ACR19 v Minister for Immigration

[2019] FCCA 2574

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACR19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2574

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 473CA, 473CB

Cases cited:

MZYXS v Minister for Immigration [2013] FCA 614

Applicant: ACR19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 49 of 2019

Judgment of: Judge Driver

Hearing date: 12 September 2019

Delivered at: Sydney

Delivered on: 12 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H Gao of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 49 of 2019

ACR19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 December 2018.  The Authority affirmed a decision of a delegate of the Minister (Minister) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 5 September 2019.   

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity, who arrived in Australia on 21 October 2012 at Cocos (Keeling) Islands as an unauthorised maritime arrival.[1]

   [1] Relevant Documents (RD) 21 and 66

3. In the Enhanced Screening Interview conducted on 26 November 2012 and the Irregular Maritime Arrival Entry Interview conducted on 6 February 2013 (arrival interviews), the applicant claimed to fear harm in Sri Lanka on the basis that he campaigned for the Tamil National Alliance (TNA) during the Sri Lankan election.[2]

   [2] RD 4, 18

4. On 8 March 2017, the applicant lodged an application for the temporary protection visa with the Minister’s Department, in which he made the following claims:[3]

   a)he witnessed the murder of his uncle, who was a member of the Sri Lankan police force but secretly supported the LTTE. At his uncle's official police funeral, he confronted his uncle's killers (Messrs R and V), who were associated with the Karuna Group. He was subsequently beaten by Messrs R and V. A few months later, he visited the Karuna Group office and threatened to kill Messrs R and V; 

   b)he campaigned for the TNA in the 2010 federal election and 2012 provincial council election. As a result, he was threatened by the Karuna Group;

   c)Mr R was killed on 12 September 2012 and the applicant was arrested on 15 September 2012 on suspicion of being involved in the murder. He was interrogated and beaten by the police, but was released on the next day;

   d)Mr V attended his family home several times after his departure from Sri Lanka to inquire about his whereabouts. He fears harm from the Sri Lankan authorities, Mr V and the Karuna Group.

   [3] RD 87-91

5. On 29 August 2018, the delegate refused the TPV. The delegate accepted that the applicant was a low-level supporter of the TNA but found that he had fabricated other aspects of his claims. The delegate found that the applicant would not be harmed in Sri Lanka for any reason.[4] On 3 September 2018, the delegate's decision was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act).[5] The applicant did not provide any material to the Authority in support of the review.

   [4] RD 126-147

   [5] RD 149-158

Authority decision

1. On 12 December 2018, the Authority affirmed the decision under review.[6] The Authority summarised the applicant's claims and made the following factual findings:

   a)uncle's murder – although the Authority accepted that the applicant's uncle was shot and killed in 2006, it did not accept that he was murdered by Messrs R and V. It noted the applicant's failure to mention these claims in the arrival interviews with the Minister’s Department. It also found that his account of going to the Karuna Group office to confront his uncle's killers to be fanciful;[7]

   b)support for the TNA and intimidation from Karuna Group – the Authority considered the applicant’s claims and found that his evidence had shifted, or was contradictory about several key elements in his claims. It also found that the applicant was not forthcoming about events in Sri Lanka, and he exaggerated his claims. Although the Authority accepted the applicant supported the TNA it rejected his claim that he was constantly harassed by Messrs R and V on the basis that he had failed to mention this claim at his arrival interviews with the Minister’s Department, and that his evidence regarding the harassments he received from the Karuna Group had been inconsistent. It further accepted that he was detained and mistreated on 15 September 2012, but found the applicant was not of any ongoing interest to the Sri Lankan authorities as he was released the next day;[8]

   c)interest from the Karuna Group – the Authority did not accept the applicant was of any ongoing interest to the Karuna Group after his departure from Sri Lanka;[9]

   d)imputed LTTE connection – the Authority found that the applicant would not be imputed with pro-LTTE political opinion;[10]

   e)Tamil Rights – the Authority noted the applicant's evidence that he did not have a political profile in Sri Lanka. It accepted that he supported the TNA.[11]

   [6] RD 169

   [7] RD 171-173, 175-176 at [6]-[16], [30]

   [8] RD 173-176 at [17]-[32]

   [9] RD 176 at [33]-[34]

   [10] RD 176 at [35]

   [11] RD 177 at [36]

2. The Authority referred to country information and found that the applicant would not be harmed in Sri Lanka by reason of his support for the TNA, his ethnicity and place of residence, his status as a failed asylum seeker, or his illegal departure from Sri Lanka.[12] In those circumstances, the Authority found that the applicant did not satisfy the refugee or the complementary protection criterion under s.36(2)(a) or (aa) of the Migration Act.[13]

   [12] RD 177-182 at [40]-[59]

   [13] RD 182-183 at [60]-[65]

The present proceedings

1. These proceedings began with a show cause application filed on 10 January 2019.  The applicant continues to rely upon that application.  The grounds in it are:

   The decision of the Second Respondent to refuse to grant the Applicant a Safe Haven Enterprise Visa is affected by the following jurisdictional error:

   1. The Second Respondent erred in law by making a decision not taking into relevant information.

   a. The second respondent failed to consider integral part of his claim, in that he rebelled against the authorities for his uncle’s murder.

   2. The Second Respondent ignored relevant material in a way that affected its exercise of power.

   3. The Second Respondent failed to apply the [complementary] protection provision correctly.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the book of relevant documents filed on 4 April 2019. 

3. Only the Minister provided pre-hearing written submissions in this matter.  I invited oral submissions from the applicant this morning.  He referred to his fear of returning to Sri Lanka.  He was, however, unable to articulate any arguments bearing upon the grounds of review.  In his submissions in reply, the applicant stated that he is not working and would like to find a lawyer to assist him.  As I explained to the applicant, I saw no reason for an adjournment in the absence of some arguable case of jurisdictional error by the Authority. 

4. In my view, the decision of the Authority is free from jurisdictional error.  It is apparent that the Authority gave consideration to all of the applicant’s claims.  It is also apparent that the Authority understood the task that it had to perform and performed it.  In my view, the Authority complied with its statutory code of procedure.  I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced.    

Ground 1

1. This ground does not raise an arguable case for the relief claimed for the following reasons. First, the applicant never raised a claim that he “rebelled” against the authorities following the death of his uncle. Indeed, the information before the Authority indicates the contrary, as the applicant claimed that he did not make any formal complaint to the police following the death of his uncle.[14] Secondly, to the extent that the applicant is asserting that the Authority ought to have considered that his confrontation with Messrs R and V at the Karuna Group office was his rebellion “against the authorities”, the Authority expressly rejected that claim.[15] In those circumstances, Ground 1 seeks to cavil with the merits of the Authority’s findings, identifies no jurisdictional error and should be rejected.

   [14] RD 88

   [15] RD 175-176 at [30]

Ground 2

1. This ground is unparticularised and therefore is meaningless. The Authority noted that it had regard to the material referred to it under s.473CB of the Migration Act and that the applicant did not provide further information to it.[16] A fair reading of the Authority’s decision indicates that the Authority considered the applicant’s claims and evidence, and made findings that were open to it.

   [16] RD 170 at [2]

Ground 3

1. It is apparent that the Authority correctly assessed the applicant’s claims in accordance with the complementary protection criterion. The Authority was cognisant of the statutory definition of “significant harm”.[17] Although the Authority’s reasons for finding that the applicant did not satisfy the complementary protection criterion mirrored its earlier findings regarding the refugee criterion in assessing, it was entitled to do so.[18]

   [17] RD 182 at [62]; RD 184-187

   [18] see MZYXS v Minister for Immigration [2013] FCA 614 at [31]

2. For these reasons, the grounds of application do not raise an arguable case for the relief claimed.

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 September 2019