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[2017] FCA 1353
Federal Court of Australia
2017-11-17
Robertson J
Original judgment source is linked above.
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.
Consideration 20 In my opinion, no appellable error on the part of the primary judge has been made out. 21 The Tribunal set out the appellant's claims at [11], including the claims in relation to the appellant reporting to the police that "Shelton's cronies" had murdered his father; people who had arrived in a white van in civilian clothing were looking for him; that the appellant received threatening phone calls from Shelton's supporters; and Shelton would consider the appellant a traitor for reporting him to the police. 22 At [65], the Tribunal found that it was very hard to accept that the appellant's father ever came into any potentially relevant conflict with any figures in any opposing parties at any level, local or otherwise, let alone the man described as Shelton. The Tribunal continued: … On the evidence before me, I find that [the appellant] has concocted all of his claims about Shelton and his cronies, including the role of Shelton or any other persons in the death of his father. I am not satisfied on the evidence before me that [the death of the appellant]'s father was due to foul play of any kind or that [the appellant] ever reported his death of the police as a murder, let alone that he named anyone as a suspect in the matter, or that the police ever regarded the death as a murder, or covered it up. I am not satisfied [on] the evidence before me that [the appellant]'s father's life or death has any bearing on his being able to avail himself of protection from Convention -related persecution in Sri Lanka. 23 In these circumstances, the Tribunal having rejected the entire claim about Shelton and his cronies, there was no occasion for it to further consider the appellant's claims I have referred to at [15] and [21] above. Each of those claims failed by virtue of the Tribunal's findings at [65] which I have just set out: see further Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593. 24 I also note in particular what her Honour the primary judge said by way of conclusion at [75]-[77] as follows: A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant's responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 25 In my opinion, having regard to the comprehensive consideration of the claims made by the Tribunal, the appellant's ground of appeal is of no substance. I see no error in the judgment of the primary judge. 26 I also take into account the recent decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 in relation to the appellant's claims dealt with by the Tribunal at [71]-[77].
Conclusion and orders 27 Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
CQQ15
Minister for Immigration and Border Protection