SZVKE v Minister for Immigration

[2016] FCCA 293

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 293

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – applicant claiming religious persecution as an evangelical Christian in Sri Lanka – applicant disbelieved in certain respects and in other respects the applicant’s fears found not to be well-founded – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 425

Minister for Immigration v SZSCA (2014) 254 CLR 317

Minister for Immigration v WZAPN (2015) 89 ALJR 639

SZBEL v Minister for Immigration (2006) 228 CLR 152
SZATV v Minister for Immigration (2007) 233 CLR 18

Applicant: SZVKE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3029 of 2014

Judgment of: Judge Driver

Hearing date: 15 February 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The application as amended on 1 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3029 of 2014

SZVKE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 October 2014.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The applicant is from Sri Lanka and had made claims for protection based upon his asserted evangelical Christian faith.  The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is a citizen of Sri Lanka who arrived in Australia on or about 9 August 2013 as part of the crew of an oil tanker vessel.  He applied for a protection visa on 2 October 2013[1].  The applicant provided a statutory declaration (dated 30 September 2013) with his application for a protection visa[2]. The applicant attended an interview with the delegate on 25 February 2014[3], and then provided a post-interview submission on 26 February 2014[4].

   [1] Court Book (CB) 1–66

   [2] CB 59–66

   [3] CB 139

   [4] CB 104–122

4. On 28 February 2014 the delegate refused to grant the applicant a protection visa[5].  The applicant sought review of the delegate's decision before the Tribunal by application dated 10 March 2014[6].  The applicant provided a pre-hearing submission to the Tribunal on 10 September 2014[7], and attended a hearing before the Tribunal on 17 September 2014[8].

   [5] CB 133–152

   [6] CB 154–155

   [7] CB 178–185

   [8] CB 186–188

5. The applicant claimed to fear harm in Sri Lanka on the basis of his religion (evangelical Christian), and membership of one or more particular social groups (“evangelical Christians”, “evangelical Sinhala Christians”, “Christians who engage in proselytising” and “failed asylum seeker returnees who may be perceived/imputed of having departed Sri Lanka illegally”).

Tribunal decision

1. The Tribunal was concerned by inconsistencies between the applicant's claims at various stages of the protection visa application process, and by the applicant's failure to raise certain important aspects of his claims at an early stage. The Tribunal did not accept the applicant's explanation for these omissions and inconsistencies, and found that they damaged the applicant's credibility[9].

   [9] CB 242–245 at [20]–[34] and [41]; CB 249 at [73]

2. The Tribunal did accept that the applicant was a Catholic who converted to evangelical Christianity, and that his church attendances in Australia were due to his genuine religious faith. However, the Tribunal did not accept that the applicant was ostracised in Sri Lanka due to his religious conversion, that he was harmed or threatened in Sri Lanka, or that he would be perceived to have departed Sri Lanka illegally[10].

   [10] CB 244–245 at [35]–[39], [42] and [44]; CB 249 at [74]

3. The Tribunal accepted that the applicant would continue church attendances were he to return to Sri Lanka. However, on the basis of independent country information, the Tribunal was not satisfied that the applicant would face harm in his home region of Negombo on the basis of his religion[11]. Alternatively, the Tribunal found that the applicant could relocate to another area within Sri Lanka where he could practice his faith without harm[12].

   [11] CB 250 [80]–[85]

   [12] CB 249 at [70]–[72]

4. The Tribunal noted that the applicant conceded that there was no distinction between the three claimed particular social groups relating to his religion, so the Tribunal treated these claims together. However, for the same reasons referred to above, the Tribunal did not accept that the applicant faced a real chance of serious harm[13].  It also alternatively found that the applicant could safely relocate within Sri Lanka[14].

   [13] CB 252–253 at [97] and [99]

   [14] CB 252 at [98]

5. As to the final particular social group claim, the Tribunal noted that the applicant departed Sri Lanka legally by air. As such it found that he would not be subject to the law regarding illegal departure. The Tribunal found that if the applicant were to return to Sri Lanka voluntarily he would not be subject to questioning. However, it accepted that, were he to return involuntarily, he might be questioned by the authorities about the reasons for his deportation. The Tribunal did not accept that this would amount to serious harm[15].

   [15] CB 254–255 at [109]–[116]

6. The Tribunal also accepted that the applicant breached his employment contract by deserting his ship, and might be subject to legal action by his employers for breach of contract.  The Tribunal did not accept that the Sri Lankan authorities would be involved in the litigation, or that it would have a Convention nexus[16].

   [16] CB 254 at [114]–[115]

7. The Tribunal therefore found that the applicant did not satisfy the refugee criterion or the complementary protection criterion[17].

   [17] CB 257 at [135]–[137]

The judicial review application

1. These proceedings began with a judicial review application filed on 31 October 2014.  The applicant now relies upon an amended application filed on 1 December 2015.  There are four particularised grounds in that application:

   Ground 1

   The Tribunal committed jurisdictional error when it misapprehended the claims, ignored relevant material and misdirected its enquiries and/or reached mistaken conclusions.

   Particulars

   The finding at [83], [96] and [97] has erroneously its reached conclusions in that:

   (i) The 2013/2014 reports clearly demonstrate that violence and intimidation occurring in Negombo;

   (ii) Contrary to the information/evidence contained in the reports the Tribunal found that the incidents involved Pastors (at [97]) and reached mistaken conclusions.

   (iii) The delegate assessed that the Applicant was not at risk as the delegate did not accept that the Applicant had converted.

   Ground 2

   The Tribunal stated that “… any penalties imposed by the Courts for these breaches would not amount to persecution for a Refugee Convention ground. …” (at [108]).  The Tribunal committed jurisdictional error in assessing the claims in that the claim is Convention related and/or required consideration under complementary protection.

   Particulars

   (i) Indirect impact on the applicant’s ability to practise religion or persecution from practising his new faith would ground Convention nexus, the Tribunal thereby erred;

   (ii) The Tribunal erred in failing to assess complementary protection in that detention would amount to “significant harm” (s 36(2A)) or “serious harm” (s 91R(2)) of the Migration Act and thereby committed jurisdictional error.

   Ground 3

   The Tribunal stated that “… if the Applicant chooses to leave Australia involuntarily he might be questioned …” (at [113]).  The Tribunal committed jurisdictional error in assessing the claims in that the Applicant claim that “questioning” amounted to “interrogation” requiring consideration under Convention related and/or required consideration under Convention grounds/complementary protection and failed ask the correct questions and/or asked itself incorrect questions.

   Particulars

   (i) The Tribunal erred in failing to assess complementary protection in that interrogation would amount to “significant harm” (s 36(2A)) or “serious harm” (s 91R(2)) of the Migration Act and thereby committed jurisdictional error.

   (ii) The Tribunal failed to ask itself the correct question whether the Applicant as involuntary returnee would be found to have applied for refugee status in Australia and ask itself whether the Applicant response would pose any risk for the Applicant.

   (iii) The Tribunal asked itself the incorrect question – that the Applicant left Sri Lanka “legally” and thus (presumably) would not be asked any questions as to his activities overseas (even though he would be returning as involuntary returnee (CB 257 at [132]-[133]) having made refugee application in Australia).  The Tribunal thereby did not ask any question about risk to the Applicant.

   (iv) Misdirected its enquiries as to whether the questioning of the Applicant could amount to serious harm (CB 257 at [133]).

   Ground 4

   The Tribunal committed jurisdictional error when it found the Applicant can relocate within Sri Lanka (CB 257 at [133]).

   Particulars

   (i) The Tribunal did not properly consider and apply principles of relation;

   (ii) The Tribunal did not address the specific circumstances of the Applicant. (errors in original)

2. I have before me as evidence the court book filed on 7 January 2014. Both the applicant and the Minister made written and oral submissions.

Consideration

Ground 1 – did the Tribunal misapprehend the applicant’s claims, ignore relevant material or misdirect its enquiries or reach mistaken conclusions in relation to claims of violence against Christians in the applicant’s home district in Sri Lanka?

1. The first ground alleges that the Tribunal made an error; variously said to be a misapprehension of the applicant's claims, ignorance of relevant material, misdirection of the Tribunal's inquiries, or mistaken conclusions; concerning the reports of the National Christian Evangelical Alliance of Sri Lanka for 2013 and 2014 (NCEASL report).

2. The applicant claims that he would be persecuted because of his involvement outside the Catholic Church and as evangelical Christian. The Tribunal accepted that the applicant had converted to an evangelical church and the applicant’s activities with the church in Australia.

3. The applicant claimed that he would be at risk of harm for his involvement with the evangelical church but in particular, his desertion of the Catholic Church. The risk was not confined to the latter only[18].  The Tribunal was provided with the NCEASL report[19].

   [18] CB 179

   [19] CB 199-233

4. The applicant contends that the Tribunal asked the wrong question when it stated that it did not find that there was an attack on Christians in the Negombo area[20].  The applicant asserts that he provided information that attacks do occur (including in that area).  The applicant contends that while numerous attacks occurred, the available material simply highlighted various attacks rather than provide a comprehensive account of every attack. 

   [20] CB 252 at [97]

5. I prefer the Minister’s submissions in relation to this ground.

6. I accept the Minister’s submission that the Tribunal's findings in respect of the independent country information before it were open to it on the material before it. Specifically, it was open to the Tribunal to find, and to give weight to the fact, that there are no references in either report by the evangelist church groups to any incidents of violence and intimidation occurring in the Negombo area[21] and that the vast majority of incidents recorded by evangelical groups have involved pastors[22].

   [21] CB 250 at [83]

   [22] CB 252 at [97]

7. The Tribunal's findings in respect of the applicant's claims to fear harm were consistent with this factual finding regarding the independent country information.

8. I therefore reject the applicant’s contention that the Tribunal misapprehended his claims, ignored relevant material, misdirected its inquiries, or reached mistaken conclusions.

9. To the extent that the applicant alleges that the Tribunal should have reached different factual conclusions in light of the independent country information, I accept that the applicant seeks to engage the Court in impermissible merits review.

10. To the extent that the applicant's outline of submissions at [11] argues that the report provided by the applicant “attempted to highlight the various attacks” rather than to provide a “comprehensive account of every attack” in the absence of any reference to attacks in Negombo, the Tribunal was entitled to find that there was no reference to any incidents of violence and intimidation occurring in Negombo.  It was also open to the Tribunal to use that finding as part of its assessment of whether there was a real chance that the applicant would be seriously harmed for a Convention reason. Ultimately, it was for the applicant to satisfy the Tribunal by way of evidence as to the risk of the harm claimed.  The Tribunal, as a matter of its jurisdiction, was not required to find that certain events had occurred, or that there was a real chance that similar events would occur in the future, because the evidence before it failed to mention such events.

11. The final particular to this ground alleges that the delegate determined that the applicant was not at risk as the delegate did not accept that the applicant had converted. This particular does not reveal any jurisdictional error.  The Tribunal was entitled to reach different conclusions to the delegate, provided that the dispositive issues before the Tribunal were raised with the applicant[23]. The Tribunal did raise all of the dispositive issues with the applicant in the context of a hearing under s.425 of the Migration Act 1958 (Cth). As such no jurisdictional error is demonstrated.

Ground 2 – Did the Tribunal err in relation to the consequences of the applicant deserting his ship in Australia?

[23] cf. SZBEL v Minister for Immigration (2006) 228 CLR 152

1. I accept the Minister’s submissions in relation to Ground 2. 

2. The second ground seeks to impugn the Tribunal's findings at [108][24] of its decision record.  There the Tribunal said:

   I said that if someone entered into a contract and then did not fulfil the contract that was a civil matter.  Any penalties involved as a consequence would be because of the actions taken by the individuals who did not fulfil the contract.  I said that any penalties imposed by the Courts for these breaches would not amount to persecution for a refugee Convention ground.  The applicant said that he faced persecution for reason of his religion.  He would face more problems if he went to prison.

   [24] CB 254

3. That paragraph was not part of the Tribunal's findings, but merely set out the Tribunal's summary of its discussion of the relevant issues with the applicant at the hearing.

4. The Tribunal's findings in respect of that exchange[25], being that any legal action taken against the applicant by his employer for deserting his employment would be legal action for breach of contract and would not be for a reason related to the Refugee Convention, nor would it engage Australia's complementary protection obligations, were open to it.

   [25] CB 254 at [114]–[115]; CB 256 at [131]

5. The particulars to this ground are not clearly related to the ground itself, or to the content of the paragraph of the Tribunal's decision cited in the ground.

6. As to the first particular, the Tribunal expressly found that the applicant would be able to practice his new religion without fear of serious harm.

7. As to the second particular, the Tribunal did not find that the applicant would be detained.

8. The applicant's outline of submissions develops the second particular (albeit only with respect to the complementary protection element).  Effectively, the applicant alleges that:

   a)“the applicant is likely to be detained to make inquiries as to his re-entry into Sri Lanka as a deportee”[26];

   b)“the Tribunal failed to focus on the likely outcome were the applicant to disclose that he had made a refugee claim and that the possible detention and questioning/interrogation of the applicant on return to Sri Lanka”[27]; and

   c)“the Tribunal did not consider the outcome of possible detention and interrogation, including whether the process of questioning may lead to the finding by the authorities that the applicant had made an application for refugee status, resulting in the applicant being imputed with an anti-government political opinion”[28].

   [26] applicant's outline of submissions at [15]

   [27] applicant's outline of submissions at [15]

   [28] applicant's outline of submissions at [15] and [22]

9. The Tribunal considered the applicant's claim that he would be “detained, interrogated and possibly even jailed” were he to be returned involuntarily[29].

   [29] CB 253 at [100]

10. The Tribunal expressly found that the applicant might be questioned by Sri Lankan authorities were he to be returned to Sri Lanka involuntarily.  The Tribunal did not find that the applicant would be “detained” or “interrogated”.  The Tribunal did not accept that mere questioning would amount to serious harm[30], or significant harm[31].

    [30] CB 254 at [113]

    [31] CB 257 at [133] read with [134]

11. I find that the Tribunal did consider this claim but rejected it at a factual level.  The Tribunal did not accept that the applicant would be detained or interrogated.

12. As to whether detention or interrogation would result in the applicant revealing that he had made a refugee claim, this question is foreclosed by the absence of any finding that the applicant would be detained or interrogated.

13. With respect to the questioning of the applicant, the Tribunal in any event did not accept that seeking protection in Australia contravenes Sri Lankan law[32].  This finding is repeated in respect of the Tribunal's consideration of the complementary protection criterion[33].

    [32] CB 254 at [113]

    [33] CB257 at [133] read with [134]

Ground 3 – did the Tribunal err in assessing the risk to the applicant as a returnee?

1. This ground appears to traverse some of the issues raised in the particulars to Ground 2.  The applicant submits that the Tribunal did not ask itself the correct question.  Whilst the applicant did not arrive in Australia via boat as an irregular maritime arrival but entered Australia using a Seamen’s Certificate of Discharge from a Singaporean oil tanker[34], nonetheless the applicant has applied for asylum in Australia and would be required to return to Sri Lanka as a failed asylum seeker.  Thus, the applicant would if deported be an involuntary returnee to Sri Lanka if he did not return voluntarily.

   [34] CB 61 at [18]–[19]

2. The applicant contends that even though the applicant may not have been involved in activities such that the applicant was of interest to the authorities prior to leaving Sri Lanka, the Tribunal failed to ask itself the correct question whether the applicant as an involuntary returnee would be found to have applied for refugee status in Australia and ask itself whether the applicant’s return would pose any risk for him.

3. The applicant complains that the Tribunal has not addressed what processes may be followed upon the applicant returning to Sri Lanka.  Without making findings the Tribunal is said to have proceeded to find that being questioned about the applicant’s deportation would not amount to serious harm.

4. The applicant contends that the Tribunal asked itself the incorrect question: that the applicant left Sri Lanka “legally” and thus (presumably) would not be asked any questions as to his activities overseas (even though he would be returning as an involuntary returnee[35] having made a refugee application in Australia).  The applicant contends that the Tribunal thereby did not ask any questions about the risk to him.

   [35] CB 257 at [132]–[133]

1. The Tribunal is also said to have misdirected its enquiries as to whether the questioning of the applicant could amount to serious harm[36].  The applicant submits that the correct question was not his involuntary return but whether the fact of his involuntary return posed any risk to him, such as an imputed political opinion.

   [36] CB 257 at [133]

2. In my opinion, the applicant’s contentions are not substantiated.  It may be accepted that if the applicant is deported from Australia to Sri Lanka the fact of that deportation will be known to the Sri Lankan authorities.  It may also be accepted (as the Tribunal appears to have done) that the applicant would in such circumstances be questioned on his arrival in Sri Lanka.  Beyond the mere likelihood of questioning, however, one enters the realm of speculation.  The applicant appears to assert that questioning can be equated with interrogation and that the Tribunal needed to consider whether that interrogation would amount to significant or serious harm.

3. However, as I have found above, the Tribunal did not find that the applicant would be “interrogated”.  Rather, it found that the applicant would be “questioned”.  Further, the Tribunal considered whether such questioning would amount to serious harm (under the refugee criterion) or significant harm (under the complementary protection criterion) and found that it would not.  I find that the Tribunal did not make any jurisdictional error in that consideration.

4. With respect to the first particular, the Tribunal did expressly assess whether the questioning would amount to serious harm or significant harm[37].

   [37] CB 254 at [113], and CB 257 at [133] read with [134]

5. With respect to the second particular, the Tribunal did consider whether the applicant, as an involuntary returnee, would be found to have applied for refugee status in Australia.  The Tribunal did not accept that seeking protection in Australia contravenes Sri Lankan law[38].

   [38] CB 254 at [109]–[113], and CB 257 at [132]–[133] read with [134]

6. With respect to the final particular, the Tribunal did consider whether the questioning would amount to serious harm.  No error in respect of that consideration is demonstrated, nor is any such error evident in light of the decision of the High Court in Minister for Immigration v WZAPN[39].

   [39] (2015) 89 ALJR 639

Ground 4 – did the Tribunal err in making a “relocation finding”?

1. In my opinion, while the Tribunal appears to have made a relocation finding at [72] of its reasons[40], that finding was not called for because the Tribunal had not found that the applicant would be at risk of serious or significant harm anywhere in Sri Lanka.  I accept the Minister’s submission that that the Tribunal's conclusion that the applicant was not a person to whom Australia owes protection obligations was based on its finding that there was not a real chance that the applicant would suffer serious harm, or that there was a real risk that the applicant will suffer significant harm, were he to return to Sri Lanka (including, but not limited to, his home region of Negombo)[41].

   [40] CB 249

   [41] see CB 250 at [83] and [85]; CB 252 at [96]–[97]; CB 256 at [129]

2. To the extent that the Tribunal made or purported to make an internal relocation finding, that a finding is in my opinion otiose.

3. There is no jurisdictional error evident in the Tribunal's finding that the applicant was not at risk of the requisite harm were he to return to Sri Lanka (including, but not limited to, his home region of Negombo).  That was sufficient for the Tribunal to complete the review.

4. Consequently, to the extent that there is any error in the Tribunal's internal relocation finding, it would not in my opinion go to jurisdiction.

5. If I were wrong in that finding, I would nevertheless also accept, that there is no error demonstrated with respect to the Tribunal's relocation finding[42].  The Tribunal clearly considered the applicant's personal circumstances and all of the matters raised by the applicant in considering the reasonableness of relocation[43].

   [42] as understood in light of the decision in SZATV v Minister for Immigration (2007) 233 CLR 18 and Minister for Immigration v SZSCA (2014) 254 CLR 317

   [43] see CB 249 at [70]–[72]

Conclusion

1. The applicant has failed to establish any jurisdictional error in the decision of the Tribunal.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 March 2016