AWG18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1062

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AWG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1062

File number(s):

BRG 514 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

17 October 2024

Catchwords:

MIGRATION LAW – where IAA failed to intellectually engage in a consideration of the applicants’ claims – where the IAA made unreasonable findings – jurisdictional error established – application allowed.  

Legislation:

Evidence Act 1995 (Cth), s. 135(a)

Migration Act 1958 (Cth), s. 5J(4)(b), s. 5J(5)

Cases cited:

EIC18 v Minister for Home Affairs [2020] FCA 370

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602

Division:

Division 2 General Federal Law

Number of paragraphs:

27

Date of hearing:

16 October 2024

Place:

Brisbane

Counsel for the Applicants:

Mr M. McKechnie

Solicitor for the Applicants:

RAILS - Refugee and Immigration Legal Service

Counsel for the First Respondent:

Mr J. Byrnes

Solicitor for the First Respondent:

Minter Ellison

Solicitor for the Second Respondent:

Giving a submitting appearance, save as to costs

ORDERS

BRG 514 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AWG18

First Applicant

AWG18 AS LITIGATION GUARDIAN FOR AXI18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHOROITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	17 OCTOBER 2024

IT IS ORDERED THAT:

1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The Third Applicant be removed as a party to the proceeding.

3.The Further Amended Application for Review filed on 12 July 2024 be granted.

4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicants’ Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for re-determination.

5.For the purpose of the Immigration Assessment Authority again re-determining the Applicants’ application, that it be constituted by a different member than the member who handed down the decisions on 12 August 2020.  

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. This proceeding involves the first applicant and his daughter. The first applicant’s wife arrived in Australia by boat with the first applicant and the daughter in 2013. The first applicant’s wife’s application for review of a visa refusal decision was determined in separate proceedings in this Court.

2. A female child was subsequently born in Australia in 2014 as a result of the union of the first applicant and his wife. That child, by reason of her having been born in Australia and attaining the age of ten (10), is now an Australian citizen. By reason of that fact, the third applicant by order of the Court is removed as a party to the proceeding.

3. On 15 December 2018, a combined application for Safe Haven Enterprise Visas (SHEVs) was lodged on behalf of the then four members of the family involved in this proceeding.

4. On 24 October 2017, a delegate of the Minister refused the visa applications.

5. On 8 February 2018, the Immigration Assessment Authority (“the Authority”) affirmed the decisions of the delegate in respect of the visa applicants. Subsequently, by order of the Federal Court on appeal, the matters were remitted to the Authority for reconsideration.

6. On 12 August 2020, the Authority, as constituted by the same reviewer, handed down written decisions whereby the refusal decisions made by a delegate in respect of the first applicant and the daughter were affirmed. For reasons not relevant to the present review, it was requested by the second applicant wife/mother that her application for review be reviewed/heard separately.

7. The reasons of the Authority handed down in respect of the first applicant were acknowledged by the Authority as being essentially the same as those handed down on the same day in respect of the daughter. It is also to be noted that the Authority received and had regard to a statement of the first applicant’s wife dated 12 June 2020. [1]

   [1]           Annexure NV1 to the affidavit of Neha Vaidyanathan filed on 2 May 2024.

8. On 15 September 2020, the first applicant filed an Originating Application for Review on behalf of himself and his two daughters.

9. On 12 July 2024, the first applicant and his daughter filed a Further Amended Application for Review, the grounds of which were as follows:

   1.The Decisions of the Second Respondent in relation to AWG18 and in relation to AXI18 are affected by jurisdictional error because it misapplied or misunderstood the definition of “serious harm” in s5J and/or “significant harm” in s36(2A) of the Migration Act1958 (Cth.) in that:

   a.At paragraph 79 of the decision in relation to AWG18 and at paragraph77 of the decision in relation to AXI18, the Second Respondent finds, with respect to the prevalence of sexual harassment on public transport, that such harassment did not amount to serious harm.

   b.The evidence is such The sexual harassment on which is the subject of the DFAT report referred to by the Second Respondent includes, in its vernacular meaning, deliberate unwanted sexual touching or other unwelcome conduct of a sexual nature.

   i.“Deliberate touching of any part of the body”–experienced by 73.52% of respondents;

   ii.“rubbing genitalia against another’s body”–experienced by 52.08 % of respondents; and

   iii.“indecent exposure / exhibitionism (exposing genitalia)”–experienced by 24.76% of respondents

   c.In the premises, the Second Respondent, in finding that such sexual harassment was not “serious harm’ has misapplied or misunderstood “serious harm” in s5J and/or “significant harm” in s36(2A) of the Migration Act 1958 (Cth.)

   2.The Second Respondent’s finding at paragraphs 79 and 80 of the Decision in relation to AWG18 and the Second Respondent’s finding at paragraphs 76 and 77 of the Decision in relation to AXI18that the female Applicants did not face a real chance of serious harm in regard to sexual harassment (the Sexual Harassment Finding) is legally unreasonable in that:

   a.The Sexual Harassment Finding is premised upon a finding that the Applicant’s Wife and Daughters would have the “protection” of the Applicant to prevent any sexual harassment in circumstances where there was no evidence to support such a finding and the finding is in itself devoid of any identifiable logic.

   b.The Sexual Harassment Finding is further premised on an observation that the Applicant did not advance specific claims about sexual harassment or allege that they had been sexually harassed on public transport in the past. In the context where:

   i.The Applicant’s wife did advance specific concerns about sexual harassment and assault in her statement; and

   ii.The Applicant’s daughters were 3 years old, or not born when last in Sri Lanka and therefore unlikely to have experienced any sexual harassment on public
   transport or otherwise,

   The observation or reasoning of the Second Respondent is a misstatement of the evidence and otherwise devoid of any reasonable logic.

   c.The sexual Harassment finding is further premised on a finding that Sexual Harassment is not “serious harm,” On the same basis as is set out in ground 1 above, such a finding is not capable of being supported on the evidence and is otherwise devoid of any identifiable logic.

   d.By reason of the matters set out above (either distinctly or in combination) the Sexual Harassment Finding:

   i.Is not capable of beings supported on the evidence; and

   ii.Is not based on any identifiable logic or reasoning.

   CONSIDERATION OF GROUNDS OF REVIEW

10. Ground 1 was a claim that the Authority misapplied or misunderstood what the term “serious harm” as defined in s. 5J of the Migration Act 1958 (Cth) (“the Act”) meant. It was submitted that the Authority had failed to engage in any analysis or reasoning to back up its finding that the alleged sexual harassment which might be expected to be experienced by the daughter should she return to the east of Sri Lanka in the Batticaloa region would not amount to serious harm.

11. Section 5J(4)(b) and 5J(5) of the Act were respectively as follows:

    MIGRATION ACT 1958 – SECT 5J(4)(b)

    (4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)  …

    (b)  the persecution must involve serious harm to the person; and

    (c)  …

    MIGRATION ACT 1958 – SECT 5J(5)

    (5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)  a threat to the person's life or liberty;

    (b)  significant physical harassment of the person;

    (c)  significant physical ill - treatment of the person;

    (d)  significant economic hardship that threatens the person's capacity  to subsist;

    (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

    (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

12. At [66] – [75] of its reasons, the Authority considered country information relating to sexual violence and harassment of women of Tamil ethnicity in the north and east of Sri Lanka compiled by the UK Home Office, the Special Rapporteur, REDRESS, the UN Security Council, and DFAT.

13. At [76] – [81] inclusive, the Authority made findings as follows:

    76. Having regard to the country information, submissions and evidence and my    assessment of their particular circumstances, I am not satisfied that the female applicants face a real chance of sexual or physical violence from authorities or anyone else in the foreseeable future. I consider the evidence is that this has reduced significantly, is less of a problem in the East, there is less militarisation, an improvement in education and supports and is illegal under the

    
    

    law and the female applicants’ circumstances are such that they have the protection of applicant and their family.

    77. I note DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence. It refers to sexual harassment on public transport as common with 90% experiencing it. In 2017 there were reports of women in the North employed by the Civil Security department experiencing sexual harassment and sexual violence. The DFAT report also quoted a former president in 2017 saying Tamil women continue to face sexual exploitation by military and Tamil officials, demanding sexual favours to carry out routine paperwork. However, I note the context of this remark was when he was addressing the plight of women who were widowed during the conflict (as per footnote 90 of 2017 applicant submissions country information) and made in 2017. I note there was no claim that such paperwork was required in any event. Further, the female applicants will have the assistance of applicant 1 and extended family if paperwork is needed.

    78. I note the reports were in 2017 and the improvement in trying to reduce sexual harassment and assistance given to female households.

    79. While I note country information about the prevalence of sexual harassment on public transport, the applicants’ claims did not advance any specific claims about this, or that they had been harassed on public transport in the past. Given this I am not satisfied that they face a real chance of serious harm in these circumstances in the reasonably foreseeable future. In any event, on the evidence, I am not satisfied such harassment amounts to serious harm.

    80. Having regard to applicant 1’s claims made in respect of the female applicants, and having regard to the female applicants’ circumstances (in particular as Tamil females or young Tamil female children returning to or from the East ), I am not satisfied that any them face a real chance of harm from the authorities, other groups or anyone on this basis.

    81.Having regard to all of the applicants’ circumstances upon return, I do not accept any of them face a real chance of harm on account of ethnicity, race, political opinion, age, gender origin, from a former LTTE controlled area, or past circumstances or connection to each other applicant.

14. Counsel for the applicants referred the Court to para 3.124 on p. 45 of the DFAT Country Information Report on Sri Lanka dated 4 November 2019 [2] which relevantly provided as follows:

    3.124 The UNFPA reported in 2016 that one in four women in Sri Lanka is sexually abused by the age of 18. The Prevention of Domestic Violence Act (2005) criminalises rape and domestic violence, but marital rape is considered an offence only in cases where the individuals are legally separated. Sexual harassment is an offence under Section 345 of the Penal Code with a maximum penalty of five years’ imprisonment;
    perpetrators of sexual harassment may also be ordered to pay compensation to their victims. Sexual harassment of women is common, particularly on public transport, but is rarely reported—according to a 2017 UNFPA study, 90 per cent of Sri Lankan women and girls had experienced sexual harassment on public buses and trains, only 4 per cent of whom sought help from the police. In October 2016, the National Police Commission designated provincial senior female law enforcement officers to respond to sexual harassment claims. Anecdotal evidence suggests that victims of sexual violence are reluctant to report the matter to the police due to social stigma and out of fear they would be ostracised by their families and have difficulty marrying if the matter became widely known. According to police statistics, 345 cases of rape of women over 16 years were recorded in 2018, an increase from 2017 (294 cases). Sources told DFAT that police are not adequately trained in collecting evidence in cases of sexual assault, and lack rape kits for evidence collection.

    
    

    [2]           Annexure NV1 to the affidavit of Neha Vaidyanathan filed on 2 May 2024.

15. It was submitted at [15] of the applicants’ consolidated written submissions filed on 9 August 2024 that the nature of sexual harassment was of varying types experienced by certain percentages of women taking public transport in Sri Lanka. That submission was based on data as contained in Annexure NV3 to the Vaidyanathan affidavit, namely a report of the United Nations Population Fund. Upon objection by Counsel for the first respondent, the Court ruled that such report was inadmissible on the ground that such material had not been placed before the Authority, and that it was therefore an attempt to introduce new material for consideration by this Court for the purpose of the Court conducting an impermissible merits review. The Court further finds that the admission of such report would have been unfairly prejudicial to the first respondent in that it would have most likely required the first respondent to itself produce further country information documentation on point. That would have been inconsistent with the fast-track review process in play before the Authority. In the exercise of the Court’s discretion, the report is accordingly ruled inadmissible pursuant to the provisions of s. 135(a) of the Evidence Act 1995 (Cth).

16. It was submitted on behalf of the applicants at [14] of the written submissions that sexual harassment simpliciter constituted significant physical harassment of a person and ill-treatment of a person, and therefore fell within the provisions of s. 5J(5)(b) and (c).

17. The applicants relied upon EIC18 v Minister for Home Affairs [2020] FCA 370 at [12] where it was held by Davies J as follows:

    12. In this case, the third applicant’s claim was that as a Tamil Kuravar woman, she had, in Sri Lanka, experienced discrimination, sexual harassment and sexual assault and, as a Tamil Kuravar woman, she faced a real chance of sexual abuse and sexual harassment from men in the community and the authorities if she returned to Sri Lanka: Authority’s reasons at [15]. The Authority accepted that women in Sri Lanka still face “a moderate risk of societal discrimination” (Authority’s reasons at [25]) and it was “possible” that the female applicants may face a real chance of harm “in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender”: Authority’s reasons at [62]. The Authority also considered the risk that women in Sri Lanka face of gender-based violence against them. Critically, however, the Authority did not address the particular form of discrimination that the third applicant may face as a Tamil Kuravar woman if she returned to Sri Lanka, nor evaluate whether such discriminatory treatment may amount to serious or significant harm. Nor did the Authority, in evaluating the risk to the third applicant of gender‑based violence and sexual abuse and assault, consider that risk in terms of the third applicant as a Tamil Kuravar woman—rather than simply as a woman in Sri Lanka—which was one of the factual bases upon which she had made her claim to fear harm. The Authority was required to consider and address the combination of the third applicant’s characteristics as an integral component of her claim to fear harm if she returns to Sri Lanka. It did not do so. There was therefore a constructive failure to carry out its statutory task and a failure to give meaningful consideration to, and to engage in an active intellectual process with, a clearly articulated and substantial or significant representation. This is not a simple case of challenging the factual conclusions, as submitted by the Minister. Further, those failures were material in the sense that it is possible that such considerations and evaluations could have made a difference to the decision made by the Authority: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–5 [30]–[31] per Kiefel CJ, Gageler and Keane JJ; 147–8 [72] per Edelman J. The errors were material and are not answered by the Minister’s submission that the applicants’ legal representatives did not put forward any country information supporting a claim that the third applicant would face a higher risk as a Kuravar woman.

    (Underlining Inserted)

18. It was submitted that, as a matter of law, sexual harassment constituted serious harm. Counsel for the applicant specifically criticized the last sentence of [79] of the reasons of the Authority where it was held that the claimed harassment likely to be suffered by the daughter should she be returned to Sri Lanka would not have amounted to serious harm.

19. It was submitted on behalf of the first respondent that the question as to whether sexual harassment in any particular case constituted serious harm or significant harm was “ultimately a matter for the decision-maker.” At [33] of the first respondent’s consolidated written submissions filed on 9 August 2024, it was further submitted that the applicants had not pointed to any particular kind of sexual harassment which might be experienced by the daughter, merely that on balance, there was a 90% chance that she would be subjected to sexual harassment whilst travelling on public transport in Sri Lanka.

1. Reliance was placed by Counsel for the first respondent upon the obiter remarks of Justice Crennan (as Her Honour then was) in VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 where at [53] Her Honour said:

   53.     There can be no doubt that a single act or rape or sexual abuse resulting in impregnation of a female draftee by a military officer (resulting in being shunned thereafter by family) when many such examples have occurred before with female draftees, is “systematic” in that it is non‑random and so oppressive that the applicant could not be expected to tolerate it.  “Systematic” has quite separate shades of meaning.  It can mean habitual or regular; equally it can mean deliberate or pre‑meditated.  A Full Court of this court has recognised this: Minister for Immigration & Multicultural Affairs v Hamad (1999) 87 FCR 294 at 297 [17]. The epithet “non‑random” is apposite to cover the different shades of meaning. Accordingly, to determine conduct is not “sufficient” for the purposes of the Chan test because the “incidence” is not sufficiently widespread can result in error where the seriousness of the harm is not in dispute.  Where harassment can be described as minimal or low level, it can be appropriate to ask whether the incidence of such harassment is sufficient to constitute serious harm or “significant detriment” as expressed by Mason CJ in Chan at 389. Questions of whether the extent of harassment can be characterised as persecution in the Convention sense are questions of fact: see for example NABB at [16]. However, cases turning on factual matters such as the qualitative assessment of harassment to determine whether or not certain harassment amounts to serious harm are distinguishable from cases dealing with whether harm, the seriousness of which is not challenged, constitutes “systematic conduct” for the purposes of the meaning of persecution. Where the harassment shown on the facts to be serious harm falls to be assessed as to whether it is systematic conduct, legal error can occur if the applicant is required to show anything more than that the seriously harmful conduct feared is deliberate or pre‑meditated, that is motivated. It is not necessary for an applicant to show that the seriously harmful conduct has occurred on a scale which might answer to the description of an atrocity. This is particularly so when a single instance of the feared harm will be oppressive to the applicant.

   (Underlining Inserted)

2. The Court accepts the submission made on behalf of the applicants that the Authority failed to intellectually engage on the question as to the likelihood of the daughter suffering serious or significant harm whilst travelling on public transport in the eastern parts of Sri Lanka should she return there, or as to how her characteristic of being a Tamil woman in the east of Sri Lanka might heighten her chances of being so sexually harassed. The generic response of the Authority to the question about the nature of sexual harassment not having been specified by the applicants as found at [79] – [80] of its reasons caused the Court to raise an eyebrow. The Court was left in the position of not knowing on what basis the Authority had reached its conclusion? The Authority failed to convey the bases on which it arrived at its decision in any meaningful way. To the extent that the Authority failed to set out in a coherent fashion the reason why it arrived at its findings, the Court holds that the Authority erred.

3. As to Ground 2 of the application for review, the Court further accepts the submissions made on behalf of the applicants that the findings of the Authority were legally unreasonable. The Court finds that the bare finding by the Authority that the daughter would be able to be protected by her father should she be returned to Sri Lanka was one which lacked an evident and intelligible justification. [3] That was particularly so where the Authority failed to consider whether or not the father would be present with the daughter 100% of the time whilst the daughter was travelling on public transport, and therefore at least possibly be able to protect her.

   [3]           Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [77] per Hayne, Kiefel

4. The Court further finds that it was legally unreasonable and illogical for the Authority to include as a reason for not accepting the applicants’ claims about the possibility of future sexual harassment on public transport that the daughter had not claimed that she had been harassed on public transport in the past. Such finding could not have been made by a reasonable decision-maker having regard to the fact that the daughter was aged 3 years at the time she left Sri Lanka for Australia by boat.

5. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:

   “[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.

   [11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”

6. The applicants have established jurisdictional error on the part of the Authority.

7. The decisions of the Authority made on 12 August 2020 are accordingly quashed. And it is so ordered.

8. The Court will hear the parties as to costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan .

Associate:

Dated:       17 October 2024

            and Bell JJ.