BIL19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 438
•26 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIL19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 438
File number(s): SYG 782 of 2019 Judgment of: JUDGE VASTA Date of judgment: 26 March 2025 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 19 March 2025 Date of hearing: 19 March 2025 Place: Brisbane Counsel for the Applicants: Mr Jones Solicitor for the Applicants: Ray Turner Immigration Lawyers Solicitor for the First Respondent: Mr McLaren Solicitor of Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 782 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIL19
First Applicant
BIM19
Second Applicant
BIN19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICUTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
26 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be amended to read “Administrative Review Tribunal”.
3.The applications filed on 29 March 2019, be dismissed.
4.The Applicants pay the First Respondent’s cost of and incidental to the application fixed in the sum of $8,371.38.
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 VASTA
INTRODUCTION
On 6 March 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed the decision not to grant the applicants, BIL19, BIM19 and BIN19, protection visas. On 29 March 2019, the applicants asked this Court to review that decision.
This matter first came before the Court on 18 April 2019, where the registrar made the usual orders for filing of material. The matter was set down for mention at a call over on 5 September 2019. On that date, the registrar ordered that the matter be listed for call over at a time and date to be fixed administratively. It was not mentioned again until 12 November 2024, when the registrar made new directions for the filing of material. The matter was then listed into my docket to be heard on Wednesday, 19 March 2025.
This means that it has been almost 6 years that the Applicants have been waiting for this Court to dispose of their application. On behalf of the Court, I apologise to the Applicants for the inordinate delay in being able to determine their application.
One of the few advantages for the Applicants, is that the delay has given them the ability to file an amended application, which was done on 20 February 2025, and to have been represented by Mr Oliver Jones of Counsel who has been of great assistance to the Court.
Background
The main applicant is BIL19. She is a citizen of Sri Lanka and was born in January 1961. BIM19 and BIN19 are her daughters who were born in August 1992 and August 1995 respectively. The claims for protection have been made by the main Applicant (who will be simply referred to as “the Applicant” in these reasons), however there were some separate claims made by the other two Applicants.
The main Applicant arrived in Australia on 15 December 2014 as the holder of a tourist visa. The other two Applicants arrived in Australia on 29 March 2015, also as holders of tourist visas. The three Applicants made applications for protection Visas on 12 May 2015.
The claims were that the Applicants were at risk of harm in Sri Lanka from the Sri Lankan authorities and members of the Eelam People’s Democratic Party (“EPDP”). There were three main claims: -
·That EPDP members tried to force the second and third applicants to marry them. They threatened to expose the main applicant as a member/supporter of the LTTE if the applicants refused to comply with their demands of marriage;
·That the main applicant would be thought to be a supporter of the LTTE because she had a number of relatives who were either LTTE members or supporters; and,
·That due to the three applicants being women (and women without male protection) they were at risk of sexual violence and other forms of harm in Sri Lanka.
In short compass, the Applicant said that her husband had left Sri Lanka in 1995 because of the actions of Sinhalese thugs. The Applicant said that her siblings had been forced to join the LTTE, and they had fled Sri Lanka to avoid being arrested and tortured by the authorities. She said that she had witnessed the harassment meted out to her family. She said that her family became a “Heroes Family”. She said that her mother and all seven of her siblings left Sri Lanka and now live in France. She said that she did not go because her children were small. She said that her husband had told her that he would go ahead to Europe and then sponsor her and the children.
The Applicant told the AAT that the Sri Lankan Army had attacked Jaffa in 1995. She said that she was relocated to Vanni. She said that she stayed there until 1998 when her husband was able to send her money. She said that she used part of that money to bribe her way out of Vanni.
The Applicant then moved to Colombo. The Applicant did not give any evidence of personally facing problems with the Sri Lankan authorities or anyone else in the next 15 years. The Applicant did say that her three eldest children did face problems and that they have all left Sri Lanka and are now residing in other countries.
Temple Incident and Marriage “proposal”
The Applicant said that there was an incident that occurred in November 2013. She said that she did volunteer work at the temple. She said that the CID were chasing some boys. The Applicant did not give the CID any information about these boys. She said that she and her two co-workers were arrested and taken to CID headquarters. She said that the CID procured the services of two Tamil speaking men to interpret for her during the interrogation procedure.
She said that the two co-workers were released because they were Brahman, but she remained in custody. She said that the Tamil men were sent by the CID to speak to the priest at the temple. She said that they returned three hours later, and CID left them to speak to her alone.
She said that the Tamil men told her they were from the EPDP, and they’d made enquiries in the neighbourhood and discovered that the Applicant came from a Heroes Family. They demanded that she pay them ₹50,000 or they would tell the CID about her family background and that she would be imprisoned indefinitely. The Applicant said she was able to arrange for her husband to pay the money within a week.
The Applicant claimed that, around February 2014, she was at a bus stop with her two daughters. The two EPDP members who had been involved with the “temple incident”, just happened to travel on the same bus as her daughters (the other two Applicants) who were going to school. She said that as she and the other Applicants got off the bus, so did the two men. The other Applicants went to school and the Applicant went to take a taxi home.
The Applicant said that these two men got into the same vehicle and told her that she should give them her daughters in marriage because they had saved her from the arrest. She said that they reiterated all of the things that they knew about the Applicant. She said that she told the men that her daughters were still students and not ready for marriage and that she needed her husband’s permission before she could agree. She said the men agreed to wait for the daughters to finish their studies.
The Applicant said that her husband then returned to Sri Lanka. She said that in about October 2014, the husband was confronted by these men at the daughter’s school. She said they asked him whether he had agreed to the marriage. She said her husband became angry but said he would agree to the marriage if the men provided details about their education and background. She said later that day, these two men telephoned her and told her that they would arrange for the CID to arrester and would abduct her daughters permanently, unless she persuaded a husband to agree to the marriage.
She said that these two men and their families then came to her house. She said that she and the husband agreed to the marriages to occur in May 2015. She said that after this, she and the family moved to the house of the relative and arrangements were made for all of them to get visitor visas to come to Australia.
The Applicant said that the EPDP are well-known for abduction, rape and murder of Sri Lankan women. She said they take women away promising to marry them and later rape and kill them. She said the CID will not lay charges against them if they commit these crimes.
Claim of risk on the basis of gender
The Applicant claimed that she would be at risk of serious, or significant, harm including sexual violence if she returned to Sri Lanka because she is a woman and she would not have male protection.
Claims of BIM19 and BIN19
The other Applicants, BIM19 and BIN19, both claimed that they would be forced to marry an EPDP member against their will if they returned to Sri Lanka. They also claimed that they would be great or be the subject of other forms of serious harm if they refuse to submit to this demand.
Both applicants said that they would be suspected of involvement in the LTTE because of their family background and that they would face sexual violence and other forms of harm because of their status as women in Sri Lanka.
AAT Disposition
The AAT considered all of these claims very thoroughly. In the end, the AAT was not satisfied that any of the Applicants had met the refugee criteria. The AAT was also not satisfied that any of the Applicants had met the complementary protection criteria. For those reasons, the AAT affirmed the decision of the delegate.
Ground One
The first ground of the amended application, filed 20 February 2025, is as follows: -
The Tribunal made findings in relation to attempts to force BIM 19 and BIN 19 into marriage that were legally unreasonable and involved the Tribunal making unwarranted assumptions unsupported by the evidence. This constituted jurisdictional error
The Applicant claimed that the findings were made in a “legally unreasonable way”. During the course of the hearing, I sought to understand whether the claim was that the finding itself was “legally unreasonable” or whether the method by which such a finding was made was “legally unreasonable”. The answer was that it was both.
The Applicant noted that the findings that the AAT had made about the “temple incident” were pivotal in their assessment of the “marriage proposal incident”. The Applicant submitted that if there was an error in relation to the findings made regarding the “temple incident”, then that obviously would lead to there being an error in relation to the “marriage proposal incident”.
What evidence the Applicant gave regarding the temple incident
The Applicant wrote a statement for the purposes of her Visa application. This statement is reproduced at CB 110. On the last line of CB 122, the Applicant begins to explain the “temple incident”. At CB 123, the Applicant wrote:-
CID police officers entered the temple and ordered all those working in the temple to come forward. I, along with two Brahman ladies who were cooks in the temple, approached them. [… ] The officers asked me whether I saw four boys entering the temple a few minutes ago. I declined. The officers went around the back of the temple premises searching for these youths when I saw the boys running away from the officers using the front main gate.
This can be contrasted with what the Applicant said during the hearing at the AAT. At page 47 of the transcript (which is annexed to the affidavit of Raymond Charles Turner), the following exchange occurs: -
AAT (“A”): …What happened to you in 2013?
Interpreter (“I”): In November 2013, there were some priests, (indistinct) lady, priests’ wives and everyone were cooking inside. I was also going and helping cleaning the temple and everything at that time. At that time we heard someone shouting from outside saying “who is inside the temple? All come out.” Then we all went out to see. So they asked me, they said that, “there were four boys who had come running here. Did you see?”
A: Who were they? They said four boys came running stop who said four boys came running. It’s a simple question. I want a simple answer.
I: Repeat your question
A: Yes. Can you tell me what she said first?
I: She was saying that, you know, because they were just saying there were four boys who ran inside here and who are the people who ran in here and everything.
A: I wasn’t there. I have no idea who asked you that question. Was it the police? Was it the army? Was it some random person? Who said, ‘come out, we say boys running in’?
I: CID.
A: CID. How do you know it was the CID?
I: No, they said they had come from the CID.
A: Okay. And they said, ‘four boys came running here. Did you see them’. Is that correct?
I: Yes.
A: Did they say anything else to you?
I: They asked me and I said I didn’t see them.
A: Okay. Had anybody else seen them?
I: Even those Brahmin ladies saw them, that they had come from the CID.
A: Okay. No, what I mean is the boys. Did anybody see the boys run in?
I: Those (indistinct) had seen.
A: And did they tell the CID they’d seen?
I: No. They didn’t tell me. But they were also with me.
A: I don’t understand that answer. Let me ask my question again. In fact, I’ll ask some more questions to make sure I fully understand. Now, I understand you told the CID you didn’t see the boys. Was that the truth? Had you seen the boys or not?
I: Yes, yes.
A: Yes, yes, what? Yes, yes, you saw them?
I: Yes, I told them I didn’t see.
A: I understand that. My question is did you see the boys or not?
I: I saw them.
A: So you lied to the CID.
I: Yes, I told them that.
A: Okay. Now I understand. Okay. And the Brahmin ladies, they also saw the boys and they also told the CID they hadn’t seen them?
I: They didn’t ask them. They only asked me.
A: Why? Why did they not ask them?
I: They were standing next to me, so they asked me.
A: So the CID, this trained police force, didn’t ask some of the witnesses? They only asked you?
I: No, they asked me and then they were suspicious whether those boys were behind there, and so they ran behind there.
A: Okay. So tell me, what did you see of the boys? What were they doing?
I: Because we were standing in front of the temple, so they only came and asked what we saw.
A: No. I’m not asking that. My question is, you said you saw the boys running somewhere. Tell me, what did you see the boys do? Did they run into the temple? Did they run past the temple? Did they hide under something? What did you see?
I: I saw them running behind the temple.
A: Okay, not inside the temple, behind the temple.
I: No, in outside only they ran, outside the temple only.
A: So, you did look out of the temple and see some boys running past?
I: Yes.
AAT conclusion regarding the Temple incident
Having regard to these two pieces of evidence, as well as all of the other evidence, the AAT did not accept the claim regarding the “temple incident”. The AAT wrote the following, at paragraphs 81 to 84: -
81.In the first place, she has given differing accounts of this incident. In her submissions to the Department she claimed that she had seen the boys enter the Temple but denied this when the CID officers entered the Temple and questioned her. However, according to her evidence at the hearing, the neither the boys nor the CID officials entered the Temple. I find this alone to be strong evidence applicant A’s claims regarding this incident are untrue.
82.Secondly, it is not plausible that applicant A would have been detained, abused and questioned by the CID merely because some boys suspected of LTTE involvement had been seen running near the Temple where she was working as a volunteer, as claimed at the hearing. As noted above, the LTTE was completely defeated in 2009 and the Tamils in general were no longer at risk of being suspected of LTTE involvement in late 2013 merely because of their ethnicity or place of origin. Applicant A had no history of personal involvement with the LTTE and had resided in Colombo for some 15 years without experiencing any problems with the Sri Lankan authorities prior to November 2013. While I accept that she would have been questioned about what she had witnessed by the CID if they were chasing people suspected of LTTE involvement, I do not accept that she would have been detained and abused.
83.Thirdly, her evidence regarding the involvement of the EPDP in her alleged detention was at odds with country information regarding the role and influence of the EPDP at that time. While I acknowledge the EPDP was involved in identifying LTTE members during and immediately after the end of the civil war, the country information indicates that this occurred mostly in the north of the country. As noted above, the EPDP only ever had a relatively limited presence in Colombo, and I am unaware of any evidence which suggests that they were working with the CID in Colombo in the manner claimed by applicant A in late 2013.
84.After considering all of the relevant evidence I do not accept that applicant A was detained and abused by the CID in November 2013 because they suspected she was involved with the LTTE or that EPDP members extorted her for money after threatening to inform the CID that she was or had been an LTTE member.
Errors?
The Applicant submits that errors have arisen in the reasoning of the Tribunal. The Applicant is critical of the AAT’s statement that the difference in testimony, alone, was strong evidence that the tale being told by the applicant was not truthful. The Applicant submits that this was merely an “inconsistency” and a minor one, at that. The Applicant submits that this aspect could never amount to strong evidence against the credibility of this claim. Because it could never amount to strong evidence, it is, therefore, legally unreasonable.
I do not agree.
The gist of the written claim of the Applicant was that four boys ran into the temple because they were being chased by CID officers. From the description given by the Applicant, the boys had eluded the CID, but the CID believed that they had the boys trapped in the temple. The CID then entered the temple and demanded that all who were present should come out so they could be seen by the CID. The CID then search the temple, and the four boys run out of the front main gate, in effect exiting in the same way that they had entered and thereby continuing to elude the CID. The inference is that the CID had cause to believe that the Applicant and the other two women have been harbouring these boys. And this is the basis for the arrest and detention of the Applicant.
However, if the boys have merely run past the temple and never ventured inside, and the CID did not ever venture inside the temple but simply called from the outside for people inside the temple to come out, there could be no reason for there to be any cause to believe that the Applicant, and the two other women, were in any way harbouring these four boys. This means that the justification for the arrest and detention of the Applicant is non-existent.
When looking at the matter in this way, it is open for a decision-maker to conclude that this “inconsistency” in the testimony of the Applicant is not minor and is not something that can be simply ignored. It goes directly to the heart of whether the testimony is truthful and reliable. Whether or not another decision-maker would come to the same conclusion is not the point. The question is whether it was open for this decision-maker to conclude that the “inconsistency” provided strong evidence that the claims regarding the “temple incident” were untrue. This conclusion was open and, therefore, no jurisdictional error is illustrated.
The Applicant also submitted that when the AAT said, at paragraph 82, that it was “not plausible” that the Applicant would have been detained in the circumstances as she described in her oral evidence to the AAT, the AAT had made “an unwarranted assumption which was not supported by the evidence”. If this is so, the Applicant submits that the AAT’s conclusion, that such a state of affairs was not plausible, was legally unreasonable.
The Applicant, on her oral evidence before the AAT, told a tale where she was simply working in the temple and had seen some boys running outside the temple. She then heard voices outside the temple asking everyone inside to come out. She, and two others, came out. She said that she, only, was asked whether she had seen the boys. She said that she hadn’t. (She told the AAT that this was an untruth told to the CID.) After her answer, the CID detained all three women.
It was open for the AAT to describe that tale as “not plausible”. On that tale, there was no reason for her to be detained. There may have been a reason to be questioned as to whether she had seen four boys run past, but there would be no other reason, on that tale, for the police to have any other reason to detain the Applicant. For the CID to detain someone, who was inside the temple, and told the CID that she had not seen the boys run past the temple, could be characterised by the AAT as being “not plausible”. Again, it is not whether another decision-maker would have come to that same conclusion, the question is whether it was open for this AAT to come to that conclusion. It was open and therefore no jurisdictional error has been illustrated.
The Applicant contends that, because of the background of the Applicant, it was plausible that the CID might have formed the view that she had some connection to the LTTE. This is a rather extraordinary submission. The Applicant had lived in Colombo for 15 years and had not personally come to the adverse attention of the CID, or any other authority, during that time. But to suggest that these CID officers who were pursuing four boys might just happened to have knowledge of connections of a volunteer at the temple, is somewhat fanciful.
The Applicant herself said that the persons from the EPDP had no idea of her connections until they went and spoke to the priest at the temple. One would ask rhetorically that if this was how the EPDP found out, what were the chances be that the CID officers, who were pursuing four boys, somehow knew of the connections of the Applicant. In raising this contention, the Applicant has only assisted the Court in concluding that it was open for the AAT to find, on the oral evidence of the Applicant, that it was not plausible for them to have detained her.
The Applicant also takes issue with the AAT remarking that the involvement of the EDPD, as described by the Applicant, was “at odds with country information”. The Applicant submits that the AAT had earlier accepted that the EPDP work closely with the Sri Lankan military and that members did engage in intimidation, extortion and violence against citizens, primarily in Jaffna but also, in a limited way, in Colombo. Having accepted this, the Applicant submits that the AAT could not reasonably conclude that the Applicant’s evidence was at odds with country information.
The country information, upon which the Applicant relies, is found at paragraphs 24 and 25 of the reasons of the AAT. These paragraphs are as follows: -
24.The EPDP is a pro-government Tamil group lead by Douglas Devananda. During the civil war and for some time afterwards, it operated as a paramilitary group working closely with the Sri Lankan military. It currently operates as a political party and holds one seat in the Sri Lankan parliament. It was closely aligned to the Rajapaksa government and, according to a number of reports, members engaged in intimidation, extortion, corruption, and violence against civilians in Jaffna. Much of this violence was directed against journalists, opposition Tamil politicians or community members engaged in human rights cases that could bring disrepute on the Rajapaksa government.
25.Reports indicate that the EPDP has always operated mainly in the north of Sri Lanka. Sources told the Canadian Immigration and Refugee Board (IRB) in 2011 that the group had a limited or minimal presence in Colombo. More recent reports, including the 2017 IRB report note continuing abuses by the EPDP in Jaffna, but do not suggest that the group had a significant presence or involvement in similar activities elsewhere in the country.
The AAT accepted that, in 2011, the EPDP had a “limited or minimal presence in Colombo”. By 2017, there is no suggestion that the group has any significant presence or involvement anywhere other than Jaffna.
On the tale told by the Applicant, in Colombo, the CID (not the Sri Lankan Army) is working hand in glove with the EPDP. The CID is subcontracting out their work in interrogation and information gathering to the EPDP. The CID is allowing the EPDP unfettered access to suspects that it has arrested and detained. The CID is allowing the EPDP to extort money from persons in CID custody and allowing them to (using the words of the Applicant) “escape” the CID.
Whilst such behaviour might be plausible if it were happening in the Jaffna area, it is difficult to understand how a group, that has limited or minimal presence in Colombo, has the authority of which the Applicant describes.
I am of the view that it was open for the AAT to describe the Applicant’s tale of the EPDP as being “at odds” with the country information. No jurisdictional error is illustrated.
Having looked very closely at the reasoning of the AAT with respect to the “temple incident”, I am not satisfied that such reasoning has been infected by jurisdictional error.
The AAT conclusions on the marriage proposal incident
To understand the criticisms of the reasoning of the AAT, it is necessary to view what the AAT wrote about the “marriage proposal incident” in context. At paragraphs 90 to 107, the AAT said: -
90.In her submissions to the Department, the applicant said that about a week after she returned from India (in early February 2014) the two EPDP members who had been involved in her detention in November 2013 travelled on the same bus as her daughters who were going to school. When she took a taxi home the men got into the same vehicle and said that she should give them her daughters in marriage because they had saved her from arrest. They also said that they were from Jaffna and knew her family background. In order to escape, she said that her daughters were still students and not ready for marriage and that she needed her husband’s permission before she could agree. The men agreed to wait for her daughters to finish their studies. They said that they had to visit Jaffna on a mission for some time but would return to Colombo and marry her daughters.
91.Following this incident the applicant’s husband returned to Sri Lanka. In about October 2014 he was confronted by the men at his daughter’s school and asked whether he had agreed to the marriages between them and his daughters. Her husband became angry but said that he would agree to the marriage if they men provide details about their education and background. Later that day, the men telephoned the applicant and told her that they would arrange for the CID to arrest her and would abduct her daughters permanently unless she persuaded her husband to agree to the marriages. They also said that they would arrange for their parents to come and talk to her about the planned marriages.
92.Following this the boys and their families came to the applicant’s house. She and her husband agreed to the marriages which were scheduled for May 2015. However, she and her family moved to a relative’s house while her daughter in Australia made arrangements for them to get visitor visas for Australia.
93.In a written submission to the Tribunal dated 16 August 2018, the applicant stated that paramilitaries are well known for the abduction, rape and murder of Sri Lankan women. She said that they take women away promising to marry them and later rape and kill them and the CID will not lay charges against them. In support of these claims, she noted evidence from Amnesty International’s Annual Report 2017/2018 regarding violence against women in Sri Lanka, and an article dated 26 June 2018 which reported the rape of two schoolgirls in Battacaloa by Singhalese soldiers.
94.The applicant’s evidence at the hearing regarding attempts to force her daughters to marry men from the EPDP was somewhat confused, but in essence repeated her earlier claims. She said that in February 2014 the men from the EPDP had followed her and her daughters on the bus to school and entered the taxi which she took to return home. I asked why the men had come to the bus stop rather than go directly to her house as they appeared to know where it was. She said she did not know.
95.I asked the applicant if the men had been aware that she had two young daughters. She said that her daughters had not been at home when the EPDP men took her home after being detained in November 2013. I observed that it seemed unlikely that the men would have followed her and demanded that she give them her daughters if the meeting at the bus stop had been unplanned, and also unlikely that they would have come to the bus stop rather than go directly to her house if they knew about her daughters and were planning to marry them by threatening her. She said it was possible that they would have followed her after seeing the girls if they liked them, but she did not know why they approached her in this manner. I asked the applicant why she had not protested or asked for help from the driver of the taxi when accosted by the men in February 2014. She said that she could not have asked for help because the driver would have been too fearful to help her.
97.I asked the applicant why she had not asked her relatives in Europe or Australia for help following the February encounter if she believed that the men would carry out their threats. She said that her relatives were always trying to help. I asked if she had applied for a visa to travel outside Sri Lanka following this incident. She said that she had not. She said she told her daughters about the problem, and they cried. I observed that it seemed strange that she had not applied for a visa so she could leave Sri Lanka until November 2014 if she feared for her safety. She did not respond.
98.The applicant said that the men had told her that they had to go on a mission to Jaffna and would be away for some time, and the next contact with the men was in October 2014 when they spoke to her husband outside her daughters’ school. I observed that it was strange that the men would have chosen to make contact in this way rather than go to her house. She said they did what they wanted. She said that her husband was very angry with the men. He refused to let them speak and told them he would not consent to them marrying his daughters. After that they called her and renewed their threats. She convinced her husband to agree to the marriages to avoid problems.
99.About a week later the men came to her home with about 10 or 11 family members and spoke to her husband. Because he feared for her life and the lives of his children, he agreed to the marriages. Her daughters were there, but did not speak to the men. She said that they agreed that weddings would take place in May 2015 and that she and her husband would pay all of the costs.
100.Following this encounter, BIM 19 and BIN 19 ceased attending school because they and the applicant were afraid the EPDP men might kidnap them, and the entire family went into hiding at the home of the applicant’s cousin in Colombo.
101.I advised the applicant that I had great difficulty accepting her claims regarding the problems she faced with the EPDP because they seemed implausible. She maintained that they were true.
102.I noted that the applicant had remained in Sri Lanka for a month after obtaining her visa for Australia in December 2014 and asked why she had not left as soon as possible. She said that she had not wanted to leave without her children. I observed that this appeared to be at odds with the fact that her older daughter had only sponsored her for a visitor visa at that time. She said that her daughter had sponsored her first because her life was in danger, but had promised that she would also arrange for her daughters to follow.
103.I do not accept that EPDP members threatened to falsely claim that the applicant was an LTTE member in order to force her and her husband to agree to marriages between them and BIM 19 and BIN 19.
104.As discussed above, I do not accept the applicant’s claims regarding her encounter with EPDP members in November 2013. It follows that I do not accept that the same men continued to threaten her and her family in relation to information they had received or concocted in November 2013.
105.Furthermore, even if I disregard this problem, much of the applicant’s evidence, regarding the threats and demands made by the EPDP, is at odds with independent country information. I am unaware of any evidence which suggests that the EPDP was able to engage in activities such as those claimed by the applicant in Colombo in 2013 or 2014. While I acknowledge that the EPDP had significant power and influence in northern Sri Lanka and engaged in extortion and criminal acts against a range of people in these areas, I am unaware of any evidence which suggests that they had a significant presence in Colombo in 2013 or 2014 or that they had power or influence in Colombo which would have allowed them to carry out these criminal activities with impunity.
106.In addition, I found many of the applicant’s claims regarding her interactions with the men from the EPDP inherently implausible. For example, it is not plausible that these men would have followed the applicant to her daughters’ school and then to her home in order to demand that she agree to arrange for them to marry her daughters, when they had been aware of her address since the 2013 incident. Alternatively, it is not plausible that they would have suddenly decided to force the applicant to agree to them marrying her daughters by threatening to falsely accuse her of LTTE membership after a chance encounter at a bus stop. Nor is it plausible that, after making these threats and demands, they would make no further contact for about eight months, then rather than going to the applicant’s house approach her husband, who they had never met, at their daughter’s school. Finally, it is not plausible that the applicant, who had had no personal involvement with the LTTE and had lived in Colombo for some 15 years, would believe that the authorities would detain and possibly kill her over three years after the end of the civil war simply because some members of the EPDP accused her of involvement with the LTTE.
107.After considering all of the evidence I do not accept that members of the EPDP threatened to falsely accuse the applicant of involvement with the LTTE unless she agreed to arrange for them to marry her daughters. I find that this claim was concocted to support her application for protection and the applications of her daughters. As I do not accept this claim, it follows that I do not accept that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka at the hands of the EPDP because she refused to succumb to their demands, or at the hands of the Sri Lankan authorities as a result of false accusations made by the EPDP.
At paragraphs 125 to 128, the AAT said: -
125.BIM 19 claims that she will be forced to marry an EPDP member against her will and that she will be raped or face other forms of serious harm if she refuses to submit to this demand. She also fears that she be suspected of involvement in the LTTE because of her family background and that she will face sexual violence and other forms of harm because of her status as a woman.
126.BIM 19’s evidence regarding the events between February 2014 and October 2014 was broadly similar to that provided by the applicant. She claimed that she, her mother and her sister were followed by men from the EPDP when she was going to school in February 2014 and her mother later told her about the demand that she marry one of these men and the threat that her mother would be accused of LTTE involvement if she refused. The next encounter with the EPDP was in October 2014 when her father came to collect her from school and the EPDP men repeated their demands and threats. Shortly after this, the men came to her home, with their families, and it was arranged that she would marry one of the in May 2015. After this she and other members of the family went into hiding at a relative’s house until she was able to obtain a visitor visa for Australia and leave the country in March 2015.
127.At the hearing I advised BIM 19 that I had difficulty accepting these claims as they did not appear to be plausible. I advised her that while I was aware that the EPDP had worked with the Sri Lankan authorities in the past to identify LTTE members, it was not my understanding that they had been involved in these or other activities in Colombo in recent years. I also advised her that I had great difficulty accepting that her father would have been threatened in Jaffna because she, her mother and her sister had fled to Australia to avoid being forced to marry EPDP members. BIM 19 maintained that her claims were true and that she was at risk of serious harm from EPDP members if she returned to Sri Lanka.
128.As discussed above, I do not accept that the applicant first encountered these men in November 2013 when she was arrested by the CID, but even if I ignore this problem, as set out in detail in my findings relating to the applicant, I find these claims to be inherently implausible and at odds with country information. I do not accept that BIM 19 fled Sri Lanka to avoid being forced to marry an EPDP member or face serious harm including sexual assault for refusing to do so. I find that these claims were concocted to support her application for protection in Australia.
At paragraphs 136 and 137, the AAT said: -
136. BIN 19’s claims are identical to those put forward by BIM 19.
137.For the reasons set out above I am not satisfied that she faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act and therefore I am not satisfied that she has a well-founded fear of persecution now or in the reasonably foreseeable future.
It is said, by the Applicant, that these findings were made in a legally unreasonable way. Firstly, it was said that the AAT relied upon their findings regarding the “temple incident” which the applicant claimed was unreasonable. I have earlier concluded that the reasoning of the AAT regarding the “temple incident” was not infected by jurisdictional error. This means that there was no error on the part of the AAT in relying upon those findings in assessing the credibility of the “marriage proposal incident”.
The Applicant submitted that, even if one discounted the “temple incident”, the AAT accepted at paragraph 82, that if that incident occurred, the Applicant would have at least been questioned, and therefore the EPDP could have had some involvement. There is no merit to this submission. The AAT had already found that the incident did not occur. In any event, the AAT had said, in paragraph 82, that if boys had run past the temple, it accepted that the CID may have questioned the Applicant at the scene. In such a scenario, there is no room for the EPDP to play any part.
The Applicant again takes issue with the phraseology of the AAT when it said, at paragraph 105, that the tale of the Applicant was “at odds” with the country information. However, the AAT explained exactly why the story of the Applicant was “at odds” with the country information. This was because there was no evidence that suggested that the EPDP was able to engage, in Colombo, in the activities described by the Applicant.
It seems to me that, if an Applicant describes an activity and there is no country information that supports the contention that such activity occurs, it is open to conclude that the description of the Applicant is “at odds” with the country information. There is no jurisdictional error illustrated in this form of reasoning.
The Applicant submitted that the country information was that members of the EPDP engaged in intimidation, extortion, corruption and violence against civilians. The country information also demonstrated that violence against women is widespread in Sri Lanka. The Applicant submitted that a threat by a person to falsely denounce the applicant as a member of the LTTE, to force a marriage with her daughter, is not inherently implausible.
However, this was not what the AAT had said. The AAT simply said that the tale of the Applicant was “at odds” with the country information. The AAT said that many of the Applicant’s claims regarding her interactions with the men was “inherently implausible”.
The Applicant was attempting to convince the AAT that: -
·The men followed her to her daughter’s school, and then to her home, in order to demand that she agree to the marriage of her daughters to them. But, according to the Applicant, these men already knew her address because of their involvement in the “temple incident” that had occurred about three months beforehand.
·The men suddenly decided to force the Applicant to agree to them marrying her daughters, by threatening to falsely accuse her of LTTE membership, after a chance encounter at a bus stop.
·The men, having made all of these threats, then make no further contact for eight months.
·When they do make contact, they go to the school of the two daughters and approach the husband of the Applicant, whom they have never met before, and would have no reason to recognise him as the husband of the Applicant.
·Even though the Applicant has never had any personal involvement with the LTTE and has lived in Colombo for the past 15 years, she still genuinely feared that the authorities will detain, and possibly kill, her, simply because some members of the EPDP accused her of involvement with the LTTE, three years after the civil war had ended.
While some of those contentions may be far less plausible than other contentions, when looked at as a whole, it was open for the AAT to describe each of those contentions as “not plausible” and, for many of the claims, the description of “inherently implausible” was also open. As has been noted before, it is not whether another decision-maker may not have come to the same conclusion, it is whether it was open for this decision-maker to have come to that conclusion. This is why no jurisdictional error is illustrated in the description given by the AAT.
Realistically, the arguments advanced by the Applicant, in relation to ground one, were an impermissible attempt at merits review.
Ground one, therefore, fails.
Ground Two
This ground was expressed in this way –
The Tribunal made findings in relation to the risk of harm posed to the applicants on return to Sri Lanka as women that were legally unreasonable. This constituted jurisdictional error.
The basis of this submission was that the AAT had earlier made findings at paragraph 15, 26 and 27 of their reasons.
15.The applicants claim that they are at risk of serious or significant harm in Sri Lanka from the Sri Lankan authorities and/or members of the Eelam People's Democratic Party (EPDP) which they describe as a paramilitary group and political party, mainly because EPDP members were attempting to force applicants BIM 19 and BIN 19 to marry them and threatening to denounce applicant A as a member of the Liberation Tigers of Tamil Eelam (LTTE) if she and her daughters refused to succumb to their demands. They also claim that they are at risk of harm because they may be believed to support LTTE, primarily because of their relationship to a number of relatives who were LTTE members or suspected of being LTTE supporters. Finally, they claim that they are at risk of sexual violence and possibly other forms of harm because of their status as women without male protection.
…
26.Despite having a history of high-profile women in leadership positions and the best social indicators for women in South Asia, Sri Lankan women are under-represented in the labour force and parliament, and over-represented in informal, low skill and low wage jobs. In addition, reports indicate that violence against women, including sexual violence, occurs throughout Sri Lanka. The government has committed to prevent the abuse of women, but according to civil society organisations implementation has been slow and inadequate.
27.DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that few support mechanisms are available to women in these circumstances. Female headed households often face particular problems and disadvantage, particularly in the north and east of the country where they are vulnerable to societal discrimination and official harassment and exploitation.
The AAT then made the following conclusions regarding the Applicant, BIM19 and BIN19. These conclusions appeared, respectively, at paragraphs 119, 133 and 136 of the reasons of the AAT. These are reproduced below (except for the reasons regarding BIN19 which have been reproduced earlier).
119.As noted above, DFAT assesses that women in Sri Lanka face a moderate risk of societal discrimination or violence and that female headed households often face particular problems and disadvantage, particularly in the north and east. However, the applicant is not from the north or east. She lived with her children in Colombo mostly without resident male protection from 1998 until December 2014, and there is no credible evidence before me which suggests that she has experienced harm or discrimination of any kind because she is a woman or because she lacked male protection during that time. Furthermore, there is nothing in the evidence before me which suggests that there have been significant changes in her personal circumstances or in Sri Lanka with the regard to the situation for women in general or female heads of household in Colombo in particular, such that she would face a greater risk of harm if she returns to Sri Lanka now or in the reasonably foreseeable future.
…
133.I acknowledge that sexual violence is a significant problem in Sri Lanka, particularly in the north of the country. However, in my view the evidence does not suggest that a young woman from a reasonably well-off family in Colombo faces a real chance of experiencing such harm or that she faces a real chance of experiencing any other form of serious or significant harm in Sri Lanka today merely because she is a young woman or because she is a young Tamil woman.
The claim made by the Applicants was extremely general. Notwithstanding this, the AAT engaged with the claim as it was put to them. The AAT acknowledged the country information and made conclusions in accordance with the country information.
The Applicant’s claim that the conclusions made by the AAT were “legally unreasonable” because the country information was that there was a moderate risk for all women throughout Sri Lanka and the AAT could not, in any way, find any evidence that would exclude the risk.
The corollary, to the argument of the Applicants, is that, if the country information is accepted, then that is sufficient to warrant Australia having protection obligations to any Sri Lankan woman if they were in Australia. This is an absurd proposition.
In this matter, the AAT was justified in accepting that the position for women is less dangerous in Colombo than in other parts of Sri Lanka. This is consistent with the country information. The AAT was entitled to look at what had occurred to the Applicant in the 16 years in which she lived in Colombo. As the country information did not describe the situation for women as becoming either better or worse over the years, the AAT was entitled to assess the danger to the Applicant upon return by looking at what danger the Applicant faced during her time in Colombo.
Such reasoning cannot be said to be “legally unreasonable”. I adopt the Minister’s submission when they describe the reasoning of the AAT as being “orthodox and open”.
A similar conclusion can be reached in the case of BIM19 and BIN19. The AAT engaged with the claim made by those two Applicants and acknowledged the country information. The conclusion made was in accordance with the country information. It may be that another decision-maker may have come to a different conclusion, but, again, that is not the point. This conclusion was open to the AAT and, therefore, is not a conclusion that is infected by jurisdictional error.
Ground two, therefore, fails.
ORDER
I order that the applications, filed on 29 March 2019, be dismissed.
I order that the applicants pay the costs of the Minister fixed in the scale amount of $8,371.38.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 26 March 2025
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