BAQ19 v Minister for Home Affairs

[2019] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAQ19 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2893

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – adverse credibility findings based upon late making of claims and claims lacking detail – adverse findings open to be made by Authority – country information on the question of the relevance of male protection able to be afforded to “female-headed households” in Sri Lanka – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 473CB, 473DD

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481
BBS16 v Minister for Immigration and Border Protection (2017) 158 ALD 198
BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1
SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

First Applicant: BAQ19

Second Applicant: BAR19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 236 of 2019

Judgment of: Judge Egan

Hearing date: 6 September 2019

Date of Last Submission: 6 September 2019

Delivered at: Brisbane

Delivered on: 14 October 2019

REPRESENTATION

Counsel for the Applicant: Mr H. Clift

Solicitors for the Applicant: Angus Francis Lawyers

Counsel for the First Respondent: Mr J. Byrnes

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The amended application for review filed on 12 June 2019 be dismissed.

2. The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 236 of 2019

BAQ19

First Applicant

BAR19

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a mother and daughter aged 42 and 21 respectively. They are Hindu Tamils from the Northern Province of Sri Lanka who arrived in Australia as unauthorised maritime arrivals in November 2012.

2. On 10 May 2016, the applicants lodged a combined application for Safe Haven Enterprise Visas (SHEVs). The second applicant daughter relied upon the first applicant’s claims.

3. A delegate of the Minister refused to grant the visas on 17 July 2018.

4. On 20 July 2018 the matter was referred to the Immigration Assessment Authority (the Authority) for review.

5. On 9 August 2018 further submissions were made to the Authority on behalf of the applicants. Those submissions included a statutory declaration of the first applicant. [1]

   [1]        CB page 256 – 259 inclusive.

6. On 19 February 2019, the Authority affirmed the decision of the delegate not to grant the visas.

7. On 12 March 2019, the applicants filed an application for review of the decision of the Authority. On 12 June 2019 the applicants filed an amended application. The Grounds as set out in such amended application are as follows:

   “1. The Immigration Assessment Authority (IAA), the Second Respondent, fell into jurisdictional error in determining whether, under s 473DD(a) of the Migration Act 1958 (Cth) (the Act), there were exceptional circumstances to justify the IAA considering new information that had been provided by the Applicant.

   Particulars

   (i) The First Applicant provided information to the IAA in relation to a sexual assault against the Second Applicant that was not before the First Respondent when the primary decision was made (New Information).

   (ii) The IAA concluded that there were no exceptional circumstances to justify it considering the New Information merely on the basis of a finding that the First Applicant could have provided the New Information to the First Respondent prior to the primary decision being made.

   (iii) The IAA impermissibly confined its consideration of whether there were exceptional circumstances to an evaluation of the question of whether the First Applicant could have provided the New Information prior to the First Respondent’s primary decision.

   1A. The IAA fell into jurisdictional error by ignoring relevant considerations in its consideration of whether exceptional circumstances existed that justified consideration of the New Information.

   Particulars

   (i) In concluding that the claim relating to the New Information was not credible, the IAA ignored the fact that the Second Applicant’s entry interview was conducted by a man, that the Second Applicant was only 15 years old at the time of the interview, and that while the First Applicant also did not disclose her own sexual assault at her entry interview, the IAA accepted her reasons for not doing so (at paragraph 28 of the IAA’s decision).

   1B. The IAA fell into jurisdictional error by unreasonably or irrationally declining to be satisfied that the claim relating to the New Information was credible.

   Particulars

   (i) The IAA unreasonably or irrationally relied on the First Applicant’s non-disclosure of sexual assault against the Second Applicant during her entry interview in declining to be satisfied that the claim relating to the New Information was credible.

   (ii) The IAA unreasonably or irrationally relied on the Second Applicant’s non-disclosure of sexual assault during her entry interview in declining to be satisfied that the claim relating to the New Information was credible.

   (iii) In circumstances where the IAA accepted that the First Applicant had been sexually assaulted in 2012 (notwithstanding that she did not disclose the assault during her entry interview) and accepted her reasons for not disclosing the assault during her entry interview, the IAA acted unreasonably or irrationally in declining to be satisfied that the claim relating to the New Information was credible.

   2. The IAA fell into jurisdictional error in failing to consider, in substance, whether the New Information “could not have been, provided” before the delegate’s decision for the purposes of s473DD(b)(i) or, alternatively, was “credible personal information” for the purposes of s473DD(b)(ii) of the Act.

   Particulars

   (i) For the purposes of s 473DD(b)(i), the IAA declined to be satisfied that the First Applicant could not have provided the New Information to the Minister merely on the basis that the First Applicant had been aware of the information, thereby misconstruing or failing to carry out the assessment required by s 473DD(b)(i).

   (ii) For the purposes of s 473DD(b)(ii), the IAA failed to consider whether the New Information was capable of being believed and failed to consider whether the New Information may have affected consideration of the claim, thereby misconstruing or failing to carry out the assessment required by s 473DD(b)(ii).

   3. The IAA misapplied the test in s 5J of the Act.

   Particulars

   (i) The First Applicant claimed that she had been sexually assaulted by members of the Sri Lankan army or CID.

   (ii) The IAA accepted that the First Applicant had been sexually assaulted by members of the Sri Lankan security agencies, but considered that the act of the security officers was not sanctioned by the Sri Lankan state (at paragraph 28 of the IAA’s decision).

   (iii) The IAA was required to, but did not, turn its mind to the issue of whether the Sri Lankan state was unable or unwilling to protect the First Applicant from the sexual assault by the security officers for a Convention-related reason (namely, the First Applicant is a Tamil woman).

   (iv) The IAA was required to, but did not, turn its mind to the issue of whether serious harm may be inflicted by persons who are not agents of the Sri Lankan state.

   4. The IAA’s finding that the sexual assault of the First Applicant by members of the Sri Lankan security agencies was an “opportunistic criminal act” (at paragraph 28 of the IAA’s decision) was not based on evidence.

   Particulars

   (i) It was the First Applicant’s claim that she had been sexually assaulted by members of the Sri Lankan army or CID, and that her assault was supported by country information showing continued, widespread sexual assault of Tamil women in the North and East of the country by Sri Lankan security agencies.

   (ii) There was no material before the IAA which either demonstrated that the First Applicant’s sexual assault was an “opportunistic criminal act” or from which such an inference could be drawn.

   (iii) Given there was no basis upon which the IAA could be satisfied that the sexual assault of the First Applicant was an “opportunistic criminal act” this was an error in the IAA’s fact finding that demonstrated jurisdictional error.

   (iv) The IAA’s finding that the First Applicant’s sexual assault was an “opportunistic criminal act”, and not an act consistent with the widespread assault of Tamil woman by Sri Lankan security agencies in the north and east of the country, was material to the IAA’s ultimate conclusion.”

8. The applicants’ claims for protection were recorded by the Authority at [16] of its reasons as follows:

   ·“She is Tamil Hindu born in Kilinochchi in the Northern Province of Sri Lanka in 1976.

   ·She experienced persecution by Sri Lankan authorities, including interrogation, threats of detention and rape, and has seen the detention, torture and disappearance of her husband as a result of his imputed links to the LTTE.

   ·If returned to Sri Lanka she is at high risk of societal discrimination and violence, equating to serious harm, including torture, abduction, death and sexual violence from Sri Lankan authorities, including the Criminal Investigation Department (CID) and the Sri Lankan Army (SLA) on the basis of her being a Tamil woman from the Northern Province who has been raped by Sri Lankan authorities, who would be returning as a female-headed household, who will be imputed as a war widow, who has no male protection in Sri Lanka, who has a dependent daughter, who will be perceived to have LTTE connections through her husband, and who suffers from a number of psychiatric issues.

   ·She is at risk of detention on return to Sri Lanka as a failed Tamil asylum seeker.”

9. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of section 473CB of the Migration Act 1958 (Cth) (the Act).

10. At [4] of its reasons, the Authority recorded that the application for visa form specified to the applicants the extreme importance of presenting all claims for protection during the course of the holding of a SHEV interview. That interview was conducted 13 February 2018, some 5 months prior to the delegate’s decision on 17 July 2018.

11. At [5] of its reasons, the Authority recorded that as to the further submission made to it by letter dated 9 August 2018, it had had regard to such submission, considering such submission to be in the nature of argument rather than new information.

12. At [7] of its reasons, the Authority recorded that for the first time the first applicant’s statutory declaration attached to her submission of 9 August 2018 made reference to her daughter having allegedly been sexually assaulted in 2003 at a young age. It was recorded that the first applicant claimed that she had not disclosed that information previously “as she wanted to spare her daughter, was scared it would tarnish her name, did not want her daughter to be questioned about what had happened and relive past events, and because she felt great shame about it, and it is very difficult and distressing for her to speak about what happened to her daughter”. It was recorded that at the time of the second applicant’s entry interview in January 2013, the second applicant said that the reason she left Sri Lanka was because the CID had come to her house and asked her and her mother to go to their camp. She said that some of her classmates had been raped by the CID and that she feared that that would happen to her if she also went to the camp. When asked if she had ever gone to the CID camp she replied “no”.

13. Having considered that the applicants were represented by lawyers throughout the visa application process, and having noted that the first applicant had disclosed in her entry interview that she had allegedly been sexually assaulted in Sri Lanka, the Authority was not prepared to accept either that such information relating to the second applicant could not have been provided prior to the delegate’s decision, or that such claims were credible. The Authority considered that had such claims occurred, they would have been raised, at least by the first applicant, or by the second applicant, at a much earlier time than in August 2018. The Authority did not accept that there were exceptional circumstances warranting it to consider such new claim. It was open for the Authority to arrive at such finding.

14. At [8] – [11] inclusive of its reasons, the Authority considered the contents of three documents which had been additionally provided to it by the first applicant in her submission of 9 August 2018. The Authority was of the view that after having considered the contents of each of those documents, such documents did not collectively advance the case made on behalf of the applicants. The Authority was entitled to so find in circumstances where the contents of such documents did not materially affect a consideration of the claims made to the Authority, and having so considered such documents, it was open for the Authority to find that there were no exceptional circumstances justifying its consideration of them.

15. At [12] of its reasons, the Authority referred to the lack of detail provided by the applicants as to the source of country information in the documents provided by them to the Authority. Whilst noting that the IAA Practice Direction No. 1 of February 2017 required the specification of the source of any country information to be considered by the Authority, and that such practice direction had not been complied with by the applicants, the Authority otherwise found that such information could have been provided prior to the delegate’s decision, and was not, in any event, credible personal information as contemplated by the provisions of section 473DD(b) of the Act. The same finding was made in relation to country information relating to conflict related sexual violence in Sri Lanka as referred to in [13] of the reasons of the Authority. The contents of that country information predated the making of the delegate’s decision, and otherwise did not fall within the ambit of section 473DD(b) of the Act.

16. At [14] of its reasons, the Authority recorded that further additional material had been provided to it by the applicants’ representative on 24 September 2018. The Authority noted that it had had regard to such material, considering it to be argument rather than new information. It related in part to the first applicant’s plantar fasciitis foot condition which was not relevant to any ground of review before the Court.

17. At [17] – [18] of its reasons, the Authority relevantly set out the refugee assessment criteria as provided for in section 5H(1) and section 5J of the Act.

18. As to Grounds 1 and 2 of the amended application for review, it is asserted that the Authority erred in failing to find that there were exceptional circumstances justifying it considering as new information the documentation provided to it in the applicants’ submission of 9 August 2018 concerning the alleged sexual assault of the second applicant. In that regard, section 473DD of the Act provides as follows:

    “SECT 473DD

    Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

19. It has been held that the term “exceptional circumstances” has a wide meaning, such that it is impossible to exhaustively state what factors will in any given case be considered relevant, or what factors the Authority must consider in any particular case. [2] In this case, the Authority had considered the material put before it, and it had had due regard to it before finding that no exceptional circumstances existed. It could not be said that there had been a constructive failure to exercise jurisdiction on the part of the Authority before it made such finding. [3] At [7] of its reasons, the Authority fairly examined the claim in the context of the other claims made by the applicants, and did not find such claim as made to be credible. In any event, the findings directly related to the claims made by the first applicant as set out in paragraphs 18 – 21 inclusive of her statutory declaration. [4] The Authority was also entitled to find that the first applicant’s version as to how she was allegedly contacted about her daughter’s alleged assault, whilst the first applicant was in Lebanon, was lacking in detail. In such circumstances, it was open for the Authority to find that there were no exceptional circumstances justifying its consideration of the information.

    [2]        Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at

    [3]        BBS16 v Minister for Immigration and Border Protection (2017) 158 ALD 198 at [113].

    [4]        CB page 258.

20. Such finding made under section 473DD(a) of the Act is separate and distinct from any finding made in respect of the considerations as set out in section 473DD(b) of the Act. As was said by Gilmore J in BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]:

    “[26] Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied. The word ‘and’ separating subparas (a) and (b) is conjunctive. The position is not that new information given by a referred applicant can be considered if either s 473DD(a) or s 473DD(b) is met. Indeed, as the Minister correctly submits, the Minister's submission is consistent with BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [36] where White J proceeded upon the assumption that the Authority had misconstrued s 473DD(a) (as his Honour later held at [46]-[47]). It is also consistent with the Full Court's observation at [46] in CHF16.”

21. Ground 2 of the amended application for review overlaps Ground 1. The Authority did consider each of the limbs in section 473DD of the Act. Secondly, as to section 473DD(b)(i) of the Act, the Authority made specific reference to such provision in its reasons at [7], as it did to issues of credibility in respect of section 473DD(b)(ii) matters. Even if there was error in the approach of the Authority in its consideration of section 473DD(b) matters, any such errors were immaterial in the light of its not having been satisfied that exceptional circumstances existed under section 473DD(a).

1. As to Ground 1A of the amended application for review, this Ground also overlaps with Grounds 1 and 2. It asserts that the Authority ignored the fact that the entry interview of the second applicant was conducted by a male at a time when the second applicant was only 15 years of age, and in circumstances where the Authority had accepted, at [28] of its reasons, that the first applicant had not disclosed that the first applicant had been sexually assaulted in 2012 at the time of her entry interview because of her shame at revealing such matters. In that regard, it is of note that the Authority did not accept the first applicant’s reason for not having disclosed, at an earlier time, the claim as to her daughter’s alleged sexual assault. Specifically, no reason was given by the first applicant as to why she hadn’t disclosed any such assault upon the second applicant in the intervening 5 years between the time of the entry interview and the time of the SHEV interview in circumstances where the age of the second applicant, and the male gender of the entry interviewer, would have been considerably less relevant to the first applicant’s attitude to disclosure than at the time that the entry interview had been conducted. It is also of relevance that the first applicant had disclosed her alleged sexual assault after the time of her entry interview, notwithstanding the alleged cultural shame associated with her having done so. The Authority at [1] of its reasons specifically referred to the age of the second applicant. The Authority did not need to specifically refer to the reasons as to why it did not again mention the age of the second applicant when making a finding about whether the claim concerning the alleged sexual assault of the second applicant at a young age was credible or not. The failure on the part of each of the first applicant and the second applicant to make reference to the alleged assault upon the second applicant before the time of the SHEV interview was a matter which the Authority was entitled to take into account when assessing the veracity of such claim. It had turned its mind to the issue. That it made a finding adverse to the credibility of the first applicant was a course open to the Authority. The fact that the Authority accepted the first applicant’s reason for not first disclosing the alleged sexual assault upon her, did not prevent the Authority from making adverse findings against the first applicant in respect of the alleged sexual assault of the second applicant. The Ground is without merit.

2. As to Ground 1B, there is no merit to the assertion that the Authority acted unreasonably or irrationally in declining to be satisfied that the claim relating to the alleged sexual assault of the second applicant was credible. The Authority, at [7] of its reasons, not only referred to the earlier previous opportunities which each of the applicants had to make claims about the alleged sexual assault of the second applicant, but also referred to the second applicant’s inconsistent evidence about the reasons for leaving Sri Lanka, as well as the lack of detail associated with the first applicant’s explanation as to the circumstances in which the second applicant’s sexual assault allegedly occurred. The Authority also found that had the information the subject of the claim been genuine it would have been provided earlier. The Authority relied on a number of grounds when rejecting the applicants’ claims, not just the fact that the claim was only made after the delegate had refused to grant the visas.

3. As to Ground 3 of the amended application for review, it was asserted that the Authority misapplied the relevant test as set out in section 5J of the Act, which section provides as follows:

   “SECT 5J

   Meaning of well-founded fear of persecution

   (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)  the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)  there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)  the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L

   (2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)  conflict with a characteristic that is fundamental to the person's identity or conscience; or

   (b)  conceal an innate or immutable characteristic of the person; or

   (c)  without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)  conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)  alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)  conceal a physical, psychological or intellectual disability;

   (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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

   (a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

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

   (c)  the persecution must involve systematic and discriminatory conduct.

   (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.

   (6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”

4. It has been found that persecution under the section involves selective harassment. [5] Acts which are random, or are not systemic, are not selective. [6]

   [5]        Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [36] per McHugh J.

   [6]        Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [99] per

5. The Authority not only addressed the issues the subject of Ground 3 at [28] of its reasons, but also at [41] – [44] inclusive of its reasons. The Authority did not accept that any sexual assault of the first applicant was sanctioned by Sri Lankan authorities, although it conceded that such assault may have been carried out by security officers. It found that the incident was an abhorrent opportunistic act, but not an act sanctioned by Sri Lankan authorities. At [41] of its reasons, the Authority noted that the first applicant claimed to fear harm if returned to Sri Lanka because she was a Tamil woman without male protection who had a dependent daughter. At [42] of its reasons, the Authority referred to country information from the UN Special Rapporteur report of 2017 which relevantly recorded a decrease in the reporting of incidents of sexual assault by the military, although other country information noted that Tamil women continued to fear sexual assault in locations where the military presence remained. It noted that female-headed households were vulnerable to increased risk of sexual and gender based harm. At [43] of its reasons it was noted that there was nothing to suggest that the first applicant and her daughter could not find accommodation and live with the first applicant’s 19 year old son if they were returned to Sri Lanka. Accordingly, having considered such issue, it was open for the Authority to rationally find, as it did, that it did not accept that the applicants would be without male protection, or that they would be part of a female-headed household, so as to be at risk of suffering harm for the reasons adverted to in the country information, if they were returned to Sri Lanka. In that regard, it was of note that the Authority recorded that there was no report by the first applicant that the female friend her son had been living with, or that that friend’s mother, had faced harm or sexual violence, during the time that the first applicant’s son had been living with them. Further, the Authority found that the first applicant had relatives who could provide different levels of support to the first applicant and the second applicant if they were to return to Sri Lanka. The Authority was further entitled to find, as it did at [44] of its reasons, that the first applicant would return to Sri Lanka as part of a family with a male head of household, and that, as a result, the chance of her being subjected to an opportunistic assault was remote. It was also open for it to find that there was nothing in the evidence before the Authority to suggest that if returned to Sri Lanka the first applicant was at a greater risk of harm because she had been assaulted some 7 years previously. It was noted that the first applicant did not have a profile which would bring her to the attention of the authorities such that she would be detained on her return. The Authority pointed to country information which suggested that the applicants would not face a real chance of harm if returned to their home area in Sri Lanka based upon their Tamil ethnicity, their prior residence in an LTTE controlled area, the first applicant’s prior interactions with Sri Lankan authorities, or because of any physical or mental health condition. In the context of its consideration of the claims of the first applicant, it cannot be said that the Authority did not turn its mind to the question as to whether the applicants would face a real chance of harm either at the hands of government security or military personnel, or from non-government agents such as those who he Authority considered may have committed the opportunistic attack upon the first applicant in 2012. The Authority undertook a considered assessment as to whether the applicants had any well-founded fears of persecution as provided for in section 5J(2) of the Act, and found that there were no such fears. In those circumstances, the Authority was not required to undertake an in depth analysis as to what position the Sri Lankan State had adopted as to its ability or willingness to protect the first applicant from sexual assault by government security or military personnel, or from other persons employed by government authorities. The Ground, for those reasons, is misconceived.

6. As to Ground 4 of the amended application for review, it was asserted that there was no evidence for the finding that any assault upon the first applicant in 2012 was an opportunistic criminal act, and that such error constituted jurisdictional error. First, it would appear that the applicants do not challenge the finding of the Authority that it did not accept that any sexual assault of the first applicant occurred in the context of, or at a time when she was being questioned by, the SLA or CID. Second, there was country information before the Authority that suggested that women in female-headed households faced increased risks of sexual harm ([42] of Authority reasons). In circumstances where the Authority held, as it was entitled to do, that the sexual assault of women such as the first applicant was not State sanctioned, it was therefore open for the Authority to form the view that based on available inferences, any assault of the first applicant was opportunistic. It is not contended by the applicants that any such opportunistic attack was neither abhorrent nor criminal. The characterisation of the attack, in that regard, cannot be questioned. It was also open for the Authority to so find because, at the time of the alleged attack, the first applicant was part of a female-headed household unprotected by a male, such protection being something which relevant country information suggested was a factor in lessening the likelihood of such attacks. There was no country information which suggested that sexual attacks upon women were State sponsored. In the absence of such evidence, it was open for the Authority to find, as it did, that the attack upon the first applicant was not State authorised or sanctioned. In those circumstances, it was therefore open for the Authority to find that the attack was opportunistic. The Authority properly engaged in a consideration of relevant evidence before it made such finding. The finding was to be distinguished from other evidence suggestive of women being at a higher risk of assault if they were members of a female-headed household. This Ground was, for those reasons, misconceived.

7. The Authority engaged in the issues before it in a reasoned way. The decision of the Authority was open to it on the evidence. [7] The conclusions drawn by the Authority were not illogical and were open to it based upon available inferences and the evidence before it. [8] As was said by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [55]:

   “[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”

   [7]        SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [111] per Barker J.

   [8]        Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan

8. It cannot be said that no other rational or logical decision maker could not have made the same decision as did the Authority. As was said by Crennan and Bell JJ in SZMDS at [130]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

9. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] were it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

10. The applicants have not demonstrated jurisdictional error on the part of the Authority.

11. The amended application for review is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  14 October 2019

[30].         McHugh J.         and Bell JJ.