FEDERAL COURT OF AUSTRALIA SZTCH v Minister for Immigration and Border Protection [2014] FCA 536 Citation: SZTCH v Minister for Immigration and Border Protection [2014] FCA 536 Appeal from: SZTCH v Minister for Immigration [2013] FCCA 1895 Parties: SZTCH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 2420 of 2013 Judge: JAGOT J Date of judgment: 23 May 2014 Catchwords: MIGRATION Legislation: Federal Circuit Court Rules 2001 (Cth) Federal Court Rules 2011 (Cth) Migration Act 1958 (Cth) Date of hearing: 22 April 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 Solicitor for the Respondents: M Stone of DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2420 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTCH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 23 MAY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application 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 2420 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTCH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 23 MAY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from an order of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal rejecting the applicant's application for a protection visa. The order was made on 18 November 2013 consequential on reasons for judgment published on the same date (SZTCH v Minister for Immigration & Anor [2013] FCCA 1895). Leave is required because the primary judge relied on r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) which provides that: At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or … 2 Rule 44.12(2) states: To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 3 The primary judge recorded at [1] that: The Tribunal affirmed a decision of a delegate of the Minister not to grant him a protection visa. The applicant is from Sri Lanka and had made claims of persecution based upon a fear of imputed political opinion as a Liberation Tigers of Tamil Eelam (LTTE) sympathiser. 4 Thereafter the primary judge observed as follows: 4. In its findings and reasons, the Tribunal rejected the applicant's factual claims which supported his assertion that he would be of adverse interest to the Sri Lankan authorities. The Tribunal considered whether the applicant would be of adverse interest to the authorities as a failed asylum seeker. The Tribunal concluded that he would not. 5. At [62] of its reasons, the Tribunal accepted that people who exit Sri Lanka illegally may be questioned, detained for a relatively short period and then bailed. It is apparent, although not explicitly stated, that the Tribunal regarded this as a law of general application which would not be applied in a discriminatory fashion. At [63], the Tribunal also accepted the likelihood that after return the applicant might be visited by the authorities. Again, the Tribunal did not accept that the applicant would come to serious harm for that reason. 6. The Tribunal concluded that the applicant did not qualify for protection in Australia as a refugee. Neither did the Tribunal accept that the applicant qualified for complementary protection. This was based, in part, on the Tribunal's rejection of the applicant's factual claims of past harm and, in part, on the Tribunal's reasoning that his likely short term detention would not amount to significant harm. 5 The primary judge recorded at [9] that the applicant's show cause application was supported by an affidavit explaining in these terms: 3. Two of my main Convention claims that being a Tamil returning from western country as a failed asylum seeker and a being a Tamil who departed Sri Lanka unlawfully were not dealt by the RRT and correct test was not applied in dealing with these elements of my Convention claims. 'it is likely that he will then be held on reman until bailed.' 4. The way the RRT has deal with the complementary protection issue is not sufficient. It does not automatically follow that because a person does not satisfy the requirements for a protection visa on Convention grounds that they also will fail on complementary protection grounds. 6 The primary judge concluded that: 15. It was open to the Tribunal to conclude that the applicant did not have a well-founded fear of harm from the Sri Lankan authorities whilst in detention on return there. I see no error in the Tribunal's approach, either in relation to the risk of harm as a claimed refugee or in relation to the test for complementary protection. 16. The applicant has failed to advance an arguable case of jurisdictional error by the Tribunal. Noting that he is self-represented, I have myself considered whether any arguable claim of error and such error might be advanced. I cannot see any. 17. I have concluded that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and I will so order. 7 In his application for leave to appeal the applicant raised three grounds as follows: 1 The RRT did not apply the correct test when they found that I would be detained at the airport on my arrival. 2 The RRT did not consider that while I was in detention in Colombo Airport and the condition of the detention would fall under the harm defined in the Refugee Convention. 3 Jurisdictional error. 8 In his draft notice of appeal the applicant also raised three grounds alleging that the primary judge failed to find that the RRT committed jurisdictional error, jurisdictional error of law, and had not provided the applicant with natural justice as required under the Migration Act 1958 (Cth). 9 The principles applicable to the grant of leave to appeal are well-known. The questions are whether the applicant will suffer substantial injustice assuming the decision to be wrong and whether the decision is attended by sufficient doubt to warrant its review on appeal. The first question may be answered in the applicant's favour. The second question, however, cannot. The Tribunal considered the matter of the applicant's detention on return to Sri Lanka. At [62] and [68], it found that the applicant would not be treated differently from any other returnee, noting that the country of origin information suggested that returnees were not treated differently on the basis of ethnicity. Although the Tribunal accepted that the applicant, as a person who had illegally departed Sri Lanka, would be questioned, detained for a short time until bailed, and possibly fined for his illegal departure, it was not satisfied that this would constitute serious harm. The Tribunal noted that imprisonment for the offence was very rare and that there was nothing to suggest that the applicant would be unable to pay any fine, his own evidence being that his family did not have any financial problems in Sri Lanka. It was reasonably open to the Tribunal to reach this conclusion. In oral submissions the applicant said nothing in support of these grounds of alleged error. Instead, the applicant made submissions about other points which concerned the merits of the Tribunal's decision and were in any event internally inconsistent. 10 The applicant first said that the Tribunal did not ask him questions about his mother and had it done so he would have answered them. He later said that the Tribunal did ask about his mother but the fact was the authorities did not target his mother, only the applicant himself. The Tribunal's reasons record (at [27]-[30]) that it asked the applicant about his mother and (at [46], [47], [50]-[59]) its consideration of her circumstances . The oral submissions now made by the applicant are inconsistent with what he put to the Tribunal about his mother. In any event, the submissions are in substance directed at the merits of the Tribunal's conclusions and do not raise any issue of law. 11 The applicant then said the Tribunal did not ask why he did not go to India when he had a visa permitting him to do so and he would have answered if the Tribunal had asked. He later said that he in fact did explain to the RRT why he did not travel to India. The Tribunal's reasons disclose the latter statement to be correct. The Tribunal asked the applicant about his reasons for not travelling to India (at [24]) and recorded that the applicant said he did not go to India because he would have to return after three months and was worried about being apprehended on his return (at [49]). He then said that living conditions in India were poor (at [50]). The Tribunal considered that if the applicant's life had been under threat as he claimed he would have used the visa to go to India. It described his concern about being apprehended on return, in contrast to being apprehended on departure, as "fanciful" (also at [50]). It was reasonably open to the Tribunal to reach these conclusions. 12 The applicant said that while the Tribunal saw no problem for him if he returned to Sri Lanka that was not true as he would have many problems if forced to return. Again, the Tribunal's conclusion was reasonably open on the material before it. 13 The applicant said nothing specifically directed towards the alleged denial of natural justice. To the extent that ground relates to the Tribunal allegedly not having asked the applicant about relevant matters, it is apparent from the discussion above that no such complaint is justified. No other natural justice issue is discernible on the face of the Tribunal's reasons. 14 There is nothing apparent in the Tribunal's reasons for decision suggesting that the order of the primary judge dismissing the application for review is attended by any doubt. It follows that the applicant's application for leave to appeal must be dismissed. 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: 22 May 2014