FEDERAL COURT OF AUSTRALIA SZUYO v Minister for Immigration [2015] FCA 970 Citation: SZUYO v Minister for Immigration [2015] FCA 970 Appeal from: Application for leave to appeal: SZUYO v Minister for Immigration & Anor [2015] FCCA 1530 Parties: SZUYO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 688 of 2015 Judge: RANGIAH J Date of judgment: 27 August 2015 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – refusal to grant protection visa – whether any jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) s 91R Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Date of hearing: 27 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms N Maddocks of DLA Piper Counsel for the Second Respondent: The second respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 688 of 2015 BETWEEN: SZUYO Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 27 August 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The orders made on 11 August 2015 be set aside. 2. The application for leave to appeal be dismissed. 3. The applicant pay the first respondent's costs of the application. 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 688 of 2015 BETWEEN: SZUYO Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE: 27 August 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 15 June 2015, the applicant filed an application for leave to appeal from a judgment of the Federal Circuit Court. The application was listed for hearing on 11 August 2015, but the applicant failed to appear. The application was dismissed in the absence of the applicant's appearance. 2 The applicant then filed an application seeking an order that the orders made on 11 August 2015 be set aside. In an affidavit, the applicant explains that he had mistakenly attended the Federal Circuit Court building and was then redirected to the Federal Court building. By the time he arrived at the Federal Court building the hearing had been completed. The first respondent consents to an order setting aside the orders made on 11 August 2015. I will, therefore, proceed to consider the application for leave to appeal. 3 The applicant is a citizen of Sir Lanka who arrived in Australia on 16 July 2012. The applicant applied for a Protection (Class XA) visa. His application was refused by a delegate of the first respondent, and the applicant then applied for review of that decision to the Refugee Review Tribunal ("the Tribunal"). On 22 July 2014 the Tribunal affirmed the decision under review. 4 The applicant then applied to the Federal Circuit Court of Australia for constitutional writs directed to the Tribunal. On 4 June 2015 the Federal Circuit Court summarily dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). As that judgment was interlocutory, the applicant requires leave to appeal to this Court. 5 In my opinion, the question of whether leave should be granted turns upon whether the applicant has demonstrated an arguable case of error by the Federal Circuit Court. In order to demonstrate an arguable case of error by the Federal Circuit Court, the applicant must demonstrate an arguable case of jurisdictional error by the Tribunal. 6 Before the Tribunal the applicant alleged that he fears persecution if he returns to Sri Lanka because of his Tamil ethnicity, because he was suspected of being a member or supporter of the Liberation Tigers of Tamal Eelam, and because of his illegal departure from Sri Lanka and his having applied for protection in Australia. 7 The applicant gave evidence before the Tribunal of an incident in which he was beaten and detained by members of the Sri Lankan army, and that he was subsequently repeatedly questioned. He also gave evidence of an incident in which he chased a "grease-man" into an army camp and was questioned about the incident. He gave evidence about an incident in which his fishing nets floated into a Sinhalese area and a group of Sinhalese fishermen threatened to kill him. The Tribunal found that the applicant had fabricated these claims and gave detailed reasons for that finding. 8 The Tribunal also considered the applicant's claims that he would face a risk of serious harm by being detained when he returns to Sri Lanka because of his illegal departure and claims for a protection visa in Australia. The Tribunal considered that while the applicant might be held on remand in custody for a few days this would not amount to serious harm within s 91R of the Migration Act 1958 (Cth). 9 The Tribunal also considered the complementary protection criterion in s 36(2)(aa) of the Migration Act and found that the criterion was not satisfied. 10 Accordingly, the Tribunal dismissed the applicant's application for review. 11 The applicant's amended application before the Federal Circuit Court relied on two grounds. Those grounds were: The RRT has failed to consider one of my central/significant claims that I fear persecution/discrimination because I am a Tamil who was born in Udappu, Puttalam, North Western Province, Sri Lanka. The RRT has found that it does not accept that I will face a real chance of serious harm because of my Tamil race. The [RRT has] failed to consider one of my central claims that a Tamil who was born in Udappu, Puttalam, North Western Province, Sri Lanka and suffered harm and discrimination, will be harmed on my arrival as a failed asylum seeker from Australia. 12 The Federal Circuit Court held: 11. The Tribunal's decision is a lengthy one. The Tribunal, in my opinion, gave careful consideration to all of the applicant's claims. The Tribunal, in my opinion, complied with its statutory obligations. I see no error in the Tribunal's approach. 13 The Federal Circuit Court held that no arguable case of jurisdictional error on the part of the Tribunal had been raised. 14 In this Court, the applicant's application for leave to appeal and his draft notice of appeal state the following under the heading "Grounds of application": I still rely on the arguments, grounds and particulars that were provided with my previous Federal Circuit Court application. I will file and serve a detailed submission after I have lodged my Federal Court application with the detailed grounds and why I do not agree with the RRT decision. 15 The applicant, who was self-represented, has not filed any written submissions. He made oral submissions which repeated the claims he made to the Tribunal. The applicant submitted that the Tribunal should have accepted his claims. 16 In my opinion, the Federal Circuit Court was correct to find that the applicant had raised no arguable case of jurisdictional error on the part of the Tribunal. The Tribunal did consider each of the applicant's claims as to why he feared persecution in Sri Lanka. The applicant has demonstrated no arguable case of error by the Federal Circuit Court. 17 To the extent that the applicant relies on a claim that the Tribunal's findings rejecting his claims on the basis of credibility were wrong, the proposed appeal to this Court cannot succeed on the basis of merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291–292. It is only capable of succeeding if the applicant can demonstrate jurisdictional error. Any error on the part of the Tribunal in its findings on the question of credibility is not a jurisdictional error in the circumstances of this case. Accordingly, the application for leave to appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 3 September 2015