CQQ15 v Minister for Immigration and Border Protection [2017] FCA 1353

FEDERAL COURT OF AUSTRALIA

CQQ15 v Minister for Immigration and Border Protection [2017] FCA 1353 Appeal from: CQQ15 v Minister for Immigration & Anor [2017] FCCA 1822

File number: NSD 1395 of 2017

Judge: ROBERTSON J

Date of judgment: 17 November 2017

Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) r 36.75

Cases cited: Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405

Date of hearing: 17 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 27

Counsel for the Appellant: The Appellant did not appear

Solicitor for the Respondents: Mr R White of Australian Government Solicitor

ORDERS NSD 1395 of 2017

BETWEEN: CQQ15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: ROBERTSON J DATE OF ORDER: 17 NOVEMBER 2017

THE COURT ORDERS THAT:

1. Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia by boat on 12 August 2012 as an unauthorised maritime arrival. 2 This appeal is from orders made by the Federal Circuit Court of Australia on 3 August 2017. Those orders extended time for the appellant to file an application seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 11 September 2015 but dismissed that application, with costs. The decision of the Tribunal was to affirm the decision not to grant the appellant a Protection (Class XA) visa under the Migration Act 1958 (Cth). 3 The single ground in the notice of appeal to this Court is uninformative. It takes the following form: Grounds of appeal 1. Her Honour erred in not finding that the Tribunal failed to consider all the integers of the applicant's claims. 4 The appellant filed no written submissions. When the appeal was called on for hearing, the appellant was absent. I admitted into evidence an email dated 3 November 2017 from the solicitors for the Minister, notifying the appellant of the date and time for the hearing of the appeal and stating that if there were then no appearance the Minister may without further notice seek orders that the appeal be dismissed with costs. Such an application was made by Mr White, the solicitor for the Minister who appeared on the appeal. 5 In his written submissions dated 31 October 2017, the Minister submitted that in assessing the appellant's claims and evidence, the Tribunal expressly had regard to relevant country information; the appellant's statutory declaration of claims; the appellant's evidence at the delegate's interview; the appellant's 28 March 2014 submissions and oral evidence at the 2 February 2015 hearing to the previously constituted Tribunal; the appellant's 24 March 2015 submission; oral evidence at the 1 September 2015 hearing to the presently-constituted Tribunal; and a post-hearing submission. 6 The Tribunal noted that the appellant gave "inconsistent and unimpressive evidence about his father's background of genuine personal concern for Tamils" and gave "confused" and improvised evidence about why the police did not act against his father until seven years after his father's alleged activities ended and two years after the war ended. 7 The Tribunal found that the appellant had concocted his claims about a man described as Shelton and his cronies, including their alleged role in the appellant's father's death. The Tribunal did not accept that the appellant's father died as a result of foul play, that the appellant ever reported his death to the police as a murder or named anyone as a suspect, that the police ever regarded his father's death as a murder or covered it up; or that his father's death had any bearing on the appellant being able to avail himself of state protection in Sri Lanka. 8 The Tribunal did not accept that the appellant ever worked for the UNP as a member or supporter. It did not accept that the appellant would face a real chance of persecution on this basis. 9 The Tribunal did not accept the appellant left Negombo for Trincomalee for reasons of his safety or any fear of harm. 10 The Tribunal did not accept that the appellant had any affiliation with the LTTE or had any other actual or imputed potentially significant associations with Tamils. 11 The Tribunal accepted that the appellant departed Sri Lanka illegally by boat in 2012 but found the appellant was otherwise "a comprehensively unreliable witness". 12 Having accepted that the appellant departed Sri Lanka illegally in 2012, the Tribunal found the appellant would come to the attention of the authorities as a former illegal emigrant, would be questioned by police on his return, possibly charged under the Immigrants and Emigrants Act with illegal departure, and may be kept in custody at the airport for up to 24 hours or 3 to 4 days. It also accepted that he may be remanded in custody with mostly Tamil returnees but found he would be bailed on personal recognizance as it did not accept he would be suspected of association with people smugglers or the LTTE. The Tribunal considered the prison conditions in which the appellant would be held were poor and substandard but, at [71]-[75], was not satisfied this constituted serious harm. 13 The Tribunal was not satisfied the appellant would suffer any significant harm as a result of any brief detention and remand. The Tribunal had regard to the PAM3 Guidelines and a DFAT country report about prison conditions in Sri Lanka, as well as the appellant's submissions and country information. The Tribunal was not satisfied there would be any intention by the authorities to harm the appellant by detaining him under the Sri Lankan Immigrants and Emigrants Act. 14 The Minister submitted this approach revealed no error. 15 In the Federal Circuit Court four integers of the appellant's claims were identified as follows: a. The applicant claimed that he reported that "Shelton's cronies" had murdered his father to the police. Shelton was an influential member of the UPFA (most probably Shelton Nimal Pieris); b. People in white vans were looking for him; c. He received threatening phone calls; and d. Shelton would consider the applicant a traitor for reporting him to the police." 16 The primary judge dealt with each of these integers in turn and found that the Tribunal had considered these claims either directly or on the basis that they were subsumed in a finding of greater generality. For example, the Tribunal had found that the claims about Shelton had been concocted and, the Minister submitted, there was no jurisdictional requirement to consider that integer further: Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at 604. 17 In relation to the appellant's notice of appeal, the Minister submitted that the appellant did not identify the integers of his claims which he asserted the Tribunal failed to consider. If they were the same integers and claims referred to in the sole ground of review argued before the primary judge, then the appellant made no meaningful attempt to identify how the primary judge erred in finding that the Tribunal did deal with them. 18 The Minister submitted that the Tribunal expressly considered the matters outlined in the particulars to the appellant's ground of review. Further, as the primary judge found at [67]-[71], the Tribunal's findings that the appellant was not a credible or reliable witness and its comprehensive rejection of his claims about "Shelton and his cronies", including any role in his father's death, was sufficient to overcome the need for findings of greater specificity and were findings of fact that were open to the Tribunal on the available materials and for the reasons it gave. 19 The Minister submitted the complaints in the appellant's sole ground of appeal could not be maintained in the face of the Tribunal's findings and reasons.