FLG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 720
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 720
File number(s): SYG 3856 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 20 May 2025 Catchwords: MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that it was unreasonable, illogical, irrational and against the weight of the evidence.
Legislation: Migration Act 1958 (Cth), ss. 5, 5H, 5J, 5LA, 36, 474 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 4 March 2024 Place: Sydney Counsel for the Applicants: Mr G Foster Solicitor for the Applicants: Sentil Solicitor Solicitor for the Respondents: Mr L Dennis (Mills Oakley) ORDERS
SYG 3856 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLG17
First Applicant
FLH17
Second Applicant
FLI17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 27 November 2017.
2.A writ of mandamus issue directing the second respondent to determine according to law the reference made to it on 6 September 2017.
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 CAMERON
INTRODUCTION
The applicants are citizens of Sri Lanka and arrived in Australia by boat on 13 December 2012.The second and third applicants are, respectively, the daughter and granddaughter of the Applicant (Applicant). According to the decision record of the second respondent (IAA), on 18 February 2016 the Applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) with what is now the Department of Home Affairs (Department) , alleging that she feared persecution in Sri Lanka because she left Sri Lanka illegally and was suspected of involvement with the Liberation Tigers of Tamil Eelam (LTTE). Those claims were later expanded. The second and third applicants did not make claims of their own and were included in the Applicant’s application as members of the one family unit. On 30 August 2017 the Applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The application was then reviewed by the IAA.
The applicants were unsuccessful before the IAA and applied to this Court for judicial review of its decision. The third applicant was removed as a party by way of consent orders made on 17 April 2023.
In this judicial review proceeding the Court cannot rehear the remaining applicants’ application for visas. Its task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the IAA’s decision will be set aside and the matter remitted to be determined according to law.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
...
Together, ss.5, 5H and 5J of the Act provide that a person will not have a well-founded fear of persecution, and so not be a refugee for the purposes of the Act, if “effective protection measures” are available to the person in a receiving country, relevantly in this case, their country of nationality. “Effective Protection measures” are defined in s.5LA of the Act as follows:
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
BACKGROUND FACTS
The Applicant’s claims for protection were made in her visa application, in a statutory declaration dated 11 December 2015, and at an interview with the Delegate on 4 August 2017.
The Applicant’s representatives also provided the IAA with written submissions dated 24 August 2017, 4 October 2017, 19 October 2017 and 15 November 2017. On 5 October 2017 the Applicant provided further written submissions, a written statement and copy of an arrest warrant document.
In its decision the IAA summarised the facts alleged in the Applicant’s SHEV application. As summarised by the IAA, the Applicant relevantly made the following claims:
(a)she feared harm in Sri Lanka because she was a Tamil from the Eastern Province of Sri Lanka;
(b)although none of her family were members of the LTTE, for around one year in 2001 her husband had been forced to cook and clean for the LTTE, and she feared harm in Sri Lanka on the basis of her and her family’s imputed profiles as LTTE supporters;
(c)in 2003, her husband was taken by the Sri Lankan Army (SLA), set on fire and subsequently died in hospital. She was then threatened by the SLA and told to report her husband’s death as a suicide;
(d)after her husband’s death, she and her family were vulnerable for being a single Tamil woman with children living in a female-headed household and she feared harm in Sri Lanka on that basis;
(e)from 2005 onwards, she had to move their home frequently because of conflicts in the area where they lived;
(f)the LTTE had attempted to take one of her daughters and, in 2007 or 2009, they abducted one of her sons, although he had been able to escape and return home;
(g)following the civil war’s end, the Criminal Investigation Division (CID) would regularly visit her to ask about her children’s involvement with the LTTE and threatened to take the children to an SLA camp;
(h)in 2011, after her son “J” married his wife “M” and moved to M’s home province for around six months, the CID investigated and enquired why he had moved;
(i)in 2012 she became fearful that J would be abducted by the CID or the SLA and arranged for him to move to Australia. When the SLA came to her house to investigate his departure, she and M were beaten with the butt of a gun and the SLA threatened to kill her children if she did not give them information about J.
(j)in September 2012, she attempted to leave Sri Lanka illegally by boat but was captured by the Sri Lankan Navy (SLN) and detained for two days, after which she was taken to court and bailed. She feared that if she returned to Sri Lanka, she would be arrested and tortured as a result of the ongoing court proceedings against her; and
(k)on 26 November 2012, the first, second and third applicants and M successfully fled Sri Lanka. She feared harm in Sri Lanka because she had departed Sri Lanka illegally and was in breach of her bail conditions.
At the interview with the Delegate on 4 August 2017, the Applicant claimed that in a separate incident she and M had been assaulted and had witnessed the rape of M. She feared that if she returned to Sri Lanka she would be harmed and raped herself because she had been present at and had knowledge of the incident.
Following her interview with the Delegate, the Applicant made written submissions in which she broadened her claims to the following:
… the applicant fears persecution as a Tamil originating from the Northern Province of Sri Lanka, as a single Tamil woman with children, a female head of the household and a failed asylum seeker returning to Sri Lanka from a Western country after leaving Sri Lanka illegally for the second time.
She fears serious harm amounting to persecution in the form of one or more of the followings [sic]: ongoing harassment, significant physical intimidation and sexual assault, abduction, detention, torture, cruel inhuman treatment or punishment and/or loss of her liberty and life. Her feared persecutors are the Sri Lankan authorities.
The IAA’s decision and reasons
The IAA recorded that the Applicant’s principal claims concerned her position as a single female with children and as a female household head but also related to her family history and an imputed association with the LTTE. After discussing those claims and the evidence before it, the IAA found that it was not satisfied that the applicants are people to whom Australia has protection obligations under s.36(2) of the Act. The IAA’s decision was based on the following findings and reasons.
In relation to the Applicant’s claims to be a refugee under s.36(2)(a) of the Act, the IAA accepted that:
(a)the applicants were Tamils from the Eastern Province of Sri Lanka and the Applicant had provided generally consistent and credible information;
(b)the Applicant’s husband had assisted the LTTE in order to protect their children and had been assaulted and murdered by the SLA. The IAA further accepted that the Applicant had been threatened to prevent her disclosing the circumstances of his death;
(c)the Applicant’s family may have felt unsafe at times during the civil war but the IAA was ultimately not satisfied that they were displaced or forced to leave their home;
(d)the LTTE had attempted to take the Applicant’s son J and one of her daughters but had failed in these attempts;
(e)the CID may have visited the Applicant’s home following the civil war’s end but the IAA was not prepared to accept that the Applicant’s family endured anything more than the same type of general interest that most Tamil families experienced in the aftermath of the war. In particular, the IAA was not satisfied that J had any adverse profile with the Sri Lankan authorities;
(f)the Applicant was assaulted by the SLA and was also present when her daughter-in-law M was raped;
(g)should she return to Sri Lanka the Applicant would be without family support and the household would not count a male amongst its number. The IAA noted that although information before it indicated that single Tamil women might face difficulty finding employment, permanent housing and accessing government services, there was no information in the material before it that indicated that Tamil women, including those with the profiles of the applicants, were denied access to basic services or denied a capacity to earn a livelihood, such that their capacity to subsist was threatened; and
(h)the applicants might be questioned on return as part of the airport screening process and that this could involve an interview, and contact with the police in their home area. However, the IAA concluded that the screening process was the same for all persons returning to Sri Lanka, whether voluntary or by escort, regardless of ethnicity; and
(i)the Department of Foreign Affairs and Trade (DFAT) assessed that the risk of torture or mistreatment for the majority of returning asylum-seekers was low, including for those suspected of offences under Sri Lankan immigration law.
In relation to those matters, the IAA:
(a)was satisfied that although the Applicant’s husband had been murdered by the SLA in 2003, neither she nor any of her children had been subjected to any investigation, detention or questioning by the Sri Lankan authorities in relation to him. It was not satisfied that they had any real or imputed profile as supporters or members of the LTTE or as possessors of any other association with the LTTE. It was satisfied that the applicants did not have an adverse security profile with the Sri Lankan authorities;
(b)concluded that country information from the United States Department of State, the United Nations Special Rapporteur on minority issues in Sri Lanka and DFAT did not indicate that sexual assault or gender-based violence for criminal or opportunistic reasons was widespread or commonplace in Sri Lanka and, although there remained a risk that the applicants might suffer random or opportunistic sexual or gender-based violence there, the IAA was not satisfied that that was more than a remote risk. The available information also did not indicate that the military, police or other authorities engaged in systematic or widespread sexual assault or gender-based violence against single women;
(c)was not satisfied, although the Applicant had sold her property to fund travel to Australia, that she and the second applicant would be unable to earn a livelihood, or that the family would be denied housing should they return to Sri Lanka;
(d)was satisfied that the applicants did not face a real chance of serious harm because of their status as single Tamil women, members of a female household and, in the case of the Applicant, a widow and female household head;
(e)considered, in light of the available country information, that the situation for Tamils in Sri Lanka had significantly improved since earlier times and continued to do so. It was satisfied that the then-government of President Sirisena was taking steps to address past discrimination and violence, that Tamils did not face a real chance of serious harm on the basis of ethnicity alone and that country information did not indicate that Tamils faced a real chance of serious harm on the basis of age, ethnicity and geographic origin and/or location alone;
(f)found that returned asylum seekers and those with no adverse profile were not generally at risk of harm on return to Sri Lanka and that as the applicants did not have an adverse security profile, the chance they would be subjected to harm because they were returning asylum-seekers was not a real one;
(g)while accepting that the Applicant had departed Sri Lanka while on bail and was subject to an arrest warrant, concluded that the information before it indicated that persons who breached bail had not been subjected under Sri Lanka’s Immigration and Emigration Act 1948 (I&E Act) to treatment harsher or different from that meted out to returning asylum-seekers without such a profile and, for that reason, was not satisfied that the Applicant would be treated differently to any other returning asylum seeker with a low or not-adverse profile with the Sri Lankan authorities;
(h)was satisfied that the I&E Act was a law of general application and was not satisfied that it was discriminatory in its terms, was applied in a discriminatory manner or was selectively enforced; and
(i)to the extent that the Applicant and the second applicant might be fined, detained, questioned or monitored under the I&E Act, was satisfied that this would not constitute serious harm and would be the exercise of laws of general application applicable equally to all Sri Lankans.
In relation to the Applicant’s claims to complementary protection under s.36(2)(aa) of the Act, the IAA relied on its factual findings expressed in the context of the Applicant’s s.36(2)(a) claims and further found that:
(a)although the Applicant and the second applicant were likely to be arrested on arrival for breaching the I&E Act, DFAT had advised that the risk of harm for the majority of returnees, including those who had breached the I&E Act, was low. The IAA was not satisfied that the applicants would face a real risk of significant harm during the investigation and questioning and while detained at the airport; and
(b)there was no evidence to suggest that the Applicant and second applicant might be subject to the death penalty, tortured or otherwise arbitrarily deprived of life while in detention awaiting prosecution under the I&E Act. The IAA was not persuaded that Sri Lankan authorities or others, through any act or omission, would intentionally inflict pain or suffering that amounted to cruel or inhumane treatment or punishment, nor any intention to cause extreme humiliation. The IAA was not satisfied that such fine as might be imposed on the applicants would constitute significant harm or that the Applicant and second applicant would face a real risk of significant harm arising from bail, bail conditions, fines, questioning or from detention or prison while awaiting a hearing.
THE PROCEEDING IN THIS COURT
In a further, further amended application (Application) filed on 17 February 2024, the applicants alleged:
Ground One and Particulars:
The IAA committed an error in being satisfied that the Applicants do not face real chance of sexual or gender based violence.
Particulars
IAA paragraph 62.
The IAA was satisfied that the primary applicant was assaulted by the SLA and was present when M was raped [36].
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
…
Ground Four and Particulars:
The IAA committed an error in finding that the Applicants did not meet the requirements of S 5H (1) or S 36 (2)(a) [recte: s.36(2A)] of the Act. Paragraph 78-87 of the IAA's decision.
Ground Five and Particulars:
The IAA committed an error in finding that the Applicants did not meet the requirements of s.36(2)(a) or s.36(2)(aa) or finding that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of returning from Australia, there is a real risk that the applicants will suffer significant harm: the Paragraph 85 of the IAA's decision.
…
Ground Eight and Particulars: The IAA committed an error in finding that 'The information before me does not indicate that sexual assault or gender-based violence for criminal or opportunistic is widespread or commonplace'
Particulars
IAA paragraph 47
The IAA accepted there is a risk the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka.
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
Ground Nine and Particulars:
The IAA committed an error in being satisfied that the Applicants do not face real chance of harm for being Tamils from the East.
Particulars
IAA paragraph 62.
The IAA was satisfied that the primary applicant was assaulted by the SLA and was present when M was raped [36]
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
…
Ground Eleven and Particulars: The IAA committed an error in finding that 'While I accept there remains a risk that the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka, I am not satisfied that this is more than a remote risk/ remote chance.'
Particulars
IAA paragraph 47/49
The IAA accepted there is a risk the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka.
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
Ground Twelve and Particulars: The IAA committed an error in finding that 'the information before me does not indicate that the military, police or other authorities are engaging in systematic or widespread sexual assault or gender-based violence against single women.'
Particulars
IAA paragraph 47
The IAA accepted there is a risk the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka.
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
Ground Thirteen and Particulars: The IAA committed an error in finding that 'Although the information cited above indicates that support services may be lacking, it does not indicate that the authorities are acting with impunity, or that such violence at the hands of the authorities is common.'
Particulars
IAA paragraph 47
The IAA accepted there is a risk the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka.
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
Ground Fourteen and Particulars: The IAA committed an error in being satisfied that '[the Sri Lankan] authorities will take steps to prosecute those accused of [sexual violence]'
Particulars
IAA paragraph 48
The IAA accepted there is a risk the applicants may suffer random or opportunistic sexual or gender-based violence in Sri Lanka.
The IAA was satisfied that the applicants will be without family support including not having a male family member in the household, if the applicants return to Sri Lanka [50]
The material / reports / other information contained in [38], [39], [40], [41], [42], [43], [44] clearly suggests that households headed by women, particularly in the North and East, are vulnerable to sexual exploitation, sexual harassment, rape, violence, discrimination, and societal stigma, at the hands of military, family members or others, almost with impunity and who are not convicted.
The IAA finding to the contrary is against the weight of evidence and not a finding that any reasonable decision maker would have made in light of the evidence.
Grounds 2, 3, 6, 7, and 10 were abandoned.
Ground 1
The applicants’ submissions emphasised the evidence before the IAA that women in Sri Lanka faced a high risk of discrimination and violence and that households headed by a female faced particular vulnerabilities and social stigma that made basic survival difficult. They cited the IAA’s reasons when it said:
Other information before me corroborates that women who head households, particularly in the North, are extremely vulnerable to sexual harassment, exploitation and violence and that military personnel continue to enjoy impunity for sexual violence against women and girls
and quoted the IAA’s relevant finding which was in the following terms:
I am further satisfied that the applicants do not face a real chance of sexual or gender-based violence, and that they do not face a real chance of serious harm because of their status as single Tamil women, members of a female household and, in the case of the primary applicant, a widow and female household head.
The applicants submitted that the latter finding was
… unreasonable, illogical and irrational as the material clearly demonstrates the likelihood of either applicant … being subjected to random or opportunistic sexual or gender-based violence is real.
The conclusion that the IAA drew from the evidence before it was that criminal or opportunistic, that is to say presumably civilian, sexual or gender-based violence was not widespread or commonplace and that armed arms of the Sri Lankan government were not engaging in systematic or widespread sexual assault or gender-based violence against single women. On that basis it concluded that the risk of the applicants encountering criminal or opportunistic conduct of that sort was remote and that country information did not indicate that such violence at the hands of the authorities was “common”.
However, the Applicant’s claims did not differentiate in any material way between being attacked or sexually assaulted by civilians or being attacked or assaulted by the authorities. Similarly, the country information considered the issue in an undifferentiated way, while recognising that the military may not have entirely given up some practices that had been widespread during the civil war. Why the IAA did not approach the issue in this way and instead created a dichotomy made up of behaviour that was “criminal or opportunistic” and that which involved the “military, police or other authorities” was not explained, as it should have been in the circumstances. To separate the issue as it did meant that the IAA created a false test.
Moreover, the test applied by the IAA was applied inconsistently. The question was whether Sri Lankan women, in particular the Applicant, faced a real risk of encountering sexual assault and gender-based violence, not whether such behaviours by civilians were “widespread or commonplace” or whether such behaviours by soldiers and similar were “systematic or widespread”. The application of different tests to the dichotomous social sub-sets that it identified serves to highlight the error of the IAA’s approach.
Further, to have placed any weight on the supposed absence of evidence of widespread risk was irrational as the only conclusion open on evidence was that sexual assault and gender-based violence were encountered across Sri Lanka, with an emphasis on the North and East, and so were indisputably widespread. It was similarly irrational, having regard to the authorities, to conclude that the risk of the Applicant suffering sexual assault and gender-based violence was remote because the harm feared was not “commonplace” or “systematic”: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; DQU16 v Minister for Home Affairs (2021) 273 CLR 1. A rational approach to either of those issues could realistically have resulted in a different IAA decision.
The IAA misdirected itself on an issue of central importance to its review and made findings on material issues that were irrational. Its decision is affected by jurisdictional error as a result.
Ground 4, 5 and 13
Grounds 4, 5 and 13 of the Application were no more than invitations to undertake impermissible merits review. The Applicant’s submissions did not take the matter any further.
Grounds 8, 9, 11 and 12
Grounds 8, 9 11 and 12 of the Application were little more than invitations to impermissible merits review. To the extent they were more, the relevant issue was addressed earlier in the context of ground 1.
Ground 14
Ground 14 of the Application referred to the IAA’s finding that it was:
… satisfied that the Sri Lankan authorities view sexual violence as a criminal act and that they will take steps to prosecute those accused of it.
The full paragraph reads:
While there are still deficiencies in the police and judiciary, the authorities are none-the-less taking steps to address these. The police force still suffers from a lack of Tamil-speaking officers and female officers but the information does not indicate that women are unable to report crimes or to seek protection, or that they are denied protection should they do so. The new president has also expressed a commitment to taking action to prevent the abuse of women (and children), including speeding up the trial process for sexual offences. I am satisfied that the Sri Lankan authorities view sexual violence as a criminal act and that they will take steps to prosecute those accused of it.
The applicants submitted:
… whether the authorities contemplate taking steps to prosecute those accused of sexual violence is an irrelevant consideration to the question of whether the applicants face a real chance of persecution, violence, or serious harm, since the material clearly shows that whatever actions the authorities have taken does not diminish the likelihood that the applicants will face a real chance of persecution, violence, or serious harm.
The applicants appear to have assumed that this finding was an independent basis for the IAA’s decision on the Applicant’s s.36(2)(a) claims. The Minister submitted that it was. The fact that the paragraph in question was followed by the following paragraph:
Having regard to all of the above, while there remains a chance of the applicants suffering sexual or gender-based violence I am not satisfied that it is more than a remote chance
tends to suggest that it was intended to be a finding that such fear of persecution as the applicants had was not well-founded because effective state protection was available them and as such was an independent basis for the IAA’s decision.
However, notably, the IAA did not say that such measures as the then-President of Sri Lanka was implementing would provide effective protection to the Applicant against the risks she claimed to fear, such that her claims to fear persecution were not well-founded. That would have required the IAA to address the criteria prescribed in s.5LA of the Act, specifically s.5LA(2)(c), which it did not do. It did not find, as required by s.5LA(2)(c) of the Act, that the Sri Lankan police force was “reasonably effective”, such that it could be said to provide effective protection to the applicants.
Because reasoning of that sort by the IAA is not apparent in its decision record, I conclude that the passage cited in ground 14 of the Application was ineffective as a finding for the purposes of s.5LA of the Act and thus neither a finding of effective protection nor an independent basis for decision.
On the assumption. however, that the IAA’s finding was indeed a finding for the purposes of s.5LA of the Act and an independent basis for its decision, the applicants submitted that it was erroneous for being one that a reasonable decision-maker would not have made in light of the evidence. It appears that the supposed finding was based on the evidence cited in the first three sentences of the paragraph quoted above at [27].
The Minister did not identify evidence other than what appeared in the quoted paragraph as evidence that supported the IAA’s finding. On the other hand, the Applicant referred to DFAT’s Country Information Report Sri Lanka, 25 January 2017 which stated:
Overall, DFAT assesses that women throughout all of Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence, and there are few support mechanisms available to women in these circumstances.
Although DFAT did not refer to the risk that women might then have faced at the hands of the authorities or military, it did note that there had been an increase in reports of gender-based violence in the North and East and that these had not been met with an effective response. The 2016/2017 Amnesty International Annual Report 2016/17 – Sri Lanka stated that:
.. impunity persisted for violence against women and girls, including rape by military personnel and civilians.
Both of these reports were before the IAA.
Assuming, contrary to my finding earlier, that the IAA held that effective state protection was available to the applicants, such a finding was open to it on the above material, albeit that a differently constituted IAA might have reached a different decision. On that basis, the postulated finding would not be demonstrative of error.
CONCLUSION
Jurisdictional error on the part of the IAA has been demonstrated.
Consequently, the decision will be set aside and the matter remitted for determination according to law.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 May 2025
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