DXA17 v Minister for Immigration and Border Protection
[2019] FCA 623
•2 May 2019
FEDERAL COURT OF AUSTRALIA
DXA17 v Minister for Immigration and Border Protection [2019] FCA 623
Appeal from: DXA17 v Minister for Immigration and Anor [2018] FCCA 1667 File number(s): QUD 441 of 2018 Judge(s): GREENWOOD J Date of judgment: 2 May 2019 Catchwords: MIGRATION – consideration of whether the Immigration Assessment Authority gave proper consideration to particular material said to have been merely noted but not considered Legislation: Migration Act 1958 (Cth) Date of hearing: 2 May 2019 Date of last submissions: 2 May 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: Mr S Jones Solicitor for the Appellant: Stolar Law Counsel for the Respondents: Mr J D Byrnes Solicitor for the Respondents: MinterEllison ORDERS
QUD 441 of 2018 BETWEEN: DXA17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
2 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:
In this matter the appellant arrived in Australia on 3 November 2012 as an unauthorised maritime arrival. On 5 April 2016, the appellant lodged a valid application for a Class XE subclass 790 Safe Haven Enterprise visa, otherwise known as a SHEV. A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 6 January 2017 on the basis that the applicant did not face a real chance of serious harm or a real risk of significant harm upon return to Sri Lanka. The Immigration Assessment Authority (“IAA”) conducted a review of that decision. For that purpose, the IAA had regard to material referred to it by the Secretary under the relevant provisions of the Migration Act 1958 (Cth).
The appellant, before the delegate and before the IAA, relied upon a number of grounds in support of his contentions but, for present purposes, the relevant matter is his assertion that since living in Australia, he has converted from Buddhism to Christianity. He asserted that he feared that if he returned to Sri Lanka he would face serious harm on account of his conversion to Christianity. The IAA then, in its reasons, embarked upon a consideration of those claims, and at para 23 of the IAA’s reasons it recites some contextual factual matters about the appellant’s conversion to Christianity and notes that Pastor Carter had given evidence that he had formed the view that the appellant holds a “strong Christian faith”.
At para 23, the IAA accepts that the appellant had converted to Christianity in the way he had claimed. At para 24 of the reasons, the IAA says that in his SHEV statement the appellant stated that he feared extremist nationalist Buddhist groups such as a group known under the acronym as “BBS” (Bodu Bala Sena) and another group (described as “Rawanabalaya”) and that his situation is made worse by his conversion to Christianity. The IAA noted that in the SHEV interview the appellant indicated that he may have difficulty practising his religion in Sri Lanka due to language barriers. The IAA notes that the appellant stated that he had a Bible at home in Australia and that he practised his faith in English.
The IAA noted that the appellant also advised the delegate that he had not told his parents of his conversion as he did not believe they would be accepting of it. In the post‑SHEV interview submission, the appellant’s representative stated that BBS had a history of targeting religious minorities. The representatives also cited parts of a United States Department of State 2015 Report on International Religious Freedom which the representatives stated supported the appellant’s claims that he may be harmed due to his religion.
The reference at that point in para 24 of the IAA’s reasons is a reference to a document footnoted as “United States Department of State ‘2015 Report on International Religious Freedom – Sri Lanka’”, 10 August 2016 (with some additional serial number references). The reference to the representative’s submissions on behalf of the appellant at that point in the reasons is a reference to a letter addressed to the Case Officer dated 19 August 2016 by the appellant’s then representative, Joshua Le Vay, and in that letter there is a paragraph which addresses the topic of “Religious Opinion” and makes reference to the United States Department of State 2015 Report (mentioned above) and asserts some propositions about the religious question that is presently in issue in the assessment of the IAA’s approach to the present question of the consideration of this Report.
In para 25 of the IAA’s reasons, the IAA notes that it accepts that anti‑Christian acts of violence have occurred in Sri Lanka. It says that in 2016 the United States Department of State documented reports that Buddhist monks in concert with government officials regularly tried to close down Christian places of worship on the grounds that they lacked the Ministry of Justice and Buddha Sasana’s approval. The IAA observes at para 25 that the National Christian Evangelical Alliance of Sri Lanka (“NCEASL”) documented a total of 87 cases of attacks on churches, intimidation and violence against pastors and their congregations and obstruction of worship services during the year.
The IAA also notes at para 25 that the NCEASL had reported a total of 96 such incidents in 2014. Again, at that point of the discussion in the IAA’s reasons and its extraction of that body of information is footnoted as a reference to the United States Department of State 2015 Report bearing the date of 10 August 2016. At para 26 of the IAA’s reasons it notes that the Department of Foreign Affairs and Trade (“DFAT”) notes that the Constitution of Sri Lanka provides for freedom of religion while giving Buddhism a foremost place and that attacks on places of worship or religious objects and insults to religion are subject to criminal penalties.
At that paragraph, the IAA goes on to make these observations, and I quote:
Christianity is one of the four major religions in Sri Lanka and there are four Ministers, each of the appropriate religion, with responsibility for the four major religions. Country information indicates that prominent Buddhist, Hindu, Muslim and Christian leaders are invited to all national functions, although only Buddhist rituals are performed at most events. Government dignitaries host and attend important events for different religions and Sri Lanka recognises religious holidays for all four religions. DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, particularly through the BBS. However, DFAT is not aware of any similar reports since the change of government in 2015.
That particular observation is then footnoted by a reference to a Department of Foreign Affairs and Trade Country Information Report about Sri Lanka dated 18 December 2015.
The IAA, at para 26, goes on to say that the Sirisena government has publicly said that it is committed to ethnic and religious reconciliation. That observation is also drawn from the DFAT Country Information Report of 18 December 2015. The IAA goes on to say that DFAT assesses that there is little official discrimination on the basis of religion and no official laws that discriminate on the basis of religion. It also goes on to say that most members of religious groups are able to practice their faith freely. Those last two observations are drawn also from the DFAT report of 18 December 2015.
At para 27 of the IAAs reasons it says this, and I quote:
I have accepted that acts of anti‑Christian violence have occurred in the past; however, on the evidence before me, I am not satisfied that the applicant will be harmed in Sri Lanka on account of his Christian faith. Whilst I accept that the applicant’s parents may disapprove of his religious conversion, I am not satisfied, and nor has the applicant claimed, that he will be subjected to harm from his parents on this basis. I find that on return to Sri Lanka the applicant will be free to practice his faith if he chooses and there is not a real chance that he will experience serious harm from extremist nationalist Buddhist groups, or any other person, on account of his religion, now or in the reasonably foreseeable future.
Having regard to all of those observations made by the IAA at paras 23 to 27 of the decision, the IAA affirmed the delegate’s decision. The appellant then filed an application for judicial review before the Federal Circuit Court of Australia. That application was filed on 30 August 2017 but was the subject of an amended application filed on 21 November 2017. In that application, of course, the appellant sought orders quashing the decision of the IAA and sought orders for the issue of the constitutional writs directed to the relevant matters.
The Federal Circuit Court considered the grounds of appeal reflected in the amended application and at [11] to [17] the primary judge dealt with the questions related to religious considerations and the appellant’s assertions of fear, relevantly, based upon his conversion to Christianity. At [11] of the primary judge’s reasons, the primary judge notes that the IAA noted that the appellant practised his faith in the way I have previously described and the primary judge notes that the IAA considered those matters.
In the result, the primary judge was not satisfied that the IAA had fallen into jurisdictional error in the way contended and dismissed both the initial application and the amended application for review. The appellant filed a notice of appeal before this Court and in that notice of appeal the appellant relied upon five grounds. However, grounds 1, 3, 4 and 5 are not pressed and the only ground pressed as error on the part of the primary judge is this: “The judge failed to apply proper legal [principles] in the determination of the appeal during the hearing”. The content of that ground is, obviously enough, not made immediately plain by that particular formulation.
However, as things have emerged, Mr Jones of counsel appears on behalf of the appellant and written submissions have been put on by Mr Jones on behalf of the appellant. The central proposition that is now being advanced, although it might be characterised as a new matter, is nevertheless the proposition that the IAA came to its decision in the discharge of the statutory review function by failing to properly “consider” material based upon the 2016 United States Department of State Report as previously described.
The proposition, put simply, is that although the IAA “noted” that Report and “noted” things drawn from it, the IAA failed to come to grips with any intellectual analysis of the report and failed to deal with it in a way which would reflect some proper form of cognitive assessment of it in reaching its conclusion. However, I am not persuaded that that is so and thus I am not persuaded that the IAA fell into jurisdictional error on that basis. It seems clear enough that the IAA had regard to the document and took it into account in its evaluative balancing exercise.
It is true that the reasons do not reflect any analytical analysis of the report in great detail, but it is clear that the IAA had regard to it and took it into account in weighing up the contentions in relation to the questions going to a fear of harm by reason of the appellant’s conversion to Christianity. I am satisfied that when paras 23 to 27 of the IAAs decision are read in their totality, having regard to all the footnotes, the IAA did not fall into jurisdictional error in the way contended. It is not a case where the IAA simply, en passant, noted something.
This is a case where there are references to the document which bear footnotes which give rise to a fair reading and fair inference that the matters were taken into account by the IAA in formulating the paragraphs at 23 to 27 of the decision, and most particularly, the remarks at para 27. For that reason, it is not particularly necessary to analyse [11] to [16] of the primary judge’s observations because the question now in issue, I accept, was not fairly raised before the primary judge in that sense. To the extent that leave is necessary to raise this question, I grant leave. Accordingly, the appeal will be dismissed with an order that the appellant pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 2 May 2019
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