AWG18 v Minister for Home Affairs
[2018] FCCA 2150
•30 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2150 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| First Applicant: | AWG18 |
| Second Applicant: | AWG18 AS LITIGATION GUARDIAN FOR AWI18 |
| Third Applicant: | AWG18 AS LITIGATION GUARDIAN FOR AXO18 |
| Fourth Applicant: | AXQ18 |
| First Respondent: Second Respondent: | MINISTER FOR HOME AFFAIRS IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 194 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 30 July 2018 |
| Date of Last Submission: | 30 July 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 30 July 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Angus Francis Lawyers |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
The Application filed 27 February 2018 as amended on 16 May 2018 be dismissed.
The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 194 of 2018
| AWG18 |
First Applicant
| AWG18 AS LITIGATION GUARDIAN FOR AWI18 |
Second Applicant
| AWG18 AS LITIGATION GUARDIAN FOR AXO18 |
Third Applicant
| AXQ18 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The Applicant AWG18 arrived in this country as an unauthorised maritime arrival in 2013. Present with him was his wife and daughter. Since their arrival they have had another child. The wife and two daughters are also Applicants in this matter, but they claim protection as members of AWG18’s family rather than having made protection claims of their own.
The Applicant was interviewed on his arrival in 2013. He then was given the ability to apply for a Safe Haven Enterprise Visa (“SHEV”). He did so by lodging his forms plus a written statement in December 2016. He was interviewed in late 2017 and in October 2017 the delegate declined to issue AWG18 and his wife and two children Protection visas or Safe Haven Enterprise Visas.
The matter, being a fast-tracked decision, was immediately referred to the Immigration Assessment Authority (“the IAA”). The IAA in looking at the matters summarised the Applicants’ claims as these:
a)If forced to return to Sri Lanka Applicant 1 fears he will be arrested, detained, tortured and even killed by the Sri Lankan authorities.
b)He believes the authorities already have information about him and his family and the problems he had with the Sri Lankan army officers.
c)He fears he will be targeted as the authorities believe he has ties with the Liberation Tigers of Tamil Eelam, LTTE.
d)He also particularly fears that his wife and daughters will be at risk of physical and sexual assault by the authorities as they are vulnerable females.
e)The authorities continued to look for him after they left Sri Lanka and questioned his mother and parents-in-law.
f)If forced to return to Sri Lanka he will be a failed asylum seeker. He believes that this will make him a target by the Sri Lankan authorities.
g)In post-SHEV interviews submissions his then representative also submitted that he faces a real chance of serious harm on return to Sri Lanka on the basis of a number of grounds viewed individually or cumulatively being:
h)His ethnicity as a Tamil;
i)His imputed political opinion as having links to the LTTE and the Sri Lankan authorities having detained, questioned, tortured and physically and sexually assaulted him due to his suspicions of his links to the LTTE which arose as he was travelling back and forth from areas that were previously controlled by the LTTE for work; and
j)His membership of the particular social groups of Tamil failed asylum seekers and Tamils who leave Sri Lanka illegally.
Those claims were thoroughly looked at by the IAA. In the end the IAA did not accept the credibility of the Applicant and for those reasons the IAA went through all of the matters that they needed to come up with a conclusion that the decision ought be affirmed.
Usually I would go through with greater detail what the findings were because those findings usually are matters that inform the grounds of review. However, in this case, the point is actually a very narrow one. There is an acceptance that in all other respects the IAA have conducted the review that they are statutorily mandated to do in a proper manner.
There are three grounds for review. Those grounds are as follows:
1. The second respondent has erred by failing to address an integer of the applicants’ claims.
Particulars
a. The first, second, third and fourth applicants were included in the application for a protection visa (Court Book (CB) 100).
b. The first applicant claimed he feared serious harm to his wife and daughters (the second, third and fourth applicants) as Tamil females and provided evidence in support of this claim in the applicants’ legal submissions to the delegate of the first respondent under the heading “Fear of persecution faced on the basis of being Tamil women in Sri Lanka” (CB 324-325, see also CB345).
c. The delegate of the first respondent dealt with the above claim of the first applicant, as it related to the second, third and fourth applicants, although stating that the second, third and fourth applicants had not “actually” made claims of their own (CB368).
d. In doing so, the delegate accepted evidence of ongoing violence, rape and harassment by security forces against Tamil women in the north and east of the country (although incorrectly dismissing the claim on the basis that the violence was not on behalf of the state) (CB369-370).
e. The second respondent failed to adequately address the applicants’ above claim that the second, third and fourth applicants faced a real risk of serious harm due to a combination of their Tamil ethnicity and gender:
i. The second respondent failed to accurately state the integer of the above claim, referring to the second, third and fourth applicants simply as “vulnerable females” (as opposed to vulnerable Tamil females) (CB400).
ii. Contrary to the above claim, as acknowledged and assessed by the delegate of the first respondent, and despite the second respondent assessing separately the second, third and fourth applicants’ risk of harm under the heading “vulnerability due to gender” (see further below, CB412), the second respondent found that the second, third and fourth applicants made “no protection claims of their own”, and thus “would not face any adverse action of any kind from the Sri Lankan authorities … as Tamils from the east” (CB441, [44]).
iii. The second respondent deals separately and disjointedly with the risk of serious harm to the second, third and fourth applicants based on their ethnicity and gender, and thus fails to address the risk of serious harm to the applicants as a result of a combination of their ethnicity and gender (i.e. as Tamil females) (CB441-42, [44]-[51]).
iv. Under the heading “vulnerability due to gender”, the second respondent makes insufficient or no meaningful reference to the second, third and fourth applicants’ Tamil ethnicity or the substantial evidence provided by the applicants’ in relation to the second, third and fourth applicants’ fear of harm as Tamil females, as particularised above (CB412-413).
v. The second respondent’s treatment of the above claim in the context of the complementary protection criteria is cursory and based on the second respondent’s findings in relation to the refugee criteria (CB416).
2. The second respondent has ignored evidence or not taken into account a relevant consideration.
Particulars
a. As particularised above:
i. The applicants provided evidence that Tamil women in the north and east were at risk of serious harm from Sri Lankan military and enforcement agencies (CB 324-325, see also CB345).
ii. The delegate of the first respondent referred to and accepted evidence that Tamil women in the north and east were at risk of serious harm from Sri Lankan military and enforcement agencies (although erroneously concluding that this must be “on behalf of the state”) (CB369-370).
b. Ignoring the above evidence or failing to take into account the above relevant consideration, the second respondent found that the second, third and fourth applicants were not at risk because they were women who lived in the east (thus incorrectly inferring that Tamil women who lived in the east of the country, as opposed to the north, were not at risk) (CB413, [51]).
3. The second respondent’s finding that married Tamil women or their daughters are not at risk of violence by Sri Lankan military is illogical or irrational as it lacks a probative basis.
Particulars
a. The second respondent (and the delegate of the first respondent) referred to evidence that heads of female households are particularly vulnerable to serious harm by Sri Lankan military (CB412-413, [50]).
b. As particularised in Grounds 1 and 2 above, there was evidence before the second respondent that Tamil females were at risk of ongoing violence, rape and harassment by security forces (CB369-370).
c. On the other hand, there was no evidence before the second respondent that married Tamil women or their daughters were not at risk or were at less risk of serious harm due to their being part of a Tamil household having a male head.
d. Contrary to the above, the second respondent irrationally and illogically inferred from the evidence of the particular vulnerability of heads of female households that Tamil women who are married and their daughters are not at real risk of serious harm (CB413, [51]).
I will talk about ground three a little later, but the first two grounds really are two sides of the same coin.
The basis of the argument is that the IAA did not truly consider one of the claims that the Applicant made. The IAA summarised this claim in this way:
He also particularly fears that his wife and daughters will be at risk of physical and sexual assault by the authorities as they are vulnerable females.
The actual claim is found at page 324 of the court book. It is headed “Fear of persecution faced on the basis of being Tamil women in Sri Lanka” it is relevantly set out below:
106. A fear of harm that the first applicant is also concerned of is the risk of physical and sexual assault by the Sri Lankan authorities against his wife and daughters, as they are vulnerable females.
107. Sexual and gender-based violence still persists in Sri Lanka. According to a 2016 report ‘One year after the change of government in Sri Lanka the security forces continue to detain, torture and sexually violate Tamils in a network of sites across the island.
108. More recently, a report by Amnesty International notes that impunity persists for violence against women, including acts of rape by military personnel and civilians and situations of domestic violence.
109. According to the 2017 DFAT Country Information Report Sri Lanka, there are ongoing claims of sexual assaults and rape attributed to the military in both the North and East. The International Truth and Justice Project, as of 20 February 2017, had sworn statements from 71 women regarding torture and horrific assaults while held in state custody under the new Government of President Sirisena
110. On 31 January 2017, UN Human Rights Council, Report of the Special Rapporteur on minority issues on her mission to Sri Lanka, stated that:
‘Women in the North and East continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization…The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity and security on a daily basis. While the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army in the North and East, a climate of fear remains among the Tamil women in an area where the military presence has continued.’
111. Despite the fact that the Sri Lankan Ministry of Defence has publically refuted allegations of sexual exploitation of Tamil women and endorsed a “Zero Tolerance Policy on sexual abuses", there remains widespread evidence to the contrary.
112. A recent UK Government report observed that:
‘Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region, but their lives are even more negatively impacted by the climate of fear and by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault.’
113. In a Public Submission to the Committee on the Elimination of Discrimination against Women, the International Truth and Justice (ITJP) Project recorded that,
‘Since he assumed power two years ago, President Sirisena and his government have failed in their duty to investigate credible allegations, inter alia from the UN, that there was a deliberate policy of using sexual violence to inflict torture.’
114. The most recent United States Country Report on Human Rights Practices for 2016, released in March 2017, states that Tamil women often have great difficulty accessing services for assisting survivors of rape and domestic violence:
"[l]anguage barriers between service providers and victims … were reported in the north and east, where Tamil speaking victims lacked access to Tamil speaking service providers".
If the Applicant and his family are made to return to Sri Lanka, it is common ground that they will live in the eastern area of Sri Lanka. That area, because it had been an area where rebel forces had been, still has a military presence. As there is still a military presence there are reports of sexual assaults being committed by the military upon the local population.
There are reports from the International Truth and Justice Project in Sri Lanka, a report from DFAT in the country information, reports in Sri Lanka, reports from the United Nations Human Rights Council, reports from the United Kingdom and as well from the United States country report on human rights practices.
Those reports do paint a picture that there is a climate of fear within the populations of these areas because of the rogue elements within the military. Having said that, there is no evidence that had been sighted by either the Applicant or the IAA that would suggest that young children are the victims of such assaults, given that the Applicant’s daughters were aged between three years and seven years at the time of the application and are now aged approximately nine and five.
This is an important aspect. There is a lack of any information to say that the military have been targeting children. However, there is information that they have been targeting women. So one must look at that claim in this way that the Applicant really has not made a true claim that his daughters are in immediate peril, but may be seen to be saying that if the girls grow up and the military are still in that area then there may be some cause for concern.
What is obvious in the claim that has been made, is that the concern is not just because his wife and daughters are women it is because his wife and daughters are women in the eastern part of Sri Lanka and because they are Tamil women in the eastern part of Sri Lanka.
The IAA, in looking at all of the matters before it, very thoroughly discussed the situation of the Applicant being a Tamil and what being a Tamil and coming back to Sri Lanka was and what it entailed.
The argument with regard to this aspect, or this integer, of the claim is this: that in paragraphs 47 to 51 there seems to be no reference to the fact that the claim is not just because the Applicant’s wife and daughters are women but because they are Tamil women.
The relevant section of the reasons of the IAA has entitled vulnerability due to gender. Paragraph 47 states:
47. Applicant 1 claims to fear for Applicant 2, Applicant 3 and Applicant 4, if they are returned to Sri Lanka, because they will be vulnerable as females to the risk of physical or sexual assault from the authorities.
48. I accept that women in Sri Lanka may be vulnerable. Harassment, rape and other forms of sexualised violence are acknowledged as serious social problems. Rape and domestic violence are criminalised in Sri Lanka under the Prevention of Domestic Violence Act 2005 (Sri Lanka) and sexual harassment is a punishable offence. However, enforcement of the law is inconsistent and sexual assault, rape and spousal abuse are pervasive social problems. DFAT assesses that reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas, but the majority of cases are likely to go unreported due to social stigma.
The IAA relied on a number of sources of country information including the DFAT report that the Applicant relied on, the United States report that the Applicant relied upon and the United Nations Human Rights Commission report that was relied upon. As well as another report from the Colin Powell School for Civil and Global Leadership which was titled “The Forever Victims - Tamil Women in Post-War Sri Lanka”.
The IAA at paragraph 49 said this:
49. However, there has been some progress. The police bureau for the prevention of abuse to women and children conducted awareness programs to encourage women to file complaints and the police continued to establish women’s units in police stations. DFAT assessors and all Sri Lankan citizens have access to redress through the police judiciary and the HRC regardless of religion or ethnicity, though language issues can be an effective barrier to policing issues and there is a lack of female police officers. The president has also expressed a commitment to taking action to prevent the abuse of women and children including speeding up the trial process for these offences and he canvassed the possibility of implementing the death penalty for such offences in the wake of public outrage over a number of recent high profile cases of violence against women and girls.
There the IAA has specifically spoken about what the problems are regarding women in Sri Lanka because of their religion or their ethnicity and then later on talks about the women being in female headed households and whether they be in particular areas of Sri Lanka and what the current situation is.
It seems to me then that when looking at whether or not the aspect of the cumulative nature of being not just women, or vulnerable women, but women who are Tamil women has actually been considered. The religion and the ethnicity are part of the vulnerability of the women.
It is, in my view, very difficult to look at those aspects that would make it somewhat dangerous for women, without looking at religion and ethnicity. The Applicant does not complain that the Tribunal did not look at religion but only complains that the Tribunal did not look at ethnicity. It seems to me in referring to all of those aspects that are contained in the reports and looking at the particular circumstances of Applicants 2, 3 and 4, it must be that those aspects that lend to the vulnerability are taken into account. This is because it is those very matters that the reports talk to that go to the vulnerability.
It must be pointed out that the word “vulnerable” was one that was used by the Applicant in describing his wife and daughters because they were “vulnerable females”. That description encapsulated the fact that they were women who were Tamil women who were in the east of Sri Lanka and were – if they were in that place, subjected to the presence of military personnel.
Given that that term “vulnerable women” is the exact term that the IAA have used it seems to me that it cannot be said that the IAA failed to address that integer of the Applicants’ claims nor can it be said that the IAA ignored evidence or did not take into account a relevant consideration. Therefore, I hold that grounds 1 and 2 fail.
I now move to Ground three. There was no finding by the IAA that married Tamil women or their daughters are not at risk of violence by Sri Lankan military. The premise of Ground three does not actually exist. The finding of the IAA was actually one of non-satisfaction. It was addressed this way at paragraph 51:
51. Considering the country information, and given that Applicants 2, 3 and 4 will be returning to the east, Applicant 1 will be present with the family/household, and there is no suggestion that the applicants are at risk for domestic or intimate partner violence, I am not satisfied that Applicants 2, 3 and 4 face a real chance of serious harm on return to Sri Lanka on the basis of their gender.
In the end it is the Applicant’s fear that was to be addressed rather than any separate claim by Applicants 2, 3 and 4 because they did not make any claim.
In my view, the conclusion that the IAA have reached is the only one open and that is that there is no jurisdictional error.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 16 October 2018
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