CBY17 v Minister for Immigration

[2017] FCCA 2053

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBY17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2053

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where Tribunal found it reasonable for the applicant to relocate within receiving country – no jurisdictional error revealed.

Legislation:

Migration Act 1958 (Cth), s.5J

Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: CBY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 453 of 2017

Judgment of: Judge Jarrett

Hearing date: 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Brisbane

Delivered on: 4 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Gunn

Solicitors for the Applicant: Stolar Law

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 18 July 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 453 of 2017

CBY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 10 September, 2012 as an unauthorised maritime arrival.  When he arrived he was 17 years of age.  He is now about 22.  He claimed, in his application for a safe haven enterprise visa, that he was a refugee on the basis that he had a well-founded fear of persecution should he be returned to Sri Lanka. 

2. His claim to be a refugee had a number of aspects to it.  The first was that he would be persecuted because of his political opinion, that being an opinion which was opposed to a person that he nominated and with whom both he and his father had had some altercations.  There was also a claim that was based around his mother borrowing some money and the family being tardy to repay that money to the moneylender.  There was also a claim based around his religious beliefs, to which I will refer with some more detail shortly. 

3. The first respondent’s delegate considered each of those claims and rejected them. It determined that the applicant was not a refugee for the purposes of s.5J of the Migration Act 1958 (Cth) and refused to grant him the safe haven enterprise visa. In particular, the delegate dealt with the claim made by the applicant concerning his religion. The delegate’s decision seems to have approached the applicant’s religion-based claims on the footing that he was likely to suffer persecution by reason of him being Christian. The applicant’s case, however, was that there was some special attention that might be paid to him because he was a Pentecostal Christian. Certainly the delegate recognised that the applicant had become a Pentecostal Christian once he had arrived in Australia and that Pentecostal churches had received some special attention from people opposed to them and, in particular, certain Buddhist groups in Sri Lanka. The relevant consideration of this issue by the delegate appears at pages 121 and 122 of the court book, but the importance of this discussion is to demonstrate that that was a matter that was considered by the delegate and which was considered dispositive before the delegate. The delegate found against that claim, as well as the others that the applicant had made.

4. Because the applicant is a fast-track applicant, the delegate’s decision was referred to the Immigration Assessment Authority as a matter of course.  The Immigration Assessment Authority was tasked with reviewing the delegate’s decision. 

5. The applicant’s case went to the Immigration Assessment Authority for review on 23 February this year.  The applicant made a submission and provided some information to the Authority.  On 26 April this year, the Authority affirmed the decision of the delegate not to grant the applicant a safe haven enterprise visa. 

6. The Authority’s decision reveals that it considered each of the claims that were made by the applicant.  The Authority specifically considered the applicant’s claims that centred around his political opinion, his dealing with the man identified in the material and the questions that arose out of the loan that had been taken out by his mother.  No complaint is made in the present proceedings about the way in which the Authority dealt with those matters.  It determined them against the applicant. 

7. The applicant pressed his claim before the Authority that by reason of his religious belief, he would suffer persecution should he return to Sri Lanka. His case was that he had converted from Roman Catholicism to Pentecostal Christianity when he arrived in Australia. Given that the applicant’s conversion happened after he arrived in Australia, the Authority was obliged to consider whether the conversion was for the purposes of improving his prospects on a protection visa application or a safe haven enterprise visa application, whether he undertook the conversion to enhance his prospects of demonstrating that he was a refugee or whether there was some other reason. The Authority decided there was some other reason for the applicant’s conversion. It accepted his claim that it made him feel different. The purpose for which the Authority made that decision was to deal with a requirement with which it was obliged to deal with under the Migration Act. But the finding as to the reason for which the applicant converted to the Pentecostal religion goes no further than that and it was not used by the Authority for any other purpose.

8. The Authority accepted that the applicant had converted and was now a Pentecostal Christian as opposed to a Roman Catholic.  The Authority, however, determined that notwithstanding that, the applicant did not have a well-founded fear of persecution.  In reaching that conclusion, the Immigration Assessment Authority recorded, in its reasons, that there was evidence before it that Pentecostal churches had been the subject of violent extremists and, in particular, a named Buddhist group, who had attacked Pentecostal churches in Sri Lanka. 

9. That material was before the Immigration Assessment Authority because it was provided to the delegate by the applicant’s representatives in a written submission made after his initial interview.  There were a number of reports contained within that information and they spoke to specific instances of violence between Buddhist communities and Buddhist activists and the relevant Pentecostal church or churches in Sri Lanka.  The Authority referred to that material in paragraphs 16 and 17 of its reasons for decision. 

10. The Authority was obliged to take into account the most recent DFAT country report about Sri Lanka and it did so.  That report and what was termed by the Authority as “country information,” demonstrated that Sri Lanka’s President has not only given instructions to law enforcement agencies and security services to arrest those who incite racism and religious extremism in the country and take legal action against them, but has taken steps to draft new laws to enable action against people who incite such racism.  The Authority also referred more generally to the role that religion plays in daily life in Sri Lanka and referred to some other statements made by the present government of Sri Lanka about religious tolerance and reconciliation: see paragraph 18 of the Authority’s reasons. 

11. The Authority concluded that it did not think there was a real chance of the applicant, if he was returned to Sri Lanka, being persecuted for his religious beliefs.  That finding, coupled with the others in relation to the other grounds upon which he relied, led to the Authority affirming the decision under review. 

12. Further, insofar as the applicant made a claim for complementary protection, the Authority relied upon its findings in relation to his claims to be a refugee and determined that, having regard to the similarity between the real risk test and the real chance test, that he was not a person to whom Australia owed complementary protection obligations: see paragraph 35 of the Authority’s decision. 

13. From that decision, the applicant now seeks judicial review in this Court.  His grounds of review, set out in his application, comprise three in number, although ground number 1 has five subparts to it.  All of the grounds, except for grounds 1(c), 1(d) and (2) were abandoned by counsel for the applicant at the commencement of this hearing.  I need only deal with them. 

14. The grounds of review set out in the application were expanded upon in the written submissions filed on behalf of the applicant for the purposes of this hearing.  It is right to say, I think, that those written submissions strayed well beyond the boundaries set by the grounds specified in the application for review, but I do not intend to waste too much time in determining what aspects of the written submissions and other submissions made by the applicant are within or without the particularised grounds of review in the application.  Having regard to the written submissions, the gravamen of the applicant’s complaint seems to be that the Authority did not appreciate and did not give sufficient weight to the evidence before it concerning the way in which Pentecostal churches and those who follow Pentecostal religions in Sri Lanka are treated by other religions and, in particular, the Buddhist group that was nominated in the material. 

15. It was said in written submissions that the Authority’s determination that the applicant was not at risk of harm in Sri Lanka by reason of his religion was both illogical and irrational as those terms are explained in High Court authority and were also unreasonable in the sense used in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18. It was said that whilst the Authority was entitled to rely upon the DFAT report that was given in January, 2017 – indeed, was obliged to have regard to that report – that report was not “finely tuned” or “nuanced enough” to give the Authority a proper appreciation of the case that was being made by the applicant.

16. Before me it seemed to be argued that the applicant’s case really was that, notwithstanding that he had been able to live in Sri Lanka as a Christian – that is as a Roman Catholic Christian – the differences between Roman Catholicism and the Pentecostal religion that he has now chosen to follow are such that he would be at a far greater risk in Sri Lanka if he were to be returned.  He argued that his proposition was made out by the evidence that was provided to the Authority which showed that Pentecostal churches were attacked by extremist Buddhists and, in particular, the Buddhist group named in the material. 

17. It is right to say that the Authority accepted and remarked upon the material provided to it by the applicant’s advisers in relation to the attacks upon Pentecostal churches by Buddhists and Buddhist extremist groups.  But the acceptance of that material as demonstrating, perhaps as it does, that the applicant had a reason to fear being harmed by such groups should he be returned to Sri Lanka, is only part of the question. 

18. Section 5J of the Migration Act defines the meaning of the phrase well-founded fear of persecution.  It is a tripartite definition.  It is satisfied if the person claiming refugee status fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. That is the first requirement.  The second is that there is a real chance that if the person returned to the receiving country they would be persecuted for one or more of the specified reasons.  That is the second requirement.  The third is that the real chance of persecution relates to all areas of a receiving country.  I will deal with the third part of the definition first because there is a suggestion in the written submissions of the applicant that the Authority fell into error because he was not given the opportunity to comment on the proposition that he might relocate somewhere else in Sri Lanka.  If that is the purport of paragraph 30(c) of the applicant’s written submissions, then it is not well made.  No question of relocation arose on the decision of either the delegate or the Authority in this case.  It was not necessary for the Authority to raise that issue with the applicant because it simply had nothing to do with this case. 

19. The lynchpin of the difficulty in this case for the applicant is the second requirement of the definition of well-founded fear of persecution namely whether there is a real chance of persecution for one or more of the reasons to which I have already referred should the applicant be returned to Sri Lanka; the relevant one in this case being religious belief. 

20. Paragraphs 16, 17 and 18 of the Authority’s decision reveal the Authority’s discussion, thinking and determination about that issue.  Whilst it accepted that the applicant was now a Pentecostal Christian in circumstances which did not disqualify him from being a refugee and whilst it accepted that Pentecostal Christians and Pentecostal churches had been the subject of extremist violence in Sri Lanka in the past, it concluded that there was no real chance of that in the future.  That was the point of the Authority referring to the country information before it.  The country information provided by the applicant’s advisors certainly established the first element, perhaps, of the relevant definition.  It also went toward establishing the second element, but there was other evidence to which the Authority referred which dealt with the second element as well.  The Authority chose to give more weight to that information from DFAT and the other sources to which the Authority referred, than to the information provided by the applicant’s advisors. 

21. It is task of the Authority to weigh the material before it.  That is what it did.  The final submissions made by counsel for the applicant who said all that could possibly be said, I think, in support of this application, recognised that proposition.  It was said that the Authority simply did not give sufficient weight to the information about Buddhist attacks on Pentecostal churches provided by the applicant and his advisors and it gave undue weight to the information in the DFAT report. 

22. Questions of weight are arguments about merit.  The applicant seeks to agitate a merits review of the Authority’s decision.  There is no jurisdictional error here. 

23. The principles of illogicality and irrationality identified by the High Court in cases like Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 are not engaged in this case. There is a rational basis for the findings made by the Authority demonstrated by its reasons. It might be that others might have come to a different view, but that is not the test. The view reached by the Authority and the findings made by it on this issue were plainly open.

24. Nor is the decision unreasonable in the senses that have been argued.  On the material before the Authority and for the reasons it gave, the decision was open to it on the material before it.  Again, others might have come to a different view, but that is not the test. 

25. Neither ground 1(c), 1(d) or 2 of the application for review reveals jurisdictional error.  The written submissions supplemented by oral submissions by counsel for the applicant do not reveal jurisdictional error. 

26. The application must be dismissed with costs.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  29 August 2017