ACX15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). The Tribunal had affirmed an earlier decision of a delegate of the first respondent ("the Minister") to refuse to grant the appellant a Protection (Class XA) Visa. 2 Ground 1 in the notice of appeal alleges that the FCC fell into error in finding that the Tribunal assessed the appellant's claims cumulatively and singularly. The appellant had argued that the Tribunal had failed to assess his claim of persecution based on his religion, referring to his statutory declaration in support of his application for a protection visa under the heading "Introduction", in which he stated that his religion was Christian. The FCC dismissed that ground holding that "no claim was made that remotely touched upon the [appellant's] Christianity. The FCC was correct to dismiss that ground. As the FCC correctly stated, the Tribunal was not required to consider a case that was not expressly made or which did not clearly arise on the materials before it: NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [68]; Minister for Immigration & Border Protection v SZSWB [2014] FCAFC 106. Neither the materials, nor the evidence before the Tribunal, indicated that the appellant, by stating in the statutory declaration that his religion was Christian, was articulating a claim for persecution based upon his religion. There is accordingly no substance in this ground. 3 Ground 2 of the appeal is that: The learned judge erred in his finding despite the poor quality of the interpretation at the hearing there was no jurisdictional error established because the [appellant] has not protested about the quality of the interpretation at the hearing. The learned judge erred because the appellant was incapable of protesting as he did not understand English language - SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 - delivered on 23 May 2017. 4 This ground relates to a ground in the application for review by the FCC which alleged that the Tribunal had breached s 420(1) and Part VII, Division 4 (as the section was when the decision was made) of the Migration Act 1958 (Cth) ("the Act") by employing an interpreter not competent to the task and thereby fell into legal error. In the course of considering this ground, the FCC stated that nowhere in the transcript of the hearing before the Tribunal was there any reference to the appellant protesting in any way about the interpretation of work performed by the interpreter. The FCC then went through each of the nine matters cited by the appellant as instances of incompetent or inadequate translation. Having reviewed the transcript, the FCC concluded that nothing in the exchanges on which the appellant relied indicated that the appellant was denied a real and fair hearing and no jurisdictional error was committed by the Tribunal based upon the quality of the interpretation. No error has been disclosed in the FCC's consideration of that ground. The reasons record that the dismissal of the ground was based upon a consideration of the transcript itself and the instances put forward by the appellant said to be supporting the ground, not upon the basis that the appellant had not protested about the quality of the interpretation at the hearing. 5 The final ground of appeal concerns the Full Court decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. At the hearing before the FCC, the appellant had applied for leave to raise a new ground which appeared to seek to challenge the Tribunal's finding that the appellant did not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally. The FCC did not grant leave, stating amongst other things, that the Full Court's decision in SZTAL currently bound the Court. The ground of appeal is that: The learned judge finding that his honour was bound by the current law established in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, which was subject to High Court Appeal was an unreasonable application of the law. 6 This ground is also misconceived. The Full Court decision in SZTAL was the relevant law at the time and, in any event, the High Court has now given judgment in the appeal and, by a majority, dismissed the appeal: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. It follows that there would have been no substance in this ground had leave been granted. 7 Accordingly the appeal must be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.