SZSZR v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This matter involves an application for leave to appeal a decision delivered on 11 April 2014 by Judge Nicholls in the Federal Circuit Court of Australia. In that decision, Judge Nicholls dismissed the applicant's judicial review application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The applicant requires leave to appeal that decision because of its interlocutory nature. Under r 44.12, the Federal Circuit Court may dismiss an application for judicial review brought under s 476 of the Migration Act 1958 (Cth) (the Act) if it is not satisfied that the application raises an arguable case for the relief claimed. It is common ground that the Federal Circuit Court's power to grant relief depended upon it being satisfied that the decision dated 24 May 2013 of the Refugee Review Tribunal (the Tribunal) to refuse to grant the applicant a protection visa was affected by jurisdictional error.

Background 2 Relying on Judge Nicholls' summary of the relevant facts, the relevant background matters may be summarised as follows. 3 The applicant is a Sri Lankan national who arrived in Australia by boat on 18 May 2012 without a visa. The applicant applied for a protection visa which was refused by the Minister's delegate on 9 October 2012. The applicant unsuccessfully sought a review of that decision by the Tribunal. He argued before the Tribunal that he feared persecution from Sri Lankan authorities for several reasons, namely: (a) his Tamil ethnicity; (b) his Hindu religion; (c) his occupation as a fisherman who worked in areas previously dominated by the Liberation Tigers of Tamil Eelam (LTTE); and (d) on return to Sri Lanka he would be imputed with an adverse political opinion because of his "irregular" departure from the country, his claims for protection in Australia, his association with his brother-in-law's brother, whom he said is a known LTTE member, and his support for a particular political party in 2010. 4 In support of these claims, the applicant made the following factual assertions: (a) the Sri Lankan police came to his house in 2005 looking for him. They told his family that he should report to the police station, but he did not do so. He claimed that the police interest in him related to him having given a lift on his motorbike to his brother-in-law's brother, who is a known LTTE member or because he had just returned from fishing in an LTTE controlled area; (b) in 2006 he was detained by police in a general round-up and was released after three hours without further incident; (c) his fishing business had been affected since the end of the civil war in Sri Lanka because of an increase in Sri Lankan soldiers in his fishing area and restrictions imposed on Tamil fishermen; and (d) a local politician had threatened Hindus in his home area. 5 The primary judge also noted the number of occasions when the applicant had departed and re-entered Sri Lanka before eventually coming to Australia. On the first occasion, prior to 2002, he was returned to Sri Lanka by Saudi Arabian officials. He said he was interrogated on return to Sri Lanka. In 2005, he returned to Sri Lanka from India and acknowledged that nothing adverse occurred to him on his return. Later in 2005, he went to Thailand and was flown back to Sri Lanka after being detained for two weeks for not having a visa. He initially claimed that nothing happened to him on his return, but in his protection visa application he said he had been interrogated and assaulted by Sri Lankan officials. In his interview with the Minister's delegate he then said that he was treated "like a tourist" returning to the airport and had encountered no problems. 6 In his amended judicial review application below, the applicant complained that the RRT did not apply the correct test as required by the Act in finding that, while returnees were interrogated they may be kept in detention in harsh conditions for a few days whilst identity and background checks were being undertaken. 7 The primary judge found that the Tribunal had dealt with each of the applicant's claims and that it made findings of fact which were reasonably open to it on the material to hand. The primary judge also noted that the Tribunal approached its task on the basis that, while there were some concerns about the applicant's evidence, overall it found the applicant to be a mostly credible and reliable witness. 8 The primary judge then set out at some length in his reasons for judgment the Minister's written submissions in respect of each of the applicant's claims and adopted those submissions as an accurate description of the background to the proceedings. 9 At [13] of his reasons for judgment, the primary judge described the relevant question in a hearing under r 44.12 as whether the amended application raised an arguable case for the relief sought by the applicant. 10 The primary judge also noted at [15] that the applicant sought to pursue only one matter in the Court, which was directed to the treatment of returnees, presumably with the applicant's profile, on return to Sri Lanka. His Honour pointed out at [16] that it had not been made clear what jurisdictional error was said to arise from the applicant's complaint. His Honour further observed at [17] that the applicant acknowledged that the Tribunal had turned its mind to the treatment of returnees to Sri Lanka but that he complained that the Tribunal still found that he would not suffer either significant or serious harm if he were to return to Sri Lanka. His Honour described that complaint as relating to factual findings and conclusions made by the Tribunal, which constituted an impermissible request for the Court to engage in a merits review. At [18], Judge Nicholls said: In light of what is set out in the Tribunal's decision record, and as reported and addressed in those aspects of the Minister's written submissions focused on the question of returnees which I have adopted for the purposes of this judgment, the applicant's ground is simply a complaint about the factual findings, and conclusion, made by the Tribunal. Findings which, in relation to returnees to Sri Lanka were reasonably open to the Tribunal to make, and for which it gave reasons. 11 The primary judge also noted the essentially "unhelpful" nature of the applicant's submissions and noted, in particular, that the applicant was unable to explain what the "correct test" was under the Act notwithstanding his complaint that the Tribunal had failed to apply the "correct test". 12 The primary judge also made reference to the acknowledgement in the applicant's written submissions that the Court was unable to consider any new country information which had come to hand after the Tribunal hearing on the question whether failed asylum seekers were detained and abused by Sri Lankan authorities. The primary judge noted that the applicant had stated in his written submissions that if the Court were to return his case to the Tribunal, his case could be looked at afresh by a new Tribunal member, which the primary judge said confirmed his view that the applicant's complaint was with the factual findings made by the Tribunal. 13 The primary judge also added that he understood the applicant to complain that, even though the Tribunal found that he would be likely to be detained on return and kept in a harsh environment, it erred in not finding that this would amount to serious or significant harm. The primary judge noted that the Tribunal had explained why it considered that, even though the applicant might be detained and interrogated, this would not amount to serious or significant harm. Those reasons included the fact that the applicant was not a person who was of past interest to the Sri Lankan authorities, nor would he be perceived to be associated, or connected, with the LTTE. The Tribunal also pointed to the fact that there was country information which indicated that being a failed asylum seeker alone was not a reason for being harmed or targeted on return. It also drew attention to the fact that the applicant had not been harmed on his return to Sri Lanka on three previous occasions. 14 The primary judge found that, notwithstanding the applicant's claims that the Tribunal had not applied the "correct test", he considered that the Tribunal's understanding and application of the relevant tests in respect of both Convention claims and those based on the complementary protection criteria were "entirely orthodox". His Honour added that the application of those tests to the facts as presented and found were also without legal error. 15 While his Honour accepted that the applicant was aggrieved by the Tribunal's findings and conclusions, no jurisdictional error was revealed and there was no arguable case in favour of the relief sought. 16 Finally, the primary judge addressed the question whether the applicant was also complaining that the Tribunal had fallen into the same error as that identified in SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123 (as affirmed on appeal by Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025), namely where a decision-maker focuses on the ultimate outcome of interrogation and detention rather than on the process of detention and interrogation itself. However, Judge Nicholls found that it was evident that the Tribunal was plainly aware of that distinction and made clear that it focused on the process at the airport as well as the outcome of that process, in considering both serious and significant harm. 17 For all these reasons, the primary judge concluded that there was no arguable case for the relief sought by the applicant and his application was dismissed summarily.