CHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 506

FEDERAL COURT OF AUSTRALIA

CHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 506  

Appeal from:

CHD18 & Anor v Minister for Home Affairs & Anor [2019] FCCA 3708

File number:

NSD 10 of 2020

Judgment of:

STEWART J

Date of judgment:

5 May 2022

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of a decision of the Immigration Assessment Authority which affirmed a decision of a delegate of the Minister to refuse to grant the applicants Safe Haven Enterprise Visas – whether decision of the Authority with regard to a component of the claim for protection is irrational or illogical so as to be legally unreasonable and affected by jurisdictional error – whether the Authority failed to consider an integer of the claim for protection – whether appealable error by the primary judge – appeal dismissed

Cases cited:

CHD18 & Anor v Minister for Home Affairs [2019] FCCA 3708

House v The King [1936] HCA 40; 55 CLR 499

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

36

Date of hearing:

3 May 2020

Counsel for the Appellants

Appellants were self-represented

Counsel for the First Respondent

S Lloyd of HWL Ebsworth Lawyers

Solicitor for the First Respondent 

HWL Ebsworth Lawyers

Counsel for the Second Respondent

The Second Respondent filed a submitting notice save as to costs.

ORDERS

NSD 10 of 2020

BETWEEN:

CHD18

First Appellant

CHL18

Second Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	STEWART J
DATE OF ORDER:	5 MAY 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT                  

STEWART J:

Introduction

1. This is an appeal from orders made by the Federal Circuit Court dismissing, with costs, an application made by the appellants for judicial review of a decision of the Immigration Assessment Authority published as CHD18 & Anor v Minister for Home Affairs [2019] FCCA 3708 (J). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant to the appellants Safe Haven Enterprise Visas (SHEV).

2. For the reasons that follow, the appeal does not disclose any appealable error on the part of the primary judge.

   Background

3. The appellants are a de facto couple from Sri Lanka. They are of Tamil ethnicity and Hindu faith. They arrived by boat on the Cocos Islands in October 2012.

4. In July 2016, the appellants lodged applications for SHEVs. In summary, the appellants claimed to fear harm due to their profiles as Tamils who were born and raised in the Batticaloa District.

5. The first appellant claimed that at the age of 19 he was beaten and detained for a day by army soldiers because they suspected him of being a member of the Liberation Tigers of Tamil Eelam (LTTE) and he had been forced to do labour work by the Sri Lankan Army (SLA) on a few occasions, where he was verbally assaulted. He claimed that he had been a tailor and was previously requested by the Sri Lankan forces and Tamil paramilitary groups and civilians to stitch uniforms.

6. The first appellant said that in April 2012, Special Task Force police officers came to his shop and requested him to tailor their uniforms overnight. He said that the officers had recorded his details, visited his home and questioned his mother, and that his mother had made a complaint to the Human Rights Commission due to their frequent visits. He feared that the Special Task Force officers could take revenge as he did not tailor their uniforms as requested and he feared being accused of stitching uniforms for the LTTE, for departing Sri Lanka illegally and claiming asylum in Australia.

7. The second appellant claimed that her husband had been killed in 1990 and her sister-in-law had been raped by the SLA. In a statutory declaration accompanying her SHEV application, she said that she had been detained on several occasions and had been subjected to frequent checks, searches and round-ups by the SLA, including being taken for questioning by the SLA at a camp in around 2004 or 2005. The second appellant further claimed that she faced the risk of harm as a female Tamil from the Eastern Province without male protection (if the first appellant was to be harmed or detained) and because she had departed Sri Lanka illegally and sought asylum in Australia.

8. In June 2017, a delegate of the Minister refused to grant the SHEVs. The matter was then referred to the Authority for review.

   The Authority’s decision

9. In a decision and reasons (D) dated 9 April 2018, the Authority affirmed the decision of the delegate to refuse the SHEVs.

10. Taking into account all of the first appellant’s evidence and noting various inconsistencies and implausibilities in that evidence, the Authority considered that the first appellant had fabricated the claim relating to the Special Task Force officers and the uniform request (D[28]). The Authority did not accept that Special Task Force officers had visited the first appellant’s store, threatened the first appellant, recorded his identity details or visited his mother. The Authority was also not satisfied that the first appellant was at risk of harm due to his occupation as a tailor or that he was at risk of harm from Tamil paramilitary groups (D[32]).

11. With respect to the second appellant, the Authority accepted that she had been taken to a camp on several occasions (D[34]). While the Authority accepted that it was plausible that the second appellant’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 appellant had been targeted because of him (D[36]).

12. In relation to the second appellant’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 appellant was not at risk of being targeted by the authorities and taken away or detained (D[44]). The Authority was therefore not satisfied that the second appellant 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.

13. Considering the appellants’ profiles and circumstances overall, the Authority was not satisfied that the first appellant 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 he, or the second appellant by association, would be at risk of harm if they returned (D[52]).

    Review application to the Circuit Court

14. By an application filed on 3 May 2018, the appellants sought judicial review of the Authority’s decision in the Circuit Court. They pleaded a single ground of review, which I will refer to as ground 1, as follows:

    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, the 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”.

15. On 29 October 2019, the appellants filed written submissions which annexed a proposed amended application. The proposed amended application raised the following additional ground of review (which I will refer to as ground 2):

    The Authority committed jurisdictional error by failing to consider an integer or aspect of the [first] applicant’s claims.

    Particulars

    a.At paragraph 14 of its decision, the Authority outlined the [first] applicant's claims which included a claim that he was forced to do labour work for the SLA on a few occasions.

    b.At paragraph 19 of its decision, the Authority notes that it accepts all of the [first] applicant's claims with an exception to his claim regarding the incident with the STF officers in April 2012. It follows that the Authority accepted the [first] applicant's claim in relation to the forced labour.

    c.When assessing whether the [first] applicant faces a real chance of harm upon return in paragraph 53, the Authority noted that it has taken 'all the circumstances into account' before concluding that it was not satisfied that both applicants would face a real chance of harm on return.

    d.Aside from stating as such, the Authority makes no reference to the first applicant's claim that he was forced to do labour work for the SLA. As a result, the Authority failed to explicitly consider whether this would contribute to the [first] applicant's profile as someone who may face harm upon return.

16. The appellants required the leave of the primary judge to amend the application and to rely on ground 2.

    The decision of the primary judge

17. The primary judge rejected ground 1 of the application and refused the appellants leave to rely on ground 2, principally on the basis that it lacks merit. I will consider the reasoning of the primary judge in the context of considering each ground of review below.

    The appeal to this Court

18. Although the appellants were represented before the delegate, the Authority and the Circuit Court, they are unrepresented in this Court. That is reflected in their notice of appeal which identifies a single ground of appeal in manuscript (as written):

    We wish to appeal the whole judgment made by –

    the FCC rely on arguments put before the FCC

19. I understand this ground to contend, in effect, that the appellants’ grounds of review before the primary judge were wrongly rejected by his Honour. I will consider each in turn.

20. The appellants were assisted by an interpreter in the appeal hearing, although they understandably remained unable to advance any pertinent submissions. Given the nature of their appeal ground and that they were self-represented, I accepted on tender by the Minister and considered the written submissions made on their behalf by their solicitor to the primary judge.

    Ground 1

21. The paragraphs of the Authority’s decision that are relevant to this ground are the following (footnotes omitted):

    15. Applicant 2’s claims can be summarised as follows:

    …

    •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.

    …

    40. While I accept the evidence in her SHEV statement that women were frequently targeted for harassment, including sexual harassment on such occasions, her evidence was that she was not. She has, however, claimed that it would be difficult to live in Sri Lanka without male support and due to the heavy military presence in the east, she is at risk of harm or rape if she has no male support.

    41. Harassment, rape and other forms of sexualised violence are acknowledged as serious social problems in Sri Lanka. Rape and domestic violence are criminalised in Sri Lanka under the Prevention of Domestic Violence Act 2005 and sexual harassment is punishable under the Penal Code. Notwithstanding this, fear of rape and other forms of sexual violence has been cited as one reason why Sri Lankan women, particularly Tamil women, lead tightly circumscribed lives and limit their daily activity in order to minimise their risk of sexual assault. 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. 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.

    42. However, all citizens have access to avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka, even if, in practice, these avenues may be limited by linguistic barriers, lack of resources, or lack of trust in the police and security officers and state protection is available to all women regardless of religion or ethnicity. 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. He also canvassed the possibility of implementing the death penalty for such offences in the wake of public outrage over a number of recent high-profile cases of violence against women and girls.

    43. While Applicant 2 referred to an inability as a woman to walk out peacefully and an inability to go out after 6 in the evening and, I accept, may have experienced some low level harassment and may, in light of the country information do so again, she has not experienced more serious incidents of sexual violence and I do not consider low-level harassment (passing comments, etc) amounts to serious harm. 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 violence which Applicant 2 is not alleging.

    44. Taking into consideration the information before me, and my finding that Applicant 1 is not at risk of being targeted by the authorities (taken away, detained) I am not satisfied that Applicant 2 is at risk of finding herself alone if she is returned or that she faces of real chance of serious harm on return to Sri Lanka on the basis of her gender.

    …

    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. 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.

22. With reference to the evidence, the primary judge identified that the core of the second appellant’s claim to fear harm on return to Sri Lanka was that, relevantly, she feared harm 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 to an army camp and detained them (J[67]). It was in this context that she said that she feared harm, including rape, as had occurred to her sister-in-law when she had been taken by the Army (J[68]). It was in the light of this, and given the incidents of sexual violence in Sri Lanka, that the second appellant claimed that the first appellant urged her to leave Sri Lankan because “it was not safe for [her] to remain in Sri Lanka with no male support” (J[69]).

23. The appellants’ case before the primary judge was, relevantly, that there is some inconsistency, which his Honour understood was said to reveal illogicality or unreasonableness, between what was stated in D[41] and D[43] (J[97]). That inconsistency is that the Authority considered country information, at D[41], that reported that incidents of sexual assault and rape had increased in recent years, and, at D[43], 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 (J[98]).

24. The primary judge noted that the facts that were said to be inconsistent were not findings of fact by the Authority, but were references to country information before it (J[99]). His Honour reasoned that to pick two references to apparently contradictory country information, and on that basis to assert illogicality and unreasonableness, is simplistic and unsatisfactory (J[100]). His Honour said that it is the totality of the Authority’s analysis which is relevant (J[101]). That approach is, with respect, entirely correct and consistent with authority that the Authority’s reasons must be read as a whole and considered fairly; they should not be construed minutely and finely with an eye keenly attuned to the perception of error; and, they are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 and 291.

25. The primary judge noted that the appellants’ submissions apparently overlooked the Authority’s intervening reasons between D[41] and D[43], namely D[42] (quoted above) (J[102]). In D[41] the Authority referred to country information that reported increases in sexual violence, and in D[42] referred to country information that reported on “avenues of redress”, and changing attitudes with “state protection … available to all women regardless of religion or ethnicity”. His Honour observed that the use of the word “however” at the commencement of D[42] makes it clear that the Authority was assessing competing, or different, country information (J[102]).

26. As the primary judge observed, the authority expressly placed weight on DFAT’s assessment that overall, women in Sri Lanka face a high risk of societal discrimination and violence, but that that risk particularly relates to domestic or intimate partner violence which the second appellant does not complain of (D[43] and J[103]). His Honour correctly observed that the weight to be assigned to country information before it is for the Authority to assess (J[104]). His Honour recognised that a different decision-maker may have reasoned differently, but concluded that the Authority’s reasoning and findings were based on a reasonably available understanding of the second appellant’s claims and its conclusion was based on findings reasonably open for the reasons it gave. On that basis, the primary judge held that the claimed illogicality in the Authority’s reasoning was not made out (J[106]). There is no error in the primary judge’s approach.

1. Referencing the information before it, the Authority concluded that it was not satisfied that the second appellant is at risk of finding herself alone if she is returned to Sri Lanka, and it was also not satisfied that she faces a real chance of serious harm on return to Sri Lanka on the basis of her gender (D[44]). That is to say, both components of her claim, one of which relied on increased risk of harm if she were deprived of male support and the other one of which did not, were expressly dealt with by the Authority. There is no illogicality or irrationality in the Authority’s reasoning in this respect.

2. Further, the appellants’ reliance on D[62] in ground 1 does not take the matter any further. The Authority was dealing there with any heightened risk of serious or significant harm that the second appellant may face as a consequence of being a returning failed asylum seeker. It was in that context that the Authority reasoned that there was no information before it 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.

3. In those circumstances, ground 1 fails.

   Ground 2

4. The gravamen of review ground 2, which is the ground that the appellants sought to introduce by way of an amended application, is that the Authority did not consider the first appellant’s claim that the Authority identified at D[14] as being that “When he was growing up he was forced to do labouring work by the SLA on a few occasions, where he was verbally assaulted”.

5. The primary judge recognised that what was identified by the Authority at D[14] is a summary of the first appellant’s claims, and that the relevant dot-point must be understood in the context in which the first appellant presented the entirety of his claims to fear harm (J[116]). His Honour identified that the first appellant’s evidence was that he was subjected to forced labour “while I was growing up”, and that that “was” a common practice (J[119]). Indeed, the first appellant stated: “I was subjected to forced labour … in the past” (J[119]).

6. On that basis, the primary judge understood this component of the first appellant’s claim to be an historical claim as to past harm, the temporal context being plain – the first appellant’s statement in July 2016 making the claim was when he was 39 years old and thus not still “growing up” (J[120]). His Honour reasoned that the reference to forced labour could not have been a contemporaneous claim, let alone one focused on the fear of facing harm in the future (J[121]). The Authority understood the claim in that way, and accepted it on the basis that “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” (emphasis added) (D[19] and J[122]).

7. The primary judge identified that the appellants sought to argue before his Honour that the claim of forced labour was a claim that such conduct by the Sri Lankan Army continued up to the time the first appellant made his application for the visa and into the future, and was not restricted temporally to the time of the Sri Lankan civil war (J[123]). His Honour rejected that submission based on the way in which the claim was put and the Authority’s understanding of the claim; since the first appellant was “growing up” during the time of the war, the Authority was justified in finding that the forced labour and harassment of Tamils was restricted to “during the war” (J[124]-[127]). There is no error in the primary judge’s reasoning in this respect which is entirely justified by the evidence before the Authority and the way in which the first appellant’s claim was put.

8. On the basis that “no reasonably arguable assertion of legal error arises from the proposed ground”, the primary judge refused the appellants’ application for leave to amend (J[134]). That was a proper basis on which to refuse the application. The refusal was an exercise of the primary judge’s discretion. The appellants would therefore have to establish House v The King ([1936] HCA 40; 55 CLR 499 at 504-505) error in order to successfully appeal against the exercise of the discretion on the basis that it had miscarried: they would have to establish that the primary judge made a material error of principle or fact, that he failed to take into account a relevant consideration or took into account an irrelevant consideration, or that he arrived at a conclusion so unreasonable as to bespeak an error of such a kind. Given that the primary judge was correct in concluding that the proposed ground 2 had no merit, no such error is established.

9. In those circumstances, ground 2 fails.

   Disposition

10. The appeal therefore falls to be dismissed. There is no apparent reason why the costs should not follow the event.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart .

Associate:

Dated:       5 May 2022