CBH15 v Minister for Immigration
[2017] FCCA 2462
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBH15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2462 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal considered the claims individually and cumulatively regarding risks facing the applicant in detention – whether the Tribunal made an error of the type identified in AVB16. |
| Legislation: Migration Act 1958, ss.424A, 425 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 |
| Applicant: | CBH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2269 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 22 June 2017 |
| Date of last submission: | 22 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Counsel for the applicant: | Georgina Costello |
| Solicitors for the applicant: | King & Wood Mallesons |
| Counsel for the first respondent: | Angel Aleksov |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The decision of the Administrative Appeals Tribunal made on 24 September 2015 in matter number 1408731 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2269 of 2015
| CBH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The court’s decision in this matter was reserved pending the outcome of the appeal to the High Court from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69.
The applicant’s claims
The Tribunal summarised the applicant’s claims as follows:
20.… [The applicant] is a Tamil born in Kanniya, Trincomalee in 1980. Her parents and brother and sister still reside in Sri Lanka and another sister resides in India. She worked in various jobs (in retailing, nursery and food packaging) in Sri Lanka. In 2001 she obtained a visa and fraudulent passport and worked as a housemaid in Saudi Arabia. In December 2005 she returned to Sri Lanka to visit her family. She returned to Saudi Arabia and continued to work as a housemaid. She returned to Sri Lanka in 2006 and lived in Colombo. In 2007 after obtaining another work visa she returned to Saudi Arabia and remained there until 2010. Upon return to Sri Lanka she resided in Trincomalee. In February 2011 she obtained a work visa for Kuwait and worked there as a housemaid. In February 2012 she returned to Sri Lanka and resided in Trincomalee until her departure for Australia by boat in June 2012.
21.In 1985 the applicant and her family were forced to move to an internally displaced person (IDP) camp. When the family was living in Nilaweli in or about 1985 the army arrested her father. He was beaten, blindfolded and handcuffed and taken away. Many Tamil men were arrested that night. He was in custody for five years and tortured. Her mother was held in custody for 12 hours and raped. Six months after they went to the camp in Nilaweli, the mother moved the family to the “Clubandback” camp in Trincomalee district.
22.In or about 1990, the Red Cross arranged for the applicant’s family to live in Trincomalee City. After three months they were re-settled in Kanniya village in Trincomalee. Within a few months, troubles for the Tamils in the area started again. The applicant and her sisters moved with their aunt to Jaffna district. Her parents stayed in Trincomalee as her brother had a serious car accident. In 1991, the applicant and her sisters moved back to Trincomalee.
23.In 1992, the applicant’s mother tried to enrol in her in a local school but was unable to because the applicant’s birth certificate had been destroyed in a fire. Her new school accepted a letter explaining this in lieu of her birth certificate. The applicant lived with her family in Trincomalee for the next 10 years. Her family was constantly harassed by the army and authorities who would constantly come to the house to register who was living there. In 1995 or 1996 the army detained her brother for a month due to his injuries which they suspected were due to involvement with the Liberation Tigers of Tamil Eelam (LTTE). He was only released due to friends contacting the Red Cross.
24.During 1996-2001, the army would constantly come to the applicant’s family house asking for ID cards. They accepted her school identity card up until she was 18 years old. They demanded to see her national identity card because she did not have a birth certificate. Her family and her tried to obtain a new birth certificate but the authorities could not find a record under her name.
25.In 2001, the applicant through an agent obtained a fraudulent passport and left for Saudi Arabia. In 2005 she returned home and was scared to leave the house because she did not have an identity card and could not show them the passport because it had a Muslim name.
26.When the applicant returned to Sri Lanka in late 2010 her parents tried to find a husband for her but did not succeed as women who had spent significant time in Saudi Arabia had bad reputations. Between late 2010 and early 2011 she faced problems with the police. They came to her family home (when she was not there) and asked her father and brother about her whereabouts. Her brother denied that she had returned home. The police searched the neighbourhood. Her mother called her and told her not to come home. She then spent more time at her friend’s house and if she did stay at home she would not leave the house; she was scared of being suspected of involvement with the LTTE due to her lack of national ID card.
27.When she returned to Sri Lanka in February 2012 she went into hiding as she did not want the police to know she had returned. She never left her family home during the day or venture[d] more than 100 metres. She fears harm as a member of a particular social group of “Tamils without national ID cards”.
The Tribunal’s reasons
The Tribunal accepted that the applicant’s birth certificate had been destroyed in a fire, and that she did not have a national ID card. However, after reviewing material relating to the registration of births in Sri Lanka, the Tribunal considered that there were methods available to enable the applicant to have her birth registered again and to enable her to obtain a national identity card.
The Tribunal considered country information and concluded that the fact that the applicant would not have an identity card temporarily would not cause her to be imputed with a pro Liberation Tigers of Tamil Eelam (“LTTE”) political opinion.
The Tribunal accepted the applicant’s claims about the serious mistreatment of members of her family. However, the Tribunal considered that all of those events occurred a long time ago during the war in Sri Lanka, there were no recent claims of harm and there were no claims that the applicant or any members of her family had ever been involved with the LTTE. The Tribunal did not accept that there was a real chance that the authorities in the reasonably foreseeable future would take an adverse interest in the applicant or suspect her of involvement in the LTTE.
The Tribunal considered certain country information and concluded that the chances of the applicant being sexually assaulted, harmed as a Tamil or harmed as a failed Tamil asylum seeker were remote. The Tribunal did not consider that the applicant would face serious or significant harm on account of her illegal departure from Sri Lanka.
Ground 1
The first ground of review in the application filed on 8 October 2015 and amended on 30 March 2017 is:
The Tribunal erred in that it misconstrued the requirements as to intent contained in the definitions of:
a.“cruel or inhuman treatment or punishment” (CITP) in s 5(1) of the Migration Act 1958 (Cth) (Migration Act), that pain or suffering be “intentionally inflicted”; and
b.“degrading treatment or punishment” (DTP) in s 5(1) of the Migration Act, that an act or omission be “intended to cause” extreme humiliation.
by determining that the requirements are not satisfied if a person performs an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation.
Particulars
(a)The Tribunal found at [67] of its decision that any detention of the Applicant in poor prison conditions upon her return:
1.would not involve intentionally inflicted severe physical or mental pain or suffering or intentionally inflicted physical or mental pain which could reasonably be regarded as cruel or inhuman in nature; and
2.would not involve any act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable,
because the risks were faced by the general population and not her personally.
The applicant “readily concede[d]”[1] that this ground depended on a favourable outcome of the appeal to the High Court from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. The decision of the High Court in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 was not favourable to the applicant. Consequently, this ground cannot succeed.It is therefore unnecessary to consider the Minister’s alternative arguments regarding how the decision of the Full Court of the Federal Court in SZTAL could be distinguished.
[1] Tr. p.5, l.45.
Ground 2
The second ground of review in the application filed on 8 October 2015 and amended on 30 March 2017 is:
The Tribunal erred by failing to consider a claim, and/or integer of a claim, and/or the cumulative risk of harm faced by the Applicant, in that the Tribunal failed to consider the Applicant’s risk of harm in detention in light of:
a.the fact that she did not have a national identity card; and
b.her Tamil ethnicity; and
c.her gender; and
d.her status as a failed asylum seeker; and
e.where she was from in Sri Lanka.
The Tribunal found that the applicant might be detained for a short period because she had departed Sri Lanka illegally. Ground 2 concerns whether the Tribunal considered individually or cumulatively the risk to the applicant while she was in detention arising from certain of her characteristics.
The applicant does not appear to have raised an express claim that she faced a real risk of serious or significant harm in detention based on her various characteristics, singly or cumulatively.
In her statutory declaration (at CB62), the applicant relevantly claimed that she may be arrested if she returned to Sri Lanka for not having an identity card and for being a Tamil without an identity card. She did not say anything in her statutory declaration about any particular risks that she might face in detention.
The Tribunal dealt with the identity card claims that the applicant made. The Tribunal, after considering country information, accepted that the applicant is a Tamil who would not have an identity card when she returned to Sri Lanka. However, the Tribunal considered that she would be able to obtain an identity card in time. The Tribunal concluded at paragraph 34 of its reasons for decision that:
The Tribunal has not identified any country information that indicates that since the ending of the war, Tamils without national identity cards are targeted and harmed by the authorities on suspicion of being linked with the LTTE.7 Based on this evidence, I do not accept that there is a real chance that the applicant will be imputed with a pro-LTTE political opinion and arrested and harmed on account of not having a national identity card as she has claimed.
7 For example, the Department of Foreign Affairs and Trade in the DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014, does not refer to this happening.
The applicant attended an interview with the delegate. At that interview, the applicant said relevantly (CB133; page 13 of the delegate’s decision) that:
a)she feared that, because she did not have an identity card, she would be arrested on suspicion of involvement with the LTTE;
b)she feared being tortured and killed for leaving Sri Lanka illegally and applying for asylum in Australia; and
c)she feared being raped by the army because she did not have an identity card.
The applicant, during the interview with the delegate, does not appear to have expressly raised any particular claims specifically relating to the risks she faced in detention as such.
The Tribunal dealt with the claim about being arrested for not having an identity card at paragraph 34 of its reasons for decision, as discussed above.
The Tribunal noted DFAT information that there had been claims that returnees had been tortured or mistreated. However, after considering country information, concluded that there was only a remote chance of the applicant suffering serious or significant harm as a failed Tamil asylum seeker from a Western country. The Tribunal considered that the applicant faced “short term detention” (CB201; paragraph 66 of the Tribunal’s reasons for decision) for her illegal departure from Sri Lanka rather than torture or mistreatment.
In relation to the applicant’s concerns about rape, the Tribunal accepted that the applicant’s mother had been raped by the military but said that occurred a long time ago and during the war. The Tribunal considered country information about the more recent incidence of rape in Sri Lanka and the absence of any reports, since the end of the war, that the military or other authorities had regularly targeted women for reasons of sexual violence. The Tribunal concluded that the applicant did not face a real risk of serious or significant harm as a single, young, Tamil woman without identity documents: CB195-6; paragraph 45 to 46 of the Tribunal’s reasons for decision.
The applicant provided extracts of the transcript of the Tribunal hearing in an exhibit to the affidavit of Georgia Boyce affirmed on 5 April 2017. However, nothing in those extracts amounts to an express claim that the applicant faced any particular risks in detention for any reason.
Of course, the Tribunal is not only required to consider claims that are raised expressly. The Tribunal must also consider claims that arise on the materials.
In the present case, the applicant filed a supplementary court book, which consisted of country information referred to in footnotes to the Tribunal’s decision. If that country information contained something that could amount to a claim about what the applicant might face in short term detention, that the Tribunal did not consider, the Tribunal would have made a jurisdictional error as alleged in ground 2.
The applicant argued that the Tribunal had made findings that contradict material in the country information[2]. However, the Tribunal is entitled to prefer some country information to other country information. The Tribunal is not bound to accept the country information that most supports an applicant’s claims.
[2] Tr. p.11, l.20.
In any event, the applicant filed further submissions that identified the pages of the supplementary court book that she particularly relied upon, and in oral submissions identified the parts of those pages that she particularly relied upon. The relevant passages are addressed in order.
SCB402 to SCB404, which is part of the Home Office, UK Border Agency, Country of Origin Information Report, Sri Lanka, dated 7 March 2012 (“the Home Office report”)[3], contains information about returned failed asylum seekers. The first identified passage, at 25.30, says that some people, including those who have departed illegally and those who do not have an identity card, face possible detention. The Tribunal accepted that the applicant may be detained for a short period. The first identified passage does not deal with what might happen to a person in detention. The second identified passage, being the sixth paragraph at 25.32, does not address what might happen to a person in detention but concerns travelling inland without an identity card. It is not relevant to ground 2.
[3]Pp.200-202.
SCB416, which is part of the Home Office report[4], concerns what might happen to a person who avoids detention. It is not relevant to ground 2.
[4] P.214.
SCB551 to SCB554, which is part of the BBC News article, Sri Lanka’s Tamils face identity crisis, dated 28 June 2012[5], concerns the difficulties faced by people without identity cards. It does not address the effect of not having an identity card for a person undergoing short term detention. It is not relevant to ground 2.
[5] Pp.1-4.
SCB579 is part of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, United Nations High Commissioner for Refugees, dated 21 December 2012 (“the UNHCR report”)[6]. The passages relied upon refer to torture and deaths of detainees in 2010, 2011 and 2012. The passages say that security personnel subjected undocumented detainees in the north and east to interrogation and torture. More particularly, it is said at SCB579 that, These detainees were reportedly civilians suspected of LTTE connections.
[6] P.18.
The passages relied on relate to detainees generally, and not only to those who are detained after returning to Sri Lanka as failed asylum seekers. The passages relied on refer to detainees in the north and east, rather than detainees from the north and east, who are undocumented and who are suspected of LTTE connections. The Tribunal found that the applicant would not be regarded as a person with LTTE connections.SCB579 did not address the issue of a detainee’s gender.
The Tribunal said in relation to these matters:
54.The DFAT country information referred to above [dated 16 February 2015] provides that there is no difference in the treatment of deportees or returnees whether they are Singhalese, Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have substantial weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.
55.I note that a number of the sources referring to harm to returnees highlight the significance of an actual or suspected affiliation with the LTTE. Freedom from Torture has reported that an actual or perceived association with the LTTE was a factor placing individuals at risk of torture and inhuman and degrading treatment. It described Tamils with an actual or perceived association with the LTTE, including those returning from abroad, as being at particular risk.14 This aspect of the information is consistent with advice from sources such as the UNHCR concerning those with actual or perceived links to the LTTE.
56.I accept that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applies to people with such a profile who have returned to Sri Lanka from abroad. Having regard to all of the information on the treatment of returnees, I am not satisfied that returnees generally are regarded as having links with the LTTE or being opposed to the government simply because they have been in Australia. I do not accept that returnees generally or returnees who have been in western countries are seen as having links to the LTTE. The applicant has not claimed that she has ever been involved in this organisation. I have had regard to the applicant’s claims, but I do not accept that, if she were to return to Sri Lanka, the authorities would regard her as a supporter of the LTTE or someone with links to the LTTE.
57.I accept that when the applicant returns she will be questioned by the authorities and her identity checked with her home town police and her neighbours and family. I also accept that when she returns to [her] home area, there is a real chance that she will [be] contacted at [her] home by the military or the police for further registration.15 I do not consider such treatment amounts to either serious harm or significant harm and considering the country information as a whole (including DFAT’s assessment that the risk of torture or mistreatment for the great majority of returnees is low), I find the chance or risk she will be seriously harmed or significantly harmed is remote.
58.Based on her individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if she were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or Tamil returned failed asylum seekers or returnees or failed Tamil asylum seekers returning from a Western country or failed asylum seekers returning from a Western country).
59.Based on her individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk she will suffer significant harm on this basis.
14 Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2, < accessed 17 September 2012.
15 As noted in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Sri Lanka, p.8, 21 December 2012.
It was open to the Tribunal to prefer the more recent DFAT information to the earlier UNHCR information. There was nothing in the passages relied upon at SCB579 that raised a claim that the Tribunal did not deal with.
SCB297, which is part of the Home Office report[7], at 11.01, notes that female prisoners are held separately from male prisoners and in generally better conditions, but isolated incidents of degrading treatment occurred. The Tribunal accepted that, but formed the view, as a matter of fact and degree, that the poor conditions and treatment that the applicant might experience during a short period of detention would not amount to serious or significant harm.
[7] P.95.
The Tribunal said in relation to these matters:
66. … I am not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population and not specifically to Tamils. I am not satisfied therefore, that questioning, arrest, detention, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Nor do I accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm.
67.… Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, I find that the risk she will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, I find that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.
There was nothing in the passages relied upon in SCB297 that raised a claim that the Tribunal did not deal with.
SCB337, which is part of the Home Office report[8], at 20.04, said that Freedom House reported on 10 August 2011, in respect of events in 2010, that violence against women, including rape, had affected female prisoners. This is sufficient to raise a claim that the applicant may be raped during her short term detention.
[8] P.135.
The Minister argued that the applicant’s reference to country information was:
really just a[n] attempt to extract and better articulate an argument that might have been available to the applicant before the tribunal about what country information said was the position for women in Sri Lanka.[9]
[9] Tr. p.35, l.37-40.
This submission misses the point that it is not essential for applicants before the Tribunal to articulate an argument. The Tribunal must consider claims that clearly emerge from the materials, whether an applicant specifically articulates them or not. [10]
[10] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; (2003) 197 ALR 389 at 393–4 [22]–[24]; (2003) 77 ALJR 1088; (2003) 24(9) Leg Rep 11; [2003] HCA 26; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at 18-20 [58]–[61] and 22 [68]; (2004) 219 ALR 27; [2004] FCAFC 263.
The Tribunal dealt with what it described as Female claims, as follows:
41.The applicant has claimed that it would [be] difficult for a single young girl like her to roam around and that she was scared of being raped by the military because she did not have an identity card. I find, however, the chance or risk that she will be seriously harmed or significantly harmed [on] account of being a single, young, Tamil woman without an ID card to be remote.
42.I have considered carefully all the country information referred to in the delegate’s decision concerning the situation of women in Sri Lanka and the information concerning women in the most recent DFAT report.8 Whilst DFAT have noted that there are a number of allegations of sexual assaults and rape attributable to the Sri Lankan military in the north east, other information leads me to conclude that the chances of such treatment are remote. The Daily Mirror (Sri Lanka) reported that the police stated at the end of 2011 that the number of rape cases reported to police in that year was 1637.9 Whilst I have taken into account that a number of rapes would go unreported, this needs to be seen in the context that Sri Lanka has a population of 20 million of which about half would be women.10 The Tribunal has not identified any other reports of Sri Lankan or Tamil women since the ending of the war being regularly targeted by the army and other authorities for sexual violence.
43.Whilst I have accepted that the applicant’s mother was raped by the military, this occurred a very long time ago during a period of war. The applicant has not claimed that she has ever been harmed by the military or anyone else during her many years of living in Sri Lanka. She has not claimed that her sister has ever been subject to this type of mistreatment or otherwise harmed. The applicant has previously lived with her parents and would have them available to accommodate her upon return. Whilst I accept that there is country information (referred to in the delegate’s decision) that there is a level of discrimination against women, the applicant has in the past been able to find work in Sri Lanka as a pharmacy assistant, nursery teacher and packager and I do not accept that she would be denied work or that her capacity to subsist would be threatened. More generally, there exists country information that Sri Lanka has an established tradition of gender equality and women enjoy equal access to health and education and make up the majority of university students.11
44.I accept that when the applicant returned to Sri Lanka in late 2010 her parents tried to find a husband for her but did not succeed as women who had spent significant time in Saudi Arabia had bad reputations. Though this may still be the case for her, I do not consider that this constitutes either serious harm or significant harm.
45.Based on her individual circumstances and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of her membership of a particular social group of “single, young, Tamil women without an identity card” or any subset of this, now or in the reasonably foreseeable future from the authorities or anyone else.
46.Based on her individual circumstances and the overall weight of the country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm on these bases.
8 Department of Foreign Affairs and Trade, DFAT Country Report Sri Lanka, 16 February 2015.
9 Home Office, UK Border Agency, Country of Origin Information Report, Sri Lanka, 7 March 2012.
10 Department of Foreign Affairs and Trade, DFAT Country Report Sri Lanka, 16 February 2015.
11 Home Office, UK Border Agency, Country of Origin Information Report, Sri Lanka, 7 March 2012.
The Tribunal’s consideration of the applicant’s Female claims did not specifically address the position of the applicant as a detainee. However, the Tribunal noted country information to the effect that the incidence of reported rapes was low. The Tribunal also noted at paragraph 42 of its reasons for decision that:
The Tribunal has not identified any other reports of Sri Lankan or Tamil women since the ending of the war being regularly targeted by the army and other authorities for sexual violence.
The absence of reports of a particular type of event does not necessarily mean that events of that type have not occurred. On the other hand, there is the notorious difficulty with proving a negative.
However, it seems to me that the Tribunal has not dealt with the particular claim, which was raised on the materials, that the applicant may be raped in detention. The Tribunal’s statements in relation to rape were very general, and seemed to concern the situation of women at large in Sri Lanka. To say that the Tribunal has been unable to find reports of women, since the end of the war, being regularly targeted by the army and other authorities for sexual violence does not engage with the claim that the applicant may be raped in a very specific location, namely, detention.
It also noteworthy that the Freedom House report about women prisoners being raped dealt with events in 2010. As a matter of common knowledge, the civil war in Sri Lanka ended on 18 May 2009. Clearly, the events that Freedom House reported occurred after the end of the war. When the Tribunal said that it had been unable to find reports of women, since the end of the war, being regularly targeted by the army and other authorities for sexual violence, it appears to have overlooked the Freedom House report, or attempted to avoid the issue by inserting the word regularly.It does not seem to me that inserting the word regularly solves the problem, as it does not engage with the issue of women prisoners being raped.
All in all, the Tribunal did not address the risk of sexual violence being perpetrated by the authorities against a single, young, Tamil woman from the north east of Sri Lanka, who did not have an identity card and who was in detention.
The Tribunal’s consideration of the conditions in which the applicant might be detained, and its general conclusion that she would not suffer serious or significant harm in detention, did not deal specifically with the claim that the applicant, with her particular vulnerabilities, might be raped in detention.
I accept that the Tribunal failed to consider a claim that was raised on the materials, namely, that the applicant might be raped in detention. This is an aspect of ground 2 insofar as it raises the issue of gender.
SCB342, which is part of the Home Office report[11], concerns women in the labour market. It is not relevant to ground 2, which concerns the applicant being in detention.
[11] P.140.
SCB350 to SCB357, which are part of the Home Office report[12], concern sexual violence against women who are at large. It is not relevant to ground 2, which concerns the applicant being in detention.
[12] Pp.148-155.
SCB513 to SCB516 are part of the United States Department of State 2012, Country Reports on Human Rights Practices for 2011 – Sri Lanka (“the US report”) [13]. Those pages contain reports of:
a)prisoners being tortured, which the Tribunal dealt with;
b)security personnel perpetrating sexual violence against women who were at large, which does not relate to ground 2, as it concerns the applicant being in detention; and
c)prison conditions being very poor, which the Tribunal accepted.
[13] Pp.7-10.
There is nothing in SCB513 to SCB516 that the applicant has alleged the Tribunal was obliged to consider but failed to consider.
SCB541 to SCB542, which are part of the US report[14], concern rape in Sri Lanka generally and do not relate to ground 2, which concerns the applicant being in detention.
[14] Pp.35-36.
SCB581 to SCB582, which are part of the UNHCR report[15], concern rape in Sri Lanka generally and do not relate to ground 2, which concerns the applicant being in detention.
[15]Pp.20-21.
SCB594 to SCB595, which are part of the UNHCR report[16], concern sexual violence in Sri Lanka generally and do not relate to ground 2, which concerns the applicant being in detention.
[16] Pp.33-34.
SCB620, which is part of the Department of Foreign Affairs and Trade, DFAT Country Report Sri Lanka, dated 16 February 2015[17], concerns discrimination and sexual violence in Sri Lanka generally and does not relate to ground 2, which concerns the applicant being in detention.
[17] P.17.
SCB412 to SCB416, which are part of the Home Office report[18], concern the likelihood of returnees being detained and kept in poor conditions. The Tribunal considered these issues.
[18] Pp.210-214.
SCB568 to SCB569, which are part of the UNHCR report[19], concern the treatment of returnees. The Tribunal considered this issue.
[19] Pp.7-8.
SCB578 to SCB579, which are also part of the UNHCR report[20], concern torture in detention. The Tribunal considered this issue.
[20] Pp.17-18.
Except for the issue regarding possible rape while in short term detention, the Tribunal did not fail to consider any claim that was raised by the applicant expressly or that arose on the materials.
The next aspect of ground 2 is that the Tribunal failed to consider the claims cumulatively. The Tribunal dealt with the question of cumulative claims in the following terms:
71.Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that she does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related). Her fear of persecution is not well-founded.
72.Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm.
The applicant relied on DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353 at [103] where Judge Driver said:
Taken individually, the Authority’s assessment of the various risks confronting the applicant, should he return to Iran, involved assessments that his activities would either not become known to the authorities or would not be repeated. The Authority’s rolled up cumulative assessment at the end of its reasons does not expressly deal with the possibility that, when considered cumulatively, these risks might become significant. In a case like the present, where the applicant faces multi-faceted risks which may interact and interrelate, particularly when considered with his mental health condition, the bland assertion that the claims were considered cumulatively does not satisfy me that this was anything more than the application of a verbal formula. If the Authority was wrong on any one of its assessments, it would seem logically to follow that the applicant may well encounter a real risk of significant harm. The cumulative assessment of the claims needed to address the possibility of the interaction of the applicant’s condition, activities and circumstances leading him to the adverse attention of the Iranian authorities. To put it another way, the assertion of a cumulative assessment, in a complex case such as this, requires a demonstration of an active intellectual engagement with the issues when considered cumulatively. There is no doubt that there was active intellectual engagement with the issues considered individually. It is not apparent, however, that there was any active intellectual engagement in the cumulative assessment.
The Minister submitted that the court should accept that the Tribunal did in fact make a cumulative assessment of all relevant matters in accordance with its statements at paragraph 71 and 72 of its reasons for decision. The Minister submitted that that followed from the fact that the Tribunal gave a detailed, thorough, comprehensive, well-articulated, intelligible statement of reasons.
It is true that the Tribunal dealt thoroughly with many aspects of the issues in this case. It is also true that the Tribunal expressly dealt with some of the applicant’s vulnerabilities in a cumulative manner. The Tribunal said, under the heading, Tamil failed asylum seeker, that it did not accept that the applicant faced persecution as a Tamil failed asylum seeker returning from a Western country. Also, under the heading, Female claims, the Tribunal said the applicant did not face a real chance of persecution as a single, young, Tamil woman without an identity card. They were arguably cumulative assessments, as far as they went. However, the Tribunal did not deal specifically with the risk of rape faced by the applicant in detention as a Tamil woman without an identity card from the north east who was a failed asylum seeker and who had departed Sri Lanka illegally.
It seems to me that the Tribunal in the present case made a jurisdictional error of the type identified in DDK16, and made a jurisdictional error by failing to consider whether the applicant faced a real risk of rape while she was in short term detention. Ground 2 is made out.
Ground 3
The third ground of review in the application filed on 8 October 2015 and amended on 30 March 2017 is:
The Tribunal erred by failing to consider whether the Applicant had a heightened risk of harm in detention upon returning for departing illegally because she is female.
For the reasons discussed in relation to ground 2, this ground is also made out.
Ground 4
The fourth ground of review in the application filed on 8 October 2015 and amended on 30 March 2017 is:
The Tribunal’s decision is affected by jurisdictional error in that the Tribunal failed to comply with s.425(1) of the Migration Act by:
a.not giving the Applicant a sufficient opportunity to give evidence, or make submissions, about determinative issues, being country information regarding the Applicant’s claims; and
b.putting the country information regarding the Applicant’s claims to the Applicant in an unfair manner.
The applicant explained that this ground arose from the fact that the Tribunal put excessively large blocks of country information to the applicant for comment.
Section 424A of the Migration Act 1958 (“the Act”) provides that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) …
(2A) TheTribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
…
The applicant acknowledged that s.424A(3) of the Act has traditionally been regarded as meaning that the Tribunal was not required to put country information to an applicant for comment. However, the applicant relied on ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 to say that the landscape has now changed, in that, where country information is put in an unfair manner, there may be a breach of s.425 of the Act. Subsection 425(1) of the Act provides that:
(1) TheTribunal 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.
The applicant’s submission overstates the effect of ABV16. In that case, a critical development occurred in Chinese policy relating to “black children” after the Tribunal hearing and before the delivery of the Tribunal’s decision. In those circumstances, Bromberg J found that the Tribunal made a jurisdictional error by not alerting the applicant to the change in policy and seeking comment. That was because the change in policy was a critical issue. As was established in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63, the Tribunal is bound to put an applicant on notice about the critical issues in the case, unless they were already known to the applicant.
In the present case, the applicant has not identified any critical issue that the Tribunal failed to put to the applicant. Therefore, ABV16 has no direct application.
As there was no obligation to put country information, other than that relating to critical issues of which the applicant was unaware, there was no jurisdictional error in the Tribunal putting country information to the applicant verbally in large blocks. Ground 4 is not made out.
Ground 5
The fifth ground of review in the application filed on 8 October 2015 and amended on 30 March 2017 is:
The Tribunal’s decision is affected by jurisdictional error in that the Tribunal breached s.424AA of the Migration Act in the manner in which the Tribunal put country information regarding the Applicant’s claims to the Applicant.
The applicant conceded that she could not succeed on this ground in this court, because this court is bound by the decision of the Full Court of the Federal Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46. The applicant formally argued that SZMCD was incorrectly decided, to preserve her position in the event of an appeal. However, as this court is bound by SZMCD, I can only say that this ground is not made out.
Conclusion
As two of the applicant’s grounds have been made out, the matter will be remitted to the Tribunal with costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 13 October 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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