FEDERAL COURT OF AUSTRALIA

AWG18 v Minister for Home Affairs [2020] FCA 744

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court of Australia on 30 July 2018 are set aside and in their place, it is ordered that:

(a)    the constitutional writs of mandamus and certiorari issue quashing the decision of the Immigration Assessment Authority (the “Authority”) dated 8 February 2018 and remitting the matter to the Authority to be determined according to law;

(b)    the first respondent pay the applicants’ costs of the proceeding.

3.    The first respondent pay the appellants’ costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal by four appellants. The appellants are a Tamil Sri Lankan family comprising a husband and wife and their two daughters. The husband and wife and elder daughter arrived in Australia on 23 April 2013 as unauthorised maritime arrivals. The younger daughter was born in Australia in February 2014.

2    On 15 December 2016, the appellants lodged an application for a Safe Haven Enterprise visa (XE-790) (the “Safe Haven visa”) pursuant to s 35A and s 36 of the Migration Act 1958 (Cth) (the “Act”). One of the claims of the husband was a fear that his wife and daughters would be at risk, if the appellants returned to Sri Lanka, of sexual and physical assault by Sri Lankan authorities as Tamil women who formerly resided in the north and east of the country (in Batticaloa in the Eastern Province of Sri Lanka).

3    At para 106 of a submission dated 6 September 2017 and lodged with the Department of Immigration and Border Protection by email that day by “RAILS Refugee and Immigration Legal Service Inc” on behalf of the appellants, the author of the submission says that the husband is concerned about “the risk of physical and sexual assault by the Sri Lankan authorities against his wife and daughters, as they are vulnerable females”. That observation is the opening paragraph of a topic described as “Fear of persecution faced on the basis of being Tamil women in Sri Lanka”.

4    I will return to aspects of that submission later in these reasons.

5    On 24 October 2017, the Minister’s delegate refused the application for the Safe Haven visa for each appellant.

6    The delegate’s decision was referred to the IAA under the provisions of the Act.

7    On 8 February 2018, the IAA affirmed the decision of the Minister’s delegate refusing each application.

8    The appellants sought judicial review of the IAA’s decision and sought the grant of the constitutional writs before the Federal Circuit Court of Australia. That application was dismissed with costs on 30 July 2018. The primary judge delivered ex tempore reasons explaining the basis of the orders made that day: AWG18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2150.

9    The appellants filed an amended notice of appeal from the orders and decision of the Federal Circuit Court relying on the following three grounds of appeal:

1.    [The primary judge] erred in finding that the [IAA] had addressed an integer of the Appellants’ claims, namely that the Second, Third and Fourth Appellants were Tamil females.

2.    [The primary judge] erred in finding that the [IAA] had not ignored evidence (namely, evidence regarding the risk of harm to the Second, Third and Fourth Appellants as a result of being Tamil females) and erred in finding that the [IAA] had not failed to take into account a relevant consideration (namely, that the Second, Third and Fourth Appellants were Tamil females).

3.    [The primary judge] erred in finding that the [IAA’s] decision was not illogical or irrational.

10    I propose to now identify the way in which counsel for the appellants put the case for the appellants in support of the grounds of appeal.

11    The starting point is the submission of 6 September 2017 mentioned earlier.

12    The following paragraphs of that submission are identified as highlighting a contended “clear conjunction” between the gender of the appellant wife and two daughters and their Tamil ethnicity on the one hand, and their fear of harm by virtue of ongoing reports of sexual violence by security forces specifically against Tamil women, on the other hand. The paragraphs in the submission emphasised by the appellants are paras 106 and 107 and paras 111, 112 and 114. Those paragraphs are quoted below and I have included paras 108, 109, 110 and 113 in order to put the emphasised paragraphs in context. In the paragraphs emphasised by the appellants quoted below, I have also marked in bold the particular text emphasised by the appellants:

Fear of persecution faced on the basis of being Tamil women in Sri Lanka

106.    A fear of harm that the first applicant is also concerned of is the risk of physical and sexual assault by the Sri Lankan authorities against his wife and daughters, as they are vulnerable females.

107.    Sexual and gender-based violence still persists in Sri Lanka. According to a 2016 report by the International Truth and Justice Project Sri Lanka (ITJP),

‘One year after the change of government in Sri Lanka the security forces continue to detain, torture and sexually violate Tamils in a network of sites across the island.’ [Citing an ITJP Report entitled “Silenced: Survivors of Torture and Sexual Violence in 2015”, January 2016].

108.    More recently, a report by Amnesty International notes that impunity persists for violence against women, including acts of rape by military personnel and civilians and situations of domestic violence. [Citing an Amnesty International Report in relation to Sri Lanka dated 22 February 2017].

109.    According to the 2017 DFAT Country Information Report Sri Lanka, there are ongoing claims of sexual assaults and rape attributed to the military in both the north and the east. [Citing a Country Information Report of the Department of Foreign Affairs and Trade concerning Sri Lanka dated 24 January 2017]. The [ITJP], as of 20 February 2017, had sworn statements from 71 women regarding torture and horrific assaults while held in state custody under the new Government of President Sirisena. [Citing an ITJP Submission to the Convention of the Elimination of All Forms of Discrimination Against Women (“CEDAW”), 20 February 2017].

110.    On 31 January 2017, UN Human Rights Council, Report of the Special Rapporteur on minority issues on her mission to Sri Lanka, stated that:

‘Women in the North and East continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization … The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity and security on a daily basis. While the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army in the North and East, a climate of fear remains among the Tamil women in an area where the military presence has continued.’ [Citing an UNHRC Report of the Special Rapporteur on minority issues on her mission to Sri Lanka, 31 January 2017, para 40].

111.    Despite the fact that the Sri Lankan Ministry of Defence has [publicly] refuted allegations of sexual exploitation of Tamil women and endorsed a “Zero Tolerance Policy on sexual abuses” [citing a document of 18 February 2017 published by the Ministry of Defence entitled “Army Refutes Allegations of Sexual Exploitation of Tamil Women”], there remains widespread evidence to the contrary.

112.    A recent UK Government report observed that:

‘Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region, but their lives are even more negatively impacted by the climate of fear and by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault.’ [Citing UK Home Office Report entitled “Country Information and Guidance – Sri Lanka: Tamil Separatism”, May 2016].

113.    In a Public Submission to the Committee on the Elimination of Discrimination against Women, the [ITJP] Project recorded that,

‘Since he assumed power two years ago, President Sirisena and his government have failed in their duty to investigate credible allegations, inter alia from the UN, that there was a deliberate policy of using sexual violence to inflict torture.’ [Citing ITJP Submission to CEDAW, 20 February 2017].

114.    The most recent United States Country Report on Human Rights Practices for 2016, released in March 2017, states that Tamil women often have great difficulty accessing services for assisting survivors of rape and domestic violence:

‘[l]anguage barriers between service providers and victims … were reported in the north and east, where Tamil speaking victims lacked access to Tamil speaking service providers.’ [Citing the US Report quoted above, dated 3 March 2017].

13    In paras 107, 111, 112 and 114, emphasised by the appellants, there are specific references to the position of “Tamil women”. Paragraph 110 also refers specifically to “Tamil women”.

14    In support of these claims, the appellants attached a document to the submission of 6 September 2017 entitled “Country Information: Sri Lanka”. This document contains a summary of various reports setting out country information in relation to Sri Lanka and, in particular, the document addresses risks faced by minority groups described as: “Tamils with associations (imputed or actual) to the LTTE; individuals with (imputed or actual) anti-government political agendas; Returnee Tamils; Tamil women”. As to the topic of “Tamil women” (a topic addressed at pp 17 to 19 of the document), the appellants emphasise the following observations. Again, the text emphasised in bold by the appellants is identified in bold in the text quoted below:

Violence against Tamil women

Unfortunately, sexual and gender-based violence still persists in Sri Lanka. According to a 2016 report by the [ITJP], “one year after the change of government in Sri Lanka the security forces continue to detain, torture and sexually violate Tamils in a network of sites across the island”. More recently, a report by Amnesty International notes that impunity persists for violence against women, including acts of rape by military personnel and civilians and situations of domestic violence.

On 31 January 2017, UN Human Rights Council, Report of the Special Rapporteur on minority issues on her mission to Sri Lanka, stated that:

‘Women in the North and East continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization … The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity and security on a daily basis. While the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army in the North and East, a climate of fear remains among the Tamil women in an area where the military presence has continued.’

Despite the fact that the Sri Lankan Ministry of Defence has [publicly] refuted allegations of sexual exploitation of Tamil women and endorsed a “Zero Tolerance Policy on sexual abuses”, there remains widespread evidence to the contrary.

According to the 2017 DFAT Country Information Report Sri Lanka, there are ongoing claims of sexual assaults and rape attributed to the military in both the North and East. The [ITJP], as of 20 February 2017, had sworn statements from 71 women regarding torture and horrific assaults while held in state custody under the new Government of President Sirisena.

A recent UK Government Report observed that Tamil women are being particularly targeted for sexual violence:

‘Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region, but their lives are even more negatively impacted by the climate of fear and by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault.’

In February 2017, the Chairman of the Office of National Unity and Reconciliation, former President Chandrika Kumaratunga, released a media statement announcing that Tamil women who survived Sri Lanka’s civil war now face widespread sexual exploitation by officials in their own community, as well as from the army. In particular, Chandrika Kumaratunga addressed the plight of Sri Lankan war widows, stating that:

‘women who were widowed during the 37-year conflict were among the victims of abuse by officials who frequently demand sexual favours just to carry out routine paperwork.’

The most recent United States Country Report on Human Rights Practices for 2016, released in March 2017, states that Tamil women [often] have great difficulty accessing services for assisting survivors of rape and domestic violence:

‘[l]anguage barriers between service providers and victims … were reported in the north and east, where Tamil speaking victims lacked access to Tamil speaking service providers.’

Female-headed households, which amount to approximately one in four households in Sri Lanka, are particularly vulnerable to sexual exploitation by community leaders, family members and the military, particularly displaced women attempting to claim land belonging to their disappeared husbands. Women in these circumstances face a lack of physical security, lack of permanent housing and economic opportunities and difficulties accessing health services.

15    The point made by the appellants, based on the material quoted at [14] of these reasons taken together with the paragraphs the appellants emphasise from their submission (quoted at [12] of these reasons), is that they say the material clearly raised, as an integer of their claim, the concern or fear that the wife and daughters may be subject to sexual violence by reason of their status as Tamil females and particularly so because they resided in the former conflict zone in the north and east of Sri Lanka.

16    The appellants say that the primary judge at [14] of his Honour’s reasons recognised this integer by observing: “What is obvious in the claim that has been made, is that the concern is not just because his wife and daughters are women it is because his wife and daughters are women in the eastern part of Sri Lanka and because they are Tamil women in the eastern part of Sri Lanka” [emphasis added].

17    The appellants observe that the delegate dealt with the claim as it related to the wife and daughters and in doing so the delegate accepted evidence of ongoing violence, rape and harassment by security forces against Tamil women in the north and east of the country. The appellants put emphasis upon the findings of the delegate on the footing that the findings are said to recognise the link contended for between the gender of the wife and daughters and their “Tamil ethnicity”, in so far as the contended fear of harm by the security forces is based upon things that can happen, to “Tamil women”. The appellants emphasise the following observations of the delegate at p 13 of the delegate’s decision, addressing the topic of “Gender Based Violence”. The delegate introduces the topic in these terms:

The applicant had claimed in his written statement of claims that he feared “that my wife and daughters will be at risk of physical and sexual assault by the authorities, as they are vulnerable females”. Although his wife and children did not actually make claims of their own, I will consider this aspect.

18    The delegate makes these further observations at p 13:

Violence against women occurs throughout Sri Lanka. UNFPA reported in 2015 that violence against women cut across all socioeconomic groups in Sri Lanka but was worst in areas affected by the conflict. There have been a number of allegations of sexual assaults and rape attributed to the Sri Lankan military in the north and east. Overall, DFAT assesses that women throughout all of Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in these circumstances [quoting a DFAT Country Information Report dated 24 January 2017].

19    The delegate makes these further observations at p 13 emphasised by the appellants. Again, I emphasise in bold the particular parts of the text emphasised in bold by the appellants:

Even since the end of the conflict, Tamil [women’s] lives were circumscribed by the threat of violence and ever-diminishing economic opportunities. Militarization has meant both the omnipresent possibility of sexual violence by state security forces, and the deterioration of community networks. Many Tamil women have been raped by Sri Lankan military, especially in the immediate post-war period, but many more have seen their activities constrained by the climate of fear. And while the rate of sexual violence perpetrated by security forces against Tamil women has declined (but not disappeared), earlier violations remain unaddressed, and the strictures on women’s lives have only been further entrenched. [Citing “The Forever Victims? – Tamil Woman in Post-War Sri Lanka”, Colin Powell School for Civic and Global Leadership, The City College of New York, 28 August 2015].

20    Having considered those matters, the delegate reached this conclusion:

However, there is nothing before me to indicate that the CID, Sri Lankan Army or other enforcement agencies are currently actively perpetrating violence against women on behalf of the state or other actors. While acknowledging the above country information and the prevalence of violence against women, there is nothing before me to consider that in the present day, women are persecuted in Sri Lanka on account of their gender. Accordingly, I am satisfied the applicant’s wife and daughters do not hold a well-founded fear of persecution on account of their gender.

21    The delegate’s decision to refuse the application for a protection visa was referred to the IAA under the provisions of the Act.

22    At para 4 of the IAA’s decision, the IAA summarises the claims made by the appellant by reference to 10 dot points. One of the claims summarised by the IAA is put this way: “He [the husband] also particularly fears that his wife and daughters will be at risk of physical and sexual assault by the authorities, as they are vulnerable females”.

23    The appellants contend that the IAA deals with a fear of harm based on ethnicity under the heading “Tamils from the east, LTTE links, imputed political opinions” at paras 26-46 of its decision. The appellants contend that aside from a brief mention of “women in certain circumstances” at para 34 (under the topic of groups of people the UNHCR considers may be in need of protection), the IAA does not otherwise deal with the question of gender in its decision at paras 26-46. The appellants say that in this part of the IAA’s reasons for decision, there is no mention of claims of sexual violence against Tamil women by Sri Lankan authorities. The appellants also note the IAA’s observations at para 44 which is an expansion upon the observation made at para 3 of the IAA’s reasons. At para 3, the IAA notes that the husband is the primary applicant in the matter and that his wife and two daughters make claims as members of the husband’s family “and make no protection claims of their own”. At para 44, the IAA repeats that the three female members of the family make no protection claims of their own. At para 44, the IAA is addressing the question of whether there is a basis for a well-founded fear of persecution and thus a risk of harm by reason of “any real or perceived LTTE links” or for “any imputed political opinion, as Tamils from the east and/or because of [the husband], or that there is a real chance of harm if they return to Sri Lanka now or in the foreseeable future”.

24    At para 44, the IAA said this:

[The three female members of the family] make no protection claims of their own. Given they make no individual protection claims, and as [the husband] does not have a profile that makes him of adverse interest to the Sri Lankan authorities, I am satisfied that they do not have profiles, including as relatives of [the husband], that country information suggests they are at risk of harm. I do not consider that they would face adverse action of any kind from the Sri Lankan authorities for any real or perceived LTTE links, for any imputed political opinion, as Tamils from the east and/or because of [the husband], or that there is a real chance of harm if they return to Sri Lanka now or in the foreseeable future.

[emphasis added]

25    At para 45, the IAA addresses questions in relation to the elder daughter (described as Applicant 3) and the younger daughter (described as Applicant 4). At para 45, the IAA said this:

Applicant 3 does not claim, and there is no other evidence to suggest, that she was a child soldier, sex worker, or child labourer in Sri Lanka or that Applicants 3 and 4 are facing underage marriages. Applicant 4 was born in Australia. Applicants 3 and 4 do not have profiles that country information suggests they are at risk of harm. I do not accept that Applicants 3 and 4 would face a real chance of harm whether as children or because of any adverse interest from the Sri Lankan authorities as previously discussed, if they return to Sri Lanka now or in the foreseeable future.

26    The appellants contend first, that it was not at issue before the primary judge, and second, it appears to have been accepted by the primary judge, that the IAA “should” have considered the husband’s claims as they related to his wife and daughters. The appellants say that the Minister’s delegate proceeded on the correct basis that the claim of fear of harm to the husband’s wife and daughters ought to have been assessed and was assessed by the delegate. The appellants say that the findings of the IAA at para 44 is “further evidence” that the IAA did not consider the appellants’ claims with respect to a fear of harm from Sri Lankan authorities “based on being Tamil females”.

27    From paras 47 to 51, the IAA addresses specifically the topic of “Vulnerability due to gender”. The reasoning on this topic, contained in these paragraphs, is set out below:

47.    Applicant 1 claims to fear for Applicant 2, Applicant 3 and Applicant 4, if they are returned to Sri Lanka, because they will be vulnerable as females to the risk of physical or sexual assault from the authorities.

48.    I accept that women in Sri Lanka may be vulnerable. Harassment, rape and other forms of sexualised violence are acknowledged as serious social problems. Rape and domestic violence are criminalised in Sri Lanka under the Prevention of Domestic Violence Act 2005 (Sri Lanka) and sexual harassment is a punishable offence. However, enforcement of the law is inconsistent and sexual assault, rape and spousal abuse are pervasive social problems. DFAT assesses that reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas, but the majority of cases are likely to go unreported due to social stigma [citing the DFAT Country Information Report of 24 January 2017].

49.    However, there has been some progress. The Police Bureau for the Prevention of Abuse of Women and Children conducted awareness programs to encourage women to file complaints and the police continue to establish women’s units in police stations. DFAT assesses that all Sri Lankan citizens have access to redress through the police, judiciary and the HRC regardless of religion or ethnicity [citing the DFAT Country Report of 24 January 2017], though language issues can be an effective barrier to policing issues and there is a lack of female police officers. President Sirisena has also expressed a commitment to taking action to prevent the abuse of women and children, including speeding up the trial process for these offences. He canvassed the possibility of implementing the death penalty for such offences in the wake of public outrage over a number of recent high-profile cases of violence against women and girls [citing the DFAT Country Report of 24 January 2017].

50.    Additionally the country information suggests the women in female-headed households, and those in the north, are particularly vulnerable, and although DFAT assesses that overall women in Sri Lanka face a high risk of societal discrimination and violence, that risk particularly relates to domestic or intimate partner violence [citing the DFAT Country Report of 24 January 2017].

51.    Considering the country information, and given that Applicants 2, 3 and 4 will be returning to the east, Applicant 1 will be present with the family/household, and there is no suggestion the applicants are at risk from domestic or intimate partner violence, I am not satisfied that Applicants 2, 3 and 4 face [a] real chance of serious harm on return to Sri Lanka on the basis of their gender.

28    The appellants contend that, critically, the only reference in the IAA’s decision to the risk of harm to the wife and daughters was as a result of “their gender”. The appellants contend that there is no reference in the IAA’s decision to any consideration, or finding, of vulnerability of the female appellants as a result of their “being Tamil females”. That is to say, the IAA is said to have “entirely overlooked that claim” and thus the IAA has fallen into jurisdictional error in the sense, it is said, contemplated in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (in the sense contemplated by McHugh, Gummow and Hayne JJ at [82]). The essential contention is that the IAA fell into jurisdictional error in three ways.

29    First, the IAA failed to address a specific integer of the appellants’ claims.

30    Second, the IAA ignored evidence, including country reports, set out in the appellants’ submissions before it (being those references in the appellants’ material quoted at [14] of these reasons) and failed to take into account a relevant consideration (namely, that the wife and daughters were Tamil females).

31    Third, the decision is illogical or irrational.

32    As to the grounds of appeal, the appellants contend that the primary judge fell into error by finding that the IAA had addressed the integer of the appellants’ claims concerning a claim of a well-founded fear of harm to the three female members of the family because they were Tamil females; by holding that the IAA had not ignored evidence (namely, evidence regarding the risk of harm to the wife and daughters as a result of their being Tamil females); by holding that the IAA had not failed to take into account a relevant consideration (namely, that the wife and daughters were Tamil females); and, by holding that the IAA’s decision was not illogical or irrational. The appellants say that the husband’s claim to hold a well-founded fear of persecution due to a fear of a likelihood of real harm being caused to his wife and daughters as Tamil women was “squarely raised” on the material, but not addressed. The factors said to recognise such a claim were these.

33    First, the delegate accepted that the male appellant (and his wife and elder daughter and by family membership the younger daughter born in Australia), originate from the Eastern Province of Sri Lanka “a Tamil majority and formerly LTTE-controlled area and the site of intense wartime fighting”. The delegate had earlier accepted the Tamil ethnicity of the appellants.

34    Second, the appellants emphasised the claims at paras 106, 107, 111, 112 and 114 of the submission of 6 September 2017 (which paragraphs are set out in context at [12] of these reasons) and the matters set out under the heading “Violence against Tamil women” (see the emphasised passages at [14] of these reasons).

35    Third, the delegate in addressing the claim, outlined and accepted evidence of ongoing harassment and physical and sexual violence committed by Sri Lanka security forces against Tamil women in the north and east of Sri Lanka.

36    In relation to ground 1, the appellants say that a claim which is “plain on the face of the material” before the IAA, that is, a claim which emerges clearly from the material and arises out of a factual foundation (sometimes described as “established facts”), must be considered by the IAA. The IAA may fail to be satisfied that the claimant holds the claimed “well-founded” fear but the claim must be considered to determine whether the various factual contentions, if accepted, would enable the IAA to be satisfied that the relevant statutory matters are met.

37    The appellants contend that the IAA failed to address the claim of a well-founded fear that the wife and daughters faced a real risk of serious harm in the form of physical and sexual violence from Sri Lankan authorities on the basis that they are Tamil women residing in the north and east of the country. The appellants note [14] of the primary judge’s reasons (set out at [16] of these reasons). The appellants note that at [17] and [19] of the primary judge’s reasons, his Honour sets out paras 47-49 of the IAA’s reasons.

38    The appellants emphasise para 51 of the IAA’s reasons which are said to contain the conclusion emerging out of paras 47-50. The conclusion at para 51 is based upon these considerations.

39    The first is “the country information”.

40    The second is an acceptance that the three female appellants will be returning to the east of Sri Lanka together with the male appellant who will be present within the family/household.

41    The third is that there is no suggestion that the female appellants are at risk from domestic or intimate partner violence.

42    The IAA finds that, “considering” those matters, “I am not satisfied that Applicants 2, 3 and 4 face [a] real chance of serious harm on return to Sri Lanka on the basis of their gender” [emphasis added].

43    The appellants contend that “it is plain” that para 51 of the IAA’s decision is confined to a consideration of “simply the gender” of the three female appellants with no consideration of their circumstances as Tamil women.

44    The primary judge concluded that the “cumulative nature” of the three women appellants as not just women, but rather women who are vulnerable women, and who are vulnerable Tamil women, had been considered by the IAA as questions of “religion” and “ethnicity” were “part of the vulnerability of the women”: primary judge at [21]. At [22], the primary judge found that the IAA in looking at “religion” and “ethnicity”; the “particular circumstances” of the female appellants; and the reports referred to by the IAA, had taken into account the vulnerability of the three female appellants.

45    At [23], the primary judge noted that the male appellant had described his wife and daughters as “vulnerable females” which, in his Honour’s view, “encapsulated the fact that they were women who were Tamil women who were in the east of Sri Lanka and were – if they were in that place, subjected to the presence of military personnel”. At [24], the primary judge concluded that it could not be said that the IAA failed to address the integer.

46    The appellants contend that the “cumulative” characteristics of the female appellants were not considered and that which was “obvious in the claim” to the primary judge at [14] of his Honour’s reasons, as “the concern” agitated before the delegate and the IAA, was not considered by the IAA.

47    In relation to ground 2, the appellants say that the IAA ignored evidence concerning the risk of harm to the three female appellants as a result of their being Tamil women (and the primary judge erred in not so holding). The appellants contend that consistently with what was claimed, the appellants relied on the following evidence to support the claim of a well-founded fear of persecution due to a fear of a real risk of serious harm, from the authorities, to the female appellants as Tamil women.

48    First, as a matter accepted by the IAA, the appellants were Tamils from Batticaloa in the Eastern Province of Sri Lanka which was formerly under the control of the LTTE and had fallen under the control of the Sri Lankan military.

49    Second, the appellants rely on reports either referenced or quoted in the submissions document of 6 September 2017 or in the country information summary. In particular, the appellants rely on three documents which note sexual violence against Tamil women (and specifically Tamil women in Northern Sri Lanka) and the climate of fear remaining among Tamil women in areas where a military presence has continued.

50    The first document is the ITJP Report entitled Silenced Survivors of Torture and Sexual Violence in 2015, of January 2016, and the extract quoted at para 107 of the submission of 6 September 2017, quoted at [12] of these reasons.

51    The second is a United Kingdom Home Office Country Information and Guidance – Sri Lanka: Tamil Separatism document of May 2016, and in particular, the first two lines of the extract quoted at para 112 of the submission of 6 September 2017, quoted at [12] of these reasons.

52    The third is the report of the Special Rapporteur on minority issues, “UN Human Rights Council – Note by Secretariat”, dated 31 January 2017 quoted at para 110 of the submission of 6 September 2017, quoted at [12] of these reasons. The appellants also note that the Minister’s delegate cited a DFAT Country Information Report on Sri Lanka dated 24 January 2017 which contains the observations quoted at [18] of these reasons referring to violence against women and allegations of sexual assaults and rape in the north and east attributed to the Sri Lankan military, said to be worst in areas of the conflict. The appellants emphasise that the delegate recognised that the point the male appellant (for all appellants) was seeking to assert was a fear based on the particular characteristic of the female appellants as Tamil women. The appellants emphasise the delegate’s observation that “[m]any Tamil women have been raped by Sri Lankan military, especially in the immediate post-war period, but many more have seen their activities constrained by the climate of fear”.

53    The appellants also emphasise the observations of the delegate concerning the circumstances for Tamil women “even since the end of the conflict”, and note particularly the entire passage quoted at [19] of these reasons with the particular focus on the position in relation to Tamil women and both the “omnipresent possibility of sexual violence by state security forces and the deterioration of community networks” as features consistent with the claimed well-founded fear of persecution.

54    Grounds 1 and 2 are ultimately said to come together on the footing that the IAA, in concluding that the three women appellants were at no risk of their feared sexual violence, failed to take into account an integer of the claim that the women appellants were “Tamil women” (“as opposed to simply Tamil or simply Tamil women”, that is, “ethnicity and gender”), residing in the north and east of the country. The appellants say that the IAA ignored evidence going to that particular matter. The appellants contend that the IAA focused “solely” on evidence concerning the “gender” of the women appellants; failed to mention the Tamil ethnicity of the three female appellants and the contended increased risks of serious harm associated with their ethnicity and gender; and ignored evidence that the three women appellants were from the “east” of Sri Lanka, ignoring evidence that Tamil women in the north and east were at risk of serious harm.

55    The contention is that the primary judge fell into error by failing to identify these contended errors of jurisdiction on the part of the IAA.

56    In relation to ground 3 (irrationality and illogicality in the reasoning process), the appellants contend that the IAA’s decision is relevantly reflected, for present purposes, in the reasoning at para 51. The elements of para 51 are set out at [27] of these reasons and are discussed at [38]-[43] of these reasons. At [25] of his Honour’s reasons, the primary judge observes that the IAA did not find that “married Tamil women or their daughters are not at risk of violence by the Sri Lankan military”. The conclusion that the IAA could not reach a state of satisfaction that the women appellants face a real chance of serious harm on return to Sri Lanka “on the basis of their gender” arises out of the IAA “considering” the three factors earlier identified at [39]-[41] of these reasons.

57    There are said to be two problems with the IAA’s reasoning which are said to render the reasoning irrational and illogical.

58    First, if women in female-headed households are particularly vulnerable, it does not follow that women in male-headed households are not. Second, the absence of any risk of “domestic or intimate partner violence” to the wife or daughters does not support a conclusion that the risk of real harm to the wife and daughters of “sexual violence by the authorities” is reduced.

59    Thus, the reasoning at para 51 is said not to support the conclusion reflected in the paragraph.

60    Each of these three grounds of appeal are contested by the Minister.

61    Before examining each ground of appeal and the contentions of the Minister, it is necessary to examine the elements of the IAA’s decision. At para 4, the IAA summarised the claims for protection of the male [first] appellant. The IAA accepted that the appellants are nationals of Sri Lanka: IAA, para 5. It accepted that the male appellant was born in Batticaloa in the Eastern Province of Sri Lanka and lived there for most of his life except for a period of three years when living in Qatar. It accepted that his wife (the second appellant) was also born in the Eastern Province and lived in a particular part of the Province until about 2008 when she commenced living with her husband in Batticoloa. The couple’s first child was born in Batticoloa. The family lived with the wife’s mother briefly in 2013 before leaving Sri Lanka. The second child was born in Australia in February 2014.

62    Thus, the IAA recognised that the first three appellants are Sri Lankan nationals from the Eastern Province of the country (and so too is the fourth appellant by family membership).

63    At para 7, the IAA notes that the male appellant claimed that he left Sri Lanka because he feared for his life, as he feared harm from unknown men who had previously kidnapped him (and who he believes worked for a paramilitary force connected with the Criminal Investigation Department (CID) of the Sri Lankan Police Services). The IAA also notes that the male appellant feared that he would be targeted as authorities believe that he has ties with the Liberation Tigers of Tamil Eelam (“LTTE”). Other claims are summarised at para 4 including a claim that he “particularly fears that his wife and daughters will be at risk of physical and sexual assault by the authorities as they are vulnerable females”.

64    At paras 8-14, the IAA examines the content of a range of claims made by the male appellant of search and arrest at checkpoints operated by the Sri Lanka Army (“SLA”), arrest or abduction by authorities, torture and release. Those claims across the period from particularly 2009 to early 2013 (but also taking into account claims of events reaching back to the earlier 2000s) are examined at paras 17-21 of the IAA’s decision. At para 22, the IAA rejected the male appellant’s claims concerning the events in 2009, as a fabrication. The IAA accepted the claims concerning the events of January 2013. The IAA also said this at para 22: “I am also prepared to accept, based on country information about the incidents of abduction at the time and the ongoing harassment of Tamils in the north and the east by the Rajapaksa government, that the men [carrying out the abduction and torture] were CID or otherwise from the Sri Lankan authorities”. The IAA also accepted at para 22, based on his consistent claims “and the country information indicating that Tamils were routinely harassed during the war and under the Rajapaksa government”, some aspects of the male appellant’s claims of being held briefly (one or two days) on suspicion of LTTE involvement.

65    These matters at [63] and [64] of these reasons, are not immediately under challenge by the appellants. However, the analysis of these claims from paras 8-22 of the IAA’s decision is contextually important because they engage the IAA in an analysis of claims of conduct concerning a person who was recognised by the IAA as a Tamil from the Eastern Province; a person recognised by the IAA as married to a Tamil from the Eastern Province; a claim concerning a Tamil couple with two Tamil daughters; and claims informed by country information indicating that Tamils were “routinely harassed” by government authorities during the war under the Rajapaksa Government.

66    At this point in the analysis, the IAA understood that it was addressing claims concerning a male Tamil, married to a Tamil woman who is the mother of two Tamil daughters.

67    The IAA’s assessment of the claims of the appellants to hold a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act, commenced at para 24 of the IAA’s reasons for decision.

68    The IAA analysed the claims of the appellants by examining the basis for those claims by reference to four topics for examination. They were claims to hold a well-founded fear of a real risk of serious harm as “Tamils from the east, LTTE links, imputed political opinions”; by reason of “Vulnerability due to gender”; and as “Returning asylum seekers and illegal departures from Sri Lanka”.

69    As to the first topic, the IAA recognised that country information indicates that Tamils claim to have been subject to “longstanding, systematic discrimination in university education, government employment and other matters controlled by the state, and that monitoring and harassment continues” (citing a United States Department of State (USDOS) “Country Report on Human Rights Practices 2016 – Sri Lanka”, dated 3 March 2017 (the “USDOS Report, 3 March 2017”)).

70    The IAA notes that following the end of the war, there were continuing criticisms that, particularly in the north, the involvement of the military in civilian governance and the local economy led to a shrinkage of civil society and that Tamils felt (due to limits on freedom of assembly and freedom of speech), that they were “effectively a subjugated community”. The IAA notes the “significant changes” since the election of the Sirisena Government in 2015, constitutional reforms and greater dialogue with human rights organisations: IAA, para 26. At para 27, the IAA notes that the Sirisena Government “implemented a number of confidence-building measures to address the long-standing grievances of the Tamil community” (citing the USDOS Report, 3 March 2017).

71    At para 27, the specific content of those measures are discussed. The IAA notes at para 27 that: “The government has a variety of ministries and bodies designed to address the social and developmental needs of Tamils, with the two main bodies headed by Tamils” (citing the USDOS Report, 3 March 2017). At para 28, the IAA notes that the Department of Foreign Affairs and Trade (“DFAT”), in its “Country Information Report Sri Lanka” dated 24 January 2017 (the “DFAT Report”, 24 January 2017), states that Tamil inclusion in the political dialogue in Sri Lanka has increased under the Sirisena Government and that Tamils have a “substantial level of political influence”. The IAA notes at para 29 that during the war, more Tamils were detained under emergency powers than any other ethnic group primarily because LTTE members and supporters were “almost entirely Tamil”. The IAA also notes that DFAT assesses that monitoring and harassment of Tamils in day-to-day life has “decreased significantly” and although there is still a sizable military presence in the north and east, it is largely idle and generally restricted to barracks: IAA, para 30.

72    The IAA also notes at para 30 that the Tamil community has described a positive shift in the nature of interactions with the authorities and that members of the Tamil community “feel able to question the motives of, or object to, monitoring or observation activities”. At para 31, the IAA observes that country information (the DFAT Report, 24 January 2017), indicates that monitoring and harassment of Tamils in the north and east has significantly decreased and “there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved”.

73    At para 32, the IAA concludes that it is “not satisfied that there is a real chance that the [appellants] would, as Tamils from the east, face harm from societal discrimination” if returned to Sri Lanka.

74    At para 34, the IAA notes that the UNHCR in its “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012, considers that particular groups of people may be in need of protection including politicians, journalists, human rights activists and, among others, “women in certain circumstances”. The IAA notes that the UNHCR recognises that each case depends on its individual circumstances. The IAA, at para 37, recognises that although acts of violence involving former LTTE members have “significantly reduced” since the end of the war, there are “credible reports” of torture by security forces during and immediately after the war, although Tamils faced a higher risk of torture during the war. The IAA at para 37 notes the DFAT Report, 24 January 2017, that “Sri Lankans face a low risk of mistreatment that can amount to torture, mostly perpetrated by the police, irrespective of their religion, ethnicity, geographical location or other identity; that the incidence of torture has reduced in recent years; and that the allegations of torture pertain to a relatively small number of cases compared to the total population”.

75    At para 38, the IAA notes the United Kingdom Home Office Report of 15 June 2017 which discusses protection claims based on a person’s actual or perceived significant involvement with the LTTE and their involvement in “post-conflict Tamil separatism”. The IAA notes the observation in the report that “simply being a Tamil does not give rise to protection claims”.

76    At para 39, the IAA notes “credible reports” (citing the USDOS Report, 3 March 2017) that the military and security forces have abducted, tortured, raped and sexually abused citizens.

77    At paras 40-43, the IAA examines aspects of the facts relied upon by the male appellant. Various findings are made about those matters. Reaching those findings engaged the IAA in examining the events said to have occurred as the male appellant regularly travelled from an area controlled by the army into four areas in the Batticaloa District controlled by the LTTE in the relevant years.

78    At paras 44 and 45, the IAA expressed observations concerning the three women appellants specifically. Those paragraphs are quoted at [24] and [25] of these reasons.

79    As already mentioned, at paras 47-51, the IAA addresses the topic of “Vulnerability due to gender” commencing with the observation that the male appellant claimed to fear that if the three women appellants are returned to Sri Lanka “they will be vulnerable as females to the risk of physical or sexual assault from the authorities”. As to these paragraphs, see [27] of these reasons.

80    At para 50, the IAA observes that country information suggests that women in female-headed households (citing the UNHCR Eligibility Guidelines of 21 December 2012) and “those [women] in the north” (citing a document described as “The Forever Victims? – Tamil Women in Post-War Sri Lanka”, dated 28 August 2015, being a report of the Colin Powell School for Civic and Global Leadership within The City College of New York” (the “Colin Powell SCGL Report”)), “are particularly vulnerable”. The IAA then notes at para 50 that DFAT, in the DFAT Report, 24 January 2017, assesses that overall, women in Sri Lanka face a “high risk of societal discrimination and violence”, although that risk particularly relates to “domestic or intimate violence”.

81    The starting point of an assessment of the grounds of appeal is to recognise that the reasons of the IAA must be read not only with a view to examining the process of reasoning in reaching a state of satisfaction (or not) about particular topics and particular evidence, but also read overall as an integrated whole. In discharging the statutory review function under s 473CC of the Act, the IAA understood, as appears from reading the entirety of the reasons for decision, that the individuals the subject of the claims before it were three Sri Lankan Tamil individuals originally from the Eastern Province of the country and a fourth person born in Australia, but born of those Tamil parents and thus a second child of the Tamil family. The IAA also understood, as appears from the reasons, that three of the appellants are women within that Tamil family.

82    Moreover, the IAA seems to have taken up, in part at least, the taxonomy put to it in the submission of 6 September 2017 on behalf of the appellants as the IAA, in examining the foundation matters put to it, chose to examine as a topic, the question of the extent to which the three female appellants would be “vulnerable as females” to the risk of “physical or sexual assault from the authorities”. It seems clear enough that the question being addressed by the IAA was whether the claim of the male appellant of a fear of a real risk of serious harm, concerning a risk of physical and sexual assault by the Sri Lankan authorities upon his wife and daughters as vulnerable females, was a well-founded fear (para 106, submission, 6 September 2017). That fear was put to the Department, and thus ultimately to the IAA, in the submission under a discussion bearing the heading “Fear of persecution faced on the basis of Tamil women in Sri Lanka”. Accordingly, the IAA understood, as appears from the reasons, that the women, the subject of the question under examination, were Tamil women and the section of the submission addressing the identified fear makes clear that the vulnerable females, the focus of the fear, were vulnerable Tamil females. In other words, by having regard to the opening language of the submission on behalf of the appellants, in a discussion under the heading described above, the inference is that the IAA understood the content and context of the question it was considering.

83    It is true that, in the course of the IAA’s analysis of the topic at paras 47-51 of the decision and the basis for the contended fear, it fails to expressly refer, in the text, to Tamil women and Tamil females. The textual discussion examines the vulnerability of “women in Sri Lanka”. However, it should be noted, again, that at the outset of the discussion, the IAA describes the contended fear concerning “Applicant 2, Applicant 3 and Applicant 4” to be a fear that “they will be vulnerable as females to the risk of physical or sexual assault from the authorities”. In other words, the IAA was considering the particular position of the three appellants in circumstances where the decision-maker understood those appellants to be Tamil women.

84    The IAA, by the point in the reasoning when it commenced its discussion of the topic at paras 47-51, had engaged in a close examination of many facts going to the ethnicity of the appellants, their historical circumstances and the interaction between Tamils from the Eastern Province, and the CID, the army and Sri Lankan authorities more generally.

85    The appellants contend, in effect, that notwithstanding these contextual considerations, the IAA came to the question of the appellants’ claim to hold a well-founded fear of a real risk of serious harm of physical and sexual assault upon the wife and daughters from Sri Lankan authorities, with a frame of reference of, to what extent are “women in Sri Lanka” exposed to such a risk, without comprehending that the point being made was that Tamil women (in the north or east of the country) are in a different position in relation to such a risk than women in Sri Lanka generally.

86    In that sense, it is said that the IAA failed to grasp the particular burden of the claim and the position in which Tamil women in the north and the east of the country might find themselves concerning threats of physical or sexual violence from the authorities, as distinct from women in Sri Lanka more generally.

87    The question to be determined is whether, when read fairly overall, it is possible to conclude, as a matter of inference, that the IAA did not consider the particular circumstances of the three female appellants as Tamil females, originally from the Eastern Province of Sri Lanka, when examining the position of “women in Sri Lanka”. At para 50 of the IAA’s decision, it sought to identify, by reference to country information, the position of women who were “particularly vulnerable” and two cohorts were identified by the IAA in that position. The first cohort was described as those “women in female-headed households”. The second cohort was “those [women] in the north”. Having identified those two cohorts, the IAA then sought to identify the position “overall” for women in Sri Lanka by reference to the DFAT Report, 24 January 2017. As to the cohort of particularly vulnerable women “in the north”, the identification of that cohort was by reference to the Colin Powell SCGL Report (cited fully at [80] of these reasons), cited by the IAA. The topic of that paper is “Tamil Women in Post-War Sri Lanka”.

88    The country information recited at [14] of these reasons also refers to the position of Tamil women in Northern Sri Lanka.

89    The Minister also places emphasis on the IAA’s observations at para 74 of the decision in the context of the complementary protection claims. At para 74, the IAA sums up aspects of its earlier findings and says this:

I have found that there is not a real chance of harm to the applicants, now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinions, as Tamils from the east, as relatives of Applicant 1 [the male appellant], due to any vulnerability because of their gender, and/or because they are children, as returned Tamil failed asylum seekers from Australia, or a combination of these.

[emphasis added]

90    This passage suggests that the IAA was proceeding on the footing that the three female appellants were Tamils from the east and the summary at para 74 suggests that the decision-maker’s understanding of the findings he had made were that the female appellants were not at risk by reason of a combination of being Tamils from the east and vulnerability because of their gender (that is, because of a combination of their gender and ethnicity).

91    The conclusion reached by the IAA at para 51 seeks to address a number of factors in combination. The IAA takes into account the country information it discusses as described earlier. It considers whether the three female appellants fall into one of the two identified “particularly vulnerable” cohorts, and considers other sources of physical and sexual violence. The IAA observes that the female appellants will be returning to the east (which seems to be a point of distinction in the sense that they will not be within the cohort described as those women “in the north”), and nor do they fall into the cohort of “women in female-headed households”, as the male appellant will be “with the family/household”. Nor will they be exposed to a risk of domestic or intimate partner violence.

92    It is important to keep firmly in mind the question being addressed. The question is whether the IAA has failed to have regard to an element or integer of a claim made as the basis for a well-founded fear of a real risk of serious harm to the female appellants as Tamil women (originally from the Eastern Province of the country) of physical and sexual abuse from Sri Lankan authorities. The question is not whether the conclusion reached on the claim is, in all the circumstances, contestable on the merits. It is true that in describing one of the cohorts of women who are particularly vulnerable, the IAA described the cohort as “those [women] in the north”, whereas the three female appellants are women from the Eastern Province who would likely be returning to the east of the country. I will return to aspects of that matter later in these reasons.

93    As mentioned earlier, there is a certain inter-relationship between appeal grounds 1 and 2. Put simply, the appellants rely upon three propositions. First, in the discussion at paras 26-46 of the IAA’s decision, although there is mention of the position adopted by the UNHCR that “women in certain circumstances” may be in need of protection, there is no discussion of the vulnerability of Tamil women to acts of physical or sexual assault by Sri Lankan authorities. Second, the discussion at paras 47-51 of the vulnerability of the three female appellants to a risk of physical or sexual assault from Sri Lankan authorities fails to come to grips with the particular position of those appellants as Tamil women. Third, the discussion at paras 47-51 and otherwise fails to address the specific matters put before the IAA in the submission of 6 September 2017 on behalf of the appellants addressing the particular circumstances of the female appellants as Tamil women and their vulnerability to physical and sexual assault because they are Tamil women, and Tamil women who originated in the east of Sri Lanka.

94    In seeking to support the claim to vulnerability on the part of the three female appellants as Tamil women and not simply women in Sri Lanka, the appellants put the following material before the Department, and thus ultimately the IAA. Since these reports are said to draw to the attention of the IAA the critical conjunction between the gender and ethnicity of the female appellants, said to be unaddressed by the IAA, it is important to recall the point of these references by the appellants.

95    The reports are ranked in the most recent date order.

96    As to those reports, the USDOS Report, 3 March 2017, is referred to at para 114 of the appellants’ submissions to support the proposition that “Tamil women” have difficulty in accessing services in the north and east because Tamil speaking victims lacked access to Tamil speaking service providers.

97    The Amnesty International Report, 22 February 2017 (para 108 of the submission) is said to support the proposition that “impunity persists for violence against women” including acts of rape by military personnel and civilians.

98    The ITJP Submission to CEDAW, 20 February 2017 (para 113 of the submission) is a public submission by the ITJP to the Committee on the Elimination of Discrimination against Women said to support the proposition that President Sirisena and his Government has failed to investigate credible allegations of a deliberate policy of using sexual violence to inflict torture.

99    The Report of the Special Rapporteur, 31 January 2017 (para 110 of the submission) is referred to by the appellants as support for the proposition that “women in the North and East” continue to suffer from the conflict and enduring insecurity due to “subsequent militarization”. The reference is said to support the proposition that while the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army in the north and east of the country, a climate of fear nevertheless “remains among the Tamil women in an area where the military presence has continued”.

100    The DFAT Report, 24 January 2017 (para 109 of the submission), is referred to as support for the proposition that there are ongoing claims of sexual assaults and rape attributed to the military in both the north and the east. The ITJP Submission to CEDAW is further referred to by the appellants as support for the proposition that 71 women have given sworn statements of “torture” and “horrific assaults” while held in State custody under the government of President Sirisena.

101    The UKHO Report, May 2016, on Tamil Separatism (para 112 of the submission) is cited by the appellants as support for the proposition that “Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region”. The reference is said to support the proposition that “their lives” are “negatively impacted” by the “climate of fear” and a “worrying uptick of violence against women within the Tamil community”. The report is quoted by the appellants as support for the notion that the lives of women in the Tamil community are “tightly circumscribed … in order to minimize their risk of sexual assault”.

102    The ITJP Report, January 2016 (para 107 of the submission), supports the proposition that in 2015, one year after the change of Government, the security forces continue to detain, torture and sexually violate Tamils.

103    Each one of these reports is also mentioned in the summary of country information referred to and quoted at [14] of these reasons. Some of the same quotes from the submission document quoted at [12] of these reasons are repeated in that summary. There is an additional matter (also quoted at [14] of these reasons) emphasised by the appellants in the summary document which is a statement by former President Chandrika Kumaratunga that Tamil women who survived Sri Lanka’s civil war now face widespread sexual exploitation by officials in their own community as well as from the army.

104    Ground 1 of the appeal is not advanced as a failure to have regard to evidence ground. The contention is that in addressing the claim of a fear of a real risk of serious harm of physical and sexual abuse of the female appellants by Sri Lankan authorities, a failure to address the reports identified by the appellants, in the context of the reasons and particularly paras 47-51, is said to give rise to an inference that the IAA failed to appreciate that critical to the claimed fear was their position as Tamil women, which raised the question of what degree of risk, in relation to what degree of harm, Tamil women would be exposed to when returning to the east.

105    Accordingly, how did the IAA deal with the reports relied upon by the appellants as set out in the submission and in the country information summary? Does the treatment of the material suggest or give rise to an inference of a failure on the part of the IAA to recognise a critical element of the particular protection claim such that the exercise of the statutory review function by the IAA has miscarried in a jurisdictional sense?

106    Thus, it is necessary to examine the critical paragraphs of the IAA’s decision called into question by the appellants.

107    At para 47, the IAA frames the question in the language of the appellants’ submission and asks whether the three female appellants will be “vulnerable as females” to the claimed risk. The reference to the appellants being “vulnerable as females” is said to signal that the IAA started from the wrong position because it failed to recognise, at the outset, that the question was whether the three female appellants as Tamil women were vulnerable as females to the identified risk.

108    At para 48, the IAA accepts that “women in Sri Lanka may be vulnerable”. As to the kind of harm to which women in Sri Lanka may be vulnerable, the IAA notes that harassment, rape and other forms of sexualised violence are acknowledged as serious social problems. The IAA notes that rape and domestic violence constitute criminal offences under the identified legislation and that sexual harassment is a punishable offence. As support for those propositions, the IAA cites the DFAT Report, 24 January 2017.

109    The IAA then notes that the enforcement of the law is inconsistent, and sexual assault, rape and spousal abuse are pervasive social problems. As support for that proposition, the IAA cites the USDOS Report, 3 March 2017.

110    The IAA then notes at para 48 that DFAT assesses that reported incidents of sexual assault and rape have increased in recent years and “tend to be higher in remote areas”. It notes, however, that the majority of cases are likely to go unreported due to social stigma. It cites as support for these propositions the DFAT Report, 24 January 2017.

111    At para 49, the IAA notes that there has, however, been some progress. It notes that the Police Bureau for the Prevention of Abuse of Women and Children has conducted awareness programs to encourage women to file complaints of abuse and notes that the police continue to establish women’s units in police stations. The IAA cites, as to these matters, the USDOS Report, 3 March 2017.

112    The IAA then notes at para 49 that DFAT’s assessment is that “all Sri Lankan citizens” have access to redress through the police, judiciary and the HRC “regardless of religion or ethnicity” (citing the DFAT Report, 24 January 2017), although “language issues” can be an effective barrier to the policing of issues and there is a lack of female police officers (citing, as to these two issues, the DFAT Report, 24 January 2017).

113    The IAA then notes at para 49 that President Sirisena has expressed a commitment to taking action to prevent the abuse of women and children, including speeding up the trial process for these offences. It notes that President Sirisena canvassed the possibility of implementing the death penalty for such offences in the wake of public outrage over a number of recent high profile cases of violence against women and girls (citing the DFAT Report, 24 January 2017).

114    At para 50, as already discussed (see [87] of these reasons), the IAA notes that in addition to the matters it has addressed at paras 47-49, the “country information” suggests that women who are “particularly vulnerable” are the “women in female-headed households” (citing the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012; and citing the DFAT Report, 24 January 2017), and “those [women] in the north” (citing the Colin Powell SCGL Report on the topic of The Forever Victims? – Tamil Women in Post-War Sri Lanka, 28 August 2015). As earlier mentioned, the IAA then notes that although DFAT assesses that “overall women in Sri Lanka” face a high risk of societal discrimination and violence, that risk particularly relates to domestic or intimate partner violence (citing the DFAT Report, 24 January 2017).

115    At para 51, the IAA expresses its conclusion as mentioned at [27], [38]-[43], [56]-[60] and [91] of these reasons, which has already been discussed in these reasons.

116    It can be seen, at paras 47-51, that the IAA has had particular regard to the DFAT Report of 24 January 2017; has cited the USDOS Report of 3 March 2017 twice; has had regard to the Colin Powell SCGL Report of 28 August 2015; and as also referred to the UNHCR Eligibility Guidelines of 21 December 2012.

117    The IAA does not refer, at these paragraphs, to the Amnesty International Report of 22 February 2017; the ITJP Submission to CEDAW of 20 February 2017; the notes of the Secretariat concerning the report of the Special Rapporteur of 31 January 2017; the UKHO Guidance on Tamil Separatism of May 2016 or the ITJP Report of January 2016. The Report of the Special Rapporteur expressly deals with the position of Tamil women in the north and east of the country, as does the UKHO Report, although it is earlier than the USDOS Report and the DFAT Report.

118    Although the reports mentioned at [117] of these reasons are not mentioned in the text or cited by the IAA at paras 47-51, the topic of an increase in incidents of sexual assault and rape in remote areas and the issue of the particularly vulnerable position of women in the north (by reference to a paper addressing the position of Tamil women in post-war Sri Lanka) is addressed. It is true that these topics are addressed within the context of the vulnerability of women in Sri Lanka but nevertheless, the particular position of women in remote areas, and particularly vulnerable women in the north, is expressly dealt with. Moreover, the topic is one which the IAA has sought to contextualise within a discussion reflecting on State institutions, the role of the police, the role of the judiciary and the access of citizens affected by the identified conduct to forms of redress.

119    Having regard to all of these considerations, the reasons read fairly overall, and the particular discussion at paras 47-51 and each of the observations in those paragraphs discussed in these reasons and the cited reports, I am not satisfied that the IAA failed to have regard to the position of the three female appellants as Tamil women from the Eastern Province when addressing the claim now under challenge by ground 1.

120    In my view, it is not open to conclude that the IAA, in exercising its review function, failed to identify an essential integer of the claimed fear of, or on behalf of, the female appellants that the contended fear of a real risk of serious harm concerned their position as Tamil women.

121    The second ground of appeal is that the IAA ignored evidence concerning the risk of harm to the three female appellants as a result of their being Tamil women. Three documents as identified at [50]-[52] and [99], [101] and [102] of these reasons are said to be documents ignored by the IAA on the question of the risk of harm to the female appellants as Tamil women. They are the ITJP Report of January 2016; the UK Home Office document of May 2016; and the report of the Special Rapporteur dated 31 January 2017. These reports are country information reports. They are well understood documents but, of course, they consist of commentaries on a wide-range of topics concerning the state of social order within a country and the role, functionality, utility and effectiveness of State agencies and institutions in providing fundamental human rights and degrees of safety.

122    The contention is that the IAA ignored evidence contained in the identified country information reports and, in doing so, engaged in jurisdictional error.

123    A number of these reports were considered by the IAA as reflected in the reasons for decision. They were, however, taken into account by the IAA in the reasons in each case in a particular context.

124    Of course, it is not necessary for the IAA to write reasons which are responsive, point by counterpoint, to every proposition of fact and law put to it by an applicant for review. However, the IAA must properly comprehend a claim plainly put to it and, in the course of addressing that claim, it must address material factual matters put to it by an applicant in support of the material factual elements of the claimed fear of persecution. This is particularly so where the IAA, in conducting its review function, is doing so to determine whether it can reach a state of satisfaction, or not, about material matters leading to a conclusion about whether the claimed fear of persecution is well-founded and the claim otherwise meets the requirements of the Act.

125    Discharging that function involves an examination by the IAA of matters of material factual evidence specific to an applicant. Also, the IAA will inevitably turn to, and seek to understand, matters of general importance in the jurisdiction in question and the conditions prevailing in places to which an applicant might return. Thus, the IAA would, often, wish to understand the state of social order within a country; the nature of rivalry and ethnic or nationalistic clashes within a country; and the functionality, utility and effectiveness of State agencies and institutions, especially in terms of their role in providing or guaranteeing fundamental human rights and the safety of citizens within the country. A decision-maker might particularly wish to understand the role of the relevant nation’s army and police forces, its special security forces and other State authorities capable of exercising power. In considering country information reports going to those general and systemic matters, the decision-maker might decide to rely upon aspects of country information reports put to him or her in a variety of ways.

126    In this particular matter, the IAA referred to the ITJP Report, January 2016 (described at [50] and [102] of these reasons), at para 58 of its decision. It did so on the topic of the risk of mistreatment or torture facing the majority of returnees to Sri Lanka as failed asylum seekers from Australia. The IAA notes that the risk to returnees is assessed as “low” by DFAT although country information reports contain information of some returnees being tortured. It is as to that latter matter that the IAA cites the ITJP Report. It is true that that report is not cited by the IAA in relation to the matter at para 107 of the appellants’ submission of 6 September 2017, quoted at [12] of these reasons (and noted at [102] of these reasons), in the course of the IAA discussing the question of the claim of fear concerning sexual abuse of the three female appellants as Tamil women. That was the context in which the report was put to the IAA.

127    The notes of the Secretariat of the UNHRC concerning the Report of the Special Rapporteur of 31 January 2017 were referred to by the IAA at para 37 of its reasons, in the course of a discussion of DFAT’s assessment of torture carried out by the security forces during the war and the immediate aftermath of the war. The IAA notes DFAT’s assessment that Tamils faced a higher risk of torture during the war. One of the reports discussed by DFAT, and noted in that context by the IAA, was the Report of the Special Rapporteur. Aspects of that Report are set out at para 110 of the submission of the appellants of 6 September 2017 (see [12], [14] and [99] of these reasons) on the issue of women in the north and east of Sri Lanka continuing to suffer from the scars of the conflict as well as suffering from the insecurity resulting from subsequent militarisation, and an enduring climate of fear among Tamil women in areas where the military presence has continued.

128    It is not suggested that the Report of the United Kingdom Home Office on Tamil Separatism of May 2016 was mentioned or cited by the IAA in its decision. The Report is not cited in any examination of the “particularly vulnerable” women in the north (at para 50 of the IAA’s decision) or in discussing the tendency for incidents of sexual assault and rape to be higher in remote areas (at para 48 of the decision).

129    Has the IAA ignored evidence proffered by the appellants going to the claimed fear?

130    It seems clear enough that the IAA has considered the ITJP Report of January 2016. The IAA has not cited that document, however, on the topic on which it was put forward by the appellants as support for the proposition that one year after the change of government, the security forces continue to detain, torture and sexually violate Tamils. Rather, the IAA cites the 28 August 2015 Colin Powell SCGL Report (approximately five months earlier than the ITJP Report) which recognises the particularly vulnerable position of women “in the north” which can only be a reference to Tamil women having regard to the subject matter of the Report. The failure to refer to the ITJP Report in the discussion at paras 47-51 does not mean, by itself, that the ITJP Report was not considered on the topic for which it was referred by the appellants. The IAA has had regard to the document in reaching its decision to affirm the delegate’s decision, but in the way described in the decision-maker’s reasons. However, a question remains about whether the IAA had regard to the ITJP Report in reaching its decision about that aspect of the claimed fear relating to the risk of harm to the female appellants as Tamil women. In reaching a decision on the matter under discussion at paras 47-51, the IAA made an evaluative judgment about the country information going to the question it was considering. It chose to refer, in the decision, to the DFAT Report, 24 January 2017; the USDOS Report, 3 March 2017; the Colin Powell SCGL Report, 28 August 2015; and the UNHCR Eligibility Guidelines, 21 December 2012.

131    The IAA has not mentioned, at paras 47-51, any aspect of the Report (or the notes of the Secretariat on the Report) of the Special Rapporteur of January 2016. The Report is mentioned in the context of a reference in the DFAT Report of 24 January 2017 as described at [126] of these reasons. It is not cited by the IAA in any discussion of the matter upon which it was put forward by the appellants, that is, in relation to the matter of the incidence of sexual assaults by military personnel in the north and east of the country and the climate of fear among Tamil women in an area where a military presence has continued.

132    As mentioned, it is not suggested that the UKHO Report on Tamil Separatism of May 2016 was cited by the IAA in its decision.

133    It is convenient to set out again the particular text emphasised by the appellants which they contend the IAA ignored.

134    As to the ITJP Report of January 2016, the appellants say that the IAA failed to have regard to the following text:

One year after the change of government in Sri Lanka the security forces continue to detain, torture and sexually violate Tamils in a network of sites across the island.

135    As to the UKHO Guidance document of May 2016, the appellants say that the IAA failed to have regard to the following text:

Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region, but their lives are even more negatively impacted by the climate of fear and by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault.

136    As to the UNHRC Report of the Special Rapporteur of 31 January 2017, the appellants say that the IAA failed to have regard to the following text:

Women in the North and East continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization … The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity and security on a daily basis. While the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army in the North and East, a climate of fear remains among the Tamil women in an area where the military presence has continued.

137    These three references from January and May 2016 and January 2017 convey a similar point. It is that Tamils continue to be sexually violated and that Tamil women, in the north and also in the east of the country, endure a climate of fear and insecurity. These reports, leaving to one side for the moment the question of the reference to the like position in the “east” (as well as the north of the country), are not inconsistent with the IAA’s references to DFAT’s 24 January 2017 views about increases in reported incidents of sexual assault and rape being higher “in remote areas”, and there being a “particularly vulnerable” cohort of women “in the north” (which must necessarily be a reference to Tamil women). It is true that the IAA did not refer to the three reports or quote any of the extracts emphasised by the appellants in the submission and the country information summary. However, that does not mean that the reports were not considered or that they were overlooked on the question of the position of Tamils and, most particularly, the position of Tamil women in the north and east of the country. The IAA may have regarded the references as consistent with the Colin Powell SCGL Report and the DFAT Report of 24 January 2017.

138    However, it seems to me that the difficulty is this. Whilst it is true that a failure to refer to any of the three reports relied upon by the appellants, or mention any of the matters emphasised in the text of those reports (kind of harm; place of harm), urged upon the decision-maker, does not, of itself, mean that the reports were ignored or overlooked, the decision in question here falls into that class of case where an inference arises that if the three reports and the emphasised passages from them had been considered, one could expect that that matter would have been referred to in the decision even if it were then rejected: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [52] (“MZYTS”); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33] (“SZSRS”).

139    That follows for these reasons. First, the very nature of the claim made by the male appellant for and on behalf of the three female appellants is a “protection claim” which finds expression as a claim for a “protection visa”. At the heart of that claim on behalf of the three female appellants is a claim for protection from a real risk of serious harm of sexual assault, rape and other forms of sexual violation of Tamil women by Sri Lanka authorities, including the military. From the perspective of vulnerable Tamil women and children in a society, there could be no greater harm, both physical and emotional (short of death or other forms of life threatening violence) that might be inflicted upon them than harm in the form of rape and other forms of sexualised violence by members of the military or other Sri Lankan authorities vested with the exercise of State power. The three reports and the text emphasised by the appellants, was relied upon to support the proposition that, as vulnerable Tamil women returning to the east, they (and the male appellant) hold a well-founded fear of a real risk of serious harm of the kind and character attested to in the reports in the place to which they were returning. Second, having regard to the character of the harm and the gender and ethnicity of the three female appellants, it is important to reflect on the harm and the references to the north and the east, about which the reports speak.

140    The ITJP Report recognises that one year after the change of Government in Sri Lanka, the security forces “continue” to “detain and sexually violate” Tamils “in a network of sites across the land”.

141    The UKHO Guidance document recognises that Tamil women “still face” the “risk of rape” and “harassment” by the security forces present throughout the region. Moreover, it says that the lives of Tamil women are “even more negatively impacted” by the “climate of fear” and a “worrying uptick in violence by the military”. The document and the emphasised text notes that the response of Tamil women is to deal with the “ever present threat of violence by the military” by leading “tightly circumscribed lives” limiting daily activities in order to “minimize their risk of sexual assault”.

142    The UNHRC Report recognises that although the incidence of sexual assaults by military personnel is said to have decreased in the north and east with the downsizing of the army, a climate of fear remains among Tamil women where a military presence remains.

143    In the country information summary, the appellants refer to the remarks of the former President of Sri Lanka (President Ms Chandrika Kumaratunga) of February 2017, who observes that Tamil women who survived Sri Lanka’s civil war now face widespread sexual exploitation by officials in their own community, as well as the army.

144    Having regard to the nature of the harm the reports speak to; the gender and ethnicity of the three female appellants; the circumstance that the organisations responsible for the reports are credible well-recognised organisations; and that the matters relied upon by the appellants, both as to the reports and the text, go to the heart of the claimed fear, this case seems to me to be that class of case where, if the material had been considered by the decision-maker, one could expect that it would have been referred to, even if it were then rejected: see particularly, MZYTS, the Court at [52]; SZSRS, the Court at [34].

145    Accordingly, I am satisfied that because there is no mention of the three reports emphasised and relied upon by the appellants or the text emphasised by them, in the relevant parts of the decision-maker’s decision, those reports and the emphasised text were not considered by the decision-maker. The reports were, and the emphasised text was, material to the claimed fear. As a result, the conclusion that the IAA failed to have regard to the reports and the emphasised text in the material part of its decision, engages the IAA in jurisdictional error.

146    The appellants have established ground 2 of the appeal.

147    The third ground of appeal is that, having regard to the IAA’s observations at para 51 and the reasoning contained in that paragraph, the conclusion that the decision-maker was not satisfied that the female appellants face a real chance of serious harm on return to Sri Lanka, on the basis of their gender, is irrational or illogical. Paragraph 51 is set out at [27] of these reasons (in the context of the earlier paragraphs from para 47) and discussed at [38]-[43]. See also [56]-[60], [91] and [115] of these reasons.

148    The appellants contend for the following problems with para 51 which it is said cause the conclusion in para 51 to be unsustainable as a matter of irrationality and illogicality giving rise to jurisdictional error. The problems are said to concern the premises of the conclusion. The appellants say that the conclusion rests, in part, on a consideration of the cited country information and that the male appellant will be present with the family/household, with the result that the female appellants are not “women in female-headed households” being one of the “particularly vulnerable” cohorts.

149    The other premise is that, although the IAA recognises that DFAT, by its Report of 24 January 2017, assesses that “overall” women in Sri Lanka face a high risk of societal discrimination and violence, that risk relates particularly to domestic or intimate partner violence. Thus, because there is no suggestion by the appellants (or otherwise) that the female appellants are at risk of domestic or intimate partner violence, they do not face a real chance of serious harm on the basis of their gender, on return to Sri Lanka.

150    As to the premises concerning “women in female-headed households” and risks related to domestic or intimate partner violence, the appellants make these criticisms:

(a)    first, if women in female-headed households are particularly vulnerable, it does not follow that women in male-headed households are not. There is no evidence to support that reasoning, and there is no logical connection between a particular vulnerability and a reduced vulnerability; and

(b)    second, if women in Sri Lanka face a high risk of particularly domestic or intimate partner violence, it does not follow that, because there is no suggestion of such a risk here, the risk to the wife and daughters is reduced. Again, there is no evidence to support that reasoning, and there is no logical connection between a particular vulnerability and a reduced vulnerability.

151    The appellants also say that the reference to “those [women] in the north”, as opposed to “those [women] in the north and east”, is unexplained, with the result that confining the particularly vulnerable group of women to those in the north rather than those women in the north and the east of the country, is illogical or irrational.

152    As to the principles governing “illogicality” or “irrationality” as a basis for judicial review giving rise to jurisdictional error, I apply the principles identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[135] (Heydon J concluding that the Tribunal’s reasoning was not illogical). These observations of Crennan and Bell JJ ought to be noted:

130    In the context of the Tribunal’s decision here [which equally applies to the IAA’s decision in this case], “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of the argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact [the relevant state of satisfaction], it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

131    … [T]he test for illogicality and irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

132    Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …

133    … [T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

…

135    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[emphasis added]

153    As to the question of women in female-headed households, the process of reasoning was this.

154    The IAA considered the country information as described earlier in these reasons. It formed the view that the country information “suggests” that women in female-headed households are particularly vulnerable. It may be correct or incorrect in its assessment of whether the country information carries a suggestion that women in such households can be characterised as “particularly vulnerable”. The reference to “particularly vulnerable” is a reference to a vulnerability to abuse, sexual assault, rape and other forms of sexualised violence described at paras 48 and 49 of the decision. In accepting that the country information suggests that women in such circumstances are particularly vulnerable, the IAA was exercising an evaluative judgment as to that matter, rather than finding that women in male-headed households are not vulnerable to harm. The factor that was thought, it seems, to render women particularly vulnerable, in the IAA’s assessment of the country information, was the absence of a male as head of the household. Whatever the merits of that assessment of the country information might be, it is not a conclusion that rests on irrationality or illogicality unless the appellants can show that there is simply no basis in the country information for the view the IAA took about that which was suggested, by the country information, assessed by the IAA. The appellants have not done that. In the result, the IAA was unable to reach the state of satisfaction required by ss 36(2) and 65(1) of the Act.

155    As to the second premise which is said to fail, rendering the conclusion irrational or illogical, the IAA elected to place weight on DFAT’s assessment that spousal abuse is one of the “pervasive social problems”, and that although DFAT’s assessment is that “overall” women in Sri Lanka face a high risk of societal discrimination and violence, that risk relates particularly to domestic or intimate partner violence. The IAA noted that there was no suggestion that the female appellants were at any risk from domestic or intimate partner violence and thus, as to that source of risk, the female appellants were not exposed, or were not said to be exposed, to harm. Again, having regard to the IAA’s view as to that which was suggested by the country information and particularly DFAT’s assessment, the IAA was unable to reach the state of satisfaction required by ss 36(2) and 65(1) of the Act. There is nothing shown to be illogical or irrational about that conclusion, even though the appellants may emphatically disagree with the proposition and the conclusion.

156    As to the third matter of illogicality concerning the description of a group of women who are particularly vulnerable as “those [women] in the north”, rather than a description which comprehends “those [women] in the north and the east of the country”, the Minister contends that this matter was not raised before the primary judge and thus leave to argue the matter is required. I nevertheless propose to address the matter on the footing that it is in contest for the purposes of the appeal.

157    The Minister contends that as to the substance of the point, the country information cited by the appellants is “vague and lacks materiality insofar as it relates to then current information regarding vulnerability of Tamil women in the East”.

158    The Minister contends that the remarks of the Special Rapporteur (quoted at [136] of these reasons) refer to women in the north and east of the country continuing to suffer from the scars of the conflict (which is a reference to Tamil women in the north and east). The remarks refer to a decline in the incidence of sexual assaults by military personnel as a result of the downsizing of the army in the north and east and notwithstanding that circumstance, a climate of fear remains among Tamil women in areas where the military presence continues. The Minister contends that the phrase “a climate of fear” is a vague description and as to the reference to “scars”, the reference implies that “such problems” were in the past.

159    The Minister contends that although the DFAT Report of 24 January 2017 was said to refer to ongoing claims of sexual assaults attributed to the military in both the north and the east, this observation ought to be considered in the context of the decrease in sexual assault, and other country information that indicated that the issue “lay in the North”. Further, the Minister contends that the reference in the above DFAT Report of “ongoing claims of sexual assaults and rape attributed to the military in both the north and the east” is “somewhat vague” and the extent of such claims is “unclear”.

160    As to the UKHO Guidance document (described as a recent UK Government report), the Minister contends that that document only refers to Tamil women “in Northern Sri Lanka” facing the risk of rape and harassment by the security forces and facing an ever present threat of violence causing Tamil women in the north to lead “tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault”.

161    As to the USDOS Report of 3 March 2017, the Minister notes that the appellants rely upon this document for the proposition that language barriers between service providers and victims were reported in the north and east where Tamil speaking victims lacked access to Tamil speaking service providers.

162    In the result, the Minister contends that these references to circumstances in the east of the country are “vague” and thus it is not surprising that a reference to “the east” was omitted from the IAA’s conclusion at para 51 of the decision. The Minister contends that the omission of the reference to “the east” is not a matter giving rise to illogicality and irrationality, but rather an attempt to engage in disagreement with the conclusion and thus engage in merits review.

163    Although I would not characterise the remarks in a number of the country information reports as necessarily “vague”, there is a central difficulty with the contention of the appellants on this ground.

164    It is true that in the remarks of the Special Rapporteur there is a reference to the circumstances confronting women in the north and the east of the country. It is also true that in the DFAT Report of 24 January 2017, there is a reference to ongoing claims of sexual assault and rape attributable to the military in both the north and the east of the country. These references could only be regarded as vague in the sense that they are not tied down to very particular geographic centres. Nevertheless, they are terms of “geographic art” adopted in country information reports. The authors of those reports seem perfectly confident in being able to convey the meaning they are seeking to convey about risks of harm by describing the relevant places of harm by reference to the north and the east of the country. It should be noted in this context that the very phrase used by the decision-maker was “in the north” which, presumably, the decision-maker understood to convey some degree of precision at least.

165    It is also true, however, that one of the reports cited by the IAA is the Colin Powell SCGL Report of 28 August 2015 which is cited as the basis for women “in the north” being particularly vulnerable.

166    The question then is whether the observation or finding of the IAA by reference to the phrase “in the north”, as a step along the way to its ultimate conclusion in para 51, is an illogical or irrational observation or finding, by failing to refer to “the east”. For that to be so, the observation or finding, as a step along the way to the conclusion, must be “simply not open” to the decision-maker. Moreover, the observation or finding might be said to be illogical or irrational if “only one conclusion is open” to the decision-maker on the evidence. That is not so in this case because the observation or finding is said by the decision-maker to be supported by the Colin Powel SCGL Report of 28 August 2015 and the appellants have not been able to show that there is simply no basis for the observation or finding in that Report. Although the appellants might emphatically disagree with the observation or finding, it is not one which can be characterised as “simply not open” to the decision-maker having regard to the Colin Powell SCGL Report relied upon by the IAA.

167    Accordingly, ground 3 must fail.

168    Having regard to all of these matters, it follows that grounds 1 and 3 have not been established. Ground 2 of the appeal has been established. The orders of the Court are that the orders of the Federal Circuit Court are to be set aside and in their place, orders made that the constitutional writs issue quashing the decision of the IAA and remitting the matter to the IAA to be decided according to law; and that the first respondent pay the costs of the applicants before that Court. The first respondent will be ordered to pay the costs of the appellants of and incidental to the appeal.

Associate:

Dated:    29 May 2020

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