FEDERAL COURT OF AUSTRALIA

SZTBP v Minister for Immigration and Border Protection [2015] FCA 1254

Citation:	SZTBP v Minister for Immigration and Border Protection [2015] FCA 1254	
		
Appeal from:	SZTBP v Minister for Immigration & Anor [2015] FCCA 1617	
		
Parties:	SZTBP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL	
		
File number(s):	NSD 753 of 2015	
		
Judge(s):	LOGAN J	
		
Date of judgment:	6 November 2015	
		
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court affirming a decision of the Refugee Review Tribunal (Tribunal) to uphold the Minister’s refusal to grant the appellant’s protection visa application – where Tribunal made adverse credibility findings – whether Tribunal failed to assess the future threat faced by appellant

Held: findings of fact par excellence for the Tribunal – findings reasonably open – appeal dismissed	
		
Legislation:	Migration Act 1958 (Cth) ss 36,  36(2)(a), 425 	
		
Cases cited:	Re Minister for Immigration and multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 cited
WZAPN v The Minister for Immigration and Border Protection (2015) 89 ALJR 639 cited	
		
Date of hearing:	6 November 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	18	
		
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter	
		
Counsel for the Respondents:	Mr G Johnson	
		
Solicitor for the Respondents:	Sparke Helmore	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 753 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	SZTBP
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	LOGAN J	
DATE OF ORDER:	6 NOVEMBER 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The name of the second respondent is amended from “Refugee Review Tribunal” to “Administrative Appeals Tribunal”.
2.	The appeal be dismissed.
3.	The appellant is to pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.  

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 753 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	SZTBP
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	LOGAN J	
DATE:	6 NOVEMBER 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
1		The appellant is a citizen of the Republic of Sri Lanka.  He came to Australia by boat without a visa issued under the Migration Act 1958 (Cth) (the Act).  On 27 August 2012, he applied under the Act for that class of visa known as a Protection (Class XA) Visa (protection visa).  On 31 October 2012, a delegate of the Minister, whose office is now known as the Minister for Immigration and Border Protection, decided to refuse that visa application.  As was his right under the Act, the appellant then sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal).  
2		That Tribunal’s role has, by statutory amendment, been recently assumed by the Administrative Appeals Tribunal.  There is a consequential and formal need to amend the name of the second respondent to reflect that change.
3		The appellant had the benefit of the assistance of a migration agent in making submissions to the Tribunal.  Via his migration agent, the appellant summarised his claimed fear of persecution as arising on one or more or each of these bases: his ethnicity (Tamil), his political opinion (opposition to the Sri Lankan government and the treatment of Tamils by the Sri Lankan government) and imputed political opinion and his membership of particular social groups – “young Tamil men”, “people with family links to the LTTE”, and “people suspected or accused of being members of, associated with or supporting the LTTE”.  
4		As to these claims, the appellant made statements which were in evidence before the Tribunal as to a particular Sinhalese neighbour, whom he named, with whom he claimed he had had an altercation and who he claimed had threatened to kill him in February 2012.  He also made statements, which were in evidence before the Tribunal, in which he stated that his uncle was a member of the LTTE and that before his death in 2005 his father had been questioned by the authorities about his links with the LTTE.  
5		The various aspects of the appellant’s claim were summarised by the Tribunal at para 26 of the Tribunal’s reasons.  That summary does not indicate that the Tribunal misunderstood what have been described as the “integers” of the appellant’s protection visa claim.  Those integers were elaborately considered on their factual merits by the Tribunal in the reasons which the Tribunal came to furnish.  Notably, at para 48 of those reasons, the Tribunal stated:
However, although I am prepared to accept it is possible that the applicant’s father may have been questioned about having LTTE connections before he died in 2005, I am not satisfied on the evidence before me that the authorities ever had any adverse interest in the applicant because of his perceived links to the LTTE or that they ever seriously suspected the applicant’s father or any other family member of the applicant was involved with the LTTE.

6		On the basis of particular findings of fact or absence of satisfaction as to facts, the Tribunal concluded, at para 50, that the appellant’s claim that he fears “Convention related persecution” because of his imputed political opinion, suspected links, association with and/or support for the LTTE was not well founded.  The Tribunal also addressed under the heading “Whether the applicant would face harm if he returns to Sri Lanka now or in reasonably foreseeable future”, that subject at considerable length and detail.  Having so done, the Tribunal’s conclusion, at para 87, was that in the reasonably foreseeable future there was no real chance that the appellant would be subjected to circumstances amounting to persecution.
7		On this basis, the Tribunal concluded, as it had to in light of that factual assessment, that the appellant did not meet the requirements specified in s 36(2)(a) of the Act.  
8		The Tribunal separately addressed the subject of complementary protection and concluded that no basis for a protection visa arose.  
9		In the result, on 14 June 2013, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa.  
10		The appellant then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court.  Some little time elapsed between when his judicial review application was heard and when it came to be determined.  The result, though, on 19 June 2015, was that the Federal Circuit Court decided to dismiss with costs the judicial review application which had been filed on 18 July 2013 and amended on 18 March 2014.
11		From that order of dismissal the appellant has now appealed to this Court.  There is one but one ground of appeal.  It is:
The Federal Circuit Court Judge failed to hold that the RRT erred in law with the error being a jurisdictional error in that it failed to assess future threat to the Appellant.

12		The Minister, with commendable fairness, took the approach that, even though this ground of appeal did not, in form, reproduce a ground of review upon which the appellant had failed in the Federal Circuit Court, in substance it did not indicate any different complaint to that found in ground 3 of the grounds of review before the Federal Circuit Court.  Again quite fairly, in the course of submissions, the Minister also conceded that another possible reading of the appeal ground was that it was directed, either separately or perhaps cumulatively, also to ground 5 in the grounds of review before the Federal Circuit Court.  
13		Before the Federal Circuit Court, ground 3 was an allegation of jurisdictional error on the Tribunal’s part by an alleged failure to take into account that the appellant’s uncle’s LTTE involvement may be discovered during questioning at the airport upon his return to Sri Lanka.  Ground 5 alleged error in the Tribunal’s consideration of complementary protection.  
14		As to ground 3, the Federal Circuit Court reached the conclusion, at para 58, that:
Once the Tribunal found the applicant’s uncle had no LTTE connections it was under no obligation to consider whether these purported connections would be determined when he returned.  

15		The learned Federal Circuit Court judge also observed that the findings which the Tribunal have made relating to the appellant’s uncle were findings of fact “par excellence”.  In the course of oral submissions made by the appellant, it became clear that his complaint was that the Tribunal had not accepted the evidence which he gave in support of this basis in particular of his claim for a protection visa.  The difficulty about this, highlighted in the Minister’s submissions, is just that very matter identified by the Federal Circuit Court judge.  That is, that the Tribunal is, in respect of matters of credibility, making what are par excellence findings of fact: see the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.  If these findings are reasonably open, including, in that regard, whether they are logical, they are not to be disturbed by over-zealous judicial review.  
16		All in all what occurred before the Tribunal, as the learned Federal Circuit Court judge correctly concluded, was not a misapprehension of the integers of the claim, but rather findings of fact that particular, crucial, factual elements of the claim were not established to the Tribunal’s satisfaction.  What remained were other aspects which, on the basis of generic country information, did not persuade the Tribunal, having heard the appellant on these issues, that they amounted to a real chance that he would suffer persecution as claimed.  
17		As to the complementary protection issue, if that be the way in which the appeal ground is to be read, the difficulty for the appellant is that his circumstances are not materially distinguishable from those which the High Court concluded in WZAPN v The Minister for Immigration and Border Protection (2015) 89 ALJR 639 did not amount to “serious harm.”  This was correctly understood by the learned Federal Circuit Court judge who additionally made reference to pertinent Full Court authority on this subject: see paras 98 to 101 inclusive of his Honour’s reasons for judgment.  
18		There is no doubting the genuineness of the appellant’s feeling that his claim ought to have been accepted by the Tribunal.  He was, however, given and took up the invitation for which s 425 of the Act provides.  In that, he had the benefit of assistance from a migration agent.  It is just one of those cases where, for reasons that do not amount to jurisdictional error, the Tribunal decided that it was not satisfied on any basis found in s 36 of the Act.  The outcome of the judicial review application in the Federal Circuit Court reflected a correct assessment of the merits of the application in respect of the Tribunal’s decision.  The appeal must be dismissed.  

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.	

Associate:  

Dated:	17 November 2015