FEDERAL COURT OF AUSTRALIA
 FCA 1779
NSD 1092 of 2018
Date of judgment:
Immigrants and Emigrants Act, Sri Lanka
New South Wales
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Solicitor for the Appellant:
Sentil Solicitor & Barrister
Solicitor for the First Respondent:
Ms C Saunders of DLA Piper Australia
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice, save as to costs
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs in the sum of $2300.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an appeal from the decision of the Federal Circuit Court to refuse the appellant Constitutional writ relief in respect of the decision of the Refugee Review Tribunal made on 13 January 2015 to affirm the decision of the Minister’s delegate made on 9 August 2013 to refuse to grant the appellant a protection visa: SZWBS v Minister for Immigration  FCCA 1874.
2 The appellant is a citizen of Sri Lanka who applied for a protection visa in November 2012. Relevantly, he claimed to fear persecution for reasons of first, his religion, as a Tamil Hindu, by Sinhalese and other Buddhists based on his activities as an active member of a famous temple complex in Sri Lanka near where he lived and had a shop, and, secondly, because, as a failed asylum seeker, he faced a real chance of persecution or significant harm if he were returned to Sri Lanka so as to engage Australia’s protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth). It is not necessary to deal with the appellant’s other claims because of the way in which he has, through his counsel, confined his grounds of appeal from the decision of the trial judge.
3 The appellant claimed that Buddhist monks and their supporters interrupted Hindu religious festivals at the temple at which he generally attended in 2009, 2010 and 2011. He claimed that, in the last incident in 2011, the festival had been interrupted by supporters of a Minister in the Sri Lankan government, Mervyn Silva, who verbally abused the Hindu worshippers, including the appellant, and that he had been severely beaten. He claimed that this conflict occurred because the Buddhists objected to a Hindu practice of animal sacrifice at the temple that had been practiced at the temple in the past and was proposed to be practiced on the occasions in 2009, 2010 and 2011. He claimed that, during the 2010 festival, he had been slapped in the face by police, arrested, and then assaulted, and that after the festival concluded he and 24 others had decided to organise a society to promote Hinduism. He claimed that the Central Investigation Department (CID), of the Sri Lankan Police Service had found out about the proposed activity and had told him that he and the others would be arrested and accused of being Liberation Tigers of Tamil Eelam (LTTE) supporters if the society proceeded.
4 He claimed that, on the last day of the 2011 festival, Minister Silva attended with his bodyguards and attempted to confiscate temple items, including cows, when the appellant intervened. He claimed that the Minister’s bodyguards had assaulted him and that he could not walk for about two and a half months thereafter.
5 He claimed that in April 2012, the temple decided to build a temple gate tower, but the day before the foundation ceremony was scheduled to occur, Sinhalese supporters of Minister Silva came and said that the construction could not go ahead. He claimed that one of the supporters was a brother of one of the Minister’s bodyguards with whom the appellant had had an argument at the time. He claimed that two days later, this person came to his shop and a fight ensued after which the person left, but returned shortly afterwards with a group of armed men. The appellant claimed he had been assaulted by the group while he tried to escape and that after the incident he and his family decided that he was no longer safe in Sri Lanka. The appellant claimed to fear that he would be harmed by Minister Silva’s men, and arrested, tortured and killed by the CID for leaving Sri Lanka for Australia illegally were he to return. He claimed that the Sri Lankan authorities would not protect him and that relocation was not possible for him because he was well known in the Sinhalese and Tamil communities.
The delegate’s decision
6 The delegate accepted that the appellant was an active worshipper at the temple and that he and his family, including his grandfather, had been involved in temple activities as he claimed. However, she did not accept that the appellant had a specific profile that would cause him to be targeted because of his temple activities. The delegate did not accept his claims about the incidents involving the brother of the Minister’s bodyguard and that, accordingly, it found that the appellant was not of interest to the Minister. She found that the appellant’s account of the formation of a society to promote Hinduism was completely implausible and that he had never been a person of ongoing interest to Sri Lankan authorities.
The proceeding in the Tribunal
7 During the proceeding in the Tribunal, the appellant was represented by a migration agent who made submissions, including one lengthy one on 9 January 2015, shortly before the Tribunal made its decision. The Tribunal found that during the 2009 festival, Sinhalese protesters threw stones at the appellant and hit him with sticks, as a result of which he suffered scarring on his head.
8 However, it found that the appellant had not been arrested or assaulted during the 2010 festival and that he had not been assaulted during the 2011 festival. The Tribunal also found that while a temple gate tower was to be built in 2012, in which the appellant and his colleagues would participate, Minister Silva was not present on 3 June 2012 as the appellant had claimed. The Tribunal also did not accept that the brother of the bodyguard had threatened to kill the appellant or had gone to his shop at any time with a group of armed men to attack him.
9 The Tribunal noted that the appellant’s submissions had identified that he had feared persecution by Sri Lankan authorities and groups opposed to Tamil autonomy in Sri Lanka for cumulative reasons of religion, based on him being a Hindu, and Hinduism, the temple practice of animal sacrifice and, relevantly, among the other claims, of being a member of a particular social group of illegal immigrants from Sri Lanka and a failed asylum seeker returning to Sri Lanka.
10 The Tribunal dealt with the appellant’s claims based on religion and being a failed asylum seeker as follows. First, it rejected the appellant’s submission that it was likely that, by reason of him and his family being well known in the area of the temple, he would have a particular profile among the community, and would have been easily identified as connected to the temple and at risk because of the intense opposition to animal sacrifice that occurred during the festival and his participation in festival activities.
11 The Tribunal noted that during the hearing, it had asked the appellant and his representative to comment on the Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka dated 3 October 2014 (the 2014 DFAT report), that stated that there was little official discrimination on the basis of religion and that most members of religious groups in Sri Lanka were able to practice their faith unmolested. It noted that the appellant had asserted that when he read the news on the internet he still saw many reports of attacks or destruction of non-Buddhist temples, and he asserted that the major goal of the government was to turn Sri Lanka into a Buddhist country.
12 The Tribunal then extracted a number of paragraphs from the 2014 DFAT report that indicated that the Sri Lankan constitution guaranteed freedom of religion and belief while giving Buddhism a “foremost place”, but its laws penalised any attacks on places of worship or religious objects with fines and a maximum of two years imprisonment. The 2014 DFAT report noted that there was a place for religion other than Buddhism in public life and that school students and others were able to study their choice of religions in most public and private schools, depending on the availability of teachers and that there were public schools for Hindu and Muslim students.
13 The Tribunal quoted and adopted extracts from the 2014 DFAT report. DFAT had assessed that there was little official discrimination on the basis of religion and no official policy or law that discriminated on the basis of religion and no government sanctioned implementation of any such policy and law. Relevantly, it found:
DFAT assesses that most members of religious groups in Sri Lanka are able to practice 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.
14 The Tribunal then found that the appellant was an active member of his temple. However, it also found that there was no evidence before it that he had attempted to proselytise or carry out “unethical conversions”. It repeated its finding that the most recent assault on the appellant had occurred in 2009 and did not consider that there was a real chance of a further incident in the foreseeable future. The Tribunal rejected as implausible the appellant’s submission that animal rights groups would target him if he returned. Accordingly, it did not accept that the appellant would face serious harm if he returned to Sri Lanka on account of being an active member of his local temple or because he was a member of a group that supported temple activities.
15 When it dealt with the failed asylum seeker claim, the Tribunal noted that the 2014 DFAT report had described the way in which involuntary returnees, including those on charter flights from Australia, came to be processed by the Department of Immigration and Emigration, State Intelligence Service and CID at Colombo airport. The 2014 DFAT report noted that the processing typically took several hours due to the manual nature of the interview processes and staffing constraints at the airport, and assessed that Sri Lankan returnees were treated according to standard procedures, regardless of their ethnicity and religion and that Tamil, Sinhalese and Muslim returnees were treated in the same way on arrival in Sri Lanka and were not subjected to any mistreatment during their processing at the airport.
16 The Tribunal drew on a 2013 decision of the United Kingdom Upper Tribunal, that found that there were no detention facilities at the airport, so that, although individuals might be interviewed there by the security forces, the Sri Lankan authorities were then aiming to remove returnees relatively quickly out of the airport and get them on their way to their home areas so as to verify that they would arrive there soon afterwards. The Tribunal found that DFAT had noted that it had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka and that, based on an earlier November 2012 DFAT report, DFAT had said that Sri Lankans who had been returned from Australia had not made any complaints of mistreatment at the airport or on return to their place of residence.
17 The Tribunal then set out passages, again, from the 2014 DFAT report which assessed the risk of a failed asylum seeker being tortured or mistreated when returned. The 2014 DFAT report stated that DFAT was aware of a small number of allegations of torture and mistreatment in such cases, but said that verification of the allegations was complicated by the fact that many had been made anonymously and often to third parties. It noted that, by October 2014, there had been thousands of asylum seekers who had been returned to Sri Lanka since 2009, including from Australia, but there had been relatively few allegations of torture or mistreatment. It assessed that the risk of torture or mistreatment for the great majority of returnees was low, including those suspected of offences under the Immigrants and Emigrants Act of Sri Lanka. It accepted that the risk of torture or mistreatment for returnees was greater for those, unlike the appellant, suspected of committing serious crimes.
18 The Tribunal found that the independent evidence before it indicated that it was possible, perhaps likely, that the appellant would be interviewed and investigated at the airport by Sri Lankan authorities and that local police stations might be contacted. It found that Canadian country information suggested that that process could take between 24 and 48 hours. It noted that the 2013 Upper Tribunal decision suggested that returnees moved swiftly through the airport, with enquiries being made when a returnee gets to their home area. On that basis, the Tribunal found that it was unlikely that the appellant would be detained for more than several days while investigations were carried out.
19 The Tribunal said that it had considered criticisms made of the DFAT reports by the appellant’s migration agent in the submissions of 9 January 2015. The Tribunal noted that the migration agent had submitted that there had been a growing body of evidence that failed asylum seekers were tortured on return and that more recent independent reports suggested that the risk of torture for Sri Lankans returning from the United Kingdom, voluntarily or otherwise, had not diminished and might be increasing. However, the Tribunal found:
The evidence before me does not suggest, and I do not find, that there is a real chance that the applicant will be detained for a long period on his return or tortured by the Sri Lankan authorities. In summary, based on the information provided by DFAT, I find that it is possible, perhaps likely, that the applicant may be detained for a short period while investigations take place, before being released to return to his local area, and that further investigations and monitoring may follow. I do not accept that one or more of the five Convention reasons, including membership of a particular social group of those who were failed asylum seekers, will be the essential and significant reason for the applicant being detained if he returns to Sri Lanka. Being detained on return, and subsequently investigated, monitored and possibly fined is the result of the non-discriminatory enforcement of a law of general application. (emphasis added)
20 The Tribunal concluded that, having considered each of the appellant’s claims of serious harm amounting to persecution both individually and cumulatively, including those that I have not set out above, he did not face a real chance of serious harm for any of the reasons claimed or cumulatively or arising on the evidence. Therefore it was not satisfied that he had a well-founded fear of persecution for a Convention reason in Sri Lanka then or in the reasonably foreseeable future. Accordingly, the Tribunal was not satisfied that the appellant was a refugee and, in light of its findings on that issue, it also found that Australia did not owe him complementary protection obligations either.
The proceeding before the trial judge
21 The application before the trial judge had five grounds. However, only grounds one and two below were the subject of the appellant’s arguments before me. Ground one asserted that the Tribunal had erred by considering the wrong issue in making its findings on the appellant’s claims to be a refugee by reason of his religion. The appellant claimed that the Tribunal had applied the wrong test because it had focussed only on there being no evidence before it that the appellant had attempted to proselytise or carry out “unethical conversions”, when he had made no such claim.
22 The second ground was that the Tribunal erred in failing to properly, genuinely and realistically consider whether the appellant would face serious or significant harm upon his return to his local area by reason of his being a failed asylum seeker. He argued that the Tribunal only considered the November 2012 DFAT report on the topic of mistreatment of returned asylum seekers and had not looked at, or considered whether there had been, any report of complaints since that time.
23 The trial judge rejected the first ground. He referred to the Tribunal’s reasons, at which it had set out extracts from the 2014 DFAT report, describing the treatment of religious observance in Sri Lanka. His Honour noted that the Tribunal had identified an exception to the general position that persons were free to practice their religion in Sri Lanka in the case of those who attempted to proselytise or carry out “unethical conversions”. He found that the Tribunal had concluded “perhaps not with pellucid clarity” that the appellant was not at such risk because he did not fall into the identified exception to the general position and that there was no error in the Tribunal’s approach to this issue.
24 His Honour identified the way in which the appellant, who represented himself in the court below, had put the second ground, namely, that the Tribunal did not turn its mind to whether there might have been country information that was more recent than the information on which it relied. He said that 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 appellant facing harm if the postulated information existed and the Tribunal’s decision had not been reached by reference to it. He said that no attempt had been made to show that any such information was available to the Tribunal and, therefore, the necessary factual substratum for the allegation had not been made out.
25 Counsel for the appellant today argued that the Tribunal, when rejecting the appellant’s claims to fear harm for reasons of his religion, focussed only on the question whether he was a proselytiser or a person who carried out “unethical conversions”, causing the Tribunal to ask the wrong question. The appellant contended that the Tribunal had failed to recognise and then evaluate other risks that might be faced by the appellant amounting to persecution and that the Tribunal had wrongly confined itself to the narrow question of proselytising or carrying out “unethical conversions”.
26 Secondly, he argued that the Tribunal had misapplied the test in considering the failed asylum seeker claim. He contended that the correct test was not whether he would be detained for more than several days, but whether or not he had a well-founded fear of persecution arising from his return so that the Tribunal had fallen into jurisdictional error.
27 I reject ground one. In my opinion, the Tribunal, contrary to the judge’s finding that its reasoning was not pellucid, clearly found that there was no real chance in the foreseeable future that the appellant would face harm for reasons of his religion were he to return to Sri Lanka.
28 The Tribunal found that based on the 2014 DFAT report, there was little official discrimination on the basis of religion and that most members of religious groups in Sri Lanka were able to practice their faith unmolested, unless those persons proselytised or carried out “unethical conversions”. And, because there was no evidence that the appellant fell into the latter category, there was not a real chance that he would be persecuted for reasons of his religion were he to return to Sri Lanka.
29 In my opinion, there is no substance in the appellant’s contention that the Tribunal made any jurisdictional error in the way in which it approached and evaluated the question whether he faced such a real chance of persecution. The Tribunal applied the correct test in Art 1A(2) of the Refugees Convention as set out in  of its reasons.
30 Ground two, likewise, is without substance. The Tribunal found that the way in which the appellant would be processed on his return to Sri Lanka as a failed asylum seeker, based on the country information in the DFAT reports, would involve him being detained on return and subsequently investigated, monitored and possibly fined as a result of the non-discriminatory enforcement of a law of general application. The Tribunal considered all of the country information to which it referred, including the most up-to-date 2014 DFAT report and the submissions made by the appellant’s migration agent. At no point in the argument before me did counsel for the appellant suggest that there was anything in the submissions made to the Tribunal by his migration agent that it was bound, but failed, to take into account that could have produced any different result. Indeed, counsel did not refer at all to anything in those submissions that might have supported the argument that the Tribunal somehow erred in having regard to statements in the November 2012 DFAT report.
31 The Minister contended that, to the extent that the argument that the appellant’s submissions today went outside ground two in the court below, which the notice of appeal repeated, the appellant needed leave, but added that, in any event, the ground had no merit. I would not have granted leave if the argument on ground two extended beyond what was raised below, but I think that the argument fell within the ground.
32 However, in any event, the attack on the Tribunal’s reasons was hopeless because of the decision in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610. French CJ, Kiefel, Bell and Keane JJ held, in respect of the application of s 91R(2)(a) of the Act (which was in force when the Tribunal made its decision) to the treatment of failed Sri Lanka asylum seekers who were returned from Australia (at 254 CLR 627 to 628  and 629-630 -):
…in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty constitutes “serious harm” for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.
It is also noteworthy that s 91R(2)(b) lists “significant physical harassment” as an instance of serious harm. Temporary detentions of a person fall naturally within the description of physical harassment, and so readily within s 91R(2)(b). Because that is so, it is unnecessary to engage in the awkward shoehorning of cases of harassment involving episodes of temporary detention into s 91R(2)(a) in order to give effect to Australia’s obligations under the Convention. Moreover, to treat any detention as falling within s 91R(2)(a) rather than s 91R(2)(b) would deprive s 91R(2)(b) of much of the operation it could be expected to have. Further, a determination whether temporary detention amounts to significant physical harassment obviously requires a decision-maker to consider the gravity and frequency of the incidents in which harassment is said to have occurred: that task is indisputably one of fact and degree. It may be said in a given case that the risk of physical harassment involving detention is so severe as to be properly described as a threat to the life or liberty of a person. But to say that is to acknowledge, emphatically, that the question is a matter of fact and degree dependent upon the circumstances of the detention.
Considerations derived from the context in which s 91R emerged, and is required to operate, support the conclusion that the application of s 91R(2)(a) for the purposes of s 91R(1)(b) requires an evaluation of the likely circumstances of the loss of liberty feared by the claimant. (emphasis in original)
33 Their Honours held that where a local law of general application, such as the Immigrants and Emigrants Act, that has a legitimate object for the country concerned, is applied in a non-discriminatory way to all persons, it is open to the Tribunal to find, as it did in that case (and equally too in the appellant’s case before me), that the consequent likely treatment of the returnee is not persecution for any Refugee Convention reason: WZAPN 254 CLR at 637 . That is because any person who departed Sri Lanka illegally would breach its law and would face the same procedures and risk of a penalty on return, regardless of the reason for the illegal departure. And the Tribunal here found that the law would not be applied to the appellant differentially because he was a failed asylum seeker.
34 In my opinion, the Tribunal’s finding that the appellant’s likely detention on his return to Sri Lanka as a failed asylum seeker and being subsequently investigated, monitored and possibly fined was the result of the non-discriminatory enforcement of a law of general application, namely, the Immigrants and Emigrants Act of Sri Lanka, which criminalised illegal departure of every Sri Lankan, regardless of his or her motivations. The Tribunal also found for similar reasons that those circumstances did not amount to significant harm within the meaning of s 36(2A) of the Act, relevantly because such treatment would not be cruel or inhuman or degrading treatment or punishment. For these reasons, I am satisfied that there is no substance in the second ground.
35 Accordingly, the appeal must be dismissed with costs.
Dated: 16 November 2018