DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 163
Federal Circuit and Family Court of Australia
(DIVISION 2)
DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163
File number(s): PEG 217 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 7 March 2023 Catchwords: MIGRATION – Where applicant’s husband granted temporary protection visa on bases unknown to the applicant – failure of Secretary to provide husband’s file to Immigration Assessment Authority in breach of s 473CD – where applicant requested that Authority obtain file –failure by Authority to obtain file was an unreasonable exercise of the s 473DC discretion – failure to consider claim – reliance on anterior factual findings Legislation: Migration Act 1958 (Cth) ss 36, 46A, 473CB, 473CA, 473CB, 473DD
Migration Regulations 1994 (Cth) reg 2.08
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BVI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 9
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367
DIN19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCCA 1
DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148
Dranichnikov v Minister for Immigration and Multicultural Affairs (2006) 197 ALR 389
EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299
GOS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 662.
NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 17 May 2022 Date of hearing: 28 April 2022 Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the Respondents: Dr S Lee Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 217 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOY21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
7 March 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.Leave is granted to the applicant to rely upon the amended application filed on 11 February 2022.
3.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 10 September 2021 into this Court for the purpose of quashing it.
4.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to re-determine, according to law, the application for review before it.
Table of corrections:
22 March 2023
The “Date of judgment” at page 1 has been corrected to show “7 March 2023”.
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 GIVEN:
The Court is informed by Counsel for the first respondent that when a successful visa applicant receives notification of the decision to grant them a visa, there are generally no reasons given as to why the application was successful. Why might one would even enquire? In rejoicing the new visa status probably, much like reasons for judgment, it merges. The outcome carries the day. However, what happens when someone else close to, or otherwise reliant on, the outcome of the applicant’s visa application needs to understand the basis of that grant?
By an application filed with this Court, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 10 September 2021, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant her a Protection visa (Court Book (CB) 733 to 757).
Background
The applicant is a Sri Lankan citizen. She is a Tamil Hindu from the Northern Province of Sri Lanka. She arrived in Australia on 6 July 2013 as an unauthorised maritime arrival (CB 63).
After arrival in Australia, the applicant went through a cultural ceremony of marriage in Perth on 4 September 2014 with a Tamil man (husband) who is from the same home town in Sri Lanka as the applicant (CB 84 and 303). Prior to the applicant meeting her husband, he had applied for a Temporary Protection Visa (Class XD) (subclass 785) (husband’s TPV) on 20 November 2012, which was granted on 29 April 2016 (CB 233).
On 5 March 2015, a son was born of their union (CB 84). The applicant’s son was included in the husband’s TPV pursuant to reg 2.08(1) of the Migration Regulations 1994 (Cth) (CB 232). The husband’s TPV ceased on 29 April 2019 (CB 233). The Court is informed that the husband now has a pending application for a Safe Haven Enterprise Visa (SHEV) which was lodged on 24 April 2019 (CB 331 at [3]).
The applicant could not be included in the husband’s TPV application because at that time she was prevented by s 46A of the Migration Act 1958 (Cth) (Act) from making a valid visa application in Australia.
The bar imposed by s 46A of the Act was later lifted in respect of the applicant on 15 July 2016 (CB 38).
On 13 February 2017, the applicant and her son made their own TPV application (CB 43 to 121) based, broadly speaking, on the applicant’s fears of being harmed because of her status as a Tamil woman, and because of her previous support for the Liberation Tigers of Tamil Eelam (LTTE) which included acting in LTTE propaganda films (CB 88 to 89 at [66] to [71]). The applicant also raised concerns about her health, including that she suffered from rheumatic heart disease, had a hole in her heart and a blocked heart valve (CB 82 at [2]).
The applicant was interviewed by a delegate of the first respondent on 22 March 2018 in relation to her claims for protection (CB 144 to 145). The delegate refused to grant the TPV to the applicant and her son on 19 July 2018 (CB 170 to 190). The delegate referred the matter to the Authority pursuant to s 473CA of the Act (CB 170).
The Authority affirmed the decision to refuse the visa on 16 November 2018 (CB 259 to 279). A judicial review application in relation to that decision was dismissed by Judge McNab (as his Honour then was) on 29 September 2020 (CB 283 and 312 to 330). On 21 June 2021, the Federal Court of Australia allowed an appeal against the decision of the (then) Federal Circuit Court, set aside the Authority’s decision and remitted the matter to the Authority for determination according to law (CB 284 to 285): see GOS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 662.
On 10 September 2021 the Authority (constituted by a different reviewer) again affirmed the delegate’s decision to refuse to grant the TPV (CB 733 to 757) and it is that second decision which is the subject of the proceedings before me.
The applicant’s claims
The applicant’s initial statutory declaration attached to her TPV application stated, inter alia, that (at CB 82 et seq, [4], [26], [27], [66], [68] [71], [76]):
My main reasons for seeking the protection of Australia is fear of harm at the hands of Criminal Investigation Department of the Sri Lanka Police Service (‘the CID’)… During the war, the CID and Sinhalese Army raped many Tamil women. Tamil women are wary of them because of this, especially single women… I heard many stories from people in my community about single Tamil women being raped by soldiers or by the CID in the Kilinochchi region…. I am unable to rely on the Sri Lankan government for protection from the CID or Sinhalese Army. I can not go to the Police. The CID are the Police. They are the groups that perpetrate sexual violence against Tamil women and torture and murder Tamil men and women… Tamil women are still being raped in Kilinochchi by the Police and CID… If I return home I fear I will be kidnapped, raped, tortured or killed… I fear harm including sexual violence, torture and murder at the hands of the CID and Sinhalese Army on the basis of my ethnicity and my association with the LTTE [Liberation Tigers of Tamil Eelam].
The reference to “sexual violence”, in context, was a claim by the applicant to fear rape or sexual assault if she were to return to Sri Lanka.
After the delegate’s decision the matter was referred to the Authority on 26 July 2018 (CB 196). The Authority’s Acknowledgement of Referral letter stated that (CB 196 to 210):
The Department of Home Affairs (the Department) has provided us with all the documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction…
The material provided to the Authority in the applicant’s TPV application, included:
(a)a statutory declaration of the applicant, made on 5 December 2016 (CB 82 to 91);
(b)supporting documents attached to the visa application;
(c)supporting identity documents provided by the applicant prior to the interview referred to at [12] above (CB 131 to 134 and 138 to 140);
(d)a medical report dated 27 March 2018 (CB 142 to 143, 187.2, and 736 at [12]);
(e)a letter from the Department to the applicant’s son warning him that if he wanted to remain in Australia he needed to apply for a further visa before his TPV expired on 29 April 2019 (CB 165 to 166 and 178.9); and
(f)the delegate’s decision dated 19 July 2018 (CB 175 to 194).
On 14 August 2018, the applicant’s representative sent written submissions to the Authority, together to a further statutory declaration made by the applicant on 13 August 2018 which attached the TPV approval notices for her husband and their son (CB 220 to 233). By those submissions the applicant specifically raised for the first time a sur place, derivative claim that she also feared harm on the basis of her being married to a man who had been suspected of having LTTE links and who had previously been detained in a “rehabilitation camp” and abused in Sri Lanka (CB 226).
The applicant expressly highlighted that her husband and son had been granted three-year TPVs on 29 April 2016 and argued that this supported her sur place derivative claim (CB 220 to 226). While that claim had not been specifically raised earlier, earlier material had disclosed the fact of marriage and that her husband had been granted a TPV (CB 45). The applicant mentioned her husband’s TPV during her interview also, but in a different context (CB 260 at [6]).
By its decision of 16 November 2018, the Authority refused to consider the new information pursuant to s 473DD of the Act, for the following reasons:
(a)it could have been provided earlier;
(b)the information provided was general only; and
(c)because the reviewer had concerns about whether the applicant did in fact have a fear of harm based on her husband’s profile (CB 260 to 261 at [6] to [9]).
As noted earlier, 21 June 2021 the Federal Court had found error in the Authority’s approach to s 473DD in respect of this new information (CB 261 at [8] to [9] and 284 to 285) primarily because it asked the wrong question when applying s 473DD(b)(ii). The Federal Court (Jagot J), remitted the matter to the Authority to reconsider the review (including this new information question) according to law.
On 29 July 2021, the Authority emailed the applicant a letter headed “Reconsideration of Your Case” which contained a paragraph in relevantly the same terms as those set out at [14] above (CB 292 to 298).
The same day, the applicant’s solicitor responded to the Authority advising that the applicant intended to lodge a submission by 3 August 2021 (CB 299). The Authority acknowledged receipt of that correspondence by email dated 30 July 2021 which stated, inter alia (CB 300):
The IAA particularly notes that written submissions addressing the delegate’s decision have already been provided, following referral of the case to the IAA. Please be aware that, should you provide further submissions addressing the delegate’s decision, the length of the submissions already provided will be taken into account when assessing whether any further submissions comply with the Practice Direction. Any further submissions which, when considered together with existing submissions, exceed the total allowable length of 5 pages will generally not be considered. You may wish to withdraw or otherwise amend the submissions already provided in order to ensure any new submissions comply with the Practice Direction.
On 3 August 2021 the applicant made a fresh submission to the Authority (August 2021 Submission) which indicated her intention to replace the earlier submission which was withdrawn. The applicant continued to rely, inter alia, on the statutory declaration dated 13 August 2018 (CB 331 to 335) and also on three new statutory declarations, being a new statutory declaration made her on 24 June 2021 (CB 338 to 340) and two made by her husband.[1] Of the latter two statutory declarations of the husband, one had already been submitted in 2016 (by his solicitors) as part of his TPV application (CB 303 to 306) and the other submitted (by his migration agent) as part of his SHEV application shortly before the expiry of his TPV (CB 307 to 311).
[1] One of those documents was not initially attached, but this error was rectified on 3 September 2021 (CB 337).
In providing the abovementioned statutory declarations, the submission said the following (CB 332 at [15]):
The evidence from the Applicant is that she know the “generality of his claims” but not the detail. We would submit this is not surprising. The Applicant’s husband has agreed to share his most recent statement accompanying his recent application for a SHEV, the statement indicates he has suffered torture and sexual abuse, it should be clear that these are likely to be issues he would rather forget, or at least, not talk about.
In essence, the statutory declarations were offered as constituting “detail” known to the husband, but to which the applicant was not privy. It was further submitted that, having been found to be a refugee and based on his statutory declarations, the husband must be found to continue to be a refugee (CB 332 at [15] to [18]).
By the August 2021 Submission, the applicant expressly submitted that the Secretary should provide the Authority with a copy of the Departmental file relating to the husband (CB 331 at [3]). The August 2021 Submission also dealt with the applicant’s sexual violence claim under the heading “Persecution based on gender” (CB 333 to 334 at [21] to [25]). In addition the applicant submitted new country information (CB 331 at [6] and 344 to 724).
On 10 September 2021, the Authority affirmed the decision of the delegate.
In particular, the Authority found that the new information raising the derivative claim had passed through the s 473DD gateway and would be considered (CB 735 to 736 at [10] to [11]). The Authority then found as follows:
10. The applicant now claims to fear harm based on her husband’s imputed LTTE links and because he has been granted protection in Australia. The submission states that the applicant fears harm in Sri Lanka based on her husband’s profile and imputed LTTE links, that she fears persecution as a member of a particular social group, “being that of being a member of his family” and imputed political opinion as someone married to an accused LTTE sympathiser. She claims he is unable to return to Sri Lanka and that she would be returning without him. In support of this new claim they have provided copies of Departmental records confirming her husband and son were granted protection visas in 2016. They also submit that her husband has now agreed to provide her with his 2016 and 2019 statements which accompanied his protection visa applications lodged with the Department in those years (he lodged a second application in 2019, after the protection visa issued to him in 2016 expired, although no decision has yet been made in relation to the 2019 visa application), copies of which have also now been provided. Her husband’s statements indicate that while he did not have any LTTE involvement, as a young Tamil male from the north he was imputed with LTTE links at the end of the conflict and detained for two years by authorities on account of this and severely mistreated. These claims and the supporting information now provided comprises new information. The applicant was not in Australia when her husband lodged his first protection visa application. As has been submitted it is plausible that the applicant and her husband have not spoken to each other about their claims given they concern claimed incidents of severe mistreatment and harassment, including of a sexual nature, which neither of them want to revisit or share with the other. The applicant has also said she was told by her former migration agent that she was unable to be part of her husband’s protection visa application. She has also said that the delegate did not ask her if she feared harm on account of her husband’s profile, despite knowing that her husband had been granted protection in Australia. They submit that consideration of her husband’s claims is relevant to consideration of her risk of future harm, as she would be imputed with his views as his wife and mother of his son and he is on the authorities’ radar as he has previously spent time in rehabilitation. It is submitted that her profile combined with her husband’s profile would mean she would face an increased risk of being targeted by Sri Lankan authorities if she were to return.
11. While I consider it was for the applicant to raise her own claims for protection and provide supporting information at the primary stage, it appears her former migration agent was not helpful in this regard and I find the submission that the applicant and her husband did not share details of their claims given their sensitive nature, suggesting this is why the applicant did not think to raise her husband’s claims previously as she did not realise the implications, as plausible. She was not in Australia when her husband applied for protection in 2012 and the applicant’s submissions also suggest she was under the impression that the delegate had her husband’s details and claims before him. Her husband’s 2019 visa application and accompanying statement post-date the delegate’s decision. While borderline I am satisfied that this information could not have been provided to the delegate before his decision was made. The applicant claims to fear harm on account of her LTTE links and it is plausible that as his wife and the mother of his son that she would fear an increased risk of harm given, as is now apparent, that her husband claims he too was imputed with LTTE links and was detained for two years on account of this and therefore, is known to authorities. I am satisfied that the information is credible personal information in the relevant sense. It concerns a new claim and information provided in support of it and is detailed. I am satisfied that had the information been known that it may have affected consideration of the applicant’s claims. I am also satisfied there are exceptional circumstances to justify considering the information. Having provided records and information regarding her husband and son’s protection visas and her husband’s 2016 and 2019 statements setting out his claims in his own words, I have decided not to get any additional information from the Department regarding her husband or son as I do not consider it necessary in the circumstances.
Proceedings before the Court
These proceedings, which were commenced on 13 October 2021, were initially docketed to another Judge of the Court who made orders for the applicant to file any amended application to 11 February 2022. The applicant has been represented by solicitors from the commencement of the proceedings. The applicant’s legal representation changed when, on 8 February 2022, her present solicitors filed a Notice of Address for Service and sought leave of the Court to extend the time in which to file an amended application. The resulting Amended Application was filed (albeit after 4.30pm) on the prescribed date. By that Amended Application the applicant refined the first three grounds, and wholly abandoned ground four. To the extent said timing may give rise to the need for further leave to be granted to rely upon it, such leave was not opposed by the first respondent. I will grant that leave.
By her Amended Application the applicant now raises the following three grounds of review (omitting particulars):
1. The Secretary of the Department failed to take reasonable steps to locate potentially relevant documents in the Department’s possession or control for the purpose of providing those documents to the Immigration Assessment Authority (Authority), in breach of the Secretary’s obligation under s 473CB of the Migration Act 1958 (Cth) (the Act), causing the review by the Authority to miscarry, or alternatively, the failure of the Authority to request those documents from the Secretary using its discretionary power under s 473DC of the Act was unreasonable.
2. The Authority failed to properly consider whether the Applicant faced a real chance of persecution in the form of sexual violence under its refugee criterion assessment.
3. The Authority failed to properly consider whether the Applicant faced a real risk of significant harm in the form of sexual violence under its complementary protection criterion assessment, or alternatively, misconstrued the test under s.36(2)(aa) of the Act
At the hearing the Court Book was received as evidence and marked Exhibit “1A”.
Other than the Affidavit accompanying the origination application, no additional Affidavit evidence has been filed in this matter. The applicant’s written submissions were filed on 5 April 2022, and the first respondent’s written submissions were filed on 20 April 2022. The matter was heard by me on 28 April 2022, following which it became necessary to grant the parties leave to file supplementary submissions with a further timetable, upon the expiry of which, judgment was reserved.
Ground 1
By ground 1 the applicant alleges that the Authority’s review miscarried because of a failure of the Secretary of the Department to take reasonable steps to locate potentially relevant documents in the Department’s possession or control, being the husband’s TPV file. This is said to be in breach of the Secretary’s obligation under s 473CB of the Act. Alternatively, it is alleged that the Authority ought to have requested those documents from the Secretary by exercise of its s 473DC discretion, and that its failure to do so was unreasonable.
To the extent that at hearing the applicant sought to also suggest that the son’s file ought to have been provided, I agree with the first respondent’s submissions that this was not raised as part of this ground, nor particularised. Particular 1(c) in the Amended Application expressly alleges that the Secretary failed to provide the husband’s file or any part of it to the Authority. In any event, the applicant’s derivative claim depended (as did her son’s) on the TPV granted to the husband and the basis for its grant.
The applicant says it was clear from her submission to the Authority (CB 332 at [14]) that the newly raised derivative claim based on the husband’s profile was that the applicant feared serious harm on return to Sri Lanka. The Authority acknowledged this claim as being based on the husband’s imputed LTTE links and because he had been granted protection in Australia (CB 331 at [10]). Further, it is said that the applicant made clear to the Authority that she was unaware of the detail of the husband’s claims.
By the August 2021 Submission (CB 331 at [3]) the applicant said (original emphasis):
The reasons why the Applicant’s husband was found to be owed protection in 2016 are not known to the Applicant nor her husband. Delegate [sic] decision in relation to protection findings are not provided to visa applicants nor are they available under Freedom of Information. No decision has been made in relation to the subsequent application for SHEV which was lodged on 24 April 2019. The Applicant’s husband continues to hold a TPV. It is our submission that the Secretary should provide the IAA with a copy of the husband’s file in order to allow the IAA to have all relevant information.
Next the applicant says that because the Authority purported to consider the husband’s profile as part of its decision (CB 744 to 745 at [37]), this was an issue relevant to its review and the lack of information about the husband ought to have been remedied in one of two ways. Namely, and as pleaded by ground 1, either by inclusion by the Secretary with the review material, or by the Authority (perceiving there to be a lack of relevant material or a gap therein) sourcing the file itself pursuant to its s 473DC discretion.
The first respondent says that the applicant is simply speculating that the Secretary did not consider whether the husband’s TPV file was relevant and that, as the moving party before the Court, the applicant bears the onus of proving this, citing CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 (CQR17) at [31] to [41] per Jagot J. However the first respondent says that even if the Secretary did not turn his mind to provision of the husband’s file, the Secretary must be taken to have formed a view that the documents were not relevant. While acknowledging that CQR17 does not apply a strict evidentiary onus which requires an applicant to expressly provide what was in the subjective contemplation of the Secretary (a task which is likely to be impossible for most applicants), the first respondent says that said assessment process can be inferred from the conclusion that the documents were not relevant. It is whether that conclusion lacked an evident or intelligible justification which will then reveal whether the assessment process was reasonable: see CQR17 (supra) per Jagot J at [37]
In the instant case, the first respondent says a conclusion to the contrary could not be reached in this case, because the file was relevant to a sur place claim, raised after the delegate’s decision was made and not until a submission was made to the Authority. The relevance of that chronology is that the first respondent says that the Secretary would have already provided documents to the Authority at the same time (or as soon as reasonably practicable after) the decision was referred. The first respondent says that if new information is later advanced by an applicant, it will be for the Authority to consider whether to seek more information, and not a matter for the Secretary. It is said that it cannot be unintelligible for the Secretary to confine the documents provided to those which form the review material at the time of the referral.
The first respondent says further that the Secretary should be found to have been justified in not providing the husband’s file because it “would have added nothing”. This is said to be based on the following:
(a)the documents were several years old;
(b)the decision record pertaining to the husband would have recited objective facts of what had happened to the husband and that it is a reasonable inference that these “would have been the same facts as those set out in the husband’s Statutory Declarations”;
(c)the letter of approval regarding the husband’s TPV was before the Authority; and
(d)it would be reasonable to infer that the issue of whether the husband, and in turn the applicant, would be of ongoing interest in Sri Lanka would have turned on country information and that the husband’s TPV decision record was “unlikely to assist in that regard”.
In respect of ground 1 as it directed to the Authority’s s 473DC obligation, the first respondent says that “despite having not been asked” the Authority did consider whether to seek further information from the applicant’s husband and decided not to (CB 735 to 736 at [11]). The first respondent says the Authority accepted the objective facts in the husband’s statutory declarations and that it would be reasonable for the Court to infer, as did the Authority, that the husband’s TPV decision turned on country information about the situation in Sri Lanka in 2016.
The first respondent says it was not legally unreasonable for the Authority to have determined, as it did, to not obtain the husband’s file pursuant to s 473DC(1)(b).
Lastly the first respondent says that it is not demonstrated by the applicant that provision of the husband’s file by the Secretary could have realistically resulted in a different outcome.
Consideration
Dealing first with the duty of the Secretary, s 473CB of the Act relevantly provides:
Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
…
As will be clear from the language of s 473CB(1), there are two main categories of information contemplated by it. The first are those in s 473CB(1)(a) and (b)[2] being information of a finite kind which is prescribed and should be readily identifiable. The second category is broader and includes within it, a discretion. However, the breadth of that section is not unlimited. I respectfully adopt the considered parameters of it identified in BVI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 9 at [91] to [95] per Judge Driver, where his Honour said at [95]:
Put slightly differently, the domain must extend beyond the documents of which the Secretary is actually aware, to those documents of which the Secretary may be unaware but which must be collated because they may be relevant to the review. That is consistent with the statutory language and statutory context, notably the words “in the Secretary’s possession or control” must be read by reference to the process of consideration that the Secretary has to undertake in respect of the Authority’s review. In that regard, relevance is referrable to the “fast track reviewable decision”, not a different decision under a different statutory scheme.
[2] Also s 473CB(1)(d)
It is accepted that a failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting its review such that jurisdictional error on the part of the Authority is established: see EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 at [35] per Allsop, Markovic and Steward JJ and AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82 at [78] per Allsop CJ, Jagot and Moshinsky JJ.
The time at which relevance is to be assessed is at the time of the referral because it is at that juncture that the Secretary is required to discharge their s 473CB(1)(c) function: see CQR17 (supra) at [39] per Jagot J. However, that is not a one-off event. Upon remittal, the Secretary’s obligation under s 473CB is re-enlivened because, once the Authority makes its written statement, documents are returned to the Secretary pursuant to s 473EA(4): see DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148 at [28] per Bromberg , Moshinsky and Hespe JJ.
The first respondent’s submission regarding the applicant bearing the onus demonstrate that the Secretary did not consider whether the husband’s TPV file was relevant, at first blush appears to be an overly-simplistic interpretation of CQR17. As is explicitly observed by Jagot J at [33] to [34] of CQR17, because the task which s 473CB(1)(c) vested in the Secretary involves the Secretary’s subjective state of mind regarding relevance to the review of documents in his possession or control, an applicant has no power to produce evidence relevant to the question. In CQR17, as in the instant case, the Minister produced no evidence about that issue. Accordingly, her Honour found that if a decision that the documents were irrelevant to the review would be legally unreasonable (in the sense discussed in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332) then that itself may be evidence that the Secretary did not consider the relevance of the documents, finding at [36] to [39]:
…A conclusion of legal unreasonableness might be reached because a document is critical or crucial but that is because deciding that a document critical or crucial to the review is irrelevant may be a decision lacking any evident intelligible justification.
…
…The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.
To the extent that the first respondent contends that the evident and intelligible justification for the husband’s file not being included in the review information was because it arose from a sur place, derivative claim which did not form part of the delegate’s decision, I reject that submission. Firstly there is no such limitation imposed by s 473CB(1)(c). In fact, to the extent that s 473CB(1)(a) and (b) substantively deal with the delegate’s decision and the material of an incidental to it, s 472CB(1)(c) clearly contemplates that material may exist and be relevant to the review (and within the Secretary’s possession or control) which is not precisely material that was before the delegate or which expressly dovetails with a claim which was before the delegate for consideration.
Secondly, even though the applicant had not made an express derivative claim to the delegate, the fact of her relationship with her husband, the husband having been granted a TPV and the birth of their son were facts known to, and considered, by the delegate.
In EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2 (EOJ17) Judge Driver observed the following at [82]:
Generally, a decision on another person’s claim for protection is not relevant to a claim for protection by another person, as individual circumstances differ. However, where a joint application is made, the circumstances of all the applicants must be considered, and where claims are common, though made separately as may be the case with a family group, the circumstances of one applicant may well impact upon the consideration of the circumstances of related applicants.
Judge Driver noted in EOJ17 that the applicant had not alleged a breach by the Secretary of the s 473CB(1)(c) obligation but that, if they had, his Honour would have found an error consistent with DIN19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCCA 1 (DIN19) per Judge Driver, which his Honour delivered the same day.
In DIN19 Judge Driver found as follows at [103]:
The Authority accepted at [16] that one of the applicant’s brothers, K, had been granted protection in Australia. Neither the Departmental file nor the reasons for granting protection were before the Authority. Nevertheless, the Authority found at [26] that the profile of the applicant in Sri Lanka and that of his family, including K, was not such as to put the applicant at risk. It follows that the reasons why K was granted protection were relevant to the review. For the purposes of s.473CB of the Migration Act the Secretary, if he had turned his mind to the issue, would have been bound to consider that information relating to the grant of protection to K was so relevant. Accordingly, even if that information was not before the delegate, it should have been provided to the Authority. The breach is material because the information could have made a difference to the outcome.
The applicant relies on DIN19 and says that the instant case is, factually, a fortiori to DIN19. That is because while one brother having been granted a Protection visa may be tangentially relevant to the protection application of another brother, in circumstances where a wife is claiming protection based on the profile of her husband with whom she shares a child, that the potential derivative claim is stronger. That the paragraph of DIN19 referred to above was in obiter (a feature relied upon by the first respondent as being distinguishing) does not diminish its relevance and application to the instant case. In DIN19 the error established was one of several jurisdictional errors alleged. Judge Driver found error to be established by earlier pleaded grounds. Accordingly, by the time his Honour came to consider the ground which is analogous to ground 1 in the instant case, jurisdictional error had already been established. His Honour commenced his consideration of the relevant ground by saying that while it was strictly unnecessary to deal with the remaining grounds, he would address the ground because it also gave rise to a jurisdictional error. In the present case, DIN19 is directly relevant and analogous. Principles of judicial comity require me to follow Judge Driver’s approach in DIN19 unless it is plainly wrong. I do not consider DIN19 to be plainly wrong.
Thirdly, even though the specific claim was not before the delegate, it was before the Authority when it made its first decision. The first Authority decision made express reference to the applicant’s lack of knowledge in relation to the husband’s protection claims and the basis upon which he was granted his TPV and used that lack of knowledge as a basis upon which it declined to consider the claim on the basis that there were no exceptional circumstances to justify consideration of the claim in its entirety. Accordingly, the question of the lack of detail, about which the applicant was quite candid, was considered by the first Authority to be relevant to the review. After proceeding in each of the (then) Federal Circuit Court and Federal Court the matter was remitted. Accordingly, it fell again to the Authority to consider this question. It cannot be said that the issue arose chronologically in a way which was therefore unknown to the Secretary. As such, it arose for consideration as to whether there was any further material in the Secretary’s possession or control which might be relevant to the review (see [46] above).
I reject the first respondent’s submissions that it can be inferred that the husband’s file (or more specifically the TPV decision record) “was unlikely to assist” and “added nothing”.[3] The husband’s claims as made (and summarised in statutory declarations) do not specifically inform the question of what harm the first respondent (by his delegate) accepted as existing in relation to the husband, and was a basis upon which he was found to be owed protection.
[3] First respondent’s submissions filed 20 April 2021 at [44] and [48.3]
In all the circumstances of the present case, I find there was no evident or intelligible justification for the Secretary concluding that the husband’s file was not relevant to the review, such that reasonable steps were not taken to locate and provide it to the Authority as part of the review material. As a result the Authority’s review miscarried. I find this to be material and accordingly, a jurisdictional error.
Of course, the Authority also could have rectified the information gap which existed by reason of the absence of the husband’s file by getting the file for itself, something which was in its purview. Even if I am wrong about the obligation of the Secretary to provide the husband’s file, I would in any event find that the Authority unreasonably exercised its s 473DC discretion in the instant case by refusing to retrieve the husband’s file for itself.
By the August 2021 Submission, the applicant expressly requested that the Authority do so (CB 331 at [3]). Cogent reasons were given by the applicant as to why the file was relevant to the review. Unlike the first Authority decision, by the second decision the Authority accepted the applicant’s explanation for the lack of detail. No adverse findings were made against the applicant in this regard in the first Authority decision. The Authority found it was plausible that, because of the husband’s imputed LTTE links, the applicant would have an increased fear of harm as his wife, and the mother of his son. The Authority’s decision in those circumstances to not seek further information on the basis that it had before its summary of the husband’s protection claims, was not reasonable. The husband’s claims were informative to a limited degree. The basis upon which another decision maker had accepted certain claims (albeit precisely which basis is not known) and the basis/bases on which those claims were said to give rise to a well-founded fear of persecution such that the husband had been granted a TPV, were clearly relevant to the review.
That is moreso when regard is had to [37] of the Authority’s reasons at which point it made findings about gaps in the evidence pertaining to the husband. The Authority concluded that, on the evidence before it, there was nothing to demonstrate the husband would be of ongoing interest to the Sri Lankan Authorities. It was not reasonable to so conclude when the dearth of evidence was something which was potentially easily rectifiable, the issue was potentially crucial and where the applicant had expressly requested that the information gap be filled.
By proceeding as it did, the Authority erred. Provision of the husband’s file could, realistically, have resulted in a different decision being made. It may have provided a clear basis upon which the applicant’s claim, derivative of the very basis upon which the husband had himself been granted protection, which might have been made out and accepted in relation to the applicant.
Accordingly, I find that the Authority’s failure to get the husband’s file in all of the foregoing circumstances, and where the Secretary had not provided it as part of the review material to be an error, material and therefore a jurisdictional error. Accordingly, the applicant should have the relief she seeks and I will so order.
Ground 2
By ground 2 the applicant alleges that the Authority failed to properly consider her claim to face a real chance of persecution in the form of sexual violence, as part of its s 36(2)(a) assessment.
The applicant says that the claim was squarely raised by the applicant in her original TPV application by which she stated:
(a)“women are still being raped in Kilinochchi by the Police and CID” (CB 89 at [68] to [71]);
(b)that she feared that she would be “kidnapped, raped and tortured or killed” (CB 89 at [68] to [71]); and
(c)to fear “sexual violence” in “other parts of Sri Lanka” (CB 90 at [76]).
the applicant reiterated these claims to the Authority by the August 2021 Submission (CB 333 at [21] to [25]).
The applicant points to the fact that at [42] (CB 746) of its reasons for decision the Authority accepted that she had suffered sexual violence in the past, and set out country information from a DFAT report at [50] to [51] (CB 748 to 749) which dealt with the prevalence of sexual violence in Sri Lanka. The Authority also accepted that the applicant would be returning to Sri Lanka without her husband and son (CB 750 at [53] to [54]). The applicant says that the last time the expression “sexual violence” appears in the Authority’s reasons for decision is paragraph [51] and that the decision omits any consideration, let alone conclusion, in respect of the claim.
The first respondent says that the Authority should be taken to have found that there was not a real chance of the applicant facing “gender based sexual violence” because:
(a)the applicant is married;
(b)“the most common form of sexual violence is intimate partner violence but that could not occur to her as her husband would not be in Sri Lanka”;[4] and
(c)the applicant would not be returning to a household with a female head because she would live in a house with her brother-in-law.
[4] First respondent’s written submissions filed 20 April 2022 at [65.2]
The first respondent says each of the above points was addressed at [53] (CB 750) of the Authority’s decision and that by the penultimate sentence of [53], the Authority should be taken to have considered and reached a decision about the sexual violence claim when it said:
Overall, I am not satisfied that the applicant faces a real chance of serious harm on account of being a Tamil woman from the Northern Province, her experiences in Sri Lanka or Australia, including her marriage to a former rehabilitee who was granted asylum in Australia.
The first respondent says that this was reiterated by the Authority at [58] (CB 751) of its reasons when it made a similar statement in relation to the applicant’s data breach claim.
The first respondent points to the Authority having a style of “economy, without headings, and dealing with more than one topic at the same time”[5] and relies on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] to [47] for the proposition that the Authority was not required to review every contention or piece of evidence. The first respondent also says that the Court should infer that the findings have been made (presumably at [53]) because otherwise, the lengthy discussion of the DFAT report at [50] to [51]:
…would have been a grand waste of time if the reviewer had not intended to reach a conclusion about that. So too would the comments about “sexual’ violence against women and girls” and gender-based violence against women” at [CB 742 at [29]].
[5] See First Respondent’s written submissions filed on 20 April 2022 at [68]
Consideration
The applicant’s claim to fear sexual violence in Sri Lanka was squarely raised by her for consideration from the outset, in her visa application. The suggestion that it could be caught within the scope of matters which are not required to be referred to in the sense considered in Applicant WAEE (supra) is not an available suggestion in the context of the present case, nor in the face of well-established authorities such as NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2006) 197 ALR 389. The claim was just that, a claim. Not an integer thereof or a piece of evidence in support of a claim. Having been properly raised as a basis of a specific form of harm the applicant claimed to fear on return to Sri Lanka, the Authority was required to deal with it.
I am not persuaded that the “catch-all” at the end of paragraph [53] can be taken as a conclusion in respect of the applicant’s claim, let alone could it be said to be a consideration of the claim.
I also reject the somewhat flippant suggestion by the first respondent that it was a “grand waste” of the Authority’s time[6] to have set out a swathe of country information about sexual violence if it was then not going to consider it. I am not satisfied that the inclusion of salient parts of a DFAT report at some length means that a somewhat generic cumulative finding two paragraphs later must be read as including a finding about that information.
[6] See First Respondent’s written submissions filed on 20 April 2022 at [69]
In XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27] found that a beneficial construction is to be adopted in construing the reasons of the decision-maker, stating:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
With a beneficial and contextual reading, the Authority’s decision is, as the applicant contends, entirely without consideration and conclusions in relation to her claim to fear sexual violence.
It is also no answer, and somewhat extraordinary, for the first respondent to suggest that a finding should be taken to have been made because the Authority found the applicant to be not at risk from sexual violence because sexual violence often occurs in a domestic setting and the applicant would be leaving her husband behind in Australia (see [65(b)] above).
The applicant did not claim to fear sexual violence from her husband. As such, the first respondent’s submission to this effect is inappropriate and ought not to have been made.
The applicant claimed to fear sexual violence as a woman returning to Sri Lanka, alone. Specifically, she feared such harm from the police and CID. To the extent it was suggested by the first respondent that only single women were at risk and the applicant would return as a married woman is also no answer given it may not be necessarily discernible in circumstances where she would be returning to Sri Lanka without her husband and son.
The failure of the Authority to properly consider and make findings about a claim which was clearly articulated, amounts to a failure of the Authority to exercise its jurisdiction and I find that the jurisdictional error alleged by ground 2 is made out.
Ground 3
By ground 3 the applicant alleges the same error as ground 2, but in respect of the Authority’s s 36 (2)(aa) assessment of the complementary protection criterion.
In the case of complementary protection, the applicant alleges the decision is “even more bereft” of any mention or consideration of the sexual violence claim and says that the Authority completely failed to identify, analyse or make a finding in relation to the claim. This is said to reinforce the contention in the previous ground that it was not considered as a claim at all. Having found error already in that regard, it is unnecessary to look to the complementary protection criterion for further ballast.
The first respondent expressly submits in relation to this ground that the Authority’s “catch-all” paragraph shows that the completely protection criterion was, for the same reasons as the Authority’s treatment of it in respect of the refugee criterion, addressed and dismissed.
Consideration
It is not in dispute that a decision-maker can have regard to anterior findings about the refugee criterion in considering whether an applicant meets the complementary protection criterion: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54] to [57] per Robertson J; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ.
However, in circumstances where the anterior factual findings relied upon are themselves the subject of a jurisdictional error constituted by having constructively failed to exercise jurisdiction by failing to consider the claim under the refugee criterion, this will not assist even if the cross-referencing exercise would be otherwise valid.
In my view the Authority entirely failed to consider the applicant’s claim to fear sexual violence in Sri Lanka. Even if I am wrong in that regard, and it did attempt to rely on its anterior factual findings in respect of the refugee criterion, then for the reasons given in respect of ground 2 that resulted in a jurisdictional error also.
Accordingly, I find ground 3 is also made out.
Conclusion
The applicant has succeeded in establishing jurisdictional error in respect of each of her 3 grounds of review. The writ relief sought will be granted.
I will hear the parties as to costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 7 March 2023
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