AOX17 v Minister for Immigration and Border Protection

The delegate's decision 9 The delegate gave detailed reasons which, in summary, concluded that the appellant did not have an actual or imputed political profile. The delegate accepted that the appellant's cousin was a member of the LTTE who had died about 10 years previously, but found that the appellant did not have any close association with that cousin. The delegate accepted that the appellant had the same name as leader of the LTTE and that he had been subject to regular security checking by the authorities. However, he did not accept that the appellant's ill-treatment amounted to torture and found that he had been able to journey between places in the north and east of Sri Lanka regularly. The delegate found that the appellant had made no claims that he had been prevented from travelling to another location inside Sri Lanka. 10 The delegate found that because the appellant had not been detained (otherwise than for security checks) and had not been arrested or forced to undertake rehabilitation, the Sri Lankan authorities did not suspect that he had any links to the LTTE on the basis of his cousin's LTTE membership, or any of his other claims. The delegate referred to the change of Government in Sri Lanka that had occurred in 2015. He also noted that the appellant had obtained a passport in his own name and had travelled on it without problems. The delegate did not accept that, in the period between his return from Malaysia in August 2011 and when he left in October 2012, the appellant had been subjected to beatings by the Sri Lankan authorities. 11 The delegate accepted the appellant's claim to have converted to Christianity, but was not satisfied that he was a committed Christian who would engage in evangelical activities. The delegate found that the appellant was not a genuine convert and did not accept that his family members were ardent Hindus. 12 The delegate found that the appellant's claims that his wife had been called three times in July 2014 on the SIM card in his name to be without substance. He accepted that the appellant had participated in a Martyrs' Day event here in a private environment and that photographs may have been taken, but did not accept that any such photographs had been communicated to Sri Lankan authorities. 13 The delegate was not satisfied that the appellant would face a real chance of serious or significant harm from the Sri Lankan authorities or anyone else were he to return to Sri Lanka in the reasonably foreseeable future on the basis of his Tamil ethnicity alone, of being imputed to have links to the LTTE, because he had lived in the eastern province of Sri Lanka or for any other political reason. 14 The delegate dealt with the appellant's claims to fear harm as a returned asylum seeker. He dismissed those substantively for the reasons that the High Court found, subsequently, in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405, would not engage Australia's protection obligations in respect of failed seekers or other returnees to Sri Lanka. 15 The delegate found that the appellant would not engage in religious activities such, as proselytising or witnessing and that he was at low risk of harm on the basis of his "Christian interest". Accordingly, the delegate was not satisfied that Australia owed the appellant any protection obligations under either s 36(2)(a) or (aa).

The Authority's decision 16 The Minister referred the appellant's case to the Authority pursuant to s 473CA of the Act. The Authority conducted a review on the papers with no further information than had been before the delegate. 17 The Authority was not satisfied that the Sri Lankan Army or any other authority had any suspicion that the appellant was a member or supporter of the LTTE based only on his name or that they would consider his links to his cousin sufficient to impute to him membership of, or support for, the LTTE. The Authority accepted that the appellant had been subjected to regular identity checks and may have suffered mistreatment during those checks. It found, based on country information, that the security situation in the north and east of Sri Lanka had greatly improved since the time that the appellant had left. It found that, should he return to Sri Lanka, he may still be subject to random stops and identity checking, but that that action would not amount, of itself, to serious harm and that he had not previously been imputed with a profile of support for the LTTE due to his name and family links. It found there was no evidence before it that he would be more likely to be imputed with such support now and, therefore, he was not at risk of serious harm on the basis of any imputed support for the LTTE. It was not satisfied that the appellant was of any interest to the CID for any reason, including the alleged incident involving the SIM card, should he return to Sri Lanka. 18 It found that the appellant did not face a real chance of serious harm on the basis of his attendance at the Martyrs' Day commemoration or future commemorations. It found there was no evidence that the appellant's family had been approached, questioned or threatened, or that the authorities had shown any interest in his whereabouts. It was not satisfied that, based on all the evidence and country information, the appellant had a profile that would distinguish him as a person of interest to the Sri Lanka authorities at the time of its decision or in the reasonably foreseeable future, notwithstanding that it was satisfied that, in the past, he had been detained and mistreated on a number of occasions. This was because it found that the situation in Sri Lanka had eased and the appellant would no longer face the same level of military and or Government scrutiny and involvement in his life as in the past. It found that any difficulties or disadvantage he would suffer would not be of a level sufficient to constitute serious harm for the purposes of the Act. 19 Importantly, the Authority then considered the appellant's claim to fear harm in relation to his conversion to Christianity. It found that, contrary to the delegate's conclusion, the appellant was genuine in his beliefs and had a knowledge of the Bible and that the delegate had either misinterpreted or misunderstood his evidence. It found that, based on country information, there was little official discrimination on the basis of religion in Sri Lanka. The Authority noted a report by the Department of Foreign Affairs and Trade (DFAT) that most members of religious groups in Sri Lanka were able to practice their faith freely. The Authority referred to country information that the Christian minority in Sri Lanka had been the subject of violence, harassment and intimidation at the hand of Buddhist nationalists, noting that the DFAT had assessed that the risk of harassment or violence increased where practitioners attempted to proselytise or carry out "unethical conversions". It recorded that other country information suggested that, in multiple instances, police had failed to respond to, or were reluctant to arrest or pursue criminal cases against individuals instigating, attacks on minority religious sites and that prosecution of perpetrators was rare. 20 The Authority found that the appellant was a committed Christian, but also found there was no evidence that he would engage in conversion or proselytisation activities and took into account the country information to which it had referred. It was satisfied that there was no official discrimination against religious minorities in Sri Lanka, but accepted there was: … risk of harm at the hands of nationalist groups (both Buddhist and Hindu) but as the [appellant] would be a member of the congregation rather than a leader, I am not satisfied that he would face a chance of serious harm from these groups. 21 The Authority noted that the appellant feared harm from his local community and family, in the context of considering whether the appellant had a well-founded fear of persecution within the meaning of s 5J(1)(c) of the Act. That provision required the real chance to relate, relevantly, to all areas of the receiving country, being Sri Lanka. The Authority found that, even if it had accepted there was a real chance of the appellant being seriously harmed by his family or local community were he to return and live to practice his religion in his home area, there was no evidence, information or claim before it on which it was satisfied that his family or members of his local community would follow him to another area in Sri Lanka and continue to harm him. 22 The Authority was satisfied that the appellant would not face a real chance of serious harm outside of his local area, such as in Colombo or in the south of Sri Lanka. Like the delegate, the Authority rejected the appellant's claim to fear harm based on his return to Sri Lanka as a failed asylum seeker and concluded that he was not entitled to protection on any Refugees Convention ground. 23 The Authority then turned to considering the appellant's claims for complementary protection and came to the same conclusions about all his claims other than that based on his Christianity. 24 The Authority accepted that there was a real risk of the harm which the appellant feared from persons in the Hindu community who were hostile to conversion. It was satisfied that he might face significant hostility within his family and local community on that basis. The Authority found a real and not remote risk that that hostility could lead to physical violence, particularly if the appellant's family and local community tried to prevent him attending church and that that would constitute significant harm within the meaning of s 36(2)(aa), were he to return to live and practice his religion in his local area. 25 The Authority noted that s 36(2B) provided that the appellant would be deemed not to have a real risk of suffering significant harm in Sri Lanka if it would be reasonable for him to relocate to an area of the country where there would not be a real risk that he would suffer such harm, he could obtain, from an authority of the country, protection so that there would not be a real risk of suffering such harm or that the real risk was one faced by the population of the country generally, and not faced by the appellant personally. The Authority found that there was no general policy of discrimination or disadvantage for Christian converts in Sri Lanka and that the risk faced by the appellant was limited to his family and local community. It found there was no information before it that suggested the appellant would be known and, as a consequence, ostracised, harassed or attacked in communities outside his local area or pursued there by his family or local community. The Authority was satisfied that the appellant did not therefore face a real risk of significant harm in other parts of Sri Lanka for reason of his religion. It was satisfied that it would be reasonable for the appellant to relocate to an area outside his home area, such as Colombo, that he was educated and: … has held good jobs in Sri Lanka as well as working overseas and there is nothing before me to indicate that he would be unable to find work in any particular area of Sri Lanka. 26 The Authority found that Sri Lanka's Constitution allowed any citizen freedom of movement and choice of residence within Sri Lanka, there was no official restriction on internal relocation and Tamils were no longer required to register in the south where there were large Tamil and Muslim communities. It noted that many in those communities had chosen not to return to their former communities mainly due to better job prospects in the south. 27 The Authority found that the appellant's wife was aware of his conversion and he had not made any claims or provided evidence that she was not supportive of it. It found that there was nothing before it on which it could conclude that his wife would, or could, not accompany him if he were to relocate. In light of all of those matters, the Authority considered that it was reasonable for the appellant to relocate to an area removed from his home area. 28 Accordingly, the Authority was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm.

The proceeding before the trial judge 29 The appellant represented himself before the trial judge. The grounds stated in his application for review in the Federal Circuit Court were un-particularised. They asserted that the Authority had identified the wrong issues, asked the wrong questions, ignored relevant materials, relied on irrelevant materials and incorrectly interpreted or applied the law to the facts. The appellant told his Honour, as he told me, that he could not return home and disputed the merits of the Authority's decision. 30 The trial judge found that there was nothing in the material before him to indicate any jurisdictional error in the way in which the Authority had reached its decision. Accordingly, he dismissed the application with costs. I can see no error in what the trial judge did in the circumstances.

This appeal 31 The notice of appeal in this Court raised three formulaic grounds, namely that his Honour had erred in not finding that the Authority, first, had failed to take into account his claims and thereby denied him procedural fairness; secondly, had asked the wrong question when considering if the appellant faced a risk on the ground of his religion; and thirdly, had failed to find that the poor prison conditions that he would face on return amounted to significant harm. 32 The third ground raised the issue the subject of the proceedings then before the High Court in SZTAL 347 ALR 405. The third ground is now unarguable and I need not consider it further. 33 The appellant represented himself before me. He addressed a number of submissions about the merits of the Authority's decision and asserted that, he could not return home because of his fears. He pointed to the written submissions that counsel for the Minister made as to whether the Authority had dealt with the question of relocation after it had found, contrary to the delegate's decision, that the appellant was a genuine and committed Christian. The Minister's submissions had drawn attention to the decision of the Full Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 that had been given after the trial judge's decision and against which the Minister has now filed an application for special leave to appeal. 34 The appellant argued that the main reason that he feared returning was his name. He told me that he could not live in Colombo because it would not be safe and that the authorities would trace him and find him there. He said that the Authority was wrong to say that he had worked overseas or that he had had more than one job other than in his local area.

Consideration 35 The scheme of Pt 7AA of the Act is that the Minister must refer to the Authority a decision that falls within the definition (in s 473BB) of a fast track reviewable decision as soon as reasonably practical after such a decision is made. Relevantly, the Authority must, as the heading to s 473DB states, "review decisions on the papers", and only when there are exceptional circumstances is the Authority justified in giving consideration to any new information (see s 473DD). In this matter there was no new information before the Authority, so that it is not necessary to consider how Subdiv C of Div 3 of Pt 7AA operates in the circumstances. 36 As was clear from the post-interview submission by the solicitor migration agent acting for the appellant in the proceeding before the delegate, the question of his relocation was in issue. The basis on which the appellant said he could not relocate anywhere in Sri Lanka was because the authorities would find him and harass him or subject him to various aspects of the harms which he claimed to fear. The appellant also consistently asserted that he would not be able to be a Christian around his family or local community. But, he did not suggest in the written material before the delegate or the Authority that he would be unable to relocate elsewhere in Sri Lanka and freely practise his religion. The appellant's post-hearing submission to the delegate asserted that he would not be safe in "any other parts of Sri Lanka, including Colombo" only because of the harm he feared from the authorities. 37 In those circumstances, the Authority had material before it from which it was entitled to conclude that the appellant could relocate to other parts of Sri Lanka, where he could practise his religion without fear of suffering the risk of significant or substantial harm for the purposes of s 36(2)(a) or 36(2)(aa) of the Act. 38 The appellant argued that there was no evidence before the Authority that he had worked overseas or that he had held jobs other than as a storeman at the port authority in Sri Lanka. However, there was no evidence before the trial judge or on appeal of the interviews that the appellant gave at any stage of the processing of his claims for protection, including before the delegate, on which to found that argument. In his statement of claims attached to his application for a protection visa, the appellant had referred to two jobs he had held, the first between about 2005 and 2006 and the second from about 2008 to 2010 working as a storekeeper for the port authority, and to his educational qualifications. 39 There is no error of law in an administrative decision-maker simply making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. To the extent that the Authority made an error of fact about the appellant's employment (in other jobs or overseas), and I am not satisfied that there is any material before me to suggest that it did, such a finding was an error within its jurisdiction and not a jurisdictional error. 40 In all of the circumstances, I am not satisfied that the Authority committed any jurisdictional error or that the trial judge made an error in his conclusion the application before him should be dismissed.

Conclusion 41 For these reasons, the appeal must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.