FEDERAL COURT OF AUSTRALIA

DOC16 v Minister for Immigration and Border Protection [2018] FCA 943

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (“IAA”): DOC16 v Minister for Immigration & Anor [2017] FCCA 1519 (“FCCA judgment”). In its decision, the IAA affirmed a decision of a delegate of the first respondent (“Minister”) dated 18 August 2016 to refuse to grant the appellant a Safe Haven Enterprise (Class XE) (subclass 790) visa (“SHEV”).

2    The appellant relied on the following two grounds of appeal:

1    His Honour erred in finding that the [IAA] had not failed to consider a claim that the appellant feared harm based upon membership of the particular social group Christians who would seek assistance and are driven to establish a church in a majority non-Christian area of Sri Lanka.

2    His Honour ought to have found that the appellant had raised a claim for protection based upon membership of the particular social group Christians who would seek assistance and are driven to establish a church in a majority non-Christian area of Sri Lanka, which was not considered by the [IAA].

3    The single issue on the appeal is whether the appellant had made the claim identified in the grounds of appeal (“PSG claim”). The claim was said to have been made by the appellant’s migration agent at the end of the appellant’s interview with the Minister’s delegate on 23 May 2016. Counsel for the appellant, Mr Chia, emphasised that the PSG claim was not based on religion per se but on the fact of the appellant’s motivation to seek assistance to establish a church. Mr Chia argued that the appellant’s position was relevantly analogous to that of the successful appellant in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 214 CLR 496 (“Dranichnikov”).

4    Counsel for the Minister, Ms Graycar, contended that the FCCA judge did not err in finding that no such claim was made.

Visa application

5    The appellant is a non-citizen of Australia and a national of Sri Lanka. He arrived in Australia as an “unauthorised maritime arrival” on 8 November 2012, having left Sri Lanka in October 2012.

6    By letter dated 23 December 2015, the appellant was notified that the Minister had exercised his power to lift the bar in s 46A(1) of the Migration Act 1958 (Cth) (“Act”) preventing him from validly applying for a visa. On 3 February 2016 the appellant applied for a SHEV with the assistance of a registered migration agent.

7    On 23 May 2016, the appellant attended an interview with the Minister’s delegate and gave evidence with the assistance of an interpreter in the Tamil and English languages.

8    The delegate’s record of interview of the appellant on 23 May 2016 includes the following passages:

Interpreter:    …And I also like to further state that I faced a lot of problems because of wanting to build a church in our village and my main aim in supporting the TNA was for this cause.

Agent:    I think just to follow from what he said about the church. The main rule or the main reason for supporting the TNA I think is important because it might seem like we are raising new claims but that's not what I am trying to get at; based on what he had said today his whole testimony is that his goal in helping the election campaign was to establish a church. When I asked him more during the natural justice break whether family is still focused in getting the church up and running he said yes he had been talking with the priest etc. A person with such a motivation in a majority area where there are non Christians faces the chance of harmful probably for reasons as well. If you are driven to establish a church in a majority Hindu or a Buddhist area – we are talking of Batticaloa where he comes from the majority are Hindus – then there are possibilities he will be harmed for those reasons, for religious reasons or being driven to build a church. I also know that the two TNA members when they are in power they may not be as efficient as they were but in all likelihood they are not Christians, he confirmed that they are Hindus. There is Christian persecution happening in Sri Lanka and the National Evangelical Council has published reports. I have information on that which I will forward to the Department shortly.

Delegate:    Is that a new claim you are putting up now?

Agent:    It is based on what he has raised today. I was not intending to make such claims but based on what he had made today.

Delegate:    Just to clarify he is not raised that he has been persecuted because of his religion, that’s what I wanted to clarify.

Agent:    He was not persecuted but if he is driven to build a church and if that is what his motivation is. His knowledge in TNA … he’s clearly said I don’t have any interest in politics. … so his motivation to support the political Tamil party was to get some benefit the Christians in his area where he is living. So I think that's a very strong motivation which could attract adverse attention and that's living in this area by the Hindus, majority Hindus. If he was to move to another area it would be the majority Christians with such a motivation to establish a church.

Delegate:    Ok so I just want to clarify so what is the point you are trying to raise?

Agent:    It is that his motivation to support the political party the motivation is what is really important. What is his motivated if he goes back. He would be motivated to establish a Christian church. Whether he supports a political party or not is a different question. He may seek assistance, he may seek the priest’s assistance to establish a church. He said his wife is still talking to the priest. If someone is driven to establish a church in majority area where the majority is not Christian then that person could face harm. And for religious reasons that's a claim which ls clear on the facts. It's a religious based claim really.

Delegate:    So what he says if he goes back he will be facing religious based persecution is that right?

Agent:    He could face if he has such a desire to establish a church. If my client is driven to establish or build a church in an area where the majority is not Christian then country information states that if there is a minority group and they could face harm in certain parts. That the claim I am putting forward based on country information as well, so the fear is well-founded in that sense.

9    By letter dated 23 May 2016, the following additional submissions were relevantly made on the appellant’s behalf:

3.    … on the basis of the applicant’s oral testimony, it appeared that his motivation to get involved in politics was primarily to establish a church in the area he resided.

4.    … the applicant’s motivation to establish a church if accepted, would expose him to Convention related persecutory treatment if he is returned to Sri Lanka for the following reasons:

a.    Christians in Sri Lanka are a small minority.

b.    Minority religious groups have been and continue to be targeted by the Buddhists and other radicals from time to time.

c.    Though the applicant originates from a majority Tamil area, the majority are Hindus and if the applicant was to relocate elsewhere he would need to live amongst majority Sinhalese most of whom are Buddhists.

d.    Whilst religious persecution in Sri Lanka is perceived less severe than other forms of persecutory treatment, the applicant's “motivation” to establish a church was one of several reasons as to why the applicant faces a real chance of Convention related harm.

10    Excerpts of relevant country information “in support of the claim founded on religion” were also provided with the 23 May 2016 letter.

11    By letter dated 18 August 2016, the appellant was notified of the delegate’s decision to refuse his application for a SHEV. The delegate, in broad terms, accepted that the appellant had been detained for 55 days by the Sri Lankan Criminal Investigation Department (“CID”) in 1998 due to suspected links to the LTTE, as claimed, and that he had been involved in campaigning for the Tamil National Alliance party (“TNA”). However the delegate found that the appellant was not a “serious supporter” such that he would be targeted by Tamil Makkal Viduthalai Pulikal (“TMVP”) supporters, and did not give weight to a letter purporting to be from the TMVP office or other supporting documents. The delegate also found that the appellant had no familial links with the LTTE. The delegate concluded that the appellant would not face a real chance of persecution or a real risk of significant harm by reason of his support of the TNA, his race or ethnicity, religion or by reason of him being a failed asylum seeker.

12    The delegate noted, under the heading “Claims during the SHEV interview” that “[a]fter a break during the interview it was presented that the applicant would suffer religious based persecution for wanting to build a church in Sri Lanka”.

13    At para 54 of the delegate’s decision record, the delegate referred to the appellant’s fear of persecution due to “his religious beliefs of wanting to build a church in his hometown”.

IAA review

14    As the appellant was a “fast track applicant” and the decision of the delegate a “fast track reviewable decision”, the decision was referred by the Minister to the IAA for review on or about 19 August 2016.

15    Pursuant to para 20 of the IAA’s practice direction, the appellant’s agent provided written submissions to the IAA by email dated 25 September 2016. Mr Chia acknowledged that these submissions do not specifically refer to the PSG claim, but referred to a section in the submission headed “Failing to consider all of the claims and circumstances cumulatively”. While at first blush that section could refer to the PSG claim, on a fair reading of the document, I do not accept that the submission does refer to that matter. It asserts a failure by the delegate to review the applicant’s claims cumulatively for three reasons, namely: (1) insufficient exploration or assessment of the applicant’s familial connections to the LTTE; (2) the applicant’s deportation from Malaysia; and (3) the delegate’s acceptance that the applicant was a low level supporter of the TNA. I accept Ms Graycar’s submission that the absence of any reference to the PSG claim in the 25 September 2016 submission is an important indicator that no such claim was made.

16    On 27 September 2016, the agent also sent an email to the IAA forwarding with it “a hand written letter to the IAA along with an English translation of same”. This letter did not refer to the PSG claim.

17    On 8 November 2016, the IAA affirmed the delegate’s decision not to grant the appellant a SHEV.

IAA’s reasons

18    The IAA summarised the appellant’s claims for protection as follows:

The applicant relied on claims for protection which related to his Tamil race/ethnicity; his profile as a young Tamil male from a former LTTE controlled area; his imputed political opinion as a supporter of the Tamil National Alliance (TNA) and as a supporter of the Liberation Tigers of Tamil Eelam (LTTE); his religious beliefs and his fears of harm as a member of the particular social group of failed asylum seekers who have departed Sri Lanka illegally.

19    At para 9 of its decision record, the IAA set out a series of bullet points identifying elements of the appellant’s claims, including relevantly:

•    During his interview with the delegate, the applicant advanced a new claim that he would suffer religion-based persecution for wanting to build a church in Sri Lanka.

20    At paras 30 to 42 of its decision record, the IAA considered some of the appellant’s claims under the heading “Religion/imputed political opinion as a TNA supporter – fears of harm of the Karuna Group/Pillayan faction”.

21    Concerning the appellant’s religion, the IAA:

(1)    accepted that the appellant was a Catholic;

(2)    accepted that the appellant provided support to a TNA candidate during the 2012 elections as he had claimed, “albeit motivated by a desire to assist the candidate supportive of his desire to build the church [being a Christian church in his home town] rather than due to any other motivations concerning the TNA’s political program;

(3)    stated that the appellant had “advanced no other claims or evidence in relation to any activism as a Christian Catholic in his home area, and the extent of his claim in relation to religion [was] that he supported a TNA candidate who was sympathetic to the aspirations of Christians to build the church in the local area”; and

(4)    found, having regard to the country information provided by the appellant’s former representative in the submissions concerning religious-based persecution in Sri Lanka, there was nothing in the appellant’s profile in this regard that would result in adverse attention being directed towards the appellant for reasons of his Catholic religious faith.

22    In full, paras 40 to 42 of the IAA’s decision record state:

40. I have considered the claims made at interview and developed in subsequent submissions concerning the applicant facing harm on account of his religion, together with country information provided in support of this claim.

41. I am prepared to accept that the applicant’s motivations in relation to low-level assistance to the TNA he provided were driven by that party’s policies concerning building Christian churches, rather than the applicant having any other actual political motivations to do with the TNA. The applicant has advanced no other claims or evidence in relation to any activism as a Christian Catholic in his home area, and the extent of his claim in relation to religion is that he supported a TNA candidate who was sympathetic to the aspirations of Christians to build the church in the local area. I have already found that the applicant faces no risk of serious harm on account of his low-level assistance to the TNA during the September 2012 elections, and accordingly the applicant’s particular motivations for providing the assistance he did, does not influence this assessment. Having had regard to the country information provided by the applicant’s former representative in the submissions concerning religious-based persecution in Sri Lanka, there is nothing in the applicant’s profile in this regard that would result in adverse attention being directed towards the applicant for reasons of his Catholic Christian religious faith.

42. I accordingly find that by reference to the applicant’s claims and profile there is no real chance that he would face persecution for religious reasons were he to return to his home area of Sri Lanka.

23    Mr Chia submitted, by reference to para 41 of the IAA’s decision record that the IAA did not recognise the distinction made by the appellant’s migration agent at the delegate’s interview, between the past actions of the applicant in supporting the TNA candidate and the appellant’s future motivation to seek assistance to establish a church. As Mr Chia put it, the IAA did not consider “whether the appellant would, in fact, seek assistance to establish a church and whether that is a particular social group or whether he would be harmed for that reason”.

24    I accept that submission only in part. The IAA did not consider whether the appellant was a member of a particular social group comprising Christians who would seek assistance and are driven to establish a church in a majority non-Christian area of Sri Lanka. Nor did the IAA refer expressly to the claims made by the migration agent as to the appellant’s likely future motivation. However, the IAA decision record refers explicitly to considering “the claims made at interview and developed in subsequent submissions”. The “subsequent submissions” must refer to the 23 May 2016 letter. The central element of those submissions “concerning the applicant facing harm on account of his religion” was the appellant’s “motivation to establish a church”. In those submissions, that motivation was identified as a matter that would expose the appellant to persecutory treatment were he to return to Sri Lanka. In my view, the IAA’s references to the appellant’s “profile” relating to his religion encompass the appellant’s continuing motivation to establish a church in his home area.

25    Thus, I read the IAA’s statement as to the extent of the appellant’s claim in relation to religion, “that he supported a TNA candidate who was sympathetic to the aspirations of Christians to build the church in the local area”, to be incomplete but not indicative of a failure to address the claimed continuing motivation to establish a church in his home area as part of the claim to fear religious persecution.

FCCA judge’s reasons

26    The FCCA judge noted (at [8]) that the IAA had identified the appellant’s claims as including a claim that the appellant would suffer religion-based persecution for wanting to build a church in Sri Lanka.

27    At [12] to [30], his Honour considered the IAA’s assessment of the appellant’s claims under the heading “Imputed political opinion as LTTE supporter”, “Imputed political opinion as a TNA supporter” and “As a failed asylum seeker”.

28    At [38] and following, the FCCA judge addressed the contention that the IAA had failed to consider the PSG claim. At [38], his Honour set out an extract from the 23 May 2016 interview transcript, including the passage set out at [8] above. At [39], his Honour also set out an extract from the 23 May 2016 letter, mentioned at [9] above.

29    At [40], the FCCA judge concluded that the IAA had recognised a claim that the applicant would suffer religion-based persecution for supporting a candidate who was wanting to build a church in Sri Lanka, and made adverse findings dispositive of that claim.

30    At [41], the FCCA judge referred to Mr Chia’s submission, on behalf of the appellant, that the IAA had misunderstood the appellant’s claim as summarised by the IAA in the following bullet point at para 9 of its decision record:

•    During his interview with the delegate, the applicant advanced a new claim that he would suffer religion-based persecution for wanting to build a church in Sri Lanka.

31    His Honour then rejected the appellant’s contention, saying:

[42] The Authority’s reasons are not to be read with a keen eye for error. The Authority made express reference to taking into account the submissions made on behalf of the applicant and clearly took into account the applicant’s motivation and desire to assist a TNA candidate in the adverse findings made by the Authority.

[43] The Authority has clearly taken into account that claim in the reference to there being no activism as a Christian Catholic in his home area beyond his support of a TNA candidate whom the applicant was sympathetic because of the aspirations to build a church. I do not accept that the Authority misunderstood the applicant’s claim in the summary referred to above. The Authority made adverse findings, which subsumed that integer of the applicant’s claim in relation to his religious fears. There was no separate social group of Christians who would seek to establish a church that the applicant advanced as a claimed fear, and the Court finds no such claim arose on the material before the Authority.

[44] In relation to Ground 1, as there was no social group claim that arose on the material before the Authority, no jurisdictional error is made out

Failure to consider a claim

32    In WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] and [47], the Full Court said:

[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

33    In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], Allsop J (as his Honour then was) set out the following relevant principles:

The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

34    The appellant relied upon the following passage from the reasons of Gummow and Callinan JJ (with whom Hayne and Kirby JJ (separately) agreed) in Dranichnikov at [25]-[27]:

[25]    The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s75(v) of the Constitution. It is to that question that we will now turn.

[26]    At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.

[27]    The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov’s membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

Consideration

35    At the hearing, Mr Chia drew a parallel between the raised profile of Mr Dranichnikov which characterised the social group of which he claimed to be a member, and the raised profile that the appellant would have on account of his motivation to establish a church in Sri Lanka.

36    The appellant did not claim to fear harm by reason being a Christian per se. The appellant stated that it was his desire to build a church that had previously caused him problems. The agent extrapolated from this evidence to submit that the appellant was “driven” or “motivated” to establish a church and this was a matter which would lead him to face harm if he were to return to Sri Lanka.

37    Mr Chia argued that the appellant, by his agent, had advanced the PSG claim in the passage of the interview with the delegate set out at [8] above, and in the 23 May 2016 letter set out at [9] above.

38    Mr Chia argued that the FCCA judge erred in the first sentence of [43] of his Honour’s reasons in finding that the IAA had taken into account the claim identified at [41] of his Honour’s reasons because the IAA’s finding concerning “no activism” beyond support of the TNA candidate was a finding concerning the appellant’s past conduct. His argument was that, since the claim identified at [41] the appellant’s desire to build a church, which was a matter of relevance to the appellant’s ongoing conduct, it could not have been fully addressed by the IAA’s assessment of the appellant’s past conduct. I accept the logic of this submission.

39    In my view, there was an articulated claim that the appellant would be driven” or “motivated” to establish a church independent of any activities of the TNA. This was the claim, identified by the IAA at para 9 of its decision record and quoted at [41] of the FCCA judge’s reasons, that the applicant would suffer “religious based persecution for wanting to build a church in Sri Lanka”.

40    Accordingly, I do not accept the Minister’s submission that, to the extent that any claim was made about building a church, it was subsumed within the claim about the support of the TNA, and the explanation for the motivation for that support.

41    However, I also not accept that this claim is properly characterised as being based on membership of a particular social group. Rather, the argument put by the agent was as to the manner of the appellant’s likely expression of his Catholic faith. The argument was that the appellant would have a high profile because he would be driven to establish a church in a non-Christian area. This was identified as giving rise to a fear of religious based persecution. The IAA addressed the question of the appellant’s “profile” as a Catholic. In concluding that there was nothing in the applicant’s profile that would result in adverse attention being directed towards him because of his Catholic religious faith, the IAA considered the issue of that faith and, in my view, can be taken to have considered the appellant’s submissions concerning the likely manner of his expression of that faith, namely, that he was motivated or driven to seek to build a church.

42    Thus, although I do not agree with the first sentence of [43] of the FCCA judge’s reasons, his Honour was correct to conclude that the PSG claim was not made and that the IAA had not failed to consider the appellant’s claims.

43    Accordingly, the appeal must be dismissed. The appellant should pay the first respondent’s costs of the appeal.

Associate:

Dated:    22 June 2018