FEDERAL CIRCUIT COURT OF AUSTRALIA
SZTOV v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2)	[2014] FCCA 735	

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – application has not raised an arguable case for the relief claimed – application dismissed.	

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), Pt.8, Div.2, 5, 36, 424A, 424AA
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13	

Cases cited:
SZTOV v Minister for Immigration and Border Protection & Anor (No.1) [2014] FCCA 708
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]	

Applicant:	SZTOV	

First Respondent:	minister for immigration & BORDER PROTECTION	

Second Respondent:	refugee review tribunal	

File Number:	SYG 3003 of 2013	

Judgment of:	Judge Emmett	

Hearing date:	8 April 2014	

Date of Last Submission:	8 April 2014	

Delivered at:	Sydney	

Delivered on:	8 April 2014	
REPRESENTATION
The applicant appeared in person with the assistance of a Tamil interpreter

Solicitors for the Respondents:	Ms Lauren Stewart
(Clayton Utz Lawyers)	

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT sydney	
SYG 3003 of 2013
szTOV	
Applicant

And

minister for immigration & BORDER PROTECTION	
First Respondent

refugee review tribunal	
Second Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal, dated 5 November 2013 (“the RRT”).
2.	The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 3 December 2013, be dismissed on the basis that the application has not raised an arguable case for the relief claimed.
3.	Rule 44.12 of the Rules provides as follows:
	“(1)  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
	(b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
	(c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
	(2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
4.	Relevantly, r.44.13 provides:
	“(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
5.	The applicant was unrepresented before the Court this morning, although had the assistance of a Tamil interpreter. 
6.	At the outset of today’s hearing, the applicant sought an adjournment on the basis that he had an appointment with a lawyer on 23 April 2014. In separate reasons, that application for an adjournment was refused (see: SZTOV v Minister for Immigration and Border Protection & Anor (No.1) [2014] FCCA 708).  
7.	The Court notes that in the applicant’s application, filed on 3 December 2013, the applicant states that he is “currently seeking advice.”  No Notice of Appearance by a lawyer has ever been filed on behalf of the applicant. 
8.	On 12 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose a particularised error capable of review by this Court. 
9.	I also explained to the applicant that in circumstances where the grounds of the application do not raise an arguable case for the relief claimed, the application may be dismissed pursuant to r.44.12 of the Rules. 
10.	At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. 
11.	The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 28 March 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 28 March 2014.
12.	At the directions hearing, the applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
13.	The matter was then set down for a hearing today pursuant to r.44.12 of the Rules.
14.	The applicant confirmed to the Court this morning that he has	 not filed any further documents, either in accordance with my directions or otherwise.  
15.	In the applicant’s application for judicial review, filed on 3 December 2013, the grounds relied on for review are as follows:
	“1. The Tribunal failed to indicate to me it was suspicious about the credibility of my claims in clear words and therefore the Tribunal confused itself regarding the facts of my case.
	2. The Tribunal did not comply with its obligations pursuant to s.424A and 424AA and thereby made jurisdictional error. Full particulars will be provided.
	3. I fear going back to Sri Lanka because my life is in danger by the authorities and paramilitaries. I am currently seeking advice and the full particulars will be provided.”
16.	The grounds of the application were interpreted for the applicant, and the applicant was invited to make submissions in support of the grounds.
17.	The applicant made no submission in support of any of the grounds other than to say he wished to get a lawyer. The applicant did say that he would face unspecified problems if he was returned to Sri Lanka. 
18.	The solicitor for the first respondent, Ms Stewart, tendered a copy of the RRT’s decision record, which was annexed to the applicant’s affidavit, affirmed 28 November 2013 and filed on 3 December 2013. That affidavit was marked “Exhibit 1R”.  
19.	Exhibit 1R makes clear that the RRT identified the relevant law and explored in detail the applicant’s claims with him at a hearing.  
20.	The RRT extensively referred to various country information, which it identified in its decision record. Ultimately, the RRT accepted the applicant’s claims of his experiences in Sri Lanka.  However, the RRT found that the applicant was not at risk of serious harm if he was to return to Sri Lanka and that, therefore, his fear of persecution for a Convention related reason, as defined in s.5 of the Act, was not well-founded.  
21.	For similar reasons, the RRT considered that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act, on the basis that the applicant would not be at real risk of significant harm as a necessary and foreseeable consequence if he was returned to Sri Lanka. 
22.	The applicant’s assertion in ground 1 of his application, that the RRT failed to indicate to him that it was suspicious of the credibility of his claims, clearly misunderstands the RRT’s reasons. There was no adverse credibility finding made in respect of the applicant. 
23.	The applicant’s assertion in ground 2 of his application, that the RRT did not comply with its obligations, pursuant to ss.424A and 424AA of the Act, similarly misunderstands the reasons of the RRT.  Apart from the fact that the allegation is wholly unparticularised, a fair reading of the RRT’s decision record makes clear that there was no information that formed part of the RRT’s reasons for affirming the decision under review that was required to be given to the applicant for comment pursuant either to ss.424A or 424AA of the Act. 
24.	Plainly, the applicant’s third ground of complaint does not assert any error relevant to the issue before this Court as to whether the decision of the Tribunal is effected by a jurisdictional error.
25.	I accept as accurate the first respondent’s summary of the RRT’s decision, as follows:
	“Tribunal’s Findings and Reasoning
	4. After considering the applicant's claims, the Tribunal concluded that the incidents suffered by the applicant did not amount to serious harm and that the applicant was not at real risk of serious harm if he returned to Sri Lanka.  In its decision, the Tribunal accepted the applicant's claims that:
	a) he was stopped by the army in the street and was hit if he did not have appropriate identification on him.  However, the Tribunal noted that this occurred in the applicant's native village, not in his grandfather's home in Batticaloa;
	b) he was forced to do unpaid labour; 
	c) the army detained the applicant's father and damaged the applicant's business after someone was shot in the army camp; 
	d) the army would come to the applicant's business, take things and not pay;
	e) he was questioned on suspicion of supporting the LTTE;
	f) unknown persons entered the applicant's grandfather's home, stole property and threatened the applicant and others not to report them to the police;
	g) on one occasion the "greasemen" got into the applicant's family home in his native village but were frightened away; and
	h) two people known to the applicant were abducted into a white van and that he had heard of other people being similarly abducted in his native area. However, the Tribunal noted that whilst the applicant knew two people whom had been abducted he could not explain why they had been taken.
	5. The Tribunal noted that the applicant stated that whilst living with his grandfather the only real difficulty he encountered was that unknown persons entered his home on one occasion, stole property and threatened those present. 
	6. The Tribunal accepted the applicant's claims, but held that, even considered cumulatively, these acts did not amount to serious harm.  The Tribunal found that, on the evidence before it, there was not a real chance that, if the applicant returned to Batticaloa, where he lived, he will suffer serious harm.
	7. The Tribunal also considered whether there was a risk of harm if the applicant returned to Sri Lanka as a failed asylum seeker after leaving the country illegally.  Based on Country Information, the Tribunal considered that there was no substantiated, reliable information, that Tamils, such as the applicant, who return to Sri Lanka after seeking asylum abroad will suffer harm for this reason.  It acknowledged that in Sri Lanka the penalties for illegal departure, include a possible fine and prison sentence.  However, the Tribunal considered that on the basis of Country Information, prison sentences are more likely to be imposed on those involved in people smuggling not failed asylum seekers.  Similarly, the Tribunal held that even if the applicant was detained for a brief period between arriving in Sri Lanka and being brought before a magistrate, this would not equate with a real chance of suffering serious harm.  The Tribunal also noted that the applicant did not make any claims that he could not pay any fine imposed or that having to do so would result in significant harm.
	8. The Tribunal gave careful consideration to the submissions and claims made by the applicant's representatives.  It acknowledged all of those claims but found that they did not demonstrate that there is a real chance the applicant will suffer harm in Sri Lanka.  The Tribunal found that the applicant did not come within the "risk profile" of those Tamils for whom there is a real chance of suffering harm on return to Sri Lanka.  
	9. In considering the complementary protection provisions of the Migration Act 1958 (Cth) (Act), the Tribunal noted that the same grounds were advanced by the applicant as those on which he claimed a fear of persecution.  For the same reasons, it found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Sri Lanka, there was a real risk that he would suffer harm.”
26.	Further, the Tribunal was not obliged to disclose or to "indicate" what it was minded to decide prior to reaching its final decision.  Nor was the Tribunal obliged to provide the applicant with “a running commentary upon what it thinks about the evidence that is given” (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).
27.	The only information relied on by the RRT in affirming the decision under review was information given by the applicant for the purposes of his application and country information. Pursuant to s.424A(3)(a),(b) and (ba) of the Act, such information is not required to be put to the applicant in accordance with s.424A and s.424AA of the Act. 
28.	While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
29.	The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT. 
30.	In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 3 December 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  16 April 2014