FQD18 v Minister for Home Affairs

[2019] FCCA 648

FEDERAL CIRCUIT COURT OF AUSTRALIA

FQD18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 648

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority chose to disregard relevant material – whether the adverse findings made by the Authority were open to it – whether the adverse findings by the Authority were rational and logical – whether the Authority complied with its statutory obligations – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 473CB, 473DB, 473DC, 473DD, 476

First Applicant: FQD18

Second Applicant: FQE18

Third Applicant: FQF18

Fourth Applicant: FQG18

Fifth Applicant: FQH18

Sixth Applicant: FQI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2992 of 2018

Judgment of: Judge Street

Hearing date: 14 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

Solicitors for the Applicants: Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr D Delany

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The first and second Applicants pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 14 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2992 of 2018

FQD18

First Applicant

FQE18

Second Applicant

FQF18

Third Applicant

FQG18

Fourth Applicant

FQH18

Fifth Applicant

FQI18

Sixth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 28 September 2018 affirming the decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The first applicant is the wife of the second applicant and the third to sixth applicants are children of the first and second applicants, the last two applicants having been born in Australia. On 15 November 2018, a Registrar of the Court made orders appointing the first applicant a litigation guardian for the third, fourth, fifth and sixth applicants.

3. The first and second applicants both identify as Catholic Tamils from the Northern Province of Sri Lanka and claimed to fear harm by reason of their ethnicity, as well as by reason of the second applicant’s father having been shot by the Sri Lankan navy and also by reason of the first and second applicants being members and supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) in opposition to the unitary state of Sri Lanka and as failed asylum seekers who departed Sri Lanka illegally.

4. On 26 June 2018, the delegate delivered two separate decisions; one in respect of the first and the third to sixth applicants and the second in relation to the second applicant. The delegate found that the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas.

5. On 2 July 2018, the Authority wrote to the applicants explaining that the applications for the visas had been referred to the Authority for review. The letter gave the applicants an opportunity to put on new information and submissions. The applicants did so. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act.

6. The Authority referred to the requirements of Part 7AA of the Act and in particular s 473DB, s 473DC and s 473DD of the Act. The Authority took into account the submissions so far as they engaged with the delegate’s decision and also had regard to certain information that the Authority was satisfied there were exceptional circumstances to justify considering and the Authority found there were not exceptional circumstances to justify considering certain other information.

7. The Authority’s reasons make clear that the Authority took into account the whole of s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information. There is nothing on the face of the Authority’s reasons to suggest the Authority adopted a narrow erroneous meaning as to exceptional circumstances or in relation to the application of s 473DD of the Act.

8. In the course of the Authority’s reasons the Authority expressly addressed a submission that was advanced that the Authority should obtain information relating to a purported incident on Christmas Island involving the third and fourth applicants. The Authority referred to the travel of the parties by boat from India to Australia and that the applicants were assessed as exceptionally vulnerable. The Authority referred to having accepted new information from multiple psychological reports about the third and fourth applicants, as well as their parents, and referred to the first applicant’s statutory declaration about the purported incident on Christmas Island. The Authority materially noted that the applicant’s representative had not identified what documents or information the Secretary has or could possess over and above the review material and the new information before the Authority that may be relevant to assessing the third and fourth applicant’s claims for protection. It was in those circumstances the Authority identified having considered the applicant’s representatives request and decided not to take steps to obtain the requested information.

9. The submission to which the Authority referred was one which sought to address why the requirements of s 473DD of the Act were met in respect of new information. It was in the course of that submission that there was a reference to the proposition as follows:

   A fair decision could only be made if details relating to the Christmas Island incident is before the reviewer, because the reviewer would need to understand the significance of this incident. The information relating to the Christmas Island incident is available, it is available with the Secretary and or the delegate's department which is unlikely to have been referred to the Authority. Therefore in the interest of administration of justice the Authority should request for all of the documents and or information relating to the incident that occurred on Christmas Island from the Secretary and or the delegate's dept as this information is relevant for the purpose of assessing the applicants’ claims, more specifically the childrens’ claims.

10. The Authority was clearly correct in the lack of specificity of the information that it was alleged the Authority should obtain. This is not a case where there was identified any easily ascertainable information in respect of a critical fact by reason of which it could be said that it was legally unreasonable for the Authority not to exercise the powers under Part 7AA of the Act to obtain further particular information. The generalised reference to the incident does not identify some particular document that would prove a material fact. The Authority’s reasons for not taking steps to obtain the requested information in the circumstances cannot be said to lack an evident and intelligible justification and were not reasonably unreasonable.

11. The Authority summarised the applicants’ claims and evidence. The Authority accepted the first applicant was born in Jaffna and lived there until 1993/1995 when she was displaced and then moved to various places before leaving on a boat and travelling to India in 1995/1996. The Authority accepted the first applicant remained in India until 18 March 2013 when she and the third and the fourth applicants left India by boat and travelled to Australia.

12. The Authority accepted that the first applicant and her family had no political involvement. The Authority referred to the first applicant’s expressed concern in respects as to returning to Sri Lanka and did not accept the first applicant’s fears returning to Sri Lanka because the Sri Lankan authorities will become aware of the information that she had given to the Australian authorities.

13. The Authority found it implausible that the Sri Lankan police would come to interrogate the first applicant’s mother and ask about the location of the first applicant’s children five years after she returned to live Sri Lanka. The Authority found it implausible that if, as the first applicant asserts, she did not mention the purported incident sooner because she genuinely feared for her mother’s safety in Sri Lanka that she would decide to put her mother’s safety at risk and provide information now. The Authority did not accept the first applicant was unable to provide more details about the purported incidents because her mother feared the Australian authorities would tell the Sri Lankan authorities. The Authority did not accept since the first applicant’s mother returned to Sri Lanka that she has ever been interrogated by the Sri Lankan police or asked about the whereabouts of her children by the Sri Lankan authorities. The Authority found the first applicant fabricated her claims to strengthen her claim for protection.

14. The Authority was not satisfied based on the limited information provided that the first applicant’s house in Sri Lanka was retained by the Sri Lankan army after the war.

15. The Authority found the second applicant was born in Jaffna and lived there until about 1995 when he was displaced. The Authority accepted the second applicant moved to various places in Sri Lanka before leaving on a boat and travelling to India in 1997. The Authority accepted the second applicant remained in India until April 2013 when he left on a boat and travelled to Australia.

16. The Authority accepted that the second applicant’s father was killed by the Sri Lankan navy in 1993, that the applicant did jobs for the LTTE in return for food and money for a period of three months in 1995 and that the second applicant and his family had no political involvement.

17. The Authority referred to the second applicant’s claim about a relative being beaten being vague and general and was not satisfied that a relative of the first applicant was beaten by the Sri Lankan authorities. The Authority was not satisfied the second applicant had ever joined the LTTE or that his sister ever worked for the LTTE. The Authority accepted the first applicant’s brother died in 2011 and had no involvement with the LTTE.

18. The Authority referred to the first applicant’s application providing details about an alleged incident that occurred about one week after she and her two sons arrived on Christmas Island in April 2013. The first applicant stated that the third and fourth applicants were left alone in her room when a young male detainee about 17 years old went to the room and locked it. It was alleged that the third and fourth applicants were the subject of a sexual assault. The Authority referred to the first applicant stating that the third and fourth applicants have been provided with ongoing counselling since they started attending school in 2013/2014 and referred to the case worker telling her that the third and fourth applicants had been affected by the incident and would be given counselling.

19. The Authority referred to the STARTTS summary of treatment reports for the third and fourth applicants and noted in detail the substance of the same and referred to an alleged incident where the third and fourth applicants were said to have been locked in a room by a male about 16 or 17 and alleged corroborative evidence from the fourth applicant in respect of the third applicant concerning the alleged sexual assault. The Authority referred to the assessment in relation to the third and fourth applicants.

20. The Authority also referred to a ‘Payment or Movement Request’ stating that both the third and fourth applicants are in need of ongoing counselling and that the family has low life skills and are vulnerable.

21. The Authority noted that the first applicant had not mentioned the incident involving the third and fourth applicants, relevantly, in her arrival interview, statement of claims or her Safe Haven Enterprise visa interview. The Authority noted that the claim was first raised after the delegate had made her decision. The Authority noted that the first applicant had not provided evidence of the third and fourth applicants being examined on Christmas Island or evidence contemporaneous with the purported incident. The Authority referred to the STARTTS summary of psychological treatment reports for the third and fourth applicants. The Authority, based on the evidence before it, was not satisfied the third and fourth applicants were the victims of sexual assault within the first week of arriving on Christmas Island. The Authority accepted that at some point in time the third and fourth applicants were subject to a traumatic incident or incidents which required ongoing counselling.

22. The Authority referred to the mental health issues of the first and second applicants and accepted that the first applicant had certain symptoms and had presented with PTSD, depression and anxiety. The Authority also accepted the second applicant was advised to have counselling but had not done so. The Authority also referred to a diagnosis that the first and second applicants had adjustment reactions.

23. The Authority referred to the medical evidence in respect of the mental health of the third and fourth applicants and referred to the summary of treatment reports and the respective assessments and reports in respect of the third applicant and then the fourth applicant. The Authority summarised the substance of those reports. The Authority took into account, in particular, that the person who had completed the psychological assessment and summary of recommendations had assumed that the third and fourth applicants were the victims of a sexual assault. The Authority was not satisfied the third and fourth applicants had been victims of a sexual assault but accepted that at some point in time the third and fourth applicants were subject to a traumatic incident or incidents which required ongoing counselling.

24. The Authority accepted the third and fourth applicants have high anxiety, negative evaluation and low orientation to others, difficulty showing emotions to others and difficulty in separating from their families.

25. The Authority noted the assessment that the third and fourth applicants would regress in their emotional functioning and educational attainment being an opinion as to what might happen in the future if the children are returned to Sri Lanka.

26. The Authority referred to the relevant law. The Authority was not satisfied that a relative of the first applicant was beaten up in Sri Lanka, that the second applicant ever joined the LTTE or that his sister ever worked for the LTTE.

27. The Authority did not accept the first applicant’s mother has had any problems with the Sri Lankan authorities or police since returning there to live in 2013. The Authority notes there is no suggestion, and that the applicants have not claimed, that the third, fourth, fifth and sixth applicants who are children and have never lived in Sri Lanka, have any real, or would be perceived to have any links to the LTTE for any reason.

28. The Authority was not satisfied the applicants’ profiles would give rise to any adverse interest in them by the Sri Lankan authorities on account of being Tamils and/or because of their real or perceived links to the LTTE. The Authority was satisfied that the applicants can return to Sri Lanka and would not face a real chance of any harm by any of the Sri Lankan authorities for this reason.

29. The Authority do not accept that because the applicants have sought asylum in India and/or Australia that this would give rise to any suspicions of LTTE involvement by the Sri Lankan authorities.

30. The Authority referred to mental health and the Sri Lankan law that forbids discrimination against those with intellectual or mental disabilities in employment, education, public transport or access to health care. The Authority referred to the most recent DFAT country information report that mental services “are scarce and the institutional capacity to respond to mental health needs is weak”. The Authority noted that mental illness is not widely discussed in Sri Lankan society and the stigma attached to those who seek treatment discourages others from doing so.

31. The Authority accepted that the first applicant had presented with symptoms of PTSD, depression and anxiety and accepted that the second applicant had been advised to obtain counselling and had not done so and accepted that the first and second applicants were diagnosed with adjustment reaction.

32. The Authority also accepted that the third and fourth applicants have high anxiety, negative evaluation and low orientation to others, difficulty showing emotions to others and difficulty separating from their family. The Authority also accepted that the first to fourth applicants are vulnerable. The Authority accepted that the mental health services in Sri Lanka compared to Australia are scarce. The Authority also referred to the opinion of the psychological assessor as to the third and fourth applicants regressing in their emotional functioning if they returned to Sri Lanka. The Authority found, however, that mental health services are available in Sri Lanka if the first, second, third and fourth applicants wished to engage with them and there is no suggestion that the applicants would be denied access to treatment on the basis of any of the reasons specified in s 5J(1) of the Act. Likewise the Authority found there is no evidence to indicate that access to mental health services is selective or applied in a discriminatory manner. The Authority found the lack of mental health services in Sri Lanka does not involve systematic and discriminatory conduct and does not amount to persecution under the meaning of s 5J(4) of the Act.

33. The Authority referred to the education for the third to sixth applicants. The Authority found the third to sixth applicants would not be denied access to education on the basis of any of the reasons specified under s 5J(1) of the Act. The Authority found that there is no evidence to indicate that access to education is selective or applied in a discriminatory manner. The Authority found the poorer education system in the north and east of Sri Lanka does not involve systematic and discriminatory conduct and does not amount to persecution under the meaning of s 5J(4) of the Act.

34. The Authority referred to the assertion of the third and fourth applicants being the subject of victim sexual assault and the impact in that regard. The Authority referred to the first applicant’s fears for her children facing a similar incident if they returned to Sri Lanka. The Authority referred to the first applicant’s concern in relation to the ‘scar’ upon the children. The Authority was not satisfied on the basis of the evidence before it that the third and fourth applicants were sexually assaulted. The Authority accepted that both the third and fourth applicants suffered some form of trauma requiring ongoing counselling. The Authority referred to taking into account the opinion of the psychological assessor in relation to the emotional and cognitive development having been steadily progressing in Australia. The Authority did not accept based on the evidence before the Authority that the third and fourth applicants would, because of their past experience, be at an increased risk of being sexually assaulted or raped.

1. The Authority noted that even if it had been satisfied that the third and fourth applicants were sexually assaulted the Authority would not have accepted that because of that sexual assault the third and fourth applicants would be at an increased risk of being sexually assaulted or raped in Sri Lanka.

2. The Authority referred to the applicants being returnees from Australia and that the applicants may be treated with the suspicion on their return. The Authority was not satisfied that the issue of being seen as different and/or treated with suspicion would amount to a real chance of persecution within the meaning of s 5J(4) of the Act.

3. The Authority found the applicants being subject to standard procedures does not involve systematic and discriminatory conduct and does not amount to persecution within the meaning of s 5J(4) of the Act. The Authority found that the applicants will not face a real chance of any harm during the standard procedure on their return to Sri Lanka.

4. The Authority found the applicants would not face a real chance of serious harm if they returned to Sri Lanka because they are failed asylum seekers.

5. The Authority referred to the illegal departure of the first and second applicants and found that the treatment of the first and second applicants under the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory conduct but rather the application of a law of general application that applies to all Sri Lankans. The Authority found that the investigation, prosecution and punishment for illegal departure under the Immigrants and Emigrants Act (Sri Lanka) would be pursuant to a non-discriminatory law of general application and does not amount to persecution within the meaning of s 5J(4) of the Act. The Authority was not satisfied that it involves systematic and discriminatory conduct.

6. The Authority found the applicants do not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicants do not meet the requirements of s 36(2)(a) of the Act.

7. The Authority then turned to the issue of complimentary protection. The Authority expressly in that regard referred to the applicants having reduced options and/or access to education and mental health services. The Authority was not satisfied there is a real risk the applicants will suffer significant harm within the meaning of s 5(1) and s 36(2A) of the Act upon their return to Sri Lanka.

8. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka from Australia, there is a real risk the applicants will suffer significant harm. The Authority found the applicants did not meet the criteria in s 36(2)(aa) of the Act.

9. The Authority found that none of the applicants met the definition of refugee or the complementary protection criteria and it follows the applicants do not meet the family unit criteria in either s 36(2)(b)(i) or s 36(2)(c)(i)  of the Act and affirmed the decision under review.

The grounds

1. The grounds of the amended application are as follows:

   1. The Authority chose to disregard relevant material that could have shown the future harm the third and fourth applicants would face in Sri Lanka.

   Particulars

   a) The applicants' previous representative submitted that the applicants were eligible for Primary Applicant Information Service (PAIS) and the Authority should request all documents and/or information relating to the incident on Christmas Island because a fair decision could not be made unless the reviewer understands the significance of that incident. Further, it was submitted that if the Authority did not request the PAIS documents then an assessment of future harm of the children could be affected by jurisdictional error.

   b) The Authority stated, "it is not apparent to me how obtaining all the documents and/or information from the Secretary about the purported incident on Christmas Island in April 2013 may be relevant in assessing the future harm the third and fourth applicants would face in Sri Lanka.”

   c) The Authority accepted the multiple psychologist reports about the third and fourth applicants as credible personal information that may have affected the consideration of the third and fourth applicants' claims.

   d) However, the Authority stated that it would not take steps to obtain the requested information.

   e) Section 473DD of the Migration Act 1958 states ''for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any "new information" unless (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information". (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

   f) The Authority accepted the multiple psychologist reports and the first applicant's statutory declaration stating that there are exceptional circumstances that justify considering the new information. However, the Authority chose not to take steps to obtain the PAIS documents with the knowledge that the documents may provide more information about the incident in Christmas Island and thereby, the Authority has not considered 'new information' that is credible personal information which was not previously known and had it been known, may have affected the consideration of the third and fourth applicant's claims. The Authority has therefore misapplied section 43DD(a) and (b) of the Act

   2. The Authority made an erroneous finding based on speculation and guesswork.

   a) The Authority stated it was not satisfied that the third and fourth applicants were sexually assaulted but accepted that both had suffered some form of trauma requiring ongoing counselling.

   b) The Authority did not accept that the third and fourth applicant would because of their past experiences be at an increased risk of being sexually assaulted or raped.

   c) This finding is based on guesswork or speculation with no probative evidence to support this conclusion.

   d) Further, if the Authority had requested and considered the PAIS documents, the Authority may have formed a different view on the claim that the third and fourth applicant were sexually assaulted in Christmas Island. The Authority stated that it came to it's finding based on the evidence before it, and the PAIS documents were not before the Authority because it chose not to request those documents.

   3. In Chan v MIEA (1989) 169 CLR 379, the Court found that "a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality ... I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.”

   Particulars

   a) The third and fourth applicant faces a real chance of persecution if they return to Sri Lanka as they are victims of sexual assault and there is a high probability that they will be harmed by the Sri Lankan community and authorities if they return to Sri Lanka due to the negative view Sri Lankan communities have of sexual assault victims.

Ground 1

1. In relation to ground 1, the proposition that the Authority chose to disregard relevant material that could have shown the future harm to the third and fourth applicants would face in Sri Lanka is inconsistent with the reasons of the Authority. The Authority’s reasons as summarised above identified the evidence in respect of the mental health of the third and fourth applicants. There is no proper basis for the assertion that the Authority disregarded the same. It was a matter for the Authority to make findings based on the information before the Authority and the Court finds that the Authority did give real and meaningful consideration to the mental health evaluation.

2. The reference to multiple psychological reports concerning the third and fourth applicants does not identify a basis upon which the adverse findings by the Authority in respect of the requirements of the Refugee’s Convention and/or complementary protection concerning the third and fourth applicants can be said to be the subject of error. It cannot be said that those adverse findings were not open to the Authority on the material before the Authority. The Authority’s findings cannot be said to lack an evident and intelligible justification.

3. The Authority did not accept the third and fourth applicants had been subject of a sexual assault. Section 5AAA(2) of the Act relevantly states that ‘it is the responsibility of a non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’. It is apparent on the face of the Authority’s reasons that the Authority took into account the request for obtaining further information and, for the reasons summarised above, declined to do so. Those reasons were not legally unreasonable.

4. The proposition advanced in ground 1 that there was specified information that the Authority was invited to obtain is also erroneous for the reasons given by the Authority. It was general information that was identified in respect of the alleged incident and there is no substance to the contention that the Authority misunderstood or misconstrued s 473DD of the Act and the assessment of the information was found to be new information.

5. The applicants were given the opportunity to put on new information and did so. The assertion that there was other information that could be obtained does not identify the basis upon which it could be said in the circumstance of the present case that it was legally unreasonable for the Authority not to take steps to obtain further information in respect of the Christmas Island incident. There was no identified particular information that was easily ascertainable in respect of any material fact.

6. Mr Turner on behalf of the applicants contended that by not taking any steps to obtain the requested information the Authority failed to fulfil the preconditions to s 473DD(b) of the Act. That submission is misconceived. First, there was no specified information but rather a general request. Secondly, it is apparent that the applicants were given an opportunity to put on new information and did so and the Authority considered the same in accordance with the requirements under s 473DD of the Act. Further, that submission ignores the significance of s 5AAA of the Act.

7. This is not a case where there has been any breach alleged of s 473CB of the Act. The scheme of the statutory provisions under Part 7AA of the Act, including s 473DB of the Act and subject to the provisions of the part, the Authority is to review the material provided without accepting or requesting new information or interviewing the third applicant. This provision was expressly considered in the reasons of the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Turner sought to characterise the findings of the Authority that the Authority was not satisfied the third and fourth applicants were sexually assaulted as speculation and guesswork. Contrary to the applicants’ submissions, the Authority identified the delay in any claim being raised in terms of concern by reason of the alleged incident on Christmas Island by the first applicant and the Authority clearly took into account and had a real and meaningful engagement with the submissions and evidence advanced in respect of that claim.

2. The Authority found it was not satisfied that the third and fourth applicants had been sexually assaulted but accepted that there had been some traumatic incident that required ongoing counselling. There was no speculation or guesswork in that regard. The Authority’s reasons were open for the reasons given by the Authority and were rational and logical. The proposition that the Authority did not accept that the third and fourth applicants would be exposed to sexual assault and rape in the future, again, was not speculation or guesswork but a finding that was open to the Authority for the reasons given by the Authority.

3. Insofar as the submissions contend the Authority failed to request and obtain other documents, no such specific documents were identified in any request advanced by the applicants and, for the reasons earlier given, the Authority provided logical and rational reasons for not taking steps to respond to the general request. Material that is not before the Authority is not capable of giving rise to an alleged jurisdictional error.

4. It appears to be the case that underlying the applicant’s submission is the notion that a particular document described as PAIS documents would prove whether or not the third and fourth applicants had been sexually assaulted. That proposition is itself one based on speculation and guesswork and there is no reason for the Authority to have found that a particular document would have been easily ascertainable to determine whether or not the third and fourth applicants had been the subject of a sexual assault. The Authority in that regard referred to the absence of any testing on Christmas Island of the third and fourth applicants. That was a further logical and rational matter to take into account in the adverse finding made by the Authority. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the proposition that the Authority failed to apply the real chance test is inconsistent with the reasons of the Authority as summarised above. The Authority annexed the relevant law to its reasons and the reasons must be read as a whole. It is apparent that there were findings by reference to the real chance test, relevantly, in paragraphs 82, 85 and by reason of the conclusions reached in paragraph 89, as well as the reference in paragraph 94 to the real chance and real risk test being the same and the conclusion in paragraph 96.

2. The foundation for ground 3 appears to be also misconceived as there was no finding that the third and fourth applicants had been the victims of sexual assault. Further there was no finding that they were likely to be the subject of further harm by reason of any particular incident. Those adverse findings were open to the Authority and are logical and rational. The applicant’s submissions in relation to the third ground, in substance, are in disagreement with the merits in respect of whether or not the applicants had a well-founded fear of persecution. This Court does not have power to review the merits. No jurisdictional error is made out by ground 3.

3. Accordingly, the amended application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019