FEDERAL COURT OF AUSTRALIA

SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of the decision of the Refugee Review Tribunal on 16 July 2014 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: SZUXM v Minister for Immigration [2015] FCCA 2278.

The appellant’s claims

2    The appellant, who has been legally represented by the Refugee Advice & Casework Service throughout his dealings with the Department and before the Tribunal made claims for protection on a number of bases. He is a citizen of Sri Lanka of Sinhalese ethnicity who had been a Buddhist monk in Sri Lanka. For a time, he had been attached to a significant temple in that country to which prominent people in the government and civil society came to worship and seek spiritual guidance.

3    Between September 2009 until November 2010 the appellant conducted religious activities as a monk while staying in New Zealand before he returned to Sri Lanka. The appellant first arrived in Australia on 14 June 2012 as the holder of a tourist visa.

4    He claimed to fear persecution were he to return to Sri Lanka because he has now disrobed as a monk and no longer adheres to the vow of celibacy. He claimed that he had formed a relationship with a woman while he was in New Zealand. When he came to Australia he continued in that relationship, which was current at the time of the proceedings before the Tribunal. He claimed to fear serious harm also because:

    he had had a high profile because of his appearances on television and radio and extensive writings and publications that he had made while in Sri Lanka practising as a monk;

    he had had a high rank within the hierarchy of Buddhist monks;

    after disrobing he would no longer be protected, as he had been while a monk, from particular prominent individuals and other monks with whom he claimed to have disagreed or whose views he had opposed;

    if it were found out, were he to return to Sri Lanka, that he had been having a relationship with his female partner while he was still a Buddhist monk, he would face harm; and

    his partner’s parents had made threats against him, including to have him killed were he to return, and they were connected to prominent people in Sri Lanka.

The grounds of appeal

5    The essential basis of the appellant’s two grounds of appeal and of his earlier argument to the trial judge is that, having identified the appellant’s claim of a fear of persecution by reason of his membership of a particular social group, of disrobed Buddhist monks, the Tribunal, nonetheless, did not address whether there was a social group of disrobed Buddhist monks subsequently in its reasons.

6    The grounds in the notice of appeal were:

1.    His Honour fell into error when His Honour found that the Tribunal was not bound to consider claims that arose on the material before the Tribunal but not expressly raised by the professional adviser: SXUXM v Minister for Immigration & Border Protection & Anor [2015] FCCA 2278 at [20]-[23] and in failing to find that the Tribunal had been procedurally unfair.

Particulars

a.    The Tribunal did not make any assessment regarding social group.

b.    The Applicant had claimed membership of a particular social group with special attributes constituting a particular profile.

c.    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.

d.    The relationship with female was not a claim at the time of application to the delegate but clearly became a claim later.

e.    The Tribunal hearing did not provide opportunity to elaborate on the claims.

2.    His Honour fell into error when His Honour found that the Tribunal fell into error in failing to consider the claims advanced and there was constructive failure to exercise jurisdiction. His Honour found that claim of the Appellant’s claims were not made out: SXUXM v Minister for Immigration & Border Protection & Anor [2015] FCCA 2278 at [16]-[19].

Particulars

a.    His Honour should have found that the Tribunal did not address whether well-known and well published monk who preached religion would suffer harm (addressing the issue of disrobed class of monks).

b.    The Tribunal constructively failed to address whether monk with the Applicant’s particular profile entering into relationship with woman (and living with woman) would be persecuted.

c.    Limited the consideration to disrobed monks rather than the claims of being well known disrobed monk in relationship with woman.

The delegate’s decision

7    On 13 November 2012, the Service wrote to the delegate following the interview that the appellant had had with the delegate. The solicitor migration agent noted that the appellant’s partner’s parents had become aware of their daughter’s relationship with the appellant and did not approve of it because, while he was in New Zealand he was a monk and they had actively opposed that relationship since then. The Service submitted that if it became known through the parents that the appellant had had a romantic relationship with a woman whilst still a Buddhist monk, he would face further harm if he returned to Sri Lanka. The submission asserted that Buddhist monks were a particular social group and that disrobed Buddhist monks were also a particular social group. The submission argued that the appellant was particularly susceptible by reason of his previous prominence in Sri Lankan society and the fact of his disrobing, were that to become known, together with his other circumstances that I have described.

8    The delegate refused to grant the appellant a protection visa on 14 November 2012, after interviewing him.

The relevant claims in issue before the Tribunal

9    The appellant gave evidence to the Tribunal at a hearing in November 2013.

10    After the hearing on 25 November 2013, the Service wrote to the Tribunal and stated that the two Convention grounds on which the appellant had relied before the delegate were based on, first, his religion because of the imputed consequences due to his sur place act of disrobing and the societal perception in Sri Lanka that he had, thus, relinquished his Buddhist faith and, secondly, his membership of a particular social group of disrobed Buddhist monks. The submission went on to note that, as was evident at the hearing, the appellant’s claims had “evolved considerably in detail and sophistication since his first assessment by the Department”. The submission then identified additional claims that need not be considered for the purposes of these reasons.

The Tribunal’s decision

11    The Tribunal specifically identified in [33] of its reasons that the appellant had claimed to fear returning to Sri Lanka on the basis of his religion and “membership of a particular social group as a disrobed Buddhist monk”.

12    The Tribunal did not find credible much of what the appellant said in relation to his relevant claimed fears. It did accept that he had been a Buddhist monk for about 14 or 15 years and was prominent in that role, having appeared on radio and television and, for five years until 2009, been involved with the prominent temple to which I have referred. The Tribunal accepted that the appellant had lived and worked at the temple during that five-year period, meeting many prominent politicians and monks. In that role, he had travelled to and lived in New Zealand from 2009 to 2010 and then returned to Sri Lanka where he stayed until 2012 when he came here. The Tribunal found that between 2010 and 2012, the appellant lived in another monastery that cared for feeble and sick monks.

13    It found that once the appellant had come to Australia he decided no longer to be a Buddhist monk and had disrobed. However, it found that he continued to be a practising Buddhist, and that he had done so genuinely and not for the purpose of strengthening his claim for refugee status within the meaning of s 91R(3) of the Migration Act 1958 (Cth), which the Tribunal found did not apply to his circumstances. It also found that the appellant’s mother was ill and he wished to provide an income for her.

14    Nonetheless, the Tribunal next went on to find that the appellant had fabricated evidence about new claims that he had made to enhance his claim for protection following its rejection by the delegate. The Tribunal gave extensive reasons for these adverse credibility findings, concluding at [45] that it did not find the appellant to be “a credible, truthful and reliable witness”.

15    The Tribunal found that the appellant had exaggerated both his profile as a Buddhist monk at the prominent temple and, generally, the significance of his role in Sri Lanka. The Tribunal concluded that it did not accept as true that the appellant’s partner’s parents had made any threats to harm him or cause him to be harmed on return to Sri Lanka, or at all, and it did not accept that he would face difficulty because he had been in a relationship with his partner while still a Buddhist monk in New Zealand. The Tribunal’s reasons explained how it had explored this issue with the appellant, including the fact that he had not originally raised, in his pre-hearing statutory declaration, the threats that he alleged the parents had made to have him harmed or killed.

16    The Tribunal placed no weight on his female partner’s evidence to it, that had been submitted after the hearing, about details of the relationship, although it accepted that the relationship was genuine and existing. The Tribunal noted that the first time the appellant had revealed that he had entered into the relationship while still a monk in New Zealand was in the submission made to the delegate on 13 November 2012, following his interview. The Tribunal referred to the appellant’s evidence that he had not revealed this matter earlier because he said he was not aware that it was relevant. The Tribunal found that, after his return from New Zealand, he had had no problems in Sri Lanka because of the relationship and that:

rather, the problem occurred after he came to Australia as [his partner] is living with him and her parents have threatened them. When questioned that this contradicts his earlier claim that he would face difficulty generally because he had a relationship as a Buddhist monk, he confirmed, in somewhat confusing evidence, that it is only an issue now because she is living with him in Australia and the parents have threatened him.

17    The Tribunal went on to note that he had not raised in his interview with the Department his relationship with his partner while he was still a Buddhist monk but only did so in the post-interview submission. The Tribunal then said:

When questioned why he did not and that this may lead me to find he is not credible as to fearing harm on this basis; he said he could not remember and at the time it was not an issue.

18    The Tribunal referred to the Service’s post-hearing submission to it that the appellant had not raised this matter because he did not believe it was relevant. It concluded that if he had feared harm because he had the relationship with his female partner while he was still a Buddhist monk, he would have made that claim during the Departmental interview particularly because he had been asked, on numerous occasions then, whether he had anything else to add. It then found:

Together with his evidence at the Tribunal that it was not an issue at that time and it is only an issue because of the threats made by her parents and his lack of credibility, this leads me to find that he is not credible as to his claim to fear harm generally on the basis he had a relationship with [his partner] while still a Buddhist monk. It follows the Tribunal does not accept he is credible as to his fear of facing harm in the future because he had a relationship with [his partner] as a Buddhist monk and because he is now disrobed. (emphasis added)

19    This set of findings is the subject matter, principally, of ground 2 of the notice of appeal. The Tribunal then went on to consider whether the appellant had a well-founded fear of persecution in respect of his other Convention claims. It found (at [57]) that the appellant had not been truthful about his evidence that his partner’s parents had threatened to harm or kill him because of his relationship with their daughter, fearing harm generally because he had a relationship with his partner as a Buddhist monk, and that he had held a prominent position in Sri Lanka to the extent that he had claimed in the Tribunal. It then found at [58]:

It therefore follows that it does not accept that he will be harmed, threatened, killed, tortured, physically harassed, assaulted, shamed, rumours spread or face any difficulty on return to Sri Lanka in any manner he claims for these reasons, individually and cumulatively, and because he is now disrobed and does not have protection as a Buddhist monk at the hands of the general public, the parents of [his partner] or their associates in Sri Lanka, including law enforcement officers and [a large number of prominent people and others whom the Tribunal identified] for any of the reasons he claims. (emphasis added)

20    Therefore, the Tribunal found that it was not satisfied on the evidence that the appellant faced a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonably foreseeable future because of those matters individually or cumulatively “together with the fact that he is now a disrobed monk”. The Tribunal then discussed, over more than two pages of closely typed text, the situation confronting the appellant as a disrobed monk. It found that it was unable to be satisfied on the evidence that he would face serious harm if returned to Sri Lanka by reason of his previous activities, together with his being a disrobed monk. This was because he had been unable in his interview with the delegate to provide any details about any particular person or persons who had harmed him, beyond asserting generalised detail about those matters.

21    The Tribunal found that, based on country information, the appellant, as a disrobed monk, would face social stigma and social disgrace were he to return to Sri Lanka but did not accept that that would amount to serious harm within the meaning of s 91R(2) of the Act. It referred to the country information that over 700 monks, who had achieved higher ordination, had disrobed in 2011 and found that “if disrobed monks faced serious harm including economic harm as they were unable to work on return that there would be independent information to support this claim”.

22    The Tribunal concluded, on the basis of its findings about the appellant’s past and present profile, that it did not accept his claim that he would be in any different position on return to Sri Lanka than other monks who were higher ordained than he and disrobed in 2011, or before or after that time. It did not accept that he would be treated any differently to them on return to Sri Lanka and found that he could live and work in his birth name. It rejected his claims about other difficulties and persecutory activity, which he claimed he would suffer as a result of being disrobed. The Tribunal based its findings, as it said, “on the evidence obtained by the Tribunal, which deals directly with the situation of disrobed monks”, rather than accepting the appellant’s evidence on that point, concluding, at [70], that the appellant:

also referred to ex-monks’ situation and the difficulties they faced, which the Tribunal has considered. On the basis of this evidence submitted and any other evidence submitted, the Tribunal taking into account its own evidence, outlined above, is unable to find that there is a real chance that the [appellant] will face serious harm on return to Sri Lanka as a disrobed monk with his past profile. (emphasis added)

23    This material forms the basis of ground 1 of the notice of appeal.

The trial judge’s decision

24    The primary judge dealt with grounds of review that are now substantively reflected in the two grounds of appeal, and rejected them. He found that what is now ground 1 was not made out because the appellant had never claimed to fear persecution on the basis that he was a member of a particular social group wider than the category of “disrobed Buddhist monks”. The trial judge said that in the absence of compelling reasons to conclude otherwise, an applicant who was professionally represented before the Tribunal, as the appellant had been, should be assumed to advance the claims articulated by those representatives to the Tribunal expressly and not to rely on unarticulated or unpressed claims that may be present elsewhere in the materials.

25    His Honour found that the appellant had made a claim before the Tribunal that he was a member of a particular social group namely, “a group of member/members of the family of disrobed [de facto] married high-ranking Buddhist monk from Sri Lanka”, being the group that the appellant advanced before him, and which he repeated in substance in his written submissions before me.

26    His Honour found that, because the appellant had been represented before it, the Tribunal was entitled to infer that an informed decision had been made not to press any available, but unarticulated, claims and that there was nothing to suggest that the Tribunal had made a jurisdictional error in this respect.

27    His Honour rejected what is now ground 2 on the basis that the Tribunal had not been required to make a finding on how the appellant’s claimed former prominent position would impact on him, were he to return to Sri Lanka, because the Tribunal had not believed him about that claimed position and had rejected the factual foundation for those claims.

The appellant’s submissions

28    The appellant argued before me, in respect of his first ground of appeal, that the Tribunal and his Honour had erred in not dealing specifically with the characteristics of, and in failing to make findings about the existence of, a particular social group. The submissions ranged over a variety of potential characterisations of the claimed social group, including disrobed Buddhist monks and the more particular characterisation (set out at [25] above) in the written submissions, to which the trial judge referred. The appellant argued that, having accepted some of his claims about his status in Sri Lanka when a monk, the Tribunal did not then deal with his claim to be a member of the social group comprising those persons.

29    In support of the second ground, he argued that the stigma attached to his disrobing and the circumstances of his being in a relationship with his partner, both while a monk and thereafter, were live issues that the Tribunal had failed to consider in relation to what would happen to him on his return to Sri Lanka. The appellant argued that the Tribunal had constructively failed to exercise its jurisdiction because it did not deal with his claimed risk of harm, having regard to his former prominence and the circumstances of what had happened to him in New Zealand and here in respect of his relationship with his partner.

Consideration

30    In my opinion, ground 1 must fail. I can see no error in the trial judge’s rejection of the appellant’s argument which substantively was repeated to me.

31    As appears from my recitation of its findings above, the Tribunal proceeded on the basis that there was a social group of disrobed Buddhist monks and that the appellant was a member of that group. The Tribunal repeatedly referred to “disrobed monks” and “disrobed Buddhist monks”. While it is true it did not add the description “particular social group” before those expressions, it had identified, at [33] of its reasons, the claim that the appellant feared persecution as a member of a particular social group as a disrobed Buddhist monk.

32    Importantly, in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400-401 [36] Gleeson CJ, Gummow and Kirby JJ said that:

the determination of whether a group falls within the definition of “particular social group” in Art 1a(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.

33    The Tribunal identified the relevant characteristic of the social group, as the appellant had claimed it to be that its members had been Buddhist monks who had subsequently disrobed. That was common to all members of the group and it distinguished those persons from the society at large. The Tribunal then considered the credibility of the appellant’s claim that that social group faced persecution in Sri Lanka of the nature and kind that he alleged. It concluded that while there was both social stigma and social disgrace suffered by members of the social group of disrobed Buddhist monks, the harm from those consequences was not serious harm for the purposes of s 91R(2) of the Act.

34    The Tribunal then went on to consider the particular circumstances which the appellant said would attach to him, as an individual member of that social group. It rejected his claims that his own circumstances created a well-founded fear that he would face persecution by reason of his membership of the particular social group of disrobed Buddhist monks, coupled with his own individual circumstances, were he to return to Sri Lanka. The Tribunal did so conventionally and in accordance with law. I am not able to detect any jurisdictional error in its treatment of the claims that the appellant made on this basis or in the Tribunal’s findings rejecting those claims.

35    No doubt, if the Tribunal had accepted the appellant’s claims, he may have obtained a favourable finding as to Australia’s protection obligations to him. The flaw in the appellant’s argument before his Honour and before me is that the Tribunal simply did not believe his evidence as to the matters that would place him, so he claimed, at risk. Those matters included his claims about the consequences that would attach to him from his relationship with his female partner, both now and while he was a monk in New Zealand, if it became known, together with threats from her parents.

36    The Tribunal manifestly provided the appellant with a proper opportunity to elaborate on his claims. He was represented by professional, experienced solicitors and migration agents at all stages in the administrative process. There is no substance in the particular to ground 1 that he was not given any proper opportunity to put that claim.

37    In addition, in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] Greenwood J said, and I agree, that:

Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.

38    In any event, I am satisfied that the Tribunal not only identified the social group of which the appellant claimed to be a member, it also dealt with that social group throughout its reasons with a consciousness of its characteristics and features. No jurisdictional error has been identified in the Tribunal’s reasoning process or decision on ground 1.

39    The second ground of appeal must also fail. The factual foundation for it was rejected by the Tribunal at [53] and [54] of its reasons. In essence, it found that the parents of the appellant’s partner had not made any threats to or about him and that, therefore, he had not established that he would face serious harm because he would be exposed as a disrobed Buddhist monk who had had a relationship with a female while a practising monk or subsequently. The Tribunal considered that claim, dealt with the evidence and rejected the substantive argument by making factual findings. There was no constructive or other failure to exercise its jurisdiction.

40    I am not satisfied that there was any jurisdictional error in the way in which the Tribunal reviewed the appellant’s claim that he would face persecution by reason of his relationship with his female partner and what he claimed the parents of his partner had asserted.

Conclusion

41    For these reasons, I am of opinion that the appeal must be dismissed with costs.

Associate:

Dated:    2 February 2016