FEDERAL COURT OF AUSTRALIA

ACI16 v Minister for Immigration and Border Protection [2017] FCA 671

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant arrived on Christmas Island in around June 2012 and thereafter applied for a Protection (Class XA) visa.

2    A delegate of the Minister refused that application on 17 February 2014.

3    An application for review of the delegate’s decision was then filed. On 8 December 2015 the Administrative Appeals Tribunal affirmed the delegate’s decision.

4    The Appellant then sought review of the Tribunal’s decision by the Federal Circuit Court of Australia. On 16 December 2016 that Court dismissed the application for review: ACI16 v Minister for Immigration & Border Protection [2016] FCCA 3243.

5    On 19 January 2017 a Notice of Appeal was filed in this Court.

6    The Respondent Minister claimed that the appeal to this Court should have been filed within 21 days of the date upon which the Federal Circuit Court published its judgment, namely 16 December 2016, and that the Notice of Appeal as filed in this Court was 13 days out of time. An extension of time, the Respondent Minister initially submitted in the written Outline of Submissions, should be refused as any appeal did not have sufficient prospects of success.

7    When the hearing of this matter was first before this Court on 8 May 2017, the Respondent Minister was represented by a solicitor. The Appellant then failed to appear. An oral application was made on that date that the appeal be dismissed. Notwithstanding this application, the hearing proceeded in the absence of the Appellant and the Grounds of Appeal were explored.

8    Thereafter, the Appellant filed an affidavit on 9 May 2017 indicating that he was unable to attend for medical reasons. The matter was again listed before the Court on 15 May 2017. The Appellant then appeared unrepresented, but with the assistance of an interpreter. The Respondent Minister also wished to advance further submissions, contending that the oral submissions previously advanced had only canvassed why the appeal should be dismissed for want of appearance but not in respect to the Grounds of Appeal.

9    Whether the Respondent Minister’s position was correct matters not. Further submissions were in fact entertained on 15 May 2017 at which time the Minister was represented by Counsel.

10    It is concluded that no extension of time is necessary as the Notice of Appeal was filed within time. It is further concluded that the appeal should be dismissed. Costs should follow the event.

The time for filing a Notice of Appeal – 21 days from 16 December

11    The Respondent Minister correctly contended that r 36.03(a) of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”) provides that any Notice of Appeal from the decision published on 16 December 2016 was to be filed within 21 days.

12    But r 1.61(5) of those Rules further relevantly provides as follows:

If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.

This rule “suspends the running of time from 24 December to 14 January”: Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 at [10] per Allsop CJ, Dowsett and Besanko J.

13    When r 1.61(5) is applied, the Notice of Appeal as filed on 19 January 2017 was manifestly within time. A like conclusion was reached by Buchanan J in Kaur v Minister for Immigration and Border Protection [2016] FCA 556 at [1] to [5].

14    The initial objection by the Respondent Minister founded upon the Notice of Appeal being filed outside the 21 day period was withdrawn.

Want of appearance – the discretion conferred

15    The application made orally when the matter was first before the Court on 8 May 2017 that the appeal be dismissed for want of appearance was made pursuant to r 36.75 of the Federal Court Rules.

16    That rule provides in relevant part as follows:

Absence of party

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

…

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the hearing.

17    This Rule, it is well recognised, confers a discretion. The discretion to dismiss an appeal for non-appearance is ultimately sourced in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth): SZSKV v Minister for Immigration and Border Protection [2014] FCA 458 at [3] per Griffiths J.

18    Had the matter not been re-listed for further hearing on 15 May 2017, it would have been concluded that the discretionary power to dismiss the appeal would have been exercised and the appeal dismissed by reason of:

    the unexplained absence of the Appellant – the hearing of the appeal initially being listed for hearing at 9:30am but stood down for about half an hour in case the Appellant was simply late;

    the attempts by the Respondent Minister’s solicitor to contact the Appellant on that day by telephone being met with a message that the phone number which had been provided by the Appellant had been disconnected;

    the notification to the Appellant of the date of hearing at both a residential address provided and subsequently to the email address provided on the Notice of Appeal – such notifications also advising the Appellant as to the prospect of his appeal being dismissed in the event that he failed to appear; and

    the conclusion that the appeal had no prospect of success.

19    But the matter was relisted on 15 May 2017.

20    No objection was then raised on behalf of the Respondent Minister to the Appellant then advancing such submissions as he saw fit.

The Grounds of Appeal

21    The Notice of Appeal as filed on 19 January 2017 sets forth the Grounds of Appeal as follows (without alteration):

1.    The Federal Circuit Court failed to find that the Tribunal asked itself the wrong question and/or failed to consider all integers of my claim:

Particulars

a.    Even though under Sri Lankan citizenship law may be eligible for citizenship, I was born in India and I have never held Sri Lankan citizenship;

b.    As per [4] of the Federal Circuit Court judgment my family left Sri Lankan in 1990 and continue to reside in an refugee camp in India. I was born in the refugee camp and have no family in Sri Lanka;

c.    As per [6] of the Federal Circuit Court judgment, I claimed that I left India because I was subjected to beatings by officers of the Indian Crime Branch and on one occasion detained for two days;

d.    In [81] the Tribunal only considered whether there was a real risk of serious or significant harm on the finding that I am a citizen of Sri Lanka without considering all integers of my claim; and

e.    The Federal Circuit Court made in the same error in [32] to [33] by focusing on the question of nationality.

22    Notwithstanding the manner in which this Ground of Appeal is drafted as a single question, it was understood to raise two separate questions, namely:

    whether the Tribunal asked itself the “wrong question”; and

    whether the Tribunal “failed to consider all integers” of the claim as made.

23    However expressed, neither question is to be answered favourably to the Appellant.

The asking of the wrong question

24    The primary manner in which it is understood the appeal was advanced for resolution was that the Tribunal asked itself the “wrong question” by reason of the Tribunal considering the Appellant to be a citizen of Sri Lanka as opposed to India.

25    In very summary form, the Appellant was born in a refugee camp in India of parents who were both citizens of Sri Lanka. His family had fled Sri Lanka because of the violence there.

26    As noted by the Federal Circuit Court Judge, although the comparable argument before that Court was similarly expressed in terms of “citizenship”, s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Migration Act”) at the time of the application set forth a criteria for the grant of a protection visa that was expressed in terms of a real risk of significant harm if a claimant is returned to a “receiving country”. Section 5(1) defined that phrase, at the time of the Appellant’s application, as follows:

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national; or

(b)    if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident;

to be determined solely by reference to the law of the relevant country.

27    There are two difficulties with the first limb of the Appellant’s argument before this Court.

28    First, and as again noted by the Federal Circuit Court Judge, the Appellant claimed to be a citizen of Sri Lanka and the Tribunal found him to be a citizen of Sri Lanka.

29    Although the Appellant was born in India, when completing a form titled “Personal particulars for assessment including character assessment” in February 2013 he stated his nationality to be Sri Lankan. A Statutory Declaration sworn on the same date similarly states:

3.    I am a citizen of Sri Lanka. I do not have rights to enter or reside in any country other than Sri Lanka, either permanently or on a temporary basis. I do not hold, nor am I entitled to hold, citizenship of any country other than Sri Lanka.

And when addressing the fact that the Appellant was born in India but nevertheless claimed to be a citizen of Sri Lanka, the Tribunal found (inter alia) as follows:

[81]    The Tribunal finds that the applicant is a national of Sri Lanka. Although the applicant was born in India, he has denied ever obtaining an Indian passport or establishing permanent residency there. The applicant claimed that his parents were Sri Lankan citizens and he has always assumed that he is also a Sri Lankan citizen. The Tribunal notes that the applicant’s identity documents include a Sri Lankan Refugee Identity Card issued by the government of Tamil Nadu and a Sri Lankan Refugees Identity Register. The applicant’s birth certificate names his parents. Section 5 of the Sri Lankan Citizenship Act No. 18 of 1948 states that any person born outside of Sri Lanka whose mother was a citizen of Sri Lanka at the time of his birth shall be eligible for citizenship. The country information referred to above indicates that the Sri Lankan government is willing to recognise the citizenship of, and provide identity documents to, children of Sri Lankan refugees born in refugee camps in India. Accordingly, the Tribunal is satisfied that Sri Lanka is the applicant’s country of reference and receiving country for the purposes of this application.

30    Secondly, the findings made by the Tribunal were findings open to it upon the evidence.

31    In resolving the comparable Ground of Review as advanced before the Federal Circuit Court, reference was made by the Judge of that Court to the concept of a “receiving country” and ss 5 and 36(2)(aa) of the Migration Act. That Judge went on to conclude as follows:

[33]    … The Tribunal had a clear basis for determining that the applicant was eligible for citizenship and that, for that reason, his country of nationality was Sri Lanka.

[34]    The applicant’s attack on that finding is unsustainable not only because it was consistent with his own claims, but also because the attack is based solely on the assertion that it was wrong. That may or may not be right; however, what matters on judicial review is that the Tribunal properly understood the question posed by the Act and Regulations and made findings relevant to that question based on the material before it. The first ground is rejected.

32    No error is exposed in the findings as made by the Tribunal and, more relevantly, no appellable error is exposed in the reasoning of the Federal Circuit Court Judge.

33    This limb of the Ground of Appeal is thus rejected. No error is discernible in the Tribunal resolving the claim as to citizenship upon the very basis that that claim was advanced.

The failure to consider the integers of the claim as made?

34    The second of the two limbs advanced in the sole Ground of Appeal to this Court was whether the Tribunal “failed to consider all integers” of the claim as made. The claim as made was set forth in a Statutory Declaration dated 27 February 2013. The claim was addressed in that Statutory Declaration under the following headings:

    “Summary of my claims”;

    “Citizenship”;

    “Entry Interview”;

    “Introduction”;

    “The country to which I fear returning”;

    “Why I left India”;

    “Why I cannot go to Sri Lanka”;

    “What I fear may happen to me in Sri Lanka”;

    “Who I think may harm/mistreat me in Sri Lanka and why”;

    “Do I think the authorities of Sri Lanka can and will protect me if I were to go back to Sri Lanka?”;

    “Do I think there is a place in Sri Lanka where I could be safe?”; and

    “Other reasons I cannot return to Sri Lanka – Complementary Protection”.

35    Each of the five Particulars to the Ground of Appeal have been understood to be the matters which the Appellant contends were not considered by the Tribunal.

36    So construed, the second limb of the Ground of Appeal is also without substance.

37    Subject to two qualifications, an initial difficulty is that the Ground, so construed, was not advanced as a Ground of Review before the Federal Circuit Court Judge. These two qualifications are:

    to a very significant extent, such an argument was perhaps an elaboration of the submission in respect to whether the Tribunal had asked itself the “wrong question”; and

    the second Ground of Review as advanced before the Federal Circuit Court addressed attention to the significance of whether “scarring is still used as a basis for detaining and interrogating Tamils” and “country information”.

But before that Court there was no Ground of Review which asserted a failure to consider “all integers of my claim”.

38    Whether that be so matters not. In limited circumstances, an appellant may raise before this Court arguments not previously relied upon: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6], (2000) 63 ALD 43 at 44 to 45 per Branson and Katz JJ. But leave to do so will generally be refused where, as in the present case, none of the arguments have any apparent merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48], (2004) 238 FCR 588 at 598 to 599 per Kiefel, Weinberg and Stone JJ.

39    Each of the matters “particularised” was in fact taken into account by the Tribunal.

40    The first of the “particularised” matters, namely the fact that the Appellant was born in India, was a matter under active consideration by the Tribunal. It was part of the consideration given by the Tribunal when making its findings as to Sri Lanka being the relevant “country of reference” and “receiving country”.

41    The second of the “particularised” matters, namely the fact that the Appellant’s family left Sri Lanka and had resided in a refugee camp in India was also a matter expressly addressed by the Tribunal.

42    The third of the “particularised” matters, namely the claim that the Appellant had left India because he was “subjected to beatings by officers of the Indian Crime Branch” was again a matter the subject of express consideration by the Tribunal.

43    These “integers” of the claim made by the Appellant were raised for consideration in the Appellant’s Statutory Declaration and were addressed in the Tribunal’s reasons for decision as follows:

27.    The applicant claimed that he had lived his entire life in India in a refugee camp. Life for Tamil refugees in Indian refugee camps was incredibly restricted and he was required to seek the permission of the authorities in order to leave the refugee camp. The applicant claimed that Tamil refugees were badly mistreated in India, including by the Indian authorities and were denied basic rights.

28.    The applicant claimed he had been physically abused by the Indian authorities on multiple occasions. The applicant claimed that he occasionally stood outside the camp smoking tobacco with his friends. Officers of the Indian crime branch used to patrol the area and would call the applicant and his friends ‘dogs’, threaten to fabricate charges against them and would often beat them up. On one occasion, the applicant spoke back to the officers and was taken to the police station and detained for two days. During those two days, the applicant was forced to work in the police station like a slave and sleep on a bicycle stand outside the station. Officers would regularly come to the applicant’s house and the houses of other Tamil refugees, use vulgar language and speak to them in a cruel and degrading way. The applicant claimed that he attempted to flee India in 2007 but was conned by a people smuggler. After repaying the debt he had accrued to pay the first people smuggler, the applicant made a second attempt to reach Australia in 2012.

44    And the challenge made to this part of the Tribunal’s reasons were resolved as follows by the Federal Circuit Court Judge when considering the second Ground of Review at paras [32] to [34] of his reasons for decision (without alteration):

Ground two

[32]    The second ground is that the Tribunal considered the wrong issue. The particulars to the ground are

(a)    At [93] the Tribunal found that no recent information to suggest that scarring is still used as a basis for detaining and interrogating Tamils: and

(b)    Whether the country information is recent or not is the wrong issue. As the country information stands, scarring is still used as a basis for detaining and interrogating Tamils in Sri Lanka.

…

[33]    The Tribunal accepted that the applicant had a number of characteristics: his father had some connection with the LTTE; he was young, Tamil and male whose family originated from the North and fled Sri Lanka during the conflict and remained outside of Sri Lanka; if he goes to Sri Lanka it will be on the basis that he unsuccessfully sought asylum in Australia; he also has some scarring on his face and arms. The Tribunal then considered whether these attributes might provide the basis for persecution in Sri Lanka. In doing so, it stated, at [93]:

…

Whilst there is some country information indicating that scarring was used as a means of identifying former combatants in the immediate aftermath of the conflict, there is no recent information to suggest that scarring is still used as a basis for detaining and interrogating Tamils.

[34]    That is the passage impugned by the applicant in the second ground.

The Federal Circuit Court Judge went on to conclude as follows:

[35]    The difficulty with the ground is that it proceeds on the assumption that the Tribunal must accept evidence before it unless it has rebutting evidence. That assumption is wrong: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348; [1994] FCA 1105; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [65]. The Tribunal is entitled to assess the evidence before it, give weight to it (including on the basis of whether or not it is recent) and then to make findings based on that assessment. That is what the Tribunal did in this case. It made no error in doing so and the second ground is rejected.

45    No appellable error is discernible in those reasons. Moreover, and even if reference were made to the reasons for decision of the Tribunal, the fact is that the Tribunal did in fact consider the claims made by the Appellant and (in particular) the two matters referred to at para [32].

46    The forth “particularised” matter, which refers to para [81] of the Tribunal’s reasons for decision, appears to refer to the claims as advanced in the Statutory Declaration and the claims there made as to why the Appellant had fears should he be returned to Sri Lanka. Alternatively, the fourth of the matters “particularised” is but a different means of expressing the former concerns. Either way, this fourth “particular” takes the matter no further. The “integers of [the] claim” to which reference is made were in fact considered. If this “particular” seeks to focus on the claims made by the Appellant as to the difficulties he would confront in Sri Lanka, each of the matters relied upon in the Statutory Declaration were in fact taken into account by the Tribunal.

47    The final “particularised” matter is but a summary of the first four. It has no greater merit than any of those other claims.

48    It is concluded that there has been no failure on the part of the Tribunal to consider each of the “integers” of the claim as made by the Appellant. Whether or not this was a Ground of Review advanced for resolution before the Federal Circuit Court ultimately matters little. It is an argument without substance.

CONCLUSIONS

49    However the sole Ground of Appeal be construed, no appellable error is exposed in either the reasons of the Tribunal or – more importantly – the reasons for decision of the Federal Circuit Court Judge.

50    The appeal is without substance and is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    15 June 2017