FEDERAL COURT OF AUSTRALIA SZSTL v Minister for Immigration and Border Protection [2014] FCA 48 Citation: SZSTL v Minister for Immigration and Border Protection [2014] FCA 48 Appeal from: SZSTL v Minister for Immigration and Border Protection [2013] FCCA 1802 Parties: SZSTL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 2388 of 2013 Judge: JAGOT J Date of judgment: 17 February 2014 Catchwords: MIGRATION Legislation: Migration Act 1958 (Cth) Cases cited: NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No 2) [2004] FCAFC 263 SZSTL v Minister for Immigration and Border Protection [2013] FCCA 1802 Date of hearing: 10 February 2014 Date of last submissions: 10 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: J Kay-Hoyle Solicitor for the First Respondent: J Nand of Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2388 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSTL Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 17 February 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2388 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSTL Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 17 February 2014 PLACE: SYDNEY REASONS FOR JUDGMENT The appeal 1 This is an appeal from a decision of the Federal Circuit Court of Australia (SZSTL v Minister for Immigration and Border Protection [2013] FCCA 1802). The primary judge dismissed an application for judicial review of the decision of the Refugee Review Tribunal (RRT) which had affirmed the decision of the Minister for Immigration and Border Protection (the Minister) not to grant a protection visa to the appellant. Background 2 The procedural and factual history of the case is set out in the primary judge's reasons at [5]-[10]. The appellant is a citizen of Malaysia of Indian ethnicity who arrived in Australia on 25 March 2012 on a visitor class 976 visa. On 2 May 2012, the appellant applied for a protection visa. On 10 August 2012, a delegate of the Minister refused the appellant's application. On 11 September 2012, the appellant lodged an application for review of the delegate's decision by the RRT. On 20 March 2013, the RRT affirmed the delegate's decision on the basis that it was not satisfied that the appellant met any of the criteria in s 36(2) of the Migration Act 1958 (the Act) by virtue of s 36(3), which provides: Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia… 3 The RRT found that the appellant was married to an Indian national, his grandparents were also Indian and, based on country of origin information, either of these relationships gave rise to a presently existing right to enter and reside in India. Further, the appellant had not taken all possible steps to avail himself of this right. The RRT then considered whether the appellant fell within any of the exceptions to s 36(3) provided for in sub-ss 36(4), (5) and (5A) of the Act. The RRT concluded that there was no evidence to support a finding to that effect. 4 On 15 April 2013, the appellant filed an application in the Federal Circuit Court seeking judicial review of the RRT's decision. The primary judge dismissed the application, finding no jurisdictional error in the RRT's decision. Ground 1 5 The appellant's first ground of appeal in this Court essentially restated the sole ground ultimately relied upon before the primary judge: 1. The Federal Circuit Court Judge failed to consider that the Tribunal's decision was affected by by judicial error in that the Tribunal failed to correctly apply the test in s.36(2B(a)) of the Migration Act 1958. 6 The particulars to the corresponding ground of the appellant's application to the Federal Circuit Court ([41]-[42]) provided: Having been satisfied that there was a risk real risk of significant harm to the Applicant in Malaysia, Tribunal was required to consider whether it was reasonable for him to relocate another country where there would not be a real risk that he would suffer such harm. The Tribunal failed to consider whether or not a Malaysian Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection. 7 The appellant's first ground relies upon s 36(2B)(a), which precludes the Minister from finding that there is a real risk that the applicant will suffer significant harm in a country if: it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm… 8 The first ground is misconceived. Section 36(2B)(a) is not a precondition to the Minister being satisfied that an applicant has not taken all possible steps to avail himself or herself of a right to enter and reside in a country other than Australia, as provided for in s 36(3), the provision on which the RRT relied. Nor, indeed, is it a precondition to the Minister finding that there is not a real risk that the applicant will suffer harm. To the contrary, s 36(2B)(a) has no application until the Minister is satisfied that there is real risk that the applicant will suffer significant harm. Having found that the appellant had a presently existing right to enter and reside in India, the RRT also found that there was no evidence that the appellant would suffer significant harm if he returned to India. Accordingly, the RRT had no reason to consider s 36(2B)(a). 9 To the extent that the applicant seeks to assert more generally that the RRT fell into jurisdictional error in failing to consider whether the appellant would be at risk of significant harm were he to return to India, this was dealt with in the primary judge's reasons at [29] and [44]-[46]. As the primary judge explained, the appellant's claim to this effect was raised for the first time on the final day of hearing before the primary judge. This claim was not raised before either the delegate or the RRT. The RRT asked the appellant why he did not stay in India and put to him that it would be investigating whether he had a right to enter and reside in India and that he would not be offered protection in Australia if this were the case. The only reasons given by the appellant for not wishing to reside in India at that time were that "the culture didn't suit him, he was brought up in Malaysia and it was also too hot in India and he felt sick on two or three occasions" (RRT's reasons at [29]; primary judge's reasons at [44]). The primary judge concluded (at [49]) that, in these circumstances, the RRT's findings that the appellant had a right to enter and reside in India and has not taken all possible steps to avail himself of that right, were open to it. I agree. 10 As the primary judge explained at [46], the function of the RRT was to respond to the case that the appellant advanced. The RRT was not required to consider a case that was not expressly made and did not arise clearly on the materials before it: see NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No 2) [2004] FCAFC 263, [58]-[61]. The appellant made no claim that he would be at risk of harm if he resided in India before the RRT. The primary judge was thus correct to conclude that the appellant's belated claims to this effect did not give rise to any jurisdictional error on the part of the RRT. 11 The appellant repeated his claims in this appeal. In so doing, the appellant did not identify any reason why it might be said that the primary judge's conclusions about this issue were incorrect. For these reasons, the appeal cannot succeed on these bases. Ground 2 12 The appellant's second ground of appeal is that: 2. The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 13 The appellant has not identified the ways in which either the primary judge or the RRT are said to have fallen into error. To the extent that the appellant seeks to assert that he would be at risk of persecution were he to return to India ([41], [42], [46]), this ground must fail for the reasons given above. Conclusion 14 For the reasons given, the appeal must be dismissed. The appellant should pay the first respondent's costs of the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 14 February 2014