ACR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 249
•3 March 2020
FEDERAL COURT OF AUSTRALIA
ACR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 249
Appeal from: Application for leave to appeal: ACR19 v Minister for Immigration & Anor [2019] FCCA 2574 File number(s): NSD 1552 of 2019 Judge(s): GREENWOOD J Date of judgment: 3 March 2020 Catchwords: MIGRATION – consideration of an application for leave to appeal from a decision of the primary judge dismissing an application for review of a decision of the Immigration Assessment Authority Legislation: Migration Act 1958 (Cth), s 473CC Cases cited: ACR19 v Minister for Immigration & Anor [2019] FCCA 2574 Date of hearing: 26 February 2020 Date of last submissions: 26 February 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 1552 of 2019 BETWEEN: ACR19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
3 MARCH 2020
THE COURT ORDERS THAT:
1.The application for leave to appeal filed on 26 June 2019 is dismissed.
2.The applicant pay the costs of the first respondent of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an application for leave to appeal from the judgment and orders pronounced by the primary judge, Judge Driver, on 12 September 2019: ACR19 v Minister for Immigration & Anor [2019] FCCA 2574. By those orders, the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) affirming a decision not to grant the referred applicant a Temporary Protection Visa.
The applicant appeared on his own behalf without the assistance of legal representation. The applicant was assisted by an interpreter, Ms Selvi Ranjan.
At the outset, the applicant said that he had nothing additional to say in support of his application. However, he made submissions directed to two matters.
The first is that he says that in Sri Lanka, the Government has now changed and those now in power would subject him to harm should he return to Sri Lanka.
The second matter is that he says he has been seeking to engage a barrister to act on his behalf. However, he has not been able to raise sufficient funds to pay the fees quoted to him. He says that he will need four to five months to raise the money to retain counsel. I asked him whether he was seeking an adjournment of the hearing of his application and he said that he is seeking an adjournment for that period to enable him to obtain counsel to appear on his behalf.
As to the first matter, if circumstances in Sri Lanka have changed, that may mean that an application might need to be made under the Migration Act 1958 (Cth) of a relevant kind relating to his circumstances if matters have changed sufficiently that other questions properly arise. So far as the present matter is concerned, the issue is whether the applicant should be granted leave to appeal from the orders and decision of the primary judge on the footing that there is error on the part of the primary judge concerning those orders and those reasons.
As to the second matter, it should be noted that the applicant filed his application for leave to appeal on 26 September 2019 and thus he has had approximately five months to raise monies to retain a lawyer. It may be that that period of time is not sufficient to enable him to raise the necessary funds. However, he has had approximately five months since the filing of the application to obtain a degree of legal support. It should be noted that the application, as filed, recites that it was prepared by the “applicant’s counsel”. More fundamentally, the question of whether the application ought to be adjourned ultimately turns on whether there is an arguable basis concerning the grounds upon which he would wish to rely should leave be granted.
As to that matter, the applicant relies upon two grounds. I will return to the grounds later in these reasons.
As to the background, the applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 21 October 2012 as an unauthorised maritime arrival. In the “Enhanced Screening Interview” conducted on 26 November 2012 and the “Irregular Maritime Arrival Entry Interview” conducted on 6 February 2013, the applicant claimed to fear harm in Sri Lanka on the basis that he had campaigned for the Tamil National Alliance (“TNA”) during the Sri Lankan election. In the IAA’s decision of 12 December 2018, the decision‑maker notes the claims of the applicant. The following matters should be noted as to his claims. He says that he lived, for his entire life, in the Battacaloa District in the Eastern Province of Sri Lanka. He says that in 2006 he witnessed his uncle’s murder by members of the “Karuna Group”, a Government‑aligned militia. He says that the two murderers attended his uncle’s funeral, where the applicant publicly denounced the two individuals. He claims that seven days after the funeral, the two men approached him and threatened and beat him. He says that, nevertheless, he went to the local office of the Karuna Group and swore to take action against the two individuals.
As to matters related to the TNA, the IAA notes this summary of his claims:
•In 2010, the applicant supported the [TNA] at local government elections. He assisted with a number of low level electioneering tasks. He was never a member of the TNA.
•In 2012, the applicant again supported the TNA in provincial elections, he assisted further low level electioneering tasks such as setting up speaker, and distributing pamphlets.
•On several occasions during the 2012 election campaign, the applicant was approached by members of the Karuna Group, including the two men he says murdered his uncle. They threatened him and told [him] to stop supporting the TNA.
•Despite the threats he did not cease to work for the TNA Campaign. The TNA performed well, and won several seats.
•The applicant fears that if we returned to Sri Lanka, he would face harm from the Sri Lankan Authorities who would impute him with supporting the LTTE.
•He fears that if we returned to Sri Lanka he would face harm because he would be unwilling to compromise his political views regarding Tamil rights.
As to the question of the uncle’s murder, the IAA examined those claims and accepted that the applicant’s uncle had been shot and killed in 2006. The IAA, however, did not accept many aspects of the applicant’s claim in relation to those matters. At para 13, the IAA said this:
[Notwithstanding the IAA’s acceptance of the uncle’s murder], there are a number of problems associated with the applicant’s claims about his uncle, since his evidence about these events has not been consistent. Most obviously is the fact that the applicant did not mention any of the claims about his uncle’s death, secret support for the LTTE, or the Karuna Group when he first arrived in this country. In a screening interview conducted on 28 November 2012, over a month after he first arrived in Australia, the applicant attributed his departure from Sri Lanka to issues arising from his support for the TNA during the elections in 2012 [as summarised by the IAA]. In a second interview, conducted in February 2013 (three months after arrival) the applicant again failed to mention his uncle, or that he had any family links to the LTTE, or the Karuna Group. …
I have mentioned the matters in relation to the applicant’s uncle to the extent that matters relating to that event have any degree of intersection with the applicant’s claims about having engaged in activities to support the TNA and the extent to which those activities are said to give rise to a well‑founded fear of persecution should he return to Sri Lanka.
The specific matters which are now relied upon as the grounds of a proposed appeal from the orders and reasons of the primary judge, should leave be given, are these:
1.Ground One. The Federal Circuit Court failed to find that the Authority’s decision was vitiated by jurisdictional error in that it failed to consider an integer of the Applicant’s protection claims, leading to a failure to exercise jurisdiction.
2.Ground Two. The Federal Circuit Court failed to find that the Authority failed to exercise its powers pursuant to s 473CC within the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evident and [intelligible] justification.
Each of those grounds is supported by a statement of particulars. As to the first ground, the text is a little confusing but the essential matter is that the IAA is said to have failed to have regard to the applicant’s claims to fear persecution on the basis of his support for the TNA.
As to the second ground, the particulars refer to extracts from para 57 of the IAA’s reasons. The applicant says, in effect, that the conclusions at para 57 are not supported by evidence, lack an evident and intelligible justification and are otherwise unfair.
As to ground one, the summary of the claims made by the IAA expressly recognises the applicant’s claims to have supported the TNA in provincial elections; to have assisted the TNA in electioneering tasks; and during the 2012 election campaign, approaches were made to the applicant by the Karuna Group. As to those claims, the IAA expressly dealt with them and said this at para 31:
I am willing to accept that the applicant was a supporter of the TNA and that he had a low‑level electioneering role in elections held in 2010 and in 2012. The evidence suggests that in Sri Lanka, elections around this time could be hampered by violence and intimidation. I accept that the Karuna Group/TMVP and the TNA campaigned on opposing political groups and so I am prepared to accept that the applicant suffered some intimidation around this time. However, I do not accept that the applicant and his family were subjected to a campaign of harassment by [nominated persons] over approximately six years as he suggests.
At [40], the IAA said this on the topic of “imputed political opinion”:
The applicant says that should he return to Sri Lanka he would face harm for his support for the TNA. I have accepted that he supported the TNA actively during elections in 2010 and 2012 by engaging in a range of low‑level electioneering tasks. I accept he suffered some intimidation during the 2012 elections.
On this topic, the IAA also said this at para 44:
The evidence before me suggests that the level of political violence [in] Sri Lanka has fallen. That the TNA is a mainstream political party with a wide base of supporters, including in the Eastern Province where the applicant lived, and where I have found he would reside. In these circumstances, I am not satisfied that the applicant would face a real chance of harm for his support for the TNA in 2010 or 2012 if [he] returned to Sri Lanka.
Accordingly, it is perfectly clear that the IAA understood the claim being made by the applicant and addressed it expressly at paras 31, 40 and 44. Accordingly, ground one has no merit.
As to ground two, which is concerned with the observations of the IAA at para 57, those findings are supported by Country Information as well as factors relating to the applicant’s own particular circumstances. Paragraph 57 is in these terms:
DFAT assesses that refugees and failed asylum seekers face many practical challenges to a successful return to Sri Lanka due to the expenses incurred to undertake their outward journey, difficulty finding suitable employment and reliable housing and delays in obtaining official documentation. [DFAT Country Information Report – Sri Lanka, 23 May 2018]. DFAT reporting also suggests that returnees may also face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. These issues are practical difficulties which could be faced by any people seeking to re‑establish themselves after being away from their country for an extended period of time. I have found that the applicant would return to Battacaloa and would reside with his family. I conclude his family would be able to provide him with some genuine practical assistance with reintegration into Sri Lanka society including accommodation upon his return. On his own evidence, the applicant has previously worked as a farmer, in a jewellery shop and for an NGO in Sri Lanka. Though presently unemployed, he has previously found work in Australia, even with the notable handicap of not speaking English. He has not claimed that his capacity to subsist would be threatened if [he] returned to Sri Lanka.
The precise criticism which is made of the findings at para 57 is not entirely clear.
The IAA at para 59 accepts that if the applicant returns to Battacaloa, he may be subject to monitoring for a short period by the authorities. However, the IAA did not accept that monitoring of this kind would constitute “harm”. The IAA also accepted that the applicant might experience some “social stigma” within his community as a failed asylum seeker and as a person who has not lived in Sri Lanka for almost six years. The IAA did not accept that this would amount to serious harm. Nor did the IAA accept that any practical difficulties the applicant may face in re‑establishing himself in Battacaloa, or any social stigma he may face as a returning asylum seeker from Australia, would constitute serious harm. To the extent that the applicant challenges the IAA’s findings about the capacity of the applicant to re‑establish himself or reintegrate within Sri Lankan society, the findings of the IAA clearly have support in the evidence and reflect an evident and intelligible justification for the conclusion. There is nothing “unreasonable” about that aspect of the decision. To the extent that the applicant says that the finding about his capacity to reintegrate into Sri Lankan society is “unjust”, this contention is simply the expression of a different view of the facts by the applicant, and thus a challenge to the merits.
As the proposed grounds of appeal have no merit, the application for leave to appeal must be dismissed with an order that the applicant pay the costs of the first respondent of and incidental to the application.
I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 3 March 2020
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