SZWBS v Minister for Immigration
[2018] FCCA 1874
•4 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1874 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no matter of principle. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 474 |
| SZWBS v Minister for Immigration & Anor [2015] FCCA 531 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZWBS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 302 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 4 June 2018 |
| Date of Last Submission: | 4 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr C. Robertson of DLA Piper |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,250.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 302 of 2015
| SZWBS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 2 July 2012. On 22 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his race and past enmity with a government minister there. On 9 August 2013 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.
These proceedings are the second such proceedings relating to the applicant’s application before this Court. A previous decision of this Court dated 5 March 2015 (SZWBS v Minister for Immigration & Anor [2015] FCCA 531) dismissing the applicant’s application, was set aside by consent in the Federal Court of Australia on 9 July 2015 and the matter remitted to this Court for determination of the applicant’s application for judicial review.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
The applicant’s claims for protection were summarised by the Tribunal in its decision. As summarised by the Tribunal, the applicant relevantly made the following claims:
12.First, the applicant’s irregular maritime arrival interview dated 28 August 2012. The applicant states he is a Tamil Hindu from [city, region]. He lives near the [city] Temple complex. … In 2009, 2010 and again [in] 2011, Buddhist monks and their supporters interrupted Hindu religious festivals. In 2011 there was an incident during when a festival was interrupted by supporters of Government Minister [name]. About 500 supporters attacked worshippers, and everyone, including the applicant was severely beaten. He had to have treatment to his leg for over two and a half months. The applicant used to operate a shop near the temple.
13.Secondly, a statement of the applicant dated 4 November 2012. The applicant refers to the disruption of festivals in 2009 and 2010 by Sinhalese protesters and Buddhist priests. He says that during the 2010 festival he was slapped in the face by a police officer, arrested and then assaulted. After that festival concluded he and 24 others decided to organise a society to promote Hinduism. However the CID found out about the proposed society and told the applicant that he and the others would be arrested and accused of being LTTE supporters if the society proceeded. On the last day of the 2011 festival, the Minister, [name], attended with his body guards. When they [the bodyguards] attempted to confiscate temple items, including cows, the applicant intervened. He was assaulted by the bodyguards and could not walk for about two and a half months.
14.In April 2012 the temple decided to build a “Temple Gate Tower”. The day before the foundation ceremony was to take place Sinhalese supporters of [the Minister] came and said that the construction could not go ahead. One of those protestors was a brother of one of [the Minister’s] body guards. The applicant had an argument with him at the time. A further incident followed at the applicant’s shop two days later, resulting in a fight. [The bodyguard’s brother] left, but returned shortly afterwards with a group of armed men. The applicant was assaulted by the group while he tried to escape.
15.After this incident the applicant and his family decided he was no longer safe in Sri Lanka. He fears that if he returns to Sri Lanka he will be harmed by [the Minister’s] men, and arrested, tortured and killed by the CID for leaving Australia illegally. He says that the Sri Lankan authorities will not protect him and that relocation is not possible, as he is well known in the Sinhalese and Tamil communities.
The Tribunal’s decision and reasons
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 findings and reasons were summarised by the Minister in the following terms which I adopt:
11.The RRT found that in 2009 Sinhalese protestors threw stones at the applicant and hit him with sticks. It accepted there was another attack on the Hindu temple in 2010 but did not accept the applicant was arrested or assaulted.
12.In respect of the 2011 incident regarding [the Minister], the RRT accepted [the Minister] attended the Temple to seize livestock but did not accept that he assaulted the applicant. The RRT did not accept [the Minister] was present during a 2012 protest as claimed or that anybody associated with [the Minister] subsequently threatened the applicant.
13.The RRT considered whether the applicant would suffer harm due to his religion and noted country information that there is risk of harassment where practitioners attempt to carry out unethical conversions. It found the applicant did not attempt to do so, and the last assault on the applicant occurred in 2009. It did not accept the applicant would suffer serious harm on the basis of his religion.
14.In respect of the applicant’s race, the RRT cited country information and found that the applicant was not perceived as having links to the LTTE and did not accept that he would face serious harm because of his Tamil ethnicity per se.
15.In respect of the applicant’s illegal departure from Sri Lanka, the RRT accepted the applicant would be charged with an offence and detained for a few days, with a non-custodial penalty imposed. The RRT found this was the result of the non-discriminatory enforcement of a law of general application and thus not for a Convention reason. In respect [of the] applicant’s failed asylum seeker claim, the RRT accepted the applicant may be interviewed and investigated at the airport and detained for up to several days while this occurs but found this was not for a Convention reason.
16.The RRT did not accept the applicant would suffer significant harm for reasons of religion or race. The RRT also found that the period the applicant would spend in detention on remand and the imposition of a fine would not amount to significant harm under s.36(2A) of the Act. (References omitted)
PROCEEDINGS IN THIS COURT
In his further amended application filed 31 August 2015, the applicant alleged:
1.The Tribunal erred by considering the wrong issue.
Particulars
a.From [12] to [14] the applicant claims to be practising Hindu and an active member of his temple; and
b.At [43] the Tribunal finds “there is no evidence before me that the applicant attempted to proselytise or to carry out ‘unethical conversions’”, which is the wrong issue as it was not claimed by the applicant.
2.The Tribunal erred in failing to properly, genuinely and realistically consider whether the applicant will face serious or significant harm upon return to his local area.
a.At [63] the Tribunal found that “the applicant may be detained for a short period while initial investigations take place, before being released to return to his local area, and that further investigations and monitoring may follow”;
b.At [60] the Tribunal only considered CX299951, Sri Lankan Request: Questions arising from recent applications dated 29 November 2012 in relation to whether Sri Lankan [sic] who have been returned from Australia have been mistreated upon return to their places of residence; and
c.The Tribunal has not considered whether there are any reports or complaints since 29 November 2012.
3.The Tribunal erred in [63] in finding that investigation and monitoring upon returning to his local area was part of the non-discriminatory enforcement of the Immigrants and Emigrants Act as a law of general application.
4.The Tribunal erred at [66] by applying the wrong test by qualifying the complementary protection definition of significant harm with the conventions [sic] reasons of religion or race.
5.The Tribunal failed to comply with Ministerial direction Number 56 in contravention of s.499(2A) of the Act.
Particulars
a.At [10] the Tribunal noted Ministerial Direction no.56 made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration;
b.At [55] the Tribunal considered country information concerning the treatment of returnees; and
c.At [67] the Tribunal found that it [sic] a period in custody and/or the imposition of a fine does not amount to significant harm under s.36(2A). This finding was only made by considering country information and the Tribunal failed to consider PAM3 Complementary Protection Guidelines and therefore fell into jurisdictional error. (References omitted)
Ground 1
The relevance of the finding referred to in the first ground of the further amended application, that the applicant was not a proselytiser for Hinduism, arose out of and is apparent from country information quoted by the Tribunal at para.42 of its reasons. That was:
The extract I put to the applicant formed part of a larger component of the DFAT Report which states:
3.13 The Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism a ‘foremost place’. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment.
3.14 There is a place for religions other than Buddhism in public. Prominent Buddhist, Hindu, Muslim and Christian leaders are invited to all national functions, although only Buddhist rituals are performed at most events. Government dignitaries host and attend important events for different religions and Sri Lanka recognises religious holidays for all four religions.
3.15 School students are able to study their choice of Buddhist, Hindu, Muslim and Christian religions in most public and private schools, depending on the availability of teachers. There are also public schools for Hindu and Muslim students.
3.16 DFAT assesses there is little official discrimination on the basis of religion. There are no official laws or policies that discriminate on the basis of religion and no Government-sanctioned implementation of these laws and policies …
3.19 DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith unmolested. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion.
Clearly the Tribunal identified an exception to the general rule that persons were free to practise their religion in Sri Lanka; it found that in Sri Lanka individuals are able to practise their faith unmolested unless they attempted to proselytise or to carry out “unethical conversions”. When deciding whether the applicant was at risk of harm in Sri Lanka on religious grounds, the Tribunal concluded, perhaps not with pellucid clarity, that the applicant was not at such risk because he did not fall into the identified exception to the general rule. There was no error in the Tribunal’s approach to this issue.
Ground 2
The burden of the second ground of the further amended application was that the Tribunal did not turn its mind to whether there might have been country information which was more recent than the information on which it had relied.
A failure to consider the existence of certain information could only amount to a failure to properly, genuinely and realistically consider the risk of the applicant facing harm if that postulated information existed and the Tribunal’s decision had not been reached by reference to it. However, no attempt was made to show that any such information was available to the Tribunal. As the necessary factual foundation for this allegation has not been made out, so the allegation has not been proved.
Ground 3
The third ground of the further amended application invited the Court to reach a conclusion on the identified issue different from the one the Tribunal reached. That is to say, the applicant seeks by this ground to have the Court review the Tribunal’s fact finding on the issue. The Court has no power to do that and so this ground discloses no basis upon which the Tribunal’s decision should be set aside.
Ground 4
The allegation that the Tribunal erred by “qualifying the complementary protection definition of significant harm with the conventions [sic] reasons of religion or race” failed to recognise that all the Tribunal was doing at para.66 of its reasons was dealing with two particular aspects of the applicant’s claims in an orthodox manner. Specifically, the Tribunal relied on its earlier findings in the context of the applicant’s Convention-related claims that, relevantly, his claims to fear harm by reason of his race and religion were not well based factually. The Tribunal was entitled to reason in this way and it did not impermissibly confuse the Convention and complementary protection tests.
Ground 5
The final ground of the further amended application was a bald allegation that the Tribunal failed to consider the “Procedures Advice Manual 3 (“PAM3”): Refugee and Humanitarian – Protection Visas – Complementary Protection Guidelines” as required by Ministerial direction 56. The complementary protection guidelines were admitted as exhibit B in an A4 print form, I assume from the Department’s website, totalling 37 pages. They provide guidance on a number of issues relevant to claims for complementary protection.
Without a particularised allegation, and the present allegation is not particularised, it is not possible to conclude that the allegation is made out. In the context of the complementary protection guidelines being such a large document, the allegation is too general to have any meaningful substance. In the form presented to the Court, it is embarrassing. It is not proved.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 13 July 2018