EIC18 v Minister for Home Affairs
[2019] FCCA 1244
•17 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EIC18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1244 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – applicants’ claims generally accepted but applicants’ fears found not to be well-founded and some harm not being serious or significant – whether the Authority erred in considering what amounted to serious or significant harm considered – whether the Authority overlooked an element or integer of the claims considered – whether the Authority misapplied the real chance test considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 91R |
| Cases cited: BFM16 v Minister for Immigration & Anor (2016) 310 FLR 257 El Merhabi v Minister for Immigration (2000) 96 FCR 375 |
| First Applicant: | EIC18 |
| Second Applicant: | EID18 |
| Third Applicant: | EIE18 |
| Fourth Applicant: | EIF18 |
| Fifth Applicant: | EIG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2335 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline, pro bono publico |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
ORDERS
The application as amended on 15 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2335 of 2018
| EIC18 |
First Applicant
| EID18 |
Second Applicant
| EIE18 |
Third Applicant
| EIF18 |
Fourth Applicant
| EIG18 |
Fifth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protections visas.
The following statement of background facts concerning the applicants’ claims for protection and the decision of the Authority on them is derived from the submissions of the parties.
There are five applicants who are the applicant father (first applicant), his wife (third applicant) and their three minor children. The second, fourth and fifth applicants are the daughters and son of the first and third applicants. Each made claims for protection in their own right.[1] The applicants are Sri Lankan nationals from the North Western province of Sri Lanka.[2]
[1] Authority Decision Record (DR) [14]-[19]
[2] DR [14]-[20], noting that the fifth applicant was born in Australia
The applicants arrived in Australia at Christmas Island as unauthorised maritime arrivals on 9 June 2013. The applicants lodged a combined application for SHEVs[3] on 1 September 2017. On 6 June 2018, the delegate refused to grant the applicants a SHEV.
[3] Safe Haven Enterprise Visa; Court Book (CB) 191-213
The first applicant claims to fear harm as an ethnic Tamil male from the North Western province of Sri Lanka who is of the low Kuravar caste and has previously been the subject of suspected LTTE[4] involvement.[5] In particular, the first applicant claimed that:
a)in 2006 members of the CID,[6] SLA,[7] Police and Grama Sevaka (village official) accused him of damaging a street light and harbouring LTTE members, and he was required to pay for a new street light;
b)from June 2006 he and his wife travelled extensively internationally for his safety, for tourism and religious reasons;
c)in August 2008 he was abused and threatened by drunken Sinhalese men;
d)in March and April 2013 the CID came to his house, accused him of hiding LTTE combatants, searched his house, and threatened him;
e)on 29 May 2013 he, his wife and children and his elderly father fled the country;
f)his cousin and friend had been taken in a “white van abduction”;
g)he feared harm from the Sri Lankan authorities and community due to his illegal departure, failed attempt at seeking asylum, as a Tamil from a low caste, and from his wife's family because she entered into a love marriage rather than a pre-arranged marriage, and he would not receive effective state protection; and
h)he is undergoing psychological counselling in Australia for anxiety and fear.
[4] Liberation Tigers of Tamil Eelam
[5] DR [14]
[6] Criminal Investigation Division
[7] Sri Lankan Army
The third applicant claimed to fear harm on similar bases,[8] and also relied on her husband's claims for protection.[9] In particular, she claimed to fear discrimination as a Tamil woman from the Kuravar caste, and further claimed to have suffered sexual harassment, assault and discrimination at SLA checkpoints and in the community. She further claimed to fear harm personally (and in respect of her husband and children) from her family due to her entry into a love marriage, and feared that she and her children would be at risk of harm including sexual harassment and assault as suspected LTTE supporters, Tamils, women of the Kuravar caste, and as failed asylum seekers.
[8] the third applicant listed on the application for judicial review and on the cover page of the Authority's decision at CB 336 is the first applicant's wife and referred to throughout the Authority's reasons as “the second applicant”
[9] DR [15]
The second, fourth and fifth applicants (the children of the first and third applicants) each claimed to fear physical or sexual harm or serious mental harm from the Sri Lankan authorities and/or community as Tamils of the Kuravar caste and children of failed asylum seekers.[10] They also claimed to fear harm from their mother's extended family, and that the Sri Lankan authorities would discriminatorily withhold protection because they were Tamil and Kuravar. The fourth applicant[11] further claimed that she had been sexually assaulted by a cousin in Sri Lanka when she was seven years old and to fear harm on that basis.[12]
[10] DR [16]-[18]
[11] The fourth applicant in the application for judicial review is referred to in the Authority’s reasons as the “third applicant”
[12] DR [16]
Authority decision
The Authority accepted that the applicants were Sri Lankan nationals of Tamil ethnicity who were members of the Kuravar caste,[13] had endured discrimination and harassment previously by reason of their caste, and would be identified as Kuravar on return due to their dialect, language and name.[14] The Authority further accepted the third applicant's claim to have been harassed by the community and members of the SLA due to her gender.[15] The Authority also accepted that the applicants were practising Hindus, accepted that they may have faced some discrimination from other Hindus due to their caste, but did not accept that they were prevented from accessing the temple and worshipping.[16]
[13] DR [20], [23]
[14] DR [21]-[23], [57]
[15] DR [24]-[25], [60]
[16] DR [26]-[27], [57]
As to the specific claims made by the applicants, the Authority:
a)noted that the applicants denied having LTTE involvement, and accepted that neither the first nor third applicant, nor their extended family, had such involvement;[17]
[17] DR [28]-[29]
b)noted that prior to 3 May 2018 the applicants had not made claims regarding their "love marriage" and harm from/dispute with their family, and noted that the third applicant never mentioned any claimed assaults or disputes. The Authority did not accept the first applicant's claim to have been physically assaulted by his wife's family, and found it implausible that he had been harmed by them in 2010 or that they were currently being threatened by them;[18]
c)accepted that the fourth applicant had reported being the victim of sexual assault (noting her age and the seriousness of the claim) but did not accept that the assault was by her cousin or that it was related to the claims regarding her parents' marriage.[19] The Authority otherwise accepted that she had symptoms of depression and anxiety as a result of her family's circumstances;[20]
d)accepted that the applicants had symptoms of PTSD,[21] depression and anxiety but noted that the need for and/or availability of treatment for their mental health did not form part of their claims for protection;[22]
e)accepted the first applicant's claim regarding the street light and that he was forced to buy a replacement light, but found that there were no other consequences of this incident beyond the accusation, search, and light replacement;[23]
f)accepted the first applicant's claim to have been threatened by Sinhalese men in 2008, but found that it was opportunistic rather than targeted and there were no further consequences as a result;[24]
g)accepted that the applicants would be aware of white van abductions occurring in 2006, but did not accept that they were related to, or had consequences for, the applicants;[25]
h)accepted that the applicants were visited twice in 2013 by the CID, questioned about the LTTE, that the CID searched their premises, and that the CID found nothing.[26] However, the Authority further found that the applicants were not genuinely suspected of LTTE involvement or of being a security threat;[27]
i)accepted that the applicants travelled internationally extensively between 2006-2013 and that the first to fourth applicants held valid Sri Lankan passports (the fifth applicant was born subsequently) and further accepted that they did not encounter problems in passing through checkpoints, or in obtaining their passports and visas;[28]
j)accepted that the first to fourth applicants departed Sri Lanka by boat in May 2013 and that they would be regarded as departing illegally, but found that the fifth applicant would not be considered to have departed illegally since he was born in Australia;[29] and
k)accepted that the authorities may have visited the first applicant's unattended home in the period after the applicants' departure, but did not accept that they were wanted by the authorities.[30]
[18] DR [30]-[33]
[19] DR [34]
[20] Ibid
[21] Post Traumatic Stress Disorder
[22] DR [35]
[23] DR [36], [49]
[24] DR [37], [49]
[25] DR [38]-[40]
[26] DR [41]
[27] DR [42], [49]
[28] DR [43]-[44]
[29] DR [45]
[30] DR [46]
The Authority proceeded to consider country information relating to imputed LTTE connections/Tamil ethnicity, in light of its findings above.[31] The Authority found that the chance of the applicants being on a stop or watch list was "remote".[32] In light of its previous findings and this information, the Authority was not satisfied that the applicants faced a real chance of any harm on the basis of being imputed with a pro-LTTE political opinion due to their background, ethnicity or caste and was not satisfied that the applicants held a well-founded fear of persecution on this basis.[33]
[31] DR [49]-[56]
[32] DR [50]
[33] DR [56]
The Authority also considered country information relating to Kurava caste discrimination generally and as directed to Tamil women of the Kurava caste,[34] in light of its earlier findings. The Authority accepted that the applicants may face some societal discrimination due to their caste but was not satisfied that this amounted to serious harm.[35] The Authority likewise accepted that the second to fourth applicants may possibly face societal discrimination and harassment (by reason of their ethnicity, caste and gender),[36] but found that the chance of being subject to an opportunistic assault or serious harm was remote and there was no evidence that the authorities or military were actively perpetrating violence against women on behalf of the state.[37] It also did not accept that they would be unable to access police services.[38] The Authority further found the chance of the fourth applicant being assaulted again to be remote.[39]
[34] DR [57]-[68]
[35] DR [59]
[36] DR [62], [68]
[37] DR [64]
[38] DR [66]-[67]
[39] DR [65]
Finally, the Authority accepted that the applicants, if returned to Sri Lanka, would be considered failed asylum seekers (or children of failed asylum seekers) but was not satisfied that they would be subject to a real chance of harm.[40] The Authority had regard to relevant country information,[41] and was not satisfied that the applicants would come to the particular attention of the authorities,[42] nor was it satisfied that the treatment under the Immigrants and Emigrants Act would constitute serious harm or be applied in a discriminatory manner.[43] Nor did it accept that any subsequent monitoring or social stigma amounted to serious harm, even in conjunction with treatment arising from their caste and gender.[44]
[40] DR [69]
[41] DR [69]-[76]
[42] DR [71]
[43] DR [73]-[74]
[44] DR [76]
On these bases, the Authority was not satisfied that the criteria for s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) were met.[45] Nor was it satisfied, on the basis of the same findings, that the requirements of s.36(2)(aa) were met.[46] The Authority further found that the applicants did not meet the family unit criterion contained in s.36(2)(b) or (c).[47]
[45] DR [77]
[46] DR [78]-[85]
[47] DR [86]-[87]
The current proceedings
These proceedings began with a show cause application filed on 23 August 2018. The applicants now rely upon an amended application filed on 15 February 2019. The grounds in that application are:
1. The [Second] Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error.
Particulars in relation to Ground 1
(i) The [Second] Respondent failed to inform the Applicant of the nature of the material before it.
(ii) The [Second] Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iii) The [Second] Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iv) In dealing with the review of the Applicant’s claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the [Authority] considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the [Second] Respondent, suffered inherently and by definition, from bias.
2. The Second Respondent asked itself the wrong question or addressed the wrong issue, and failed to take into account relevant considerations, when deciding what constituted serious harm within the meaning of s.5J(4)(b) of the Migration Act 1958 (Cth) (the Act), and significant harm within the meaning of ss.36(2)(aa) and 36(2A) of the Act, in relation to the First and Second Applicants, and thus fell into jurisdictional error.
Particulars in relation to Ground 2
(i) The Second Respondent accepted that the First and Second Applicants experienced bullying and discrimination including having rocks thrown at their house.
(ii) The Second Respondent accepted that the Second Applicant, when passing through army checkpoints, would be sexually harassed and touched with impunity, by members of the SLA, as well as by men in the community.
(iii) The Second Respondent accepted that when the Applicants approached an army checkpoint the First Applicant would often be [waved] through whilst his wife, the Second Applicant was taken into a room to be sexually assaulted, thus leaving the First Applicant powerless to help her.
(iv)The Second Respondent failed to make any finding as to the psychological impact on the First Applicant, and whether this amounted to serious or significant harm, it being a matter arising clearly on the materials before it.
(v) Despite all of the above, the Second Respondent failed to find that the First and Second Applicants had been subjected to serious or significant harm.
The only evidence I have before me is the court book lodged on 10 October 2018.
The oral argument at the trial of this matter on 13 May 2019 was limited to the second ground. I agreed to dispense with a show cause hearing and the matter proceeded on a final hearing basis.
Consideration
Ground 1 – the asserted denial of procedural fairness
The applicants concede that the first ground cannot succeed in this Court. The same ground was advanced in DYG18 & Ors v Minister for Home Affairs & Anor.[48] I reject Ground 1 for the same reasons as those given in DYG18. Those reasons are consistent with the Minister’s submissions in relation to the first ground, with which I also agree.
Ground 2 – did the Authority err in deciding what constituted “serious harm”?
[48] [2019] FCCA 1142
Applicant’s contentions
The applicants are low caste or “Kuravar” Tamils from Sri Lanka. They claimed to have endured bullying and discrimination as a result of their caste, including having rocks thrown at their house.[49]
[49] DR [22]; CB 342
The third applicant claimed there was always trouble at SLA checkpoints, where men would be sexually suggestive and would sexually harass and touch her with impunity.[50]
[50] Ibid.
Those checkpoints included at Batticaloa in the East, Jaffna in the North, and in Colombo, when the third applicant was travelling away from her home at Puttalam in the North West Province.[51]
[51] DR [15]; CB 340
The Authority accepted these claims. It stated: [52]
On the basis of the applicants’ presentation at interview and their detailed and consistent claims I accept that they are members of the Kuravar caste in Sri Lanka and they have endured societal discrimination and harassment as described.
(applicant’s emphasis retained)
[52] DR [23]; CB 343
The third applicant also described sexual harassment and sexual assault in the community, as a result of her gender and caste.[53]
[53] DR [24]-[25]; CB 343
The Authority accepted that claim too, as well as repeating its acceptance of the third applicant’s claims of sexual assault and harassment at army checkpoints. It stated: [54]
Given the level of detail provided by the [third] applicant and her consistent and forthright account of her treatment in the community, I accept that she was harassed from time to time by both men in the community when she lived in Sri Lanka and members of the SLA, particularly when she had to pass through army checkpoints during the conflict.
[54] DR [25], [60]; CB 343 and 352
However, the Authority found that the third applicant did not have a well-founded fear of persecution on return to Sri Lanka.[55] It arrived at that conclusion for the following reasons.
[55] DR [68]; CB 354
First, on the basis that sexual harassment and violence against women, which was undertaken with impunity during the conflict, had much improved.[56] In so reasoning, the applicants’ contention is that the Authority overlooked its own finding that the third applicant’s real chance of persecution did not arise from her being a woman simpliciter, but from her being a Kuravar woman, and that sexual assaults perpetrated against her in the community were not on the basis of what happened during the conflict, but on the basis of her being a Kuravar woman, a situation which the Authority also acknowledged has been a problem for such women for thousands of years.[57]
[56] DR [61]; CB 352
[57] DR [22]-[23]; CB 342-343
Secondly, on the basis that, whilst women in the north and east continue to suffer from the scars of the conflict, the applicants lived in the north-west.[58] In so reasoning the Authority is said to have overlooked its own finding that the third applicant was not claiming a well-founded fear on the basis of the conflict in the north and east, but from being a Kuravar woman suffering sexual assault and harassment in the community in general and at army checkpoints when she was required to travel in the north, the east, or in Colombo.
[58] DR [61]; CB 352
Thirdly, on the basis that with the end of the conflict and the downsizing of the army, the level of sexual assault against women in general has decreased, except in the north or east of the country, and the applicants had no intention of moving to the north or east.[59] In so reasoning the Authority again is said to have overlooked its own findings that:
a)the third applicant’s claim to fear persecution depended on her being a Kuravar woman, not a woman simpliciter; and
b)the third applicant’s claims to be assaulted and harassed arose out of when she travelled to the north, east and to Colombo, she having lived, at all relevant times in the north west. The Authority also overlooked that a decrease in the incidence of sexual assaults is different from an elimination thereof, and does not preclude a real chance thereof.
[59] Ibid.
Fourthly, that the majority of women continuing to experience sexual violence, assault and harassment are either former LTTE members, or women from female headed households, and that the third applicant fell into neither category.[60] In so reasoning, the Authority is said to have overlooked its own finding that, whatever may have happened to the majority of women, the third applicant’s fears arose not from being the head of a household or from being an LTTE member, but from being a Kuravar woman. It thus focussed on an irrelevant and distracting fact.
[60] DR [63]; CB 353
The applicants contend that if, in reaching its conclusions, the Authority had not failed to focus on what was relevant (as embodied in its own findings), and had not taken into account irrelevant considerations, it would have had to conclude that the third applicant, if returned to Sri Lanka, would continue to be at risk of regular sexual harassment and assault from within the Sri Lankan community, and would continue to be at risk of the same from the SLA should she need to travel outside of the north-west of the country.
The Tribunal also is said to have failed to consider the psychological impact on the first applicant of being told at army checkpoints to go on through, whilst his wife was taken inside to be sexually assaulted,[61] and the psychological impact on him of the sexual harassment carried out on his wife by members of the Sri Lankan civil community.
[61] DR [24]; CB 343
The applicants submit that the question then becomes whether a real chance of serious harm is seen to arise from the physical risks the third applicant will face if returned to Sri Lanka and the psychological risks the first applicant will face if returned to Sri Lanka.
The applicants contend that, from the matters accepted by the Authority, if returned to her country of origin, the third applicant will face, among other things, regular sexual assault and sexual harassment, which will constitute a well-founded fear of persecution within the meaning of s.5H(1)(a) of the Migration Act.[62]
[62] see [18]-[23] above
Further, the applicants contend that, from the matters which the Authority has accepted, this well-founded fear of the third applicant will be for reasons of race, religion or membership of a particular social group within the meaning of s.5J(1)(a) of the Migration Act.
The applicants assert, from the matters which the Authority has accepted, that there is a real chance[63] that the third applicant would be persecuted for one or more of those reasons, within the meaning of s.5J(1)(b) of the Migration Act.
[63] Chan v Minister for Immigration (1969) 169 CLR 379
The applicants contend, from the matters which the Authority has accepted, that persecution would relate to all parts of the country, within the meaning of s.5J(1)(c) of the Migration Act. In relation to sexual harassment and sexual assault by members of the wider Sri Lankan community, that is ipso facto self-evident. In relation to sexual harassment and assault by the SLA, whilst the third applicant has hitherto only experienced that, for the most part, in the north and the east of the country and in Colombo, the SLA is, again self-evidently, an arm of the state, which will be present in all parts of the country. The risk of encountering the SLA in the north-west of the country is less, on the Authority’s finding, but the applicants contend that it cannot be said that there is not a real chance.[64]
[64] Ibid per Dawson J at 397-8, per McHugh J at 429
The applicants submit that the sexual harassment and sexual assault which the third applicant would have to endure if returned to Sri Lanka, would constitute serious harm within the meaning of s.5J(4)(b) of the Migration Act. Section 5J(5) of the Migration Act lists some instances of what would constitute serious harm for the purposes of s.5J(4)(b). Sexual harassment would come within the meaning of “significant physical harassment of the person” in s.5J(5)(b) and sexual assault would come within the meaning of “significant physical ill-treatment of the person” in s.5J(5)(c) of the Migration Act.
As McHugh J said in Chan, “Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution.”[65] Both sexual assault and sexual harassment constitute a disregard of human dignity.
[65] Ibid at 430
The persecution that the third applicant would face, and the serious harm she would suffer as a result, are said to arise due to systematic and discriminatory conduct within the meaning of s.5J(4)(c) of the Migration Act.
As Crennan J explained in VSAI v Minister for Immigration,[66] in order to establish that conduct is “systematic”, it would be wrong to require the applicant to show anything more than that the conduct she experiences is deliberate or premeditated, that is, motivated. It is not necessary to show the conduct is widespread. Indeed, in relation to sexual assault, depending on the circumstances, one act may suffice.[67]
[66] [2004] FCA 1602
[67] at [53]
Likewise, McHugh J has emphasised that it is “not a prerequisite of obtaining refugee status that a person fears being persecuted on a number of occasions or ‘must show a series of co-ordinated acts directed at him or her…’”.[68]
[68] Minister for Immigration v Ibrahim (2000) 204 CLR 1 at [99]
As the Authority itself cites, the sort of conduct giving rise to the persecution the third applicant would face “has existed for thousands of years in Sri Lanka and, as a result, it is deeply embedded in the social, cultural and religious fabric of society.”[69] The third applicant has been, and would be again, a victim of this sort of persecution, which, as Crennan J states, is deliberate or premeditated, that is, motivated.
[69] DR [23]; CB 343. Citing Basil Fernando: The Profound Impact of Caste in Contemporary Sri Lanka, Colombo Telegraph, 19 February 2017
The applicants submit that what the third applicant has, and would suffer again, is also “discriminatory” within the meaning of s.5J(4)(c). Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In the well-known passage in Ram v Minister for Immigration,[70] Burchett J stated, “People are persecuted for something perceived about them or attributed to them by their persecutors.”
[70] (1995) 57 FCR 565 at 568
As the Authority itself explains, the “something” which is perceived about Kuravar women, and which gives rise to their persecution are that they are held in low esteem, as being unclean, uneducated, uncivilised and uncultured, and it is these perceived attributes which gives their persecutors “justification” for subjecting them to sexual assault and harassment.[71]
[71] DR [22]-[24]; CB 342-343
The Authority points out that Article 12(2) of Sri Lanka’s Constitution guarantees against sexual discrimination, but it then goes on to explain that nonetheless “women still face a moderate risk of societal discrimination”. It accepts that “in this context it is possible that the female applicants may face [a] real chance of harm in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender.” [72] However, despite this, and despite its own findings about the sexual assault and harassment suffered by the third applicant, the Authority still concludes that the treatment the third applicant would face would not rise to the level of serious harm.[73] Its approach is said to be illogical on its face. To arrive at such a conclusion, the Authority must therefore be addressing the wrong issues or asking itself the wrong questions.
[72] DR [62]; CB 352-353
[73] DR [68]; CB 354
The applicants contend that, by definition, the third applicant does not have the benefit of state protection within the meaning of s.5J(2) of the Migration Act in relation to sexual assault and harassment by members of the SLA, as her persecutors there are agents of the state. Nor is she afforded state protection against members of the general community who would wish to assault or harass her, as such has been happening to women of her caste for thousands of years, as the Authority acknowledges.[74]
[74] DR [23]; CB 343. Citing Basil Fernando: The Profound Impact of Caste in Contemporary Sri Lanka, Colombo Telegraph, 19 February 2017
Indeed, failure of state protection, can amount, in and of itself to persecution within the meaning of the Migration Act. In Minister for Immigration v Khawar,[75] Gleeson CJ and Kirby J held that where persecution consists of the criminal conduct of private citizens together with the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the Convention nexus is satisfied either by the motivation of the criminals or the state.[76]
[75] (2002) 210 CLR 1
[76] Ibid at [120] per Kirby J and at [31] per Gleeson CJ
In the same case, McHugh and Gummow JJ stated that the persecutory harm was constituted solely by the selective denial of a fundamental right otherwise enjoyed by nationals, namely access to law enforcement authorities to secure a measure of protection against violence to the person. On either analysis the third applicant also faces a well-founded fear of persecution by the failure of state protection itself.[77]
[77] Ibid at [76], [84]-[85], [87]
The applicants accept that if the Court does not accept the third applicant’s argument in relation to this ground, then the first applicant’s claim falls with it. If, however, the Court accepts the third applicant’s argument, then the first applicant succeeds also.
This is said to be because, clearly arising on the materials, as a matter of basic human understanding, if the third applicant suffers from a well-founded fear of persecution resulting from sexual harassment and sexual assault, then her husband, the first applicant, likewise suffers from a well-founded fear of persecution, deriving from the serious psychological harm that of necessity he will suffer, having to stand by helpless while his wife is assaulted or harassed. See for example the situation where the first applicant is waved through at SLA checkpoints, whilst his wife is taken inside to be assaulted.[78]
[78] DR [24]; CB 343
The Revised Explanatory Memorandum to the Bill introducing s.91R into the Migration Act, the precursor of the current s.5J(5), emphasised that the serious harm test does not exclude serious mental harm.[79]
[79] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 at [25]
This is consistent with the principle that severe harm to a member of an applicant’s family can amount to persecution of the applicant.[80] In NBCY v Minister for Immigration,[81] Tamberlin J held that both in principle and on authority “persecution”, in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment.
[80] See El Merhabi v Minister for Immigration (2000) 96 FCR 375
[81] [2004] FCA 922 at [25]
In BFM16 v Minister for Immigration & Anor,[82] I held that the Tribunal should have considered whether the fears and hardships confronting the applicant’s family posed a risk of the applicant experiencing psychological harm.[83] Importantly I held that even though that risk was not expressly raised by the applicant in that case, it sufficiently clearly arose from the material.
[82] following Minister for Immigration v SZQOT (2012) 206 FCR 145
[83] (2016) 310 FLR 257 at [24]
That decision is said to be on all fours with the case at hand, where the first applicant’s exposure to the abuse of his wife, is clearly apparent from the material, as for example where the first applicant would be waved through at army checkpoints while his wife was taken inside to be assaulted.[84]
[84] DR [24]; CB 343
Such matters were before the Authority and should have been considered by it for the purpose of deciding whether the first applicant would be likely to suffer from a well-founded fear of persecution arising from his experiencing psychological harm. The applicants submit that the failure of the Authority to do so gave rise to jurisdictional error.
Minister’s contentions
By this ground, the applicants assert that the Authority failed to properly apply the well-founded fear of persecution test outlined in s.5J of the Migration Act. The applicants severally take issue with the question the Authority asked itself, the considerations it took into account, and the conclusions it ultimately reached on the basis of the material before it.
An essential component of the “well-founded fear of persecution” test is the “real chance” test in s.5J(1)(b) of the Migration Act. A “real chance” means there must be a “substantial, as distinct from a remote chance” of that persecution occurring.[85]
[85] See s.5J(1)(b) of the Migration Act; Chan at 389
Determining whether a “real chance” of persecution exists involves “making findings as to primary facts, identifying the inferences which may properly be drawn from [them] and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned” to Sri Lanka.[86]
[86] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 294
The Minister submits that this was the process which the Authority adopted in the present case. The Authority set out the appropriate statutory test,[87] considered the applicants' evidence and claims at length, and had regard to comprehensive independent country information when assessing the applicants' claims.[88]
[87] DR [47]-[48]
[88] DR [49]-[76]
Critically, the Authority specifically considered the third applicant's claims to fear harm on the basis of her profile as a woman of the Kuravar caste.[89] In doing so, the Authority had regard to comprehensive independent country information which informed its decision regarding the risk of harm the third applicant would face on her return to Sri Lanka.[90] On the basis of the materials before it, the Authority was ultimately not satisfied that there was a real chance the third applicant would face serious harm on the basis of her profile as a Kuravar woman.[91]
[89] DR [15], [22]-[25], [60]-[68]
[90] DR [61]-[68]
[91] DR [68]
The Minister submits that the Authority did not fail to take a relevant consideration into account when assessing the risk of harm faced by the third applicant.
Contrary to the argument put by the applicants, the Authority expressly considered the risk of harm faced by the third applicant as a Tamil woman of the Kuravar caste.[92] In particular, the Authority had regard to the second, third, and fourth applicants' claims to fear harm "as Tamil Kuravar women and girls" and that they would be denied assistance on the basis of their ethnicity and caste.[93]
[92] See the chapeau to DR [60]-[68] and the segment's contents generally
[93] DR [60]
In assessing these claims, the Authority had regard to the 2017 report of the UN Special Rapporteur on minority issues in Sri Lanka and the country information report prepared by DFAT[94] in 2018.[95] This country information directly engaged with the substantive issues relevant to the applicants' claims, including mistreatment of women and minorities during the conflict and developments in this regard following the war (up to the present). Further, the Authority explicitly considered the country information insofar as it dealt with the fact that "minority communities often face unique challenges and multiple or intersecting forms of discrimination emanating from their gender and their status as persons belonging to minorities" and observed that females may face a real chance of harm "on the basis of the combination of their ethnicity, caste, and gender".[96]
[94] Department of Foreign Affairs and Trade
[95] DR [61]
[96] DR [62]
Contrary to the applicants' submissions, the Authority did not focus on "an irrelevant and distracting fact" when referring to country information about the harassment faced by the majority of females in Sri Lanka. Rather, it had regard to country information which was directly relevant to the risk of harm that the applicants would face as females and relied on that information when assessing the specific facts of the applicants' case.
The Minister submits that no error is established by the Authority's assessment of the applicants' claims against independent country information in this case. It is well established that the selection of country information, and assessment of the weight to be placed upon it, are matters for the decision-maker in the Authority's position.[97] The Authority properly had regard to relevant country information which was directly relevant to the applicants' claims and assessed those specific claims in light of this information.[98]
[97] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; QAAT v Minister for Immigration (2005) 149 FCR 299, 311; see also BPC16 v Minister for Immigration [2018] FCA 920, at [60]-[63] per Kerr J and DLC17 v Minister for Home Affairs [2018] FCA 1226 at [31] per Banks-Smith J (where their Honours held that the principles in NAHI and QAAT are applicable to reviews conducted by the Authority)
[98] DR [60]-[68]
Furthermore, the Minister submits that the applicants' second ground of review, in truth, seeks to cavil with the merits of the Authority's decision, and amounts to an expression of disagreement with the Authority's treatment of the materials before it and the conclusions it ultimately reached. Such an approach seeks impermissible merits review of the Authority's decision and ought to be rejected.
Having considered the applicants' claims and taken relevant country information into account, the Authority accepted that the female applicants may face a degree of societal discrimination and harassment due to their status as Tamil females of the Kuravar caste.[99] However, the Authority concluded that such treatment would not amount to serious harm and further found that the risk of the female applicants being mistreated in the manner the third applicant had been during the civil conflict was remote.[100]
[99] DR [68]
[100] DR [61], [65], and [68]
The applicants submit that the Authority's approach and conclusions in this regard are illogical on their face.[101] On the contrary, the Minister submits that the Authority's approach was orthodox and its conclusions reasonably open on the evidence for the reasons it gave.
[101] applicants’ submissions at [27]
The Minister submits that the Authority properly discharged its statutory obligations pursuant to Part 7AA of the Migration Act in this case. No unreasonableness is disclosed in the Authority's reasons. To establish unreasonableness, it must be shown that the decision-maker's findings lacked any “evident and intelligible justification”[102] or were “arbitrary”, “capricious” or “clearly unjust”.[103] That is, the decision “is one at which no rational or logical decision maker could arrive on the same evidence.”[104] The Authority's decision in this case does not reflect any of those descriptions.
[102] Minister for Immigration v Li [2013] HCA 18 at [76]
[103] Minister for Immigration v SZMDS [2010] HCA 16 at [130]
[104] Ibid.
The Minister submits that the Authority's approach to assessing the applicants' claims in this case reveals that it properly understood and applied the relevant law, took into account relevant country information, and reached its conclusions on the basis of all the relevant materials before it. The Authority's ultimate conclusion that the applicants did not face a real chance of serious harm on return to Sri Lanka was reasonably open on the evidence before it and for the cogent, considered reasons it gave. The applicants' disagreement with this conclusion does not negate its validity.
Accordingly, the Minister submits that no jurisdictional error is established on the basis of Ground 2.
Resolution
I accept the Minister’s submissions in relation to the Refugee assessment. The relevant reasoning of the Authority is at [60]-[68] as follows:[105]
[105] CB 352-354
I accept that the [third] applicant has experienced both discrimination and harassment as a Tamil Kuravar woman in the community and when passing through SLA checkpoints across Sri Lanka. I also accept that the third applicant has recently reported that she was subject to a sexual assault. The second, third and fourth applicants submit that as females returning to Sri Lanka, and in particular as Tamil Kuravar women and girls, they face a real chance of sexual abuse and harassment on that basis by the authorities, members of the community and the first applicant's extended family. They fear that they would be denied access to state protection because of their ethnicity and caste. They also claim that because the first and second applicants are illiterate this would exacerbate the risk of them being subjected to persecutory treatment because they are likely find it difficult to communicate and present their case to the authorities.
Country information supports the applicants' claims that the authorities acted with impunity during the conflict in terms of both sexual harassment and violence against women, but the UN Special Rapporteur on minority issues found in 2017 that conditions for women are much improved since the war[106]• She noted that women in the north and east continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization, however, the applicants were from the north west. In the last stages of the war and its aftermath, human rights abuses against the civilian population by both sides to the conflict were rife, including sexual and gender-based violence. DFAT reports in 2018 that the government no longer restricts travel to the north and east. It removed military checkpoints on major roads in 2015. Military involvement in civilian life has diminished, although military involvement in some civilian activities continues in the north[107]• Given that it is nearly ten years since the end of the conflict, the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army and the applicants have not described any intention of moving [to] the north or east of Sri Lanka having spent most or all of their lives in the north west, I am satisfied that the likelihood of them being subject to sexual violence by the Sri Lankan authorities, including the SLA is remote.
Article 12(2) of Sri Lanka's Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol. However, DFAT reports that women still face a moderate risk of societal discrimination[108]• There are also reports that men and girls belonging to minority communities often face unique challenges and multiple or intersecting forms of discrimination emanating from their gender and their status as persons belonging to minorities. This is particularly acute in Sri Lanka, where women's participation in decision-making is strikingly low and gender-based violence is prevalent[109]• In this context it is possible that the female applicants may face [a] real chance of harm in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender.
The UN Secretary-General on Conflict Related Sexual Violence reported gender-based crimes in all nine provinces of Sri Lanka and this includes domestic violence[110]. International and local observers attribute the higher prevalence of sexual violence and domestic abuse in the north and east due to the conflict and militarisation in these regions but note that this has decreased. The majority of women experiencing harassment and sexual violence were reported to be former LTTE members or women from female headed households. Female headed households include mainly war widows but also the never married, disabled women, elderly women and family members and activist[s] of the disappeared[111].
I am satisfied that the second applicant and her children would be returning to Sri Lanka with the first applicant as part of a family unit with a male head of household. They have not expressed a desire to settle in the north [or] east of Sri Lanka having family in the north west and they have not reported any threat of domestic violence in their immediate family. As such I am not satisfied that the chance of the applicants being subject to an opportunistic assault by a member of the community is anything more than remote. In addition to this, the evidence before me does not indicate that the Sri Lankan military or other authorities are currently actively perpetrating violence against women on behalf of the state.
The applicants have expressed fear of harm from the second applicant's extended family but I have not accepted that the second, third or fourth applicant are at any risk of harm from those family members. Some seven years have passed since the third applicant claims to have been sexually assaulted, and the attacker does not appear to have harmed the third applicant in the two years prior to her departure from Sri Lanka. The applicant's family are now aware of this claim and I consider that the chance of the third applicant being assaulted by this person again to be remote.
I have not found that the female applicants face a real chance of serious harm on their return to Sri Lanka but for completeness I have considered their claim that they would be precluded from accessing state protection for reasons of their gender, ethnicity and caste. In Sri Lanka, the Prevention of Domestic Violence Act (2005) criminalises rape and domestic violence. In October 2016, the National Police Commission designated provincial senior female law enforcement officers to respond to sexual harassment claims[112]. In November 2016 the Sirisena Government launched a national action plan to address sexual and gender-based violence[113]. The Sri Lankan Police is responsible for enforcing criminal and civil law, and maintaining general law and order. It operates under the purview of the Ministry of Law and Order. It has a notional strength of around 85,000 members, and maintains an additional approximately 6,000 member paramilitary Special Task Force. Overall, DFAT assess that the Sri Lankan Police is a trained and active force[114]. DFAT does report that very few police officers are female. Thirty-six police stations across Sri Lanka have 'Women and Child Bureaus', but local sources claim there are not enough female officers to staff the bureaus, reducing the ability of women to report crimes and seek support[115]. Country information does not report any incidents of Sri Lankans being refused access to police services due to caste.
The applicants' claim that the first and second applicants' lack of literacy would make it difficult for them to access police services as they would have difficulty stating their case. Country information supports that language remains a significant barrier to effective policing, particularly in the north and east. Police recruitment is national and officers rotate throughout the country during their careers[116]. The applicants have lived since 2003 in majority Sinhalese area and have advised that they have skills in both Tamil and English language. They still have family in Sri Lanka. They have taken many trips overseas and they managed to obtain passports and visas to travel to a range of countries including India, Mauritius, Malaysia and Singapore. They have made statements about their claims in Australia and the third applicant has provided a statement about being assaulted in English. In all the circumstances I do not accept that the first and second applicant's literacy skills would prevent any of the women in the family from accessing police services if required.
Overall, in the context of country information and the applicants' previous experience living in Sri Lanka, I accept that the second, third and fourth applicants may face a degree of societal discrimination and harassment as Tamil women of the Kuravar caste. However, I am not satisfied that such treatment amounts to serious harm. Furthermore, I find the risk of them being subject to serious harm including violence from the authorities, the community or family members to be remote. I am not satisfied that the second applicant or her daughters have a well-founded fear of persecution on the basis of being Tamil Kuravar females on their return to Sri Lanka.
[106] UN Human Rights Council, "Report of the Special Rapporteur on minority issues on her mission to Sri Lanka A/HRC/34/53/Add.3", 31 January 2017, CISEDB50AD346, 47
[107] DFAT, "DFAT Country Information Report Sri Lanka", 23 May 2018, CIS78839411064, 2.35
[108] DFAT, "DFAT Country Information Report Sri Lanka", 23 May 2018, CIS7B839411064, 3.84
[109] UN Human Rights Council, "Report of the Special Rapporteur on minority issues on her mission to Sri Lanka A/HRC/34/53/Add.3", 31 January 2017, CISEDB50AD346, 46
[110] DFAT, "Sri Lanka - Country Information Report", 23 May 2018, CIS7B839411064, 3.87
[111] Ibid, 3.92-3.96
[112] Ibid, 3.87
[113] Ibid, 3.88
[114] DFAT, "DFAT Country Information Report Sri Lanka", 23 May 2018, CIS7B839411064, 5.8
[115] Ibid, 5.10
[116] Ibid, 5.9
The acceptance of the applicants’ claims of past harm did not determine the outcome in this case. It was open to the Authority to conclude that the female applicants would not face a real chance of harm at the hands of the Sri Lankan state. Further, the Authority was entitled to conclude that effective state protection was available against the risk of harm from non state actors, and that such assistance would not be withheld for a Convention reason. No element or integer of the claims was overlooked and the Authority did not misapply or misconstrue the real chance test.
I also accept the Minister’s submissions insofar as they relate to the complementary protection assessment. The relevant Authority reasoning is at [82]:[117]
I have also accepted that as Tamil women of the Kuravar caste the second, third and fourth applicants may be subject to discrimination and harassment. However, likewise I am not satisfied that the treatment they may face as Tamil Kuravar women who are returning asylum seekers amounts to significant harm as defined. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am also not satisfied that it amounts to pain or suffering that is cruel or inhuman in nature, severe pain or suffering, or extreme humiliation for the purposes of the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
[117] CB 357
In my view, the Authority in its complementary protection assessment did consider the risk posed by sexual harassment as degrading treatment. The Authority found that the risk posed did not reach the level of a real risk of significant harm, and that assessment was within the range of available conclusions on the material before the Authority. Nothing was overlooked.
Conclusion
The applicants have failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will do order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 June 2019
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