SZUXM v Minister for Immigration

[2015] FCCA 2278

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2278

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all of the applicant’s claims.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574
SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26

Applicant: SZUXM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2258 of 2014

Judgment of: Judge Cameron

Hearing date: 19 August 2015

Date of Last Submission: 19 August 2015

Delivered at: Sydney

Delivered on: 25 August 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Applicant: Success Lawyers & Barristers

Solicitors for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2258 of 2014

SZUXM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 14 June 2012. On 5 October 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka primarily because of his former position as a Buddhist monk. On 14 November 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

Protection visa application

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in a statement attached to his protection visa application:

   a)he had been a very prominent and famous Buddhist monk in Sri Lanka for about fourteen or fifteen years.  He had preached, written on Buddhism, appeared on radio and television and had travelled to many countries teaching Buddhism;

   b)[he had left the monkhood in Australia (“disrobed”) and] on his return to Sri Lanka would be harmed by the public as he would be seen as having abandoned his faith;

   c)he also feared people inside the Buddhist institutions who were jealous of him because of his former profile.  Other organisations had called him and accused him of teaching Christianity; and

   d)his mother was sick and he was the only person who could support her but as a former monk he would be unable to work in Sri Lanka.

2. At an interview with the delegate on 25 October 2012 the applicant claimed that:

   a)people from other religions had accused him of proselytising and other Buddhist families resented him because he had inspired members of their family to become monks.  If those people found out that he was no longer a monk he would not have the protection he had enjoyed as a monk;

   b)he also feared harm from people who had told him personal information while he was a monk and who might think that that information would now become public; and

   c)he had previously been transferred from his monastery because other monks who had been jealous of his popularity had made up stories about him spreading Christianity.

3. Following the interview with the delegate, the applicant claimed that he had previously lived in New Zealand and while there had been in a relationship with a woman whose family disapproved of the relationship.  He claimed that he feared that he would be harmed if it was found out that he had been in a relationship while still a monk.

Tribunal review

1. In a statutory declaration dated 8 November 2013 provided to the Tribunal and at a Tribunal hearing held on 11 November 2013 the applicant made the following additional claims:

   a)he had been the second highest priest at one of the most powerful temples in Sri Lanka.  He had a disagreement with the chief priest of the temple (“chief priest”) and had been expelled from that temple because he had expressed concerns about the level of corruption and nepotism inside the clergy; and

   b)he had written thirty-eight books and many articles and had received hundreds of letters daily.  After his expulsion, the chief priest had authorised the deletion of his teachings from a Buddhist website and had destroyed all evidence of his involvement with Buddhist TV.

2. The applicant claimed that he feared harm from:

   a)the chief priest, because of their disagreement and his subsequent disrobing;

   b)a former chief security officer of the commander of the navy whom he had brought to the attention of law enforcement authorities in 2008 and was now in gaol;

   c)a female member of parliament whose actions he had opposed in 2007.  He had received death threats because of his opposition of her;

   d)various politicians who had been involved in an attempted appropriation of certain monastery land in 2004, which he had successfully prevented;

   e)criminals who operated around a certain monastery because of his actions in 2000 to stop their criminal activities;

   f)political leaders and members of the elite such as the chief justice, the secretary of security and commanders in the navy as a result of his falling out with the chief priest and his subsequent disrobing.  The applicant claimed that he had been privy to important discussions, particularly during the Sri Lankan civil war, and knew the elite’s secrets and corrupt conduct.  As he had disrobed he would no longer be protected and he feared that they would perceive him to be a traitor;

   g)the chief justice, politicians and lay people because he knew of their acts of bribery.  He would no longer have protection because he had left the monkhood;

   h)members of the United National Party because he had supported the Sri Lankan president prior to the elections;

   i)a family who lived near the temple he lived in after his return from New Zealand and two prominent priests who supported the family because in 2010 or 2011 he had resisted the family’s attempts to acquire the temple’s land;

   j)the Buddhist clergy and establishment in general because of his expressed opposition to the chief priest and his subsequent disrobing;

   k)gang members because he had convinced one of their family members to become a monk; and

   l)officials at the airport on his return and entry into Sri Lanka.  The officials would publicise that he was a former monk.

3. The applicant’s representatives submitted that the applicant feared harm on the basis of his:

   a)religion;

   b)membership of a particular social group of disrobed monks;

   c)political opinion on the basis of his expressed disapproval and criticism of corruption and nepotism within the Buddhist clergy, which had led to his expulsion from the temple and eventually to his decision to disrobe; and

   d)act of seeking asylum in Australia.

4. In support of his claim for protection, the applicant relevantly provided to the Minister’s department (“Department”) and the Tribunal:

   a)photographs of himself in Buddhist robes and at official presentations with people mentioned in his claims;

   b)copies of his written Buddhist teachings;

   c)a video clip of him in monks’ robes speaking about Buddhist values; and

   d)a statutory declaration declared by his partner on 22 November 2013.  The applicant’s partner stated that she had met the applicant in New Zealand and that her parents, who had connections in Sri Lanka, had said they would kill her and the applicant if they went to Sri Lanka.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal did not accept that the applicant would be harmed by any of the people he claimed wished to harm him.  In that regard:

   a)the Tribunal did not accept that the applicant was a credible witness.  The Tribunal:

   i)referred to the extensive claims which the applicant had raised for the first time during its review of the delegate’s decision.  It noted that the applicant had not raised those claims in the statement accompanying his protection visa application, which he had completed with the assistance of a representative from the Refugee Advice and Casework Service, or at his departmental interview, despite being expressly asked about the people he feared would harm him in Sri Lanka and being asked on a number of occasions if he had anything further to say.  The Tribunal did not accept the reasons proffered by the applicant and his representatives for his failure to raise those claims earlier.  It found that the applicant had fabricated that evidence to enhance his claims for protection following the refusal of his application by the Department;

   ii)found that the applicant had given inconsistent evidence about why he was removed from a temple in New Zealand.  It noted that he claimed that the chief priest in Wellington had visited Sri Lanka and had been asked by his former superior to get rid of him but he had failed to give that evidence at his departmental interview when asked questions about his removal from the temple in New Zealand.  The Tribunal noted that the applicant claimed he had failed to give that evidence because he had not wanted to give Buddhists a bad name and had not wanted to go against his former chief priest but it did not accept those explanations;

   iii)noted that at the applicant’s compliance interview on 17 September 2012, when asked if there were any reasons he could not return to Sri Lanka, he had only claimed that he would be unable to work to support his mother but did not claim to fear harm from anyone.  While accepting that the applicant would have had less knowledge of the protection system at that time, the Tribunal found that if he had feared harm from particular individuals, he would have referred to it, even if only generally;

   b)while the Tribunal accepted that the applicant had been a Buddhist monk at the temple he claimed, it found that he had exaggerated his profile and role in Sri Lanka.  The Tribunal accepted that the Sri Lankan president and other senior politicians had visited the temple but it did not accept that the applicant had been privy to high level discussions or that he had provided advice, spiritual or otherwise, to politicians throughout the Sri Lankan civil war or at any time.  It did not accept that he held any secret knowledge related to the civil war or to the corrupt and improper conduct of various authorities and consequently concluded that he was not a danger to, or at risk from, the authorities in Sri Lanka.  While accepting that the applicant had had his photograph taken with prominent politicians when they visited the temple, the Tribunal did not accept those photographs as evidence of his claims that he had been their spiritual or private adviser;

   c)while accepting that the applicant had been a Buddhist writer and had appeared on radio and television, the Tribunal did not accept that he had been the second highest priest at one of the most powerful temples in Sri Lanka, that he had written as many books and articles as he claimed, that he had received hundreds of letters daily or that the temple and its chief priest were as powerful as he claimed.  It did not accept that he had been as prominent as he claimed;

   d)the Tribunal was not satisfied that other monks jealous of the applicant had spread rumours that he was spreading Christianity which had resulted in him moving temples.  It noted that the applicant had mentioned that claim only at his interview with the delegate and had not raised it in the statement accompanying his protection visa application, in his statutory declaration of 8 November 2013 or at the Tribunal hearing; and

   e)for the following reasons, the Tribunal did not accept that the parents of the applicant’s partner had made any threats to harm him on his return to Sri Lanka or that he would face difficulty because he had entered into the relationship while still a monk:

   i)the applicant had first raised his claim that his partner’s parents would harm him if he returned to Sri Lanka at the Tribunal hearing;

   ii)although the Tribunal considered the applicant’s partner’s statutory declaration, as she was in a relationship with the applicant, it did not consider her evidence to be independent of the applicant and it therefore placed no weight on it;

   iii)the applicant gave inconsistent evidence: in submissions provided to the delegate after his interview with the delegate the applicant claimed that he feared he would be harmed if it became known that he had been in a relationship whilst still a monk but at the Tribunal hearing he claimed that he had had no problems in Sri Lanka after returning there from New Zealand.  The applicant then claimed that the problem had only arisen after he arrived in Australia, when he and his partner commenced living together; and

   iv)the applicant had not raised at his interview with the delegate the claim that he feared harm for having been in a relationship whilst still a monk and only raised it in submissions provided to the delegate after the interview.

3. The Tribunal accepted, as claimed by the applicant, that he would be a disrobed monk on his return to Sri Lanka.  It also accepted that until 2009 he had written many texts, appeared on radio and television, travelled to Asia and was well-known and prominent, albeit not to the extent he claimed.  However, the Tribunal did not accept that the applicant would suffer harm in Sri Lanka as a disrobed monk in his circumstances and with his profile.  In that regard:

   a)the Tribunal accepted that while a monk the applicant had influenced people to become monks, had been privy to information between husbands and wives and had been accused of proselytising.  However, the Tribunal found those claims lacking in detail and speculative as to future harm.  On the evidence, it was unable to be satisfied that the applicant faced a risk of harm for those reasons because he had disrobed;

   b)on the basis of its credibility findings and the applicant’s general evidence, the Tribunal did not accept that the applicant would face harm from his past enemies as a disrobed monk; and

   c)the Tribunal found that there was no information that Buddhist monks in Sri Lanka who had left the monkhood faced physical or economic harm as a consequence, although information indicated that they might face social stigma.  It found that any social stigma or disgrace the applicant might face would not amount to serious harm.  The Tribunal found that as the applicant had not been involved in any activities since 2009, his evidence being that after returning from New Zealand he worked with feeble and sick monks from 2010 to 2012 and was not involved in writing and television work, he no longer had the profile he claimed to have once had.  It therefore did not accept that the applicant would be treated differently to other disrobed monks.  The Tribunal further found that the applicant could live and work under his birth name.

4. The Tribunal also did not accept that the applicant would face harm in Sri Lanka as a failed asylum seeker returning from Australia.  It did not accept that Sri Lankan authorities at the airport would expose the applicant as a disrobed monk and publicise his case and, having rejected that he had had a profile to the extent he claimed, it did not accept that he would be known on arrival.  After referring to country information, the Tribunal found that as a returnee the applicant could go through a process which would bring him into contact with the Sri Lankan authorities.  However, on the evidence before it, the Tribunal was not satisfied that being a returned failed asylum seeker, singly or in combination with the applicant’s accepted circumstances, would give rise to differential treatment or that the process he would face would result in harm, either at the airport or on his return to his home.  In particular, the Tribunal found that given that the applicant had departed Sri Lanka legally, it was highly unlikely that he would be perceived as having sought asylum if he also returned legally.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal erred when it assessed that there would be no harm to the Applicant from disrobing as high ranked Buddhist monk (the Applicant’s profile in Sri Lanka prior to departing to New Zealand).

   Particulars:

   a.The Tribunal committed jurisdictional error in not assessing that the Applicant would be imputed with anti-[chief priest] / institution views upon returning to Sri Lanka (erroneously looking at the general population of monks); and / or Buddhist religion generally after leaving a senior position.

   b.Imputed views of having relationship with [the applicant’s partner] (contrary to previous position of celibacy).

   2.[not pressed]

   3.The Applicant had claimed membership of a particular social group with special attributes.  The Tribunal fell into error when it failed to make any assessment regarding social group.

   Particulars:

   a.The Applicant claimed that he had certain attributes constituting a particular profile.

   b.The Tribunal failed to consider that any particular social group (and did not consider this Convention nexus) and addressed generic population of Buddhist monks – not as a particular social group.

   4.[not pressed]

   5.The Tribunal denied the Applicant procedure fairness when it found that the Applicant would not suffer significant harm or serious harm when it assessed that there was no information to support findings that disrobed monks would not be able to work.

   Particulars

   a.The Tribunal committed jurisdictional error in not assessing that the Applicant would be imputed with anti-[chief priest] / institution views upon returning to Sri Lanka (erroneously looking at the general population of monks); and/or Buddhist religion generally after leaving a senior position.

   b.Imputed views of having relationship with [the applicant’s partner] (contrary to previous position of celibacy).

Grounds 1 and 5

1. In his written submissions the applicant grouped grounds one and five of his amended application together and explained them in the following terms:

   The Applicant submits that there was always underlying claim because of the disrobing and establishing relationship with Ms … when he was in fact a high ranking monk would impute with him precepts of being against his former institution.

   The Tribunal has not addressed this claim ...  (paras.15-16)

2. In addresses at the hearing of this application the applicant also made one argument in relation to both grounds and did not address them individually.  It is important to make that fact clear as, although the particulars of grounds one and five were the same, the allegations were not.  The argument advanced in relation to both allegations rested on the very senior position which the applicant alleged he had held in Sri Lanka before he went to New Zealand.  In addresses the applicant argued that the Tribunal had been required to make a finding on how his former position would impact on him were he to return to Sri Lanka.

3. As the summary of its reasons set out above records, the Tribunal acknowledged the applicant’s claim to have been, before his departure from Sri Lanka for New Zealand, the second highest ranking priest at one of the most powerful temples in Sri Lanka.  However, it concluded that he was not a credible witness and, as also recorded above, found that he had not held such a position.  It found that his claims of importance, prominence and intimacy with the Sri Lankan elite were exaggerated.

4. Far from finding the alleged fact on which the first and fifth grounds of the amended application were based, the Tribunal rejected it.  Consequently, grounds one and five must fail.  The Tribunal did not err by not considering potential harm to the applicant by reference to a circumstance which it found had not existed.

Ground 3

1. The applicant submitted in connection with the third ground of the amended application that the Tribunal had failed to consider his claim to fear persecution by reference to his membership of the particular social group of “member/members of the family of disrobed married high ranking Buddhist monk from Sri Lanka”.  In addresses counsel for the applicant corrected the reference to the applicant having been married and indicated that that should have been a reference to his de facto relationship status.

2. To the extent that this ground depended on the Tribunal having found as a fact that the applicant had been a high ranking Buddhist monk in Sri Lanka, which I take to be a reference to the allegations of his importance, prominence and intimacy with the Sri Lankan elite, for the reasons given in connection with grounds one and five, it is not made out. 

3. This ground is also not made out because the applicant never claimed to fear persecution on the basis that he was a member of the particular social group of “member/members of the family of disrobed [de facto] married high ranking Buddhist monk from Sri Lanka”.  The claim to membership of a particular social group which the applicant did make, at p.2 of his advisers’ submissions to the delegate dated 13 November 2012 (CB 95), was in respect of the group “disrobed Buddhist monks”.  In the absence of compelling reasons to conclude otherwise, when an applicant is professionally represented before the Tribunal, as was the case here, it must be assumed that the claims that the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed.  If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37].

4. I find that the applicant did not claim before the Tribunal membership of the particular social group he identified at the hearing of this application.  Because the applicant was represented, the Tribunal was entitled to infer that an informed decision had been made to not press any available but unarticulated claims.  It was not suggested that exceptional circumstances existed such that the Tribunal was not entitled to draw such an inference.  Consequently, the Tribunal was not required to consider the applicant’s claimed membership of the particular social group he pressed in this application and it did not err by not doing so.  The third ground of the amended application is therefore not made out. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been made out.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 25 August 2015

CORRECTIONS

1. Paragraph 15, ground 5(a) – delete name and insert “[chief priest]”.

2. Paragraph 15, ground 5(b) – delete name and insert “[the applicant’s partner]”.