BRV15 v Minister for Immigration

[2017] FCCA 131

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRV15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 131

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether Tribunal failed to consider the claim as made – whether the Tribunal failed to deal properly with the applicant’s claims regarding animal sacrifice.

Legislation:
Migration Act 1958 s.36(2A)

Cases cited:
Wang v Ministerfor Immigration and Multicultural Affairs (2000) 105 FCR 548; (2000) 62 ALD 373; (2000) 179 ALR 1; [2000] FCA 1599

Applicant: BRV15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1922 of 2015

Judgment of: Judge Riley

Hearing date: 21 October 2016

Date of last submission: 21 October 2016

Delivered at: Melbourne

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the applicant: Daniel Robinson

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Nick Wood

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The application filed on 20 August 2015 and amended on 1 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1922 of 2015

BRV15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (“the Minister”) not to grant the applicant a protection visa.  The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion.

Ground 1: successful business

1. The first ground of review in the application filed on 20 August 2015 and amended on 1 June 2016 is:

   (1)The Tribunal failed to consider the applicant’s claim on the basis upon which it was actually made and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence, by disbelieving his claim to have been harassed and attacked in his shop on the basis that he ‘was apparently running a successful business’ in circumstances where:

   (a)it was never part of the applicant’s claim or evidence that the harassment and attacks had, or would be expected to have, the effect of directly compromising the economic viability of his business; and/or

   (b)the applicant’s claim and evidence was that the harassment and attacks were intended to, and did, have the effect of pressuring him to cease conducting his business through fear and stress, not to make his business economically unviable; and/or

   (c)the inference that such harassment and attacks did not occur could not reasonably be drawn from the factual finding that the applicant's business was ‘successful’.

2. The applicant said in a statutory declaration made on 26 July 2013 lodged with the Minister’s department in support of his protection visa application:

   8.Over the past years, particularly this year the Navy, the police and Sinhalese people came to my shop asking me for money. They also took merchandise but refused to pay for it. I have been assaulted, my teeth have been broke, when I tried to prevent this from happening.

   9.I cannot complain to authorities because the authorities do not take any action against the Police or Navy. My health has been impacted by this situation. I suffer from high blood pressure and diabetes. The fear and stress of not feeling safe have made my conditions worst.

   10.I have no power, no means to stop this situation. Other Tamil shop keepers are also being targeted in this way. The Polcie and the Navy are Sinhalese so the yd odn ot want the Tamil shopkeepers to do well. They are trying to put so much pressure on us so we have to close our shops and the Sinhalese can then take over our shops.

   11.I lived all my life seeing the authorities mistreat Tamils. The government allows the Navy, the Army, the Police and the paramilitary to kill, kidnap, mistreat and discriminate Tamils.

   12.I am an old and sick man and could no longer tolerate this situation and living in fear. (Errors in original)

3. The delegate’s decision record dated 13 February 2014 said at page 6:

   I asked the applicant at interview if anything had ever happened to him in his own shop. He stated that these incidents occurred once a week or once a month and that he was afraid of being hurt so would pay them whatever they asked for. He said that he felt that it was degrading for him to be hit by these people in front of the customers. He said that they had hit him once, damaging his front tooth. He showed me the tooth and I noticed that there was a slight chip on the front of his tooth. In his entry interview he stated that when he was walking people would pass him on their motorbikes and slap him over his head. When asked whether he had reported these incidents to police, the applicant stated that he had done so on two to three occasions but that the people had returned to his shop and he was sure that the police had told them that he had reported them. Based on country information which supports the ongoing discriminatory treatment of Tamils3, I accept that the applicant was having problems with people not paying for goods in the shop.

   3 2010 US Dept of State Country Reports on Human Rights: Country Reports on Human Rights Practices 2010: Human Rights Report: Sri Lanka

4. The delegate, under the heading, “Does the harm feared amount to persecution?”, said at page 9 of the decision record:

   Ability to subsist

   The applicant emphasised that his treatment as a Tamil impacts on [his] ability to earn a livelihood through his shop. He explained that his experiences in the shop with Sinhalese police and navy officers stealing goods from his shop with impunity, coupled with the fact that they treated him with minimal respect (because he is Tamil) made it difficult to stay in the country.

   Given the applicant’s detailed account of the treatment in the shop and his explanation of how the Sinhalese authorities can act with disregard to the law, I reached a view that it was necessary to assess whether the discrimination impacted on the applicant’s ability to subsist if returned to Sri Lanka. Country information makes it clear that there are elements of systematic discrimination which affect Tamils in Sri Lanka. However, the applicant’s own evidence shows that he has been able to earn an acceptable livelihood such that he was able to live comfortably. I find that the discrimination is not at a level that it impacts on the applicant’s ability to subsist.

   I am satisfied that the discrimination and treatment experienced by the applicant because he is a Tamil is not at a level that it effects (sic) the applicant’s ability to live comfortably if he were to return to Sri Lanka.

5. The Tribunal dealt with this issue as follows:

   14.As I put to [the applicant], I consider that his evidence suggests that he had a very successful business in Sri Lanka. He has said that he was earning one or one and a half lakhs (100,000 or 150,000) rupees every month and that at the time when he left Sri Lanka he had three lakhs (300,000) rupees in savings. [The applicant] said by way of response that he had evidence that he had had five current accounts in five banks. As I put to him, he is saying that he was not able to live in Sri Lanka but his evidence suggests that he was living there very comfortably. [The applicant] said that they did not let him live there but I consider that his evidence indicates the contrary. As referred to above, [the applicant] has said that his business continued running after he left Sri Lanka until it was sold around the beginning of 2014 for 25 or 26 lakhs (2,500,000 or 2,600,000) rupees of which 11 lakhs (1,100,000) had been paid at the time of the hearing in January 2015.

   15.Having regard to the fact that [the applicant] was apparently running a successful business in Sri Lanka I do not accept that he was being continuously attacked as he said at the hearing before me nor that, as he claimed in the statutory declaration accompanying his application for a protection visa, the navy, the police and Sinhalese people were coming to his shop asking for money. I accept that, as [the applicant] has said, one of his teeth has been broken, but not that this was caused in an attack on him in his shop in which some fittings in the shop were also broken or that one or more of the five Convention reasons was the essential and significant reason for his suffering a broken tooth. I do not accept that, as he said for the first time at the hearing before me, he was beaten and spent three days in hospital in 2012 nor that three months before he left Sri Lanka he was attacked at a roundabout because people did not want him to report what was happening to the police nor that just before he left Sri Lanka they came and hit him again.

   16.… While I accept that he and other shop owners had problems with people stealing from their shops or with shoplifting, I do not accept that, as he has claimed, the Tamil shop owners were specifically targeted, nor that any problems he had as a shop owner arising from people stealing from his shop or shoplifting were so serious or so detrimental in their effect as to amount to persecution involving serious harm as required by paragraph 91R(1)(b) of the Migration Act 1958. …

6. It is simply inaccurate to contend, as the applicant has, that:

   it was never part of the applicant’s claim or evidence that the harassment and attacks had, or would be expected to have, the effect of directly compromising the economic viability of his business.

7. The delegate’s reasons for decision, under the heading, “Ability to subsist”, set out the following:

   The applicant emphasised that his treatment as a Tamil impacts on [his] ability to earn a livelihood through his shop.

8. The applicant did not produce to this court any evidence of his interview with the delegate to show that the delegate’s statement of his evidence was inaccurate.  Nor did the applicant argue before the Tribunal or in post-hearing submissions that the delegate had misunderstood his case.

9. However, the applicant did put things somewhat differently at the hearing before the Tribunal to the way he had put the matter to the delegate.  A transcript of the hearing before the Tribunal is annexed to the affidavit affirmed by Hollie Dee Kerwin on 7 October 2016.  It shows the following exchanges:

   Member:          … if I believe the account that you are giving now, you ran your business very successfully for over 10 years.

   Interpreter:       Yes

   Member:So that doesn’t suggest that whatever problems you were having prevented you from running a successful business.

   Interpreter:      No, there were still problems.  When it was improving, enhancing my problem, my business, they came asking for money.

   …

   Member:Well, what your evidence suggests to me, [Mr Applicant] is that you had a very successful business and you were making a good living in Chilaw.

   Interpreter:        Yes, I was doing well, I was doing well. …

10. Although the applicant put a different complexion on the matter at the hearing before the Tribunal, it is not correct to say that the applicant had never said that the attacks on his shop had compromised the economic viability of his shop.  His statement to the delegate set out above indicated as much.

11. It follows that it is not correct to say, as the applicant did, that the Tribunal did not engage with his case as put.  The applicant said to the delegate that the constant attacks on his shop impacted on his ability to earn a livelihood.  That amounted to a claim that the theft from his shop threatened his capacity to subsist. It was proper for the Tribunal to have dealt with that issue, albeit in a compendious manner, by saying that the applicant’s problems with theft from his shop did not amount to serious harm.

12. In my view, it was open to the Tribunal to find that the success of the applicant’s business meant that his shop was not subjected to the continuous attacks that he claimed.  It was not unreasonable or irrational, in the legal sense, to reach that view.  Indeed, the applicant conceded during the hearing before this court that the Tribunal’s conclusion would not have been irrational if the applicant had made the claim that the Tribunal thought he had made: Tr. p.10, l.36-37.  As discussed above, the applicant did make that claim before the delegate, though he amended his claim before the Tribunal.

13. The applicant argued that the Tribunal misunderstood his claim, by not understanding that the theft from his shop caused him pressure, rather than financial difficulty.  However, the applicant conceded in the hearing before this court that the Tribunal had dealt with the claim of physical and psychological harm from the alleged harassment in his shop: Tr. p.9, l.20-25.  Essentially, the Tribunal did not accept that the applicant’s shop was attacked to the degree he claimed, and therefore did not accept that the pressure on the applicant was as great as he had claimed.

14. Nevertheless, the applicant argued that the Tribunal failed to deal with the claim that the applicant was pressured to leave his shop by the alleged harassment at his shop.  However, it seems to me that the Tribunal did deal with that issue.  The Tribunal found, at paragraph 16 of its reasons for decision, that the applicant suffered some theft from his shop but that it was not so serious as to amount to persecution. 

15. The Tribunal simply did not accept that the applicant was under the pressure that the applicant claimed.  Indeed, as the applicant has acknowledged that he was not under financial pressure, and has acknowledged that the Tribunal dealt adequately with his claims of physical and psychological pressure, it is difficult to see any other basis upon which the applicant could have experienced persecution. 

16. The applicant may have felt fear and pressure, but the test requires that it be well-founded.  Being particularly susceptible to fear and pressure does not mean that a person is being persecuted.

17. This ground is not made out.

Ground 2: animal sacrifice

1. The second ground of review in the application filed on 20 August 2015 and amended on 1 June 2016 is:

   (2)The Tribunal asked itself the wrong legal question and/or failed to consider the real question that it had to decide, by dealing with the applicant’s claim in relation to his religious practice of ritual animal sacrifice by way of evaluating the inability to engage in such religious practice against an undefined and extraneous test of ‘an unreasonable restriction on religious freedom’ rather than by asking itself:

   (a)how the applicant would conduct his religious practice if returned to Sri Lanka;

   (b)what lawful and/or unlawful coercive actions might be taken by others in relation to the applicant’s religious practice; and

   (c)whether such actions constitute ‘persecution’ within the meaning of the Refugees Convention as adopted by the Migration Act 1958 (Cth), including the consideration of:

   (i)     the nature and effect of such actions on the applicant, including whether he might not comply or comply because of the threat of harm;

   (ii)    whether such actions would be taken for reasons of religion; and

   (iii)   if relevant, in the case of lawful official actions, whether such actions might fall within or beyond that which is appropriate and adapted to an identified legitimate government object.

2. This ground arose from a claim made by the applicant for the first time at the hearing before the Tribunal.  The applicant told the Tribunal that he could go to the temple and worship, but outside, people would comment that he was a Tamil.  The Tribunal told the applicant that it accepted that, by going to the temple, he could be identified as Tamil. The applicant then told the Tribunal that he had sacrificed goats in the temple, but a Minister named Mervyn Silva had brought the police and created a lot of problems with the festival and had told people he would not allow animal sacrifices. 

3. It may be that, when the applicant used the word “Minister”, he meant a Minister of the government, rather than a member of the clergy.  However, as shown below, a footnote to the Tribunal’s reasons for decision references an article entitled, “Hindu temple cancels animal sacrifice”, which suggests that it was a member of the clergy who cancelled the animal sacrifice.  It may be that both the government and the Hindu clergy have prevented animal sacrifices.

4. In any event, the Tribunal dealt with this claim as follows:

   18.[The applicant] said that there was a lot of information about religion in Sri Lanka. He said that you could not be identified as a religious person: you could not go out of a temple with religious identification like a pottu. After I asked him if he was claiming that he had not been able to worship at the Munneswaram temple he said that you could go to the temple and worship inside the temple but when you went out with the pottu and vesti they would pass comments stating, ‘You are a Tamil.’ As I indicated to him, I accept that by attending the temple he would be able to be identified as a Tamil and a Hindu but, as I put to him, the advice of the Australian Department of Foreign Affairs and Trade suggests that he would not face discrimination on this basis. [The applicant] said that this was what was happening in Sri Lanka. He said that when they had sacrificed goats in the temple a Minister named Mervyn Silva had brought the police and had created a lot of problems in the festival. He said that the Minister had told people that he would not allow the Tamils to do this.

   19.I am aware that there has been controversy over the issue of animal sacrifices at the Munneswaram temple but this issue raises complex questions involving the intersection of religious freedom and concerns about animal cruelty2. I consider that, as [the applicant] himself said, he will be free to worship at the temple if he returns to Sri Lanka and I do not accept that the inability to carry out animal sacrifices at the temple amounts to such an unreasonable restriction on religious freedom as to amount to persecution for the purposes of the Refugees Convention.  As I indicated to [the applicant], I accept that he will be identifiable as a Tamil and a Hindu but, having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that he will be discriminated against on this basis in such a way or to such an extent as to amount to persecution for the purposes of the Refugees Convention. (emphasis added)

   2 ‘Hindu temple cancels animal sacrifice’, UCAN News , 3 September 2012, CX305765; Centre for

   Policy Alternatives, Attacks on Places of Religious Worship in Post-War Sri Lanka , 1 March 2013,

   CIS25159, pages 89-90.

5. The Minister did not attempt to argue that the Tribunal had correctly applied the law when it found that the applicant’s inability to carry out animal sacrifices did not amount to such an unreasonable restriction on his religious freedom as to amount to persecution.  The Minister could not have succeeded in such an argument.  It is well established that it is not open to the Tribunal to decide that any particular aspect of a person’s religious practice is unreasonable or minor or inessential, and the prohibition of it is therefore not persecutory.  See, for example the decision of the Full Court of the Federal Court in Wang v Ministerfor Immigration and Multicultural Affairs (2000) 105 FCR 548; (2000) 62 ALD 373; (2000) 179 ALR 1; [2000] FCA 1599.

1. Rather, the Minister argued that the applicant had not claimed to fear serious or significant harm by reason of sacrificing animals, and there was no evidence that any such harm might arise if the applicant were to return to Sri Lanka and sacrifice animals.  The applicant accepted that criticism, but said that the Tribunal had a duty to ask the applicant to elaborate on his claims in such a way that would have elicited evidence about any serious or significant harm that might befall the applicant if he sacrificed animals.

2. That is not correct.  It is for the applicant to make out his case.  It is not for the Tribunal to ask the applicant for information to establish the basic requirements of a refugee claim that the applicant has not provided.  That is particularly so in the present case, where the applicant was represented before the Tribunal by a solicitor and migration agent, and where the solicitor and migration agent was given an opportunity to and did provide lengthy post-hearing written submissions.

3. In any event, the applicant’s claim, which was not adequately articulated, was that he would suffer serious harm by virtue of being unable to carry out an aspect of his religious observance, namely, sacrificing animals.  That is consistent with the Tribunal’s finding that the applicant would be unable to carry out animal sacrifices, not that he would carry them out and might be harmed in some way for doing so.

4. However, the Tribunal also found, at least implicitly, that the reason that the applicant would be prohibited from carrying out animal sacrifices was that animal sacrifices are perceived by the authorities in Sri Lanka, whether secular or Hindu, as being cruel.  Obviously, the Refugees Convention protects people from suffering serious harm:

   for reasons of race, religion, nationality, membership of a particular social group or political opinion …

5. Being prevented from carrying out a particular aspect of religious observance because it is cruel does not engage the Refugees Convention.  The reason (to prevent cruelty to animals) for the harm (being unable to carry out an aspect of religious observance) is not one of the five grounds included in the Refugees Convention.

6. The applicant did not claim that being unable to carry out animal sacrifice would amount to significant harm as defined. Significant harm is defined in s.36(2A) of the Migration Act 1958 as:

   A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life;  or

   (b)    the death penalty will be carried out on the non-citizen; or

   (c)     the non-citizen will be subjected to torture; or

   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non-citizen will be subjected to degrading treatment or punishment.

7. As a matter of law, being unable to carry out animal sacrifice does not fit within any of the ways in which a person can suffer significant harm, as defined.

8. Consequently, notwithstanding the Tribunal’s error in saying that the applicant’s inability to carry out animal sacrifices did not amount to an unreasonable restriction on his religious freedom, the applicant’s claims about his inability to carry out animal sacrifice could not, as a matter of law, have succeeded.

9. I also note in passing that it makes no sense that the applicant would have fled from Sri Lanka to Australia because he was unable to carry out animal sacrifice in Sri Lanka.  It is a matter of common knowledge that cruelty to animals is prohibited in Australia and is subject to substantial penalties.

10. This ground is without substance.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     30 January 2017