FEDERAL COURT OF AUSTRALIA

BLQ18 v Minister for Home Affairs [2019] FCA 2088

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Federal Circuit Court made on 27 May 2019 be set aside, and in lieu thereof, order that:

a)    A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 23 February 2018 (IAA reference IAA17/04018).

b)    A writ of mandamus issue requiring the Immigration Assessment Authority to reconsider and re-determine the application for review according to law.

c)    The first respondent pay the applicant’s costs of the application, as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court, dismissing an application for judicial review of a decision of the Immigration Assessment Authority that affirmed a decision of a delegate of the Minister to refuse the appellant a Safe Haven Enterprise Visa.

2    The appellant bases his appeal on three grounds, which coincide with grounds 1, 5 and 6 of the amended application before the Circuit Court. Grounds 1 and 5 relate to the way in which the Authority used certain country information it was provided with in making its decision. Ground 6 asserts that the Authority failed to properly consider the whole of the appellant’s claim in relation to fear of harm from members of Sri Lankan society.

Background

3    The appellant is of Tamil ethnicity and was born in the Mannar district in the Northern Province of Sri Lanka. At 12 years old the appellant left Sri Lanka for India as a refugee of the Sri Lankan civil war. Prior to leaving Sri Lanka, the appellant grew up in a Liberation Tigers of Tamil Eelam (LTTE) controlled area. During his childhood and prior to his escape from Sri Lanka he witnessed many traumatic events related to the civil war.

4    Upon arriving in India the appellant was placed in a refugee camp where he remained for 22 years, without citizenship rights. During this time he married a Tamil Christian and converted to evangelical Christianity from Hinduism. He also has two children from the marriage.

5    In 2012, the appellant and his family travelled by boat to Australia. The appellant and his wife later separated. The appellant applied for a protection visa on 30 August 2016. On 1 December 2017, a delegate of the Minister refused to grant the appellant a protection visa because he was not found to be a person to whom Australia owes protection obligations under the Migration Act 1958 (Cth).

The Authority’s Decision

6    On 5 December 2017, the decision of the delegate of the Minister was referred to the Authority for review. On 23 February 2018, the Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

7    The Authority accepted that the appellant had suffered the traumatic experiences he had detailed while growing up in Sri Lanka during the civil war. The Authority also accepted that he was a converted Pentecostal Christian who will likely continue to practice and preach his faith. The Authority noted that the appellant had submitted that if he was to evangelise on his return to Sri Lanka then there was a real risk he could be targeted by members of the community who oppose conversion or Christianity generally.

8    The Authority stated that having regard to all the review materials it was not satisfied that there was a real chance the appellant would face harm as a result of being a practising evangelical Christian who is also of Tamil ethnicity and comes from northern Sri Lanka.

9    The Authority went on to consider the claim of the appellant in relation to fearing harm as a returned asylum seeker. It accepted that if the appellant was returned to Sri Lanka he may be identified as a failed asylum seeker who departed Sri Lanka illegally. The Authority stated that it was not satisfied that there is a real chance the appellant will suffer serious harm on his return to Sri Lanka as a returning asylum seeker.

10    As a sub-point to this, the Authority assessed whether the appellant could face serious harm as a result of being imprisoned under the Sri Lankan immigration legislation. The Authority cited that it is an offence under the relevant Sri Lankan Act to depart from Sri Lanka other than via an official port of entry or exit and that the penalty can include imprisonment.

11    The Authority, referring to a 2017 DFAT Report (“DFAT Country Information Report: Sri Lanka”, 24 January 2017), stated (at [48] of its decision) that:

DFAT reports that according to the Sri Lankan Attorney General’s Department, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. Fines are issued to act as a deterrent towards departing illegally in the future. Where a person pleads guilty, they will be fined (which can be paid by instalments) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor, in which case they may sometimes need to wait until a family member comes to court to collect them. Conditions in relation to bail are rarely imposed and an accused will only need to return to court when the case against them is being heard.

12    The Authority also stated (at [50]):

If the applicant is charged for an illegal departure offence under the I&E Act and he pleads guilty, he will be fined and then released. If the applicant elects to plead not guilty to this offence, he would either be granted bail on personal surety or he may be required to have a family member act as guarantor. Although the applicant may not to be able to have a family member act as a guarantor given that he claims not to be in contact with his siblings in Sri Lanka, he has the option of providing a personal surety. There is no information before me to suggest that the applicant, having fled Sri Lanka with his family when he was a young child, was other than an ordinary passenger on such a venture. I am not satisfied that the applicant would be given a custodial sentence.

13    The paragraphs above (i.e. [48] and [50]) are the source of ground 1 of the appeal which will be discussed further below.

14    The Authority concluded its assessment of the returning asylum seeker claim, finding that it was not satisfied that there was a real chance of serious harm, persecution or systematic and discriminatory conduct.

15    On the totality of the appellant’s claims, the Authority found that the appellant did not meet the s 36(2)(a) requirements of the Act or the requirements for complementary protection under s 36(2)(aa).

The grounds of appeal

16    As stated above, the grounds of appeal by the appellant mirror the amended grounds of review advanced by him before the Circuit Court – on appeal, the appellant submits that the primary judge was in error in dismissing amended grounds 1, 5 and 6.

17    These grounds of appeal assert jurisdictional error in that the Authority:

(a)    failed to correctly understand country information which amounts to a constructive failure to consider the actual country information (ground 1);

(b)    constructively failed to consider a claim or country information or otherwise to fully discharge its function such that it amounts to a constructive failure to review (ground 5); and

(c)    improperly narrowed the claim such as to amount to a constructive failure to consider the whole of that claim (ground 6).

Principles

18    Where the Authority fails to make a finding on “a substantial clearly articulated argument relying upon established facts” that failure can amount to a constructive failure to exercise jurisdiction, i.e. a failure to conduct the review: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [63]. If the Authority makes an error of fact in misunderstanding or misconstruing a claim advanced by the visa applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error: NABE at [63].

19    A decision such as that required in this case under s 36(2)(a) of the Act requires, first, a correct understanding of the basis (or bases) on which the visa applicant says they have a fear of persecution in their country of nationality, and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well-founded: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [34]. Similarly, a statutory reviewer such as the Authority cannot discharge its statutory review task without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the reviewer an accurate picture of the ongoing circumstances on the ground: MZYTS at [38].

20    Nevertheless, in considering whether error is made out the Authority’s decision must be read beneficially, without a keen eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. The choice and interpretation of country information is a factual matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]. A judgment that the Authority has failed to consider or understand a claim is not to be made lightly: NABE at [68]. The appellant bears the onus in that regard: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]; MZYTS at [53].

21    Finally, to amount to jurisdictional error, any misstatement or misunderstanding must be one which, if not made, could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [45]. This question, of the materiality of any error on the part of the Authority, is a matter of fact on which the appellant bears the onus of proof: SZMTA at [46].

Ground 1: personal surety

22    The basis of the ground 1 of the appeal is an alleged mistake made by the Authority in its decision in understanding the 2017 DFAT Report which the appellant contends rises to jurisdictional error on the part of the Authority. The appellant submits as follows:

The IAA failed to comply with Direction No 56, or misconstrued or misunderstood critical country information and thereby failed to exercise jurisdiction, in that it treated the import of paragraph 5.22 of the 2017 DFAT Report as indicating that a person may have the option of providing a personal surety without the need for a family member to act as a guarantor whereas the correct information was that possibility for a family member being required to act as guarantor was not something over which the appellant had any choice, and was a potential additional requirement to obtain bail that he may not have been able to meet (and thus be exposed to the possibility of lengthy detention).

23    Relevantly paragraph 5.22 under the heading “Offences under the Immigrants and Emigrants Act” of the 2017 DFAT Report states:

5.22 … In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.

24    The appellant states that the above country information clearly indicates that it is the magistrate who will decide whether a person charged under the Sri Lankan Act is to be bailed on their own surety, or whether the person will be required to have a family member act as guarantor. That is plainly the correct reading of the country information.

25    The appellant submits that the Authority’s statement that if the appellant’s family was unwilling to provide a guarantee “he has the option of providing a personal surety” is clearly incorrect. It is said that that conclusion is at odds with the country information which does not say that a person in the appellant’s position would have such an option, but that the magistrate has the option of what condition, if any, to impose on bail.

26    In the Circuit Court the primary judge found (at [31]) that the statement of the Authority was a misstatement rather than a situation where the Authority did not understand the evidence. The primary judge was reasonably satisfied that the Authority understood that the release on bail on personal surety was a matter in the magistrate’s discretion and it was not a matter on which the appellant had a choice.

27    In finding against the appellant on this ground the primary judge acknowledged (at [32]) that if the appellant was not granted bail on his own personal surety, “he would be housed in poor and overcrowded and unsanitary conditions for an extended period of time.”

28    This ground of appeal/review must fail. The reason is that the Authority in paragraph [50], as quoted above at [12], stated that the appellant may either be granted bail on personal surety or “he may be required” to have a family member act as guarantor. This demonstrates that the Authority well understood that the appellant would not be given a choice; that he may be required to have a family member act as guarantor is clearly a reference to a requirement that the magistrate might impose. This wording is taken directly from the 2017 DFAT Report which the Authority referred to.

29    It is of course true that the following sentence in the Authority’s reasons states that although the appellant may not be able to have a family member act as a guarantor, “he has the option of providing a personal surety”. This must however be understood in the context of the 2017 DFAT Report’s statement that there are rarely any conditions imposed in relation to bail and, if there are, they are imposed on a discretionary basis. The Authority’s reasoning is thus to be understood as being that in the absence of a family member being able to act as guarantor, it is unlikely although possible that such a bail condition would be imposed as a matter of discretion.

30    This reading is supported by what the Authority stated in the first sentence of paragraph [52], namely:

There is a possibility that, if charged with an offence under the I&E Act, the applicant may be detained in remand for up to a few days if a magistrate is not available, and in circumstances where he does not have the support of any immediate family members in Sri Lanka.

31    The relevance of the appellant not having the support of any immediate family members in Sri Lanka is that he would not be able to secure a family guarantor for bail if required. It is thus apparent that the Authority appreciated that there is a risk that the appellant would be required to furnish a family member guarantor which could then result in him being detained in remand for up to a few days. That is inconsistent with the Authority’s earlier statement that it would be at the appellant’s option whether he would be required to furnish such a guarantor.

32    In short, without looking at the Authority’s reasons with too keen an eye for error, there has been no failure to correctly understand the country information such as to amount to a constructive failure to consider the actual country information. No jurisdictional error is disclosed.

33    In any event, if there is an error of understanding as the appellant submits, that error is of too little consequence to be material; if it had not been made there could not realistically have been a different outcome. The reason for that is that on the basis of the 2017 DFAT Report, properly understood, the risk of continued imprisonment for a significant period of time is insufficient to constitute “significant harm” (s 36(2)(aa) of the Act); it is too remote.

34    There was some debate before me whether materiality had been put in issue before the primary judge with regard to ground 1, but I understood that it had been. In any event, materiality was put in issue before me, albeit only during the course of oral argument, and it was not suggested that the appellant faced any relevant prejudice even if it had not previously been raised. Notwithstanding the appellant bearing the onus on materiality, the state of the authorities may be that materiality has to be formally placed in issue before that onus arises: SZMTA at [4] and [46]; MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [40].

Grounds 5 and 6: “unethical conversions” and fear from non-Hindus

35    Grounds 5 and 6 are most conveniently considered together.

36    Both these grounds concern the manner in which the Authority disposed of the appellant’s claim to protection based on his religious conversion. In that regard, he claimed that as a Pentecostal Christian he sees it as his fundamental duty to spread the gospel, and show others “the light of the Holy Spirit”. He also claimed that if he is to return to Sri Lanka he will be involved in evangelising, taking people to church and talking about God, and he fears that on that basis “he could be harmed by the Hindus or other Sinhala people who oppose conversion to Christianity”.

37    Thus, the appellant’s relevant claim to protection, separate from the wider claim which he made in relation to religious persecution as a Christian convert generally, has two elements. One is that as a consequence of his religious belief he will be involved in evangelising in the event that he is returned to Sri Lanka. The other is that as a consequence of such activity he faces harm from Hindus and “other Sinhala people”.

38    By ground 5, the appellant complains that the Authority erred by not dealing with the fear of harm that he faces as a consequence of evangelising or proselytising, but dealt with it only on the basis of the possibility of him being involved in “unethical conversions” or “forced conversions”.

39    By ground 6, the appellant complains that the Authority erred by dealing with the fear of harm that he faces from Hindus and by not dealing with the fear of harm that he faces from non-Hindus.

40    The whole of the appellant’s claimed protection based on religious persecution is dealt with under the heading “Religious conversion” in paragraphs [30] to [33] of the Authority’s decision. Paragraphs [30] and [31] are introductory and identify the nature of the appellant’s claims. Paragraph [32] is pivotal – it is the paragraph in which the Authority’s decision on this issue turns. That paragraph, broken up by me into numbered subparagraphs for ease of reference, is as follows:

(1)    As noted by DFAT there are no official laws or policies that discriminate on the basis of religion and the Sri Lankan Constitution provides for freedom of religion.

(2)    The majority of Tamils are Hindu, although many are Christian and Muslim. Religion plays a significant role in daily life in Sri Lanka and is directly linked to ethnicity: Sinhalese are mostly Buddhist and Tamils are mostly Hindu, and Christians are a minority of each.

(3)    The Sirisena Government has publicly said that it is committed to religious (as well as ethnic) reconciliation. DFAT is not aware of any reports of government sanctioned religious discrimination since the election of the Sirisena Government and has assessed that most members of religious groups in Sri Lanka are able to practice their faith unmolested.

(4)    However, DFAT notes that 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.

(5)    Consistent with this information, I note that there have been reports of hard-line Buddhist nationalist groups attacking Christians in Sri Lanka who seek to evangelise, particularly evangelical Christian groups, which are accused of forced conversions.

(6)    However, there is no information before me to suggest that the applicant has carried out, or will attempt to carry out ‘unethical conversion’.

(7)    Further, there are no reports in the review material to indicate that members of Sri Lanka’s Hindu community have attacked Christians engaging in evangelism or persons from the Tamil Hindu community who have converted to the Christian faith, or any reports indicating that attacks of this kind have occurred in the largely Tamil populated areas of the Northern Province.

(8)    Although there have been reports of tensions between the boarder [sic – broader?] Tamil population and Muslims, there have not been such reports in relation to the relationship between the larger Hindu Tamil population and Tamil Christians.

(9)    On DFAT’s assessment, marriage between Christians and Hindus is more common than any other kind of interfaith marriage in Sri Lanka, and Christians and Hindus live relatively peacefully in the north.

(10)    Further, DFAT assesses there is no law or Government policy in Sri Lanka which hinders access to state protection on the basis of religion or ethnicity, with all citizens having access to avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka.

(Footnotes omitted.)

41    Subparagraphs (1), (3) and (10) all deal with the subject of law and Government policy and conduct. Since the relevant grounds of appeal do not concern fears of religious persecution based on these matters, those subparagraphs can be put to one side.

42    It can be seen from subparagraph (4), in particular, and subparagraph (5), that the Authority, with reference to country information, considered two types of religious activity that might lead to harm. The one is proselytising or evangelising and the other is “unethical conversions” or “forced conversions”. Although the Authority recognised that the appellant’s claim is that as a consequence of his religious beliefs he will necessarily be involved in evangelising if he returns to Sri Lanka, the Authority concluded (in subparagraph (6)) that there was no evidence that the appellant would be involved in attempting to carry out “unethical conversion”. That finding is correct on the evidence, but it was never the appellant’s claim that he would be involved in such activity.

43    As indicated, the appellant’s claim, which the Authority accepted, was that he would be involved in evangelising. It seems to be implicit in this acceptance, rather than there being any explicit consideration of the point, that the Authority was satisfied that if the appellant was required to cease evangelising in order to avoid the harm that he fears, that would amount to an alteration of his religious beliefs or a cessation of involvement in the practice of his faith or otherwise be in conflict with a characteristic that is fundamental to his identity or conscience and thus be a “well-founded fear of persecution” by reason of his religion within the meaning of s 5J(1)(a) read with ss 5J(3)(a) and 5J(3)(c)(i) of the Act. In any event, save for subparagraph (7) of its decision, the harm that might result from evangelising was simply not considered by the Authority. This is an essential component of the appellant’s claim.

44    In subparagraph (7) the Authority considered the harm that might be faced by a Christian engaged in evangelising. This is where appeal ground 6 comes into play. That is because in subparagraph (7) the Authority considers the harm from Tamil Hindus that may be faced by a Christian engaged in evangelising. Subparagraphs (8) and (9) consider the same topic. There is no consideration of what harm an evangelising Christian would face from non-Hindus. In that regard, from subparagraph (2) it is clear that the appellant’s fear of harm from “other Sinhala people” should have been understood as a fear from, at least, Buddhists.

45    Thus, central components of the appellant’s claim were overlooked by the Authority in its consideration of his claim to religious persecution and its disposition of the claim in paragraph [32] of its decision: the risk of harm as a consequence of Christian evangelising from non-Hindus in Sri Lanka was simply not considered.

46    It was submitted on behalf of the Minister that if there was such an error by the Authority it was not material, and was thus not a jurisdictional error. In that regard, it was submitted that the relevant evidence is in paragraph [3.14] of the 2017 DFAT Report which states as follows:

DFAT assesses that most members of religious groups in Sri Lanka are able to practice their faith freely. However, the risk of harassment or violence increases where practitioners attempt to proselytise/convert others.

47    It was submitted that if this information was inserted as a finding into paragraph [32] the error that I have identified could make no difference to the ultimate decision by the Authority because the risk of harassment or violence to people who proselytise is too slight.

48    I do not accept that submission. Not all the evidence that was before the Authority is before me. For example, the Authority cites two ‘country information’ sources in support of what it says at subparagraph (5) of paragraph [32], i.e. that “there have been reports of hard-line Buddhist nationalist groups attacking Christians in Sri Lanka who seek to evangelise”. It is not stated how many such “reports” there have been, or how regularly there have been such attacks. It may be that the two cited sources, which are not before me, could lead to a conclusion in favour of the appellant on this part of his claim.

49    In the circumstances, I am satisfied that there was jurisdictional error by the Authority and that there was thus appealable error by the Circuit Court in relation to ground 5 and/or 6.

Conclusion

50    For the above reasons, the appeal succeeds and the matter is remitted to the Authority for reconsideration. The first respondent should pay the appellant’s costs.

Associate:

Dated:    12 December 2019