BRV15 v Minister for Immigration and Border Protection
[2018] FCA 285
•9 March 2018
FEDERAL COURT OF AUSTRALIA
BRV15 v Minister for Immigration and Border Protection [2018] FCA 285
Appeal from: BRV15 v Minister for Immigration and Border Protection [2017] FCCA 131 File number: VID 131 of 2017 Judge: GRIFFITHS J Date of judgment: 9 March 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the AAT did not fail to consider the applicant’s claim on the basis on which it was actually made, and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence – whether the primary judge erred in the interpretation and/or application of the well-foundedness requirement – whether the primary judge erred by finding the AAT had asked itself the correct legal question and/or applied a correct proposition of law in respect of the applicant’s claims concerning his religious practice of animal sacrifice – whether the primary judge engaged in an impermissible merits review – appeal dismissed, with costs Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
SZTAL v Minister for Immigration and Protection [2017] HCA 34; 91 ALJR 936
Tisdall v Webber [2011] FCAFC 76; 193 FCR 260
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; 105 FCR 548
Date of hearing: 9 March 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 57 Counsel for the Appellant: Mr J P W Maloney Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr N Wood Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 131 of 2017 BETWEEN: BRV15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The interlocutory application dated 20 February 2017 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is reported as BRV15 v Minister for Immigration and Border Protection [2017] FCCA 131.
By an interlocutory application dated 20 February 2017, the appellant sought leave to rely on two additional grounds (grounds 6 and 7) in his notice of appeal dated 20 February 2017.
On 4 April 2017, the then docket judge adjourned the hearing of both the interlocutory application and the appeal pending the determination of the appeal to the High Court of Australia from the judgment of the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection (S272/2016) and in a related matter (S273/2016). On 6 September 2017, the High Court dismissed both appeals: see SZTAL v Minister for Immigration and Protection [2017] HCA 34; 91 ALJR 936. Proposed grounds 6 and 7 in the notice of appeal were not pressed. Accordingly, the interlocutory application dated 20 February 2017 should be dismissed.
Summary of background facts
The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and is a Hindu. He arrived in Australia on 24 June 2012 as an illegal maritime arrival. He claimed that he had left Sri Lanka because of problems he faced as a Tamil shop owner. He said that Tamils have always suffered harassment and discrimination at the hands of Sinhalese. In a statutory declaration dated 26 July 2013 which the appellant provided to the Department, he claimed that the navy, police, and Sinhalese people came to his shop asking for money and that they took merchandise and refused to pay for it. He said that he was assaulted and his tooth was broken. He claimed that he was not able to complain to the authorities as they did not take any action and that he could no longer tolerate the situation. He claimed that pressure was being applied on Tamil shopkeepers so that they would have to close their shops and the Singhalese could then take them over.
The delegate accepted that the appellant had worked in a textile shop in his home village, that he had suffered poor treatment by some Sinhalese police and navy officers and that Sri Lankan authorities were not interested in him for any real or perceived links to the LTTE. However, the delegate did not accept that the appellant owned his own textile shop, that he had been assaulted by people and had his tooth broken or that he had suffered any persecution at the hands of the police or the navy. The delegate also rejected the appellant’s claims to fear persecution because of his status as a Tamil failed asylum seeker. For similar reasons, the delegate rejected the appellant’s claim for complementary protection.
The appellant sought a review by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (AAT)). He had legal representation in the AAT. The appellant participated in the AAT hearing conducted on 19 January 2015, with the assistance of an interpreter. A person from the appellant’s legal representative’s firm also attended the hearing and provided a post-hearing legal submission dated 2 February 2015 in response to concerns raised by the AAT at the hearing. On 24 February 2015, the appellant was invited to respond to a recent DFAT report on Sri Lanka. By an email dated 16 March 2015, the appellant’s lawyer informed the AAT that no comments would be provided in respect of that document.
The AAT’s decision and its statement of decision and reasons are dated 29 July 2015. The AAT affirmed the delegate’s decision not to grant the appellant a protection visa.
The AAT did not accept the appellant’s claim that he was being continuously attacked at his shop, in circumstances where the AAT found that he was apparently running a successful business there. Although the AAT accepted that one of the appellant’s teeth had been broken, it found at [15] that this was not caused in an attack on him at his shop, or that the attack was for any reason pursuant to the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (Convention).
At [15], the AAT pointed to the fact that, for the first time at the AAT hearing, the appellant claimed that he had been beaten and spent three days in hospital in 2012, and that he had been attacked at a roundabout because people wanted to prevent him from making any reports to the police.
The AAT stated at [16] that although it accepted that the appellant and other shop owners had problems with shoplifting, it did not accept that Tamil shop owners were specifically targeted, or that the problem was so serious as to amount to persecution involving serious harm. The AAT understood that the appellant claimed that he had been “affected mentally” by the attacks and harassment as it expressly referred to that claim at [8] of its reasons for decision.
At [18] ff, the AAT also addressed the appellant’s claim that when he and other worshipers sacrificed goats in a temple, the police had become involved at the request of a government Minister who did not want to allow Tamils to engage in this practice. This matter was raised by the appellant for the first time at the AAT hearing, and in response to matters raised by the AAT itself, including the proposition that the appellant would be able to live “comfortably” in Sri Lanka, would not be prevented from attending the temple, and would not be denied access to legal remedies based on, inter alia, religion. The AAT found at [19] that the appellant would be able to worship freely at the temple, and that any inability to carry out animal sacrifices there did not amount to such an unreasonable restriction on religious freedom so as to amount to persecution.
The AAT also explained why it did not accept that the appellant had a well-founded fear of persecution based on his status as a failed asylum-seeker who had left Sri Lanka illegally.
For similar reasons, the AAT explained why it rejected the appellant’s claim for complementary protection.
Primary judge’s reasons for judgment summarised
On 20 August 2015, the appellant sought judicial review in the FCCA of the AAT’s decision. In his amended application for judicial review, he raised two grounds. The first was that, by disbelieving the appellant’s claim that he was harassed and attacked in his shop because he was “apparently running a successful business”, the AAT had failed to consider the appellant’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. The second ground of judicial review was that the AAT asked itself the wrong legal question by failing to deal with the appellant’s claim in relation to his religious practice of ritual animal sacrifice, and by failing to address how the appellant would conduct his religious practice if he were returned to Sri Lanka.
The appellant was represented by counsel both below in the FCCA and on the appeal to this Court.
In relation to ground 1 of the amended application for judicial review, the primary judge referred to the appellant’s statutory declaration dated 26 July 2013, which is summarised at [4] above.
The primary judge noted at [4] in her Honour’s reasons for decision that the delegate accepted that the appellant was having problems with people not paying for goods in his shop. Her Honour also noted that the delegate found that the discrimination and treatment experienced by the appellant because he is a Tamil was not at a level that affected his ability to live comfortably if he were to return to Sri Lanka. That was primarily because of the delegate’s finding that the appellant’s own evidence demonstrated that he had been able to earn an acceptable livelihood and was able to live comfortably (see her Honour’s reasons for judgment at [5]).
The primary judge set out at [6] the AAT’s findings on the appellant’s ability to subsist, including the appellant’s response to the AAT’s proposition that he appeared to be able to live comfortably in Sri Lanka. The AAT found that because he was apparently running a successful business in Sri Lanka, it did not accept that the appellant was being “continuously attacked” in the way he claimed in his statutory declaration and at the AAT hearing. Although the AAT accepted that he had had a tooth broken, it found that this was not for a Convention reason. Similarly, while it accepted that the appellant and other shopkeepers experienced problems with shoplifting, it did not accept his claim that Tamil shopowners were specifically targeted or that these problems were so serious as to amount to persecution within the meaning of s 91R(1)(b) of the Migration Act 1958 (Cth) (the Act).
The primary judge rejected the appellant’s claim in support of ground 1 that it was never part of his case that the harassment and attacks affected the economic viability of his business. In doing so, the primary judge referred to at [8] an extract from the delegate’s reasons for decision where the delegate stated that the appellant had “emphasised that his treatment as a Tamil impacts on [his] ability to earn a livelihood through his shop”.
The primary judge noted that the appellant had presented his case somewhat differently at the AAT hearing in comparison with the case he had put to the delegate. The primary judge concluded at [11] that although the appellant had put “a different complexion on the matter”, it was nevertheless not correct for the appellant to say that he had never said that the attacks on his shop had compromised the economic viability of his shop. This was found to be inconsistent with his statement to the delegate.
Accordingly, the primary judge concluded at [12] that it was not correct for the appellant to claim that the AAT had not engaged with his case as put. Her Honour concluded that it was proper for the AAT to deal with the issue of the effect of shoplifting on the appellant’s economic viability and for it to conclude that the problems with shoplifting did not amount to serious harm.
Her Honour also concluded at [13] that it was not unreasonable or irrational for the AAT to find that the success of the appellant’s business meant that his shop was not subjected to the continuous attacks as claimed by him.
Although her Honour noted at [14] that the appellant claimed that the AAT had misunderstood his claim “by not understanding that the shoplifting caused him pressure, rather than financial difficulty”, she said at [16] that the appellant had conceded in the FCCA that the AAT had dealt with his claims of physical and psychological pressure from the alleged harassment in his shop. The AAT did not accept that the shop was attacked to the degree claimed by the appellant and, accordingly, it did not accept that the pressure on him was as great as he claimed.
The primary judge rejected the appellant’s claim that the AAT failed to deal with his contention that he was pressured to leave his shop by the alleged harassment. The primary judge pointed to [16] of the AAT’s reasons for decision and the finding there that, while the appellant suffered some theft from his shop, it was not so serious as to amount to persecution.
In rejecting ground 1, the primary judge made the following findings at [16] and [17]:
16.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.
17.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.
As to ground 2 below, the primary judge noted at [20] that the appellant’s claims regarding his religious practice of ritual animal sacrifice was raised for the first time at the AAT. He claimed that he had sacrificed goats in a temple and that either a government Minister or the Hindu clergy had made clear that animal sacrifices would not be allowed. The primary judge set out in [22] of her Honour’s reasons for judgment [18] and [19] of the AAT’s reasons for decision in relation to these matters. Those paragraphs reveal that the AAT was aware of the controversy over the issue of animal sacrifices at the particular temple, and that there were complex questions involving “the intersection of religious freedom and concerns about animal cruelty”. The AAT found, however, that the appellant would be free to worship at the temple if he returned to Sri Lanka and it did “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”.
The primary judge noted at [23] that the Minister did not seek to defend the legal correctness of this aspect of the AAT’s reasoning, and that it is well established that it is not open for the AAT to decide that any particular aspect of a person’s religious practice is unreasonable, or minor, or inessential such that persecution is not involved, citing Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; 105 FCR 548. Rather, the primary judge noted that the Minister’s contention focused on the fact that the appellant 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 he returned to Sri Lanka and engaged in that practice. The primary judge noted at [24] that, while the appellant accepted the proposition just stated, he argued that the AAT had a duty to ask him to elaborate on his claim in such a way that would have elicited evidence about any serious or significant harm which might arise if he sacrificed animals.
The primary judge rejected this contention, holding that it was for the appellant to make out his case and not for the AAT to question him about gaps in his claims. The primary judge noted at [25] that the appellant was represented by a solicitor and migration agent in the AAT and that a lengthy post-hearing written submission had been provided on his behalf. Moreover, the primary judge found at [26] that any claim that the appellant would suffer serious harm by not being able to sacrifice animals was not “adequately articulated”. Her Honour added in [26]:
… 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.
In addition, the primary judge observed at [27]-[28] that the AAT had also found, at least implicitly, that the reason why the appellant would be prohibited from carrying out animal sacrifices was because they were perceived by both secular and Hindu authorities in Sri Lanka to be cruel, and that preventing someone from carrying out a particular aspect of their religious observance because it was cruel did not engage the Convention.
The primary judge found that the appellant had not claimed that the prohibition on him from carrying out animal sacrifices amounted to “significant harm” within the meaning of s 36(2A) of the Act. Accordingly, even though the primary judge reiterated at [31] that the AAT had erred in concluding that the appellant’s inability to carry out animal sacrifices did not amount to an unreasonable restriction on his religious freedom, his claims could not have succeeded in any event.
Finally, the primary judge noted that it made no sense that the appellant fled Sri Lanka to Australia because he was unable to carry out animal sacrifices in his country of origin, because cruelty to animals was also prohibited in Australia.
The appeal
It is desirable to set out grounds 1 to 5 of the notice of appeal:
Grounds of appeal
1.The Court erred in failing to uphold ground 1 of the applicant's appeal and find that the Tribunal fell into jurisdictional error by failing 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 before the Tribunal 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.
Particulars
i.The Tribunal was required to properly deal with that claim as made before it, regardless of whether the applicant had or had not expressed the claim differently before the delegate (Court's reasons at [7]-[12]).
ii.The Tribunal did not deal ‘in a compendious manner’ with the applicant's claim that the harassment and attacks in his shop threatened his ability to subsist (Court's reasons at [12]); but rather, only dealt with the claim on the discrete basis that the harassment and attacks had, or would be expected to have, the effect of directly compromising the economic viability of his business.
iii.To the extent that the Tribunal dealt with a claim 'of physical and psychological harm from the alleged harassment in his shop' (Court's reasons at [14]) it did not do so on the basis that such harassment was intended to, and did, have the effect of pressuring him to cease conducting his business through fear and stress as distinct from making his business economically unviable.
iv.The Tribunal's findings as to what degree of harassment had occurred in the applicant's shop and whether it amounted to serious harm (Court's reasons at [15]-[16]) was premised on its erroneous view that the harassment was claimed to have had, and by necessity must have had, the effect of directly compromising the economic viability of his business; and not upon consideration of the actual claimed effect of pressuring him to cease conducting his business through fear and stress.
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', as there was no basis in reason or in evidence for the Tribunal to regard his economic success as being mutually exclusive of the claimed harassment.
2.In failing to uphold ground 1 of the applicant's appeal, the Court erred in its interpretation and/or application of the 'well-foundedness' requirement of the Refugees Convention as adopted by the Migration Act 1958 (Cth) (Court's reasons at [17]):
a.by misinterpreting it as a requirement that serious harm claimed to have actually been suffered by an applicant (the inability to subsist) not be occasioned by conduct of the applicant that the decision-maker deems to have resulted from the applicant ‘being particularly susceptible to fear and pressure’, rather than as a requirement that it be reasonable for the applicant to fear that serious harm will actually occur; and/or
b.by exceeding its jurisdiction to review the legality and not the merits of the Tribunal's decision, by making its own primary finding of fact that the applicant was 'particularly susceptible to fear and pressure'.
3.The Court erred in failing to uphold ground 2 of the applicant's appeal and find that the Tribunal fell into jurisdictional error by asked itself the wrong legal question and/or failing 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.
Particulars
i.Any failure of the applicant to put adequate evidence before the Tribunal in support of his claim relating to his religious practice was not a ground for refusing to set aside the Tribunal's decision (Court's reasons at [24]-[25]), because by first acknowledging the existence of a claim, and then proceeding to deal with it on the wrong legal basis, the Tribunal prevented itself from identifying and seeking evidence that it may otherwise have obtained from the applicant to allow it to answer the correct legal question.
ii.There is nothing in the Tribunal's reasons to indicate that it genuinely turned its mind to and made findings as to the motive (or combination of motives) for the claimed restriction on the applicant's religious practice (Court's reasons at [27]-[28]), or that it did so in accordance with the principles governing 'general' actions that disproportionately affect a protected group.
4.In failing to uphold ground 2 of the applicant's appeal, the Court applied an incorrect proposition of law - that 'being unable to carry out animal sacrifice' cannot as a matter of law fall within the definition of 'serious harm' (Court's reasons at [30]-[31]) in circumstances where:
a.the activity in question is the practice of the applicant's religious beliefs in the way in which he wishes to practice them; and
b.the legally correct point of analysis to assess 'serious harm' is not the effect of the 'prevention' of the activity but, rather, the existence and nature of the harm that might occur if the applicant were to continue to undertake the activity.
5.In failing to uphold ground 2 of the applicant's appeal, the Court exceeded its jurisdiction to review the legality and not the merits of the Tribunal's decision, by making its own primary findings of facts (both explicit and necessarily implicit) concerning the particular nature of the applicant's religious practices, whether those practices would amount to a particular conception of 'cruelty', and the reception such practices would receive in Australia (Court's reasons at [32]).
The parties’ submissions summarised
In substance, ground 1 involves a claim that the primary judge failed to uphold the appellant’s complaint that the AAT did not address the claim which he actually made. The appellant described that claim as being that the harassment and attacks he had suffered were intended to, and did, pressure him to close his business through fear and personal stress. He submitted that he did not claim that the attacks directly compromised the profitability of his business. The appellant contended that the AAT had rejected his claims concerning the attacks and harassment because it found those claims to be implausible having regard to the commercial success of his business.
The appellant further contended that it was wrong for the primary judge to dismiss this matter on the basis that, in any event, the harm suffered by the appellant was not so serious as to amount to persecution (at [15]). The appellant said that this finding was flawed because it was premised on the AAT’s erroneous view that, had the attacks occurred, they would have produced diminished profitability in the appellant’s business.
In response, the Minister submitted that the primary judge correctly concluded that, in fact, the appellant had claimed before the delegate that the alleged harassment threatened the economic viability of his business and it was therefore reasonably open to the AAT to view the appellant’s later evidence to the effect that his business was doing well as undermining his basic claim that his shop had been attacked to the extent claimed by him.
The Minister cited Tisdall v Webber [2011] FCAFC 76; 193 FCR 260 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 in support of his submission that a finding of irrationality or illogicality should not lightly be made and mere faulty reasoning does not constitute jurisdictional error.
Ground 2 raises the issue of whether the primary judge applied the wrong test. This was said to be reflected in her Honour’s finding at [17] where her Honour observed that the appellant may have felt fear and pressure, but the test required that it be well-founded and that being “particularly susceptible to fear and pressure does not mean that a person is being persecuted”. The appellant complained that the primary judge’s approach was wrong because her Honour had not conducted a thorough assessment of whether the appellant’s fear was well-founded. In addition, the appellant complained that the primary judge had overstepped her judicial review function in making a finding of fact which was not supported by any findings of the AAT, namely that the appellant was “particularly susceptible to fear and pressure”.
In response, the Minister submitted that the primary judge’s observations at [17] of her Honour’s reasons for judgment were obiter dicta, and any error is immaterial to her Honour’s rejection of ground 1 of the amended application for judicial review for other reasons.
Ground 3 relates to the appellant’s claims concerning his religious and ethnic identity as a practising Hindu Tamil. The appellant complained that the AAT had applied the wrong test by asking whether the inability to carry out animal sacrifices was an unreasonable restriction on his religious freedom. The appellant emphasised that the primary judge found that this involved the wrong test. At [24] of the primary judge’s reasons for judgment, her Honour noted the Minister’s contention that the appellant made no claim that he feared harm by reason of sacrificing animals and there was no evidence that any such harm might arise if the appellant returned to Sri Lanka and sacrificed animals. The primary judge rejected the appellant’s contention that the AAT had a duty to ask the appellant to elaborate on his claims so as to elicit evidence of any serious or significant harm that might befall him if he sacrificed animals. The primary judge emphasised that it was for the appellant to make out his case, particularly as he was represented.
The appellant contended that it was no answer to assert that it was a matter for him to make out his case.
In response, the Minister submitted that the primary judge was correct to reject the appellant’s claim that the AAT deprived him of an opportunity to advance his claim in connection with animal sacrifices, particularly bearing in mind that he was represented and had acknowledged during the course of the AAT hearing that he made no claim of having a well-founded fear of persecution in connection with the practice of animal sacrifice (as noted by the primary judge at [24] of her Honour’s reasons for judgment).
Moreover, the Minister submitted that it was well established that the AAT’s role was inquisitorial and not adversarial, and that it is a matter for the visa applicant to put evidence or argument before the AAT. The Minister acknowledged that it would only be a rare case that the observations of the High Court regarding the duty to make an inquiry about a critical fact would apply (citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [23] and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 (SZIAI) at [25]).
Grounds 4 and 5 relate to the notion of “serious harm”, with particular reference to [26]-[32] of the primary judge’s reasons for judgment. The appellant contended that the primary judge had misapplied the “serious harm” test and exceeded her judicial review function by making findings of fact relating to such matters as the nature of the appellant’s religious practices, whether they amounted to cruelty, whether the appellant was prevented from engaging in those practices because they were cruel and whether the appellant could pursue those practices lawfully in Australia. By adopting this approach in these paragraphs of the reasons for judgment, the appellant contended that the primary judge characterised his claims in a way which obviated the need to confront the appellant’s actual claim to face a real chance of serious harm.
In response, the Minister submitted that these paragraphs of the reasons for judgment were not essential to the rejection of ground 2 of the amended application for judicial review, as is reflected in the use of the phrase “In any event” at the beginning of [26]. Accordingly, any error therein was said to be immaterial.
Analysis
As to ground 1, the appellant has not established any appealable error in respect of the primary judge’s reasoning or in her Honour’s conclusion that, as a matter of fact, the appellant claimed before the delegate that the alleged harassment and attacks had threatened the economic viability of his business.
In the delegate’s reasons for decision dated 13 February 2014, under the heading “Ability to subsist”, the delegate noted the appellant’s claim that his treatment as a Tamil “impacts on ability to earn a livelihood through his shop”. The delegate addressed the issue of whether the alleged discrimination impacted upon the appellant’s ability to subsist if he returned to Sri Lanka. While noting country information which made clear that there were some “elements of systematic discrimination which affect Tamils in Sri Lanka”, the delegate concluded that, based on the appellant’s own evidence, he had been able to earn an acceptable livelihood and was able to live comfortably, with the consequence that the delegate did not accept that the discrimination was at a level that affected the appellant’s ability to subsist.
It is also notable that in his evidence to the AAT, the appellant acknowledged that he had run his business successfully, but claimed he was still harassed by people asking him for money. The AAT repeatedly put to him that the evidence indicated that he had a very successful business in Sri Lanka.
The primary judge did not err in rejecting the appellant’s contention below that the AAT failed to address this aspect of his claim. The AAT was plainly aware of the appellant’s claims that he was mentally affected by the alleged harassment (see [10] above). In circumstances where, as the delegate found, the appellant claimed that the harassment and attacks jeopardised his business in the sense the pressure was being applied to have him close his shop, it was relevant for the AAT to draw attention to the fact that the appellant then gave evidence to the effect that his business was in fact doing well. The primary judge was correct to proceed on the basis that it was reasonably open to the AAT (at [15] of its reasons for decision) not to accept the appellant’s evidence that he had been harassed by the police, navy, and others who demanded money from him, in circumstances where he had made a comfortable profit from his shop. The appellant has demonstrated no appealable error in the primary judge’s reasons for rejecting ground 1 of his judicial review application. There is no unreasonableness in the legal sense or irrationality in the AAT’s reasoning in this regard and the primary judge did not err in rejecting the appellant’s contentions.
Ground 2 in the appeal focuses upon what the primary judge said in [17] of her Honour’s reasons for judgment, and the appellant’s contention that the primary judge applied the wrong test by stating that being “particularly susceptible to fear and pressure does not mean that a person is being persecuted”. This ground of appeal should be rejected. I accept the Minister’s submission that [17] was not an essential part of the primary judge’s reasons for rejecting the appellant’s first ground of judicial review. That ground was rejected on the basis of the reasons and findings set out in [14] to [16] of her Honour’s reasons for judgment, which are summarised above.
As to the appellant’s complaint that the AAT failed to deal with his claim that he was pressured to leave his shop by the harassment and attacks, the primary judge concluded that the AAT had addressed that claim and rejected it for the reasons given in [16] of the AAT’s reasons for decision.
The appellant has not established any appealable error in respect of these aspects of the primary judge’s reasoning.
Ground 3 of the appeal relates to the issue of animal sacrifice and the contention that the primary judge erred in not finding that the AAT had deprived him of an opportunity to develop this alleged claim.
For the following reasons, there is no substance in this complaint. First, it is notable that the topic of animal sacrifices was raised for the first time by the appellant before the AAT and in the circumstances outlined in [11] above. The appellant was represented before the AAT and there was nothing to suggest that he was prevented in any way from developing this topic, either at the hearing or afterwards.
Secondly, I accept the Minister’s submission, that in accordance with the general principle, there was no duty on the AAT to make its own inquiries concerning this claim. The appellant has not persuaded me that his case falls within the exception identified in cases such as SZGUR and SZIAI. In the particular circumstances here, including the matters outlined at [11] above, the primary judge was correct to observe at [25] that it was for the appellant to make out his case, particularly where he was represented by a solicitor and migration agent. A lengthy post-hearing written submission was supplied by the appellant’s representatives yet, tellingly, it contained no additional evidence or argument in support of the matter raised by the appellant for the first time during the AAT hearing.
As to grounds 4 and 5 of the appeal, which appear to focus on [26]-[32] of the primary judge’s reasons for judgment, I accept the Minister’s submission that these paragraphs do not form part of the ratio of the primary judge’s reasons for rejecting ground 2 of the amended judicial review application. This is reflected in the primary judge’s introduction to [26] “In any event…”. Ground 2 was rejected on the basis of the primary judge’s finding that it was for the appellant to make out his case relating to the practice of animal sacrifices.
Accordingly, it is unnecessary to determine whether any appealable error is disclosed in [26] to [32] of the reasons for judgment simply because any such error would be immaterial in any event. For these reasons, grounds 4 and 5 of the appeal are rejected.
Conclusion
For these reasons, and while acknowledging that Mr Maloney of counsel forcefully and helpfully put everything that could reasonably be put in support of the appeal, the appeal should be dismissed, with costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 9 March 2018
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