CQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 23 August 2022
• Neutral Citation: [2022] FCA 982
• Date: 23 August 2022

Federal Court of Australia

CQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 982

Appeal from:	CQQ16 v Minister for Immigration & Anor [2019] FCCA 3491
File number(s):	NSD 2093 of 2019
Judgment of:	RAPER J
Date of judgment:	23 August 2022
Catchwords:	MIGRATION – appeal from orders of the Federal Circuit Court of Australia affirming a decision of the Immigration Assessment Authority (IAA) affirming a decision of a delegate not to grant a protection visa – whether IAA erred in declining to exercise its discretion to get “new information” under s 473DC(1) of the Migration Act 1958 (Cth) or invite the appellant to give oral evidence by way of interview under s 473DC(3) – whether IAA misconstrued discretion under s 473DC as requiring “exceptional circumstances” within the meaning of s 473DD in order to decide to get “new information” – whether sufficient doubt as to vote count results of Sri Lankan election required the IAA to consider the possibility of error in relation to its findings when assessing the prospect of future persecution – whether the IAA failed to apply requisite caution in relation to an omission by the appellant in his entry interview – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5AA, 5H(1), 36(2)(a), 36(2)(aa), 65, 473BA, 473CA, 473DA, 473DB, 473DC, 473DD, 476(1)
Cases cited:	AIT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1627 AXX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 758 BKR16 v Minister for Immigration and Border Protection [2019] FCA 708 BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 FVO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 326 Han v Minister for Home Affairs [2019] FCA 331 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister v Rajalingam [1999] FCA 719; 93 FCR 220 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118 O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 Patel v Minister for Immigration and Border Protection [2015] FCA 1061 Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; 174 FCR 415 SZQHK v Minister for Immigration and Citizenship [2012] FCA 178; 125 ALD 458 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	96
Date of hearing:	8 July 2022
Counsel for the Appellant:	Mr B Zipser
Solicitor for the First Respondent:	Mr K Eskerie of Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs.

ORDERS

		NSD 2093 of 2019
BETWEEN:	CQQ16 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	RAPER J
DATE OF ORDER:	23 August 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1. This is an appeal from a decision of the (then) Federal Circuit Court of Australia (FCCA) made on 3 December 2019: CQQ16 v Minister for Immigration & Anor [2019] FCCA 3491 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA), made under Part 7AA of the Migration Act 1958 (Cth) on 8 September 2016. The IAA had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, made on 29 July 2016, refusing to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (SHEV), which is a type of protection visa, pursuant to s 65 of the Act.

2. For the reasons set out below, I dismiss the appeal.

Factual background

3. The appellant is a citizen of Sri Lanka and of Tamil ethnicity. He arrived in Australia on 17 September 2012 as an unauthorised maritime arrival within the meaning of s 5AA of the Act. An entry interview was conducted on 12 January 2013.

4. The appellant lodged an application for a SHEV visa on 18 December 2015. He claimed to fear harm from the Sri Lankan authorities, specifically the Criminal Investigation Department of the Sri Lanka Police Service (CID) and the Sri Lankan paramilitary group Eelam Peoples Democratic Party (EPDP), because of his “high political profile” if he were to return to Sri Lanka.

5. The appellant claimed he stood for the 2011 elections as a member of the United National Party (UNP) and lost. He further claimed, as a failed Tamil candidate, that he will be persecuted and subjected to torture. To that end, he claimed he was threatened by opposing candidates who were Singhalese and was abducted by unknown Singhalese individuals who subjected him to torture by way of being burnt by cigarettes.

6. The appellant claimed that if he were to return to Sri Lanka he would face harm, including torture, by the government and its agencies as a result of standing as a candidate in the 2011 elections representing the Tamil minority. He stated that if he went to the police, they would not believe him, and that he would remain at risk of torture.

The delegate’s decision

7. In a decision on 29 July 2016, the delegate accepted “as plausible” that the appellant had a “subjective fear of harm if he returned to Sri Lanka on the basis of his Tamil background” (emphasis added).

8. However, the delegate made adverse credibility findings in relation to the appellant’s claims with respect to:

1. his political involvement;

2. his and/or his family’s harassment due to his political profile; and

3. ...