CHD18 v Minister for Home Affairs
[2019] FCCA 3708
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHD18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3708 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on proposed grounds of amended application – proposed second ground lacks requisite merit – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 476 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 |
| First Applicant: | CHD18 |
| Second Applicant: | CHL18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1266 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 November 2019 |
| Date of Last Submission: | 14 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Legal Representative for the Applicant: | Mr S. Hodges |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the Respondents: | Mr J. Kay Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Leave to rely on an amended application is refused.
The application made on 3 May 2018 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $7328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1266 of 2018
| CHD18 |
First Applicant
| CHL18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 May 2018 seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 9 April 2018 which affirmed the decision of the Minister’s delegate to refuse a Safe Haven Enterprise Visa (“SHEV”) (“protection visa”) to the applicants.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE 1”).
Background
The applicants are Sri Lankan nationals of Tamil ethnicity. They are in a de facto relationship. They arrived in Australia by boat on 18 October 2012 (item 47 at CB 206 and CB 260). On 16 June 2016 they were invited to apply for the visas (CB 5 – CB 10). This application was made in July 2016 (CB 187 – CB 317). The applicants were assisted by a registered migration agent (CB 187 and item 2 at CB 315).
The Minister’s written submissions contain a comprehensive outline of the applicants’ claims to fear harm and the delegate’s decision. The applicants’ outline of claims, as set out in their written submissions, is not inconsistent with the Minister’s submissions in this regard.
The Minister’s submissions explain (at [5]-[9]):
“5. On 18 May 2017, the applicants attended an interview with the delegate concerning their SHEV applications (CB 79).
6. In summary, the first applicant made the following claims before the delegate (CB 123):
a.He is of Tamil ethnicity and Hindu religion;
b.He was born and resided in the Batticaloa District;
c.He had been a tailor in Sri Lanka and used to stich uniforms for the Sri Lankan forces as well as Tamil paramilitary groups and civilians;
d.At the age of 19, he was beaten by army soldiers because they suspected him of being a member of the LTTE. He was also detained for a day then released;
e.He had been forced to do labour work by the Sri Lankan Army on a few occasions, where he was verbally assaulted;
f.In April 2012, the Special Task Force polices officers came to his shop and requested him to tailor their uniforms, requesting him to complete the work overnight. The officers recorded his details, including his national identity card;
g.The officers visited his home, questioning his mother, and his mother made a complaint to the Human Rights Commission due to their frequent visits; and
h.He feared that the Special Task Force officers could take revenge as he did not tailor their uniforms as requested. He also feared being accused of stitching uniforms for the LTTE, for departing Sri Lanka illegally and claiming asylum in Australia.
7. Before the delegate, the second applicant claimed to fear harm on the basis that (CB 124):
a.She is of Tamil ethnicity and Hindu religion;
b.She was born and resided in Batticaloa;
c.She had been detained on several occasions by the SLA;
d.Her husband had been killed in 1990 by the SLA;
e.Her sister had been raped by the SLA;
f.She had been subjected to frequent checks, searches and round ups by the SLA;
g.In 2004/2005, the [sic] had been taken for questioning by the SLA at a camp; and
h.She is a Tamil from the Eastern Province, without male protection (if the first applicant was to be harmed or detained); and
i.She had departed Sri Lanka illegally and sought asylum in Australia.
8. On 15 June 2017 a delegate of the Minister refused to grant the SHEVs (CB 121 to 139). While the delegate accepted some of the applicants' claims, it did not accept that:
a.The Sri Lankan authorities suspected or accused the first applicant of being a tailor for the LTTE;
b.The first applicant had been hiding from Sri Lankan authorities prior to his departure;
c.The Special Task Forces had repeatedly come to the first applicant's home in search of him and quested [sic] his mother about his location;
d.The first applicant was a person of interest to the Sri Lankan authorities at the time he departed the country;
e.The Special Task Forces would seek revenge on the first applicant, should he return to Sri Lanka because he did not complete their tailoring order as requested;
f.The husband of the second applicant had died in a targeted attack by the Sri Lankan authorities;
g.The second applicant had been subjected to any form of harassment from the applicant's family; or
h.The second applicant had been a person of interest to the Sri Lankan authorities at the time she departed Sri Lanka.
9. The delegate accepted that the applicants may face low level discrimination due to their ethnicity but did not accept that that would amount to persecution. He also did not accept that the applicants faced a real chance of serious harm amounting to persecution on the basis of being a failed Tamil asylum seeker. Nor was the delegate satisfied that the second applicant faced harm on the basis of her gender (CB 133). The delegate made similar findings concerning the complementary protection criterion.”
[Errors in the Original.]
The applicants’ case was referred to the IAA on 20 June 2017 (CB 342). They provided further information and documents through their representative (CB 356 – CB 361, CB 362 – CB 377 and CB 378 – CB 397).
Both parties’ written submissions contain an outline of the IAA’s reasoning and findings, which provides an explanatory basis for the applicants’ grounds and the Minister’s response:
1 Applicants’ written submissions at [11] – [12]:
“11. The Authority noted that the first applicant was generally consistent about his claims in relation to his family, education, work and residential history.9 However, the Authority raised concerns about the applicant's credibility in relation to his claimed run-in with the STF [Sri Lankan Police “Special Task Force”].10
12. The Authority considered the applicants' claims and made findings which included the following:
12.1. The Authority was not satisfied that the April 2012 incident with the STF officers occurred as the first applicant had claimed.11
12.2. The Authority was satisfied that the first applicant would not face harm upon return because of his work as a tailor.12
12.3. The Authority accepted that the second applicant was taken and detained by the SLA in routine round-ups.13
12.4. Although the Authority accepted that the second applicant's first husband died in June 1990, it was not satisfied that he was stabbed and killed with a cyanide poisoned knife.14
12.5. The Authority accepted that the second applicant's sister-in-law was raped by members of Sri Lanka's security forces.15”
[Footnotes Omitted.]
2 First respondent’s written submissions at [15] – [20]:
“15. On 9 April 2018, the Authority affirmed the decision under review (CB 483 to 504).
16. Taking into account all of the first applicant's evidence and noting various inconsistencies and implausibilities in that evidence, the Authority considered that he had fabricated the claim relating to the Special Task Force officers and the uniform request (CB 490 [28]). The Authority did not accept that Special Task Force officers had visited the first applicant's store, threatened the applicant, recorded his identity details or visited his mother. The Authority was also not satisfied that the first applicant was at risk of harm due to his occupation as a tailor or that he was at risk of harm from Tamil paramilitary groups (CB 490 [32]).
17. With respect to the second applicant, the Authority accepted that she had been taken to camps on occasion (CB 491 [34]). While the Authority accepted that the second applicant's husband had died in 1990 in an incident involving the SLA, it did not accept that he had been specifically targeted by the security forces or that the second applicant had been targeted because of him (CB 491 [36]).
18. With respect to the second applicant's claim that she would be at risk of harm or rape if she had no male support, the Authority noted its previous finding that the first applicant was not at risk of being targeted by the authorities and taken away or detained (CB 493 [44]). The Authority was therefore not satisfied that the second applicant would be at risk of finding herself alone if she returned or that she faced a real chance of serious harm on return to Sri Lanka on the basis of her gender.
19. Considering the applicants' personal profiles and circumstances overall, the Authority was also not satisfied that the first applicant was a person of interest to the Sri Lankan authorities at the time of his departure from Sri Lanka due to his ethnicity or that, by association, the second applicant would be at risk of harm (CB 495 [52]).
20. The Authority also considered the applicants' claims concerning the "data breach" and their status as returning asylum seekers but did not consider that these claims gave rise to real risk of serious or significant harm (CB 496 [54]).”
Before the Court
The application to the Court was made on 3 May 2018. It was prepared by the solicitor who subsequently appeared for the applicants at the final hearing of this matter.
The application contained one ground:
“1. The Authority committed jurisdictional error by making a finding that was irrational and illogical such that it was one that no reasonable decision maker would make.
PARTICULARS
a.At paragraph 15, second applicant claimed that she would be at risk of harm or being raped if she were to be separated from the first applicant upon return to Sri Lanka.
b.At paragraph 41, the Authority noted that "harassment, rape and other forms of sexualised violence are acknowledged as serious social problems in Sri Lanka" and that "DFAT assesses that reported incidents of sexual assault and rape have increased in recent years and that the majority of cases are likely to go unreported due to social stigma".
c.The Authority reiterates the risk of sexual harassment in Sri Lanka in paragraph 62 of its decision. Here, it notes that "rape and other forms of sexual violence against women is a serious and ongoing problem in Sri Lanka".
d.Despite highlighting the growing incidence of sexual assault against women in Sri Lanka, at paragraph 43, the Authority found that the second applicant was not at risk of serious harm if she was to return to Sri Lanka.
e.The Authority's finding at paragraph 43 is clearly illogical and contrary to the evidence before it.
f.In addition, part of the Authority's reasons for making this finding, at paragraph 42, was that "all citizens have access to avenues of redress through the police, judiciary and the Human Rights Commission". However, while the current situation in Sri Lanka is such that the second applicant may have increased access to legal avenues of redress, it does not necessarily mean that she faces a lower risk of harm. On the contrary, country information that cites increased incidents of sexual violence suggests that the risk of harm is greater. In any event, "access to avenues of redress can only be relevant after the harm.”
On 25 May 2018 a Registrar of the Court made orders by consent of both parties for the conduct of this matter before the Court. Relevantly, the applicants were given the opportunity to file an amended application by 7 September 2018.
At that time, this matter had been allocated to the docket of another Judge in this Court. It was set down for hearing before that Judge on 7 November 2019.
The matter was transferred to my docket on 31 October 2019. The applicants filed written submissions on 29 October 2019. Those submissions foreshadowed that the applicants would seek leave to amend the application by adding a further ground. On 31 October 2019 I made orders setting down this matter for final hearing before me on 14 November 2019.
At the final hearing the applicants were represented by their solicitor. The Minister was represented by his counsel.
At the commencement of the hearing the applicants sought leave to amend the application. The Minister objected to leave being granted for that purpose.
The Minister’s objections were well founded. The applicants did not comply with the timetable set by the Registrar for the proper progress of this case, or provide any satisfactory evidence to explain that failure.
While the applicants filed the proposed amended application (which accompanied their written submissions) well after the date provided, this was done some eight days before the date of the final hearing as originally had been scheduled.
The difficulty is that the proposed amended application was not served on the Minister, although it had been lodged with the Court’s Registry.
Further, there was no evidence proffered by the applicants as to why no attempt was made to file and notify the Minister of the proposed amendment at an earlier time. That opportunity arose for the applicants when the matter was set down by the Registrar for final hearing (11 March 2019).
In any event, the Minister’s primary objection was the lack of merit in the proposed ground, such as to argue for the leave to amend being granted even at this “late” stage.
The hearing proceeded on the basis that I would hear the arguments in full in relation to the sole ground of the application. The parties would also make submissions as to the merits of the proposed ground, and the Court would consider whether it was in the interests of justice to allow the amendment.
The Applicants’ Arguments on the Ground of the Application
The sole ground of the application asserts legal error on the part of the IAA because it made a finding that was irrational and illogical such that no reasonable decision maker would have made it.
The particulars to the ground seek to focus on what is said to be the IAA’s impugned finding, relevant to a number of findings made by the IAA, in relation to the second applicant’s claim to fear harm on the basis of rape or sexual assault if she were to return to Sri Lanka. While the particulars refer to [41], [42] and [62] of its decision record, the finding at [43] is identified as being “illogical and contrary to the evidence” (see further below).
To make good this argument, the applicants’ submissions referred to the following.
The second applicant’s claims to fear harm were initially set out in her statutory declaration of 17 July 2016 which accompanied the application for the visa (CB 282 – CB 286). The statutory declaration was drafted with the assistance of a registered migration agent (CB 286.3).
The applicants’ submissions to the Court focused on the following from the statutory declaration (at CB 282 – CB 285):
1 Last sentence at [4]: “…The Sri Lankan forces used to forcibly take Tamil males and females who they believed were LTTE members to the nearby army camp and detain them.”
2 First sentence at [5]: “I have been taken on several occasions to the army camp with my siblings and parents.”
3 At [6]: “I got married to Sri Kanthavel at an early age in 1987. At the time there was a risk of being conscripted by the LTTE if we were unmarried males / females. The risk of being targeted by the army was less if persons were married, hence we got married.”
4 At [12]: “The day Sri Kanthavel was killed I learnt subsequently that several Tamil males were killed and Tamil females were raped by the advancing army.”
5 At [19]: “Approximately two months after Sri Kanthavel's death, I having a shower in the makeshift shower area near the well in my parents' house in Kottai Kallaru. Sri Kanthavel's sister (Santhirakala) was also having a shower at the time. The army entered our premises and Santhirakala was taken to a vacant house next door. My mother began to scream, I too screamed, I was spared that day because I was pregnant (5/6 months pregnant) with Sriprasannakumar. Santhirakala was raped by by [sic] the two army soldiers who took her away.”
6 At [22]: “During the period 2004/2005 I have been taken several times by the Sri Lankan army to their camp situated in Iriuthayapuram in the Batticaloa district (this camp is referred to as Iruthayapuram camp and was close to Karvappan Kerni). I was taken in for questioning by the army as the army suspected I was involved with the LTTE.”
7 At [23]: “I met my partner Krishnathevan (I call him Thevan), sometime in 2006. It was not possible to live alone, I needed the support of a male in an army controlled area, I gradually entered into a relationship with Thevan.”
8 At [24]: “We did not officially get married, though we lived together until the time we departed Sri Lanka.”
9 At [27]:
“If I am returned to Sri Lanka I fear, I could be interrogated at the airport and detained indefinitely and subjected to serious harm and possibly rape for the following reasons,
a. I am a Tamil female from the Eastern province.
b. My partner had problems with STF personnel and they took down his NIC details he tells me.
c. My partner tells me that the STF could seek revenge as he refused to stitch uniforms and that they could falsely accuse him of LTTE links as he was a tailor (i.e. that he worked for the LTTE as a tailor). If Thevan is targeted by the authorities I too could suffer harm and if he is taken away it would not be safe for me to remain alone with no male support. There remains heavy military presence in the Eastern province and if I do not have male support I could be at risk of being harmed or raped.
d. I departed Sri Lanka illegally and claimed asylum in Australia the authorities could become suspicious of me due to this reason.”
[Emphasis Added.]
The applicants’ submission was that the second applicant claimed to be at risk of harm and “possibly” rape because she was a “Tamil female” from the Eastern Province of Sri Lanka. That fear was in the context of returning to the Eastern Province without “male support”.
Before the Court the applicants sought to emphasise that the second applicant never claimed that having a male partner “eradicated” the risk of rape.
Further, that the claim of the risk of harm did not only include the risk of rape, but was “so general” as to include the risk of a woman living alone in an army controlled area.
In submissions the applicants’ solicitor sought to clarify that the use of the words “possibly rape”, as they appear at [27] of the statutory declaration, meant that that was a possibility in light of the matters set out at (a) – (d) of that paragraph.
With the above in mind, the applicants’ submissions sought to make out the legal error alleged as follows.
At [15] (CB 405) of its decision record the IAA sought to summarise the second applicant’s claims, in particular, the fourth, fifth, and sixth dot points:
“[15]…
● She was subjected to frequent checks, searches and roundups by the SLA.
● She was taken for questioning several times by the SLA, in the period of 2004/2005, to the Iriuthayapuram camp as she was suspected of involvement with the LTTE.
● Her partner, Applicant 1, was targeted by the STF. She fears that if he is falsely accused by them of LTTE links and is targeted by them and taken away, she would be left with no male support and is at risk of being harmed or raped.”
The applicants submitted that this summary was “in similar language” to what is stated at [27.c] of the second applicant’s statutory declaration.
While the applicants’ oral submissions made references to [34] – [36] (at CB 409 to CB 410) of the IAA’s reasons, they also did not appear to be of direct relevance to the assertion in the ground as pleaded.
In any event, the focus of the whole submissions then shifted to what was said to be the “critical findings” of the IAA starting at [38] (CB 410) and continuing through [40] – [43] (CB 410 to CB 411) and [62] (CB 415).
The references to the paragraphs, again, as with much of the applicants’ submissions, was to either read out parts of the IAA’s decision record, or note findings made.
In this regard the following emerged. At [38] (CB 410) the IAA accepted that there was “ample credible evidence” of the use of sexual abuse and rape by the security forces during the war years to humiliate and intimidate the civilian population.
Given that the conflict of the “war years” had ended, there was no dispute this evidence was relevant to that time, it was not satisfactorily explained how this part of the submissions assisted the second applicant’s claims as to the likelihood of harm in the reasonably foreseeable future.
The applicants’ references in their submissions to [40] and [41] (CB 410 to CB 411) were for the purpose of noting that the IAA accepted that women were frequently targeted for harassment, including sexual harassment, and that the second applicant had claimed it would be difficult to live without male support in Sri Lanka.
The submissions particularly sought to emphasise (at [41], CB 411):
“…DFAT assesses that reported incidents of sexual assault and rape have increased in recent years, particularly in remote areas, and that the majority of cases are likely to go unreported due to social stigma.18 As discussed above, there are credible reports that, in some cases, the alleged perpetrators were armed forces personnel, police officers, army deserters, or members of militant groups; many women did not file official complaints due to fear of retaliation.19”
[Footnotes Omitted.]
The applicants’ submitted that the IAA’s finding at [43] (CB 411) was “at odds” with what it stated at [41]. The IAA stated at [43]:
“…Further, the country information suggests that the situation for women is changing and the government has committed to measures to address what is acknowledged as a serious problem. I also place weight on DFAT’s assessment that overall, women in Sri Lanka face a high risk of societal discrimination and violence; this risk, however, particularly relates to domestic or intimate partner violence23 which Applicant 2 is not alleging.”
[Footnote Omitted.]
It appeared that the central assertion of legal error arose from what was said to be an inconsistency in the IAA’s findings as between [41] and [43] which revealed illogicality. That is, on the one hand, rapes are said to be increasing and most are not reported (at [41]), and yet on the other hand, the IAA found that the situation for women in Sri Lanka is changing and that the Sri Lankan government was committed to measures to address what was acknowledged to be a serious problem (at [43]).
The submission was that the IAA did not distinguish between rapes of women living with men, or “males in the household”. This submission was apparently made for the purpose of noting the IAA’s reference to domestic violence in circumstances where the second applicant did not claim to fear harm at the hands of her de facto partner (the first applicant).
The applicants’ oral submissions then sought to focus on [62] (at CB 415) of the IAA’s decision.
At this paragraph the IAA stated:
“62. The applicants’ representative submits that as a female, Applicant 2 faces a heightened risk of serious or significant harm during any period on remand. As discussed above, rape and other forms of sexual violence against women is a serious and ongoing social problem in Sri Lanka and country information indicates there may be a risk to women of sexual harassment or assault in dealing with authorities. I accept that women detained on suspicion of being members or sympathisers of the LTTE have historically been at risk of ill-treatment or torture.48 There is, however, no information before me that female returnees are at any increased risk of harm, including sexual assault, for the short period they are likely to spend in detention awaiting an appearance before a magistrate or release on bail.”
[Footnote Omitted.]
The applicants’ reference to this paragraph was for the purpose of then submitting that the IAA accepted that the second applicant would be in the control of the authorities for a “short period”. In circumstances where it had earlier found (at [41]) that these authorities are often the perpetrators of sexual assault, including rape.
The argument arising from all of this was that it was “contrary to logic” for the IAA to find that there would be no risk of rape for the second applicant on return to Sri Lanka, in circumstances where she would be in situations where it otherwise accepted she would be at such risk.
Further, and for example, that the IAA had accepted that she had been in the shower with her sister-in-law who had been taken and raped.
This was also in context where the IAA did not deal with the relevance of the presence of a male in the second applicant’s household. That is, the IAA’s finding on rape applied whether or not the second applicant had male support in her household.
The IAA’s failure to make that distinction was said to be an element in support of the proposition that the IAA’s finding that there would be no risk to the second applicant was unreasonable.
Although there was no reference in oral submissions to authority to support or explain the legal basis for the applicants’ ground, the written submissions referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) generally, and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [135]:
“135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Consideration of Ground One
There are three matters, at least, that require immediate comment on the applicants’ oral submissions.
One, what is immediately apparent from the applicants’ oral submissions before the Court is that these submissions appeared to raise a different focus for the claim of illogicality or unreasonableness than what is particularised in the ground of the application.
While the ground makes reference to [62], the focus in the submissions of the factual basis of the claimed legal error is apparently on [41] and [43] as the source of the impugned findings.
Two, the written submissions, even when fairly read, appear to focus on the proposition that the second applicant would be at risk of harm, including rape, on return to Sri Lanka if she were to be separated from her partner (see applicant’s submissions at “d.” of the submissions on page 5 to page 6, and particular “a.” to the ground on page 4).
The Minister submitted that the pleaded ground was set in “a relatively imprecise scheme”. I agree. The oral submissions further added to the lack of precision. This made understanding the applicants’ ground a matter of some difficulty.
Three, nor did the applicants’ written submissions make any satisfactory attempt to link the impugned finding (at the time of the written submissions as said to be found at [43] – see also particular “e.” to the ground on page 5) to any precise explanation of the asserted legal error, as it may have been explained with reference to relevant authorities.
A mere reference to authorities is, in my view, unhelpful, and not adequate. The oral submissions made no reference to any authorities at all.
What then is the precise nature of the claimed illogicality? What finding or findings are being impugned? What authority can be used to explain the relevant principle of illogicality and unreasonableness that may apply to the circumstances of this case?
The applicants’ submissions did not satisfactorily answer these questions. The questions in fact arose as a consequence of the submissions.
There is no doubt that legal reasonableness is a necessary requirement of a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4], [80], [89], Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”), Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [59]-[60], [62] and [64]-[65], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [4] and [53]).
The ground as pleaded, and to some extent the written submissions, appear to assert unreasonableness as a result of the claimed error identified at [43] of the IAA’s decision and the inconsistency with what was stated at [41] of the IAA’s decision. The oral submissions, however, appeared to indicate that the unreasonableness was revealed in the outcome as a whole of the IAA’s assessment of the likelihood of harm to the second applicant.
Nor was the claimed illogicality satisfactorily explained. If the claim had been restricted to what was actually pleaded, then the illogicality asserted can be understood to be what is said to be the inconsistency as between [43] and [41] of the IAA’s decision.
The oral submissions, however, appeared to have obscured the assertion of illogicality in a presentation of disagreement with factual findings made by the IAA. In this light it is to be noted that assertions of illogicality in administrative decision making should not be used as a veiled attempt at merits review or challenges to factual findings.
Further, as the authorities make clear, the test for legal reasonableness is stringent (See Li at [108], Singh at [44], Stretton at [10] – [11], SZVFW at [11], SZMDS at [129] – [131] per Crennan and Bell JJ). For illogicality to be made out, as was said in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]:
“47. Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).”
The starting point in seeking to address the applicants’ ground must, in the circumstances, be the ground as pleaded.
With that in mind the applicants’ submissions before the Court, in essence, commenced with the second applicant’s statutory declaration, as referred to above.
The core of the second applicant’s claimed fear on return to Sri Lanka was that, relevantly, the second applicant feared harm on return from the Sri Lankan authorities, because she is a Tamil who was perceived to have LTTE links, and in the past the Sri Lankan army took such people (“males and females”) to an army camp and detained them.
In this context also the second applicant feared harm, including rape, as had occurred to her sister-in-law when she had been taken from the shower by the army. The IAA accepted that this incident had occurred. That is, that the sister-in-law had been taken and raped.
In light of this, and given the incidence of sexual violence in Sri Lanka, the second applicant claimed that the first applicant urged her to leave Sri Lanka because: “…it was not safe for [her] to remain in Sri Lanka with no male support” ([26] of the statutory declaration at CB 285).
That is the claim, relevant to the applicants’ ground as pleaded, and as expressed up to [26] of the second applicant’s statutory declaration.
Before the Court, the applicants drew specific attention to [27] (at CB 285) of the second applicant’s statutory declaration, in support of the application for the visa (see above at [25.9], repeated here for convenience):
“27. If I am returned to Sri Lanka I fear, I could be interrogated at the airport and detained indefinitely and subjected to serious harm and possibly rape for the following reasons,
a. I am a Tamil female from the Eastern province.
b. My partner had problems with STF personnel and they took down his NIC details he tells me.
c. My partner tells me that the STF could seek revenge as he refused to stitch uniforms and that they could falsely accuse him of LTTE links as he was a tailor (i.e. that he worked for the LTTE as a tailor). If Thevan is targeted by the authorities I too could suffer harm and if he is taken away it would not be safe for me to remain alone with no male support. There remains heavy military presence in the Eastern province and if I do not have male support I could be at risk of being harmed or raped.
d. I departed Sri Lanka illegally and claimed asylum in Australia the authorities could become suspicious of me due to this reason.”
The submission was that this paragraph set out clearly a summation of the second applicant’s claims to fear harm. The submissions allowed for only one possible understanding of what was stated. This was as follows.
The “introduction” to the paragraph and subparagraph (a) are to be read as the second applicant stating that she would face a risk of harm, and possibly rape, by reason that she is a Tamil female from the Eastern Province of Sri Lanka.
In short, (b) (not relevant to the current argument), (c) and (d) are to be read separately, and do not detract, or modify, or qualify, what was set out in the introduction and subparagraph (a). For current purposes, the applicants’ submissions were that at no time did the second applicant ever claim that having a male partner “eradicated” the risk of rape.
The argument, therefore, was that the introduction and subparagraph (a) of [27] are to be read separately from each of the other subparagraphs that follow.
How this revealed illogicality or unreasonableness in the IAA’s decision was never explained, let alone satisfactorily explained. In any event, the following must be said about this submission.
One, the submission appeared to involve a different jurisdictional error to that pleaded. A failure to properly understand an applicants’ claim or a misunderstanding of the claim, which is what underlined this submission, often leads to an assertion, in cases of this type, of a failure to consider a claim or an integer of a claim expressly made or clearly arising. That is, the type of error as was considered in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (and see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”), Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).
Two, the applicants’ submission now as to how the second applicant’s statement ought to be read and understood stands in the face of what is plainly set out at [27] of the second applicant’s statutory declaration.
The “introduction” (as the applicants’ submissions described it) makes reference to “serious harm and possibly rape”. Why this should be read as applying only to (a), and not encompassing, relevantly, (c), was never satisfactorily explained.
Plainly (c) contains another reference to the possibility of “rape”. Further, the references there to the first applicant, and that the second applicant would remain alone with no male support, repeats and echoes what was said earlier in the statement at [26].
This provides an understanding of [27] that the applicants’ submissions did not address. That is, [27] is a conclusion, a summation, of the second applicant’s claims, as set out earlier in her statutory declaration.
What emerges, therefore, is that the second applicant’s claims at [27] were relevantly that she feared possibly being raped, for reason of being a Tamil woman from the Eastern Province (a), or because her partner, the first applicant, had difficulties with the STF (b), or if the first applicant is “taken away” it would not be safe for her to remain alone with no male support (c), or because the second applicant departed Sri Lanka illegally and claimed asylum in Australia, which would arouse the suspicions of the Sri Lankan authorities (d).
Three, and in any event, as I sought to explore with the applicants’ solicitor, this submission appeared to rely on an approach to reading IAA decisions as if they were a statute or a regulation.
Rather, as the Minister correctly, in my view, subsequently submitted, the relevant test is not how the Court may seek to read the second applicant’s statement, but whether it was reasonably open to the IAA to understand the second applicant’s statement in the way that it did.
The applicants’ submissions appeared to urge a reading of the second applicant’s statement as being that she was at risk in a general sense on return to Sri Lanka, where violence towards women was prevalent, and because she was a Tamil female from the Eastern Province.
I agree with the Minister that it was reasonably open to the IAA to understand the second applicant’s claim to fear harm on return to Sri Lanka was that she would be: “…subjected to serious harm and possibly rape” for the reasons set out at (a), (b), (c) and (d).
That is how the IAA understood the second applicant’s claims. This was reasonably open to the IAA in the circumstances presented.
As set out above, it was unclear as to the exact legal error being asserted by the applicants.
If the assertion was that the IAA’s understanding of the second applicant’s claim was illogical, then the relevant authorities set out a high threshold to make out illogicality (SZMDS and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58). The IAA’s understanding of the second applicant’s claim was not so illogical that no reasonable decision maker could have understood it as such.
If the assertion was unreasonableness then the IAA’s understanding of the claim does not reveal any such failure (SZVFW).
If, although not pleaded, it was a failure to consider a claim expressly made or clearly arising, then this also is not made out for the reasons set out above.
Nor is illogicality or unreasonableness revealed in the way the IAA considered this claim, or its findings arising from that analysis.
As set out above, the IAA’s specific consideration of the second applicant’s claim is at [34] – [45] (CB 409 to CB 412) of its decision record. The applicants’ submissions before the Court are outlined above. It is to be remembered that the second applicant’s claims to fear harm are essentially, for current purposes, those in her written statement, and as set out above.
As set out above, the IAA accepted certain aspects of the second applicant’s claim ([34] – [36] at CB 409 to CB 410) and also accepted that the situation in relation to sexual violence in Sri Lanka was problematic.
In that light, the IAA assessed the second applicant’s claims that she feared harm as a Tamil woman from the Eastern Province and who also feared harm, including rape, from the instrumentalities of the Sri Lankan state, and who claimed to be at heightened risk, including at risk of rape, if she were to be left without male support.
The IAA also considered the second applicant’s circumstances in the broader context, as indicated by country information, of the risk of sexual violence in Sri Lanka.
Before the Court the applicants sought to draw some inconsistency, which I understood was said to reveal illogicality or unreasonableness, between what was stated in [41] and [43].
That is that at [41], the IAA considered country information that reported that incidents of sexual assault and rape had increased in recent years, with, at [43], country information that suggested that the situation for women was changing and the Sri Lankan government had committed to measures to address the acknowledged “serious problem” of sexual violence.
It is important to note that the two specific sources for the claimed inconsistency in the IAA’s reasoning are not findings by the IAA, but references to country information before it.
To pick two references to apparently contradictory country information, and on that basis to assert illogicality and unreasonableness, is, it must be said, simplistic and unsatisfactory.
It is the totality of the IAA’s analysis which is relevant. The applicants’ submissions not only ignore, or perhaps were unwilling to acknowledge, the nuances of the IAA’s analysis, but ignored what was plainly reasoned.
The applicants’ submissions overlooked the IAA’s intervening reasons between [41] and [43], as set out at [42] (CB 411). The IAA referred to country information that reported increases in sexual violence, and, as it said at [42], there was also country information that reported on “avenues of redress”, and changing attitudes with: “…state protection…available to all women regardless of religion or ethnicity”. The use of the word “However” as it appears at the commencement of [42] makes clear that the IAA was assessing competing, or different, country information.
At [43] the IAA considered the second applicant’s evidence in the context of this “competing” country information before it. Ultimately the IAA “place[d] weight” on: “…DFAT’s assessment that overall, women in Sri Lanka face a high risk of societal discrimination and violence; this risk, however, particularly relates to domestic or intimate partner violence which Applicant 2 is not alleging.”
The weight to be assigned to country information before it is for the IAA to assess, subject, of course, to giving intelligible reasons probative of the material before it.
The IAA therefore considered the second applicant’s claims to fear harm, including rape, as a Tamil woman from the Eastern Province, in context of the harm she feared, as being specific to her past experiences and accounts of past events, and the more generalised fear arising from the problem of sexual violence in Sri Lanka.
While it is the case that a different decision maker may have reasoned differently, the IAA’s reasoning and findings were based on a reasonably available understanding of the second applicant’s claims, and its conclusion was based on findings reasonably open for the reasons it gave. The claimed illogicality in its reasoning is not made out.
As set out above in their submissions before the Court, the applicants also made reference to [62] of the IAA’s decision record (at CB 415). The Minister submitted that he proposed not to make any submissions about this reference, because what was submitted was not a matter advanced in the applicants’ ground, as central to, or a part of, the assertion of jurisdictional error.
It must be said that the applicants’ presentation of their case appeared to be evolutionary in nature as to its assertions of legal error and how that error (whatever legal error was asserted) was made out.
Although not entirely clear what the assertion of legal error was, the reference at the hearing to [62] at particular “c.” of the ground appeared to be for the purpose of providing background to the claimed inconsistency as between [41] and [43]. However, the submissions before the Court appeared to seek to raise a new ground.
What was clear was that there was no satisfactory explanation as to how it related to the gravamen of the ground as pleaded. It is not appropriate for legal representatives to arrive at a final hearing and make references in submissions to which the respondent had no specific notice. In all, ground one as stated, and particularised, is not made out.
The Applicants’ Proposed (Second) Ground
The proposed second ground asserts that the IAA failed to consider an integer of the first applicant’s claims. The particulars directed attention to [14] (CB 405), [19] (CB 406) and [53] (CB 413) of the IAA’s decision record.
The applicants’ submissions explained as follows. At [14] (CB 405) of the IAA’s decision record it recorded the first applicant’s claims. This included:
“[14]…
● When he was growing up he was forced to do labouring work by the SLA on a few occasions, where he was verbally assaulted.
…”
At [19] (CB 406) the IAA stated:
“19. Applicant 1 was generally consistent about his general family, education, work and residential history throughout the visa application process. There is ample credible information from a range of authoritative sources regarding monitoring and harassment of Tamils during the war1, round-ups and detention2, and forced labour by the SLA.3 The claims about his experiences as a young man during the war are consistent with the country information about the treatment of Tamils by the security forces at that time. He also provided information in his SHEV interview which was generally consistent with his written claims and with country information about the degree of suspicion which attached to young Tamil men and their possible involvement with the LTTE. I accept his claims as set out in his SHEV application and SHEV interview except as discussed below.”
[Footnotes Omitted.]
The applicants submitted that the IAA then considered what were said to be “discrepancies” in the first applicant’s claims ([20] – [33] (CB 407 to CB 409), and reached the conclusion at [33] (CB 409):
“33. I am not satisfied the applicant is at risk of harm from Tamil paramilitary groups if he is returned to Sri Lanka now or in the reasonably foreseeable future.”
However, the complaint is, the IAA did not, at all, consider the first applicant’s claim, which it accepted, as set out at [14], and even taking into account what it stated in [19].
In their submissions, the applicants focused on the IAA’s decision record as to what the first applicant claimed. However, as the IAA stated, what is set out at [14] is a summary of the first applicant’s claims. The dot point relied on now in the IAA’s decision record by the applicants must be understood in the context in which the first applicant presented the entirety of his claims to fear harm.
These claims were set out in the first applicant’s statutory declaration, which accompanied his application for the visa (CB 228 – CB 231).
For current purposes, the following may relevantly be seen from those claims ([8] at CB 229):
“8. While I was growing up I was also subjected to forced labour by the Sri Lankan army a few times. It was a common practice that the Sri Lankan army would force young Tamil males at time to work for them. I had to mow the grass near the army camp and cut trees with other Tamil males. While I was subjected to forced labour the army soldiers have in the past verbally assaulted me.”
Plainly what the first applicant was saying, when also read in the context of the statement as a whole, was that “while I was growing up” he was subjected to forced labour, this “was” a common practice. He made clear: “…I was subjected to forced labour…in the past”.
In short, this was a historical claim as to past harm. The temporal context is plain. The first applicant was, on the evidence in his statement, born in April 1977 ([3] at CB 228). The date of the statement is July 2016 (CB 231). At the time of the statement the applicant was over 39 years old. There is nothing to indicate that as at 2016, the first applicant was claiming that he was still “growing up”.
The reference to forced labour could not have been a contemporaneous claim, let alone focused on the future. The first applicant’s claims to fear harm on return were clearly, and expressly, set out at [25] (CB 230) of his statement. At its highest, the earlier reference to forced labour was a reference to the adverse treatment of Tamils “in the past” by the Sri Lankan authorities.
The IAA relevantly addressed the first applicant’s claims as to past harm at [19] (CB 406) (see above at [113]). The IAA accepted the first applicant’s claims in this regard.
Before the Court, the applicants sought to argue that the claim of forced labour was a claim that such conduct by the Sri Lankan army continued up to the time the first applicant made his application for the visa and into the future.
I do not accept this submission. Before the Court the applicants argued that the IAA’s finding as to forced labour and harassment of Tamils was restricted to “during the war”. The argument was that the applicant never claimed (in his statement, or elsewhere) that the forced labour and harassment was during the war, but rather that it occurred while he was “growing up”.
In the circumstances presented, this is a poor attempt to distinguish between two sets of words without any reference to the context in which they were respectively used.
The first applicant made reference to certain events that he said occurred while he was “growing up”. The IAA accepted this in circumstances where country information before it indicated that such events did occur during the war. Given the temporal context, the first applicant grew up during the war.
It is the case, as the applicants submitted, that in its subsequent analysis, and as it related specifically to the first applicant, the IAA did not use the words “forced labour”. (See [46] – [53] at CB 412 to CB 413).
What the applicants’ proposed ground, and arguments, appear not to have grasped, or chose to ignore, is that the relevant test in assessing harm is one of reasonable foreseeability. That is, the likelihood of harm on return to the “receiving country” (see s.5 of the Act) in the reasonably foreseeable future. While past events can assist in this assessment, they are not determinative (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
On the evidence, the IAA properly understood that the claim of “forced labour” was a claim by the first applicant as to past harm. Clearly the first applicant had sought to explain that his fear of future harm had a long historical context going back to when he was “growing up”.
The IAA accepted, and found as a fact, that he had been subjected to “forced labour” and harassment in the past (at [19] CB 406). In assessing the first applicant’s likelihood of harm in the future, the IAA began, and repeated, its findings as to past harm ([46] at CB 412). That is, it found that Tamils in the past had suffered as a result of various discriminatory conduct in Sri Lanka, and had been subject to military control in the North, and relevantly, the East of Sri Lanka.
I agree with the Minister’s submissions that in the current circumstances, what was said by the Full Court in WAEE at [47] is of direct relevance. The IAA is not required to specifically refer to every piece of evidence before it. Rather, the obligation is to consider each claim expressly made or clearly arising from that evidence.
In the current case, relevantly, the first applicant claimed to have suffered harm in the past while growing up as a Tamil in the East of Sri Lanka. An example of this was that he had been subjected to “forced labour”. The IAA accepted that this had occurred in the past.
Given that the first applicant made no claim to fear harm in the reasonably foreseeable future, specifically in the nature of “forced labour”, the IAA was not required to further consider this specific piece of evidence.
In all, no reasonably arguable assertion of legal error arises from the proposed ground. Leave to amend the application in this regard is to be refused.
Conclusion
In all, the sole ground of the application is not made out. The proposed ground lacks requisite merit. I will make orders refusing the leave to amend the application, and dismissing the application as made.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 19 December 2019
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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Jurisdiction
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Procedural Fairness
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Appeal
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