Ean19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 783

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 783  

File number(s):

SYG 2680 of 2019

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

23 April 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal affirming decision not to grant protection visa – whether Tribunal assessed applicant’s risk of persecution by reference to conduct the applicant could have taken to avoid such persecution – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3

Migration Act 1958 (Cth) ss 5H(1), 5J(1), 5J(3), 36(2)(a), 36(2)(aa), 476

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293

SZTEO v Minister for Immigration & Anor [2015] FCCA 2228

SZTEO v Minister for Immigration and Border Protection [2016] FCAFC 44

Number of paragraphs:

28

Date of hearing:

14 April 2021

Place:

Sydney

Counsel for the Applicant:

Ms M Yu

Solicitor for the Applicant:

Alan Rigas Solicitors

Solicitor for the First Respondent:

Mr T Hillyard of Sparke Helmore Lawyers

ORDERS

SYG 2680 of 2019

BETWEEN:

EAN19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	23 APRIL 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs.

3.The first respondent’s costs, including costs thrown away by reason of the applicant’s being granted leave to rely on the amended application filed on 18 March 2020, which, on 14 April 2021, the applicant was ordered to pay, are set in the amount of $7,467.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a citizen of India, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

   BACKGROUND

2. The applicant arrived in Australia in early 2008 holding a student visa. The applicant was granted a further student visa later in 2008; and he became an unlawful non-citizen in May 2010.

3. In November 2013 the applicant applied for a partner visa, and was granted a bridging visa on that day. The applicant was granted a further bridging visa in December 2013.

4. In April 2018 the applicant was refused a partner visa on character grounds, his bridging visa was cancelled and he, again, became an unlawful non-citizen.

5. The applicant applied for a Protection visa in January 2019. A delegate of the Minister refused that application on 4 February 2019.

   CLAIMS FOR PROTECTION

6. The applicant first stated his claims for protection in a statement that formed part of his application for a Protection visa. He there claimed he feared for his life because of a family dispute over land. This claim is not relevant to this proceeding.

7. Relevant to this proceeding is the claim the applicant first raised in a statement he provided to the delegate on 31 January 2019 after his interview with the delegate (post-interview statement).[1] The applicant there claimed as follows (errors in original):

   I also don’t want anything to harm them [that is, the applicant’s children] in any way as my kids are Catholic Christian born and in my Community its very mager issue between hindu and Christian they don’t accept Christian People and there is riot and attacks on Christian Community every day. Me and my family will face mager problem which is will be get attacked and get kicked out of community and will be danger [illegible] our life.

   [1] CB76-77

8. In a written submission the applicant’s lawyer submitted to the Tribunal on 22 March 2019, the applicant claimed as follows:[2]

   (a)The applicant has entered into a relationship with an Australian citizen who is not of the same cultural background as the applicant. Nor is she a Hindu, as is the applicant.

   (b)There are two children to the relationship and they have been raised as Christians.

   (c)The applicant’s relationship with a non-Hindu and the birth of two children, raised as Christians, present a threat to the applicant’s safety if he returns to India; and that is because many Hindus in India do not accept Christianity in society, and they regularly attack and ostracise Christians. Authorities do not protect Christian at large.

   (d)The applicant’s family will disown him on his return to India because they will perceive him as having converted to Christianity, given he has married a Christian and he has two children being raised as Christians. That claim is based on what the applicant claimed was his “family’s staunch and strict adherence to the Hindu faith”.[3]

   [2] CB128

   [3] CB135

   TRIBUNAL’S REASONS

9. The Tribunal accepted the applicant’s partner is Christian, and his children are being raised as Christians;[4] the applicant was born into a Hindu family, and he “thus identifies as a Hindu”.[5] The Tribunal also accepted the applicant’s partner was in prison, and his children were in foster care. The Tribunal, however, found that if the applicant returned to India neither his partner nor his children would go to India in the reasonably foreseeable future to be with him.[6] The Tribunal relied on the following matters:

   (a)The applicant stated at the first of the two days of the hearing before the Tribunal that the applicant’s children were in foster care before the applicant’s partner was incarcerated, and before the applicant was placed in immigration detention, thus suggesting that the children’s being in foster care was unrelated to the applicant’s partner’s incarceration and the applicant’s detention. That, in turn, suggested that the applicant or his partner, or both, will not regain custody of their children in the reasonably foreseeable future.[7]

   (b)The applicant’s partner and their children had not lived outside Australia, and the applicant’s partner has other family in Australia, including her mother. Further, when asked whether the applicant had discussed with his partner whether she and their children would go to India the applicant “replied vaguely and most tentatively, ‘basically, yes’ but did not elaborate on what his partner had said”.[8]

   [4] CB254, [193]

   [5] CB254, [194]

   [6] CB253, [188], [191]

   [7] CB253, [189]

   [8] CB253, [190]

10. The Tribunal also did not accept the applicant’s claim that his family were staunchly Hindu.[9] The Tribunal found the applicant invented this to strengthen his claim for protection. The Tribunal relied on what it found was the applicant’s general lack or credibility; the applicant’s failing to mention that his family were staunch Hindus in the post-interview statement; and the applicant’s evidence that he has not read the Bhagavad Gita, he did not know much about Hinduism, he had engaged in little religious activity in India, and as a child he had resisted his parent’s requests that he go to the temple.[10]

    [9] CB254, [195]

    [10] CB254, [195]

11. The Tribunal also did not accept the applicant follows Christianity, or that he would practice Christianity if he were to return to India. The Tribunal found the applicant’s claims that he followed Christianity and would follow Christianity in India were “invented belatedly to strengthen the applicant’s case particularly in the event that a finding was made that his partner and children would not return to India with him”.[11] The Tribunal relied on the following matters:[12]

    (a)The Tribunal’s finding that the applicant generally lacked credibility.

    (b)The applicant stated in his application for a Protection visa that he was Hindu, but he gave no indication before the Tribunal hearing that he followed or felt connected to any other religion.

    (c)On the first of the two days of hearing before the Tribunal, the applicant gave evidence that indicated he did not have strong religious beliefs. The applicant said he followed both Hinduism and Christianity; he did not practice any region 100% but believed in God and respected all religions; he had a little more of a connection with Christianity because of his partner; he had attended a temple in Australia a couple of times; Hindus do not eat beef but he eats beef; he attended church with his partner and her family when he had time; he knew as much about the Bible as he did about the Bhagavad Gita, but he had read neither; he did not know much about Hinduism; he did not know what to tell his children; he celebrated Christmas more than Hindu festivals; when he visited his children he wished them happy Christmas; and he wore a crucifix given by one of his sons.

    (d)On the second day of the hearing before the Tribunal, the applicant gave a different account of his religious beliefs and practices. He stated that while he was a Hindu he now followed Christianity; he followed all Christian activities and prayed to God; the only thing he had not done was to change his religion officially; he normally practiced Christianity in his day to day life; and he would continue to practice Christianity if he return to India.

    [11] CB255, [197]

    [12] CB254-255, [196] – [197]

12. The Tribunal did find, however, that the evidence the applicant gave during the first day of the hearing before the Tribunal about his religious activity and beliefs “was plausible, seemed spontaneous and unembellished”.[13] The Tribunal, therefore, found that although the applicant does not identify as a Christian, he feels a connection to Christianity because his partner and children are Christians; and, due to that connection, the applicant has on occasions participated in Christian festivals, attended church, and has worn a crucifix. Given those findings the Tribunal further found that if the applicant returned to India he would not identify as a Christian nor would he continue to participate in Christian religious activities, celebrations, or practices without his partner and children.[14]

    [13] CB255, [198]

    [14] CB255, [199]

13. The Tribunal found it seemed likely that at some time in the past the applicant’s parents had inquired about the religion of his partner and children, and the applicant informed his parents that his partner and children are Christian, or his parents came to assume the applicant’s partner and children are Christians.[15] The Tribunal, however, did not accept that any member of the applicant’s family would disown the applicant, even if the applicant’s family were aware the applicant eats beef and has engaged in some activities in Australia connected with Christianity because of his partner.[16] The Tribunal relied on what it found was the applicant’s general lack or credibility; the applicant’s failure to raise the claim earlier than he did that he feared harm from his family because of his association with a Christian partner and his having children who were raised as Christians; and the applicant’s not having claimed his family harmed or threatened to harm him when the applicant informed them he did not want to attend the temple.[17]

    [15] CB255, [200]

    [16] CB255-256, [201]

    [17] CB256, [201]

14. Finally, the Tribunal found there is not a real chance the applicant will be subjected to serious harm or significant harm in India from people, including from members of the wider Hindu community, groups, societies, or members of the applicant’s caste because the applicant’s partner and children in Australia are Christian, or because he had engaged in some Christian religious activities with his partner and children, or because he may wear the “cross” one of his children had given him. The Tribunal relied on the religious protections in the Indian constitution, the number of Christians in India, and information the Tribunal had put to the applicant about the treatment of Christians in India.[18]

    [18] CB256, [202]. The Tribunal identifies the information it put to the applicant at CB241, [132]

15. Given these findings, and the Tribunal’s not accepting the applicant’s claims based on a family dispute over land, the Tribunal was not satisfied the applicant met the criteria specified in s 36(2)(a) and s 36(2)(aa) of the Act for the grant of a Protection visa.

    GROUND OF APPLICATION

16. The applicant relies on the following ground contained in his amended application:

    The Second Respondent (the Tribunal) erred by implicitly requiring the Applicant to modify his religious practices in contravention of s.5J(3) of the Migration Act 1958 (Cth).

    Particulars

    a.The Tribunal at [199] of its decision, found that the Applicant did not identify as Christian, but that he felt a connection to Christianity because his partner and children are Christians, and that due to that connection he has participated in Christian festivals, attended church, and worn a crucifix.

    b.The Tribunal went on to find at [199] of its decision, that if the Applicant returned to India, he would not identify as a Christian, participate in Christian religious activities, celebrations or practices without his partner or children.

    c.The Tribunal also found at [202] of its decision, that there were individuals and groups in India who did not like Christians and that there had been instances of Christians being harmed in India for reasons relating to their religious, [sic] but found that there was not a real chance that the Applicant would be harmed for reasons relating to his religion.

    d.Having accepted that the Applicant did engage in Christian practices such as participating in Christian festivals, attending church, and wearing a crucifix, the Tribunal proceeded on an unwarranted assumption in making the finding referred to above at (b). The assumption was that the Applicant would cease engaging in these practices on return to India by reason of his physical separation from his partner and children. As a result, the Tribunal’s finding (referred to above in (b) amounted to it implicitly requiring the Applicant to modify his behaviour in contravention of s.5J(3) of the Act.

    e.The Applicant’s connection to Christianity and the nature of his religious practices such as they were, were protected attributes falling within the provisions in s.5J(3)(a) and s.5J(3)(b) of the Act and the Tribunal’s findings at [199] and [202] were material to the decision to affirm the refusal of the Applicant’s visa application. Consequently, the Tribunal’s decision was affected by jurisdictional error.

17. In his counsel’s written submissions, the applicant submitted the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (S395) are relevant[19]. The applicant otherwise repeated the effect of the particulars in the grounds of application. In oral address, counsel for the applicant repeated the substance of the written submissions. The Minister, on the other hand, submitted that in concluding the applicant did not face a real risk of harm the Tribunal did not rely on any finding or assumption that the applicant would modify his behaviour on his return to India to avoid harm.

    [19] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

18. Before I consider the competing submissions it will be necessary to refer to s 5J of the Act, and the principles decided in S395.

    Statutory text and S395

19. I begin with s 36(2)(a) of the Act which provides that a criterion for the grant of a protection visa to a non-citizen in Australia is that the Minister is satisfied Australia owes protection obligations to that person “because the person is a refugee”. “Refugee” is defined in s 5H(1) of the Act in relation to a person who has a nationality as a person who is outside the country of his or her nationality and, owing to a “well-founded fear of persecution”, is unable or unwilling to avail himself or herself of the protection of that country. Subsection 5J(1) of the Act provides that a person has a “well-founded fear of persecution” if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and there is a real chance that, if the person returns to the receiving country, the person would be persecuted for one or more of these reasons. Subsection 5J(1), however, must be read with s 5J(3) of the Act:

    A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b) conceal an innate or immutable characteristic of the person; or

    (c) without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)  conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)  alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)  conceal a physical, psychological or intellectual disability;

    (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

20. It should be apparent that s 5J(3) of the Act would be engaged only if the decision maker found or assumed an applicant would face a real chance of persecution in a receiving country. If engaged, s 5J(3) would direct attention to whether the person who would face, or is assumed would face, a real risk of persecution could avoid the real chance of harm by modifying his or her behaviour in a manner other than by the modifications identified in paragraphs (a)-(c) of s 5J(3) of the Act. A decision maker who found a person could avoid a real chance of persecution by modifying his or her behaviour in any of the ways identified in paragraphs (a)-(c) of s 5J(3) of the Act would misapply s 5J(3) of the Act.

21. I next turn to the principles for which S395 stands as authority. I summarised those principles in SZTEO v Minister for Immigration & Anor as follows:[20]

    Two related principles, therefore, can be derived from the majority judgments in Appellant S395. The first is that the causal nexus[21] required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between, on the one hand, a person’s actual or perceived race, religion, nationality, membership of a particular social group, or political opinion (Convention characteristics) and, on the other, the person’s well-founded fear of persecution, will not be taken not to be established only because the person is capable of taking action that would prevent the person from being perceived by persecutors in his or her country of nationality to be a person who possesses any Convention characteristics.

    The second principle is that the causal nexus required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between a person’s Convention characteristics and the person’s well-founded fear of persecution, will also not be taken not to be established only because the person has in fact taken steps, or intends to take steps, to conceal those characteristics. In those circumstances, the person may still be found to have a well-founded fear of persecution. Whether or not the person will have such well-founded fear, however, will depend on the reason or reasons for which the person concealed, or intends to conceal his or her Convention characteristics. If the reason is the person’s desire to avoid persecution of which he or she has a well-founded fear of persecution because of his or her Convention characteristics, the person will still be regarded as having a well-founded fear of persecution.

    [20] SZTEO v Minister for Immigration & Anor [2015] FCCA 2228, at [13]-[14]. In SZTEO v Minister for Immigration and Border Protection [2016] FCAFC 44, at [33], the Full Federal Court, in referring to my summary said: “We do not consider it necessary to set out, or further discuss, the detailed reasons for judgment in S395/2002, but we can see no relevant error (at least for the purpose of the present appeal) in the following summary given by the primary judge in the Federal Circuit Court of Australia (“FCCA”) from whose judgment the present appeal has been brought”

    [21] “There must be some relevant causal link between the postulated ground (membership of a “particular social group”) and the entitling condition (“well-founded fear of being persecuted”). The one must provide the reason for the other.” - Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, at [67] (Kirby J)

    Determination

1. The initial question is whether the Tribunal found, or assumed, there is a real chance that if the applicant returned to India he would be persecuted due to his feeling a connection to Christianity because his partner and children are Christians, or because the applicant has on occasions participated in Christian festivals, attended church, and has worn a crucifix. The Tribunal made no such finding, and there is no basis for inferring the Tribunal impliedly made any such finding. Thus, it cannot be said the Tribunal applied or purported to apply s 5J(3) of the Act to the applicant’s circumstances. That is, there is nothing in the Tribunal’s reasons that suggests the Tribunal found or assumed there is a real chance that, if the applicant returns to India, he would be persecuted because of his feeling connected to Christianity or because of his Christian activities in Australia, but nevertheless found the applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution. Nor is there any suggestion the Tribunal reasoned in a manner contrary to the principles for which S395 stands as authority.

2. The applicant appears to accept the Tribunal did not reason in this way. Paragraph (d) of the particulars to the ground claims the Tribunal made an “unwarranted assumption” that, on his return to India, the applicant would not identify as a Christian, or participate in Christian religious activities, celebrations, or practices without his partner or children. The applicant’s true claim, therefore, appears to be the Tribunal did not consider and determine whether on his return to India the applicant would continue to identify as a Christian and participate in Christian activities. Such claim, however, cannot be established.

3. The Tribunal understood the applicant claimed that on his return to India he would practice Christianity. The Tribunal considered that claim and made the strong finding, supported by reasons, that the applicant had invented that claim “belatedly to strengthen the applicant’s case particularly in the event that a finding was made that his partner and children would not return to India with him”.[22] The Tribunal, however, also considered what the applicant would do if he returned to India, and it made a finding about that. The Tribunal found the applicant would not identify as a Christian, or participate in Christian religious activities, celebrations, or practices without his partner or children. The applicant does not claim these findings were not reasonably open to the Tribunal to make; and I am satisfied the findings were reasonably open to the Tribunal to make.

   [22] CB255, [197]

4. The Tribunal did not purport to apply s 5J(3) of the Act, or otherwise assumed s 5J(3) applied, to the applicant’s circumstances; and that is because the Tribunal was not satisfied there is a real chance that, if the applicant returned to India, he would be persecuted because he identifies as Christian or because he had participated in Christian activities or that he would practice as a Christian if he returns to India. Nor did the Tribunal reason, or assume, the applicant faced a real chance of persecution because of these matters but could nevertheless avoid that real chance of persecution by modifying his behaviour. The Tribunal did what it was required to do. It considered the applicant’s claims, and it considered and made findings about what the applicant would do on his return to India; and on the basis of those findings, concluded it was not satisfied there is a real chance that, if the applicant returned to India, he would be persecuted because of his feeling connected to Christianity or because he had participated in Christian activities.

5. The ground on which the applicant relies, therefore, fails.

   DISPOSITION AND COSTS

6. I will order that the application be dismissed.

7. The parties agreed that costs should follow the event, and that costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Mr Hillyard, who appeared for the Minister, confirmed that if the Minister were to succeed, the amount provided for in Part 3 of Schedule 1 to the FCC Rules would include the Minister’s costs thrown away because of my granting the applicant leave to rely on the amended application. I will therefore order that the applicant pay the Minister’s costs set in the amount of $7,467, being the amount provided for by Part 3 of Schedule 1 as at the date on which the applicant commenced this proceeding. I will make it clear in the orders that this amount is intended also to cover the Minister’s costs thrown away which, at the hearing, I ordered the applicant pay.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:        23 April 2021