DZJ16 v Minister for Immigration

[2018] FCCA 2535

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2535

Catchwords:
MIGRATION – Application to reinstate application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001, r.13.03C(1)(c).

Cases cited:

Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159

Applicant: DZJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2776 of 2016

Judgment of: Judge Riethmuller

Hearing date: 22 May 2018

Date of Last Submission: 28 May 2018

Delivered at: Melbourne

Delivered on: 10 September 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application in a case be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2776 of 2016

DZJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 21 November 2016. The Tribunal affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka and of mixed Burgher/Sinhalese ethnicity who claims to be a Pentecostal (a form of evangelical Protestantism).  He arrived on Christmas Island as an unauthorised maritime arrival on 28 July 2012.

3. On 24 April 2013, the applicant applied for a protection (Class XA) visa.  The delegate refused the application 10 October 2013.  On 21 November 2016 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

4. The matter was listed for final hearing on 5 February 2018.  On that date the applicant did not attend and the application was dismissed with costs pursuant to rule 13.03C(1)(c) of the Federal Circuit Rules 2001. 

5. The applicant filed an Application in a Case on 15 March 2018 seeking that the orders made 5 February 2018 ‘be set-aside and vacated’.  The applicant says that he came to the wrong court room on 5 February 2018.  The applicant also relies on his original application filed 20 December 2016. 

6. The most significant factor in the application to set aside the dismissal order is the strength of the grounds. I turn then to consider the substantive grounds.

The Applicant’s claims

1. The applicant’s claims are summarised in the Tribunal decision at [1]:

   1. [The applicant] is a citizen of Sri Lanka, he identifies as of Burgher ethnicity, a minority in Sri Lanka.  He claims to be a Catholic Pentecostalist.  He claims to be afraid to return to Sri Lanka because of disputes with a person called [X] who wished to rape the applicant’s mother and who fought with the applicant’s father and the applicant.  It is claimed that [X] is a thug and gangster and has links to the police and municipal members and gets away with various crimes.  The applicant claims that his family has always been stigmatised as they are Pentecostal and his father preached his beliefs.  As the only Burghers they were frowned upon and persecuted.  Also his father was Burgher and his mother Sinhalese and due to this cross cultural relationship she was hated by other Sinhalese.  His father went to Mauritius but was killed in a cyclone in February 2007.  After his father’s death the applicant was confronted several times by [X], attacked and seriously harmed including sexually assaulted.  [X] told the applicant that he would not allow the applicant to preach the religion of his father and that he would kill the applicant. The applicant fears being harmed for reasons of his ethnicity, religious beliefs, his membership of a particular social group, being failed asylum seekers, and fears that he will be significantly harmed by [X] and his associates.

2. The Tribunal identified the relevant issues at [3] of its decision:

   3…The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

3. The Tribunal had regard to the applicant’s statutory declaration dated 24 April 2013 which referred to the circumstances ‘why I left that country, including details of prior harm’: see [9]. The declaration details the applicant’s personal circumstances between April 2002 and March 2013, including assaults on the applicant and his family members and the applicant’s relocations.

4. In the declaration, the applicant states he fears he will be ‘attacked, persecuted and killed by X and his men’ if he is to return to Sri Lanka. 

5. The applicant’s representative provided a submission dated 28 January 2014 which summarised the applicant’s claims that he ‘faced harm on the basis of his ethnicity, Pentecostalism, with some country information in support, relocation was argued to lead to harm for his religious beliefs or in the alternative to be unreasonable, and it was claimed he would be harmed as a forced returnee/failed asylum seeker’: see [11] of the Tribunal’s decision.

6. The applicant’s representative provided a post-hearing submission on

   
   

   26 April 2015 which claimed ‘he feared harm for his religious beliefs and…raised concerns with state protection and relocation’: see [13].

7. A further submission was made to the Tribunal on 25 July 2016 at described in the Tribunal’s reasons (at [15]):

   15.  In this submission the representative addressed state protection as discussed at the hearing, the applicant’s risk of harm, his ability to relocate, the persecution he would face on the basis of religion and a discussion of whether the laws against leaving Sri Lanka were laws of general application.

The Tribunal’s finding

1. The Tribunal considered the following areas of the applicant’s evidence:

   a)Conflict with X

   b)For reasons of race/ethnicity

   c)For reasons of religion

   d)Retuning as a failed asylum seeker

   e)Illegal departure

2. With respect to the conflict with X the Tribunal found (at [19]):

   …that [X] attacked the family on the basis of a personal vendetta, and not for any of the reasons claimed.  I do not accept that [X] attacked the family for reasons of the applicant’s father’s Pentecostal religion, or the family’s religion, the mixed burgher/Sinhalese marriage of the applicant’s parents, or their ethnicity as Burghers or as mixed Burgher/s Sinhalese…

3. At [21] the Tribunal said that it ‘did not accept that the police or other authorities withheld protection from the applicant or his family in relation to the harm they suffered from [X]’.  The Tribunal found that the applicant’s evidence on X’s political connections was ‘very unconvincing’ and ‘exaggerated and overblown’: see [21] of the Tribunal’s decision.

4. The Tribunal held at [26]:

   …that the applicant will not suffer harm from [X] on return to Sri Lanka now or in the reasonably foreseeable future for any Convention reason – there is no nexus between the actions of [X] and any potential actions and the Convention.

5. In respect of the applicant’s race or ethnicity the Tribunal found at [45]:

   …that there is no real chance or real risk that the applicant will be harmed on return to Sri Lanka for reasons of his race/ethnicity, now or in the reasonably foreseeable future.

6. The Tribunal had regard to the applicant being a child of a mixed marriage, noting it was ‘not common’ in Sri Lanka (see [42]) but also had regard to country information that ‘Burghers do not suffer discrimination’: see [38].

7. In respect to the applicant’s claims based on reasons of religion, the Tribunal found this to be ‘the most inconsistent and problematic of his evidence’ (see [47]) which lead to a finding that ‘neither he, nor his father or mother or family, were or practiced as Pentecostalists’: see [49]. The applicant gave written and oral evidence that he was Catholic and attended a Catholic Church (at [49]), and that in Australia he had been to a Jehovah’s Witnesses Church (at [50]). Further, the applicant ‘could not explain what part of his religious practice he would be unable to do or would be harmed if he returned to Sri Lanka’: see [51].

8. The Tribunal concluded (at [53]) that the applicant ‘is a Roman Catholic, was raised as a Roman Catholic, that his was and his mother is a Roman Catholic’.

9. On the subject of returning as a failed asylum seeker the Tribunal received specific advice from DFAT, as discussed with the applicant, that ‘those returning to Sri Lanka as failed asylum seekers are subject to the same entry procedures as any other citizens regardless of ethnicity: see [59].

10. The Tribunal concluded (at [73]):

    For these reasons, I find the applicant faces no real chance of serious harm or a real risk of significant harm as a Sri Lankan young man of mixed Burgher and Sinhalese ethnicity, and Roman Catholic religion returning as a failed asylum seeker from Australia (or the West or overseas). I find that the applicant does not have a well-founded fear of persecution for any of these reasons.

Grounds of Application

1. The Applicant relies on his Originating Application filed 20 December 2016, where he sets out the following ground:

   I provide evidence and gave oral submissions to the AAT in relation to the abuse, trauma and threats suffered by me in my home country due to my religious beliefs. I provided evidence to that regard. Such evidence has not been considered by the honourable tribunal member in giving the decision dated 21st November 2016. Accordingly, AAT failed to give consideration to the evidence as a matter of law.

2. The applicant also provided written submissions dated 25 February 2018 by way of a letter to the Court.  The letter briefly recounts the applicant’s life story since coming to Australia and sets out his strong desire to remain in the country.

3. In oral submissions the applicant made a number of points in support of his application beyond those set out in the ground of application.  Rather than considering only the ground, I will consider the various issues raised as if they are separate grounds.

Issue 1

1. The first issued argued by the applicant, and the matter that appears to have been most significant to him, concerns the findings of the Tribunal about his religion.  In his letter in support of his reinstatement application, he relevantly says:

   RRT they changed my religion.  He don’t know definition about Christianity even Sri Lankan Government mention on my certificate about my Religion.  How they didn’t see that, now I can feel how much they focus on my case.

2. In argument before me, the applicant drew my attention to a reference at p.113 of the court book where the delegate said in her decision:

   The applicant sated his religion was Catholic in his entry interview, Form C and during his PV interview however he claims he was targeted for pursuing his father’s religion which was Pentecostal Christian.  I note he also made a statement in his PV interview that he reads the Catholic Bible since he has been in Australia.  Whilst I accept there can be some confusion between Catholics and Christians, I find the fact that the applicant has consistently stated that his religion is Catholic as distinct from his father’s religion (Pentecostal Christian).

3. I note that the delegate did not accept that the applicant was a member of a Pentecostal church, stating in the following paragraph:

   I asked the applicant if he had continued to practise his father’s religion in his village.  He replied his father taught him everything he need to know while he was alive and he could prove this by the distinction he received for his religious studies at St Peter’s College in Negombo. He also stated that although he could not preach door to door he still followed his father’s beliefs.  I asked the applicant if he attended church in his village.  He replied yes.  I asked the applicant the name of the church and he replied St Nicholas.  I asked the applicant if this was a Pentecostal church.  He then went on to say he did not attend the church because they don’t ‘worship icons this is why we don’t go to church’.

4. The issue was carefully considered by the Tribunal member when considering whether or not the applicant was at risk for reasons of religion, which is discussed at [46] of the decision and onwards (court book p.262).

5. The Tribunal identified that the applicant claimed that his father was a Pentecostal Christian, and that his mother assisted his father in his religious work, and that the applicant claimed to also be a Pentecostal.  The Tribunal member did not find the applicant’s evidence on these issues compelling, saying:

   47. I found the applicant’s evidence on the religion of him and his family to be the most inconsistent and problematic of his evidence, and he demonstrated a willingness to change and tailor his evidence about his families and his religion when concerns were raised.

6. The Tribunal also identified a further difficulty for the applicant with respect to country information, saying:

   48. There is little evidence that Evangelical Christians in Sri Lanka are harmed in areas including the applicant’s and I note that he gave evidence that is village was Roman Catholic, rather than Buddhist, and note that most reports of violence against Christians is reported as Buddhist-Christian violence.

7. The Tribunal then went on to consider that the country information was not directly relevant in the context of this case, as the Tribunal had concluded that neither the applicant nor his father or mother were or had practiced as Pentecostal Christians, but rather were Roman Catholics.  The Tribunal said:

   49. However, this is not directly relevant because I find, for the reasons below, that the problems with the applicant's evidence leads me to find that neither he, nor his father or mother or family, were or practiced as Pentecostalists. In the decision record, provided by the applicant to the Tribunal, it is noted that the applicant stated his religion was Catholic in his entry interview, Form C and during his PV interview, and stated in his PV interview that he reads the Catholic Bible in Australia. In the written statement provided on 31 January 2013 he makes no mention of his father or families religion and does not identify religion as being the reason for [X] and others attacking his mother and family. He also said at the PV interview that he attended a Church in his village, and identified this as Saint Nicholas, the Catholic Church. He then said that they did not go as they did not worship icons and this was why they did not go to Church. At the first hearing he could not explain why he had described himself as a Catholic in his entry interview and other places, and he said if he was asked he could say he was a Catholic. He was asked which Church he went to growing up and he could only say that Pastor Joseph was the head and could not provide a name of the Church, and then discussed a youtube video of a Buddhist attack on a Catholic Church before saying that the family did not have a church and practiced at home. He said they didn't go to Churches as they practiced a bit different. When he has been asked, at the PV interview, and at the two hearings, how his father practices his Pentecostalism, he has struggled to describe it and has provided almost no details, saying that they practiced at home but not describing this practice, or how his father preached or otherwise proselytised other than saying his father went door to door but could give no other detail.

8. The Tribunal then went on to consider the applicant’s evidence with respect to his religious practices in Australia, concluding:

   52. The applicant's evidence on the religious practice of himself and his family has been inconsistent and undetailed. He has been unable to describe the families religious practice or even Church or churches attended in Sri Lanka, or how his father would preach door to door. His attendance at several churches in Australia has been sporadic. He has consistently fallen back on the claim that his family, and he, practiced their faith at their home. He was unable to explain what aspect of his religious practice he could not do in Sri Lanka, and I find it significant and telling that he has not sought to preach or tell others of his religious faith as he claims he wishes to do, in Australia, where the only barrier he faces is poor English and where, as I pointed out, there is a Sri Lankan, Sinhalese speaking population. I do not accept the applicant's confused and inconsistent claims to come from a family of evangelical Christians or to be one himself.

   53. On considering the applicant's evidence as given over time, I find that the applicant is a Roman Catholic, was raised as a Roman Catholic, that his father was and his mother is a Roman Catholic, and that he and the family have not ever practiced as Pentecostalists. I find that the applicant is not a Pentecolstalist or evangelical Christian, and that his father or any other member of his family was not ever a Pentecostalist or evangelical Christian I find that the applicant's father did not ever proselytise in Sri Lanka. I find that the applicant has not ever proselytised in Sri Lanka or in Australia, and has no genuine wish to do so in the future.

   54. It follows that I do not accept that his father's claimed Pentecostalism was the reason or part of the reason for X targeting the family or for the harm the applicant suffered.

9. The applicant argued that the Tribunal had confused Pentecostal Christians with Roman Catholics, assuming that all Christians were Catholic.  This does not appear apparent on a fair reading of the Tribunal’s reasons.  The Tribunal clearly understood the difference between Pentecostal and Roman Catholics, and spent some considerable time exploring the nature of the applicant’s claimed Christian faith.  I am not persuaded that the Tribunal erred by failing to understand the differences between Pentecostal and Roman Catholics.

Issue 2

1. The second issue that may arise is whether or not it was open to the Tribunal to ask the applicant for details of how he practices his faith in order to test his evidence. In this case, it does not appear that the Tribunal has conducted some form of test of religious knowledge, rather sought details of the applicant’s day-to-day practice of his faith, and evidence of how his mother and father practiced their faith. In this regard, I am not persuaded that the Tribunal had erred in the sense discussed in Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159.

Issue 3

1. The applicant appeared to argue that the Tribunal failed to deal with attacks upon the applicant by the person X. However, this conflict was the subject of considerable discussion, commencing at [17] of the Tribunal’s reasons and continuing through to [33]. The Tribunal accepted that X had attacked the applicant and his family, despite inconsistencies in the applicant’s evidence, saying:

   Despite inconsistencies in the applicant’s evidence about [X], such as his inability to tell me where he lived despite the applicant saying they lived in a small village, or any details about him other than [X’s] first name, l am willing to accept that [X] attacked the applicant's mother in April 2002, precipitating a long period of conflict between [X] and the applicant and his family. The applicant has been generally consistent about this. I accept that [X] fought with and harmed the applicant's father, and that he fought with and harmed the applicant, and I am willing to give him the benefit of the doubt, despite this claim not having been consistently pressed, that [X] sexually assaulted the applicant in 2008 when the applicant was 15 years old, and that [X] had his brother and other people, including [C], attack the applicant. The sequence of attacks that the applicant has described is truly appalling and I am sincerely sorry that the applicant, and his family, had to suffer this series of attacks.

1. The difficulty confronting the applicant is that the Tribunal member concluded that the attacks upon his family were part of a personal vendetta by X, rather than for a Convention reason: see paragraph [19] and [20]. The Tribunal also went on to consider whether or not the applicant was at risk of harm under the complementary protection provisions, saying:

   27. I have considered whether there is reason to believe that there is a real risk [X] will significantly harm the applicant on return such that complementary protection would be engaged. I do not accept there is for the following reasons. Firstly, I consider that the evidence of the applicant indicates that [X]'s interest in the family has diminished significantly - his evidence on the harm experienced by his family at the hands of [X] since the applicant’s departure was vague, undetailed and unspecific, as were the statements of his mother and brother, and I find this particularly significant as it has been claimed consistently by the applicant that [X]'s attacks started with an attack on his mother. ·I do not accept that [X] or anyone associated with him, or [C], has harassed or harmed the applicant's family for a significant period of time, since his departure.  This leads me to consider that the applicant's fear of harm by [X] on return, whilst understandable, is speculative and not based in the reality of his and his mother and brother 's evidence of [X]'s more recent behaviour.  I consider that there is very little chance of the applicant being harmed by [X] or anyone else on return. I do not accept that [X] or anyone else would wish to harm the applicant if he returns to Sri Lanka now, on the basis of his race or religion, which I have discussed and rejected elsewhere.  I further do not accept that [X] or his associates or [C] would harm the applicant on the basis of the applicant being a failed asylum seeker or having remained in Australia for many years, or departed Sri Lanka illegally – there is no basis to conclude that [X], his associates or [C] would care about these aspects of the applicant’s claims which I do accept, or would seek to harm the applicant for any of these reasons or attributes of the applicant.  I consider that there is no real risk of [X] harming the applicant on return to his home area in Sri Lanka, given the above, and that the chance of the applicant being harmed in.  However, even if there is some chance of [X] harming; the applicant, I find below that the applicant can rely on state protection which will lead to the risk of such harm falling below a real chance.

2. In [28], the Tribunal then went on to conclude that the Sri Lankan authorities would protect the applicant from harm feared from X and another person named in the decision ‘C’.  In substance, the applicant appears to be seeking merits review with respect to these issues, which are not open to him.

Issue 4

1. The applicant complained that he gave details to the Tribunal member that were not considered, and in particular, a video.  The Tribunal member recounts the discussion with the applicant about the video, which the Tribunal had been unable to view as the video did not appear to work.  This was discussed with the applicant at the hearing, as set out in [28] of the decision. 

2. The applicant has not sought to place a functioning version of the video in evidence or produce same to the Court.  There is no evidence that a functioning version of the video was provided to the Tribunal.  In circumstances where there is no functioning version of the video, there is no more that the Tribunal should have done than to take his oral evidence as to what he said the video showed.  Ultimately, this is a question of fact that the Tribunal considered and dealt with.

Issue 5

1. The applicant claims that the Tribunal misunderstood the nature of corruption in Sri Lanka, in concluding that the applicant could expect state protection. The applicant’s case argued that this was inconsistent with concluding that Sri Lanka was corrupt.  The discussion by the Tribunal member in this regard is at [32] and [33], which are as follows:

   32. I have considered the claims of the applicant, and have assessed the level of state protection he could expect on return against [X], [C] and [X]'s associates. It is significant that above and below I have rejected the applicant's claims that he has been targeted by [X] for any reason other than a personal vendetta by [X] against his family and himself, which l have found above that [X] does not appear to be pursuing against the applicant's family in the period after the applicant's departure from Sri Lanka.  The country information indicates to me that state protection is not withheld from any group or individual in Sri Lanka, that there is a reasonably effective police force and judiciary, .and that the Sirisena government has focused on, and made some concrete steps towards reducing crime and corruption. I have had regard to the country information in the submissions but I do not think the information quoted is on point or addresses the question of state protection – it discusses impunity for crimes committed against Tamil and political opponents during, the war and corruption in parts of the police and other authorities, and mentions an irrelevant drug body. I accept that, in some instances, there can be a lack of legal protections for victims of crime, but I note indications of the formation of a drugs taskforce in the applicant's home area, and I assess that this would lead to a focus on and greater resourcing of policing in the applicant’s specific home area. As above I do not accept the claimed political connections between [X], [C] and [NL] or anyone else, and I do not accept on the very vague and insufficient evidence presented that [X] or [C] would be protected by the police, politicians or anyone else. I accept that corruption is present in the police force and other authorities or Sri Lanka, but I find that Sirisena has taken concrete steps to address this, and that there are signs that these policy actions are being felt on the ground.

   33. When considered with my findings above that the evidence provided that I have accepted about [X]’s more recent behaviour indicates that [X]’s interest in the family has waned in the considerable period of time since the applicant was in Sri Lanka, leading to the chance of him harming the applicant being remote, I find that there is not a real risk in relation to his claimed fear of [X], [C] or their associates because I find that there is a level of state protection which the applicant can access such a level of protection that, when I consider his claims to fear harm from [X], his associates and [C], in the context of my findings, the level of state protection reduces the risk of the applicant suffering significant harm at their hands to less than a real risk or real chance.

2. A fair reading of the paragraphs indicates that the Tribunal concluded that there was some degree of corruption, although it is lessening with time, but that it was not such as to leave the applicant at risk in the context of this particular case.  These are findings that were open to the Tribunal on the facts and do not indicate a jurisdictional error.

Issue 6

1. The applicant complained that the Tribunal failed to have regard to claims that C, who works with X, had beaten his mother. The difficulty with the applicant’s claims in this regard are that the Tribunal did accept there had been attacks upon his family, at [17] (as quoted above), and that the Tribunal did accept that there had been a long-running feud between X and the applicant’s family: see [22].

2. The applicant was not able to identify any evidence that was specifically put that did not appear to have been considered by the Tribunal. Ultimately, these matters are part of the factual matrix of the particular claim, and appear to have been considered by the Tribunal in their decision.

3. I am not persuaded that this amounts to a ground for judicial review.

Issue 7

1. The final issue appears to be complaints by the applicant that the Tribunal chose inappropriate country information and placed inappropriate weight upon the country information.  The applicant did not produce specific references to conflicting country information that was put to the Tribunal or would show that the Tribunal had not fairly considered the country information available to it in the decision.  Ultimately, this was, in substance, a request that the matter be reviewed on the merits, and not any ground for jurisdictional error.

Conclusion

1. In the circumstances, the applicant has not identified any arguable basis for a conclusion that the Tribunal had committed a jurisdictional error.  In these circumstances, there is no purpose to be served in reinstating the matter, even if the applicant had a reasonable excuse for failing to attend at the date of the last hearing. 

2. I therefore refuse the application to set aside the orders dismissing the matter for the applicant’s non-appearance.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  10 September 2018