BIR22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 405
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIR22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 405
File number(s): PEG 233 of 2023
PEG 235 of 2023Judgment of: JUDGE VASTA Date of judgment: 27 March 2024 Catchwords: MIGRATION - Protection Visa – whether Immigration Assessment Authority decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 473CC Division: Division 2 General Federal Law Number of paragraphs: 124 Date of hearing: 27 March 2024 Counsel for the Applicants: Mr Crowley Solicitor for the Applicants: William Gerard Legal Pty Ltd Counsel for the First Respondent: Mr Kaplan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: submitting appearance, save as to costs ORDERS
PEG 233 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIR22
First Applicant
BIS22
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSENT AUTHRORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 16 October 2023 as amended on 28 February 2024 be dismissed.
2.The First Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,675.75.
3.There be no order as to costs against the Second Applicant.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Notation: Order has been amended pursuant to Rule 17.05(2)(h) Federal Circuit and Family Court (Division 2)(General Federal Law) Rules 2021 to show the addition of the word ‘no’ in order 3.
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).
ORDERS
PEG 235 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORTIY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 17 October 2023 as amended on 28 February 2024 be dismissed.
2.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $8,371.30.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex Tempore)
On 12 September 2023, the Immigration Assessment Authority (“IAA”) affirmed a decision not to grant the applicant’s AZT22, BIR22 and BIS22 protection visas. This matter has a history that has been put to me as being somewhat of a record-breaking nature in that this is the fourth time that an Immigration Assessment Authority has looked at this particular matter.
On 17 September 2023, the three applicants asked this Court to review the decision of the IAA.
I should note that the IAA looked at the matter as two separate reviews. The applicants BIR22 and AZT22 are husband and wife. The applicant BIS22 is the son of AZT22 and the step-son of BIR22. Originally, the claims of the three persons were looked at as a whole and they rose and fell on each other.
The applicant, AZT22, raised new issues which she wished to have looked at without, hopefully, having to disclose those matters to her husband and son. It seemed, for that reason, that the IAA conducted two hearings. That meant that there are two applications before the Court, but, conveniently, we are dealing with them as one application.
I mentioned the history a moment ago. The IAA had made a decision to affirm the delegate’s decision on 1 July 2016. The applicants asked this Court to review that decision. This Court dismissed that application for review. The matter was appealed then to the Federal Court. A single Judge of the Federal Court, sitting as an appellate Court, allowed the appeal and remitted the matter back to the IAA for redetermination.
A differently constituted IAA then conducted a second review and, on 23 May 2019, again affirmed the decision of the delegate not to grant the applicants protection visas. The applicants again asked this Court to review that matter. On 28 August 2020, a Judge of this Court found that there was jurisdictional error and remitted the matter back to the IAA for redetermination.
A differently constituted IAA then conducted a third review and, on 1 October 2020, also affirmed the decision of the delegate not to grant the applicants protection visas.
It would seem that that decision was predicated upon that IAA finding that information, that the applicant, AZT22, was putting to the IAA, was not “new information” that was able to be considered by the IAA pursuant to s 473DD. The applicant asked this Court to review that decision.
It was at that stage that the Judge of this Court ordered that there be new and different pseudonyms given to the applicants. As the matter of the son and the husband, BIR22 and BIS22, rose or fell with that of AZT22, the Court then considered the matter of AZT22.
The Court dismissed the review of the decision of the IAA. That matter was then taken on appeal to a Full Court of the Federal Court. By a two-one majority, the Full Court found that the Judge of this Court had erred in finding that the IAA was correct in not considering the new material pursuant to s 473DD of the Migration Act 1958 (“the Act”).
The matter was remitted to a newly constituted IAA to conduct the fourth review. As I have said, this review was completed on 12 September 2023 with another affirmation of the decision of the delegate.
The background to this is that, as I have said, BIR22 and AZT22 are husband and wife.
AZT22 said that she had lived with the spectre of sexual violence being perpetrated upon Tamil women all of her life. She said that in 1991 she was chased by a soldier and forced to hide in a church. In the same year, her mother and sister had survived an attack on Tamils by the Sri Lankan Army (“SLA”), where only the mother and sister were the persons to survive such an attack.
The applicant, AZT22, married another man and they had a child, who is BIS22. AZT22 said that her husband was detained by the Sri Lankan Army in late 2004. This was some form of a round-up operation at a bus terminus. She said that all the Tamil men at the terminus were arrested. Her husband was detained at an SLA base and he was beaten and tortured for three days. She said that the army was preparing to kill her husband, but a senior officer intervened and let him go, because he was married and had a child.
The applicant said that the husband was dumped in the forest and an old man assisted him to find a bus to his home. She said that he had been beaten very badly and was injured. In November 2005, about a year after he had been arrested, he died. The applicant claimed that this was as a result of the injuries that he had sustained. It would seem that the death certificate of the husband showed that there was heart failure, even though he was aged only 32. The history also was that the husband had not only survived the dealings with the Sri Lankan Army, but he also survived the tsunami that hit Sri Lanka in 2004.
AZT22 said that after her husband died, it was a very dangerous place for her as a single mother. She said that, on one particular night, her own mother had gone to a friend’s house. She was alone with her child. She said that the Sri Lankan Army came to the home for routine checks. She said they returned again later, around 1 am, and that a group of men tried to enter the house, but the door was barred. She feared that she would have been raped or killed if they had been able to enter her house. She claimed that a local teacher had been raped and died from her injuries, in what she assumes to have been a similar modus operandi to what she encountered on that particular night.
The applicant said that after her mother died in 2008, people often came to her home at night, threatening her and trying to break in. She said that she lived in constant fear and was often forced to leave the house and stay in the houses of friends or family where she felt safe.
AZT22 said that she married BIR22 in May 2009. It was after they were married that she said that she found out that he had also been a victim of persecution. She said that her own son, BIS22, had been traumatised by the death of his father and that the threats of violence were having a bad effect on him, such that she and BIR22 had to take him out of school for a time.
BIR22 said that his own family had suffered harm because of their ethnicity. He said that in the ’50s, the ’70s and even the 1980s, the family’s homes and businesses had been looted several times in violence that had targeted the Tamil population. BIR22 said that his father was abducted in 1986 and that his family was forced to pay a ransom to have him released. In that same year, BIR22 himself narrowly missed being abducted and killed when a group of his friends were detained by the Sri Lankan Army and executed.
BIR22 said that he was detained in a round-up of Tamil men in 1990. He was beaten, tortured and he suffered injuries. He said he was released around 30 days, after being detained. BIR22 said he took over his family’s business after his parents died and he suffered frequent visits from security and paramilitary forces, who would threaten him and demand payment of money or jewellery, because he was Tamil. He said that he was also forced to pay the Liberation Tigers of Tamli Eelam (“LTTE”) monthly and annual fees. He said that in the year 2000, armed men came to his door and demanded payment. When he refused, they forced him out of the shop, locked it and took the keys away. BIR22 had to pay these men to open his shop again.
In early 2010, which is after his marriage to AZT22, he said that he was travelling with jewellery, which he intended to hide at home, when he was attacked. The persons who attacked him pointed guns at him. He said he was tied up and blindfolded and his jewellery was taken. He was then left in a bush.
He said that, in December 2010, he was abducted by men driving a white van. He was again tied up and blindfolded. After 20 minutes, one of the men said that he would be shot. Another said that he should be thrown out of the van. These men demanded money. BIR22 said that he could not keep paying them. The men let him out of the van, and they said they were letting him live to get more payments from him.
He said that after this incident he closed his shop and he, AZT22 and BIS22 moved to somewhere else. However, in that place there was a “grease man” who started attacking and maiming women in the area. BIR22 believes that this person was linked to the police and army. Because of this, the family moved to Batticaloa in January 2012.
BIR22 and AZT22 said that they opened up a hotel, which mainly traded as a restaurant, in an area where the Sri Lankan Army and Navy had camps. He said that it was not long before they were targeted by armed groups again. BIR22 said that he was beaten, and he was forced to go into hiding for three days. When he returned, he said armed men came to the hotel and he was physically hit by them. He said these armed men threatened to shoot AZT22 and BIS22 and he said that AZT22 was also directly threatened.
BIR22 said that since he came to Australia his cousin’s brother has told him the Sri Lankan Army has been visiting the cousin at home asking the cousin if he knew where BIR22 was, and to tell BIR22 that they are waiting for him to come back to Sri Lanka to deal with him.
The applicants also said that they were impacted by the privacy breach of departmental systems in 2014. They believe that the very act of returning to Sri Lanka will draw that attention of the Sri Lankan authorities, because they left Sri Lanka illegally and they believe that this, together with AZT22’s husbands both having been tortured and persecuted by the authorities, would freshen the authorities’ interest in them.
They fear that BIR22 will be targeted and there will be certain consequences for AZT22 and BIS22 if BIR22 were to die at the hands of the authorities.
As at the time that the second IAA decision was sent back to the IAA for a third adjudication, the summary of the claims of the three applicants were that they feared harm at the hands of the Sri Lankan Army and the Sri Lankan Police, the Karuna Group and the Eelam People’s Democratic Party, all on account of their Tamil ethnicity and the imputed political opinion of being supporters of the LTTE and, by implication, that they were anti-government.
When the matter was put before that IAA, AZT22 made new claims. She said that she was a victim of sexual violence at the hands of security forces in 2012. She said that she had also been subjected to sexual harassment and threatening behaviour at checkpoints and when travelling in public. She said she feared harm in connection with her profile as a woman, a Tamil woman, having a related gender profile and being a past victim of sexual violence. She said that she feared harm from the Sri Lankan authorities and the paramilitary groups that support them.
The present IAA went through the claims. As I say, they accepted quite a lot, if not all of the background to the matters. Certainly, the IAA accepted what AZT22 had said about the incident in 1991 where she had to hide in a church from a soldier chasing her. They accepted the death of the first husband and that it was not out of the realms of possibility that a 32-year-old who dies of heart failure may have done so because of injuries received at the hands of captors and that this story was consistent with country information. The IAA accepted the evidence of the applicants with regard to the businesses; firstly, the jewellery store that BIR22 ran until 2010 and the hotel that BIR22 and AZT22 owned and ran together for about six months in about 2012.
At paragraph 82, the IAA said that they accepted that AZT22 faced approaches to her home and threats, and, that the way in which she was able to protect herself was to barricade the doors and stay with other families at night. The IAA said that, whilst AZT22 and BIS22 were able to avoid physical harm in this way, the IAA accepted that the emotional impact of the period was significant.
The IAA accepted that BIR22 faced harassment, mistreatment, interference and extortive practices from security and paramilitary forces while running his business. The IAA accepted that during attacks on Tamils in 2000 he was locked out of his business and forced to pay soldiers to open up again. The IAA accepted that BIR22 was forced to pay a monthly, and annual, fee levy to the LTTE.
The IAA accepted some of the claims with regard to attacks on the business in 2010. The IAA accepted that the two incidents occurred. That is, BIR22 being attacked, tied up and left in the jungle whilst jewellery that he was carrying to hide at home was stolen and then the second time where he was, as it were, kidnapped and robbed. The IAA said that the second incident was more consistent with a robbery than a white van abduction for ransom.
The IAA said that given those incidents, that they accepted, it was plausible that the two of them decided to close the business and move to this other area. The IAA accepted that they again moved because of the threat of “grease men” attacks in the area but was satisfied that AZT22 and the family were never personally targeted or were directly threatened in that regard.
The IAA accepted that the applicants moved to Batticaloa and opened a hotel, which was more like a restaurant, and that the security forces and paramilitary groups would come to the hotel, ask for meals and cigarettes, but would not pay either BIR22 or AZT22.
The IAA accepted that they opened the hotel and, again, accepted that they experienced mistreatment, threats, intimidation and extortive practices from security forces and that BIR22 was beaten on at least one occasion. The IAA accepted that AZT22 was threatened and that the security or paramilitary forces made threats to their son, BIS22. The IAA accepted that these were serious threats and that the applicants feared for their safety. The IAA said that whilst it accepted that the applicants faced the threat and harassment as they claim, it was relevant that BIR22 was not detained, charged or interrogated about LTTE involvement, or for any other reason, in 2012.
The IAA was satisfied that he was not arrested, because he had no adverse profile. The IAA considered that the security forces were seeking to exploit BIR22 and AZT22 who were running a business and that they had no intention to arrest BIR22 because of any adverse security profile. The IAA accepted the applicants feared they would be harmed, but the IAA was also satisfied that these were the actions and threats of unscrupulous actors within the security and paramilitary forces exploiting the vulnerability of Tamil business owners.
The IAA then looked at the new claim about the sexual assault that the applicant, AZT22, said occurred in 2012. The IAA had to be satisfied that such new information met the criteria in s 473DD in order to be able to consider it. The IAA found that it had met those criteria, and, thus, was able to be considered. The IAA said that there was nothing inherently implausible about the rape claim itself or the broader context in which it occurred. The IAA said that there was clear country information about the use of sexual violence against Tamils by security forces both during and after the war.
The IAA accepted that if something such as this happened that there would be an emotional and physical impact, and that the shame and fear of stigma and ostracization were significant factors that may explain why someone did not want to make reference to such a claim or make the claim at all, let alone some eight years after the incident happened. Nevertheless, the IAA considered the timelines in terms of the evidence of AZT22 went against the credibility of her claim as to what occurred in 2012.
The IAA pointed to the fact that this disclosure did come late and that when it was that she provided a written statement with her visa application, AZT22 declared that the contents were true and correct in every material respect. She also signed declarations in the visa application attesting to the truth of her evidence and that her application was complete and correct in every detail. The IAA noted that she made no reference to any sexual violence in 2012 in this material. While she referred to her past experiences and fears, she did not specifically indicate that she feared harm on the basis of her gender or that she feared sexual harassment or violence if she was to return to Sri Lanka.
At the visa interview with the delegate, the applicant, AZT22, was reminded of her obligation to provide complete evidence in the visa interview and that there were protections in place for her evidence. AZT22 made an oath that her evidence would be true and correct and that she, AZT22, provided clear evidence about her fees and the threat of sexual violence during the period when she lived alone with her son after the death of the first husband and mother. But she gave no indication that she faced any similar concerns after marrying BIR22 or that she was ever subjected to sexual violence in 2012. There were post interview submissions that did not mention these claims at all.
Whilst acknowledging there may be some force in the contentions that the applicant suffered significant trauma and stigma, because of the incidents of sexual violence, the IAA was not satisfied that AZT22 was as vulnerable as had been submitted. The IAA considered that she, and the family, were represented at multiple points throughout the visa process and while she may have limited literacy and English, and that there were cultural barriers, she was assisted by written statements and submissions prepared through an interpreter which advanced all other aspects of her claims in some detail.
The IAA noted that the interpreter of the visa interview was a male, but the delegate was a woman, as was her migration agent, who attended the interview, as well. The interview did not prevent her from detailing her fears during the period after her first husband died.
The IAA noted that, whilst the applicant was worried and scared of the result of the data breach of the departmental systems in 2014, she was also advised of the limited scope of the breach and the protections in place in terms of their claims and evidence. The IAA said that such fear does not answer whether the applicant felt able to address such a claim, but the IAA considered that AZT22 was capable of giving such evidence.
The IAA noted that it was clear from the evidence that AZT22 was a co-owner of the Star Hotel and ran that business, including the period when her husband claimed to be in hiding. The IAA accepted that she has some vulnerabilities, but the IAA was not satisfied those vulnerabilities, obviously, prevented her from providing these claims at an earlier point or at least indicating them to some extent.
The IAA was conscious that there were potentially clear and obvious reasons why such a claim may not have been advanced until 2020, but that, in full context, the omission of this claim, until 2020, raised doubts for the IAA as to whether she was unable to make the claims till meeting with her lawyer in 2020. The IAA considered that she did have the opportunity to provide her claims and that she had undertaken to provide true and complete claims and was provided with the support necessary to do so, notwithstanding any vulnerabilities that she might have had.
The IAA said that, whilst the omission not to bring this matter up may not be determinative, the IAA considered that these matters weigh against the credibility of the claims.
The IAA considered, then, how these new claims could be reconciled with the earlier evidence that she had given. In the visa application, AZT22 said that one night in 2012, at about 4 am, a group of men beat her husband. Her husband had gone into hiding, but he returned about three days later, and the men had come to the hotel and threatened to kill her and her son.
BIR22 made the same claim, that he was forced to go into hiding and also said that the men had come to the hotel early. They had threatened to shoot AZT22 and BIS22. When he returned, one man hit him in the face so hard that he felt to the ground and passed out.
At the visa interview, BIR22 said he had gone into hiding, because of the pressure from the security and paramilitary forces. He said he went into hiding, but his wife and other workers remained at the hotel. He said that one night the men came and were knocking on the door with a weapon. He said they did not break the door and enter. He said that AZT22 called him to come there immediately and that he returned in the morning and was attacked by the soldiers at the register. He was not arrested. He said he closed his store after that.
At the visa interview, when asked if there was any specific catalyst for the applicants coming to Australia, AZT22 said that the Criminal Investigation Department (“CID”) had threatened the life of her and her son and that her husband went into hiding. They discussed the aftermath of their concerns at the hotel, the sale of the business and the home. The IAA noted that the applicant, AZT22, was particularly emotive about the threats made to her son and to the disruptions to his studies, but she did not detail any further concerns in terms of her own safety or wellbeing.
At the interview, neither of the applicants made any mention that AZT22 suffered any serious health complications at this time that lasted around a month or that she required medical treatment.
The claim that AZT22 now made was that she was raped at their home at the rear of the hotel late at night during the period while her husband was in hiding. She claimed that she heard a knock at the door. She opened it, thinking it was her husband. She indicated she was seriously injured from the rape, and she suffered bleeding. That bleeding lasted around a month. She said there was an older lady who worked for her and cared for her after the attack and also cautioned her against telling anyone. She said that the bleeding did not stop.
She said the next night they tried to message BIR22. She said that she did not tell him what happened but contended that the bleeding related to her period. When BIR22 returned, he wanted to take her to a hospital, but she told him to take her to a private clinic. In that same statement, AZT22 does not refer at all to the attack on her husband after he returned from being in hiding or that he was working at the hotel when he was attacked. She did not refer to the threats made against her or her son or that she called her husband and told him to return because of the threats. The IAA considered that this was at odds with her earlier evidence.
The IAA noted that, in the earlier evidence, neither of the applicants made any reference to AZT22s health concerns or the need for medical care, which was claimed to have lasted around a month, and which AZT22 said was the reason she requested her husband return from hiding, not because of any threats she received at the hotel.
The IAA said that they considered the trauma and time that has passed since these incidents and that some reasonable allowance should be made for the differences between these accounts, particularly if BIR22 was not aware of these events. The IAA also considered the claims of AZT22 that her memory had also been affected, but there was just no supporting evidence in this regard.
The IAA said, in any event, they were not satisfied that this was just a matter of memory. The IAA said they did not consider that her evidence about the incident is easily reconciled with the earlier accounts of what happened at the hotel in 2012. The IAA said that they consider that her new claims do not reconcile with the previous evidence, and this goes against the credibility of these claims.
The further concern for the IAA was the aftermath of this incident.
AZT22 claimed that after a month, the bleeding and pain started to ease, but that the assault caused her lasting damage. She claimed that she has recurrent pain, she requires strong painkillers, and she is unable to lie on her side. She claims that she had an operation in Australia because of the pain.
She said that she also endures the mental and emotional pain of what occurred, and she says she has been unable to tell her doctor, as he is a Tamil man, and she has never been able to explain to him why she has these symptoms either. She indicates that the only person she has told was her then representative.
The IAA said that, whilst it would not be implausible that a victim in this context would withhold information, the submissions did not include any medical or other information that would support her claims about her ongoing health concerns, even in the sense of medical evidence that was uninformed by her claims of sexual violence.
The IAA said that, if her evidence were accepted, the injuries she experienced from this incident were serious, chronic and ongoing. The IAA said that they considered that the lack of any corroboration in this regard was another factor that goes against the credibility of the claims. The IAA said at paragraph 125:
For the reasons discussed, these are not claims that can be easily dismissed. The severity and impact of such an incident of sexual violence can be a compelling reason why a claim was not raised at an earlier point. However, that does not mean that such claim should be accepted uncritically. It is also the case that AZT22 had been given a fair and reasonable opportunity to provide true and complete evidence and she undertook to do so.
At paragraph 126, the IAA said:
In view of the concerns above, it is my assessment that AZT22’s claims about the 2012 incident are not credible and that it did not occur as she now claims.
The IAA did not accept her other evidence about the resulting pain from this incident.
IAA accepted that Tamil women have experienced sexual harassment and threatening behaviour when passing through checkpoints, and travelling in public during and after the war, and that they feared sexual violence in doing so. The IAA said that this was not part of the earlier evidence of AZT22. The IAA said that this was the case, despite her being very clear about the other evidence earlier about what she had faced in Sri Lanka, particularly the threats she faced at her home after the death of the first husband and the death of the mother. The IAA said that:
In all the circumstances, while I accept country advice about the issues faced by women and Tamil women in Sri Lanka, I am not satisfied that these latter aspects of her claim as they relate to her specifically are credible or occurred as she claims in her 2020 submissions.
The IAA looked at the political activities of the two applicants and looked at their social media profiles. The IAA did not accept that either AZT22 or BIR22 had been politically active in Australia or that they were going to be politically active on return to Sri Lanka. The IAA was not convinced that the social media profile was that of a genuine account of BIR22.
The IAA looked at the religion of both applicants and the fact that they had converted to Christianity in January 2012 and were attending Pentecostal Christian services since they came to Australia. The IAA was satisfied that they would continue to be involved with their faith if they returned to Sri Lanka, but were not satisfied that the applicants would proselytise, evangelise or otherwise be active in sharing their faith.
The IAA looked at the data breach and was of the view that the data breach itself did not raise any issue regarding serious harm.
The IAA then looked at all of that evidence to see whether, in their assessment, it met the criteria as a refugee under the Act. The IAA was of the view that it did not do so.
The IAA looked at what could happen to the applicants if it were that they returned to Sri Lanka. At paragraph 164, the IAA said:
I consider it likely that BIR22 and AZT22 would again wish to open a business and that they would have the profile of Tamil business owners and they may again have or be perceived as having wealth.
The IAA accepted that this led them to face additional harassment, mistreatment and harm in the past, and this ultimately may have been the catalyst for them leaving Sri Lanka. At paragraph 165, the IAA said:
In terms of the targeting of wealthy persons and business owners for abduction and ransom and/or extortion, there is clear advice before me that this was a problem in Sri Lanka at the time the applicants left the country. Country advice indicates that the number of abductions (and white van abductions) have largely abated in the last several years, and that ransoms or extortion do not continue to occur at the level they did in the past. The applicants have not put information before me that indicates the contrary. While there are limited reports of Tamils being abducted for involvement in journalism, politics and diaspora activities, it does not appear that Tamils, wealthy Tamils and/or Tamil business owners are being systematically targeted for abduction, extortion or other criminal activities, whether by the security forces, paramilitary groups or otherwise. Neither DFAT or the US Department of State identifies wealthy Tamils or Tamil business owners, or wealthy or business owners in general as risk profiles in their most recent reports.
The IAA looked at the gender and ethnic profile of, really, all three applicants, but mainly that of AZT22. The IAA said that they accepted that sexual harassment was very much present in Sri Lankan society. The IAA said that, whilst they hadn’t accepted that the claims that she experienced such behaviour at checkpoints and travelling in the past, it followed that they did not accept that the applicant had to modify her behaviour when travelling in public. The IAA noted that she was previously a business owner in Sri Lanka and ran a hotel restaurant with her husband during a period of considerable conflict and insecurity.
The IAA was not satisfied that AZT22 shared the additional vulnerabilities of some women, including Tamil women, in Sri Lanka. The IAA considered that she would be able to, and would, respond effectively to such behaviour and also access support mechanisms and the intervention of authorities. The IAA accepted that there were some language barriers to accessing the authorities, but the IAA was not satisfied, on recent advice, that she would be denied support or protection for reasons of her profile as a woman or a Tamil woman. In all the circumstances, the IAA considered her profile reduces the chance of severity of any harassment she faced if she returned to Sri Lanka.
The IAA looked at what would occur to the applicants upon return to Sri Lanka and accepted what would occur would be in line with the Immigrants and Emigrants Act of Sri Lanka. This means that they may be taken to be processed and then bailed upon return, that they would be most likely to receive a fine, which could be paid in instalments, and if they were unable to pay, may be imprisoned for 14 days. But the IAA was not satisfied that the applicants would be unable to pay any fines levied and even if they could not, the result would not be serious harm.
The IAA looked at the cumulative profile of AZT22, and all of what it was that she had said, and found that she did not meet the requirements of the definition of refugee.
The IAA then looked at complimentary protection assessment criteria and reiterated a number of the matters of which they had already looked. The IAA concluded that the applicant did not meet the criteria for complimentary protection.
As I said earlier, this matter had come before the Court as two separate applications. There were two separate decisions that were given. There were three grounds in AZT22’s application and one ground in BIR22 and BIS22’s application. The third ground in AZT22’s application is the same as the only ground in BIR and BIS22s application. This is why it was easy for the matter to be heard as one matter. The evidence with regard to that common ground is exactly the same.
This means that if that ground is successful, then all three applicants are successful as of right. If it is that either of the other two grounds are successful, then, as of right, AZT22’s matter would be removed back to the IAA, but so would BIR and BIS’s applications, because they are members of the family unit.
Now, as I said, there were three grounds. I will refer to them in the numbering that was used in this matter.
The first ground is ground 2A.
Ground 2A states:
The Authority’s decision was vitiated by a constructive failure to exercise jurisdiction or otherwise fulfil the duty to conduct the review required under section 473CC of the Migration Act 1958 (Cth) in that the Authority failed to consider the applicant’s claim of harm when detained immediately on return.
To understand this ground, one needs to go to the actual claim of the applicant, which is found at CB 530, specifically in paragraph 27. I will read paragraph 27 into the record:
When we arrive in Sri Lanka as involuntary returnees, my husband, son and I will be detained and questioned since we departed Sri Lanka illegally and will be returning on temporary travel documents. I fear that during that detention and/or any future periods of detention, I will be subjected to sexual harassment and/or other forms of cruel, inhuman and/or degrading treatment or punishment. I fear that because of my past experience of sexual violence from the Sri Lankan authorities, any sexual threats and/or lewd sexual language directed to me by Sri Lankan officials will cause me extreme distress, amounting to significant harm. I fear that any period of detention in combination with any kinds of sexual harassment, innuendo or threats will amount to significant harm given my personal history and vulnerability. I fear that being subjected to this kind of treatment will cause me to show physiological symptoms of extreme emotional distress – for instance fainting or loss of control of my bowels or other bodily functions - which will further exacerbate the harm I face and the humiliation of this experience [sic].
The applicant’s claim that the IAA did not fully deal with this claim. This is because the applicants point to the way in which the IAA dealt with this particular issue at paragraph 201 of their reasons. Paragraph 201 reads as follows:
I do not consider there is information before me that indicates that women or Tamil women are differentially treated on return to Sri Lanka, or that they are at risk of sexual harassment or violent behaviour. Given her past experiences and fears of the Sri Lankan authorities and security forces, I accept Applicant 2 would be apprehensive and fearful of any return processing. However, as I am satisfied that neither she or her husband has any profile of interest, I accept DFAT’s advice and I find that she would not be subjected to mistreatment during processing at the airport.
I have not accepted she was a victim of sexual violence in 2012. I am not satisfied and do not accept she would be at any additional risk of violence, sexual violence, harassment, ill treatment or degrading treatment on return to Sri Lanka. Other than any potential penalty or process related to her illegal departure, and any subsequent monitoring, I am satisfied she would be able to return to her home area without being subjected to any further action or investigation by the authorities in relation to her illegal departure and return to Sri Lanka.
The applicant points to the sentence that has this clause:
I accept DFAT’s advice and I find that she would not be subjected to mistreatment during processing at the airport.
That sentence ends with a footnote, which refers to DFAT Country Information Report - Sri Lanka, 23 December 2021. The applicant points to the only part of the DFAT report that the applicant claims this could relate to, and this is paragraph 5.20, which says:
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
The applicant says that the DFAT report does not look at circumstances beyond the airport, but what is clear from that country information is that persons who have breached the Immigrants and Emigrants Act:
Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
The applicant submits that this period of detention is detention beyond the airport. The applicant submits that it is not clear that bail would be granted immediately in any event, so there may be a period of detention. In paragraph 27 of the applicant’s claim, she clearly made the claim that she feared being detained at all. The applicant submits that the IAA have simply ignored this aspect of her claim and not addressed it, because they did not address an integral part of her claim; that is, that she feared detention at any stage of the process of returning to Sri Lanka. The applicant submits that this means that the IAA have not completed their duty to review the matter.
It seems to me, though, that when one reads paragraph 27 of the applicant’s claim, the claim that she would suffer significant harm is premised on her past experience of sexual violence from the Sri Lankan authorities. The sexual violence she claims to have suffered from is the alleged incident in 2012. There is no other sexual violence that she has suffered.
Whilst it may be that in 1991 she was chased by a soldier, whilst it may be that she had to barricade her doors and be very careful after her first husband died, and, whilst it is that she may have had to not only barricade her doors, but also go to other person’s houses to sleep after her mother died, none of these matters resulted in her being subjected to sexual violence. The only claim of sexual violence was what occurred in 2012.
The IAA rejected that claim. Having rejected the premise of the claim, it means that the claim itself must fail. The applicant claims serious harm or significant harm because of her “past experience” of sexual violence. If it is that she had no “past experience” of sexual violence, then the claim of significant harm fails and the IAA has no duty to consider that claim.
But even if those incidents of being chased in 1991, barricading herself in 2005 to 2008, barricading herself and going to sleep at other person’s places from 2008 to 2009 could be categorised as sexual violence, it seems to me that, from the very wording of the paragraph 201, the IAA has dealt with the matter. The first words of the paragraph are predicated upon the applicant’s return to Sri Lanka. The conclusion that there was no information before the IAA that Tamil women are at risk of sexual harassment or violent behaviour on return to Sri Lanka is a finding that was open on the evidence.
The sentence that the IAA has not accepted, is that she was a victim of sexual violence in 2012:
I am not satisfied and I do not accept she will be at any additional risk of violence, sexual violence, harassment, ill treatment or degrading treatment on return to Sri Lanka.
That sentence also deals with the claims in paragraph 27. Further, the rest of the sentence speaking about potential penalty or process related to her illegal departure is then referred to, and the IAA was satisfied that she would be able to return to her home area without being subjected to any further action or investigation by the authorities in relation to her illegal departure and return to Sri Lanka.
What that means is that the IAA has taken into account all of the processes that deal with the return to Sri Lanka, which necessarily must include any period of arrest or detention between being charged with an offence under the Immigrants and Emigrants Act and being bailed.
The fact that the IAA has mentioned the aspect of the airport is simply a reference to what the DFAT information spoke about as specifically occurring at the airport. The IAA has looked at the whole process overall. I am of the view that no jurisdictional error is illustrated by this ground and it, therefore, fails.
Ground 3A is framed in this way:
The Authority’s decision was vitiated by a constructive failure to exercise jurisdiction in evaluating future risk by foreclosing on reasonable speculation of the chances of persecution or significant harm emerging from the material as a whole.
The background to this ground is based on a premise that the conclusions that I’ve already spoken of, in paragraphs 126 and 127 of the IAA’s reasons, are equivocal findings.
The applicant argues that the way in which the IAA has gone through the assessment of the claims is almost second guessing itself and struggling to come to a conclusion. The applicant submits that can be seen by the manner in which the IAA talk about there being some force in the contentions, or that the contentions are plausible, or that the submissions are not unpersuasive. The applicant submits that the language used is the language of equivocal findings.
The applicant submits that because the finding was equivocal, the IAA should have performed the, “What if I’m wrong?” test. That is, the IAA needed to look at the matter, notwithstanding that they had come to a conclusion that would normally make unnecessary the IAA’s task of going further with that particular claim.
The applicant argues that the failure to perform the, “What if I’m wrong?” test has led to jurisdictional error.
However, it seems to me that this is predicated upon the Court finding that the IAA was equivocal in its findings at paragraph 126 and 127 of the reasons. I am of the view that simply speaking in that way is not something that would mean that the finding was “equivocal” or that the IAA “struggled with coming to this finding”.
I am not persuaded that this was an equivocal finding. This is the reason I went through the paragraphs, as I did in my recitation of the IAAs reasoning, because it seems to me that this was an unequivocal finding.
The respondent has argued that the reality of the matter is that the IAA had to be satisfied, to start with, that this claim was a proper claim to be considered by the IAA. Because it was new material, it needed to go through the criteria in s 473DD. The respondent claims that what the IAA did needs to be seen through that lens.
Pursuant to s 473DD, the IAA must not consider any new information unless the Authority is satisfied there is exceptional circumstances to justify considering it and that the applicant satisfies the Authority that, in relation to the new information given, the new information was not, or could not have been, provided when the Minister made the decision under s 65, or is credible personal information which was not previously been known, and, had it been known, may have affected the consideration of the referred applicant’s claim.
The key aspect here was whether this was credible personal information. As the IAA explained earlier in their reasons, the information was capable of being believed. That did not mean that it must be believed or that it had been believed, but simply that it met a threshold test.
The IAA spoke of the threshold bar being somewhat low, but having made that decision that the evidence was credible information for that purpose, the IAA had to reconcile that earlier finding with the findings it was actually going to make upon the claim itself, so that notwithstanding that the information was credible personal information for the purposes of s 473DD, it ultimately was not credible personal information for the purpose of determining whether or not the applicant had established its case for either the refugee criteria or the complimentary protection criteria.
The IAA needed to ensure that there was no blurring of the two tests, nor that any person reading their reasons may be of the view that there had been inconsistency in their thinking. The IAA was simply putting, in its reasoning, that it had considered all of those matters which caused it to find that it met the threshold under s 473DD in assessing the actual credibility of the claim. When it made its actual conclusion, at paragraph 126, there was simply no equivocality about it. The IAA said:
…it is my assessment that Applicant 2’s claims about the 2012 incident are not credible and that it did not occur as she now claims.
For that reason, ground 3A does not illustrate any jurisdictional error.
I am comforted, however, that the IAA had looked at the matter in paragraph 186, which would have, to my mind, satisfied the, “What if I’m wrong?” test in any event. That paragraph reads as follows:
While I have not accepted her revised claims as they relate to 2012, I accept Applicant 2 faced and feared the threat of sexual violence in the past. Given her past experiences, as a Tamil woman from a former LTTE controlled area in the east of Sri Lanka, I accept Applicant 2 would be apprehensive about a return to the country. However, the security environment has changed considerably since 2012. Consistent with the country advice regarding Tamils generally, I do not consider Tamil women (including Tamil women from former LTTE controlled areas in the east or north of Sri Lanka) face the same risks they were vulnerable to during the war and its immediate aftermath.
It seems to me that that paragraph 186 would be a complete answer to the criticism if it were that what the IAA expressed in paragraphs 126 and 127 were equivocal findings.
Ground 4A is formulated as follows:
The Authority’s decision was vitiated by a constructive failure to exercise jurisdiction in failing to form the state of satisfaction required by s 36(2)(a) or (b) of the Migration Act, or by misconstruing or misunderstanding the country information relied upon, or unreasonableness in conclusions lacking an intelligible basis in the reasons.
The background to this ground is found in paragraph 165 that I’ve already read into the record. The applicant focusses on the sentence that is in that paragraph:
Country advice indicates that the number of abductions (and white-van abductions) have largely abated in the last several years, and that ransoms or extortion do not continue to occur at the level that they did in the past.
That sentence has a footnote at the end of it. There are other sentences in that paragraph that also have footnotes. The applicant submits that when one looks at the footnoted material, which references country information, the actual country information reference there does not back up what the IAA has said. The applicant notes that the footnotes refer to the whole of the report and there are no pinpoint references. The applicant submits that they have searched through the material, and they have not been able to find anything that backs up what is recorded in that sentence.
The applicant points to the material having no reference to ransom, save for a reference to LTTE extortion at its peak in 2004. As to extortion, there was a single reference to that. In the DFAT report, there was only one reference to white van abductions; and, as to ransom, the only reference in the DFAT report spoke of the period 2002 to 2011. There is no reference to extortion in the DFAT report, other than talking about police extorting members of the gay community.
The applicant notes that the IAA talks about the absence of reference in the country information as the basis to “insubstantiate risk”; that is, that there is nothing in the reports that identifies wealthy Tamils or Tamil business owners or wealthy business owners in general, as risk profiles in their most recent reports.
The applicant points to this being a logical error. The submission is that there was no factual basis for those conclusions reached on the point and that this reflected a failure to form the state of satisfaction required for the purposes of a review.
It seems to me that paragraph 165, as I have read it into the record, also needs to be looked at with regard to the paragraph that follows it, which is paragraph 166, which reads:
I have not accepted their political claims. I do not consider Applicant 2, her husband or her son would be politically active or have any proximity to politically sensitive issues on return to Sri Lanka and I consider she and the other applicants would not be at risk of abduction or extortion on that basis. I am not satisfied on the advice before me that Applicant 2 or her family would be harmed or at threat of abduction, extortion or other harm for reasons of their profile as Tamil business owners. Although I accept they were targeted in the past for these reasons, I consider the security environment has changed considerably for Tamils (and Tamil business owners) and I find there is not a real chance of Applicant 2 or her family facing mistreatment, harassment, abduction, extortion (or extortive practices) or other harm for these reasons if they were to return to Sri Lanka, now or in the reasonably foreseeable future.
The DFAT report does provide that “disappearances and abductions for ransom” had reduced since the end of the war.
Notwithstanding that, the question is whether there was an evidentiary basis for saying that extortion did not continue at the level that it had in the past. It seems to me, then, that there may be evidence that the maligned sentence is correct regarding “ransom”, but whether it is correct as regarding “extortions”, there may be some debate. However, it seems to me that the way in which the claims have been made by the applicants is that the words “ransoms” and “extortions” were used as part of the same phenomena and not as to separately distinct phenomena.
If I am correct about that, it would seem to me that there has been no error in the manner in which the IAA has expressed themselves.
If it is that ransoms and extortions need to be looked at separately, it may be that the country information did not inform as to whether ransoms have decreased and as to whether extortions have decreased separately. It would seem to me that whilst there may be an error, (in that there has not been any country information to back that up, even though the Authority indicated that there was such country information), that error is not material, unless it is that there is evidence to the contrary in the country information, or any other aspect, that the IAA then ignored.
The point really is that the statement that the IAA made was a conclusion that they had reached. There was simply no evidence to the contrary. The IAA even pointed that out that the applicants had provided no evidence to the contrary. Therefore, if the IAA was in error in stating what they stated, it was not a jurisdictional error.
For that reason, ground 4A also fails.
Having gone through the reasoning of the IAA, I am not of the view that there are any other matters in the decision that would illustrate a jurisdictional error. I therefore dismiss the application.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 9 May 2024
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