FEDERAL COURT OF AUSTRALIA

DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to rely on the amended notice of appeal annexed to the appellants’ submissions filed on 23 January 2020.

2.    The appeal be allowed with costs.

3.    Set aside the orders made by the Federal Circuit Court of Australia on 27 August 2019, and in lieu thereof:

(a)    An order in the nature of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 26 June 2018 affirming the decision made on 31 January 2018 to not grant the appellants Safe Haven Enterprise (subclass 790) visas;

(b)    The matter be remitted to the Immigration Assessment Authority for the making of a decision according to law;

(c)    The first respondent pay the appellants’ costs of the application for judicial review.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by the Federal Circuit Court on 27 August 2019, dismissing the appellants’ application for judicial review of the decision of the second respondent, the Immigration Assessment Authority, to refuse their applications for Safe Haven Enterprise visas.

2    For the reasons set out below, the appeal will be allowed.

BACKGROUND

3    The appellants are a family who were accepted by the delegate and the Authority to be nationals of Sri Lanka. The first appellant; his wife, the second appellant; and two of their children, the fourth and fifth appellants, entered Australia by boat on 10 September 2012. The third appellant was born to the first and second appellants in Australia in 2014. The two adult appellants each made different claims for protection during their “arrival interviews” shortly after they arrived in Australia and were detained.

4    It appears the appellants were not permitted to apply for protection visas until August 2016. What happened to them between September 2012 and August 2016 is not fully disclosed by the evidence, except that it appears the first, second, fourth and fifth appellants were transferred to Manus Island in November 2012 and detained there until June 2013. It also appears the first appellant was held in detention until at least July 2014. By the time they applied for their protection visas, the third appellant was three years old.

5    The first appellant identified himself as ethnically Sinhalese and a Buddhist on his visa application form.

6    In his statutory declaration in support of his visa application, the first appellant set out a detailed narrative of how he met the second appellant and how he and his wife encountered opposition to their relationship from their families and from the predominantly Tamil village in which they lived after they married. He recounted the harassment experienced by the fourth and fifth appellants at school, how his own family disowned him, the fact that he had to live separately from the second appellant and only visit her when he felt it was safe to do so, and the first and second appellants’ ultimate decision to leave Sri Lanka. He also recounted harassment and discrimination experienced by his family from other Tamil asylum seekers when the family were detained on Manus Island. Under a heading “risk of future harm” the first appellant declared:

If I go back to Sri Lanka I have to live separately from my wife, because Tamil people does not allow me to live in their community.

We cannot go back and live in a Tamil community. As a Sinhalese person if I go back to a Tamil community including the community where my wife comes from, I am afraid that they will kill me or physically assault me and they will hurt me. During the time I was there I have received serious threats and harassments. My wife has also received serious threats. I never confronted my wife’s neighbours, I had to constantly hide in order to avoid physical confrontation and harm. I have a family and kids that I have to look after, at this age I cannot keep running and hiding.

As a Sinhalese man who is married to a Tamil woman I will be suspected as having connection to LTTE. In a Sinhalese area, I am afraid that my wife will receive threats, Tamil people are perceived as enemies by Sinhalese people.

As my children speak Tamil and they have a Tamil mother, I am afraid they will be mistreated at school, they will be isolated and they will be looked down upon and this will cause them mental suffering. I am afraid that they will be physically harmed by the people in the Sinhalese community. Especially by the Sinhalese people that have lost family members in the war.

In a Tamil area, my youngest child who was born here will suffer because his father is Sinhalese. He will be mentally and physically harmed in Tamil area because he has a Sinhalese father, he will also face a life without his father because Tamil people will not allow me to stay with my children and wife.

I am afraid that I cannot obtain identity documents for my youngest child who was born in Australia, without identity documents he cannot go to school and he will have difficulty in moving in the country and doing anything.

We left Sri Lanka illegally, without permission, this is against the law, if we return to Sri Lanka the police will take my family and I into custody and they will charge us for breaking the law. I have heard that people who went back after leaving the country illegally have been physically harmed and been taken to the custody.

(Emphasis added.)

7    The claim which comes to the forefront in this appeal is the claim in bold in this extract.

8    The second appellant identified herself in her entry interview as ethnically Tamil and a Hindu.

9    In her statutory declaration the second appellant summarised her claims for protection in the following way:

My main reasons for seeking the protection of Australia is fear of harm at the hands of the LTTE and the Tamil people on account of my political involvement with the Eelam’s People Democratic Party (EPDP) and my marriage to a Sinhalese man, which has produced a child of mixed ethnicity. I also fear that if I returned, I will be detained by the Sri Lankan Government, because I have departed the country illegally.

10    The remainder of her statutory declaration gave a detailed account of her life in Sri Lanka, her brother’s membership of the Sri Lankan Army, the way he was seen as a traitor to the Tamil people and was killed by the LTTE, her first marriage and her two children of that marriage, her second marriage to the first appellant, and the difficulties which arose for them after their marriage. At [31]-[32], she explained the situation in the following way:

Although we were legally married, the people would not accept it, because I am Tamil and he is Sinhalese. My family had already been branded as an enemy to the Tamil people and now after I married my current husband, the hatred against me by the Tamil people increased. They saw me as a Sri Lankan Government informant, providing information to the Government about their involvement with the LTTE. Most families in [redacted] were LTTE families, so they feared that I was part of the Government, especially that I was married to a Sinhalese. It wasn’t my intention to be against the Tamils, but that is how they saw me. They thought that I had power/influence from the Government.

I was mentally affected very badly because of all this. My first husband had gone missing, and I could not live with my second husband. I started to lose support from my own family, and they too started to show some kind of hatred towards me because of my second marriage. From my brother’s death, my parents started to question why I married a Sinhalese and caused so much animosity within the community.

11    Her statutory declaration also dealt with her work with the EPDP; her subsequent candidacy in local elections and the threats she claimed she received as a result of her candidacy; and the effects of the matters described in her statutory declaration on her daily life and the lives of her children, especially in relation to her fears they would be kidnapped, which she claimed was a not infrequent occurrence in her region, an LTTE-controlled region, at that time. She also deposed to some specific incidents involving a bomb in the EPDP office and being followed by persons she suspected were seeking to harm her. She also described the harassment she and the first appellant experienced on Manus Island. Under the heading “risk of future harm”, amongst other fears, the second appellant stated:

I also risk being arrested and charged with illegally leaving the country. Penalties for leaving the country can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees.

12    Both the first and second appellants expressed a number of fears they held for harm that would be experienced by their children if they were compelled to return to Sri Lanka. These claims centred on the children being seen as children of a “mixed marriage”.

13    The appellants did not have a migration agent assisting them at the interview with the delegate. The delegate substantially accepted the appellants’ narratives of what had happened to them in the past, although she made some adverse findings about some aspects, including a substantial amount of the second appellant’s description of her role with the EPDP. The delegate expressly considered the appellants’ claims topic by topic, and also considered their claims about their fears for their children, including whether their youngest child would be accepted as a Sri Lankan national and would be able to obtain relevant identity papers and access education. The delegate did not accept any of the appellants’ claims led to the appellants satisfying the criteria for refugee or complementary protection, even where she accepted the factual basis for the claims.

14    Relevantly to the grounds of appeal, the delegate considered the consequences of the family’s illegal departure from Sri Lanka, having accepted their departure was unlawful. Her finding was:

On the basis of the country information discussed above, it has been found that the treatment the applicants could face on return to Sri Lanka is being detained whilst waiting to be heard by a Magistrate and/or receiving a monetary fine. This finding was based on the applicants’ personal circumstances; namely being passengers on a people smuggling venture, in addition to not being of current interest to the authorities and not having declared any prior criminal convictions. Given the applicants would only be detained for a short period of time if at all, and noting the most likely punishment is to pay a fine, I am satisfied that the claimed harm does not constitute significant harm as defined in section 36(2A) of the Act.

In coming to this finding I have also considered that Applicants 1 and 2 have no particular personal vulnerabilities that would result in a short detention on return which would constitute cruel, inhuman or degrading treatment or punishment. I therefore find that the harm the applicants may incur for departing Sri Lanka illegally is not significant harm.

15    No express consideration was given by the delegate to what would happen to the three appellant children, although the delegate plainly allowed for the likelihood the appellants would be detained without differentiating between the adults and the children.

16    Before the Authority, the appellants were assisted by a community legal centre in Western Australia, which filed an additional statutory declaration from the second appellant, and a submission, on their behalf. The submissions concentrated on what country information revealed, it was contended, about mixed marriages in Sri Lanka, the discrimination and harassment which was said to flow from those circumstances, and why it could constitute persecution.

The Authority’s decision

17    At [1], the Authority noted that the three children had made no claims of their own but relied on membership of their parents’ family unit. That is not an entirely accurate statement, given the material before the delegate, and the way it was considered. From the outset, claims were made “on behalf” of the children, about what was feared would happen to them, and what they would experience. This treatment was included in what was identified, in the evidence of the first and second appellants, as the persecution they feared their family may experience on return to Sri Lanka. Some of that feared persecution was expressly said to be likely to be experienced by the children.

18    After dealing with the information submitted on behalf of the appellants to the Authority (which is not relevant to the appeal), the Authority then summarised the first and second appellants’ claims to protection.

19    In relation to their claims about what might befall them on any forced return to Sri Lanka, the Authority summarised their claims in the following way. As to the first appellant, the Authority relevantly stated (at [13] of the reasons):

Because they left Sri Lanka illegally, they will be taken into custody and charged for breaking the law and physically harmed.

20    Save for the one passage which became the focus of this appeal, there is no further consideration or explanation by the Authority of what is meant by “they” in this passage. However, this is an accurate reflection of the family-wide manner in which the first appellant expressed the claim at [57] of his statutory declaration – the bold paragraph in the extract which we have set out at [6] above.

21    As to the second appellant, the Authority described her claim thus:

She fears also being charged with leaving the country illegally.

22    Broadly, on their core claims about their mixed marriage and consequent harassment and discrimination, the Authority accepted the appellants’ claims to an extent, but also found (at [22]) that they had exaggerated and embellished them. At [25], the Authority accepted the first and second appellants “may face ostracism from family members”, but did not accept they were forced to live apart for long periods because of the harassment, and did not accept several of the other forms of harassment narrated by the appellants. The Authority took a similar approach to the appellants’ claims about what had happened to them on Manus Island: it accepted they may have experienced some incidents of discrimination and harassment but did not consider this was indicative of the treatment they were likely to receive on return to Sri Lanka, noting (at [30]):

[T]he Sinhalese are the majority ethnicity in Sri Lanka and the war ended nine years ago with the current government focused on post-conflict reconciliation, with significant progress achieved.

23    The Authority then explained why it rejected the other bases for the appellants’ fear of harm – such as the second appellant’s brother’s killing, her membership of the EPDP and the first appellant’s suspected LTTE connections. It then turned, from [47], to consider the topic it identified as “Fears for their children”. In this section, the Authority dealt with what the first and second appellants claimed would be the hardships the children would face on any return to Sri Lanka, in terms of education, language, harassment and discrimination, because they are the children of a mixed marriage. It rejected all those claims, while accepting there might be some “reintegration issues” (at [51]).

24    From [56], the Authority examined the appellants’ claims of harm because of their illegal departure. The Authority described the claim in the following terms (with our emphasis):

The applicant husband claimed that he left Sri Lanka illegally without permission and this is against the law. The Sri Lanka police will take him and his family into custody and they will be charged for breaking the law and physically harmed. The applicant wife claimed she risked being arrested and charged with illegally leaving the country and penalties for leaving the country can include imprisonment of up to five years and a fine up to 200,000 Sri Lanka Rupees. She would be accused of having leaked confidential information to another country by the government because she worked for the EPDP. As discussed above I have not accepted that the applicant wife’s role or association or involvement with the EPDP would put her in a position to access confidential information, or that she would be seen as such and therefore I am not satisfied she faces a real chance of any harm on this basis. I accept the applicant departed Sri Lanka illegal on a boat without a valid passport. The applicants have been consistent in their bio data/arrival interview, PV application and written claims in this regard.

25    The sentence in bold, read with the way the appellants’ claims were put in their original material, is important to the resolution of the appellants’ appeal.

26    At [58], the Authority clearly recognised the terms of Sri Lankan law which may expose “the applicants” (in the Authority’s words) to the harm they had identified in their claims:

Under the Sri Lankan Immigrants and Emigrants Act 1949 (the I & E Act) it is an offence to depart other than via an approved port of departure. I accept that if the applicants were returned to Sri Lanka from Australia, they may be identified as returning asylum seekers who left Sri Lanka illegally.

(Footnote omitted.)

27    At [59], the Authority found there was no real chance “the applicants” would be harmed as returning asylum seekers. The Authority then referred back to some of its earlier findings about the first and second appellants having no LTTE profile or association. It also referred to country information indicating that those who are on “stop” or “watch” lists face increased scrutiny on arrival. It is clear the whole of the findings at [59] concentrate on what the Authority was satisfied may, or may not, happen to the first and second appellants, as adult returning asylum seekers.

28    At [60]-[64], the Authority found:

The DFAT Report indicates returnees are processed by the Department of Immigration and Emigration (DOIE), the State Intelligence Service (SIS) and CID and their identities are checked against various databases including for criminal and security matters. Processing returnees can sometimes take several hours including interviews. I am satisfied on the information before me that the applicants have no relevant profile, identity concerns, or otherwise that would raise the concern of the authorities.

The applicant husband and applicant wife may be charged under the I & E Act because they departed illegally. Country information does not indicate that children are prosecuted. DFAT understands that in most cases individuals will be arrested at the airport, they will be fingerprinted and photographed; those arrested can remain up to 24 hours in custody at the IDC office at the airport. Returnees are then transported by police to the closest Magistrates Court where a magistrate will make a determination. If a magistrate is not available a returnee might be held on remain at a nearby prison for a few days.

Penalties include a custodial sentence or a fine of up to 200, 000 Sri Lanka rupees (AU$2000) which can be paid in instalments. DFAT assesses ordinary passengers on a people smuggling venture are generally viewed as victims and no returnee who was merely a passenger has ever been given a custodial sentence. Those who plead guilty are fined and then free to go. If the applicants plead not guilty they are likely to be granted bail on the basis of a personal surety or have a family member act as a guarantor. They may have to wait for a family member to come to court to collect them and there are rarely any conditions imposed on bail. There is no requirement to report to the police between hearings. I do not consider the applicant husband and wife would be required to report regularly to their local police station and as such, I am satisfied that they are not at risk of harm in those circumstances. I accept that on their return the applicant husband and wife will be interviewed and may be brought before a magistrate, and they may be detained for a limited period of time whilst waiting for a magistrate. I accept there is a real chance that the applicant husband and wife will be fined but that this fine can be paid off in instalments and that they will then be released or if they plead not guilty they may be detained for a brief period of time until one of their family members collects them. Section 5J(5)(a) refers to a threat to a person’s liberty as an instance of serious harm; however, the Australian courts has determined that whether a risk of a loss of liberty constitutes serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty.

Whilst I note DFAT reports that prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions, I am of the view any questioning and detention the applicant husband and wife may experience would be brief and would not in this case constitute serious harm. I also find the imposition of a fine, surety or guarantee does not of itself, or when combined with the brief detention, constitutes serious harm.

In addition, I am also satisfied that the provisions and penalties of the I & E Act are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor does the country information indicate that the law is applied in a discriminatory manner or enforced selectively.

(Footnotes omitted; emphasis added.)

29    All these findings appear in that section of the Authority’s reasons dealing with the appellants’ claims to a protection visa on the basis of meeting the refugee criteria in s 5H of the Migration Act 1958 (Cth). The finding in [64] is relevant to the appellants’ refugee claim, but not to complementary protection, which does not depend on treatment by reason of any particular attribute. Aside from the sentence in [61] which we have highlighted:

(a)    it is unclear whether the remainder of the findings in [61] apply to the fourth and fifth appellants;

(b)    the findings in [62]-[64] appear to concentrate on the first and second appellants; and

(c)    those findings include a finding that there is a “real chance” the first and second appellants may be brought before a magistrate and detained for a period of time, and may be fined, which must logically incorporate a finding that they may be charged.

30    At [73]-[74], the Authority made findings about this aspect of the appellants’ claims for complementary protection:

I have found there is not a real chance that the applicants face serious harm as returning asylum seekers or asylum seekers who have been identified in the Australian media internet. Based on the same information and for the reasons outlined above, I am also not satisfied that there is a real risk that they would face significant harm for those reasons.

I have accepted the applicant husband and applicant wife will be returning to Sri Lanka having departed illegally. I have found that as returnees they would be subject to an interviewing process whilst security, criminal and identity checks are undertaken by the authorities. I have found they might be remanded in custody for a brief period at the airport or at a prison before they are brought before a magistrate, that they are likely to be fined or that a surety or guarantee may be imposed on them. I have found the applicants do not to have any specific profile that would warrant a longer detention, custodial sentence or further interrogation. Whilst prison conditions in Sri Lanka are overcrowded, with poor sanitary conditions and under resourced, this is more as a result of circumstances rather than the intention of the authorities who are working to address these issues. I am not satisfied that the treatment and penalties to which the applicants may be subject means there is a real risk the applicants will be subject to the death penalty or will be arbitrarily deprived of their life or will face torture. Nor am I satisfied that there is any intention to inflict severe pain or suffering, pain or suffering or to cause extreme humiliation, as required by the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. I am not satisfied the applicants face a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment.

31    Again, there is a clear finding in [74] that the first and second appellants “might” be remanded in custody at the airport, or in prison.

32    At [77], the Authority found:

As none of the applicants meets the definition of refugee or the complementary protection criterion, it follows that they also do not meet the family unit criterion in either s.36(2)(b) or s.36(2)(c).

33    This finding is not in terms restricted to the third, fourth and fifth appellants. It appears to acknowledge that any one of the appellants could meet the criteria in s 36(2)(b) or s 36(2)(c) and that if they did then the other appellants – as members of the family unit – would also be eligible for the grant of a visa.

The judicial review application to the Federal Circuit Court

34    The appellants applied to the Federal Circuit Court for judicial review of the Authority’s decision on 6 July 2018. The Federal Circuit Court dealt with the matter on the basis of a single amended ground of review, which was expressed as follows:

The Immigration Assessment Authority (Authority) failed to consider whether the Third, Fourth and Fifth Applicants (Applicant Children) would face a real chance of persecution or real risk of significant harm either while in detention themselves upon arrival in Sri Lanka or while the First and Second Applicants (Applicant Parents) are detained for up to ‘a few days’.

35    The appellants accepted in their written submissions to this Court that the Federal Circuit Court correctly “crystallised” their argument as “the IAA failed to consider what would happen to the [appellant] children on their return to Sri Lanka”: Federal Circuit Court reasons at [32]. The structure of the Federal Circuit Court’s reasons indicates it saw this as having two limbs: first, whether the children themselves would be arrested and detained (called “Argument One” in the Federal Circuit Court’s reasons); and second, what would happen to the children if their parents were arrested and detained (called “Argument Two” in the Federal Circuit Court’s reasons).

36    By orders and reasons delivered on 27 August 2019, the Federal Circuit Court rejected both aspects of the appellants’ arguments. As to the first argument, it found the Authority did address the claim “as articulated”, by its finding that children are not prosecuted. This meant, the Federal Circuit Court found, that the Authority had accepted the claim insofar as it related to the first and second appellants, but not the children: Federal Circuit Court reasons at [35].

37    At [36]-[37] the Federal Circuit Court found:

The first [appellant’s] claim was that his family would be harmed as a result of being charged and taken into custody for breaching the law. The IAA accepted that the parents would be charged and may be taken into custody, however, it did not accept that the children would be.

Having found that the I & E Act did not apply to minors, or that minors were not prosecuted, it did not remain for the IAA to consider whether the children would be subjected to a period of detention in a prison on arrival as the reason for that detention was rejected.

(Emphasis in original.)

38    Specifically as to the fourth appellant, who was 17 at the time of the Authority’s decision, the Federal Circuit Court found (at [39]) that the Authority was required to consider the question of harm in the “reasonably foreseeable future”, which the Federal Circuit Court found to be a period of 28 days, and therefore the fourth appellant would not be 18 by the time he was removed to Sri Lanka. The Federal Circuit Court also held that, because the Authority had found, first, that any detention of the parents would not amount to serious or significant harm, and second, that the Sri Lankan Immigrants and Emigrants Act was a law of general application, any error in relation to the question whether the children themselves would be detained would have been immaterial.

39    On the second aspect of the argument, the Federal Circuit Court found (at [46] and see also [56]) that no claim of the kind identified in the grounds of review arose, explicitly or implicitly, on the material, and accordingly it was not necessary for the Authority to consider such a claim. At [49]-[51], the Federal Circuit Court also found that despite being represented by a migration agent, the appellants made no submissions to the Authority which were critical of the delegate’s failure to make findings about what would happen to the three children if their parents were detained. Rather, the Federal Circuit Court characterised the second argument as requiring the Authority to speculate about a hypothetical situation not put to it (at [59]). Although it does not affect the outcome of the appeal, we note (as the Authority recognised in [5] of its reasons) that the community lawyer assisting the appellants, while a registered migration agent, made it clear in the email attaching her submissions that she was providing advice and assistance to the appellants but had not been appointed as their representative.

The appeal to this Court

40    The two-pronged approach adopted in the Federal Circuit Court was continued in the appellants’ initial grounds of appeal to this Court. As initially expressed, the ground of appeal, and the “particulars” to that ground, were as follows:

The decision of the Federal Circuit Court is affected by jurisdictional error in that the IAA failed to consider whether the third, fourth and fifth applicants (applicant children) would face a real chance of persecution or real risk of significant harm while in detention themselves upon arrival in Sri Lanka or while the First and Second applicants (Applicant parents) are detained for up to a few days and the Court erred by agreeing with that decision.

Particulars

a.    The First applicant raised a claim that he feared he and his family would be held in custody and physically harmed upon return to Sri Lanka due to the family’s illegal departure from the country;

b.    The IAA accepted that they will be returning having departed illegally and found that they might be remanded in custody for a brief period at the airport or at a prison before they are brought before a Magistrate;

c.    The IAA accepted that prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions;

d.    The IAA failed to consider whether the applicant children face a real chance of persecution or a real risk of significant harm in Sri Lanka either whilst being detained in custody themselves or while the applicant parents are detained.

41    On the filing of their written submissions, the appellants sought leave to rely on an amended notice of appeal. The submissions foreshadowed that they would not rely on the original ground of appeal.

42    The proposed amended ground, as annexed to the appellants’ written submissions, centred on the Authority’s finding at [61] of its reasons that minors returning to Sri Lanka are not subject to prosecution. It was expressed in the following way:

The learned primary judge erred by failing to find that the Second Respondent (IAA) made a jurisdictional error by making the implicit finding that the Fourth and Fifth Appellants would not be prosecuted under the Immigrants and Emigrants Act (IE Act) which was a finding which had no basis in the evidence.

Particulars

a.    The First Appellant claimed that his family would face harm due to leaving Sri Lanka illegally (AB 105-6, [57]).

b.    The age of criminal responsibility in Sri Lanka is 8 (AB 594).

c.    The Fourth and Fifth Appellants were aged 11 years and 10 years respectively when they left Sri Lanka.

d.    The First, Second, Fourth and Fifth Appellants left Sri Lanka without passports at a place which was not an approved port of departure and thereby contravened the IE Act (AB 26-8, 34-6; IE Act ss 34, 35, 45).

e.    The IAA found that the First and Second Appellant may be charged upon returning to Sri Lanka for contravening the IE Act and detained (AB 429, [62]-[63]).

f.    The IAA stated ‘[c]ountry information does not indicate that children are prosecuted’ (AB 429, [61]).

g.    The IAA proceeded only to consider whether the First and Second Appellants would face harm due to contravening the IE Act, implicitly finding that the Fourth and Fifth Appellants would not be prosecuted (AB 409-10, [62]-[63]).

h.    The country information the IAA referred to was the DFAT Country Information Report Sri Lanka dated 24 January 2017 (AB 409).

i.    The DFAT Report states that ‘children are never subject to bail or fines’ (AB 691, [5.23]).

j.    The DFAT Report does not contain evidence that children are not prosecuted under the IE Act or detained.

k.    The learned primary judge erred by finding that the IAA had permissibly found that the IE Act does not apply to children and that the DFAT Report indicated that children are not prosecuted under the IE Act (AB 715-6, [35]-[40]).

43    In his written submissions, the Minister indicated he did not object to the amendment. However, the Minister did object to the appellants seeking to adduce new evidence on the appeal, which was not before the Federal Circuit Court or the Authority. The objection related to parts of Sri Lankan legislation upon which the appellants sought to rely; namely, provisions of the Sri Lankan Immigrants and Emigrants Act and the Penal Code of 1885. The Minister submitted that while

portions of the text of Articles 75 and 76 of the Penal Code of 1885 were set out in part in the Austrian Centre for Country of Origin & Asylum Research and Documentation report titled “Sri Lanka COI Compilation December 2016” (“ACCORD Report”) (which was before the FCC as an annexure to the affidavit of Shaun Wyn-Jones affirmed on 7 June 2019 (AB 594)), the text of the IE Act was not within the materials filed with the FCC. Nor was it part of the evidence that was before the IAA.

44    At the hearing of the appeal, the Minister’s objection was not pressed in a way which requires a ruling. As the Court noted during argument, the substance of the Sri Lankan legislation is commonly included in submissions or country information which forms part of the material on appeals from the Federal Circuit Court heard by this Court. Further, and more critically, the substance of the information about the Sri Lankan legislation was before the Authority in the 2017 DFAT report, and was expressly referred to by the Authority at [58] of its reasons.

45    At the commencement of the hearing of the appeal, counsel for the appellants clarified that the appellants abandoned reliance on the original notice of appeal, noting that it alleges jurisdictional error on the part of the Federal Circuit Court, which was incorrect. Counsel for the appellants opened the argument on the basis that the appeal raised two questions. First, whether or not there was any evidence on which the Authority could base its finding, said to be implicit in [61] of its reasons, that the fourth and fifth appellants, as children, would not be prosecuted under the Immigrants and Emigrants Act upon their return to Sri Lanka. As the argument developed, it was clear counsel included in this a submission that the Authority had also implicitly found the fourth and fifth appellants would not be detained at all. As developed, the focus was less on the terms of any Sri Lankan law about the age of criminal responsibility and more on whether the material before the Authority supported the finding it had made. Counsel identified the second question as whether, if there was no basis in the evidence for the Authority’s finding, that error was material to the outcome of the Authority’s decision so that it could be characterised as a jurisdictional error.

46    The Minister contended there was sufficient evidence to support the finding made by the Authority at [61], especially taking into account the well-established principle that the weight to be given to country information, and the selection of which country information to rely upon, are matters for the decision-maker. The Minister also contended, in the alternative, that if there was no evidence for the finding at [61], that error did not deprive the appellants of the possibility of a successful outcome on the review, and thus was not material in the sense explained by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45].

RESOLUTION

47    The amended ground of appeal should be upheld. There was no basis in the evidence for the finding at [61] of the Authority’s reasons, that finding being:

Country information does not indicate that children are prosecuted.

48    The finding is expressed in the negative, and at a high level of generality; ascertaining its meaning is somewhat problematic. It could be understood as nothing more than a finding about what the country information does not disclose. However, in context (see below), the better view is that it is a finding about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen. We infer that by its use of the term “prosecute”, the Authority intended to refer to the instigation of a criminal process against a child, for the commission of an offence.

49    The Minister accepted, and we find, that the only possible evidentiary source for that finding was a single sentence in the 2017 DFAT report. The context in which that sentence appears is relevant and should be reproduced (with the relevant sentence in bold):

Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The Magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.

The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA. While credible, DFAT cannot verify this claim.

50    The DFAT report appears to be describing a process which occurs in relation to each returning individual asylum seeker. It does not suggest that the information supplied (for example, in the first paragraph extracted above) is limited to adults. The language used would suggest it may not be. DFAT’s advice in the key sentence is limited to what judicial orders and punishments will not be faced by children. That is all it deals with. In context, it appears in a paragraph dealing with something of a grab-bag of information about a number of topics.

51    Taking the information which is supplied by DFAT in the section we have extracted above, and upon which the Authority relied, the statement in the final paragraph extracted above says nothing about:

(a)    whether children may be subjected to charges for offences under the Sri Lankan Immigrants and Emigrants Act, irrespective of whether they are liable to certain punishments if found guilty;

(b)    the age of criminal responsibility;

(c)    whether children may also be detained at the airport;

(d)    whether children may be transported with their parents (or separately) to be brought before a Magistrate; nor

(e)    whether children may also be taken to prison, if they and the adults accompanying them cannot be brought immediately before a Magistrate or if they or the adults accompanying them are charged and remanded until the adults can post bail.

52    While other country information before the Authority (namely, Austrian Centre for Country of Origin & Asylum Research and Documentation, Sri Lanka (COI Compilation, December 2016)) does address the question of the age of criminal responsibility in Sri Lanka, there is no evidence the Authority took this material into account. It cannot be relied upon by the appellants for that reason. In contrast, the text and footnoting in the Authority’s reasons make it clear it did rely on the 2017 DFAT report, and did so to a considerable extent. At [59], the Authority said:

I have placed greater weight on the 2017 DFAT report given it is the most recent country information report in the referred material.

53    Contrary to the Minister’s submissions, and accepting the Authority’s reasons must be read fairly and in their context, it is not possible to see the passages in the DFAT report as probative of the finding made by the Authority. The passage in the DFAT report had a much more limited scope, and was somewhat ambiguous in any event. The Authority’s finding reached well beyond the material before it, and in doing so it made a finding for which there was no evidence.

54    Although before the Federal Circuit Court the focus was on the same aspect of the Authority’s fact finding as the argument in this Court, the argument put to this Court was not put to the Federal Circuit Court. Therefore, although the appellable error might logically be located at [37] of the Federal Circuit Court’s reasons (see [37] above), in fairness to the Federal Circuit Court, it did not have the opportunity to consider the argument as it has now been developed.

Materiality

55    The appellants contend that by making the erroneous finding, the Authority then did not properly consider the claim that was advanced, being the claim we have extracted at [6] above, specifically the claim in bold in that extract, and the claim summarised by the Authority, which we have extracted at [19] above. They contend that had the Authority properly considered that claim, it could have come to a different decision on whether or not the feared treatment on the appellants’ forced return to Sri Lanka might constitute significant harm. Counsel submitted that, elsewhere in its reasons, the Authority accepted that the conditions in Sri Lankan prisons did not meet international standards, because of matters such as overcrowding and unsanitary conditions. He submitted whether those matters amounted to significant harm for children, and whether the children might be detained with adults, give rise to quite different considerations in relation to the concept of significant harm.

56    That submission should be accepted. The finding at [61] of the Authority’s reasons was the only finding which the Authority could have seen as justifying it not expressly determining what would happen to the fourth and fifth appellants on their forced return to Sri Lanka, as it had done in relation to the first and second appellants, including whether they might be charged under the Immigrants and Emigrants Act, and whether – charged or not – they might be detained.

57    The assessment of what might befall a child who may be detained (and/or charged) on return to Sri Lanka is a qualitatively different exercise, even if assessed against the same country information used by the Authority to assess the claims of the first and second appellants. It was not an inquiry that could, on the evidence before this Court, have been resolved by resort to the 2017 DFAT report. That report did not contain sufficient information to determine that matter, at least not on the extracts identified to the Court.

58    Adapting the approach taken by the Full Court in Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [49], in our opinion it is clear that the Authority’s overreaching in its fact finding, going beyond what the material before it was capable of proving, meant that the Authority’s review miscarried. The materiality is that, having made a factual finding unsupported by any evidence, the Authority did not deal at all with the claim as put to it, but instead appeared to assume its (erroneous) finding justified no further inquiry about what would happen to the children on return, in particular the fourth and fifth appellants, who had also departed Sri Lanka unlawfully.

59    This is not a situation where there was an “independent” reason supporting the decision of the Authority to affirm the decision under review: cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123, and Nguyen at [50]. The appellants’ claims to fear harm as a family of five returning failed asylum seekers, four of whom departed illegally (and without passports), was one of their central claims for protection. It was expressed by the first appellant, but clearly on behalf of the entire family.

60    The purpose of the adjective “realistic” in the phrase “realistic possibility”, now forming part of the statements of principle by the majority in the High Court in Hossain and in SZMTA is, in our opinion, employed to distinguish between a possibility that is fanciful or improbable and one which is more than that. In the present circumstances, we are satisfied that the appellants were deprived of a realistic possibility of a different outcome on the review before the Authority. The Authority’s overreaching in its fact finding led it to fail to deal with the serious question of what was going to happen to the first and second appellants’ children when the entire family of five arrived back in Sri Lanka as failed asylum seekers, four of whom had left the country illegally.

61    Further, we do not accept the Minister’s submission that the Authority’s finding that the offences under the Immigrants and Emigrants Act were laws of general application, and this was an independent basis to support the Authority’s decision on the review. There are two reasons for our rejection of that submission. First, the Authority’s error meant that it did not consider, at all, what might befall the three children. Therefore, it did not consider (for example) whether those laws of general application might be applied in a discriminatory way to the children (if it found they were to be applied at all). Second, the fact the laws were of general application is not relevant to the assessment of the complementary protection criteria, and only to the assessment of the refugee criteria. It does not negate the realistic possibility of a different outcome.

The effect of our conclusions on the other appellants

62    The amended ground was raised as one concerning the Authority’s fact finding about the fourth and fifth appellants: that is, the two older children. The third appellant is the youngest child, and was born in Australia. There is no possibility he could be exposed to allegations of the commission of any offence for departure from Sri Lanka. However, what would happen to him, as a very young child, if his parents were detained at the airport and/or thereafter, even for a few days, was a live issue, and one not dealt with by the Authority. That further indicates the materiality of the Authority’s error.

63    Although the jurisdictional error relates to fact finding about the fourth and fifth appellants, as the Authority itself pointed out at [76] of its reasons, membership of a family unit can entitle a person to a protection visa, provided a member of the family unit satisfies the primary criteria. Thus, if there was a realistic possibility the fourth and fifth appellants could be found to satisfy the refugee or complementary protection criteria, and the error was thus material to the outcome of the Authority’s review as a whole, it was an error which adversely affected the prospects of all the appellants securing a visa, not simply the fourth and fifth appellants. Further, as we have explained, there were consistent claims made by the first and second appellants “on behalf” of their children – that is, about harm which the children themselves would allegedly suffer if returned to Sri Lanka. While the forms filled out may have indicated the children made no independent claims, it has always been the case on the evidence before the Court that claims about harm that might be suffered by the first and second appellants’ children have always formed part of the family’s claims for protection.

CONCLUSION

64    The appeal will be allowed, with costs.

Associate:

Dated:    24 April 2020

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