CIA23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 970
•25 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIA23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 970
File number(s): MLG 1656 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 25 June 2025 Catchwords: MIGRATION – application for judicial review – Safe Haven Enterprise visa – where Immigration Assessment Authority affirmed decision of first respondent – whether the Authority considered irrelevant country information – whether the Authority failed to consider relevant extracts of country information – found the Authority had regard to relevant country information – found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473CB, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Cases cited: AWG18 v Minister for Home Affairs [2020] FCA 744
Craig v South Australia (1995) 184 CLR 163
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 7 May 2025 Place: Melbourne Counsel for the Applicants: Mr Lewis Solicitor for the Applicants: Victoria Legal Aid Counsel for the First Respondent: Mr Kenneally Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1656 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIA23
First Applicant
CIC23
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
25 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Amended Application filed 17 April 2025 be dismissed.
3.The Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
Before the Court is an Amended Application filed on 17 April 2025, in which the applicants seek judicial review of a decision of the second respondent (Authority) dated 31 August 2018. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Safe Haven Enterprise visa (Visa).
BACKGROUND
The applicants are citizens of Sri Lanka. The first and second applicant are mother and daughter, respectively (Applicants).
On 22 July 2013, the first applicant (Applicant) arrived in Australia by boat as an unauthorised maritime arrival.
On 8 August 2015, the Applicant married her husband.
On 22 March 2016, the second applicant was born.
On 1 June 2017, the Applicants, together with the Applicant’s husband and seven other family members, applied for the Visa with the assistance of a migration agent. The Applicant and her husband raised separate claims for protection in addition to relying on claims made by the husband’s father. The Applicant’s claims were set out in a Statutory Declaration dated 3 February 2017 annexed to the Visa application. Relevantly, the Applicant’s claims for protection can be summarised as follows:
(1)when the Applicant was a child, her father was rarely home and authorities regularly visited their home in search of her father due to his suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE);
(2)her mother and father paid authorities to avoid being arrested;
(3)when she was sixteen, her mother noticed that plain clothed authorities began to look at her in a different way and her mother became worried that the authorities would take advantage of her in the absence of a male guardian affording her protection;
(4)on a number of occasions, the authorities touched the Applicant and pushed her around;
(5)on one occasion her brother was arrested and her father stabbed;
(6)the Applicant fears gender-based violence as a Tamil woman, who is easily identifiable by dialect; and
(7)she fears the authorities will detain her pursuant to the Prevention of Terrorism Act and that she will not have access to a lawyer should she be returned to Sri Lanka.
Sometime during the primary processing of the Visa application, the application was split to separate the Applicants and the husband (collectively, the applicants) from the other seven family members.
On 24 January 2018, the Applicant and her husband attended an interview with the Department with the assistance of a migration agent (Visa Interview).
On 7 February 2018, the applicants’ migration agent emailed the Department and provided a post interview written submission dated 7 February 2018 (Post-Interview Submission).
On 15 February 2018 and 16 May 2018, the applicants’ migration agent emailed the Department and provided further documents in support of the Visa.
On 25 June 2018, the Delegate refused to grant the applicants the Visa (Delegate’s Decision).
On 26 June 2018, the Delegate’s Decision was referred to the Authority for review.
On 31 August 2018, the Authority affirmed the Delegate’s Decision not to grant the applicants the Visa.
AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 31 August 2018 (Authority Decision).
Information considered and relied on by the Authority
At paragraph [2] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). The Authority noted that this material included the Visa application, Visa Interview and the Post-Interview Submission.
At paragraph [4] of the Authority Decision, the Authority noted that it had obtained new country information relating to the treatment of Sri Lankans of Tamil ethnicity, those suspected of LTTE links, victims of extortion, women in Sri Lanka and citizens who left Sri Lanka illegally seeking asylum abroad. This information was obtained from the Department of Foreign Affairs and Trade, “DFAT Country Information Report – Sri Lanka”, 23 May 2018 (2018 DFAT Report) and United States’ State Department Report, "Country Reports on Human Rights Practices for 2017 - Sri Lanka", 20 April 2018 (USSD Report). The Authority found that exceptional circumstances existed and was satisfied that regard should be had to that new information.
At paragraph [5] of the Authority Decision, the Authority noted that the Applicant and the husband both raised claims in addition to relying on claims made by the husband’s father.
At paragraph [6] of the Authority Decision, the Authority summarised the husband’s claims.
At paragraph [7] of the Authority Decision, the Authority summarised the Applicant’s claims as follows:
(1)she is a Tamil citizen of Sri Lanka, born into a Hindu family but converted to Christianity in Australia;
(2)as a child, her parents travelled a lot between Puttalam and Mannar. Her father also travelled separately and was rarely home. She and her sister often stayed with her aunt in Puttalam, which her parents deemed safer until she was nine or ten years of age;
(3)at least twice a month, plain clothed officers would visit them in Puttalam asking for her father’s whereabouts alleging he was an LTTE sympathiser for providing food and shelter to LTTE fighters. She believes that her father paid the plain clothed officers to avoid being arrested and that he stayed away from the home to avoid bringing unwanted attention on the home;
(4)the visits from the authorities became more frequent. She and her mother noticed that when she turned 16 the authorities looked at her differently and the Applicant and her mother were concerned that they would take advantage of her in the absence of a male guardian. There were occasions where the authorities would man-handle the Applicant and push her around;
(5)one day, her father was stabbed and her brother was arrested. Her mother and aunt begged for her brother’s release and when he was released they sent him on a boat to Australia. Subsequently, plain clothed authorities would come to their home to ask about her brother’s whereabouts. Her father then moved the family to a different house to avoid further arrests and fled one or two months later; and
(6)she fears serious harm from the Criminal Investigation Department (CID) and Sri Lankan Army upon her return on the basis that she is a young Tamil woman, the authorities believe her father was involved with the LTTE and because she will return as a failed asylum seeker from a western country.
At paragraph [8] of the Authority Decision, the Authority summarised the father-in-law’s claims.
Consideration of claims of the Applicant
At paragraphs [9] – [11] of the Authority Decision, the Authority accepted that the Applicant was a Tamil citizen from Sri Lanka and was born Hindu but has since converted to Christianity in Australia.
At paragraphs [28] – [35] of the Authority Decision, the Authority accepted a number of the claims made by the Applicant, including that:
(1)she was a young, easily identifiable Tamil woman;
(2)her father was rarely home while she was growing up;
(3)the family were being extorted and that her parents gave the authorities money on a number of occasions;
(4)the authorities sexually assaulted and harassed her and her sister; and
(5)her father was stabbed sometime between 2002 and 2004 and that he assisted the LTTE at a low-level capacity during the war.
However, at paragraph [35] of the Authority Decision, the Authority also found that it could not be satisfied that the authorities visited the Applicant’s home on the basis of the father’s association with the LTTE, but instead, found the visits were motivated by their intent to extort the family as a result of the interest the authorities developed in the Applicant and her sister, which led to sexual harassment in the absence of their father.
At paragraphs [36] – [37] of the Authority Decision, the Authority considered the Applicant’s claims relating to her brother, his detainment and the interest of the LTTE in respect of her brother. While the Authority accepted that the Applicant’s brother was briefly detained and subsequently released on the same day in or around 2010 or 2011, any interest by the LTTE was found to be on the basis of her brother’s profile as a young Tamil male and any subsequent visits were found to be routine monitoring. Accordingly, the Authority was not satisfied that the Applicant herself or the Applicant’s father, brother or any other family member were of any official interest to the Sri Lankan authorities for LTTE assistance or any other reasons, nor did it accept that the Applicant would attract any adverse interest upon her return.
At paragraphs [44] – [54] of the Authority Decision, the Authority considered country information which indicated that the election of the Sirisena government in January 2015 drove significant positive changes with respect to the demilitarisation in the north and east and that the prevalence of Tamils being monitored and harassed had greatly reduced. The Authority gave weight to information contained in the “DFAT Country Information Report - Sri Lanka”, 24 January 2017 (2017 DFAT Report) (a source which was before the Delegate) and the 2018 DFAT Report which indicated that Tamils were not at risk of persecution in Sri Lanka currently or in the reasonably foreseeable future. The Authority found that it could not be satisfied that the applicants faced a real chance of harm now or in the reasonably foreseeable future on the basis of their individual profiles including their Tamil race or any LTTE imputations. Further, while the Authority accepted the Applicant’s claims of extortion, the Authority found, with reference to the country information, that kidnapping or extortion was not systematically occurring in Sri Lanka in the present day and as such, it could not accept that there was a real chance of harm to the Applicant, or her family, through extortion from the claimed perpetrators or others upon their return.
At paragraphs [55] – [56] of the Authority Decision, the Authority noted that country information indicated that women in Sri Lanka faced societal discrimination including violence against women in domestic or intimate partnerships with minimal support mechanisms available. The Authority accepted that gender-based violence occurred to the Applicant and her sister but noted that the allegations of sexual assaults and rape in the north and east, which were attributed to Sri Lankan authorities, had substantially decreased and thus the Applicants would not face a real chance of such harm upon their return. Additionally, the Authority noted that country information indicated it was women in female-headed households who faced the greatest risks in terms of physical security and access to housing and economic opportunities. The Authority found that should the Applicants be returned to Sri Lanka, their familial circumstances, including the fact that they would be returning with the Applicant’s husband, would mitigate the risk of gender-based/sexual harm.
At paragraph [59] of the Authority Decision, the Authority found that it could not be satisfied that there was a real chance the Applicants would be harmed by the Sri Lankan authorities, or others in the community, on their return to Sri Lanka based on their gender despite and including on the basis of their ethnicity, age, residence in the North West Province and the Applicant having previously experienced harassment and assault.
At paragraphs [60] – [89], the Authority considered further evidence and claims of the applicants and ultimately found that it was not satisfied that any of the applicants met the criteria in ss 36(2)(a) or (aa) of the Act. The Authority thereby affirmed the Delegate’s Decision to refuse to grant the applicants the Visa.
APPLICATION FOR JUDICIAL REVIEW
On 28 September 2023, the applicants applied to this Court together seeking judicial review of the Authority Decision. On 3 October 2023, Registrar Downing made orders splitting the application, separating the Applicants’ application from the husband’s.
On 17 April 2025, the Applicants filed an Amended Application. The Amended Application contained the following grounds for judicial review (without amendment):
Ground 1: The Immigration Assessment Authority (‘the Authority’) took into account an irrelevant matter and thereby failed to consider the applicant’s claim.
Particulars
a.The Applicant claimed to fear harm on the basis that she is a Tamil woman;
b.The Authority based its disposal of this claim upon an assessment of risk of harm to women in female-headed households in Sri Lanka (at [56] of the Reasons)
c.This was an irrelevant consideration in the circumstances of the Applicant’s case.
d.By focusing on this consideration, the Authority failed to consider the more broad claim, the applicant feared harm as a Tamil woman in Sri Lanka.
Ground 2: The Authority fell into error by ignoring relevant material upon which it relied in refusing the applicant’s claim.
Particulars
a.The Authority claimed to rely upon country information reports it had before it, including DFAT Country Information reports from 2017/2018, a UK Home Office report and a United States State Department report (At [55] of the Reasons)
b.That country information included evidence of the ongoing risk of sexual abuse and gender-based violence posed to women in Sri Lanka.
c.That evidence was not considered by the Authority.
d.That evidence was relevant and material.
e.The Authority therefore failed to properly fulfil its statutory function and failed to consider the applicant’s claim.
The Hearing
The hearing took place on 7 May 2025.
The Applicants were represented by Mr Lewis of Counsel and the Minister was represented by Mr Kenneally of Counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
Applicants’ submissions
By Ground 1 the Applicants submit that the Authority took into account an irrelevant matter and thereby failed to consider the Applicant’s claim.
The Applicants submit that in determining whether the Applicant had a well-founded fear of persecution as a result of being a Tamil woman, the Authority placed emphasis on an irrelevant consideration. It is submitted that the Authority based its conclusion on the risk posed to women in “female-headed households” and then used this determination to inform itself that the Applicant did not have a well-founded fear as she was not in this category of person. In oral submissions the Applicant submitted that the Authority entirely disposed of the Applicant’s claim on the basis that she was not in a female-headed household and that this was the only factual matter relied upon.
It is submitted that the assessment of risk to women in female-headed households was irrelevant in circumstances where:
(a)the Authority found that the Applicant had previously been sexually assaulted by Sri Lankan authorities; and
(b)the Applicant had never claimed to be a woman in, or from, a female-headed household.
Minister’s submissions
The Minister submits that the Authority determined the Applicant’s claim to fear harm as a Tamil woman and concluded that the Applicant would not face a risk of gender-based violence, before considering the risks to Tamil women in female-headed households. Accordingly, the Minister submits that the Authority did not consider an irrelevant consideration.
Consideration
For the following reasons, I reject the Applicants’ submission that the Authority took into account an irrelevant consideration.
At paragraph [29] of its decision, the Authority accepted the Applicant’s claim that her family had been extorted and that she had been sexually assaulted and harassed by the authorities. In doing so the Authority found that the Applicant’s claims were plausible in light of country information “regarding the allegations of extortion and harassment of Tamils and of sexual assaults and rape in the north and east attributed to the Sri Lankan military and other members of the authorities during the war and its aftermath.”
At paragraph [40] the Authority found that whilst it accepted the Applicant’s claim as to extortion and sexual assault, these occurred at a time when many Tamils faced similar issues and that since that time a lot had changed in Sri Lanka with the easing of the security situation and the appointment of the Sirisena government in January 2015. At paragraph [43] the Authority accepted that nonetheless the Sirisena government is facing challenges in implementing reforms and that certain Tamils, with particular adverse profiles, continue to be at risk of harm in certain circumstances. At paragraph [44], based on information from the 2017 DFAT Report and the 2018 DFAT Report, the Authority found that there had been “a notable demilitarisation in the north and east” and that the prevalence of harassment of Tamils had greatly reduced. At paragraph [49] the Authority found that the weight of country information indicated that Tamils are not at risk of persecution purely on account of their race, even when combined with other factors such as gender, age or place of origin. At paragraph [51] the Authority concluded that the Applicant did not face a real chance of harm based on race, gender, family relationships, the incidents of sexual assault/harassment or any other factors. At paragraph [53] the Authority found that given the north and east of Sri Lanka had been significantly demilitarised there was only a remote chance that the persons who previously harassed and extorted the families and sexually assaulted the Applicant were still in those areas, concluding at paragraph [54] that there was no real chance of the Applicants facing harm through extortion upon return.
It is in the above context that the Authority considered the Applicant’s claim to fear harm as a Tamil woman, saying at paragraphs [55] – [56]:
Information from a range of sources before me including DFAT, the USSD and the UKHO indicates that women in Sri Lanka face societal discrimination and that violence against women occurs throughout Sri Lanka, particularly domestic or intimate partner violence, with few support mechanisms available to women in these circumstances.
There is no suggestion of Applicants 2 and 3 fearing domestic violence but I accept Applicant 2 and her sister were previously subject to sexual harassment/assault/gender-based harm in Sri Lanka from members of the authorities and that the applicants fear that Applicant 2 and 3 will be similarly harmed. While there have been allegations of sexual assaults and rape in the north and east attributed to the Sri Lankan military militarisation has substantially decreased as has the level of monitoring and harassment. Reporting does not indicate that gender-based violence/sexual assaults are happening (either at the hands of authorities or others in the community) with such frequency or to the extent that Applicants 2 and 3 would face a real chance of such harm upon return. Additionally, information from DFAT (2017/18) and the UK Home Office (2017) indicates that it is women in female-headed households who face the greatest risks in Sri Lanka in terms of a lack of physical security for their family, a lack of permanent housing and economic opportunities and difficulties accessing health services. Should Applicants 2 and 3 be returned to Sri Lanka, they would not be returning as single women in the relevant sense, but rather, they would return with Applicant 1, their husband/father and they also have other extended family members still in Sri Lanka. Country information does not support that females residing with their husbands/fathers or their extended family face the problems experienced by women in female-headed households. I find that the improved security situation and the applicants’ familial circumstances and the fact that they would have the support of family all mitigates against the chance that Applicants 2 and 3 would come to future gender-based/sexual harm in Sri Lanka.
(Court’s emphasis).
I consider that the second and third sentence of paragraph [56] addressed the Applicant’s claim to fear harm as a Tamil woman. The Authority makes a finding that gender-based violence/sexual assault were not happening with such frequency that the Applicants would face a real chance of such harm upon return. That finding is made prior to the Authority addressing the risk to women in female-headed households. This is further emphasised by the use of the word “additionally” at the commencement of the fourth sentence, under which the Authority addresses the “greater risk” to women in female-headed households. I consider no other conclusion is available on a plain reading of the paragraph.
Accordingly, I reject the Applicants’ submission that the Authority based its conclusion on the risk posed to women in “female-headed households” and then used this determination to inform itself that the Applicant did not have a well-founded fear as she was not in this category of person or entirely disposed of the Applicant’s claim on the basis that she was not in a female-headed household. The Authority first found the Applicant would not face a real chance of gender-based violence/sexual assault upon return because she is a Tamil woman and then “additionally” found that the Applicants were not in the category of persons whom country information indicated were at the greatest risk, being women in female-headed households.
Accordingly, the Authority did not take an irrelevant matter into consideration and the conclusion reached by the Authority was open to it on the material before it.
Ground 1 therefore discloses no jurisdictional error on the Authority’s behalf.
Ground 2
By Ground 2 the Applicants submit that the Authority fell into error by ignoring evidence of the ongoing risk of sexual abuse and gender-based violence posed to women in Sri Lanka.
Applicants’ submissions
The Applicants submit that the country information before the Authority detailed an ongoing and broad risk of sexual violence towards women in Sri Lanka. The Applicants submit that the country information detailed the following:
(a)a culture of impunity for acts of sexual and gender based violence (UK Home Office Report: Country Policy and Information Note Sri Lanka: Tamil separatism Version 5.0 June 2017 (UK Report), [11.4.1]);
(b)underreporting of gender-based violence due to a lack of adequate legislation, women’s limited access to justice for reasons including fear of reprisals, limited trust in the police and judiciary, extreme delays in the investigation and adjudication of such cases, arbitrary outcomes, and very low conviction rates (UK Report, [11.4.2]);
(c)reporting that “…sexual and gender-based violence is widespread in the former war ravaged areas.” (UK Report, [7.1.3]);
(d)DFAT is aware of increased reports of gender-based violence in the north and east in recent years (2018 DFAT Report, [2.33]);
(e)DFAT noting the Foreign Correspondent Association of Sri Lanka, in 2017, quoting former President Kumaratunga as saying that Tamil women continued to face sexual exploitation by both the military and Tamil officials (2018 DFAT Report, [3.91]); and
(f)DFAT noting the International Crisis Group in 2017 cited reports from a number of women of routine sexual exploitation by state officials and military personnel (2018 DFAT Report, [3.91]). (Applicants’ emphasis).
The Applicants submit that the reports all conveyed that Tamil women continue to be sexually exploited. They submit that this was clearly raised in the country information, was plainly material and there is no reference to this issue in the Authority’s reasons. They submit that the Authority’s cursory mention of “allegations of sexual assaults and rape in the north and east” did not amount to engaging with the claim in an active intellectual way. It is submitted that had there been active intellectual engagement with the material, the Authority would have referred to it in its reasons, even if it were then rejected. The Applicants submit that the Authority ignored this material, constituting jurisdictional error.
The Applicants rely upon AWG18 v Minister for Home Affairs [2020] FCA 744 (AGW18).
Minister’s submissions
The Minister submits that the onus is on the Applicants to establish that the country information was overlooked and that the Applicants cannot meet that burden. The Minister submits that the Authority sought the 2018 DFAT Report and the USSD Report in part because they contained up to date information regarding women in Sri Lanka. The Minister further submits that the Authority expressly refers to the USSD Report, the UK Report and the 2018 DFAT Report when rejecting the gender-based violence claims, citing specific country information from the 2018 DFAT Report and the UK Report. The Minister submits that those reports supported the proposition that gender-based violence in the north and east of Sri Lanka was a by-product of militarisation and that those reports had reduced recently. It is submitted that it was open for the Authority to conclude from the 2018 DFAT Report, the 2017 DFAT Report and the UK Report that women with male protection were not at risk.
Finally, in relation to the Applicants’ submission that specific aspects of the country information were ignored (as set out in paragraph [48] above), the Minister submits that the better inference is that the Authority considered the reports in full. At the very least it ought not be inferred that the Authority selectively ignored passages or paragraphs in the reports.
Consideration
The Reports
It is uncontested that the Authority had before it the following country information:
·the 2017 DFAT Report;
·the 2018 DFAT Report;
·the USSD Report; and
·the UK Report.
It is also clear from the Authority Decision that it sought the 2018 DFAT Report and the USSD Report in part because they contained more recently published information on women in Sri Lanka. The Authority noted that the Delegate considered earlier versions of these materials.
I also do not understand it to be contested that the Authority referred to the various country information in its decision in support of its conclusions. What is contended by the Applicants is that the Authority did not consider specific aspects of paragraphs [2.33] and [3.91] of the 2018 DFAT Report and paragraphs [7.1.3], [11.4.1] and [11.4.2] of the UK Report.
It is useful to set those paragraphs out in full and in context.
Paragraph [2.33] of the 2018 DFAT Report is contained under the heading “Security Situation”. Paragraph [2.32] concludes that the security situation in Sri Lanka, particularly in the north and east, has significantly improved since the conflict ended in 2009. Paragraph [2.33] then provides as follows:
Crime rates across Sri Lanka vary but are highest in Colombo District. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. UNODC estimated a murder rate of 2.9 per 100,000 in 2013. DFAT is aware of increased reports of gender-based violence in the north and east in recent years (see Conditions for women in the north and east).
Paragraph [3.91] of the 2018 DFAT Report is included under the heading “Conditions for women in the north and east”, comprising paragraphs [3.90] – [3.93]. Paragraph [3.90] – [3.93] provides as follows:
[3.90]International and local observers attribute the higher prevalence of sexual violence and domestic abuse in the north and east compared to other parts of Sri Lanka to the conflict and militarisation in these regions. The 2011 UN Secretary-General’s Panel of Experts and the 2015 OHCHR investigation report outlined allegations of sexual violence against Tamil women that would constitute war crimes. DFAT considers credible allegations of sexual violence against women held in detention camps in 2009 and 2010, and in military-run rehabilitation centres for an estimated 3,000 female LTTE fighters. In 2017, the UN Special Rapporteur on minority issues reported a decrease in the incidence of sexual assault by the military as it drew down in the north and the east, but Tamil women continue to fear sexual assault in locations where the military presence remains.
[3.91]In 2017, the Foreign Correspondent Association of Sri Lanka quoted former President Chandrika Bandaranaike Kumaratunga as saying that Tamil women continue to face sexual exploitation both by the military and Tamil officials, the latter allegedly demanding sexual favours to carry out routine paperwork. The International Crisis Group in 2017 cited reports from a number of women of routine sexual exploitation by state officials and military personnel.
[3.92]The UN Special Rapporteur on minority issues raised concerns in 2017 about reports that women in the north were experiencing harassment and sexual violence while employed by the Civil Security Department (CSD). Of the 3,000 CSD employees in Mullaitivu and Kilinochchi in 2016, more than two thirds were female and most were former LTTE members or women from female-headed households. Many female employees were required to work on farms in isolated locations under the direct management of military personnel. The higher than average salaries offered by the CSD and the lack of other well-paid employment opportunities for war-affected women reportedly prevented women from seeking redress for harassment and violence in the workplace.
[3.93]In 2017, the US Department of State reported a lack of Tamil speaking service providers for those experiencing domestic and gender-based violence in the north and east. The UN Special Rapporteur on minority issues reported that some women experience language barriers in reporting domestic violence to authorities. Very few domestic violence cases proceed to court, but some safe houses, require a court order before accepting victims of domestic violence.
Paragraph [7.1.3] of the UK Report is contained in a section entitled “General situation for Tamils” and provides as follows:
A 26 August 2016 report published by INFORM, entitled ‘Human Rights Situation in Sri Lanka: August 17, 2015 – August 17, 2016’ stated:
‘Unemployment, debt, and sexual and gender-based violence is widespread in the former war ravaged areas. The new Government’s economic and development policies are focusing on trade, investment, and mega development projects, which privilege the rich and marginalise the poor. Pre-war rights issues, such as landlessness, sexual and gender-based violence and discrimination, caste, rights of workers, including those working on tea estates, still need to be addressed.’
(Footnotes omitted).
Paragraphs [11.4.1] and [11.4.2] of the UK Report is included in section 11.4 headed “Domestic violence”. Those paragraphs provide as follows:
[11.4.1]The UN Committee on the Elimination of Discrimination against Women (CEDAW) in its ‘Concluding observations on the eighth periodic report of Sri Lanka’, dated 3 March 2017, commented that the Committee welcomed the ‘… National Plan of Action for addressing Sexual and Gender Based Violence (2016-2020); High-level recommendations to criminalize marital rape in all circumstances where consent of a spouse is absent, regardless of the degree of violence it entails; and the proposed amendments to strengthen the Prevention of Domestic Violence Act, including by removing discriminatory provisions from the Evidence Ordinance on the credibility of women’s testimony. However, the Committee remains concerned at the persistence of patriarchal attitudes and discriminatory stereotypes that condone a culture of impunity for acts of sexual and gender based violence.
[11.4.2] The Committee did note its concern however, on the following points:
•The high prevalence of gender-based violence against women in the State party and that cases of violence against women are underreported due to a lack of adequate legislation, women’s limited access to justice for reasons including fear of reprisals, limited trust in the police and judiciary, extreme delays in the investigation and adjudication of such cases, arbitrary outcomes, and very low conviction rates;
•That in cases of domestic violence, victims are required to participate in mediation as a requisite for pursuing a case in court, which results in women withdrawing their complaints due to intimidation; and,
•The lack of systematic data collection on the investigation, prosecution and sentencing of acts of gender-based violence against women, limited access for women and girls to victim assistance and protection, and the number of shelters in the State party.
(Footnotes omitted).
Analysis
For the following reasons, I reject the Applicants’ submission that the Authority ignored specific sections of the 2018 DFAT Report and the UK Report.
Firstly, as submitted by the Minister, it is for the Applicants to establish that country information was overlooked: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [53]. It is clear from the Authority Decision that the Authority obtained new country information, at least in part, as that information included more current information regarding women in Sri Lanka. In its decision the Authority expressly referred to the:
(a)2017 DFAT Report and the 2018 DFAT Report at [41], [44], [47], [53], [55], [56], [63] and [66];
(b)2018 DFAT Report at [42], [67], [76];
(c)2018 DFAT Report, the UK Report and the USSD Report at [55]; and
(d)2017 DFAT Report, 2018 DFAT Report and the UK Report at [56].
The Authority was therefore aware of, had regard to, and considered, the country information.
Secondly, whilst a failure to refer to country information may, in certain circumstances, amount to jurisdictional error, as submitted by the Minister, the Authority is not required to engage in a line-by-line refutation of country information: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [65]; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [48].
Thirdly, I consider that the Authority’s reasons are consistent with it having reviewed and considered the entirety of the relevant sections of the 2018 DFAT Report for the following reasons:
(a)whilst paragraph [2.33] of the 2018 DFAT Report provides that “DFAT is aware of increased reports of gender violence in the north and east in recent years”, it refers the reader to “Conditions for women in the north and east”. That is a reference to paragraphs [3.90] – [3.93] of the 2018 DFAT Report. It is these paragraphs that provide the detail in relation to the gender-based violence identified in paragraph [2.33]. Accordingly, I do not consider paragraph [2.33] can be read in isolation as contended by the Applicants;
(b)as set out above, paragraph [3.90] provides that the higher level of sexual violence in the north and east is attributable to conflict and militarisation in those regions. It further provides that a decrease in the incidents of sexual assault by the military occurred as it drew down in those areas but that sexual assault was still feared in areas where there was military presence. As submitted by the Minister, I consider this provides a basis upon which the Authority could conclude that militarisation was a cause of gender-based violence in the north and east and that sexual assault had decreased as military presence decreased;
(c)paragraph [3.91] provides that Tamil women continue to face sexual exploitation from the military and officials and that the International Crisis Group in 2017 cited reports “from a number of women” of sexual exploitation by state officials and military personnel. I consider that the reference in paragraph [3.91] to women continuing to face sexual exploitation from the military and officials is reflected in the matters contained in paragraph [3.90] and included in the Authority’s findings in paragraph [55] of its decision, in its comments regarding sexual assault and militarisation. Further, I consider that the reference in paragraph [3.91] to reports from “a number of women” of sexual exploitation by state officials and military personnel is reflected in the Authority’s Decision and provides a basis upon which the Authority could conclude that “reporting does not indicate that gender-based violence/sexual assaults are happening (either at the hands of authorities or others in the community) with such frequency or to the extent that Applicants 2 and 3 would face a real chance of harm upon return.” Accordingly, I consider that on a fair reading, the better inference is that the Authority did have regard to all of the relevant sections in the 2018 DFAT Report, including paragraph [3.91]; and
(d)it is clear that the Authority had regard to paragraphs [3.84] – [3.93] of the 2018 DFAT Report in relation to violence against women in Sri Lanka generally, societal discrimination and lack of support mechanisms and paragraphs [3.94] – [3.96] of the 2018 DFAT Report in relation to female-headed households facing the greatest risks as to lack of physical security for their family, a lack of permanent housing and economic opportunities and difficulties accessing health services. Accordingly, I accept the submission that it is difficult to infer (noting that in its written submissions the Minister submits that it is implausible) that the Authority had regard to all of the other paragraphs of section [3.9] of the 2018 DFAT Report but overlooked paragraph [3.91].
Fourthly, as to the UK Report, I consider that the Authority’s reasons are consistent with it having reviewed and considered the entirety of the relevant sections of that report for the following reasons:
(a)paragraphs [11.4.1] and [11.4.2] are under the heading “Domestic violence”. As noted by the Authority at paragraph [56] of its decision “there is no suggestion of Applicants 2 and 3 fearing domestic violence”. Given this, I consider it far from clear that section [11.4] of the UK Report was, necessarily, relevant country information that the Authority was required to have regard to;
(b)when read in the context of the paragraph as a whole, I consider that the comments in paragraph [11.4.1] relied upon by the Applicants and said to have been ignored by the Authority are made in the context of marital rape and cannot be read in isolation as contended by the Applicants;
(c)in any event, at paragraph [55] of its decision the Authority expressly considers the UK Report in relation to societal discrimination against women, domestic and partner violence and the limited support mechanisms available to women in those circumstances consistent with paragraphs [11.4.1] and [11.4.2]; and
(d)paragraph [7.1.3] provides that gender-based violence is widespread in the former war ravaged areas. I accept the Minister’s submission that paragraph [7.1.3] was considered and that the extract does no more than restate what the 2018 DFAT Report and the 2017 DFAT Report indicated. I also accept the Minister’s further submission that the Authority’s findings at paragraph [56] as to reports of gender-based violence in the context of militarisation were consistent with paragraph [7.1.3]. In addition, paragraph [7.1.3] must be read in context. Paragraph [7.1.4] refers to a statement on 9 February 2016 by the UN High Commissioner for Human Rights saying:
The element of fear has considerably diminished, at least in Colombo and the South. In the North and East, it has mutated but, sadly, still exists. Virtually everyone agrees there has been progress, although opinions differ about the extent of that progress…
Accordingly, I consider the Authority’s findings in paragraph [56] are consistent with the above paragraphs and support a conclusion that contrary to the Applicants’ submissions they were considered by the Authority.
Finally, as to the Applicants’ reliance on AWG18, I do not consider the present matter to be analogous to the facts of that case. Firstly, in AWG18 the appellant put seven reports before the department and ultimately the Authority. In the present matter, the Applicants put no country information before the Delegate or the Authority. Indeed, the Authority itself sought updated information from that which was before the Delegate. Secondly, in AWG18 the appellants’ submissions in support of the claim to fear harm due to gender-related violence made specific reference to three of the reports before the Authority. In the present case, no submissions relying on any country information were made by the Applicants. Thirdly, in AWG18 the Authority did not make reference to the three reports relied upon by the appellants in the context of assessing the gender-related violence claim, nor did the Authority quote any of the extracts emphasised by the appellants in their submissions or the country information summary. It was in this context that Justice Greenwood said at [138] and [145]:
Whilst it is true that a failure to refer to any of the three reports relied upon by the appellants, or mention any of the matters emphasised in the text of those reports (kind of harm; place of harm), urged upon the decision‑maker, does not, of itself, mean that the reports were ignored or overlooked, the decision in question here falls into that class of case where an inference arises that if the three reports and the emphasised passages from them had been considered, one could expect that that matter would have been referred to in the decision even if it were then rejected: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [52] (“MZYTS”); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33] (“SZSRS”).
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Accordingly, I am satisfied that because there is no mention of the three reports emphasised and relied upon by the appellants or the text emphasised by them, in the relevant parts of the decision‑maker’s decision, those reports and the emphasised text were not considered by the decision‑maker…
That is to be distinguished from the present circumstances, where the Authority references all the reports before it in the context of rejecting the Applicants gender-based violence claim, its analysis demonstrates consideration of the reports in relation to gender-based violence and no specific country information was relied upon by the Applicants before the Delegate or the Authority.
DISPOSITION
For the reasons set out above, the Amended Application does not disclose any jurisdictional error on the Authority’s behalf and must be dismissed.
The Minister seeks that the Applicants pay its costs in the fixed amount of $8,371.30 in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 25 June 2025
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