CAE16 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 663
•13 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CAE16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 663
File number(s): SYG 1775 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 13 May 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in failing to engage in further fact finding – whether Tribunal erred in rejecting applicants’ claim they faced real risk of sexual violence in Sri Lanka – whether Tribunal erred by not accepting DFAT risk assessment of violence against women in Sir Lanka – whether Tribunal denied applicant or witness procedural fairness by failing to raise with applicant or witness concern about independence of witness – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 5LA, 36(2A), 422B Cases cited: AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156; 189 FCR 494
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2008] FCAFC 118; 88 ALD 304
Plaintiff M1/2021 v Minister for Home Affairs [2023] HCA 17; 275 CLR 582
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 379; 67 ALD 757
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 8 April 2025 Place: Parramatta Counsel for the Applicants: Mr C Honnery Solicitor for the Applicants: Westside Legal Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 1775 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CAE16
First Applicant
CAF16
Second Applicant
CAG16
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
13 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first and second applicants pay the first respondent’s costs fixed in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 23 July 2020, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 30 June 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 16 February 2011, the applicants, citizens of Sri Lanka, arrived in Australia on visitor visas. The first applicant (Applicant Wife) and second applicant (Applicant Husband) are wife and husband respectively. The third applicant (Applicant Daughter) is the daughter of the first and second applicants.
On 16 March 2011, the applicants applied for protection visas. Only the Applicant Wife made refugee claims, with the husband and daughter applying as members of her family unit. Their applications were refused, they sought review at the Refugee Review Tribunal (RRT), the refusals were affirmed by a decision of the RRT dated 3 January 2012, a judicial review application to the Federal Magistrates Court was dismissed and in November 2012 the Federal Court dismissed an appeal.
On 13 August 2013, the applicants re-applied for protection visas following the Federal Court decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 (SZGIZ). Following an interview on 10 October 2013, on 8 September 2014 a delegate of the first respondent refused to grant the applicants protection visas. The applicants applied to the RRT for review of the decision. Following a hearing, on 30 June 2016 the Tribunal (on 1 July 2015 the RRT was amalgamated with the Tribunal) affirmed the decision. The applicants sought judicial review of the Tribunal’s decision dated 30 June 2016. On 4 December 2017, the Federal Circuit Court quashed the Tribunal’s decision and remitted the matter to the Tribunal to redetermine according to law.
Following the remittal, on 2 July 2019 the applicants were invited to attend a hearing before the Tribunal on 29 July 2019.
On 29 July 2019, the applicants attended a hearing before the Tribunal. Each applicant, as well as a friend of the applicants, gave evidence.
On 30 June 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.
TRIBUNAL’S DECISION DATED 30 JUNE 2020
The Tribunal at [44]-[321] reviewed the evidence before it provided by the applicants.
The Tribunal at [322]-[347] considered relevant country information.
The Applicant Wife, and the Applicant Husband and Applicant Daughter through the Applicant Wife, made many claims concerning events between 1988 and 2019. The Tribunal at [352]-[454] made findings on material questions of fact concerning these claims. Among other matters:
(a)The Applicant Wife claimed that for a period of time in the 1990s she provided a member of the LTTE with access to government documents and she feared harm as a result of this conduct. The Tribunal at [362]-[369] accepted aspects of this claim, but at [371] found that “she was of no adverse interest to Sri Lankan authorities at the time of her departure” from Sri Lanka in April 2015.
(b)The applicants lived in Switzerland for many years before coming to Australia. The Applicant Wife claimed that during the years she lived in Switzerland she was involved in Tamil political activities. The Tribunal at [388] accepted that the Applicant Wife and Applicant Husband made yearly donations to the LTTE while they lived in Switzerland, but at [391] found that “they attempted to overstate their involvement in Tamil nationalist groups during the time they lived in Switzerland to strengthen their claims”.
(c)Some of the applicants, during the years they lived in Switzerland, visited Sri Lanka in April 2009 and July 2010. The Tribunal at [399] found that the applicants “were not of any adverse interest to Sri Lankan authorities or militias at the time of the two visits”.
(d)The Applicant Wife claimed that between August and October 2010 she received two or three threatening phone calls from unknown persons associated with militias connected to the Sri Lankan government. The Tribunal at [400]-[406] did not accept this claim.
(e)The Applicant Wife claimed that, on a third visit to Sri Lanka in December 2010, she was abducted and mistreated. The Tribunal at [407]-[424] did not accept this claim.
(f)The Applicant Wife claimed that, following her return to Switzerland after the visit to Sri Lanka in December 2010, persons connected to the EDPD came to her house in Switzerland to extort money, and the applicants received threatening phone calls and were under surveillance by the EDPD. The Tribunal at [431] found that these “claims of telephone threats, extortion and surveillance are contrived”.
(g)The Applicant Wife claimed that, following her arrival in Australia in 2011, she was involved in Tamil diaspora activities. The Tribunal at [432]-[446] accepted that the applicants were marginal participants in Tamil community events and commemorations in Australia.
(h)In June 2019, the Applicant Wife claimed for the first time that land in Mullaitivu gifted to her by her mother had been taken over or occupied by the EDPD. The Tribunal at [454] did not accept this claim and found that the Applicant Wife “has included this claim to strengthen the applicants’ protection claims”.
The Tribunal was required to consider:
(a)whether the Applicant Husband or Applicant Daughter met the refugee criterion in s 36(2)(a) of the Act; and
(b)whether any of the applicants met the complementary protection criterion in s 36(2)(aa) of the Act.
The Tribunal:
(a)at [455]-[509] considered whether the Applicant Husband or Applicant Daughter met the refugee criterion in s 36(2)(a) of the Act and concluded at [509] that it was “not satisfied that the applicant husband or daughter either have a well-founded fear of persecution for reasons of their Tamil ethnicity, their Hindu religion, their real or imputed political opinion, membership of a particular social group or any other Convention related reason”; and
(b)at [510]-[529] considered whether any of the applicants met the complementary protection criterion in s 36(2)(aa) of the Act and concluded that the applicants did not satisfy the criterion in s 36(2)(aa) for a protection visa.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 8 April 2025
On 23 July 2020, the applicants filed in this Court an application for judicial review of the Tribunal’s decision. On 20 March 2025, the applicants filed an amended application (Amended Application) which contained the following grounds (as written):
Ground 1
The Tribunal’s decision is affected by jurisdictional error due to:
a. failing to properly consider all relevant claims;
b. engaging in irrational and illogical reasoning; and/or
c. not completing its statutory task pursuant to s 36(2)(aa) of the Act.
Particulars
Material before the Tribunal
a)The applicants’ submissions highlighted the mistreatment of Tamil women in Sri Lanka, for example:
i.submitting at CB 354 at [41]:
- There are reports of rapes in Sri Lanka targeted at Tamils.
- Abduction, arbitrary detention, torture, rape and sexual violence has increased in the postwar period.
- Women and girls in the north and east remained especially vulnerable to sexual harassment and violence that the army neither prevented and may have contributed to.
- Human rights activists frequently complained about police and security force participation in acts of violence against women.
- There has been a significant increase in sexual assaults and other rights abuses, due in large part to the heavy militarization of the area. Most were afraid to report cases to the authorities.
ii.submitting at CB 703 there is “significant increase in sexual violence and assault against females and children in Sri Lanka”.
iii.referring to a “number of articles also reported on discrimination against women. rising rates of sexual assault and rape. including allegations of sexual assault by the security forces and high levels of criminal activity”: CB 778.
b)The 2019 DFAT report on Sri Lanka, which the Tribunal was obliged to consider in accordance with Ministerial Direction No.84, relevantly stated:
i.Violence against women is prevalent in Sri Lanka: [3.123].
ii.Sexual harassment of women is common, particularly on public transport, but is rarely reported: [3.124].
iii.According to police statistics, 345 cases of rape of women over 16 years were recorded in 2018, an increase from 2017 (294 cases). Sources told DFAT that police are not adequately trained in collecting evidence in cases of sexual assault, and lack rape kits for evidence collection: [3.124].
iv.According to the UN Committee on the Elimination of Discrimination against Women, most cases of gender-based violence are likely to go unreported due to inadequate legislation, women's limited access to justice, fear of reprisals, limited trust in the police and judiciary, delays in the investigation of cases and very low conviction rates: [3.125].
v.sources told DFAT that language barriers are a major deterrent to non-Sinhala speaking women reporting gender-based violence to the police, particularly in the north and east (most police are Sinhala speakers [3.125].
vi.“While NGOs are increasingly active in this space, non-state support services for victims of gender-based violence are scarce and lack funding overall”: [3.127].
vii.Local sources told DFAT that police and judicial responses to gender-based violence were inadequate: [3.128].
viii.DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate: [3.130].
c)The applicant wife advanced claims that would involve “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” as defined by s. 5(1) of the Act, for example that:
i.she feared being raped if returned to Sri Lanka: CB 30;
ii.she feared that she and her daughter would be victims of violence and sexual assault: CB 777 [34].
Tribunal’s reasoning
a)Because of the effect of s 48A of the Act and the refusal of the applicant wife's 2011 protection visa, the Tribunal could only assess the applicant's wife's claims against the complementary protection provisions: CB 1103 at [11] - [18].
b)In purporting to consider the applicants' complementary protection claims, the Tribunal relevantly reasoned: “The applicants referred to the high crime rates in Sri Lanka and the risk of sexual assault in relation to the applicant wife and daughter. As previously noted the crime rate in Sri Lanka is comparable to other South Asian nations and there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned”: CB 1172 at [523].
c)The reasoning at particular (e) above reveals error due to:
i.Failing to give proper and genuine consideration to the applicant wife's risk of sexual assault, as the finding that there was "no evidence which suggests the applicants would face a real risk of being victims of criminal activity" was no answer, and certainly not a complete answer, to whether the prevalence of violence against women (documented as a discrete issue to the crime rate and instances of homicide in the DFAT report) gave rise to a real risk of significant harm;
ii.Illogicality and/or irrationality arising from a 'relative' assessment of Sri Lanka's crime rate with reference “to other South Asian nations”, which was not, and could not be, determinative of the applicants’ risk of sexual assault and gender-based violence in Sri Lanka: see CB 1166 at [490] - [491] and CB 1172 at [523]; and/or
iii.Conflating the issue of crime rates, in respect of which DFAT reported at [2.61] "the incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries", with the discrete issue of violence against women, which by contrast DFAT confirmed was “prevalent” throughout Sri Lanka at [3.123] and “rarely reported”: DFAT report at [3.124].
d)Without further fact finding - which did not occur -the Tribunal's reasoning did not provide a proper basis to determine the risk of sexual assault in accordance with s 36(2A) of the Act, especially as the Tribunal's findings under the refugee assessment did not provide a sufficient factual foundation to dispose of the complementary protection claims given:
i.the refugee assessment did not consider the applicant's wife's claims; and
ii.the assessment of the applicant's daughter’s risk of harm based on her gender under the refugee assessment was also tainted by error, as expounded under ground 2.
Ground 2
The Tribunal’s decision in affected by jurisdictional error due to:
a. irrational/illogical reasoning;
b. failing to properly deal with germane country information: and/or
c. making findings not open on the material.
Particulars
a)The Tribunal purported to consider the applicant daughter’s risk of serious harm as a female Tamil or a female Tamil whose parents originate from the north of Sri Lanka: CB 1168 at [502] - 1169 at [509].
b)In this context, the Tribunal:
i.Referred to DFAT's assessment that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate: CB 1169 at [505];
ii.Accepted that sexual abuse and harassment are a continuing problem for all women in Sri Lanka but also considered that the Sri Lankan government is committed to preventing the abuse of women and has instituted a national plan to address gender-based violence: CB 1169 at [505];
iii.Noted that the implementation of state protection is sometimes hampered by “inadequate legislation, women's limited access to justice, fear of reprisals, limited trust in the police and judiciary, delays in the investigation of cases and very low conviction rates”: CB 1169 at [508];
iv.Accepted that “family violence and sexual abuse and harassment are a continuing problem for all women in Sri Lanka but also considered that the Sri Lankan government is committed to preventing the abuse of women and has instituted a national plan to address gender-based violence”: CB 1169 at [508];
v.Made no finding rejecting DFAT's moderate risk assessment or distinguishing it from the applicant daughter's circumstances: see CB 1168 [502]- 1169 [509]; and
vi.Found “the country information indicates that the government has committed to the prevention of abuse of women, that it has a reasonably effective judicial system, a functioning police force and law enforcement agencies and laws and processes designed to protect its nationals against family violence and abuse of women”: CB 1169 at [508].
c)The Tribunal's finding at CB 1169 at [509] that the applicant daughter did not have a well-founded fear of harm for a Convention reason at CB 1169 at [509] was tainted by the Tribunal's reasoning at particular (2)(b)(vi) above, which cannot rationally be reconciled with the DFAT report.
d)The only inference rationally capable of being drawn from DFAT’s report in respect of violence against women was that, despite the Sri Lankan government's putative commitment to preventing the abuse of women, the national action plan launched in 2016 and NGO attempts to fill gaps were not proving effective to address gender-based violence, and trends of gender-based violence were increasing, such that DFAT assessed women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate.
e)Further, the Tribunal did not explain why it found DFAT's moderate risk assessment did not give rise to a real chance of harm, aside from referring to factors that informed DFAT's moderate risk assessment, which logically could not ameliorate the moderate risk assessment.
f)Without further fact-finding, and engagement with DFAT’s moderate risk assessment, the Tribunal's reasoning at CB 1168 at [502] - 1169 at [509] did not provide a proper basis to determine the applicant daughter's gender-based claims.
Ground 3
The Tribunal's decision is affected by jurisdictional error due to denying the applicant's witness procedural fairness, which in turn denied the applicants a meaningful opportunity to present evidence and arguments on an issue arising in the review.
Particulars
a)The applicant wife claimed her land in Mullaitivu had been forcibly occupied by the Eelam People's Democratic Party (EPDP) and stated that if she returned to Sri Lanka she would take action to reclaim the land and that if she did so she and her family would be at risk of serious harm from the EPDP: CB 835.
b)In support of this claim, the applicants provided an undated statement from Mr. Pavendran Kangatharan (the witness), who attested to visiting Sri Lanka in May 2019, visiting the applicant wife's land and observing “people in civilian clothes carrying arms in the property”: CB 848.
c)The witness also gave evidence at the Tribunal hearing about what he observed when he visited the property and the Tribunal did not raise any concerns with his independence at the hearing.
d)In its decision, the Tribunal did not give the witness' evidence that he saw people in the house carrying weapons “any weight as he did not have the opportunity to adequately observe the property and its occupants for more than a short space of time. Further the Tribunal considers that the witness is in a difficult situation; he has a relationship with the applicant wife's family and understandably wishes to help and support them, but his evidence may not be entirely independent”: CB 1160 at [452].
e)This finding was completely unexpected and constituted a denial of procedural fairness, as the Tribunal did not raise the issue of the independence of the witness or his partiality in favour of the applicants at the hearing and afford either the witness, or the applicants, an opportunity to respond to the issue.
f)The denial of procedural fairness materially tainted the Tribunal’s critical finding at CB 1160 at [454] rejecting that the applicant's wife's land had been seized by the EDPD.
Following a period of inactivity, on 17 February 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 8 April 2025.
On 21 March 2025, the applicant filed a written submission (AS).
On 1 April 2025, the first respondent filed a written submission (RS).
Hearing on 8 April 2025
At the hearing in this Court on 8 April 2025, Chris Honnery of counsel appeared for the applicant, and Greg Johnson of counsel appeared for the first respondent. A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Honnery tendered:
(a)an affidavit which annexed a DFAT Country Information Report on Sri Lanka dated 4 November 2019 (2019 DFAT Report), which was relevant to grounds 1 and 2; and
(b)an affidavit which annexed a transcript of the hearing before the Tribunal on 29 July 2019, which was relevant to ground 3.
Counsel then made oral submissions which supplemented their written submissions.
CONSIDERATION
Ground 1
The Applicant Wife and Applicant Daughter claimed they faced a risk of sexual assault if required to return to Sri Lanka (Sexual Assault Claim). They claimed this risk supported a finding that, for the purpose of the complementary protection criterion in s 36(2)(aa) of the Act, there was a real risk that the Applicant Wife and Applicant Daughter would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka. The Tribunal, in considering the complementary protection limb, made the following finding at [523] concerning the Sexual Assault Claim:
The applicants referred to the high crime rates in Sri Lanka and the risk of sexual assault in relation to the applicant wife and daughter. As previously noted, the crime rate in Sri Lanka is comparable to other South Asian nations and there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned.
In ground 1, the applicants contend there is a jurisdictional error in the reasoning process and findings in this paragraph. To assess this contention, after making a preliminary observation concerning grounds 1 and 2, it is necessary to consider the evidence and claims before the Tribunal concerning the Sexual Assault Claim, the Tribunal’s reasoning process in relation to the claim, and the applicants’ particular contentions of error in the Tribunal’s reasoning process and findings at [523].
Preliminary observation concerning grounds 1 and 2
As indicated in paragraph 11 above, the applicants, through the Applicant Wife, made many claims concerning events between 1988 and 2019. In relation to the claims, the Tribunal was not satisfied Australia had protection obligations to the applicants. In this Court proceeding, the applicants do not challenge any findings of the Tribunal concerning these claims.
Instead, the applicants, based principally on country information in the 2019 DFAT Report which was before the Tribunal, claim in grounds 1 and 2 that the Tribunal erred in assessing the risk of the Applicant Wife and Applicant Daughter being sexually assaulted if required to return to Sri Lanka. If the Tribunal fell into jurisdictional error in assessing this claim, this is likely to result in a jurisdictional error in the Tribunal’s ultimate decision. But, in considering whether there was a jurisdictional error and the present focus in grounds 1 and 2 on the Sexual Assault Claim, it is relevant to note, as stated at RS [11] and when compared to the large number of claims made by the applicants concerning events between 1988 and 2019 and the large amount of materials provided on behalf of the applicants to the Department and Tribunal, “this particular claim was not a substantial or developed aspect of the applicants’ overall clams”. Although the applicants’ agent made the Sexual Assault Claim a number of times in various submissions before the Tribunal (see paragraphs 24 - 33 below), the submissions were repetitive and not developed.
Evidence and claims before Tribunal
In March 2011, the applicants first lodged applications for protection visas. The applicants’ claims were contained in an undated 5-page typed statement of the Applicant Wife: CB 26-30. But for a single sentence in the last paragraph of the statement, the Applicant Wife made no claim about a fear of sexual assault. In the last paragraph of the statement she wrote:
I cannot go back to Sri Lanka as a I fear that I would be definitely arrested/abducted at the airport or wherever I stay or reside and detained in unknown places, money extorted, tortured, raped and even killed … all due to me and my family members and husband being Tamils from Mullaitivu and my past inevitable and forced LTTE links.
As explained in paragraph 4 above, these first protection visa applications were refused, with a judicial review application of a decision of the RRT ultimately dismissed in November 2012.
In August 2013, the applicants again lodged applications for protection visas. The Applicant Wife’s protection visa application states that her claims are contained in “my detailed statement attached” (CB 248-251), but no statement of the Applicant Wife appears to be attached to a copy of the protection visa application in the Court Book. It is possible that the statement to which the Applicant Wife referred was her undated 5-page statement referred to in paragraph 24 above.
On 6 June 2014, possibly in anticipation of an interview with a delegate of the first respondent on 12 June 2014 (see CB 315 and 319), the applicants’ agent provided to the Department a statutory declaration of the Applicant Wife: CB 323-324. The Applicant Wife stated in paragraphs 15 and 16:
15. …. I faced harm and sexual violence from the Sri Lankan authorities and the people work with the Sri Lankan government. I have experienced it and I am now outside Sri Lanka and believe that it is my duty to involve Tamil political activities. ….
16. My daughter also used to participate in Tamil cultural and youth activities. Due to that, I fear I and my family will be targeted and will become the victims of the Sri Lankan authorities. The Sri Lankan authorities will not tolerate anyone whom they suspect as anti-Sri Lankan holding separatist political views and holding Tamil nationalists activities. I fear because me and the activities my daughter engage in Australia, She will become a victim of sexual violence and fear she may be abducted to revenge against us for our involvement with the anti- Sri Lankan political activities.
During the hearing in this Court on 8 April 2025, I asked Mr Honnery to explain the Applicant Wife’s reference to facing “sexual violence from the Sri Lankan authorities”. Mr Honnery stated that the Applicant Wife was referring to the occasion on which she was abducted and mistreated in December 2010, a claim which the Tribunal rejected at [407]-[424].
On 6 August 2014, the applicants’ agent provided to the Department a 48-page written submission: CB 332-379. Page 18 of the submission contains the heading “Extracted relevant parts from the statements and reports on sexual violence against Sri Lankan Tamils in Sri Lanka in post war situation in support of the applicant’s claim”. Under this heading are five pages of extracts from country information reports. At page 23 of the submission (CB 354) is a submission by the applicants’ agent including the following:
From the above statements and reports, we submit the following:
a.…
b.There are reports of rapes in Sri Lanka targeted at Tamils.
c.…
d.…
e.…
f.There has been a significant increase in sexual assaults and other rights abuses …
Following the applicants’ application to the Tribunal for review of the delegate’s decision dated 8 September 2014, on 27 October 2015 the applicants’ agent provided to the Tribunal a 32-page submission which contained updated country information: CB 428-459. After setting out extracts of country information, the agent made 32 observations at pages 22-25. Two of the observations were (CB 450):
In recent years, media, police and diplomatic reporting indicates sexual crimes against women is a rising concern.
Incidents of sexual assault and rape have increased in recent years.
On 29 October 2015, the applicants’ agent provided to the Tribunal a statutory declaration of the Applicant Daughter: CB 465-467. After noting in paragraph 1 that her mother was the primary applicant, the daughter stated in paragraph 2:
We fear that we will face serious harm if we return to Sri Lanka now or in future because the Sri Lankan authorities continue to think that we are LTTE supporters and Tamil nationalists In addition, there are lots of issues Tamil females face in Sri Lanka including rape, sexual assault and sexual harassment.
In the week before a hearing in the Tribunal on 15 June 2016, on 12 June 2016 the applicants’ agent provided to the Tribunal a 9-page submission which contained updated country information (CB 696-704), including concerning sexual harassment and sexual assault of women. At page 8, the agent made some observations derived from the submissions, including:
We submit that the applicants including their minor child … would face a real risk of significant harm including torture, degrading, inhuman, cruel treatment and sexual assault in Sri Lanka.
As explained above, a decision of the Tribunal dated 30 June 2016 was eventually set aside by the Federal Circuit Court, the matter was remitted to the Tribunal for re-determination, and the applicants attended a hearing before the second Tribunal on 29 July 2019. Following that hearing, on 3 February 2020 the Tribunal sent a letter to the applicants’ agent inviting comments on the 2019 DFAT Report: CB 1059. In response to this letter, on 17 February 2020 the applicants’ agent provided a submission to the Tribunal (CB 1063-1068) which, after setting out extracts of recent country information, concluded (CB 1068):
Based on our previous submissions after the publication of the DFAT report 2019 and our current submission, we submit that there is a real risk that our applicants will face killing, torture, degrading, inhuman and cruel treatment in Sri Lanka and request the Tribunal remit the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.
Tribunal’s reasoning process in relation to Sexual Assault Claim
Two preliminary observations are as follows.
First, the Tribunal was required to consider:
(a)whether the Applicant Husband or Applicant Daughter met the refugee criterion in s 36(2)(a) of the Act; and
(b)whether any of the applicants met the complementary protection criterion in s 36(2)(aa) of the Act.
The Tribunal, after summarising the evidence and submissions before it at [44]-[321], summarising some relevant country information before it at [322]-[347], and making findings on material questions of fact at [352]-[454]:
(a)at [455]-[509] made findings as to whether the Applicant Husband or Applicant Daughter met the refugee criterion in s 36(2)(a) of the Act; and
(b)at [510]-[529] made findings as to whether any of the applicants met the complementary protection criterion in s 36(2)(aa) of the Act.
Although ground 1 seeks to establish error in a paragraph of the Tribunal’s decision ([523]) concerning the complementary protection criterion:
(a)The Tribunal referred in the impugned paragraph to part of its earlier reasoning process in considering whether the Applicant Husband or Applicant Daughter met the refugee criterion.
(b)It has been stated that, although “decision-makers-commonly express their reasons sequentially … that does not mean that they decide each factual issue in isolation from the others”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [43]. This reflects “the need to read a decision-maker’s reasons as a whole”: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [44].
Accordingly, it is necessary to consider parts of the earlier reasoning process in determining whether there is a jurisdictional error in the impugned paragraph.
Second, other than the Applicant Wife’s claim concerning abduction and mistreatment in December 2010, which claim the Tribunal considered and rejected at [407]-[424] (which findings the applicants do not challenge in this Court proceeding), neither the Applicant Wife nor Applicant Daughter claimed to have been sexually assaulted in Sri Lanka in the past. The claimed risk of harm was based on country information before the Tribunal concerning the risk of sexual assault and violence faced by women in Sri Lanka.
The Tribunal at [485]-[491] considered whether the Applicant Father and Applicant Daughter faced a real chance of abduction and extortion in Sri Lanka. In considering this claim, the Tribunal at [490]-[491] stated:
490. The applicants claimed that there is a high crime rate in Sri Lanka. DFAT notes
2.61 Crime rates across Sri Lanka vary but are highest in Colombo District. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. The United Nations Office on Drugs and Crime estimated a murder rate of 2.55 per 100,000 people in 2016.
491. There is no evidence that the applicant husband and daughter would be targeted for criminal activity if they returned to Sri Lanka.
The Tribunal at [502]-[509] considered whether the Applicant Daughter faced a real chance of serious harm for reason of being a female Tamil. In considering this claim, the Tribunal at [504]-[509] considered and made findings concerning relevant country information. The Tribunal stated at [504]-[509]:
504. Family violence is prevalent, particularly in intimate partner relationships. Sexual abuse and harassment is not uncommon, but is not often reported for social reasons. However,
3.126 The government has committed to preventing the abuse of women and, in November 2016, launched a national action plan to address gender-based violence. A National Committee on Women makes recommendations for the formulation of policies and legislation that safeguards women's rights. The government provides legal aid and counselling for victims of gender-based violence, including through legal officers attached to the National Committee on Women and Assistant Counselling Officers attached to Divisional Secretariats. The Ministry of Women and Child Affairs operates a helpline - available in Sinhala, Tamil and English - for victims of gender based violence. Complaints received through the helpline are referred to relevant state institutions, including the police. Separately, the Ministry of Women and Child Affairs operates a complaints centre for victims of gender-based discrimination and provides counselling to victims. The police have established Women's and Children's Desks at some police stations and hospitals, including in Tamil-populated areas. The Ministry of Health, in partnership with non-government organisations, maintains district hospital-based medical services for sexual assault victims. Local sources told DFAT that state-provided support services for women had improved, but gaps remained, which often had to be filled by NGOs.
505. DFAT reports that
3.130 DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate.
506. With respect to women living in the northern area of Sri Lanka the report notes
•A history of war time sexual abuse against Tamil women.
•A history of sexual abuse of female former LTTE members held in detention camps in 2009 and 2010, and in military-run rehabilitation centres.
•A reduction in instances of reported abuse and harassment since the drawdown of the military.
•Greater opportunities to report gender-based violence but slow judicial processes and, in particular, cultural and social attitudes which act as deterrents.
•Support services are available in the north but are not generally adequate.
507. The Tribunal accepts that the country information indicates that women in Sri Lanka generally face some difficulties in obtaining employment, and that their generally high social indicators have not translated into greater economic or political participation. However, the Tribunal does not consider this level of discrimination amounts to persecution for reasons of being a woman, a Tamil woman or a Tamil woman whose parents originate from the north of Sri Lanka.
508. The Tribunal accepts that family violence and sexual abuse and harassment are a continuing problem for all women in Sri Lanka but also considers that the Sri Lankan government is committed to preventing the abuse of women and has instituted a national plan to address gender-based violence. While there are gaps in services some NGO's are attempting to fill those gaps. The Tribunal also notes that the implementation of state protection is sometimes hampered by "inadequate legislation, women's limited access to justice, fear of reprisals, limited trust in the police and judiciary, delays in the investigation of cases and very low conviction rates". However, the Tribunal considers that the country information indicates that the government has committed to the prevention of abuse of women, that it has a reasonably effective judicial system, a functioning police force and law enforcement agencies and laws and processes designed to protect its nationals against family violence and abuse of women. There is no evidence that such state protection would be withheld because the applicant daughter is a Tamil or for any discriminatory reason.
509. Accordingly, the Tribunal is not satisfied that the applicant husband or daughter either have a well-founded fear of persecution for reasons of their Tamil ethnicity, their Hindu religion, their real or imputed political opinion, membership of a particular social group or any other Convention related reason.
The Tribunal at [510]-[529] considered whether there was a real risk that any of the applicants would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka. Section 36(2A) of the Act provides:
(2A) A non - citizen will suffer significant harm if:
(a) the non - citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non - citizen; or
(c) the non - citizen will be subjected to torture; or
(d) the non - citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non - citizen will be subjected to degrading treatment or punishment.
Following the structure of s 36(2A):
(a)The Tribunal at [511] did “not accept there is a real risk that any of the applicants will face the death penalty if they return to Sri Lanka”.
(b)The Tribunal at [512], for reasons explained at [512]-[517], found “there is no evidence which would indicate that the applicants would be arbitrarily deprived of their lives if they return to Sri Lanka”.
(c)The Tribunal at [519], for reasons explained at [518]-[519], did “not accept there is a real risk that the applicants will face torture if they return to Sri Lanka”.
(d)The Tribunal at [520], for reasons explained at [520]-[527], did “not accept the applicants would face a risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment if they were returned to Sri Lanka”.
In considering whether the applicants would face a risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment if they were returned to Sri Lanka, the Tribunal considered the Sexual Assault Claim. The Tribunal stated at [523]:
The applicants referred to the high crime rates in Sri Lanka and the risk of sexual assault in relation to the applicant wife and daughter. As previously noted, the crime rate in Sri Lanka is comparable to other South Asian nations and there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned.
The reference to the “previously noted” “crime rate in Sri Lanka” appears to be a reference to the Tribunal’s reasons at [490] which is set out in paragraph 39 above.
Applicants’ contentions of error in Tribunal’s reasoning process and findings at [523]
Before addressing the applicants’ contentions, two observations which relate to the contentions are as follows.
First, there was discussion at the hearing as to whether, or the extent to which, the Court, in considering the Tribunal’s reasons at [523] concerning the Sexual Assault Claim, could consider the Tribunal’s evaluation of country information relevant to sexual assault at [504]-[508]. Mr Honnery, in particular (b) of ground 1 and at AS [19], highlighted parts of the 2019 DFAT Report which refer to the risk of violence faced by women in Sri Lanka. However, the Tribunal at [508] also referred to countervailing information in the 2019 DFAT Report, specifically:
(a)that “the Sri Lankan government is committed to preventing the abuse of women and has instituted a national plan to address gender-based violence” (sourced from the 2019 DFAT Report at [3.126]); and
(b)“that the government has committed to the prevention of abuse of women; that it has a reasonably effective judicial system, a functioning police force and law enforcement agencies and laws and processes designed to protect its nationals against family violence and abuse of women” (sourced from the 2019 DFAT Report at [3.120], [3.124], [3.126] and [5.9]-[5.20]).
Case law says that the Tribunal’s reasons must be read as a whole: see paragraph 37 above. Mr Honnery appeared to eventually accept that the Court could consider the Tribunal’s reasons at [508] in considering whether there was a jurisdictional error in the Tribunal’s reasons at [523].
Second, there was disagreement between Mr Honnery and Mr Johnson concerning the reasoning process at [523] as follows.
Mr Johnson contended that:
(a)the Tribunal’s statement that “the crime rate in Sri Lanka is comparable to other South Asian nations” responded to the applicants’ claim concerning “the high crime rates in Sri Lanka”, which claim is expressly recorded at [490]; and
(b)the Tribunal’s statement that “there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned” responded to the applicants’ claim concerning “the risk of sexual assault in relation to the applicant wife and daughter”.
In contrast, Mr Honnery contended that the Tribunal’s statements that “the crime rate in Sri Lanka is comparable to other South Asian nations and there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned” was a response to the applicants’ claim concerning “the risk of sexual assault in relation to the applicant wife and daughter”. This manner of reading [523] was a first step in contentions by Mr Honnery:
(a)at AS [29] that the Tribunal’s reasons at [523] “evince illogicality and irrationality by conflating the issue of general crime … with the discrete issue of violence against women”; and
(b)at AS [30] that “the Tribunal’s general reference to the crime rate being comparable to other South Asian nations was not a proper basis to determine the applicants’ risk of sexual assault”.
I prefer Mr Johnson’s explanation of the reasoning process at [523]. That is, I consider that:
(a)the Tribunal stated that “the crime rate in Sri Lanka is comparable to other South Asian nations” in response to the applicants’ claim concerning “the high crime rates in Sri Lanka”; and
(b)the Tribunal stated that “there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned” in response to the applicants’ claim concerning “the risk of sexual assault in relation to the applicant wife and daughter”.
The applicants’ complaint about the high crime rates in Sri Lanka was not limited to the risk of sexual assault in relation to the Applicant Wife and Applicant Daughter. For example, the applicants’ agent:
(a)stated in a submission dated 27 October 2015, as a reason why the applicants faced a real chance of serious harm, that “Sri Lanka faces a high level of criminal activity” (CB 450);
(b)stated in submissions dated 29 June 2016 that the applicants faced a risk of “abduction, torture and sexual violence” because they were perceived to be wealthy (CB 767-768); and
(c)referred in a submission dated 2 March 2020 to an “escalation of violence in Sri Lanka” and contended that, as a result of the violence, the applicants “will face significant harm including killing, torture, degrading inhuman and cruel treatment if they returned to Sri Lanka” (CB 1086).
In this context, the Tribunal’s statement that “the crime rate in Sri Lanka is comparable to other South Asian nations” responded to the applicants’ discrete claim concerning the high crime rate in Sri Lanka.
Further, even if Mr Honnery is correct, as explained below, the Tribunal’s finding that “there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if returned” appears to be a complete answer to the claim that the Applicant Wife and Applicant Daughter faced a real risk of being sexually assaulted.
The applicants’ written submission makes the following complaints about the Tribunal’s reasoning process at [523].
First, it is stated at AS [28] and [32]:
[28] The Tribunal did not properly address the risk of sexual assault, which could constitute cruel or inhuman treatment or punishment or degrading treatment or punishment. “Without further fact finding” – which did not occur – the reasoning did not provide a rational basis to dispose of the risk of significant harm. The applicant wife’s risk of sexual assault and gender-based violence ought not only to have been recognized, but also to have been properly considered: Applicant WAEE v MIMIA [2003] FCAFC 184 at [48]. By not doing so, the Tribunal failed to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration andMulticultural Affairs (2001) 233 FCR 136 at [42].
[32] Without further fact finding, there is no rational connection between the absence of evidence that the applicants would would be “targeted for criminal activity”, and whether the documented prevailing circumstances regarding the mistreatment of women in Sri Lanka could expose the applicants to degrading treatment, noting complementary protection does not require an applicant to face targeted harm: see AOS18 at [18] (extracted above).
During the hearing in this Court, I asked Mr Honnery to explain the “further fact finding” the Tribunal was required to make. Mr Honnery stated that the Tribunal needed to make findings concerning the exposure of the Applicant Mother to the risk of sexual assault, including where in Sri Lanka she would live and whether the Applicant Husband could shield her from sexual assault. But the Applicant Mother never gave evidence concerning these matters, other than a strikingly vague assertion in her March 2011 statement that she feared that, if required to return to Sri Lanka, she would, among many other things, be raped. Guided by Plaintiff M1/2021 v Minister for Home Affairs [2023] HCA 17; 275 CLR 582 at [25], I do not accept the Tribunal needed to make findings of fact concerning these matters.
In response to AS [28], for reasons explained in the following paragraphs, I do not accept that “the reasoning [at [523]] did not provide a rational basis to dispose of the risk of significant harm”. The Tribunal found at [523] that “there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned” (No Evidence Finding). The applicants’ challenge to this finding was (see AS [30]):
The Tribunal’s finding that there was ‘no evidence which suggests the applicants would face a real risk of being victims of criminal activity’ was no answer, and certainly not a complete answer, to whether the prevalence of violence against women (documented as a discrete issue to the crime/homicide rate in the DFAT report) entitled the applicants to complementary protection.
It appears from this contention that the applicants do not challenge the No Evidence Finding. For example, in their written submission the applicants do not:
(a)contend that it was not open to the Tribunal to make the No Evidence Finding; or
(b)contend that, contrary to the No Evidence Finding, there was evidence before the Tribunal which suggested that the applicants would face a real risk of being victims of criminal activity if they returned to Sri Lanka.
During the hearing on 8 April 2025, I invited Mr Honnery to identify any evidence in the Court Book contrary to the No Evidence Finding. Mr Honnery did not identify any evidence.
The applicants appear to accept that it was open to the Tribunal to make the No Evidence Finding, but contend the finding does not logically or rationally support a finding that the Applicant Wife and Applicant Daughter did not face a real risk of being sexually assaulted in light of the prevalence of violence against women documented in the 2019 DFAT Report. I disagree. If there was “no evidence [before the Tribunal] which suggests that the applicants would face a real risk of being victims of criminal activity if they returned”, and Mr Honnery accepted during the hearing on 8 April 2025 that any sexual assault is a criminal activity, I consider that this rationally supports a finding by the Tribunal that it was not satisfied that the Applicant Wife and Applicant Daughter faced a real risk of being sexually assaulted.
The Applicant Wife and Applicant Daughter did not provide any evidence in their statutory declarations or statements which suggested that they would face a real risk of being sexually assaulted if they returned to Sri Lanka. While Mr Honnery relied heavily on country information in the 2019 DFAT Report, that country information emphasises violence against women in domestic settings: see [3.123] (“violence against women is most common in domestic settings” and “17 per cent of married women had experienced intimate-partner violence”) and [3.125] (“domestic violence is often seen as a normal part of married life”).Neither the Applicant Wife nor the Applicant Daughter claimed, or gave evidence to support a conclusion, that they might suffer sexual violence in a domestic setting.
In relation to the possibility that the Applicant Wife or Applicant Daughter might suffer sexual violence outside a domestic setting:
(a)the 2019 DFAT Report does not appear to address either the frequency of sexual violence outside domestic settings, or the circumstances in which such sexual violence occurs; and
(b)the applicants provided no evidence and made no submissions to the Tribunal to support a conclusion that they might suffer sexual violence outside a domestic setting.
In the circumstances, the No Evidence Finding provided a “probative foundation” (CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [68], [70], [72], [77]) for the Tribunal’s conclusion at [520] that, taking into account the Sexual Assault Claim, the Tribunal did “not accept the applicants would face a risk of cruel or inhuman treatment or punishment; or degrading treatment or punishment if they were returned to Sri Lanka”.
Second, there is a complaint at AS [26]-[27] and [29]-[31] about the Tribunal’s statement that “the crime rate in Sri Lanka is comparable to other South Asian nations”. For example, it is stated:
27. This reasoning related to the husband and daughter and not the applicant wife because her claims were not considered under the refugee assessment. This was not a case in which the Tribunal’s findings under the refugee assessment were entirely determinative of the factual foundation for a complementary protection claim …
29. … the Tribunal’s reasoning at [523] evinces illogicality and irrationality by conflating the issue of general crime, in respect of which DFAT reported “the incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries”, with the discrete issue of violence against women, which by contrast DFAT confirmed was “prevalent” throughout Sri Lanka …
31. The fact that DFAT reported Sri Lanka’s incidence of homicide … was “comparable with other South Asian countries” was not a rational basis to determine the applicants’ risk of sexual assault in the complementary protection context given DFAT’s reporting of violence against women.
As explained in paragraph 51 above, I consider that:
(a)the Tribunal stated that “the crime rate in Sri Lanka is comparable to other South Asian nations” in response to the applicants’ claim concerning “the high crime rates in Sri Lanka”; and
(b)the Tribunal stated that “there is no evidence which suggests that the applicants would face a real risk of being victims of criminal activity if they returned” in response to the applicants’ claim concerning “the risk of sexual assault in relation to the applicant wife and daughter”.
On this reading of [523], the Tribunal did not rely on the comparability of homicide rates or crime rates between Sri Lanka and other South Asian nations as a reason for concluding that the Applicant Wife and Applicant Daughter did not face a real risk of sexual assault in Sri Lanka.
Alternatively, even if Mr Honnery’s reading of [523] is correct (see paragraph 50 above), the Tribunal, in not accepting that the Applicant Wife and Applicant Daughter faced a real risk of sexual assault, also relied on the No Evidence Finding. As stated above, the No Evidence Finding provided a probative foundation for the Tribunal not being persuaded that the Applicant Wife and Applicant Daughter faced a real risk of being sexually assaulted on return to Sri Lanka.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The Applicant Daughter claimed that she faced a real chance of being sexually assaulted for a Convention reason. The Tribunal considered the claim at [502]-[509]. The Tribunal’s findings are set out in paragraph 40 above. The applicants claim there is a jurisdictional error in the reasoning process at [508]-[509].
Before considering the applicants’ contentions in detail, it is relevant to explain an aspect of the Tribunal’s reasons at [508]. Whether or not an applicant for a protection visa under the Act has a well-founded fear of persecution under the Act requires a consideration of ss 5J and 5LA of the Act. Sections 5J and 5LA relevantly provide:
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation … that controls the relevant State …; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
A comparison between the language in the last two sentences of [508] and s 5LA indicates a significant overlap in terminology. I consider that the Tribunal, in the last two sentences of [508], applied s 5LA. During the hearing on 8 April 2025, Mr Honnery did not disagree. Mr Honnery also did not contend there was any error by the Tribunal in its application of s 5LA.
A summary of the applicants’ main contention in their written submission at AS [36]-[42] is as follows:
(a)Paragraphs [3.123]-[3.130] of the 2019 DFAT Report provide information concerning the risk of societal discrimination and violence against women in Sri Lanka.
(b)After considering a range of matters in these paragraphs, the authors concluded at [3.130] as follows (which conclusion is set out in the Tribunal’s decision at [505]):
DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate.
(c)The Tribunal at [508] “cherry-picks matters [in] DFAT’s report” (AS [36]) which, in isolation or out of context, might suggest that Tamil women in Sri Lanka do not face a real chance of being sexually assaulted or abused.
(d)However, “these factors were all baked in to DFAT’s moderate risk assessment” (AS [40]) and it was therefore “not open to rely on these factors as the bases to determine the applicant’s risk of harm … in circumstances where the Tribunal made no finding rejecting DFAT’s [moderate risk] assessment” in paragraph [3.130] of the 2019 DFAT Report or otherwise “distinguishing [DFAT’s moderate risk assessment] from the applicant daughter’s circumstances”: AS [38]. The Tribunal “did not explain why it found DFAT’s moderate risk assessment did not give rise to a real chance of harm” and “to the extent it … relied on factors that were cited by DFAT in the process of reaching that assessment … such factors informed, and were not capable of ameliorating, DFAT’s moderate risk assessment”: AS [42].
For the following reasons, this contention does not identify a jurisdictional error in the Tribunal’s reasons at [508]-[509].
First, the authors of the 2019 DFAT Report and the Tribunal addressed different questions. The authors of the 2019 DFAT Report at [3.123]-[3.130] provided information concerning the risk of societal discrimination and violence against women in Sri Lanka. In contrast, the Tribunal considered, with reference to ss 5J and 5LA of the Act, whether the Applicant Daughter had a well-founded fear of being sexually assaulted or abused for a Convention reason. There are differences between the two questions. An obvious difference arises from the matters in s 5LA. Another difference is that, as stated by the Tribunal at [504] with reference to paragraph [3.123] of the 2019 DFAT Report, “family violence is prevalent, particularly in intimate partner relationships”. But it was not part of the Applicant Daughter’s claim, and there was no evidence before the Tribunal to suggest, that she faced a risk of sexual violence from an intimate partner or other family member. As stated at RS [23], “the Tribunal was not bound to find that any of the applicants had a well-founded fear of persecution by reference to what appeared in the DFAT report”, “DFAT did not opine on the question the Tribunal was required to consider”, and “the Tribunal was not bound to accept, or agree, with” DFAT’s assessment in paragraph [3.130] of its report.
Second, as stated in the Tribunal’s decision at [505], paragraph [3.130] of the 2019 DFAT Report contains a conclusion that “women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms available to women in these circumstances are inadequate”. Mr Honnery’s contention involved reading paragraph [3.130] as containing conclusions that “women throughout Sri Lanka face a moderate risk of societal discrimination and a moderate risk of violence”. However, an alternative way of reading paragraph [3.130] is that DFAT concluded that “women throughout Sri Lanka face a moderate risk of societal discrimination” where the definition of “societal discrimination” includes “violence”. On this latter way of reading paragraph [3.130], the Tribunal did not find that “women in Sri Lanka face a moderate risk of violence”. While I prefer the latter way of reading paragraph [3.130], I accept that it is not clear which reading the authors of the 2019 DFAT Report intended. Regardless of which reading the authors of the 2019 DFAT report intended, it is clear from the Tribunal’s reasons at [505] that the Tribunal had regard to the conclusion in paragraph [3.130] of the 2019 DFAT Report in the course of reaching its findings at [508]-[509].
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
The Applicant Wife claimed her land in Mullaitivu had been forcibly occupied by the EPDP, if she returned to Sri Lanka she would take action to reclaim the land, and if she did so she and her family would be at risk of serious harm from the EPDP.
This claim was supported by evidence from the witness PK who provided a written statement to the Tribunal: see CB 847-848. PK stated that, during a visit to Sri Lanka in May 2019, the mother of the Applicant Wife told PK that members of the paramilitary group EDPD had forcibly taken the land owned by the Applicant Wife and “local people … also confirmed what [the Applicant Wife’s] mother told me”. PK stated that he decided to visit the land, he “went on a motor bike to see the property from outside” and he “saw the people in civilian clothes carrying arms in the property”.
PK also gave oral evidence at the hearing before the Tribunal on 29 July 2019 concerning this issue.
The Tribunal dealt with PK’s evidence at [452] as follows:
The applicants' witness gave evidence at the Tribunal hearing about his observations and interactions with the applicant wife mother. He stated that he had been asked to visit the applicant wife's property in Mullaitivu. He stated that he passed by on his bike in May 2019 and observed persons at the property and thought they were from the military because they had weapons. He conceded that he had only observed the house from afar briefly and could not explain how he knew they were carrying weapons. The Tribunal does not give the evidence of the applicants' witness that he saw people in the house carrying weapons any weight as he did not have the opportunity to adequately observe the property and its occupants for more than a short space of time. Further the Tribunal considers that the witness is in a difficult situation; he has a relationship with the applicant wife's family and understandably wishes to help and support them, but his evidence may not be entirely independent.
In ground 3, the applicants complain that “this finding was completely unexpected and constituted a denial of procedural fairness as the Tribunal did not raise the issue of the independence of the witness or his partiality in favour of the applicants at the hearing and afford either the witness or the applicants an opportunity to respond to the issue”: particular (e) of ground 3 in Amended Application. Similarly, it is contended at AS [48] that “neither the witness nor the applicants were given an opportunity to present evidence and arguments on whether [PK] was an impartial witness” and this involved a “failure to afford procedural fairness”.
For the following reasons, I do not accept the Tribunal committed a jurisdictional error in the manner stated in ground 3.
First, by way of context, the Tribunal at [452] gave the evidence of PK no weight “as he did not have the opportunity to adequately observe the property and its occupants for more than a short period of time”. The applicants did not challenge this finding in this Court proceeding. In a context where “there is no reason to suppose that the Tribunal does not mean what it says, and says what it means” (W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 379; 67 ALD 757 at [16]), that the Tribunal gave PK’s evidence no weight for a reason independent of his partiality:
(a)indicates that the Tribunal’s concern about PK’s independence was of lesser weight, and perhaps immaterial, in relation to its decision to give PK’s evidence no weight; and
(b)is relevant in assessing whether PK’s independence was an issue arising in relation to the decision under review within the meaning of s 425 (see paragraphs 86-93 below), or a matter which procedural fairness required the Tribunal to raise with PK (see paragraphs 94-97 below).
Second, also by way of context, the Tribunal did not find that PK was not an independent witness. The Tribunal:
(a)merely stated that PK’s evidence “may not be entirely independent”; and
(b)did not state that it discounted or gave less weight to PK’s evidence because of its observation that he “may not be entirely independent”.
Third, as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL), taking into account s 422B of the Act, the obligation of the Tribunal to afford procedural fairness to an applicant at a hearing was regulated by s 425 of the Act which provided at the time of the hearing before the Tribunal:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Where the obligation of the Tribunal to afford procedural fairness was regulated by s 425 of the Act, there would only be a jurisdictional error if the Tribunal failed to raise with an applicant “an issue arising in relation to the decision under review”.
In SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 (SZHKA) at [103] Besanko J stated in relation to s 425(1) of the Act:
An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal … I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. In addition to these considerations, it must be remembered, as the High Court pointed out in SZBEL 228 CLR 152, that there may be many ways in which it will become apparent to an applicant for review that a particular matter is an issue.
His Honour, after recording two matters which the appellants contended were “issues” within the meaning of s 425(1), continued at [113]-[115]:
[113] …Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 (SZTAP) the appellant contended that the question of whether a family member would be able to provide surety for the appellant was a dispositive issue within the meaning of s 425(1). Robertson and Kerr JJ stated at [79]:
However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
It was not contended in the applicants’ written submission that the question of whether PK was an independent witness was an issue arising in relation to the decision under review. Mr Honnery made this contention at the hearing in this Court, although the contention did not address the context explained in paragraphs 84 and 85 above.
Whether the Tribunal contravened s 425 in a particular case is “fact specific” (SZTAP at [77]) and therefore requires consideration of the particular facts of the case.
As explained in paragraph 11 above, the Applicant Wife, and the Applicant Husband and Applicant Daughter through the Applicant Wife, made many claims concerning events between 1988 and 2019. It may be that the question of whether central events occurred were each issues arising in relation to the decision under review and, in this manner, the question of whether the EDPD had taken over or occupied land owned by the Applicant Mother in Mullaitivu was an issue arising in relation to the decision under review. Mr Honnery must contend that a “more specific” (SZHKA at [115]) issue arising in relation to the decision under review was a concern by the Tribunal that PK’s evidence “may not be entirely independent”. Taking into account the context explained in paragraphs 84 and 85 above, I do not consider this was a separate issue arising in relation to the decision under review. That the Tribunal had a concern that PK’s evidence “may not be entirely independent”, which concern the Tribunal did not expressly rely on to discount the evidence, was not a separate issue arising in relation to the decision under review. The Tribunal’s concern was not “substantial enough to constitute an issue”: SZHKA at [115]. The Tribunal’s concern was not “critical to the Tribunal’s finding[s]” or “a determinative factor in the mind of the Tribunal” or a “matter the Tribunal considers may be important to its decision”: SZTAP at [79]. It was not a “central and determinative issue on the review” (AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156; 189 FCR 494 at [102]). To the contrary, the Tribunal’s concern was “of an insubstantial nature” (SZHKA at [115]) compared to the many more substantial issues considered by the Tribunal
Fourth, although the point was not advanced in the applicants’ written submission, Mr Honnery contended at the hearing in this Court that the Tribunal:
(a)had a separate obligation to accord procedural fairness to PK in his capacity as a witness who gave evidence at the hearing; and
(b)this obligation was not regulated by s 425 on the basis that the Tribunal’s obligation to witnesses at hearings under s 425 was not a “matter [s 425] deals with”: see s 422B(1) and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252.
Mr Honnery relied on Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2008] FCAFC 118; 88 ALD 304 (Maltsin) at [54]. In that case, in a hearing in respect of a partner visa application, the Tribunal, because it wanted to conclude the hearing by 4 pm, refused to accede to the applicant’s request to obtain evidence from some witnesses. The Tribunal then made a finding in its decision that there was “a web of deceit through the review applicant’s family and social connections”. The “web of deceit” finding applied to at least one witness from whom the Tribunal declined to obtain evidence. The Full Court stated at [52]:
… the Tribunal found that certain persons, some of whom gave corroborative evidence, were deceitful … It was unfair in the circumstances to condemn as dishonest a group of individuals … in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.
In the context explained in the above paragraph, the Full Court at [54] noted the possibility that “where the rules of procedural fairness apply, they control the hearing before the relevant administrative body and, at least in some circumstances, may enure for the benefit of persons other than the applicant”.
Whether or not the rules of procedural fairness might enure for the benefit of witnesses who give evidence at hearings under s 425 of the Act, the position of PK was far removed from the position of the witnesses considered in the above passages in Maltsin. Even if the rules of procedural fairness enured for the benefit of PK, I do not accept:
(a)that those rules required the Tribunal to raise with PK its concern that his evidence “may not be entirely independent”; or
(b)that the Tribunal breached an obligation of procedural fairness to PK by not raising its concern with him and giving him an opportunity to comment.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, it was agreed that I would hear submissions o n costs following the delivery of judgment.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 13 May 2025
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