AKX18 on behalf of ALA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 1240
•19 October 2023
FEDERAL COURT OF AUSTRALIA
AKX18 on behalf of ALA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1240
Appeal from: AKX18 on behalf of ALA18 & Ors v Minister for Immigration & Anor [2020] FCCA 894 File number: NSD 963 of 2020 Judgment of: DERRINGTON J Date of judgment: 19 October 2023 Catchwords: MIGRATION – Safe Haven Enterprise visa – claimed persecution in Sri Lanka by reason of connection with LTTE – application refused by Immigration Assessment Authority – Federal Circuit Court found no error in Authority’s decision – appeal dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 13 July 2023 Counsel for the Appellants: Mr G Foster Solicitor for the Appellants: Sentil Solicitor Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 963 of 2020 BETWEEN: ALA18
First Appellant
ALB18
Second Appellant
ALC18 (and others named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to 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
DERRINGTON J:
Introduction
The appellants appeal from a judgment of the Federal Circuit Court of Australia (as it then was known) delivered on 1 May 2020, by which the Court dismissed their application for judicial review of a decision of the Immigration Assessment Authority (Authority), which had in turn affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refusing to grant them Safe Haven Enterprise (Class XE) visas (SHEVs).
This appeal was heard together with the appeal in NSD960/2020, which was prosecuted by the appellants’ mother, AKY18, along with the appeal in NSD961/2020, which was prosecuted by the appellants’ father, AKX18. All three appeals were brought from judgments of the Federal Circuit Court dismissing applications for judicial review of decisions of the Authority and, to some extent, the issues in the appeals overlap.
It ought to be noted at the outset that, shortly after the appeal was commenced, the Authority filed a submitting notice in the proceeding, by which it submitted to any order that the Court may make, save as to costs. As a result, the Minister was the only respondent to play an active part in the progression of the appeal, and to appear at the final hearing.
Background
The appellants are citizens of Sri Lanka who arrived in Australia on 25 April 2013 with their parents. Each is a minor.
On 2 January 2017, they were included as secondary applicants in their parents’ applications for SHEVs. They did not raise any claims for protection of their own: each responded “No” on their SHEV application forms to the question of whether they were making their own claims for protection.
On 2 June 2017, a delegate of the Minister refused to grant SHEVs to the appellants’ parents. The delegate decided that the parents were not persons in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). It also decided that each of the appellants was a member of the family unit of their parents.
The appellants were accordingly found not to be entitled to visas themselves, as they did not meet the secondary criteria for the grant of those visas under Schedule 2 of the Migration Regulations 1994 (Cth).
The decision of the Authority
The Minister’s decision was referred to the Authority for review, in accordance with the Migration Act.
The Authority’s decision and reasons were published on 10 January 2018.
At the outset of its reasons, the Authority expressly listed the information that had been before it. This included, amongst other things, a submission made on behalf of the appellants and certain country information reports.
The Authority noted, at paragraph [8] of its reasons, that the appellants had not advanced protection claims in their SHEV applications. Their protection claims had instead been stated by their parents at their respective SHEV interviews.
The appellants’ claims were summarised by the Authority in its reasons. The following points are of foremost relevance for the present purposes:
(a)The appellants’ parents, AKX18 and AKY18, fear for the safety of each of the appellants if either or both of them should come to harm upon their return to Sri Lanka. Both parents fear that they are in danger of harm upon their return to the country.
(b)The appellants’ father, AKX18, fears harm on the basis of being a Tamil with Liberation Tigers of Tamil Eelam (LTTE) familial links who would be returning to Sri Lanka as a failed asylum seeker, perceived to have money. He also fears harm because the east of the country remains militarised. The appellants’ mother, AKY18, likewise fears harm on the basis of being a Tamil with LTTE familial links. It ought to be noted that these matters are addressed in more detail in the judgments delivered in NSD960/2020 and NSD961/2020.
(c)The four eldest appellants were with their parents at a bus stop in 2013 when their father was taken by police.
(d)The four eldest appellants departed Sri Lanka in 2013 with their parents, travelling first to India, where they boarded a boat to Australia.
(e)At his SHEV interview, AKX18 claimed that, if the appellants were now to return to Sri Lanka, their lives would be affected. He also claimed that the country was not completely safe. He was aware of media reporting of the abduction of a 13-year-old child in Sri Lanka, and he worried in particular about the safety of his teenage daughter.
(f)It was claimed that the appellants may experience mental health concerns if their parents face problems in Sri Lanka.
The Authority then proceeded to consider the claims in further detail.
It accepted that both of the appellants’ parents had familial links to the LTTE, but was not satisfied that either was of adverse concern to the authorities or was in danger of harm in Sri Lanka. Significant weight was placed on the parents’ ability to enter and exit Sri Lanka on multiple occasions, both during and after the civil war. Neither of the appellants’ parents had been charged with any offences, and the Authority did not accept that, because of their familial connections or for other reasons, they had been imputed with an LTTE profile or other profile of concern to the authorities. It concluded at paragraph [15] as follows:
15. … I do not accept that there is a real chance that the applicants’ parents would experience harm on return to Sri Lanka and it follows that I do not accept that there is a real chance that Applicants 1, 2, 3, 4 and 5 would experience harm or mental health concerns because of any problems their parents may face in Sri Lanka.
The Authority noted that the appellants were Tamils, but did not accept that there was a real chance of harm coming to them on that basis. It acknowledged that, during the civil war, many Tamils were detained under emergency regulations. Tamils from the east, in particular, reported being monitored, harassed, arrested and detained by security forces during the conflict and under the Rajapaksa government more generally. It was in this environment that the four eldest appellants had witnessed their father being taken from the bus stop in 2013. However, the Authority identified that, since the election of the Sirisena government in 2015, the security situation in Sri Lanka had improved. Monitoring and harassment of Tamils in day-to-day life had decreased significantly. An analysis of recent reports from a range of sources did not support any conclusion that Tamils were being systematically targeted, or being subjected to serious harm that would amount to persecution for being Tamil.
It was accepted by the Authority that the appellants’ parents may have had a subjective fear about the safety of their children in Sri Lanka, and that the appellants themselves may have had subjective fears about their safety — noting that four of them were present when their father was taken from the bus stop in 2013, and that the eldest was living in Sri Lanka in 2004 and 2005 when their relative was arrested and later killed, and the Criminal Investigation Department visited their home. However, the Authority pointed out, again, that there had since been a change in the security situation in Sri Lanka. Its findings, in full, were as follows:
18. I accept that their parents may have a subjective fear about the safety of their children in Sri Lanka. I accept that the children may also have a subjective fear about their safety, noting the older four applicants were present when their father was taken at the bus stop in 2013. Notwithstanding that she was only an infant at the time, I also note that Applicant 1 was living in Sri Lanka with her mother in 2004/2005 when their relative was arrested and later killed and the CID subsequently visited the family home. However I have already noted the change in the security situation in Sri Lanka since these events.
The Authority also noted AKX18’s concern about the general safety of the appellants and the report of the recent death of a teenage girl in Sri Lanka, which had caused him to be particularly concerned about his eldest daughter, who was now a teenager. In full, it stated as follows in relation to that point:
18. … I note their father’s concern about their general safety and the report of the recent death of a teenager in Sri Lanka and his particular concern for his eldest daughter who is now a teenager and I note that he has another young daughter who is eleven years of age. There is no other information before me about this death or the identity of the perpetrators. I accept that the applicants’ father would find such reports distressing and that criminal incidents occur in Sri Lanka, but I am not satisfied that there is more than a remote chance the applicants would be harmed in a similar manner. President Sirisena’s election manifesto committed to taking action to prevent the abuse of women and children, although DFAT stated in February 2017 that it was “too early to assess implementation of this commitment” and reported “there have been a number of allegations of sexual assaults and rape attributed to the Sri Lankan military in the north and east”.
The Authority accepted that the appellants would return to Sri Lanka as failed asylum seekers, but it pointed out that there was no indication on the evidence before it that this status would attract adverse attention. It accepted that there were reports of extended questioning, detention and mistreatment of returned asylum seekers who had an “actual or imputed profile of LTTE links”; however, the appellants were children and there was no information before it to indicate that they would be of concern to the authorities.
The ultimate conclusion of the Authority was expressed at paragraph [21] as follows:
21.I have not accepted that there is a real chance that the applicants’ parents would experience harm on return to Sri Lanka and that as a result Applicants 1, 2, 3, 4 and 5 would experience harm or mental health concerns because of any problems their parents may face in Sri Lanka. Considering the totality of the material before me, I am not satisfied that the applicants would be harmed on return to Sri Lanka for reason of being Tamils and failed asylum seekers.
The Authority was not satisfied that the appellants met the criteria for protection visas in either s 36(2)(a) or s 36(2)(aa) of the Migration Act. They did not meet the requirements necessary to fall within the s 5H(1) definition of “refugee”, nor were there substantial grounds for believing that there was a real risk that they would suffer “significant harm”, as defined in s 36(2A). It affirmed the delegate’s decision to refuse to grant SHEVs to the appellants.
The decision of the Federal Circuit Court
In the Federal Circuit Court, it was acknowledged by the learned primary judge that the appellants had advanced no written submissions. The appellants’ representative told the Court that their claims rested upon the outcome of their parents’ claims, as they are a family unit.
The single ground of appeal articulated in the appellants’ application to the Federal Circuit Court was as follows:
1.The [Authority] failed to consider a claim arising on the material before it.
Particulars
a. The Applicants’ mother (AKY18) claimed to fear harm in the form of sexual harassment and sexual assault at the hands of Sri Lankan authorities. This claim was considered by the [Authority] in making a decision in respect of AKY18.
b. In affirming the decision under review, the [Authority] did not consider the risk of harassment and sexual assault to the Applicants, and in particular, the female Applicants.
c. The review of the decision to refuse the Applicants’ visa application was conducted by … the same IAA Reviewer as the one who conducted the review of the decision to refuse AKY18’s visa application.
d. The matters raised in (a)-(b) were matters which arose squarely on the material before the IAA and were relevant to the assessment of whether the Applicants met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. Consequently, the IAA’s decision was affected by jurisdictional error.
This ground was rejected by the primary judge. His Honour found that the Authority had carefully considered the impact of the outcome of the parents’ claims on the claims made on behalf of the children. He then proceeded to deal with the claims regarding the risk of harassment and sexual assault to the appellants as follows, at paragraph [23] – [25] of his judgment:
23. In considering the claim of fear of sexual assault, particularly in relation to the teenage daughters, the Authority considered the relevant country information before it and came to a view that the chance of harm was remote. The Court is satisfied that, that was a conclusion that was reasonably open to the Authority, based on the information it had before it. There is nothing unreasonable, illogical or irrational in that conclusion.
24. The Court is satisfied that the Authority took into account all of the information it had before it, including information in relation to their mothers claims concerning her accepted sexual assault by Sri Lankan security authorities. The Authority was not satisfied that the mother’s subjective fears of similar assaults, in the future, could be objectively supported by the country information before the Authority.
25. The Court is not satisfied that the Authority overlooked any matter it was required to consider or that it failed to consider or intellectually engage with any aspect of a claim that was before it. No jurisdictional error made out.
His Honour accordingly dismissed the application.
The appeal to this Court
The notice of appeal to this Court was lodged in mid-2020. It stated that the appellants appealed from the whole of the judgment of the Court below, and that they relied on “the grounds and particulars being already stated in [their] FCC Application”. The grounds of appeal were identified as being that:
The Federal Circuit Court failed to find that the [Authority] declined its jurisdiction to us.
The Federal Circuit Court erred when it found the Authorities’ [sic] decision is not affected by jurisdictional error.
Unfortunately, the appellants’ written submissions in support of these grounds were not filed in accordance with the directions of the Court. Instead, they were filed belatedly, approximately ten days before the hearing, such that the Minister was not afforded sufficient time to prepare a written response.
In those written submissions, the focus remained on the risk of harassment and sexual assault to the appellants. The central contention was articulated as follows:
In affirming the decision under review, the [Authority] did not consider the risk of harassment and sexual assault to the Applicants, and in particular, the female Applicants.
This contention was said to arise from a claim made by the appellants’ father, AKX18, which was noted in the Authority’s reasons as follows:
At his SHEV interview the applicants’ father advanced that if they were to return now the applicants’ lives would be affected and that the country is not completely safe. He is aware of media reporting of the abduction of a 13 year old child in Sri Lanka and he worries in particular about the safety of his teenage daughter. The representative advanced that the applicant’s children may all experience mental health concerns if their parents face problems in Sri Lanka.
That claim was said to comprise at least two separate claims: the “potential of mental harm”, and the “possible implications upon the children of Sri Lanka not being completely safe especially of the teenage daughter”. The second of these claims was, in turn, said to raise a number of matters relating to the appellants’ safety, including the possibility that they would be killed, harassed, or sexually assaulted.
At the hearing of the present appeal, the first claim in relation to the potential of mental harm did not seem to be pursued. The key issue was therefore the overall safety of the children, and the risk that they would be killed, harassed, or sexually assaulted. It is appropriate to turn to consider this issue as, in effect, comprising the sole ground of appeal.
The safety of the appellants and the risk that they would be killed, harassed, or sexually assaulted
Before this Court, the appellants’ submissions on this issue proceeded essentially as follows:
(a)the Authority had noted AKX18’s concern about the appellants’ general safety and the report of the recent death of a teenager in Sri Lanka;
(b)the Authority then stated (at paragraph [18], as extracted above) that there was no other information before it about the death, or the identity of the perpetrators, and that it was not satisfied that there was more than a remote chance that the appellants would be harmed in a similar way;
(c)in so concluding, the Authority had clearly directed its assessment towards the death of the teenager, rather than making any comment on the overall safety of children in Sri Lanka and, in particular, the prevalence of harassment or sexual assault towards children;
(d)accordingly, the Authority failed to deal with or direct its mind towards the possibility that the appellants might be harassed or sexually assaulted;
(e)moreover, again at paragraph [18] of its reasons, the Authority specifically referred to material from the Department of Foreign Affairs and Trade (DFAT) that identified that it was still “too early to assess” the implementation of President Sirisena’s commitment to preventing the abuse of women and children, and that there were still allegations of sexual assaults and rape attributed to the Sri Lankan military in the north and east of the country;
(f)despite having recognised, in this way, that sexual assaults and rape were relevant matters to consider, the Authority failed to assess the risk of harassment or sexual assault towards children; and
(g)in failing to consider that risk, the Authority constructively failed to exercise its jurisdiction.
These submissions rely on an artificially narrow reading of the Authority’s reasons, which is unsustainable.
In the first place, the contention summarised at point (c) fails to account for the first part of paragraph [18] of the Authority’s reasons, as set out above. There, the Authority specifically noted that, notwithstanding the fact that the appellants and their parents might subjectively fear for their safety in Sri Lanka, the country information (which it had addressed earlier in its reasons) indicated broadly that there had been a “change in the security situation” in the country. It is therefore inaccurate to say, as the appellants have, that the Authority directed its assessment exclusively towards the risk of death and not other safety concerns. When the Authority’s reasons are viewed more holistically, it is apparent that it was of the view that the overall change in the security situation sufficed to dispel any general fears that the appellants or their parents might have about their safety in Sri Lanka.
In relation to the submissions to the effect that the Authority failed to consider the risk of harassment or sexual assault to children, as recounted as points (d) through (f), it is appropriate to make two observations.
First, the risk of harassment or sexual assault to children does not appear to have been advanced before the Authority as a matter directly relevant to the appellants’ applications for SHEVs. In the Court below, it seems to have been suggested that this concern arose, essentially, because issues about harassment and sexual assault were relevant to the appellants’ mother’s (that is, AKY18’s) application, which was dealt with by the same reviewer. In such circumstances, it is understandable why the Authority did not deal at great length with the concern in its decision with respect to the appellants. The suggestion from the appellants seems to be that the Authority ought, of its own volition, to have considered a particular issue arising in respect of AKY18 to arise equally in respect of the appellants and, on that basis, to have dealt with the issue in some degree of detail. That suggestion reflects a misunderstanding of the Authority’s role.
Secondly, and in any event, it does appear that the Authority made some findings as to the risk of harassment or sexual assault to children — albeit without using those specific terms. At paragraph [18] of its reasons, as extracted above, it considered AKX18’s concern about the general safety of his children, the report of the recent death of a teenager, and his particular concern for his eldest daughter. The Authority went on to state:
There is no other information before me about this death or the identity of the perpetrators. I accept that the applicants’ father would find such reports distressing and that criminal incidents occur in Sri Lanka, but I am not satisfied that there is more than a remote chance the applicants would be harmed in a similar manner.
(Emphasis added).
The appellants read the emphasised words “in a similar manner” as referring exclusively back to the death of the teenager, such that the Authority’s finding was merely that it was not satisfied that there was more than a remote chance that the appellants would be killed. However, although the phrasing is somewhat infelicitous, those words can reasonably be understood as stating a conclusion that the Authority was not satisfied that there was more than a remote chance that the appellants would be harmed in any way similar to those previously mentioned — including as a result of the “criminal incidents” occurring in Sri Lanka. As a general proposition, it is inappropriate to read the reasons of an administrative decision-maker, like the Authority, with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271 – 272. The appellants’ understanding of the relevant parts of paragraph [18] adopts precisely this overcritical approach.
On any view, the Authority was aware that the appellants’ father had claimed that there was a risk of general harm to the children consequent upon the conditions in Sri Lanka, and that he had indicated a particular concern about the safety of his eldest daughter. Despite the appellants not having raised these claims in their applications, they were addressed by the Authority. The Authority considered the material relevant to the claims, including the country information in relation to the circumstances in Sri Lanka. In this connection, it is worth pointing out that the Authority referred specifically at paragraph [18] of its reasons to a report from DFAT that addressed potential risks to women and mentioned allegations of sexual assaults and rape by the Sri Lankan military. The appellants have seized on this reference as a foundation for their contention that the Authority, whilst being aware that sexual assaults and rape were relevant matters to consider, conspicuously failed to assess the risk of harassment or sexual assault towards children. However, that is an unduly sceptical and pedantic approach to the point. When read in the full context of paragraph [18], it is sufficiently apparent that the Authority was merely making clear that it had taken this information from DFAT into account in concluding, in the preceding sentence, that it was “not satisfied that there is more than a remote chance the applicants would be harmed in a similar manner” — the most appropriate understanding of that conclusion having been considered previously in these reasons. The Authority was entitled to draw the conclusion that it did, notwithstanding the presence of some information before it that might have suggested a contrary conclusion.
Ultimately, there is no sufficient basis for the contention that the Authority failed to consider the risk of harassment or sexual assault towards children in Sri Lanka. The Authority did not constructively fail to exercise its jurisdiction.
It is apparent from paragraph [23] of the judgment of the Federal Circuit Court that the primary judge correctly understood the overall effect of paragraph [18] of the Authority’s reasons: that is, that the country information from DFAT pertained to the preceding conclusion that the chance of the appellants being harmed in a “similar manner” was “remote”.
At paragraph [24], his Honour properly found that the Authority took into account all of the information that it had before it, including information in relation to AKY18’s claims concerning her sexual assault by Sri Lankan authorities. As explained above, issues relating to harassment and sexual assault seemed only to be relevant to the appellants’ case because such issues arose in the context of AKY18’s case. They are addressed in more detail in the judgment of this Court delivered in respect of the related appeal in NSD960/2020.
It follows that this ground of appeal must fail. The appellants have not demonstrated any error in the Authority’s reasons, or in the conclusion of the primary judge upholding the Authority’s decision.
Conclusion
For the foregoing reasons, the appeal must be dismissed.
No reason was advanced as to why the usual order for costs should not be made in this case. The appellants should accordingly pay the Minister’s costs of the appeal.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate:
Dated: 19 October 2023
SCHEDULE OF PARTIES
NSD 963 of 2020 Appellants
Fourth Appellant:
ALD18
Fifth Appellant:
ALE18
0
2
2