CGW18 v Minister for Home Affairs
[2019] FCCA 2964
•7 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGW18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2964 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 |
| Applicant: | CGW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 241 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 7 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Ms Taggart |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 2 May 2018 as amended on 23 August and 10 October 2019 be dismissed.
The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 241 of 2018
| CGW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 March 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the Applicant, CGW18, a protection Visa. On 2 May 2018, the Applicant filed an application in this Court asking this Court to review that decision.
The Applicant and her husband are citizens of Sri Lanka. They are unauthorised maritime arrivals having come to Australia by boat in September 2012. They have a child who was born in Australia in September 2013. Because of the nature of the claims of the wife (the Applicant in these proceedings), the claims of the husband and the child were dealt separately from the claims of the Applicant by both the delegate and the IAA. I have also dealt with their applications for review separately.
On 10 October 2019, I dismissed the application for review filed by the husband and their child. I then heard the application for review by this Applicant (the wife) and reserved my decision.
This is a most unfortunate matter. The applicant is a victim of sexual assault in her home country, Sri Lanka. This is not disputed. In effect (as discussed in detail below), she fears that if her husband (who is also Sri Lankan) discovers that she has been assaulted, he will reject her.
Before this Court, Counsel for the Applicant (in making very helpful submissions), summarised his arguments succinctly, saying that the Court needed to look at the ratio decidendi in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 and substitute the words “rape victim” for “homosexual” and the result would be obvious. In effect, counsel stresses that if the Applicant is to return to Sri Lanka she will be required to “hide” or “deny” the sexual assault. The IAA, it is argued, failed to address this issue.
On an emotional level, I am sympathetic to the concerns raised by this young woman. Hers will, undoubtedly, be a most difficult future. I cannot, however, be guided by my instinctive emotional response to what is a tragic situation. Legally, on review, I am limited in terms of what I can and cannot do to assist this young woman. This Court can only look to whether the IAA fell into jurisdictional error. The matter is factually more complex than counsel for the Applicant would have the Court accept. Regrettably, I cannot assist this young woman. For the reasons that follow, I do not accept that the IAA fell into jurisdictional error as submitted by counsel for the applicant, or otherwise.
Background
The Applicant was born on 22 September 1985 in Jaffna District in Sri Lanka. She is of Tamil ethnicity. She lived mainly in Kilinochchi and worked at a jewellery store. Kilinochchi was a stronghold of the LTTE. She claimed that her brother was forcibly recruited to the LTTE and was killed in 2006.
She claimed that the jewellery shop that she worked at was operated by the LTTE. She met her future husband whilst working in the jewellery shop as he worked in a rival jewellery shop. They became engaged in 2008. She claimed that when the war ended, she and her family were interned in a camp for internally displaced persons (IDP) and she was released from the camp in January 2010.
She said that around July 2010, officers from the CID visited her at her home. She said they summoned her to the local CID office where she was questioned about her time at the jewellery shop. She said that thereafter she was required to report to the CID office every fortnight for questioning and sign a record of attendance.
In December 2010, whilst attending the CID office, she believes that she was drugged and raped. She woke up in hospital after this incident. Fearing that she might suffer from a social stigma as a result of this event, she kept the matter secret. Only her mother and brother knew about this incident. She married her husband in March 2012. She has not told her husband about this incident.
She said that in the years since this attack, she has suffered from depression and emotional pain. She fears returning to Sri Lanka because, as a Tamil woman, she might face similar sexual violence again perpetrated by the Sri Lankan security forces whom she says act with impunity. She also fears that she will be imputed with support for the LTTE because of her links to the organisation. She also fears that she would be persecuted as a failed asylum seeker who departed illegally.
The IAA Decision
The IAA thoroughly assessed the claims.
The IAA was satisfied that the Applicant’s brother was forcibly recruited by the LTTE and subsequently died in battle. The IAA was satisfied that the jewellery shop in which she worked was operated by the LTTE. The IAA was satisfied that the Applicant was interred in an IDP camp and released in January 2010.
As far as the claim of rape was concerned, the IAA said this at paragraphs 23 to 25 of the reasons:
23. On one occasion in December 2010, the applicant attended the office escorted by her brother as usual. She went inside, and her brother waited outside. Unlike her other interviews, during this interview, the CID officers did not ask her the usual questions, rather they started to compliment her on her appearance and told her she was beautiful. She became nervous. During the interview she claims that she was approached from behind, blindfolded and hands covered her mouth to prevent her screaming. She has no memory of what happened after this point. She awoke in hospital. A doctor who had treated her advised her brother that she had been drugged and raped. The applicant has outlined that she feels significant humiliation and shame arising from this incident, and that she kept this incident from her husband, since she feared he would not marry her if he knew. She does not feel that she can tell him now, and wishes this matter to be maintained in the strictest confidence.
24. After this event, the applicant claims she did not return to the CID office. Thereafter, officers of the CID would visit her at her home every two to three weeks, where she would be asked the same questions.
25. The applicant has not offered any corroborative evidence in support of her account of this event. She did not mention it in any of her dealings with Australian authorities before the family submitted a SHEV application in July 2017. However, I accept that the applicant did not mention this claim for the reasons outlined above and I draw no negative inferences from it. I have some doubts about the applicant's evidence regarding these events; it is not clear to me why the applicant would be allowed to cease reporting to the CID as she claims. I accept that she might have ‘wanted’ to stop reporting if she was sexually assaulted, but it is not clear to me why the CID would let her, unless the CID more broadly had become aware of the incident itself, in which case it suggests that the applicant had been offered some measure of relief by the authorities in Sri Lanka after the events described. I also have some concerns about her assertion that she cannot remember any of the events personally, and that the doctor who treated her only told her brother. Nevertheless, I am willing to accept that the applicant was raped in December 2010, as she claims.
The IAA assessed her claims regarding her Tamil ethnicity, her residence in the north of Sri Lanka and her LTTE connections. The IAA referred to country information which detailed that Tamils have had a substantial level of political influence and have been included in political dialogue since the election of President Sirisena in 2015. The IAA reiterated country information that suggested that Tamil ethnicity, or originating from an area previously controlled by the LTTE, does not, in itself, result in a need for international refugee protection.
The IAA assessed that the LTTE links that the Applicant had were not such that would give rise to a real chance of harm should the Applicant be returned to Sri Lanka.
The IAA looked at the position of women in Sri Lanka as well as the rape that had been perpetrated upon the Applicant. At paragraphs 33 to 35 of the reasons, the IAA said this:
33. Credible country information before me indicates that women in Sri Lanka suffer from a range of disadvantages. The UK Home office cites a number of reports which indicate that women in Sri Lanka suffer from sexual harassment and the risk of rape, especially in areas dominated by a strong Sri Lankan military presence, like the Northern Province. Domestic violence is particularly prevalent in Sri Lanka. Violence against women is underreported and a social stigma might be attached to persons who report it. Female headed households are particularly vulnerable since the absence of a male presence often indicates a lack of physical security and may reduce economic opportunities since employment for women in Sri Lanka is less common. DFAT assesses that women throughout Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in these circumstances.
34. The sexual assault of the applicant occurred in 2010, soon after the end of the war and almost two years before the applicant departed Sri Lanka. DFAT has reported that reports allegations of sexual assault by members of the security forces persist. However, over seven years have passed since the incident occurred there has been a considerable improvement in the security situation in Sri Lanka, and in the Northern Province. The applicant is married. If she returned to Sri Lanka, she would not be the female head of household; rather she would be under the protection of her husband. Her father, brother and a brother-in-law also continue to live in Sri Lanka. She has not put forward any claims which suggest that her husband has ever engaged any act of domestic violence. There is no evidence before me which might indicate he would commence such acts if returned to Sri Lanka. Whilst I accept that the applicant is genuinely fearful of a return to Sri Lanka, I am not satisfied that such a fear is well founded. Given the improved security situation in Sri Lanka, the opportune nature of the assault, and the protection she would receive from her family I am not satisfied that the applicant would face a real chance of similar harm if returned to Sri Lanka.
35. Country information indicates that victims of sexual assault may suffer from some social stigma in Sri Lanka. However, I note that the pool of persons with knowledge of the incident in Sri Lanka is very small. Within her family her mother and brother are aware of the incident. Outside her family, the pool is presumably limited to the treating doctor, possibly some other medical staff and the perpetrators of the attack. Such knowledge may cause distress to the applicant; however, given the small pool of persons I am not satisfied that there is a real chance the applicant would face any societal discrimination arising from this issue if returned to Sri Lanka.
The IAA looked at the Applicant’s claim in respect of being a failed asylum seeker who departed illegally and noted that the Applicant would likely face charges arising from breaches of Sri Lankan law upon her return. However, the consequences of such charges were not such as to raise the prospect of her facing a real chance of persecution.
Having made all of those findings, the IAA was not satisfied that the Applicant met the requirements of the definition of refugee.
The IAA then turned to assessment of the complementary protection criteria. Going through that process, the IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the Applicant would suffer significant harm.
Having reached those conclusions, the IAA affirmed the decision not to grant the applicant a protection Visa.
The Grounds
The grounds of this application are contained in a further amended originating application for which I gave leave to file on the day of the hearing, 10 October 2019. Those grounds are:
1A. The Immigration Assessment Authority’s decision was vitiated by a constructive failure to exercise jurisdiction because the Authority, in purporting to be unsatisfied under section 65 of the Migration Act 1958 (Cth) that there was a real chance that the Applicant might endure further more or rape persecutory discrimination as a Sri Lankan Tamil victim of rape from northern Sri Lanka.
Particulars 1A Persecutory discrimination:
1A.1.1 The Authority mischaracterised the ‘particular social group’, in addressing persecutory discrimination as a victim of rape, by breaking the ‘genus’ into those Sri Lankan Tamil women whose rapes are publicly known, and those whose rapes are not generally known (yet);
1A.1.2 Failed to address the real question of whether there was a well-founded fear of persecution by reason of membership of the particular social group of Sri Lankan Tamil women victims of rape, but instead addressed the question of whether it is likely the rape will become generally known;
1A.1.3 Failed to consider the reason why the Applicant wished the rape to remain secret.
3. The Authority’s decision was vitiated by a constructive failure to exercise jurisdiction because the Authority, in purporting to be unsatisfied under section 65 of the Migration Act 1958 (Cth) that there was a real chance that the Applicant might, again, be the victim of sexual assault, were she to be refouled to Sri Lanka, reasoned that the Applicant would enjoy the ‘protection’ of her male family and husband, which reasoning was illogical or irrational in that the rape had occurred, on the facts accepted by the Authority, in circumstances where her brother had escorted her to the Criminal Investigations Division (CID) for an interview, and waited outside while, the Applicant was drugged and raped by CID personnel.
Submissions of the Applicant
The thrust of the main submission advanced by counsel for the Applicant was that the Applicant feared sexual violence if returned to Sri Lanka because she was a member of a particular social group of “Tamil women from Northern Sri Lanka who have been a victim of rape”. The complaint is made that the IAA has divided that group into “publicly known victims of rape” and “non-publicly known victims of rape”.
The submission is that such an approach was decried by the majority in S395 (Supra). In paragraphs 55 and 56 of the judgment, McHugh and Kirby JJ (Gummow and Hayne JJ agreeing at paragraph 90) said:
55. In our opinion, the Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct "particular social group". As we have indicated, the Tribunal found that homosexual men in Bangladesh constituted a "particular social group" for the purpose of the Convention. As a matter of law, this finding was open to the Tribunal. Indeed, if the Tribunal had held otherwise, its decision would arguably have been perverse. However, by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal has effectively broken the genus of "homosexual males in Bangladesh" into two groups - discreet and non-discreet homosexual males in Bangladesh. This inevitably invited error. It leads to the Federal Court and the Tribunal examining a claim for refugee status in the way that Ryan J did in Applicant LSLS v Minister for Immigration and Multicultural Affairs[22] when his Honour said:
"I have therefore confined my examination of this issue to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result." (emphasis added)
56. Similarly, in this case, consciously or unconsciously, the Tribunal directed its mind principally to the consequences of the sexual behaviour of the non-discreet members of the particular social group. Certainly, it made only passing reference to other forms of harm to members of the social group generally. And it failed to consider whether the appellants might suffer harm if for one reason or another police, hustlers, employers or other persons became aware of their homosexual identity. The perils faced by the appellants were not necessarily confined to their own conduct, discreet or otherwise.
The Applicant submits that the IAA is stating that if the Applicant does not tell anyone about the rape, then she will not be the subject of social stigma and, therefore, persecution. The Applicant submits that the IAA should have asked the question as to why it was necessary for the Applicant to keep this secret to herself.
The Applicant also submits that the IAA’s reasoning that the Applicant would now be under the protection of her husband which ameliorated the risk of future sexual assault was a finding that was not open on the evidence because of the circumstances surrounding the original rape. In other words, if the Applicant could be raped whilst being escorted to the police station by her brother, the fact that she now had a husband could not be any form of mitigation of such a risk.
The Claims of the Applicant
In her statement provided for the purposes of her Visa application, the Applicant said at paragraph 3 of that statement:
I fear returning to Sri Lanka because Tamil women, particularly from the Northern Province are targeted by the security forces and raped. Sexual violence towards Tamil women in Sri Lanka has been ongoing since the war ended in 2009. I have been a victim of sexual violence in Sri Lanka but have not been able to express this to anybody, not even my husband. The only people who know is my brother and my mother.
At paragraphs 7 to 13 of that same statement the Applicant said:
7. One of the officers came up behind me and put a blindfold over my eyes and when I started to scream he covered my face. I have no memory of what happened. I only remember waking up in the hospital and my brother was there.
8. My body hurt all over and I felt dizzy. My brother told me that the doctor told him I had been drugged and raped. I didn't want to live anymore and just wanted to die. I was to be married to my husband.
9. My mother told me not to tell (the future husband) what had happened because he may not want to marry me so I kept it inside. We married him about a year and a half later. He still does not know what happened. I cannot tell him even today.
10. I thought the emotional pain inside me would ease once we decided to come to Australia and we could start a new life and gradually I would forget but it haunts me every day and this still affects my life in every way.
11 . The security forces like the SLA and CID have the freedom to commit these crimes against Tamil women without any consequences. There is no avenue for Tamil part of the country.
12. Tamil women have always suffered sexual violence at the hands of these security forces in Sri Lanka. It is an ongoing problem even today that the government will not acknowledge this problem is increasing or do anything to stop this from happening. Even Tamil woman, is at risk of being targeted and victimized in Sri Lanka.
13. I am unable to move to another area of Sri Lanka to avoid being targeted by these perpetrators because they are in every part of the country. My husband cannot protect me or keep me safe and I cannot go to the authorities to seek safety because they are the ones who are committing these crimes against us.
There was a submission made by the migration agent but this was a submission for the husband of the Applicant and the Applicant and their child. For obvious reasons, it did not refer to the facts of the rape.
As can be seen, while the Applicant claims that she would be sexually assaulted (or at risk of sexual assault) if she returned to Sri Lanka, that fear is highlighted because of her past experience. She does not claim that the fact that she was raped was a reason, in and of itself, for her fear of returning to Sri Lanka.
She, herself, did not ever complain of societal discrimination because she was a victim of rape. However, the IAA clearly states in paragraph 35 of the reasons that “country information indicates that victims of sexual assault may suffer from some social stigma in Sri Lanka”. The accompanying footnote indicates that such information comes from the DFAT report.
That report has been annexed to the affidavit of Ms Kim. At paragraph 3.73 of the report, the following is said:-
Violence against women occurs throughout Sri Lanka. UNFPA reported in 2015 that violence against women cut across all socioeconomic groups in Sri Lanka but was worst in areas affected by the conflict. Rape and domestic violence are criminalised under the Prevention of Domestic Violence Act of 2005. Marital rape is an offence only in cases where the individuals are legally separated. Sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum five years’ imprisonment. Reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas, but the majority of cases are likely to go unreported due to social stigma. Incidence of domestic violence is high, especially in Tamil culture, and tends to be underreported. The Asian Human Rights Commission has said that most cases reported to authorities’ result in ‘settlements’ which do not proceed to prosecution, although sentences are sometimes given in serious cases. President Sirisena has expressed a commitment to taking action to prevent the abuse of women (and children), including speeding up the trial process for these offences. Some recent high-profile cases of violence against women, including the gang rape and murder of a schoolgirl in Jaffna (Northern Province) in May 2015, sparked community outrage and led to calls to implement the death penalty. (My underlining).
Discussion
It would seem that the information relied upon by the IAA about “social stigma” is derived solely from the country information. There is nothing in that country information that speaks of the characteristics of the “social stigma”. In the context of the whole of paragraph 3.73, it is difficult to classify “social stigma” as being equivalent to persecution.
Nevertheless, the Applicant submits, the question remains as to whether the IAA should have looked at whether the fact that the Applicant was keeping her past rape a secret was itself because of persecution.
If it is that “social stigma” could be elevated to the level of persecution, the question then is whether the Applicant has said that she has not disclosed her past rape because of fear of persecution or fear of “social stigma”.
For the following reasons, this question must be answered in the negative. The IAA could not have looked at this question because, importantly, on the facts of this case, it did not arise on the material before it.
What the Applicant has said is that she did not tell her fiancé because she thought that he may not want to marry her if he knew she had been sexually assaulted. She has said that she still cannot tell him now, even though they have been married for a number of years.
This situation is a different to the situation in in S395 (supra). In that case, the Applicant needed to be “discrete” about his homosexuality because he feared persecution from the Bangladeshi authorities, and the Bangladeshi society in general, if his homosexuality were disclosed.
In the present matter, the Applicant is afraid that her husband would no longer wish to marry (or be married to) her. If anything, it is a fear of the consequences that would come from her husband, rather than from Sri Lankan authorities or Sri Lankan society in general. The Applicant does not fear her husband per se. Rather, she fears a possible negative reaction from him.
This is an extremely important difference when contrasted with the factual matrix in S395 (Supra).
What the IAA has done here is look at the claims that the Applicant has actually made. The claim was that the Applicant feared that she would be sexually assaulted if she returned to Sri Lanka. That fear was heightened because of her past history but the fear was not because of her past history.
The IAA has not “broken the genus” and divided the membership of a particular social group into northern Tamil women who have been publicly known to have claimed to be raped and those whose rape is not known. The membership claimed by the Applicant was membership of “northern Tamil women”. The fact that the Applicant had previously been the victim of sexual assault by persons in authority was incidental to her membership of that group.
The IAA had found that victims of sexual assault may suffer from some social stigma in Sri Lanka. Even though it was not part of her claim, the IAA had to address whether the Applicant would suffer such societal discrimination if she were returned to Sri Lanka. The IAA did make a finding that, because there was only a small pool of persons who knew of the incident and that the Applicant has personal reasons as to why she does not want the incident to become known, they were not satisfied that there was a real chance of the Applicant would face any societal discrimination arising from this issue. While I personally may have assessed the evidence differently, that is not the relevant test on review. Here, the enquiry made, and conclusions drawn, by the IAA were proper and open on the evidence. That is all this Court can address on review.
I find that there was no constructive failure to exercise jurisdiction by the IAA. Accordingly, ground one fails.
Ground Three
This ground was predicated upon an assumption that the finding by the IAA that the reason that the Applicant would not be at risk of further sexual assault if she were returned to Sri Lanka, was that she would enjoy the protection of her husband. However, this was not the finding made by the IAA.
The IAA found that the original sexual assault was an “opportune” event. The IAA found that there was an improved security situation in Sri Lanka. The IAA found that the Applicant would receive protection from her family, which includes her husband. For a combination of these reasons, the IAA was not satisfied that the Applicant would face a real chance of similar harm if returned to Sri Lanka.
This was a finding that was open on the evidence before the IAA. As such, there is no jurisdictional error and this ground also fails.
Order
I dismiss the application with costs fixed in the sum of $7467.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 7 November 2019
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