SZTCU v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 By an amendment made by leave, the appellant has raised as a ground of appeal that: The Refugee Review Tribunal has 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 undertaking a qualitative assessment of the nature and degree of the harm experienced by the applicant when being questioned and investigated by the authorities of the airport, the Tribunal failed to apply the test of serious harm pursuant to section 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45]. [sic] 2 The Minister for Immigration and Border Protection (Minister), quite properly, did not oppose the amendment of the notice of appeal to raise that ground. Rather, the Minister's stance was that, having regard to the findings made by the Tribunal in relation to the general application of the law under which the applicant prospectively faced at least a brief period of remand detention upon return to Sri Lanka, the case was one where the appellant, whatever may be the merits of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN), was faced with a finding of fact that engaged with s 91R(1)(b) and s 91R(2)(c) of the Migration Act 1958 (Cth) (the Act). The Minister's submission in riposte was that, the criteria in s 91R(1) being cumulative, a finding of an absence of discriminatory conduct, in other words the existence of a law of general application, was fatal to any ability to show, definitionally, that there was persecution. 3 That particular approach to a distinguishing of the reasoning in WZAPN commended itself earlier this month to Rares J in two cases: SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (SZSPT) and SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 (SZTBE). Indeed, earlier this week, in SZTUL v Minister for Immigration and Border Protection, NSD 912 of 2014, that approach also commended itself to me in ex tempore reasons which I delivered on 26 November 2014 (see STZUL v Minister for Immigration and Border Protection [2014] FCA 1427). 4 The appellant's primary application today was that the appeal ought to be adjourned. The basis for the adjournment application was not just that WZAPN was the subject of an as yet undetermined special leave application in the High Court, but also that the Court had adopted an approach whereby the issue raised in WZAPN was to be determined in a specially convened sitting of a Full Court of the Court in the course of the February appeal sittings. It was further submitted that what one might term the line of authority for which SZSPT and SZTBE stands was itself the subject of imminent application to the High Court for special leave. The adjournment application was then cast on the basis that both the appellant's ground of appeal and the Minister's basis of resisting the appeal were each subject to either existing or extant challenges such that, as a matter of fairness and particularly having regard to the approach adopted by the Court institutionally in relation to the question of WZAPN, the case ought to be adjourned in the same way that others have been adjourned, even though there was an attempt by the Minister to distinguish WZAPN. 5 Whilst I do not have a formal copy of a filed application for special leave before me, I accept unreservedly, the statement made on instructions by counsel as to the imminence of a special leave application to challenge the Minister's riposte point. That being so, the interests of justice, in my view, are best served by dealing with this case in conformity with others where the WZAPN controversy has become manifest. Had I been aware of the imminence of challenge on Wednesday last, I may well have taken a different view in that case. The difficulty in respect of Wednesday's case was that the applicant there was unrepresented, while the Minister was represented. The Minister did not have, because nothing had yet been served, the benefit of having, as do those appearing for the appellant in this case, the knowledge that there was a special leave challenge imminent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.