CUF18 v Minister for Home Affairs
[2019] FCCA 2505
•9 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUF18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2505 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether country information was unreliable – whether findings were illogical or unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 473CA, 473CB, 476 Prevention of Domestic Violence Act 2005 (Sri Lanka) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural &Indigenous Affairs (2003) 236 FCR 593 CRI026 v The Republic of Nauru [2018] HCA 19 DHW17 v Minister for Home Affairs [2019] FCA 985 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 |
| First Applicant: | CUF18 |
| Second Applicant: | CUD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 284 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 5 April 2019 and 5 August 2019 |
| Date of Last Submission: | 5 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 9 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Draper |
| Solicitors for the Applicant: | D’Angelo Legal |
| Counsel for the First Respondent: | Mr P R Macliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicants’ application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 284 of 2018
| CUF18 |
First Applicant
| CUD18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 24 April 2018.
The IAA’s decision affirmed a decision of a delegate of the first respondent (the “Minister”), to refuse the applicants a Safe Haven Enterprise Visa (the “visa”).
This application is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). For the applicants to succeed in this Court, they must establish that the IAA has made a jurisdictional error.
The applicants were represented by Mr Draper of Counsel. Mr Draper provided written submissions dated 8 March 2019. The Minister was represented by Mr Macliver of Counsel. The Minister filed written submissions dated 29 March 2019 and 2 May 2019. The evidence before the Court consists of a Court Book numbering 325 pages.
Background
The Minister’s written submissions filed 29 March 2019 (at [1] to [10]) contained a detailed summary of the background relevant to this matter. The summary provided was not disputed. The Court has reviewed the Court Book (“CB”) in detail and is satisfied that the summary provided is accurate. The Court adopts the summary provided as its own. It provides as follows:
a)the first and second applicants are citizens of Sri Lanka who arrived in Australia by boat on 1 July 2013 as unauthorised maritime arrivals (CB 1-3, 15-17 and 204);
b)prior to arriving in Australia the first and second applicants had resided in India. The first applicant was born in Sri Lanka but moved to India when he was approximately six years old (CB 3 and 17);
c)by letter dated 16 June 2016, the then Department of Immigration and Border Protection (the “Department”) advised the applicants that the Minister had exercised his power under s.46A(2) of the Act to allow them to apply for the visa (CB 30-31);
d)on 1 February 2017, the Department received applications for the visa from the applicants. The applications were supported by a submission by the applicants’ migration agent, written statements by the applicants, and other supporting documents (CB 32-159);
e)the reasons given by the applicants for fearing returning to Sri Lanka were on the basis of their Tamil ethnicity, their pro-LTTE imputed political opinion and their membership of particular social groups of Tamil returnees and Sri Lankan refugees in India, and in the case of the second applicant, Tamil women in Sri Lanka (CB 38);
f)by letters dated 29 March 2017, the Department invited the applicants to attend an interview with a delegate of the Minister on 20 April 2017 to discuss their visa applications and claims. The applicants attended an interview with the delegate. Their migration agent subsequently provided the delegate with a further submission and country information in relation to Sri Lanka (CB 169-174 and 175-199);
g)on 7 July 2017, the delegate made a decision refusing to grant the visas to the applicants. The delegate advised the applicants of her decision by letter dated 7 July 2017 (CB 200 and 204-225);
h)the delegate’s decision was referred to the IAA pursuant to s.473CA of the Act. On 13 July 2017 the IAA advised the applicants of the referral to the IAA (CB 226-230); and
i)on 3 August 2017, the applicants’ migration agent provided a submission to the IAA in relation to both applicants, to which was attached copies of the country information reports cited in the submission (CB 231-299).
IAA’s Decision
As noted, the subject of the application before this Court is the IAA’s decision dated 24 April 2018. That decision is 20 pages in length and contains 57 paragraphs.
Relevantly, [31]-[35] of the IAA’s decision address the risks faced by women who are returned to Sri Lanka. The IAA’s findings in relation to these risks are the focus of the applicants’ application before this Court and will be discussed below. Paragraphs [31]-[35] provide as follows (CB 313-314):
31.The applicants referred to, and provided information about, the situation for women in Sri Lanka and cited the prevalence of harassment and violent sexual assault including by the security forces who they say cannot be trusted to protect Tamil women. Violence against women is a serious, ongoing social problem throughout Sri Lanka. It cuts across all socioeconomic groups but was worst in areas affected by the war. Women and girls belonging to minority communities often face particular challenges emanating from their gender and their status as persons belonging to minorities.
32.Rape and domestic violence are criminalised in Sri Lanka under the Prevention of Domestic Violence Act 2005 (Sri Lanka) and sexual harassment is a punishable offence. Enforcement of the law is, however, inconsistent and sexual assault, rape and spousal abuse are pervasive social problems. DFAT assesses that reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas, but the majority of cases are likely to go unreported due to social stigma.
33.There were a number of credible reports of sexual violence against women in which the alleged perpetrators were armed forces personnel, police officers, army deserters, or members of militant groups. Many women did not file official complaints, however, due to fear of retaliation. There has been some progress. Awareness programs have been implemented to encourage women to file complaints and the police continue to establish women’s units in police stations, although despite the establishment of Children and Women’s Bureau Desks at local police stations, minority women reported difficulties in access owing to language barriers which can further discourage reporting of violations. I further note that armed forces personnel are generally restricted to barracks.
34.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 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. DFAT assesses that overall women in Sri Lanka face a high risk of societal discrimination and violence, but states that risk particularly relates to domestic or intimate partner violence which Applicant 2 has not claimed. Female headed households, which are mainly found in the north and the east, have also been identified as a vulnerable group. Again, this does not apply to Applicant 2.
35.I accept that women in Sri Lanka face particular vulnerabilities. However, I do not accept Applicant 2’s claim that the state security forces would not help them because they are the ones committing the violent atrocities. All Sri Lankan citizens have access to redress through the police, judiciary and the HRCSL regardless of religion or ethnicity, even if, as discussed above language difficulties can pose an obstacle. Applicant 2 will not be returning to Sri Lanka on her own but with her husband. I do not accept the submission that her husband will not be able to keep her safe. It appears from Applicant 1’s written statement that they may return to the city of Trincomalee, not to a remote or rural area where women may be more vulnerable. I accept she does not speak Sinhala. However, she is educated and speaks two languages (Tamil and English) which I consider will assist in negotiating her way through official channels should it be required. And, as discussed above, I do not accept that the mere fact of having a different accent will increase her vulnerability. Having considered the applicant’s personal circumstances within the context of the country information, I am not satisfied that the risk faced by Applicant 2 if returned to Sri Lanka is more than a remote one. I am satisfied that the applicant will not face a real chance of harm on the basis of her gender, if returned to Sri Lanka, now or in the reasonably foreseeable future.
(Footnotes omitted)
Ultimately, the IAA was not satisfied that the applicants met the criteria in s.36(2)(a) or s.36(2)(aa) of the Act and affirmed the delegate’s decision not to grant the applicants protection visas.
Proceedings in this Court
The applicants’ judicial review application was filed on 28 May 2018. It contained one ground of review. When the matter came on for hearing on 5 April 2019 it became apparent that the ground articulated in the judicial review application was not the ground that was reflected in the arguments raised in the applicants’ written submissions dated 8 March 2019 or in oral submissions made to the Court.
The Court ordered that the applicants file an amended application and any further written submissions and adjourned the matter for a further hearing on a later date. The Minister was provided the opportunity to file written submissions to address the amended ground.
On 12 April 2019, the applicants filed the amended application. The sole ground of review for the Court to consider is as follows:
1. The Authority made a jurisdictional error in that it unreasonably concluded and/or addressed the wrong question in concluding that the Applicant does not have a well-founded fear of persecution.
Particulars
a. The Authority failed to consider, in making a choice, on a reasonable basis, as to what of the conflicting information to accept and which of that information was reliable in respect of sexual abuse and discrimination in Sri Lanka;
b. The Authority failed to consider, in making a choice on a reasonable basis all the relevant country information before it regarding sexual abuse and discrimination in Sri Lanka.
The applicants did not provide any further written submissions. The Minister filed further written submissions in response to the amended application on 2 May 2019.
The matter was brought back for hearing on 5 August 2019.
The applicants’ submissions
The applicants’ written submissions can be summarised as follows:
a)given the IAA’s finding that violence against women in Sri Lanka is a pervasive social problem and law enforcement is “inconsistent” (CB 313 at [32]), it is illogical to conclude, as the IAA has done, that the second applicant will have redress through the police or the judiciary (at CB 314 at [35]);
b)even if this conclusion is logical, it is unreasonable to conclude that redressing the sexual violence/discrimination after it has been inflicted lessens the future risk of harm;
c)given that violence against women in Sri Lanka is a pervasive problem, it is unreasonable to conclude that the first applicant will be able to protect the second applicant. No information has been cited to enable the IAA to conclude that the first applicant is capable of protecting the second applicant or even that he will protect the second applicant against the social problem of violence against women;
d)there is no logical reason for the IAA’s conclusion that the applicants will return to an urban area, rather than a rural one. Even if the applicants necessarily return to an urban area, given that violence against women is a ‘serious, ongoing social problem throughout Sri Lanka’, there is no logical basis for concluding the risk of harm is lessened in the urban areas; and
e)citing CRI026 v The Republic of Nauru [2018] HCA 19 (“CRI026”), NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) and Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”):
i)the decision-maker must only consider the information regarding the safety and suitability of the place of relocation that is fit for that purpose and able to be trusted;
ii)the effect of NAHI is that it is outside the scope of the Court’s limited jurisdiction to review for jurisdictional error to evaluate the accuracy or reliability of the country information and the Court is not able to draw its own conclusions from that information;
iii)CRI026, contrary to NAHI, extends the Court’s jurisdiction to review for jurisdictional error in that the Court must now undertake an evaluation as to the accuracy and reliability of the country information considered by the IAA; and
iv)CRI026 read in the context of Singh requires the Court to scrutinise the factual circumstances upon which the Minister exercises his/her power to test those facts and circumstances (for example, the extent of sexual violence against women in rural areas compared to urban areas or the husband’s ability to protect his wife against harm) for reliability. A conclusion that the second applicant will face less risk of sexual violence in urban areas or because she has her husband for protection can only be reasonably made if that decision is made with regard to reliable information which negates the fact that sexual violence is a ‘serious, ongoing social problem throughout Sri Lanka’ – consideration of unreliable information is unreasonable;
f)the IAA found that sexual violence is a ‘serious, ongoing social problem throughout Sri Lanka’ and concluded the second applicant did not face a real risk of harm. The IAA, from CRI026 was tasked with considering all the reliable relevant material before it before reaching that conclusion;
g)the information relied upon to conclude that the second applicant would not suffer harm was not reliable either because it was contradicted (for example: ‘sexual violence is a serious, ongoing social problem throughout Sri Lanka’ yet urban areas are safer than rural areas), or there is no reliable basis for the conclusion (for example: the first applicant can protect the second applicant against sexual violence); and
h)the contradictory and inconsistent information renders the information unreliable in the absence of any reasonable rejection of the contradictory information and, with regard to CRI026, the Minister is now tasked with considering not only all relevant information, but also all reliable information before it – the reliability of which is subject to the scrutiny of the Court.
At hearing, Mr Draper, for the applicants, advanced the following oral submissions:
Now, in this instance, we’re not saying – and we cannot say – that the information has not been considered. Clearly, it has. But it’s so contradictory that it has to be found to be unreliable, and if CRI026 is applicable – and I know your Honour’s views on that, but if it is a requirement that the information relied on must be reliable, then we submit that, unlike the facts in which Mortimer J found that CRI was not applicable, there’s clear grounds – and we have, with respect, set out clear reasons why the finding for the reliability of the information in this matter can only be found to be contradictory and therefore unreliable. The second part of our argument would be that even if the information can be relied upon, that a reasonable person cannot make the decision the tribunal has made in this case. How can a reasonable person sitting on the – “Clapham omnibus” I think was the phrase at one time.
How can that person find that a pervasive problem of rape and sexual assault is going to be – can be cured by redress through the police when that same information tells us that law enforcement is inconsistent? At best, she may get an inconsistent redress through the police, but that doesn’t detract from the harm she’s going to be suffering and the persecution she faces. In respect of Mortimer Js decision, it may well have been the case, as the learned judge found, that we did fail to provide basis upon which the information relied on by the tribunal in that particular matter was unreliable, but I suggest in this matter there can be no doubt as to not only the unreliability of the information but, if you will, the source or the – the unreliability has been explained.
If Mortimer Js finding was that in order to succeed on the CRI026 argument we need to evidence the unreliability which we failed to do in that matter, then we certainly haven’t failed to do it in this matter, and, therefore, I say that, as with most things in law, depending on the facts of each matter, this court, with respect, is not bound by Mortimer Js statement as a broad principle, provided we have evidenced the reliability or otherwise.
…
It’s trite that the Authority considered country information regarding violence against women and persecution of women in Sri Lanka, and the Authority did find that, in domestic relationships, there’s less chance of a woman suffering from sexual abuse and violence because she’s a woman. I think, from memory, DFAT also said that women in the rural areas are more likely to be persecuted, and face sexual abuse, than those residing in the urban areas. And that – there’s no denying that. But there’s no denying the fact, as found by the Authority on the country information, that violence against women is a serious ongoing social problem, and that it, again, is pervasive. That does not, with respect, enable the Authority to conclude, as it has done in this case, that because she is married – the applicant is married – or because she may reside in the urban area, that she is going to escape this problem, that she is going to escape persecution.
It’s illogical, with respect, to conclude, that because she is in a relationship, that she’s not going to face this serious problem, that she’s not going to be sexually assaulted, raped, and all the other forms of sexual abuse that go on, of which spousal abuse is one of them. But this report – and the fact is, it’s not only spousal abuse that’s pervasive throughout society. Abuse of women in general, from the military, from the government forces, from the people on the street, if I can put it like that, also commit and persecute women. It’s not a question of degree, the extent of the persecution of women. The DFAT report is quite clear: violence against women is a serious, ongoing social problem. That’s all women. Not just those that are unmarried; not just those that live in the urban areas.
The idea that, on the facts and on the statements provided in the DFAT reports, in the country information reports, that we can compartmentalise this violence and reach a conclusion that certain women are going to be subject to less violence than others is an illogical exercise, and it doesn’t stand up to reasonable scrutiny. Violence against women is not of an aspectual nature, if I can put it like that. There aren’t different aspects of violence against women; it’s all women. And it’s, with respect, illogical to conclude otherwise.
The Minister’s submissions
The Minister filed two sets of written submissions:
a)an outline of submissions dated 29 March 2019, filed prior to the applicants’ amended application; and
b)supplementary submissions dated 2 May 2019 in response to the applicants’ amended application, filed in accordance with Orders made by the Court at the first hearing on 5 May 2019.
As discussed above, the applicants’ submissions did not appear to address the grounds as pleaded in the original application. This is why the Court required the filing of an amended application. The Minister’s submissions dated 29 March 2019 addressed the grounds pleaded in the original application. While some parts of those submissions indirectly addressed the amended grounds, the supplementary submissions were more substantive and to the point. However, to the extent that the first set of submissions filed by the Minister are relevant to the amended ground of review, the Court will consider those submissions.
In relation to the applicants’ arguments concerning CRI026 the Minister argues that the High Court’s decision in CRI026 concerned the issue of relocation and the need for reliable information as to the safety and suitability of the place of relocation: per Kiefel CJ Gageler and Nettle JJ at [39]. This matter does not involve any issue of relocation and CRI026 has no application.
In relation to the applicants’ claim of legal unreasonableness in relation to the IAA’s conclusion that the applicant does not have a well-founded fear of persecution in relation to her claims based on her gender, the Minister submitted that, having regard to the matters referred to by the IAA at [34] and [35] (and to statements by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 that a real chance of persecution may be less than 50%, and could even be as low as a 10 per cent chance), the IAA’s conclusion that it was not satisfied that the risk faced by the first applicant by reason of her gender if she returned to Sri Lanka was more than a remote one, did not involve legal unreasonableness in accordance with the High Court’s decisions in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) and Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”).
The Minister further submitted:
a)the IAA’s conclusion at [35] that it was satisfied that the applicant will not face a real chance of harm on the basis of her gender, if returned to Sri Lanka, now or in the reasonably foreseeable future, and the reasoning leading to that conclusion, were capable of being reached and adopted by a logical or rational or reasonable mind: SZMDS at [131] and [135] per Crennan and Bell JJ;
b)the IAA’s conclusion at [35] was within its area of decisional freedom having regard to the evidence and material before it, including the country information: Li at [28] per French CJ and [66] per Hayne, Kiefel and Bell JJ;
c)having regard to the IAA’s reasons at [31]-[35] and the evidence and material to which it refers (in particular, the country information), the Court should conclude that the IAA’s conclusion that it was satisfied that the second applicant will not face a real chance of harm on the basis of her gender if she returns to Sri Lanka does not involve jurisdictional error by reason of legal unreasonableness; and
d)the Court should also conclude that the IAA’s decision did not involve legal unreasonableness by reason of a failure to consider all of the relevant country information before it regarding sexual abuse and discrimination in Sri Lanka, as asserted by particular (b) to Ground 1. No particulars are provided of the alleged relevant country information in relation to sexual abuse and discrimination in Sri Lanka that it is claimed the IAA failed to consider, and in the absence of such particulars this claim must fail.
In relation to whether the IAA considered the “wrong question” the Minister submitted:
a)this alternative basis of alleged jurisdictional error of addressing the wrong question relies upon the same particulars as for the alleged legal unreasonableness. These particulars do not specify the “wrong question” that it is asserted that the IAA addressed; and
b)further, and in any event, [31]-[35] of the IAA’s reasons clearly demonstrate that the IAA did not address the “wrong question”. The IAA considered the risks to the applicant as a woman by reason of sexual abuse, discrimination and violence if she returned to Sri Lanka. That was a question that the IAA was bound to address in light of claims made in that regard by the applicant and the country information which was before the IAA.
In oral submissions Mr Macliver for the Minister referred to Justice Mortimer’s decision in DHW17 v Minister for Home Affairs [2019] FCA 985 (“DHW17”) to support the Minister’s submissions. Her Honour’s decision was delivered after the Minister had filed and served their supplementary submissions; however, the matters Her Honour discussed were directly on point in relation to most of the arguments the Minister sought to advance in response to the applicants’ amended application.
Consideration
Reliability of the Country Information Considered by the IAA
In relation to the applicants’ arguments concerning the reliability of the country information relied upon by the IAA to conclude that the second applicant did not face a real risk of harm as a result of her gender, the Court notes the findings of Justice Mortimer in DHW17 at [41]-[43], where Her Honour stated:
41… a decision-maker must act on probative material which is rationally and reasonably capable of supporting the findings that are made: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] (Crennan and Bell JJ); Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 367-368 (Deane J).
42One reason, in a particular case, that information may not be probative is because it is not objectively “reliable”: for example, if it could be properly characterised as nothing more than government propaganda without a basis in fact.
43Making that assumption in favour of the appellant, on this appeal the ground has insufficient merit because no argument was developed about why the material upon which the Authority based its decision was not “reliable”. The principal source was the 2017 DFAT country report on Sri Lanka. That is a document produced by the Australian Government, which draws on a variety of sources, and expresses opinions which do not bind a decision-maker such as the Authority, but which can certainly be taken into account and adopted if the decision-maker is satisfied it is appropriate to do so in a particular case. Without development, at some considerable level of particularity and by reference to other evidence, about what in that report could be described as not reliable, the argument goes no further than an assertion of general principle without application to the specific circumstances of the Authority’s decision. That is insufficient for the grant of leave where the appeal turns on the application of general principle to the particular reasoning of the Authority.
In this case, the Court is also not satisfied that the applicants have sufficiently articulated why the material relied upon by the IAA was not “reliable”. The applicants’ simply assert that the country information that was relied upon by the IAA is contradictory and inconsistent.
The applicants have not placed before the Court the country information that is of concern to them. Nor have they developed with any particularity why the information referenced is contradictory or inconsistent.
The applicants argue that the country information relied upon to conclude that the second applicant would not suffer harm was not reliable as it was contradictory – referencing, as an example, the fact that the IAA noted that the country information stated that ‘…sexual violence is a serious, ongoing social problem throughout Sri Lanka’, yet the information also indicated that urban areas are safer than rural areas.
The applicant suggests that the statement that violence against women is a pervasive social problem throughout Sri Lanka is inconsistent with a statement that urban areas are safer than rural areas.
The Court does not agree with this applicants’ submissions in this regard.
One must read [31]-[35] as a whole. Here, the applicants are “cherry-picking” particular aspects of the IAA’s use of country information without appreciating the context in which the IAA’s comments are made or the IAA’s discussion as a whole.
In considering the evidence and materials before it, which the Court notes comes from at least three sources and all of which tend to make some reference to a particular vulnerability (i.e., women and girls belonging to minority communities, those in remote areas, those in domestic or intimate partner relations and those in female headed households), the IAA considered the second applicant’s particular circumstances in the context of that country information.
It is clear from the IAA’s reasons at [31]-[35] that the fact of being a woman in Sri Lanka was not sufficient to point to a “real” risk or chance of harm. All of the country information the IAA referred to (from the three different sources referenced) noted that there were particular “vulnerabilities” that were, in effect, “triggers” or “markers” for when a woman or girl was at “high risk” of sexual violence. The IAA found that those triggers did not exist here.
All the IAA is doing when it says that violence against women is a “social problem” is identifying (rightly) that there is an issue. However, the IAA then notes the more specific details of how that issue, and the risk therefrom, apply to the second applicant’s circumstances. The IAA did so by reference to various sources of country information, all of which seemed to consistently suggest that violence against women in Sri Lanka was a widespread issue but that the real risk or chance of suffering sexual violence depended on the existence of a particular “vulnerability” or circumstance (i.e., living in a particular area).
There is nothing before the Court to suggest that the information relied on by the IAA is inconsistent or unreliable. The applicant has failed to particularise with sufficient clarity what was not reliable or contradictory. While the applicants pointed to a particular example, as the Court has outlined above, it does not agree that this example displays that the information was contradictory or unreliable.
While the applicants may have perceived the information as unreliable or inconsistent, it was, ultimately, a matter for the IAA as to the accuracy of the country information relied on. In circumstances where it appears that three different sources referred to particular vulnerabilities, it cannot be said it was not open to the IAA to consider the information as reliable and rely upon it. In effect, what the applicants seeks here is merits review – something this Court cannot do: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Whether the IAA failed to consider relevant Country Information
Particular (b) of the applicants’ ground states that the IAA:
failed to consider, in making a choice on a reasonable basis all the relevant country information before it regarding sexual abuse and discrimination in Sri Lanka.
Matters concerning country information are, in almost all circumstances, matters for the relevant decision-maker without interference from the Court. The weight that a decision-maker gives to such information is a matter for it, as part of its fact-finding function. Similarly, the question of the accuracy of the ‘country information’ is one for the decision-maker, not the Court: NAHI at [11].
The IAA is not required to refer in its reasons “to every piece of evidence and every contention made by an applicant”: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45]; Applicant WAEE v Minister for Immigration & Multicultural &Indigenous Affairs (2003) 236 FCR 593 at [47].
At [2] of its reasons the IAA stated that it had regard to the material referred by the Secretary under s.473CB. The Court notes the statement of Justice Mortimer in DHW17 at [24] that:
While a general statement such as this is not determinative, it is also not to be set at nought. For a supervising court to find, against such a statement, that certain materials which should have been considered have not been requires a sufficient probative basis in the remainder of the reasons, and in other evidence before the supervising court.
Here, no particulars are provided of the alleged relevant country information in relation to sexual abuse and discrimination in Sri Lanka that it is claimed the IAA failed to consider. Further, the applicants’ submissions did not point to any particular issue relevant to the applicants’ claims or circumstances which they contended had not been considered by the IAA.
In the absence of any evidence before this Court about the contents of any country information to which the IAA did not expressly refer, this claim must be rejected.
Whether the IAA asked the wrong question
The applicants’ ground of review alleges that the IAA addressed the wrong question in concluding that the second applicant does not have a well-founded fear of persecution.
As highlighted by the Minister, the basis of the alleged jurisdictional error is framed as an alternative claim in the applicants’ ground of review and relies upon the same particulars as the ground alleging legal unreasonableness (which will be addressed below). These particulars do not specify the “wrong question” that the applicants’ assert the IAA addressed.
At no point during these proceedings did Counsel for the applicants abandon this ground. However, in both written and oral submissions the applicants have failed to identify what question the IAA failed to consider. Without doing so, the Court is unable to assess how, precisely, the applicants believe the IAA erred.
In any event, the Court is not satisfied that there is anything on the material before it that suggests that the IAA addressed the wrong question. Rather, the IAA acknowledged (at [6]) the second applicant’s claim that, as a woman, she would be at greater risk if she was returned to Sri Lanka. The IAA then considered the risks to the second applicant as a woman by reason of sexual abuse, discrimination and violence if she returned to Sri Lanka (at [31]-[35]) and whether there was a real chance or real risk that this would amount to serious or significant harm. That was a question that the IAA was bound to address in light of the claims made in that regard by the second applicant and the country information which was before the IAA.
In the absence of anything more specific being highlighted by the applicants, this claim must also be rejected.
Unreasonableness/Illogicality of the IAA’s Findings
Although not entirely clear, the applicants’ submissions seem to advance concerns about unreasonableness and illogicality in relation to the IAA’s findings. Although noted above at [14], for ease of reference these concerns are:
a)given the IAA’s finding that violence against women in Sri Lanka is a pervasive social problem and law enforcement is “inconsistent” (CB 313 at [32]), it is illogical to conclude, as the IAA has done that the second applicant will have redress through the police or the judiciary (at CB 314 at [35]).
b)even if the IAA’s conclusion that the second applicant will have redress through police or judiciary is logical, it is unreasonable to conclude that redressing the sexual violence/discrimination after it has been inflicted lessens the future risk of harm.
c)given that violence against women in Sri Lanka is a pervasive problem, it is unreasonable to conclude that the first applicant will be able to protect the second applicant. No information has been cited to enable the IAA to conclude that the first applicant is capable of protecting the second applicant or even that he will protect the second applicant against the social problem of violence against women.
d)there is no logical reason for the IAA concluding that the applicants will return to an urban area, rather than a rural one. Even if the applicants necessarily return to an urban area, given that violence against women is a ‘serious, ongoing social problem throughout Sri Lanka’, there is no logical basis for concluding the risk of harm is lessened in the urban areas.
In relation to the specific matters raised here, the Court notes as follows:
a)while it is true that the IAA found that law enforcement is “inconsistent” (at [32]), the IAA did so within the context of the enforcement of the Prevention of Domestic Violence Act 2005 (Sri Lanka) which did not apply to the second applicant’s circumstances;
b)while it is certainly true that redress after any persecution is not “state protection” per se, this argument overlooks the IAA’s finding that the second applicant’s risk of harm (and the need for redress to the authorities) was no more than remote;
c)the delegate found that the first applicant would keep the second applicant safe and that the two would be together. In the absence of any submission from the applicants on the delegate’s findings on that point it was open to the IAA to make the same finding – noting that the delegate’s decision was a part of the “referred material”; and
d)the applicants own evidence suggested that, if returned to Sri Lanka, they would return to Trincomalee (an urban area) (CB 104 and 311 at [26]). The applicants did not indicate that they intended to return to a rural area. As such, there was a logical basis upon which the IAA could conclude that they would not return to a “rural area”. Alternatively, there was a logical basis to conclude that the applicants might return to Trincomalee. For the reasons noted at [32]-[33] above there was a logical basis for the conclusion that the risk of harm is lessened in urban areas. The Court does not consider this argument to support the ground as pleaded.
It cannot be said here that the conclusions drawn by the IAA were not open to it on the information before it. The Court rejects any suggestion that the IAA’s findings were unsupported by probative material or that the conclusions drawn could not reasonably be drawn from the facts, evidence and country information relied on.
The IAA’s reasons for decision demonstrate that the IAA gave careful consideration to the second applicant’s claim and to her circumstances upon return to Sri Lanka. The IAA’s reasons for concluding that it was not satisfied that the second applicant would face a real chance of harm on the basis of her gender if returned to Sri Lanka cannot be said to lack “an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ.
The Court is satisfied that the IAA’s conclusions were capable of being reached by a logical, rational or reasonable mind: SZMDS at [131] and [135] per Crennan and Bell JJ.
Further, the IAA’s conclusions were within its area of decisional freedom having regard to the evidence and material before it, including country information: Li at [28] per French CJ and [66] per Hayne, Kiefel and Bell JJ.
Overall, while the applicants may disagree with the conclusions drawn and may preference other information and evidence, it cannot be said here that the IAA “could not possibly” have come to the conclusions it came to within the context of the information ultimately relied on. Indeed, while this Court may well have come to a very different conclusion, that is not the test here. This Court can only look at the issue of jurisdictional error as put to the Court by the applicants through Counsel. Here, while the Court is sympathetic, it cannot be said that the arguments advanced and the one ground of review, as pleaded, point to a decision that is unreasonable, illogical or irrational.
Conclusion
For the reasons outlined above, the Court finds that there is no jurisdictional error demonstrated by the applicants’ sole ground of review.
Accordingly, the applicants’ application for judicial review is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 September 2019
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