FEDERAL COURT OF AUSTRALIA SZTPI v Minister for Immigration and Border Protection [2015] FCA 980 Citation: SZTPI v Minister for Immigration and Border Protection [2015] FCA 980 Appeal from: SZTPI v Minister for Immigration & Border Protection & Anor [2015] FCCA 1326 Parties: SZTPI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 646 of 2015 Judge: RANGIAH J Date of judgment: 12 August 2015 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa – whether jurisdictional error – where appellant was self-represented – no necessary entitlement to legal representation – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a) and 36(2)(aa) Federal Circuit Court Rules 2001 (Cth) r 44.12 Cases cited: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 cited Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 cited Date of hearing: 12 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Markus of the Australian Government Solicitor 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 646 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTPI Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 12 August 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. 3. The name of the second respondent be amended to Administrative Appeals Tribunal. 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 646 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTPI Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE: 12 August 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals against a judgment of the Federal Circuit Court of Australia given on 20 May 2015. The primary judge dismissed an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). On 5 November 2013, the Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of Sri Lanka. He lived in a refugee camp in India for 22 years from 1990 to 2012. He arrived at Christmas Island by boat on 28 June 2012 and applied for a protection visa. 3 The appellant's claim for protection was based on his fear of harm at the hands of the Sri Lankan authorities because of his Tamil ethnicity, because he would be wrongly accused of having links with the Liberation Tigers of Tamil Eelam ("the LTTE"), and because of his status as a failed asylum seeker. The Tribunal rejected the appellant's claim that he will face serious harm as a young Tamil male from Jaffna. The Tribunal did not accept that the appellant would be suspected of having links to the LTTE. 4 The Tribunal considered country information in relation to the appellant's failed asylum seeker claim and found that the appellant would not face harm for that reason. The Tribunal did accept that the appellant might face prosecution arising from his illegal departure from Sri Lanka and may be briefly detained in remand and issued with a fine, however the Tribunal found that the appellant would not face either serious harm or significant harm as a result. 5 The Tribunal found that the appellant was not a person to whom Australia owes protection obligations under the Refugees Convention and that he therefore did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth). It also found that the appellant is not a person to whom Australia owes protection obligations under the complementary protection criterion in s 36(2)(aa). 6 In his application to the Federal Circuit Court, the appellant relied on the following grounds: GROUND ONE: The RRT has failed to assess the full integers of the Applicant's claim under the complementary protection provisions. Particulars The RRT has failed to deal with the claim advanced by the applicant that he would face a real risk of significant harm on the basis of being a young Tamil male who may be suspected of being a LTIE. GROUND TWO: The RRT has failed to take a relevant consideration into account. Particulars (a) The RRT held, at [124], that there was a possibility of the applicant being held in remand briefly. (b) In making this finding, the RRT failed to take into account the applicant's lack of family ties and the possibility this may see him unable to raise a bail. GROUND THREE: The RRT has failed to apply the correct test under section 36(2)(aa) Particulars The RRT. In assessing the Applicant's claims under section 36(2)(aa) of the Migration Act, based their findings at paragraph [124] on the "possibility" of being held for a short time on remenad, as opposed to the "real chance" that the applicant may held for a longer period. 7 As to the first ground, the Federal Circuit Court accepted the first respondent's submission that the Tribunal had considered whether the appellant might face any form of harm as a Tamil suspected of having links to the LTTE in the course of its consideration of s 36(2)(a). The Court accepted that when the Tribunal went on to consider the complementary protection criterion in s 36(2)(aa), the Tribunal referred to and adopted its earlier findings. The Court held that such an approach was open to the Tribunal and that no error was demonstrated. 8 As to the second ground, the Federal Circuit Court considered the findings of the Tribunal and the evidence regarding the appellant's family ties in Sri Lanka. The Court noted that the Tribunal's reasons made it clear that the appellant gave evidence that he had family in Sri Lanka. The Tribunal found that there was only a remote risk that the appellant would be jailed, that a fine was the most likely outcome, and that any harm the appellant might face was remote. The Court noted the Tribunal's findings about the appellant's ability to secure employment and re-establish himself in Sri Lanka. It considered that the Tribunal understood the limited nature of the appellant's family ties in Sri Lanka and considered his claims in that context. 9 The Federal Circuit Court also found that, insofar as the second ground of the application suggested that the Tribunal had failed to consider the possibility that the appellant may not be able to raise bail, no such claim was raised before the Tribunal. The Court noted that the Tribunal referred to country information which stated that bail was granted on "person reconnaissance" and that no payment was required, but that a family member was required to stand guarantor. The Court found that there was no evidence before the Tribunal, nor was any claim made by the appellant, that no family member was available to stand guarantor for him. It also found that there was no claim that squarely arose on the material before the Tribunal that the appellant would not be able to raise the bail required of him. 10 As to the third ground, the Court concluded that a fair reading of the Tribunal's decision suggested that, in making its findings on complementary protection, the Tribunal referred to its earlier statement of the relevant legal principles and understood the correct test in light of Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. The Court considered that the Tribunal's finding at para [124] of its decision was no more than an expression of its finding that any risk of the appellant suffering significant harm while on remand was remote. The Court found that there was no jurisdictional error in the Tribunal's decision and dismissed the application with costs. 11 The appellant's notice of appeal to this Court contains the following grounds: 1. Her Honour Judge Emmet erred by not acting in accordance with rule of the Federal Circuit Court Rules 2001 (Cth) by not taking the Applicant's application at its highest for the purposes of dismissing the proceedings. 2. His Honour Judge Emmett erred by dismissing the proceedings in circumstances where the appellant was unrepresented. (Errors in original.) 12 The appellant was unrepresented before this Court. The hearing was conducted with the assistance of an interpreter. The appellant did not elaborate on his grounds of appeal. His submissions focused on matters that he had raised before the Tribunal, including: that he had come to Australia for a better life; that he did not know the whereabouts of his relatives in Sri Lanka and had no contact with them; that he did not know anything about Sri Lanka; and that his parents had told him that if he returned to Sri Lanka there would be problems. 13 The appellant's first ground of appeal seems to proceed on the mistaken premise that the hearing before the Federal Circuit Court was a "show cause" hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). It appears that the application had initially been listed for a "show cause" hearing but that hearing did not proceed when his solicitor filed an amended application. The hearing before the primary judge was a final hearing. The primary judge was not required to take the appellant's case at its highest. Therefore, the first ground of appeal cannot succeed. 14 The appellant's second ground is without substance. There is no requirement that a party must be legally represented before a proceeding can be dismissed: cf Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at 36. The second ground of appeal cannot succeed. 15 The appellant has not demonstrated any error in the judgment of the Federal Circuit Court or the decision of the Tribunal. The appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 7 September 2015