FEDERAL COURT OF AUSTRALIA

FGI17 v Minister for Home Affairs [2019] FCA 1435

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    This is an appeal from the orders of the primary judge dismissing an amended application seeking to set aside a decision of the Immigration Assessment Authority (the IAA), which affirmed decisions of the delegate not to grant the appellants’ Safe Haven Enterprise visas: FGI17 v Minister for Immigration [2019] FCCA 632.

2    The written submissions for the appellants identify two grounds of appeal, both of which were considered and rejected by the primary judge.

3    The first ground alleges jurisdictional error by the IAA in allegedly “forming an unreasonable view that the first appellant would not be living as a single female, as a female head of household or in a female only house or perceived as a vulnerable target without a male in the household when there was no evidence which would support this conclusion, that the history on a fair reading would suggest the other way, and the issue of whether the Applicant would or would not be living once back in Sri Lanka with a male was not raised or properly considered, such also that the Tribunal failed to take into account relevant material.”

4    The IAA at [52] of its reasons took into account “that neither the primary applicant nor the second applicant has claimed that the family will not remain together if they are returned to Sri Lanka”. The lack of any such claim caused the IAA to implicitly find or infer that the appellants would live together as a family with the consequence that the first appellant would not be living as a single female, as a female head of household or in a female only house or perceived as a vulnerable target without a male in the household. The IAA made this implicit finding or inference in circumstances where it had noted that the first and second appellants are married and have two children and had lived together in Sri Lanka before the second appellant came to Australia. Further, they had not claimed that the family would not remain together if returned to Sri Lanka. As the Minister submitted, the IAA’s process of reasoning rested on the reasonable inference that, absent evidence to the contrary, a married couple would continue to live together. As the Minister also submitted, the inference was based on evidence – that the appellants were married and lived together and, absent a contrary indication, would continue to do so. The IAA, accordingly, was also implicitly satisfied that the second appellant would not go into hiding or otherwise leave his home with the first appellant and their children if he returned to Sri Lanka.

5    I do not accept that the IAA’s reference in [52] of its reasons to the first appellant not having reported her assault by soldiers to the authorities was irrelevant. The IAA’s reasoning was that due to there being no report there was no reason for the soldiers to specifically target the first appellant. This is a separate point from the first appellant’s vulnerability if she were living in a female only household, but it was relevant to the assessment the IAA had to make.

6    I do not accept the submission that the first appellant, in saying in her statement that she was “afraid that she would not be protected by anyone, including the authorities, because they are responsible for persecuting me and my family”, was making a generalised claim that included that she would be without male protection within the household. The first appellant was using the description of her family to include her husband. In her statement she described how her husband had been targeted and said she was targeted after he left Sri Lanka because of her husband. She was not saying that she would be without her husband if she returned to Sri Lanka. She was saying, rather, that both she and her family (including her husband) would be persecuted if forced to return. As such I do not accept the related submission that the primary judge erred at [36] when he said that no claim that the second appellant may leave the first appellant was advanced.

7    I do not accept the submission that there was no evidence to support the IAA’s finding in [66] of its reasons that if the first appellant returned to Sri Lanka she would do so with the second appellant. There was evidence to support this finding. The first and second appellant were married. They had children. They had lived together in Sri Lanka before the second appellant left. They had not claimed that the family would not remain together if returned to Sri Lanka. This was all evidence supporting the finding in [66].

8    For the reasons given above I do not accept the submission that it was not a reasonable assumption by the IAA that that the appellants would live together as a family if returned to Sri Lanka. The IAA’s reasoning involved an inference from facts, not an assumption. The inference was reasonable based on the evidence. Accordingly, I do not accept the submission that the primary judge erred in concluding that the IAA’s finding that that the appellants would live together as a family was open on the material before it and did not lack an evident and intelligible justification: at [33].

9    It is not to the point that the IAA’s finding at [52], that the perpetrators of the original incident against the first appellant had no reason to seek her out and harm her, did not mean that the first appellant was “without risk”. The relevant criterion for protection involves a well-founded fear of persecution, which itself involves “serious harm”. The concept of “without risk” is not part of the relevant statutory criteria.

10    Nothing in the process of reasoning of the IAA is unreasonable. The fact that the second appellant had left Sri Lanka before the first appellant and their children (thus leaving her alone and vulnerable to the opportunistic sexual assault by soldiers which occurred during her husband’s absence) does not render the IAA’s process of reasoning legally unreasonable. The IAA plainly considered the question whether the first appellant would be vulnerable as a female living without the presence of a male in the household and came to the view that she would not be in that position. It did so in circumstances where it was satisfied the second appellant had left Sri Lanka because of questioning about S in 2012 but was satisfied that the second appellant would no longer face a real chance of harm in Sri Lanka: at [38]. This provided a logical foundation for the IAA’s finding that the first and second appellants would return and remain together in Sri Lanka. That is, the second appellant no longer had any reason to leave the family for fear of harm. Accordingly, the IAA’s reasoning and conclusion were legally reasonable in all of the circumstances.

11    The second ground alleges that the IAA “committed jurisdictional error by not properly considering the question of whether the Applicant will reside with a male upon her return to Sri Lanka, such issue being central to the application, and failed to consider whether the 2nd Applicant, if he did return and live with the Applicant, may be forced to leave the home or otherwise not live with the Applicant if returned to Sri Lanka.” The IAA, by its reasons at [52], must be taken to have concluded that the second appellant would not leave the family if he returned to Sri Lanka. It cannot be said that the IAA failed to consider this matter when it is part of the factual foundation for the IAA’s conclusions in [52]. There was no demonstrated lack of intellectual process in the IAA’s consideration whether the first appellant would be at risk of serious harm as a woman in a female only household. Otherwise this ground is repetitive of the first ground which has been rejected above. The primary judge’s conclusion to this effect at [38] was not in error.

12    The primary judge’s references to findings by the delegate at [34] and [35] do not involve error. The point his Honour was making was that given the delegate’s findings the appellants were on notice of the issue concerning the first appellant as vulnerable to harm if she were living without a male in the household.

13    For these reasons, the primary judge did not err in rejecting the two grounds put in support of the application. It follows that the appeal should be dismissed, with costs.

Associate:

Dated:    5 September 2019