SZTBW v Minister for Immigration and Border Protection

JUDGE: PERRY J DATE: 25 NOVEMBER 2014 PLACE: SYDNEY

1. introduction 1 The appellant is a citizen of Sri Lanka. He appeals a decision of the Federal Circuit Court of Australia given on 13 August 2014 dismissing his application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) that affirmed a decision refusing to grant him a protection (Class XA) visa (protection visa): SZTBW v Minister for Immigration and Border Protection [2014] FCCA 1809. 2 By way of submissions filed on 14 November 2014, the appellant sought leave to amend his notice of appeal filed on 3 September 2014 so as to abandon the grounds originally pleaded and to plead a new ground of appeal instead, namely: (1) Her Honour erred in failing to discern legal error in circumstances where the second respondent applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question. Particulars a. By undergoing a qualitative assessment of the nature and degree of the harm experienced by the appellant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of His Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45]. 3 The decision in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 (WZAPN) was delivered on the day that the original notice of appeal was filed and is currently the subject of an application by the Minister for special leave to appeal to the High Court (M99/2014). There are also a number of migration appeal cases in this Court which seek to follow WZAPN, two of which have been referred to the Full Court for hearing in the February sitting (NSD662/2014 - SZTIB v Minister for Immigration and Border Protection and NSD1044/2014 - SZTEQ v Minister for Immigration and Border Protection). As the proposed ground relies upon the decision in WZAPN, the appellant applied at the hearing before me for the appeal to be adjourned pending consideration of the correctness of that decision by the High Court or the Full Court. 4 The appellant's written and oral submissions addressed only the proposed new ground of appeal. No submissions were made in the alternative in support of the original grounds of appeal and counsel for the appellant accepted that the appeal should be dismissed if leave to amend was refused. The Minister opposed the application for leave to amend primarily on the ground that the proposed new ground of appeal had no reasonable prospects of success. 5 At the hearing on 24 November 2014, I refused leave to amend the notice of appeal. In essence, as I explain below, even if the appellant were to succeed on the proposed new ground of appeal, the validity of the Tribunal's decision would be sustained by an independent ground not challenged by the appellant. As such, the appeal must be dismissed irrespective of the correctness of the decision in WZAPN. Accordingly, I also refused the application to adjourn the hearing of the appeal and dismissed the appeal. I expand upon my reasons below

2.1 The appellant's claims 6 The appellant claims to be a citizen of Sri Lanka of Hindu faith and Tamil ethnicity. He first arrived in Australia on or about 17 May 2012 without a visa, having departed illegally from Sri Lanka without a passport. He claimed to fear harm from the authorities in Sri Lanka due to his Tamil ethnicity, imputed political opinion by reason of his purported involvement with the Liberation Tigers of Tamil Elam (the LTTE), and his membership of a particular social group of "failed asylum seekers".

2.2 The Tribunal's decision 7 The appellant applied for a protection visa on 22 August 2012. Section 36(2) of the Act relevantly provides that a criterion for the grant of a protection visa under s 65 is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country… 8 Section 91R of the Act expands on the notion of persecution and "serious harm", relevantly providing that: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty... (emphasis in original) 9 A delegate of the Minister (delegate) refused the appellant's application for a protection visa on 9 October 2012 pursuant to s 65 of the Migration Act 1958 (Cth) (the Act). 10 The appellant sought review of the delegate's decision by the Tribunal. The appellant had three hearings before the Tribunal and gave evidence on each occasion. In the course of the hearings, the Tribunal explored his claims with him in some detail and gave him the opportunity to respond to its concerns about his evidence and country information. 11 On 20 June 2013 the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. 12 Relevantly for present purposes, the Tribunal considered whether the appellant would suffer persecution by reason of his illegal departure from Sri Lanka. It found that it is likely that the appellant, having departed Sri Lanka otherwise than by a port of lawful departure and without a Sri Lankan passport, would be arrested and charged with a breach of the departure laws under section 45(1)(b) of the Immigration and Emigration Act (Sri Lankan departure laws). The Tribunal also accepted that it was likely that the appellant would be held on remand pending a hearing but was also likely to be granted bail within a few days, with his parents as guarantors. The proposed ground of appeal seeks to challenge this finding on the ground that the Tribunal wrongly engaged in a qualitative assessment of the significance of the harm that the appellant might suffer. However, the Tribunal also found that the Sri Lankan departure laws were neither discriminatory on their face nor in their intent, and that those laws are applied regardless of ethnicity to all persons who are returnees. As such, the Tribunal found that "the application of the breach of departure laws in Sri Lanka to the applicant will be the enforcement of a law of general application and not itself persecution for a Convention reason" and that "the few days the applicant will be held on remand on his return to Sri Lanka will be as a result of the non-discriminatory operation of a law of general application". These findings are not sought to be challenged on this appeal. 13 After considering all of his claims, the Tribunal concluded that the appellant did not satisfy the conditions for the grant of a protection visa under s 36(2)(a) of the Act. Nor was the Tribunal satisfied that the appellant was a person in respect of whom Australia otherwise owed protection obligations and thereby satisfied the alternative criteria for a protection visa under s 36(2)(aa).

2.3 The decision of the Court below 14 The appellant's application for review of the Tribunal's decision to the Court below was dismissed on the ground that the appellant had failed to establish that the Tribunal's decision was tainted by jurisdictional error (at [70]). The appellant raised two grounds of review, both of which challenged the Tribunal's rejection of the appellant's alternative claim to meet the complementary protection criteria for the grant of a protection visa under s 36(2)(aa) of the Act. In contrast to the proposed ground of appeal, no challenge was made below to the Tribunal's decision insofar as it rejected the appellant's claim for a protection visa under s 36(2)(a) of the Act on the ground that he was a person to whom Australia has protection obligations under the Refugees Convention.

3. CONSIDERATION 15 In my view, the application for leave to amend the notice of appeal must be refused for the reason that the proposed new ground lacks any reasonable prospects of success. In this regard, I would not necessarily have regarded as determinative the fact that the proposed ground had not been agitated before the primary judge given among other matters that it seeks to apply the reasoning of Justice North in the decision of WZAPN which postdates the decision below. The Court has a discretion to allow a party to advance a ground of appeal not advanced at first instance where the point has merit and it is in the interests of justice to do so: Iyer v Minister for Immigration and Cultural Affairs [2000] FCA 1788; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. However the lack of merit in the proposed ground here is determinative. 16 The sole ground of appeal in the proposed Amended Notice of Appeal contends that the Court below erred in failing to hold that the Tribunal applied the wrong test and/or asked itself the wrong question, in determining what constitutes "serious harm" as defined in s 91R(2)(a) for the purposes of 91R(1)(b). The appellant submitted that in determining whether he risked being subjected to "serious harm", the Tribunal erred in engaging in a qualitative assessment of the circumstances of the appellant's detention, rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the appellant's liberty. It was submitted that this approach is inconsistent with the reasoning of North J in WZAPN at [30] and [45]. In that case his Honour found that on a proper construction of s 91R, "serious harm" is constituted by a "threat to the person's life or liberty" without reference to the severity of the consequences to life or liberty. His Honour therefore found that the reviewer erred by making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant. North J also found that the reviewer had denied the applicant procedural fairness in concluding that the applicant did not suffer persecution because the detention was pursuant to a law of general application: WZAPN at [46], [54] - [75]. 17 Counsel for the appellant submitted that the appeal should be adjourned until the hearing of the Full Court matters and that there would be no prejudice to the respondent in doing so. The appellant`s counsel also submitted that the error alleged was a jurisdictional error that tainted the decision as a whole and rendered the decision invalid, regardless of whether there was an independent ground to support the Tribunal's decision. 18 As to the latter point, it will be recalled that the Tribunal here also found that the application of the Sri Lankan departure laws that may occasion the deprivation of liberty of the appellant and thereby constitute "serious harm" were "laws of general application" not discriminatory on their face or otherwise, or in their application. Unlike WZAPN, no challenge is sought to be made to this finding. 19 The Minister opposed any adjournment, submitting that, even if the error alleged was made out, the appeal would inevitably be dismissed because the Tribunal's decision was sustained by this unchallenged independent ground: see SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (McKerracher J) at 26 [102] and 27 - 28 [114] (Reeves J). Specifically, counsel for the Minister submitted that, even if the Tribunal applied the wrong test under s 91R(2)(a) in determining whether the criterion in s 91R(1)(b) of the Act was met, it found in any event that the criterion in s 91R(1)(c) was not satisfied. It followed that the feared "persecution" did not constitute persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as each of s 91R(1)(a)-(c) must be satisfied: VBAO v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 233 CLR 1 at 5 [4] and 17 [49]. No jurisdictional error, it was therefore submitted, could be found in the Tribunal's decision that the criteria for the grant of a protection visa were not met. 20 The Minister's submission is, with respect, plainly correct. Consistently with this, a number of decisions postdating WZAPN have distinguished WZAPN precisely because the Tribunal's decision could be upheld on an independent basis, namely that (as here) the Sri Lankan illegal departure laws were laws of general application and were not discriminatory on their face, nor in their application: SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183 (Robertson J) at [5], [22]; SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 (Rares J) at [41], [49] - [53]; SZSPT v Minister for Immigration and Border Protection [2014] 1245 (Rares J) [4]; SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 (Katzmann J) [64], [65], [69]. 21 Counsel for the appellant accepted that the decisions distinguishing WZAPN to which I have referred could not be distinguished but submitted that I should decline to follow those cases on the ground that they were wrongly decided. Before I could adopt that course, it would be necessary for me to find as a matter of judicial comity and precedent that those decisions are 'plainly wrong': see Snedden (aka Vasiljkovic) v Minister for Justice of the Commonwealth (2013) 306 ALR 452 (Davies J) at [17]. Far from being so persuaded, I consider that they are clearly correct. In my view, those cases reflect no more than the application of established principle to circumstances analogous to those in the present case. Counsel for the appellant could not refer to any authority in support of his proposition that the validity of an administrative decision, if tainted with jurisdictional error in one respect, cannot be sustained by the existence of an independent and lawful basis for the decision. Nor did he, with respect, put any developed submission as to why those decisions were plainly wrong.

4. Conclusion 22 For these reasons, I dismissed the application for leave to amend the notice of appeal and refused the application to adjourn the hearing of the appeal. The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.