FEDERAL COURT OF AUSTRALIA

FQD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 313

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The first and second appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    The appellants are members of the same family. The first appellant arrived in Australia by boat from India on 2 April 2013 with her two young sons (the third and fourth appellants). Her husband, who is the second appellant, arrived separately some 16 days later. The fifth and sixth appellants are infants, who were born in Australia.

2    The appellants lodged a combined application for Safe Haven Enterprise Visas (SHEV) in August 2016, identifying the first appellant as the “primary applicant” and her husband and children as “dependent applicants”. The SHEV is a class of temporary protection visa. Its purpose is to provide protection from the risk of persecution in the country of an applicant’s nationality and “to encourage enterprise through earning and learning while strengthening regional Australia”: Migration Act 1958 (Cth), s 35A(3B). The principal criteria for the grant of a SHEV are the same as those which apply to other protection visas and, like them, are set out in s 36 of the Act.

3    Both the first and the second appellants are nationals of Sri Lanka from the Northern Province and identify as Catholic Tamils. In statements from each of them attached to the SHEV application, they claimed to fear harm for a variety of reasons. In a submission on their behalf dated 4 May 2018, made following the SHEV interviews, the “essential and significant reasons” for their fears were identified as: their Tamil ethnicity; their “real or imputed political opinions as members and supporters” of the Liberation Tigers of Tamil Eelam (LTTE); and their membership of the particular social group of failed asylum seekers returning to Sri Lanka from a Western country after leaving illegally. The application was considered by a delegate of the Minister. While accepting most of what they claimed, the delegate was not satisfied that either parent satisfied the criteria in s 36 which would qualify them for protection either as a refugee or under Australia’s complementary protection obligations. In short, she was not satisfied that, were they to return to Sri Lanka, they would face a real chance of serious harm for any of the reasons they posited or a real risk of significant harm now or in the foreseeable future. Consequently, she refused the application.

4    On 29 June 2018 the Minister referred the application to the Immigration Assessment Authority for review. The Authority accepted aspects of their claims, including that they were Tamils and that they would be returning to Sri Lanka as failed asylum seekers, but was not satisfied that they were entitled to protection and so affirmed the delegate’s decision. The appellants applied to the Federal Circuit Court for judicial review of the Authority’s decision. The primary judge dismissed the application. This is an appeal from that judgment.

The relevant statutory context

5    Section 36(1A) of the Act relevantly provides that an applicant for a protection visa must satisfy at least one of the criteria in subs (2). There are four such criteria. They are that the visa applicant is a non-citizen in Australia:

(a)    in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee, relevantly defined in s 5H(a) as a person who is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country (para 36(2)(a));

(b)    in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (para 36(2)(aa));

(c)    who is a member of the same family-unit as a non-citizen who is mentioned in para (a) and holds a protection visa of the same class as that for which the applicant applied; and

(d)    who is a member of the same family unit as a non-citizen who is mentioned in para (aa) and holds a protection visa of the same class as that for which the applicant applied.

6    The expression “well-founded fear of persecution” is defined in s 5J. It refers to fear of being persecuted for reasons which include race, religion, nationality, membership of a particular social group or political opinion, where there is a real chance that, if the person returned to a receiving country, the person would be persecuted for one or more of those reasons, and the real chance applies to the whole of the receiving country: s 5J(1). But the reason(s) must be “the essential and significant reason(s)” for the persecution; and the persecution must involve both “serious harm” to the person (the visa applicant) and “systematic and discriminatory conduct”: s 5J(4). “Serious harm” includes: “a threat to life or liberty”; “significant physical harassment”; and “significant physical ill-treatment”, in each case to the person: paras 5J(5)(a)–(c). It also includes “significant economic hardship”; “denial of access to basic services”; and “denial of capacity to earn a livelihood of any kind”, in each case “where the denial threatens the person’s capacity to subsist”: paras 5J(5)(d)–(f).

7    “Significant harm” is defined in s 36(2A). Section 36(2A) provides that a non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

8    But s 36(2B) provides that there is taken not to be such a risk in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

9    Section 5AAA relevantly stipulates that it is the responsibility of the visa applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish the claim and that the Minister has no responsibility or obligation to assist the applicant in doing so.

10    The powers and duties of the Authority are confined by the terms of Pt 7AA. For present purposes it is only necessary to refer to some of its provisions.

11    As soon as reasonably practicable after the Minister has made a decision on the visa application (whether in person or through his delegate), the Minister must refer the decision to the Authority: s 473CA. The Secretary of the Minister’s Department must give the Authority the “review material”: s 473CB. That material includes a statement that sets out the findings of fact made by the person who made the decision, and the evidence on which those findings were based, and gives reasons for the decision; material provided by the applicant to the decision-maker before the decision was made; and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.

12    The Authority’s obligation is to review the decision: s 473CC(1). That means that the Authority is required to consider the visa application afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been made out: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17] (Gageler, Keane and Nettle JJ).

13    All these obligations fall within Div 2 of Pt 7AA. The conduct of the review is governed by Div 3 (ss 473DA–473DF). Section 473DA(1) provides that this Division, together with ss 473GA and 573GB, which are irrelevant to the present case, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. To avoid doubt, s 473DA(2) states that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under s 65 (the original decision).

14    The relevant obligations of the Authority in the conduct of the review are as follows.

15    First, in general, the review is to be conducted on the papers. Unless otherwise provided for in Pt 7AA, the Authority is required to review the decision by considering the review material provided to it by the Secretary under s 473CB and may not accept or request new information or interview the visa applicant: s 473DB.

16    Secondly, s 473DC(1) provides that, subject to Pt 7AA, the Authority may get information or documents that were not before the Minister when the original decision was made and which the Authority considers may be relevant. This material is referred to in the subsequent sections as “new information”. It follows from the terms of s 473DB that it is the only new information that the Authority may consider. The Authority may also invite a person to give new information in writing or at an interview: s 473DC(3). But in no circumstances does the Authority have a duty to get, request or accept any new information regardless of whether it is requested to do so by anyone: s 473DC(2).

17    Thirdly, s 473DD prohibits the Authority from considering any new information save in exceptional circumstances. It provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(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.

18    “Personal information” is defined in s 5(1) to mean “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.

19    Part 7AA was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). The Explanatory Memorandum to the Bill stated that the limited review mechanism supports the measures in the Bill (now contained in s 5AAA of the Act) “which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront”. It also stated that these measures “will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection”.

Background

20    Since both the application in the court below and the appeal are limited in scope, it is not necessary to refer in detail to either the appellants’ claims or the reasons of the Authority. Both the application and the appeal focussed on the treatment by the Authority of certain “new information” relating to events that allegedly occurred in Australia and their significance. That information was contained in documents forwarded to the Authority and submissions made by the appellants’ representatives about those documents. Not all of that material is relevant to the appeal. What follows is a summary of the relevant material.

21    In a statutory declaration forwarded to the Authority on 16 July 2018, the first appellant gave an account of an incident in 2013 involving both of her sons, which allegedly occurred about a week after the family arrived at Christmas Island where they were held in immigration detention. The first appellant said that she was alerted that something was wrong when she was told that her children were screaming. She said that the children were naked and in tears and ran towards her. She said that the third appellant had “a sticky substance on his body” which she believed was sperm from a young male detainee whom she had seen nearby. She said that the third appellant told her “he was forced to lie down on the bed and the young man held him by the neck and got on top of him” and his brother told her that he had witnessed what happened and hid in a corner of the room. She stated that the same day two Australian police officers spoke to her sons in her presence through a Tamil interpreter and later they were given counselling. She indicated that they were still receiving counselling.

22    The first appellant asked the Authority to consider this incident when reviewing her application, saying that she feared that her children could face a similar incident if they were to return to Sri Lanka. She explained that she had heard, and was aware, of women and children being subjected to sexual assault and raped at the hands of Sri Lankan authorities.

23    There were also a number of counselling reports concerning the children from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), which were said to corroborate the information provided by the first appellant.

24    In an email to the Authority on 20 July 2018, the appellants’ then representative submitted that there were exceptional circumstances to justify the Authority considering the statutory declaration and the STARTTS reports. But the representative added (without alteration):

[C]onsidering the contents in the mother’s statutory declaration and STARTTS counselling report of the children would not be sufficient, in order to assess the effect the particular incident has had on the children. 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.

25    Amongst other things, the representative also submitted (without alteration) that:

Victims of sexual assault are usually scarred for life and if they are minors, it could have a disastrous effect on them in the long term. Should the Authority form the view that it does not need to seek/get the documents and information referred above, then an assessment of future harm of the Children in particular could arguably be affected with legal error.

26    The following day the appellants’ representative sent the Authority a more detailed submission, apparently prepared the day of his email. In that submission he noted that the appellants had been identified by the Department as asylum seekers eligible to receive assistance from the Primary Application and Information Service (PAIS), a government-funded migration assistance service provided to a limited number of visa applicants. He asked the Authority to obtain from the Departmental Secretary all relevant documents pertaining to the determination of the appellants’ eligibility for PAIS assistance (the PAIS documents). The representative submitted that this material was not “new information” because it would have been in the Department’s possession at the time of the delegate’s decision and that the information in it was “relevant to the review”.

27    On 1 August 2018 the appellants’ representative sent the Authority reports on the third and fourth appellants from Norman Rees, a clinical psychologist, who assessed the boys in July 2018 at the request of the representative. The findings were identical with respect to both the boys.

28    Mr Rees wrote that:

The results of assessment of emotional functioning using testing completed by his mother and testing done by himself indicate high anxiety about the negative evaluation of others and above average anxiety regarding separating from family. The results also indicate low orientation to others and difficulty in showing his emotions to others.

The high anxiety and difficulty in separating from family members is likely to be due in some part to the sexual assault he experienced in 2010 (sic). I note that he has had and continues to have skilled mental health counselling to reduce the impact of the assault.

He is to a lesser extent likely to be influenced by the emotional reaction of his parents to the news regarding the visa.

I believe that [the third and fourth appellants] continue to receive skilled mental health counselling to continue to deal with the adverse effects of the trauma he suffered in 2010 (sic). I doubt that this treatment would be readily available in Sri Lanka.

In addition there is the issue of his emotional and cognitive development which has been steadily progressing in the Australian culture along with his facility with speaking and reading English. His parents report that he has now lost his capacity to read Tamil.

Returning him to Sri Lanka would result in a regression in his emotional functioning and his educational attainment.

29    The reports mentioned the history of the alleged sexual assault on Christmas Island provided by the mother in her statutory declaration and no other sexual assault and it was common ground that the references in the report to “2010” were erroneous.

30    Mr Rees conducted a number of assessments but it does not seem that he interviewed either of the boys about the alleged sexual assault. Rather, he relied on the history provided by their mother.

The relevant aspects of the Authority’s decision

31    The Authority observed that the statutory declaration from the first appellant dated 15 July 2018 outlined “events that purportedly occurred on Christmas Island” and raised new claims related to those events. It was satisfied that the information in the statutory declaration was “capable of being believed and, if known, may have affected consideration of the third and fourth applicants’ claims”. It was also satisfied that there were exceptional circumstances to justify considering that information. Accordingly, it stated that it had had regard to the information.

32    The Authority described the psychological reports provided on 20 July 2018 as “credible personal information that, if known, may have affected the consideration of the third and fourth applicants’ claims”. It also noted that the psychological assessments by Mr Rees could not have been provided to the delegate before the decision was made. In each case it stated that it was satisfied that there were exceptional circumstances to justify considering the information and had had regard to it.

33    On the question of the PAIS documents, however, it stated (at [18]):

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 harm the third and fourth applicants would face in Sri Lanka. I accept that – by virtue of their life events as travelling by boat from India to Australia – the first, second, third and fourth applicants were accessed [scil. assessed] by the Department as exceptionally vulnerable. Likewise, I have accepted for consideration – as new information – multiple psychological reports about the third and fourth applicants – as well as their parents – and the first applicant’s statutory declaration about the purported incident on Christmas Island. The applicants’ representative has not indicated what documents or information the Secretary does or could possess or how those documents/information – over and above the review material and new information before me – may be relevant to assessing the third and fourth applicants’ claims for protection. I have considered the applicants’ representative’s request and decided not to take steps to obtain the requested information.

34    In its summary of the appellants’ claims early in its reasons, the Authority recorded the claim that the third and fourth appellants were victims of sexual assault, that they were assessed as “exceptionally vulnerable”, and that they would experience future harm in Sri Lanka.

35    The Authority dealt with the sexual assault claim at [44]–[47] of the decision record.

36    At [44] the Authority recounted the statements made by the first appellant in her statutory declaration. At [45] it referred to the STARTTS summary of treatment reports for the third and fourth appellants. Amongst other things, it noted the account given by the first appellant about the alleged incident at Christmas Island, which was broadly consistent with the account in her statutory declaration. It also noted that the first appellant had indicated that the third appellant was born and grew up in a refugee camp in India where the family experienced many hardships and that the journey by boat from India to Australia was very traumatic. At [46] it referred to a payment or movement request completed by the appellants on 11 February 2016 which stated that the third and fourth appellants were in need of ongoing counselling and that “the family has low life skills and are vulnerable”. Its conclusion appears at [47]:

The first applicant did not mention an incident involving the third and fourth applicants on Christmas Island in her arrival interview, her statement of claims or her SHEV interview. The claim was first raised after the delegate made her decisions. The first applicant has not provided evidence of the third and fourth applicants being examined on Christmas Island or evidence contemporaneous with the purported incident. It is not clear from the STARTTS summary of psychological treatment reports for the third and fourth applicants whether the first applicant told the STARTTS counsellor about the Christmas Island incident in 2018 (the date of the reports) or in 2016 (the time when the third and fourth applicants were receiving counselling). Based on the evidence before me, I am not satisfied that the third and fourth applicants were the victims of a sexual assault within the first week of arriving on Christmas Island. I accept that – at some point in time – the third and fourth applicants were subjected to a traumatic incident or incidents and required ongoing counselling.

(Emphasis added.)

37    Having regard to the contents of the statutory declaration, the statement that the first appellant had “not provided evidence of the third and fourth [appellants] being examined on Christmas Island” should be taken to mean that the first appellant had provided no independent evidence of any examination.

38    After referring to the opinions of Mr Rees, the Authority observed that some of his conclusions had been based on the premise that the children had been victims of sexual assault. The Authority rejected the premise, stating (at [58]) that it was not satisfied that they had been victims of sexual assault but accepted that, “at some point in time”, they had been “subject to a traumatic incident or incidents and required ongoing counselling”.

39    The Authority returned to the subject at [75], reiterating what it said at [58] and going on to say that “[b]ased on the evidence”, it did not accept that the third and fourth appellants would be “at an increased risk of being sexually assaulted or raped”, “because of their past experiences”. For good measure, it added at [76] that, even if it had been satisfied that the third and fourth appellants had been sexually assaulted it would not have accepted that, because of the assault, they would be at an increased risk of sexual assault or rape in Sri Lanka. It seems that the only evidence before the Authority on this question was in the first appellant’s statutory declaration.

40    Nevertheless, at [72] the Authority did accept that the third and fourth appellants had “high anxiety, negative evaluation and low orientation to others, difficulties showing emotions to others and difficulties separating from their families”. It also accepted that they had been assessed by the Department as “exceptionally vulnerable”. Furthermore, it noted at [71] a recent DFAT report stating that mental health services in Sri Lanka are scarce, that mental illness is not widely discussed in Sri Lankan society, and that there is a stigma attached to people who seek treatment for mental illness which discourages people from doing so. At the same time, however, it noted that Sri Lankan law forbids discrimination against any person with physical, sensory, intellectual, or mental disabilities in employment, education, air travel, other public transportation, and, importantly, access to health care.

41    The Authority accepted at [72] that mental health services in Sri Lanka were scarce “compared to Australia” and acknowledged Mr Rees’ opinion that the boys would regress in their emotional functioning if they returned to Sri Lanka. But it went on to find that “mental health services are available in Sri Lanka, if the [appellants] wish to engage with them and there is no suggestion that the [appellants] will be denied access to treatment on the basis of any of the reasons specified in s 5J(l)”. “Likewise”, it observed that there was no evidence before the Authority “to indicate that access to mental health services is selective or applied in a discriminatory manner”. Consequently, it found that the “lack of mental health services in Sri Lanka does not involve systematic and discriminatory conduct and does not amount to persecution within the meaning of s.5J(4)”.

42    In substance, this means that the Authority found that there was no reason to think that any denial of access to treatment could give rise to a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion or involve systematic and discriminatory conduct which would satisfy the refugee criterion in s 36(2)(a).

43    When the Authority came to consider the complementary protection criterion in s 36(2)(aa), it noted that it was necessary to be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Sri Lanka, there was a real risk that the appellants would suffer significant harm. It referred to the definition of significant harm in s 36(2A). It accepted (at [92]) that, on return to Sri Lanka, all the appellants would have “reduced options and/or access to education and mental health services”. It also accepted that, at first, they will be viewed as different and treated with suspicion “primarily” because of their long absence from Sri Lanka. But it was not satisfied that the appellants faced a real risk of being arbitrarily deprived of their life; of facing the death penalty; or of being subjected to torture because of those reasons. Furthermore, it was “not satisfied that the poorer economic conditions in Sri Lanka that impact on wages and services are intended to cause pain or suffering, severe pain or suffering or to cause extreme humiliation so as to amount to cruel, inhumane or degrading treatment/punishment”. Consequently, the Authority was not satisfied that there was a real risk that the appellants will suffer significant harm within the meaning of the Act on their return to Sri Lanka.

The application in the court below

44    In their amended show cause application in the court below, the appellants applied for an order quashing the decision of the Authority and a writ of mandamus requiring it to determine their application according to law. Since the decision was a “privative clause decision” within the meaning of s 474(3)(b) of the Act, it could not be quashed unless it was affected by jurisdictional error: see Migration Act, s 476(1); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [65] (Edelman J).

45    The grounds upon which the relief was sought were:

(a)    that the Authority chose to disregard relevant material that could have shown the future harm the third and fourth appellants would face in Sri Lanka;

(b)    that the Authority made an erroneous finding based on speculation and guesswork; and

(c)    that in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court held that a fear of persecution is well-founded if there is a real chance that the relevant appellant will be persecuted if they are returned to their country of nationality and the third and fourth appellants faced a real chance of persecution if they were to return to Sri Lanka “as they are victims of sexual assault”.

46    Ground 1 related to the Authority’s decision not to request the PAIS documents. Notwithstanding the submission to the contrary made by the appellants’ then representative to the Authority, these documents were now said to be “new information”, which the Authority should have obtained and considered. The essence of the complaint is encapsulated in particular 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 4[7]3DD(a) and (b) of the Act.

47    The appellants submitted that, by not taking any steps to obtain the PAIS documents, the Authority “failed to fulfil the preconditions to s 473DD(b) of the Act”. His Honour considered the submission was misconceived for the following reasons.

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.

48    His Honour added that the Authority’s reasons demonstrate that it took into account the request to obtain the additional information and held that its reasons for declining to do so were not legally unreasonable.

49    The allegedly erroneous finding the subject of ground 2, according to the particulars, was the Authority’s statement that it was not satisfied that the third and fourth appellants were sexually assaulted or that, because of their past experiences, they would be at an increased risk of sexual assault or rape.

50    The appellants submitted that, if the Authority had requested and considered the PAIS documents, it might have come to a different conclusion.

51    The primary judge rejected this ground, finding that the Authority “clearly took into account and had a real and meaningful engagement with the submissions and evidence advanced in respect of that claim”, and that the Authority’s reasons were rational and logical. His Honour also referenced his previous finding that the Authority acted logically and rationally in rejecting the request for the PAIS documents. Further, his Honour stated that was there was no reason for the Authority to have found that a particular document would have been easily ascertainable in dealing with the sexual assault claim. He noted that the Authority referred to the lack of testing on Christmas Island. His Honour held that this was a “logical and rational matter to take into account”.

52    Contrary to the primary judge’s observation to this effect, there is no reference in the Authority’s reasons to the boys not having been tested on Christmas Island. Presumably his Honour was referring to the Authority’s statement that the first appellant had not provided evidence that the boys were examined on Christmas Island.

53    The basis for the allegation in ground 3 was an assertion that “there is a high probability that [the children] 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”.

54    The primary judge rejected this ground for a number of reasons.

55    First, his Honour did not accept that the Authority had failed to apply the real chance test. He said that such a proposition was inconsistent with the Authority’s reasons, pointing to several paragraphs of the reasons where the test is expressly mentioned.

56    Secondly, his Honour considered that the ground was misconceived because the Authority made no finding that the boys had been sexually assaulted.

57    Thirdly, his Honour regarded the ground as an impermissible attack on the merits of the Authority’s decision.

The appeal

58    At the hearing, Mr Turner, who appeared for the appellants and who had appeared for them in the court below, accepted that the case on the appeal was that the primary judge fell into error in rejecting the grounds of review raised in the amended show cause application. As the case was argued, each of the grounds went to the Authority’s consideration of the sexual assault claim in the context of Australia’s complementary protection obligations.

Ground 1

59    Ground 1 of the appeal is in the following terms:

The Federal Circuit Court erred in finding that there was a lack of specificity of information and a generalised reference does not require the authority to make a request for information.

60    The first four particulars are:

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)    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.

(Original emphasis.)

61    Particular e) refers to s 473DD and reproduces its contents.

62    Particular f) is identical to particular f) of ground 1 of the amended show cause application. In substance, it alleges that that the Authority misapplied s 473DD because it failed to obtain the PAIS documents knowing that they might provide more information about the incident on Christmas Island, although that information was “new information” that was credible personal information, not previously known and, had it been known, could have affected the consideration of the claims of the third and fourth appellants.

63    Particular g) alleges that the lower court “erred in finding that a generalised reference does not require the Authority to make a request for information and is not legally unreasonable”.

64    This ground relates to the findings of the primary judge at [48]–[50] of his reasons in which his Honour described the information the Authority was asked to obtain as “general information”, “[un]identified particular information” or “[un]specified information”.

65    To the extent that the first particular raises an allegation of a lack of procedural fairness, the codifying effect of s 473DA(1) is that, “except to the extent that procedural fairness overlaps with legal unreasonableness”, the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is not determined through the “lens” of procedural fairness: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091; 373 ALR 196 at [34] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ).

66    While the information was initially described in the request in general terms (all relevant documents pertaining to the determination of the [appellants’] eligibility for PAIS), it is not correct to describe the information the subject of the request as “general information” or “unidentified” or “unspecified information”. As the Authority understood, and the submissions of 20 July 2018 made clear, the request was for “all information relating to the Christmas Island incident” and medical and/or counselling treatment provided to the children since the day of the incident. Read with the statutory declaration and the STARTTS reports, that was sufficient to identify the information.

67    At the hearing of the appeal, the appellants’ solicitor, Mr Turner, submitted, in effect, by reference to the statements made by the first appellant in her statutory declaration, that those documents were contemporaneous documents relating to the sexual assault and would have included a police report and counselling records. He argued that, since the Secretary would have been responsible for the management of the Christmas Island Immigration Detention Centre, these documents would definitely have been within the Secretary’s control, if not in the Secretary’s possession. If the police did attend the detention centre, as the first appellant stated in her statutory declaration, it is likely that there would have been a police report. It is also likely that there would have been counselling records. The request failed to draw the attention of the Authority to the likelihood of a police report but it did refer to counselling records.

68    Despite the pleading, Mr Turner resiled from the proposition that the Authority had a duty to obtain the documents and it is clear that the Authority was under no such duty even upon the making of a request by the appellants. Rather, he argued that the Authority should have exercised its discretion to get the documents from the Secretary and that in failing to do so the Authority “misapplied s 473DD”.

69    The difficulty with this argument is that the Authority’s decision to decline to request the information could not give rise to a misapplication of s 473DD because that section is not engaged unless or until new information is acquired by the Authority. As Thawley J observed in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [60]

(3) Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.

(4) The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.

70    That leaves the last question raised by ground 1: whether the primary judge erred in concluding that the Authority’s decision not to obtain the documents was not legally unreasonable.

71    Like any discretionary power, the Authority’s power to get documents or information under s 473DC is subject to an implied condition that it be exercised “within the bounds of reasonableness”: see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 66 (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [61]–[71] (Gageler J).

72    Contrary to what the Authority said at [18], the appellants’ representative did indicate why, over and above the review material and the new information, the PAIS documents might have been relevant. In the submissions made on 20 July 2018, the appellants’ representative explained (without alteration):

[T]he evidence presented to the IAA (applicant mother’s statutory declaration and the STARTTS counsellor’s reports of 2016 and 2018) and the fact that two of the four applicant children (aged 10 and 12 at the present time) have undergone counselling for several years, indicates prima facie these children are likely to have experienced something horrific which has required ongoing psychological counselling. The applicant mother states counselling was provided to the two children since the incident took place on Christmas Island. It would be unreasonable to disbelieve/refuse to accept the mother’s testimony in its entirety because children under the age of 12 are not normally provided psychological counselling for a long period of time. The fact that the applicants’ were determined as PAIS eligible further supports the mother’s testimony concerning the incident on Christmas Island. It is submitted that the incident that took place on Christmas Island may well have been one of the reasons (amongst other reasons) for the applicants to be assessed as exceptionally vulnerable/PAIS eligible asylum seekers.

73    Since the Authority had identified the occurrence of a sexual assault at Christmas Island as an issue it was required to determine, any contemporaneous records in the Secretary’s possession or control that went to that issue would obviously have assisted in that determination. The Authority was not satisfied on the information supplied by the appellants that there was a sexual assault but the appellants did not profess to have all the relevant information and made that clear to the Authority. The Authority said that it was unclear from the STARTTS summaries whether the first appellant’s account of the incident was made at the time of the counselling in 2016 or at the time the reports were prepared in 2018, and it did not accept the first appellant’s account because she had not referred to the incident in her SHEV application or in the interview with the delegate. In effect, the Authority considered that the mother’s account was a recent invention. But the mother’s account indicated that there were contemporaneous documents which would have proved otherwise. While she did not produce independent evidence of a medical examination on Christmas Island or other contemporaneous evidence, her statutory declaration indicated that, if she were telling the truth, more likely than not there would be such evidence in the control, if not the possession, of the Secretary.

74    The STARTTS summaries did not rule this out. In fact, on the face of those documents the mother’s report of the incident was at least contemporaneous with the counselling sessions, three of which took place before the SHEV application was lodged. Summaries dated 17 July 2018 did not report any sessions in 2018 and the reference to the mother’s account of the assault on the third appellant and the fact that it was witnessed by the fourth appellant appears beside the heading “Summary of Treatment for period between 04/05/16 and 01/12/16” and before the words: “Upon a review session with parents on 22/11/2016”. There was a perfectly logical reason why the information was not provided in the SHEV application or interview. It is unlikely to have occurred to the migration agent or the delegate to ask about the children when they were included in the application as members of the same family unit as the first appellant and when they would have satisfied the criteria for the visa if the claims made by either of their parents were upheld. The decision about PAIS assistance was made before the SHEV application was submitted. The Authority was informed by the appellants’ then representative that “the exceptional vulnerability” of a non-citizen was a criterion for eligibility. Access to the PAIS documents might have resolved the Tribunal’s uncertainty about the time the first appellant related to the STARTTS counsellor the account of the events at Christmas Island and, ultimately, could have affected the Authority’s conclusions about the occurrence of the alleged assault.

75    In these circumstances, the failure of the Authority to exercise its discretion to request the documents might well be unreasonable. It might even have crossed the line of legal unreasonableness in that it could be regarded as “plainly unjust” and/or “lacking in common sense”: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, with whom Griffiths and Wigney JJ agreed at [87] and [90] respectively). For the following reasons, however, it is unnecessary to reach a concluded view on this question.

76    Generally, there will have been no jurisdictional error unless the error was material, that is, unless the failure to exercise the discretion could have led to a different outcome: Hossain at [31] (Kiefel CJ, Gageler and Keane JJ), [66]–[72] (Edelman J). See also Nettle J at [42]. The majority view in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [46] (Bell, Gageler and Keane JJ) is that the onus is on an applicant to establish that the outcome could have been different. In the present case the appellants failed to discharge that onus.

77    As I have already observed, the failure to exercise the discretion to get the PAIS documents might have produced contemporaneous documents to support the appellants’ claim that the third appellant had been sexually assaulted and that his younger brother, the fourth appellant, was an indirect victim, as their mother had essentially claimed. But that could not have led to a different outcome because the Authority said that, even if it had been satisfied of the sexual assault, it would not have accepted that, on that account, the boys would be at an increased risk of being sexually assaulted or raped in Sri Lanka. Further, although the Authority accepted that the boys were in need of mental health counselling, it did not accept that they were unable to access it in Sri Lanka. Nor did it accept that the scarcity of mental health services in Sri Lanka involved systematic and discriminatory conduct. In fact, it found that the lack of mental health services in Sri Lanka does not involve such conduct. The effect of that finding was that the appellants could not satisfy the Authority that they had a “well-founded fear of persecution”, since para 5J(4)(c) requires that the persecution involve systematic or discriminatory conduct. But it also means that they would not be able to satisfy the Authority that there was a real risk of significant harm if they were to return to Sri Lanka. That is because, irrespective of whether the Authority could be satisfied that the harm fell within the definition of “significant harm” in s 36(2A), any risk of harm resulting from the scarcity of mental health services was one faced by the general population of Sri Lanka. It was not a risk that was peculiar to the third and fourth appellants. The effect of para 36(2B)(c) is that any such harm is deemed not to be “significant harm” for the purpose of the complementary protection criterion in para 36(2)(aa).

Ground 2

78    Ground 2 reads:

The Federal Circuit Court erred in finding that the Authority took into account the claim and there was no finding based on speculation and guesswork.

79    As developed in the particulars, this ground relates to the Authority’s statement that it was not satisfied that the boys were victims of a sexual assault during their first week on Christmas Island. That statement was first made at [47] of the Authority’s reasons but the references in the particulars are to later parts of those reasons where they appear again, in a truncated form.

80    The particulars read:

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 [its] finding based on the evidence before it, and the PAIS documents were not before the Authority because it chose not to request those documents.

81    At the hearing Mr Turner argued that the conclusions of the Authority were illogical in the absence of probative evidence to support them. He also argued that the fact that the Authority accepted the “diagnosis” given by Mr Rees “lends credence to the factual basis on which that diagnosis [was] made”. More particularly, he submitted, the fact that the psychologist accepted the history given to him by the first appellant meant that it was more likely that the history was true or reliable.

82    This ground has no merit.

83    The Authority’s lack of satisfaction that the boys were victims of a sexual assault at Christmas Island was not without a probative foundation. The foundation for its conclusion is set out in its reasons at [44]–[47]. There is nothing illogical about it. Having regard to the “very traumatic” boat journey the children had endured to get to Australia and the experience of the third appellant in the refugee camp as reported by the first appellant, there was a perfectly logical alternative explanation for their anxieties and need for counselling. The failure to mention any sexual assault in the statement of claims annexed to the SHEV application or in the SHEV interview was unexplained. It is not to the point that other evidence, which was not before the Authority, might have persuaded the Authority to reach a different conclusion.

84    Neither could it be said that it was not open to the Authority not to accept that, if there had been such an assault, the boys would be at an increased risk of sexual assault or rape in Sri Lanka. The appellants did not point to any evidence before the Authority to indicate that there was such a risk. The Authority recognised that the first appellant had said in her statutory declaration that she feared her children could face a similar incident in Sri Lanka and that she was aware of women and children being sexually assaulted and raped at the hands of Sri Lankan authorities. But this evidence did not suggest that the children were at an increased risk because of the incident on Christmas Island.

Ground 3

85    Ground 3 alleges that:

The Federal Circuit Court erred in accepting the Authority’s conclusion that there was no finding that the third and fourth applicant were sexually assaulted or would be at risk of harm in Sri Lanka due to the incident in Christmas Island.

86    The particulars included an extract from Chan and the assertion made in the amended show cause application that the third and fourth appellants face 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”.

87    The appellants submitted that the court below erred in finding that the Authority had dealt with the real chance test and in “accepting the Authority’s conclusion that there was no finding that the third and fourth appellants were sexually assaulted or would be at risk of harm” when the evidence the appellant provided was to the contrary. Mr Turner relied on the opinion of Mr Rees that the boys require continuing mental health counselling to deal with the adverse effects of the trauma they experienced in Christmas Island.

88    It was not in dispute that the real chance test formulated in Chan (now incorporated in s 5J of the Act in the definition of “well-founded fear of persecution”) applies to the determination of whether there is a real risk a non-citizen will suffer significant harm if returned to his or her country. In any case the Full Court has so held: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [245]–[246] (Lander and Gordon JJ), at [342] (Flick J). And it is tolerably clear that the Authority understood that this was the test. It said so at [94] of its reasons.

89    The proposition that the court below erred in accepting the Authority’s conclusion that there was no finding that the third and fourth appellants were sexually assaulted or would be at risk of harm in Sri Lanka as a result makes no sense. The submission that the court below erred in finding that the boys had been victims of sexual assault when the evidence was otherwise is, as the primary judge observed, an impermissible attempt to challenge the merits of the Authority’s decision on this question.

90    At the hearing of the appeal, the allegation was reformulated. The gravamen of the complaint was that the Authority failed to give proper, genuine or realistic consideration to the chance that the boys would suffer significant harm in Sri Lanka as a result of the regression in their emotional functioning and educational attainment predicted by Mr Rees and in the light of the evidence as to the scarcity of mental health services in that country. Mr Turner submitted that there was evidence before the Authority that treatment would not be available to the boys. He submitted that this would be “cruel or inhuman treatment or punishment” or “degrading treatment” within the meaning of paras 36(2A)(d) and (e), but the submission was not fleshed out and no authorities were cited in support.

91    The Minister did not submit that leave was required to agitate this point. Rather, he submitted that the ground must fail because, having found that the third and fourth appellants were not victims of a sexual assault, it was not necessary for the Authority to consider the position in the event that they had been. The submission was based on the statement by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] that “[i]t may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected”. In any case, the Minister submitted that the Authority had considered the question.

92    Contrary to the submission made on the appellants’ behalf, it was not the evidence that continuing mental health counselling would not be available for the boys in Sri Lanka. Mr Rees doubted it would be available but he offered no foundation for that opinion. The Authority referred to country information that mental health services are scarce but it did not find that the boys would not have access to them. Indeed, it made a finding at [72] that services were available if they wished to engage with them. That finding was not impugned, although it is difficult to discern a basis for it.

93    I was taken to no evidence to support the submission that Sri Lankan communities have a negative view of sexual assault victims.

94    I do not accept the submission that the Authority did not truly consider whether there is a real risk that the appellants will suffer significant harm. It addressed the question directly at [92]-[95], after identifying the definition of “significant harm” in [91], and concluded that they would not.

95    “Cruel or inhuman treatment or punishment” is defined in s 5(1) of the Act to mean:

an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant [International Covenant on Civil and Political Rights]; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

96    “Degrading treatment or punishment” is defined in the provision to mean:

an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

97    At [92] the Authority relevantly stated:

I accept that, on return to Sri Lanka, the applicants will have reduced options and/or access to education and mental health services. Likewise, I accept that the applicants will – initially – be viewed as different and treated with suspicion primarily because of their long absences from Sri Lanka … I am not satisfied that the poorer economic conditions in Sri Lanka that impact on … services are intended to cause pain or suffering, severe pain or suffering or to cause humiliation so as to amount to cruel, inhumane or degrading treatment/punishment. I am therefore not satisfied that there is a real risk that the applicants will suffer significant harm within the s.5(1) and s.36(2A) upon their return to Sri Lanka.

98    Mr Turner argued that these conclusions were reached on the basis that there had been no sexual assault. He said that the Authority spoke “in general terms about the reduced options and/or access to education and mental health services”. He continued:

But surely, a claim that two young boys have suffered whilst in the control of the Minister have suffered serious psychological harm and that the opinion of the psychologist is that harm will not be properly addressed is not dealt with in that, in that passage … [T]he issues arising out of a sexual assault are different in nature from the issues arising out of, let’s say, the trauma of a long boat trip. Now, if – if – the first is not accepted, then the sort of mental health conditions being considered by the Authority are different from the mental health conditions which are being identified as relating to the former.

99    I was, and remain, unable to understand the argument. When I confessed as much to Mr Turner he replied:

Well, perhaps, if I could put it this way, if a mental health condition is brought about by conditions (a), events (a), then there is nothing to suggest that the condition brought about by (a) would be the same in intensity or in focus than a different type of trauma … Now, if treatment is required in respect of the trauma occasioned by that assault, then that treatment may be very different from the treatment for another sort of trauma..

100    But there was no evidence before the Authority to suggest that the cause or causes of the boys’ anxieties had any effect on the harm they could suffer if they were to return to Sri Lanka. Mr Rees did not say that the treatment they require was affected by the nature of the trauma they experienced. And Mr Turner conceded that there was no evidence that the treatment that was required might be any different.

101    Moreover, I was not taken to any evidence to indicate that, if the third and fourth appellants were to return to Sri Lanka, there is a real risk that any pain or suffering they might experience as a result of the scarcity of mental health services will be intentionally inflicted on them or that the scarcity of mental health services is intended to cause humiliation. As far as I can tell, at its highest the evidence was that there was a stigma attaching to people who seek treatment for mental illness which discourages others from doing so. By no stretch of the imagination can this rise to either “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”, as defined in subs 5(1).

102    On the day after the hearing, Mr Turner’s law firm emailed to my chambers references to three authorities concerned with the meaning of “significant harm” under s 36(2A) of the Act: SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 at [43]–[49] (Mansfield J); Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]–[20] (Lander, Jessup and Gordon JJ); and SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [3]–[5] (Kiefel CJ, Nettle and Gordon JJ), [33], [44]–[58] (Gageler J, in dissent). None of these references assisted the appellants’ case.

103    Ground 3 must fail.

Conclusion

104    For all these reasons, the appeal should be dismissed with costs.

Associate:

Dated:    12 March 2020

SCHEDULE OF PARTIES