5, the Minister made his written submissions on the basis that ground 2 of the notice of appeal picked up this ground, to the effect that the Tribunal erred in failing to consider the appellant’s claims under s 36(2)(a) of the Migration Act. The Tribunal rejected the submission that it should deal with both the Refugee Convention claims as well as the claims under the complementary protection provisions. The Minister submitted that this approach had subsequently been endorsed as correct in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366. The Minister submitted the primary judge rejected the ground on the basis of that authority and would have erred if he had not done so.

Consideration

18    In my opinion there is no appellable error in relation to ground 1. Plainly the Tribunal did consider the appellant’s claims that he was a young single Tamil male from the North of Sri Lanka. There is no error in the analysis of the primary judge at [14]-[28].

19    There is no substance in ground 2 concerning s 424A. The appellant did not identify how the Tribunal did not comply with s 424A.

20    As to ground 3, the legitimate expectation ground, it has no factual or legal basis and must fail. I see no error in the analysis of the primary judge at [37]-[44].

21    The same applies to ground 4: it goes without saying that there was no general obligation on the Tribunal to put to the appellant in writing “part or parts of the adverse decision for me to comment on writing”. I see no error in the analysis of the primary judge at [45]-[48] of the judgment.

22    Ground 5 must fail in light of the decision of the Full Court in SZVCH.

23    As to the reference in the notice of appeal to the Tribunal making “a finding that I will be held in degrading conditions in prison for arriving in Australia illegally” it does not appear that the Tribunal made such a finding, although it did consider, at [83]-[89], the appellant’s claim as a failed asylum seeker return to Sri Lanka. Neither does it appear that such a claim was made to it or that it was a ground of judicial review which was before the primary judge. In addition, the subsequent decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (unreported, 6 September 2017) provides no support for such a ground.

Conclusion and orders

24    The appeal is dismissed, with costs.

Associate:

Dated:    9 November 2017