FEDERAL COURT OF AUSTRALIA

CGW18 v Minister for Home Affairs [2020] FCA 1104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia dated 7 November 2019 are set aside and in lieu thereof there be orders that:

(a)    A writ of certiorari issue directed to the second respondent quashing its decision of 29 March 2018 under reference IAA18/04148;

(b)    A writ of mandamus issue directed to the second respondent, differently constituted, to conduct the review according to law;

(c)    The first respondent pay the appellant’s costs in an amount fixed in accordance with the prevailing schedule.

3.    The first respondent is to pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The appellant is a Sri Lankan citizen of Tamil ethnicity. She and her husband arrived as “unauthorised maritime arrivals” at the Cocos (Keeling) Islands in October 2012. They were transferred to Christmas Island in December 2012. A son was born to them in Australia in 2013.

2    The appellant, together with her husband and son, lodged a combined application for Safe Haven Enterprise Visas (SHEVs) in July 2017. The application outlined a series of protection claims. Because of the confidential and sensitive nature of one of the appellant’s claims, the details of which will become apparent shortly, her claim was considered and dealt with separately from that of her husband and her son.

3    In January 2018, a delegate of the Minister for Immigration and Border Protection (as the department was then known) refused to grant the appellant, her husband or their son visas on the grounds that Australia does not owe them protection obligations. The decision of the delegate was affirmed by the Immigration Assessment Authority in March 2018.

4    In November 2019, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Authority’s decision. The decision of the Circuit Court is reported as CGW18 v Minister for Home Affairs & Anor [2019] FCCA 2964.

The appellant’s claims

The appellant’s statement for the delegate

5    The appellant’s claims for protection were first set out in a statement by her which accompanied her SHEV application. That statement included the following claims.

6    The appellant fears returning to Sri Lanka because Tamil women, particularly from the Northern Province, are targeted by the security forces and raped. Sexual violence towards Tamil women in Sri Lanka has been ongoing since the war ended in 2009.

7    The appellant has been a victim of sexual violence in Sri Lanka, but has “not been able to express this to anybody, not even [her] husband”. The only people who know are her brother and her mother.

8    In 2009, during the civil war, the appellant was rounded up with others and held in a camp. She was released in January 2010 after the war ended. Approximately six months later, members of the notorious Criminal Investigation Department (variously also referred to as Division) (CID) came to her home and asked her to go to their office for questioning.

9    The appellant accompanied the CID members to their office and was questioned about the Liberation Tigers of Tamil Eelam (LTTE) and her activities where she had been employed in a business suspected of being linked to the LTTE. The LTTE is a Tamil separatist oppositional group. The appellant was required to report to the CID office every fortnight and each time she was asked the same questions and made to sign something. Her brother used to take her to the CID office and they would make him wait outside.

10    The appellant reported to the CID between May and December 2010. In December 2010, while at the office, she was called into a room and offered some juice by two officers. The appellant did not accept the juice as she was afraid. The officers did not ask her the usual questions that day. Instead, they made comments about her appearance and told her that she was beautiful. The appellant wanted to sign and leave, but the officers would not let her.

11    The appellant claims that she was drugged by the officers and raped by them. She came round in hospital. She says that she did not want to live anymore and just wanted to die.

12    At that time, the appellant was still to marry her husband. She says that her mother told her not to tell her husband what had happened because he may not want to marry her so she “kept it inside”. They married about a year and a half later. Her husband still does not know what happened. The appellant said that she “cannot tell him even today”.

13    The appellant said that security forces like the Sri Lankan Army and CID have the freedom to commit such crimes against Tamil women without any consequences. There is no avenue for Tamil women to seek justice for these crimes.

Submissions to the delegate

14    The appellant said that Tamil women have always suffered sexual violence at the hands of the security forces in Sri Lanka. She says that it is an ongoing problem that the government will not acknowledge.

15    Detailed written submissions were made on behalf of the appellant in support of her SHEV application. Amongst other things, the following was submitted on her behalf:

    If returned to Sri Lanka she will be identified as a Tamil woman from the north, which will expose her to risk of harm by the security forces as soon as she arrived in Colombo.

    The appellant fears returning to Sri Lanka on the basis of her Tamil ethnicity, her imputed pro-LTTE political opinion and her membership of a particular social group of Tamil returnees and Tamil women in Sri Lanka.

    Tamil women in Sri Lanka continue to face the risk of rape and harassment by Sri Lankan security forces, particularly Tamil women in the north.

    The appellant will be exposed to the same risk of harm if she is forced to return to Sri Lanka.

The delegate’s decision

16    The delegate identified the appellant as having made four separately identifiable claims as enlivening Australia’s protection obligations with reference to s 36(2)(a) of the Migration Act 1958 (Cth).

17    First, the delegate considered the appellant’s real or perceived links to the LTTE as a basis for her fear of harm if returned to Sri Lanka. The delegate concluded that considering the appellant’s profile and country information available to the delegate, the appellant does not have a profile of interest to the Sri Lankan authorities. The delegate found that the chance that the appellant would face serious harm because of any real or perceived links to the LTTE is remote, at the time of the decision or in the reasonably foreseeable future. As such, the delegate found that the appellant does not have a well-founded fear of persecution for this reason.

18    Second, the delegate considered the appellant’s fear of harm on the basis of her Tamil ethnicity resulting in a real or imputed political association with the LTTE. The delegate found that being Tamil in Sri Lanka in itself is not a reason for the appellant to be imputed with an LTTE connection. The delegate was satisfied that the appellant does not hold a well-founded fear of persecution for this reason.

19    Third, the delegate considered the appellant’s claim to face harm on the basis of being a Tamil from a former LTTE controlled area in the north of Sri Lanka. Overall, the delegate found that the appellant was of no interest to the Sri Lankan authorities for any reason when she left the country. Given the improved situation in the north of the country, the delegate found the chance of her facing persecution for this reason is remote even if there is an ongoing military presence in the area. As such, the delegate found that the appellant does not have a well-founded fear of persecution for being a Tamil from the north of the country or from being from an area previously controlled by the LTTE.

20    Fourth, the delegate considered the appellant’s claim based on harm she will face for being a failed Tamil asylum seeker who departed illegally. The delegate found that even if the appellant were to face charges for an illegal departure, there is no information to suggest that anyone has been given a custodial sentence for departing illegally. The delegate was satisfied that the appellant does not hold a well-founded fear of persecution on account of being a failed Tamil asylum seeker who departed Sri Lanka illegally.

21    The delegate also considered the complementary protection criteria under s 36(2)(aa) of the Act, namely whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there is a real risk that she will suffer significant harm.

22    It was in this context that the delegate considered the appellant’s claims in relation to her sexual assault by the CID. The delegate found that at the time of the rape the appellant was single and subjected to reporting conditions. She remained in Sri Lanka for nearly another two years without further incident. The delegate found that there is no reason to believe that the appellant would find herself in circumstances that would make her vulnerable, especially as the appellant and her husband have parents and extensive extended family with whom she could seek shelter and protection. The delegate found that there was only a remote chance of the appellant facing serious harm at the time of the decision or in the reasonably foreseeable future if returned to Sri Lanka. On this basis, the delegate found that the appellant does not have a well-founded fear of persecution for reasons related to the sexual assault.

The Immigration Assessment Authority

23    The decision of the delegate was referred to the Authority for automatic review under Part 7AA of the Act.

24    The Authority (at [7] of its reasons) summarised the appellant’s claims for protection. Relevantly, that summary included the following:

•    During December 2010, whilst attending the CID office, she was drugged and raped. She later woke in hospital.

•    Fearing she might suffer from a social stigma as a result of this event, she kept this matter secret. Only her mother and brother are aware. She married her husband in March 2012. She has not told her husband.

25    The Authority accepted that the appellant was raped in December 2010 as she claims. The Authority recorded that the appellant:

has outlined that she feels significant humiliation and shame arising from this incident, and that she kept this incident from her husband, since she feared he would not marry her if he knew. She does not feel that she can tell him now, and wishes this matter to be maintained in the strictest confidence.

26    As summarised in the Minister’s written submissions, the Authority reasoned as follows:

    a person being of Tamil ethnicity would not of itself warrant international protection and neither would a person who evidences past membership or connection to the LTTE, other than in some inapplicable circumstances;

    women in Sri Lanka suffer from a range of disadvantages: sexual harassment and the risk of rape (especially in areas dominated by a strong Sri Lankan military presence, like the Northern Province); domestic violence; a low reporting of violence against women “and a social stigma for those who do report such violence”;

    female headed households are particularly vulnerable since the absence of a male presence often indicates a lack of physical security and may reduce economic opportunities since employment for women in Sri Lanka is less common;

    there are reports that allegations of sexual assault by members of the security forces persist. However, the assault occurred over 7 years ago and there has been considerable improvement in the security situation in Sri Lanka, and in the Northern Province;

    the appellant is married and, if returned to Sri Lanka, she would not be the female head of a household. Rather she would be under the protection of her husband. Her father, brother and brother-in-law also live in Sri Lanka;

    there was no claim or evidence that the appellant’s husband had, or would in the future, engage in domestic violence; and

    whilst the appellant was fearful of returning to Sri Lanka, the Authority was not satisfied that such a fear was well founded. That was because having regard to the improved security situation in Sri Lanka, the opportune nature of the sexual assault in 2010 and the protection the appellant would receive from her family, the Authority was not satisfied the appellant would face a chance of similar harm (i.e. sexual assault) if she were to return to Sri Lanka.

27    The Authority concluded as follows with regard to the claim that it had identified as being based on the harm that the appellant might suffer from social stigma as a result of her having been raped (footnote omitted):

35.     Country information indicates that victims of sexual assault may suffer from some social stigma in Sri Lanka. However, I note that the pool of persons with knowledge of the incident in Sri Lanka is very small. Within her family her mother and brother are aware of the incident. Outside her family, the pool is presumably limited to the treating doctor, possibly some other medical staff and the perpetrators of the attack. Such knowledge may cause distress to the applicant, however, give the small pool of persons I am not satisfied that there is a real chance the applicant would face any societal discrimination arising from this issue if returned to Sri Lanka.

28    The Authority thus affirmed the delegate’s decision not to grant the appellant a protection visa.

Federal Circuit Court

29    In the Circuit Court, the appellant contended that the Authority had erred, in summary, by reason of an alleged failure to exercise jurisdiction in purporting not to be satisfied under s 65 of the Act that there was a real chance:

    that the appellant might endure persecutory discrimination as a Sri Lankan Tamil victim of rape from northern Sri Lanka (ground 1A); and/or

    that the appellant might, again, be the victim of sexual assault if she was returned to Sri Lanka because the appellant would enjoy the protection of her family and husband, which was said to be illogical or irrational (ground 3) .

30    In relation to ground 1A, the Circuit Court identified the question as being whether the Authority should have looked at whether the fact that the appellant was keeping her past rape a secret was itself because of persecution. The Circuit Court concluded that that question must be answered in the negative because the issue did not arise on the material before the Authority. That was because the appellant said that she did not tell her husband about the rape because she thought that he may not want to marry her if she knew she had been sexually assaulted.

31    The Circuit Court reasoned as follows:

37.    What the Applicant has said is that she did not tell her fiancé because she thought that he may not want to marry her if he knew she had been sexually assaulted.  She has said that she still cannot tell him now, even though they have been married for a number of years.

…

39.    In the present matter, the Applicant is afraid that her husband would no longer wish to marry (or be married to) her. If anything, it is a fear of the consequences that would come from her husband, rather than from Sri Lankan authorities or Sri Lankan society in general. The Applicant does not fear her husband per se. Rather, she fears a possible negative reaction from him.

…

43.    The IAA had found that victims of sexual assault may suffer from some social stigma in Sri Lanka. Even though it was not part of her claim, the IAA had to address whether the Applicant would suffer such societal discrimination if she were returned to Sri Lanka. The IAA did make a finding that, because there was only a small pool of persons who knew of the incident and that the Applicant has personal reasons as to why she does not want the incident to become known, they were not satisfied that there was a real chance of the Applicant would face any societal discrimination arising from this issue. While I personally may have assessed the evidence differently, that is not the relevant test on review. Here, the enquiry made, and conclusions drawn, by the IAA were proper and open on the evidence. That is all this Court can address on review.

32    For that reason ground 1 was rejected.

33    It is not necessary to consider ground 3, although it too was rejected.

Ground of appeal

34    In this Court the appellant pressed only one ground of appeal, which corresponds with ground 1A in the review below, namely:

2. The learned primary Judge erred in not finding that the Second Respondent’s decision was vitiated by a constructive failure to exercise jurisdiction.

Particulars

a. The primary Judge should have found, but did not find, that the Second Respondent mischaracterised the ‘particular social group’ of which the appellant claimed membership (Sri Lankan Tamil women victims of rape), by splitting the genus into two sub-categories of public and non-public rapes.

b. Alternatively, the primary Judge should have found, but did not find, that the Second Respondent failed to:

i. address the real question of whether the appellant faced a well-founded fear of persecution by reason of membership of the particular social group, but instead addressed the question of whether or not the rape was likely to become public, or

ii. consider the reason why the appellant wished to conceal the fact of her rape from her husband or anyone else.

Submissions

35    On behalf of the appellant it was submitted that when the Authority conducts an inquisitorial review process where there is a claim for protection under s 36(2) of the Act, it must not only consider and determine the case as articulated by the protection visa applicant, but it must also do so in relation to any unarticulated claim which is nevertheless raised clearly or squarely on the material before it. Reference was made to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[61] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [79].

36    On behalf of the appellant, it was submitted that her statement that she had been a victim of sexual violence in Sri Lanka, and that she was not able to express this “to anybody, not even [her] husband” was sufficient to require that her claim to persecution as a member of a particular social group, namely Sri Lankan Tamil women victims of rape, was required to be considered by the Authority. It was submitted that the Authority identified such a claim, and it purported to address a claim of persecutory discrimination as a victim of sexual assault, as is apparent from paragraph [35] of its reasons, which is quoted above (at [27]).

37    On behalf of the appellant it was submitted that in concluding that there is an insubstantial risk of persecution constituted by societal discrimination because only a small “pool” of persons know about the rape of the appellant, the Authority impermissibly broke the genus of “Tamil women from the north who have been raped” into two sub-groups, namely privately and publicly raped Tamil women in Sri Lanka. It was submitted that such an approach is contrary to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473.

38    It was submitted on behalf of the appellant that the Authority failed to ask “why” the appellant was unable to speak of her rape. It and the primary judge, so it was submitted, erroneously focused on why she felt unable to tell her husband about the rape and overlooked her separately articulated claim, which was also recognised by the Authority as having been made, that she was unable to tell anybody because of societal stigma or discrimination.

39    On behalf of the Minister, it was submitted that it was not part of the appellant’s claim, whether express or implied, that she feared return to Sri Lanka because she would (or might) face discrimination as a result of having been sexually assaulted. It was submitted that the appellant’s reliance on Appellant S395/2002 is misplaced because, as the primary judge found, the question as to “why” the appellant did not disclose the fact of her assault was considered and the conclusion was reached that it was because of factors in relation to her husband, rather than because of broader societal stigma or discrimination – the appellant feeling unable to tell anyone about the assault on her was not linked by her to being in Sri Lanka which is demonstrated by the fact that she had still not told anyone even though she had been out of Sri Lanka for many years. It was submitted that the fact that the Authority considered that women who had experienced sexual assault or violence may experience social stigma was not sufficient. As Appellant S395/2002 makes clear, it was necessary to consider the matter as it concerned the appellant which, it was submitted, was done.

Consideration

40    It is not clear that the appellant raised a claim of societal stigma or discrimination arising from her status as a (Tamil) woman survivor of rape. However, two things are clear. One is that she said that she could not tell “anyone, not even her husband”. She did not say that she could not tell her husband and therefore could not tell anyone else for fear that her husband might then learn of the fact that she was raped. She put her inability to tell “anyone” first followed by “not even her husband” which carries with it the implication that there was some reason in relation to everyone, not just her husband, that she could not speak of her rape.

41    The other thing that is clear is that the Authority considered that the appellant had raised a claim of societal stigma or discrimination based on the fact that she is the survivor of a sexual assault or rape at [7] of its reasons quoted at [24] above. Moreover, the Authority referred to country information which demonstrates that there is a factual basis to a realistically possible conclusion that (Tamil) women survivors of sexual assault in Sri Lanka face persecution by way of societal stigma or discrimination.

42    In the latter regard, a United Kingdom Home Office report, Country Policy and Information Note – Sri Lanka: Tamil separatism (March 2017), cites the Human Rights Watch Annual Report 2017 recording that “Allegations of sexual and other violence committed against women during the civil war are expected to be addressed through the transitional justice mechanisms, although there are concerns that many women will be reluctant to come forward absent an independent victim and witness protection program.”

43    Further, an Australian Department of Foreign Affairs and Trade report, DFAT Country Information Report Sri Lanka (24 January 2017), states that reported incidents of sexual assault and rape in Sri Lanka 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.”

44    If a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 341; 107 FCR 184 at 196 [42] per Merkel J, Heerey and Sundberg JJ agreeing.

45    Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].

46    The Tribunal is required to deal with the case raised by the material or evidence before it, even a case that is unarticulated if it arises “squarely” on the material, meaning that a claim not expressly advanced will attract the review obligation when it is apparent on the face of the material before the Tribunal: NABE at [58] per Black CJ, French and Selway JJ.

47    In Appellant S395/2002, two male citizens of Bangladesh applied for protection visas. The Refugee Review Tribunal rejected their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal accepted that it was not possible to live openly as a homosexual in Bangladesh, but found that the applicants had “clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now” with the result that they would not suffer serious harm by reason of their sexuality. The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution.

48    McHugh and Kirby JJ who formed the majority with Gummow and Hayne JJ, in dealing with a submission on behalf of the Minister that the applicants had not claimed before the Tribunal that they had suffered harm by reason of having to live discreetly with the result that the matter could not be raised, stated as follows (at [39]):

On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature.  The arguments and evidence of applicants or the Minister cannot narrow the Tribunal's jurisdiction to investigate the generality of a claim for a protection visa.  Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally.  If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law.  …  If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide – whether the appellants had a well-founded fear of persecution.

49    Returning to the present case, the above authorities make it clear that since on the material before it the Authority identified the claim to persecution on the basis that the appellant feared social stigma as a result of her having been sexually assaulted, and that she had kept the assault secret, in order to properly exercise its jurisdiction it was obliged to make a finding on that claim. Here, the Authority rejected that claim on the basis that since very few people would know of the appellant being the survivor of a sexual assault there is no real chance that she will suffer societal discrimination because of it. It reasoned that few people will have that knowledge because the appellant feels unable to tell anyone about the incident.

50    In Appellant S395/2002, McHugh and Kirby JJ (at [40]) stated that “persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.” Their Honours reasoned (at [43]) that the well-founded fear of persecution held by an applicant could be the fear that, unless that person acts to avoid the harmful conduct, they will suffer harm; it is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

51    McHugh and Kirby JJ (at [51]) held that because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladeshi society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh. Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live.

52    Finally, McHugh and Kirby JJ (at [55]) held that by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal had effectively broken the genus of ‘homosexual males in Bangladesh’ into two groups – discreet and non-discrete homosexual males in Bangladesh. That inevitably invited error.

53    Gummow and Hayne JJ (at [88]) identified the error by the Tribunal as not asking why the appellants would live discreetly if they returned to Bangladesh. It did not ask whether the appellants would live discreetly because that was the way in which they would hope to avoid persecution.

54    Gummow and Hayne JJ (at [90]) also agreed with McHugh and Kirby JJ that the Tribunal was in error by dividing the genus of homosexual males in Bangladesh into two groups – discreet and non-discrete homosexual males in Bangladesh.

55    In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317, French CJ, Hayne, Kiefel and Keane JJ identified the essence of the decision in Appellant S395/2002 as follows (at 325 [17]):

The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.

56    In the same case, Gageler J, referring to Appellant S395/2002, said (at 330 [36]):

The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.

57    The Authority in the present case fell into the same error as the Tribunal did in Appellant S395/2002. It concluded that the appellant would not suffer societal discrimination in Sri Lanka because she would be discrete about the fact that she had suffered rape at the hands of the CID. That approach impermissibly divided the genus of Tamil women in Sri Lanka who are survivors of sexual assault into two sub-groups, namely those whose assault is already public and those whose assault is not public. Although the Authority asked why the appellant did not tell her husband of the assault, it did not ask why she did not tell anyone else (other than her mother and her brother). As I have indicated, the appellant squarely put the claim that she felt unable to tell “anyone”.

58    That identifies the error of the primary judge. His Honour (at [38]-[40]) distinguished Appellant S395/2002 on the basis that in that case the appellants needed to be “discrete” about their homosexuality because they feared persecution from the Bangladeshi authorities, and the Bangladeshi society in general, if their homosexuality was disclosed rather than because of some reason personal to them – in this case being the reason for the appellant not wishing to tell her husband.

59    The error is further exposed by the following consideration. What if the appellant’s husband finds out about the rape of the appellant at the hands of the CID, perhaps even through this very case – he would then know and the Authority and the primary judge’s reasoning with regard to the appellant keeping the rape a secret would not apply. Yet the appellant’s claim of not being able to tell “anyone” would remain. That claim was not considered by the Authority.

60    ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 is to similar effect. Rangiah J (at [34]) identified that the Authority had accepted that if the appellant’s sexual abuse as a child was exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. His Honour found that the Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, it may have been found that he feared persecution on the basis of membership of a particular social group depending on the Authority’s findings concerning any “real chance” that the appellant would be “persecuted”.

61    SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299 is different. There, Rangiah J identified (at [19]) that the Tribunal found that it was not satisfied that the appellant faced any real chance of persecution in Iraq based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant “would not wish to continue to engage in such groups should he return to Iran”. That finding was based upon the Tribunal’s satisfaction that the appellant “lacks any real interest” in Kurdish political organisations and its lack of satisfaction that he had “any political (or other) convictions, that would give rise to a real chance of persecution in Iran”. Rangiah J found (at [20]) that the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so.

62    FTQ18 v Minister for Home Affairs [2019] FCA 2025 is also different. Steward J found (at [26]) that the primary reason for the appellant being likely to be discrete in Iran about not believing in Islam, or about being agnostic, was not the product of fear, but of his personal values including seeing no reason to “propagate and promote” his views.

63    As I have identified, in the present case the Authority failed to ask why the appellant felt unable to tell “anyone” of her having been sexually assaulted by the CID. Because of that error with regard to the inquiry into why the appellant feels compelled to keep the sexual assault secret, the Authority failed to enter upon the inquiry whether the particular social group suffers persecution as a consequence of societal stigma or discrimination. The Authority then did not undertake the assessment which is required under s 5J(1) of the Act of whether the appellant specifically has a well-founded fear of persecution on the basis of any identified societal stigma or discrimination.

64    If the Authority had found that s 5J(1) was satisfied, that would require it to consider s 5J(3) of the Act. For the present purposes it is sufficient to say that if s 5J(3) had been considered by the Authority, further issues would have arisen, including whether the provision applies to behaviour that has already been modified, the reasonableness of taking steps to modify the appellant’s behaviour and whether any modification would conceal an immutable characteristic: see ESD17 at [35]. There is a realistic possibility that the Authority’s assessment on that point would have been in the appellant’s favour.

65    With reference to the assessment required by s 5J(4) and (5) with regard to the potential for the persecution to involve serious harm, as I have already identified, the Authority referred to country information which indicates that had the Authority entered upon that inquiry there is a realistic possibility that it might have reached a conclusion in favour of the appellant.

66    In regard to a serious harm finding, reference was made before me to R (Hoxha) v Special Adjudicator [2005] UKHL 19; [2005] 1 WLR 1063 in which an issue – referred to as “a subsidiary issue” – arose as to whether a person may fall within the definition of “refugee” in Art 1A(2) of the Refugee Convention in circumstances where they have a fear of the continuing effects of persecution afflicted upon them in the past.

67    In the context of discussing that issue, on which the answer was “no”, Baroness Hale (with whom Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood agreed) stated the following:

36.    To suffer the insult and indignity of being regarded by one's own community (in Mrs B's words) as “dirty like contaminated” because one has suffered the gross ill-treatment of a particularly brutal and dehumanising rape directed against that very community is the sort of cumulative denial of human dignity which to my mind is quite capable of amounting to persecution. Of course the treatment feared has to be sufficiently severe, but the severity of its impact upon the individual is increased by the effects of the past persecution. The victim is punished again and again for something which was not only not her fault but was deliberately persecutory of her, her family and her community. …

37.    If what they fear is capable of amounting to persecution, is it for a Convention reason? It is certainly capable of being so.

68    Baroness Hale’s comments were implicitly endorsed by Branson J in SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942; 87 ALD 498 at [34].

69    At a more general level, I note that it is now well established that stigma, shame and embarrassment are significant barriers to survivors of sexual assault disclosing their assault and to their recovery: Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 4. There have been numerous studies indicating that prolonging disclosure of sexual assault, feelings of shame and experience of stigmatisation or negative social reactions increase vulnerability of sexual assault survivors to a range of adverse health outcomes. See for example: B Ensiuk, W van Berlo and FW Winkel, “Secrecy and Persistent Problems in Sexual Assault Victims” (2000) 10 International Criminal Justice Review 81-97; DM Quinn, MK Williams, F Quintana, JL Gaskins, NM Overstreet, et al., “Examining effects of anticipated stigma, centrality, salience, internalization, and outness on psychological distress for people with concealable stigmatized identities” (2014) 9(5) PLoS ONE 1-15; SE Ullman, and L Peter-Hagene, “Social Reactions to Sexual Assault Disclosure, Coping, Perceived Control and PTSD Symptoms in Sexual Assault Victims” (2014) 42(4) Journal of Community Psychology 495-508.

70    I have not taken reports or articles in the preceding paragraph into consideration in reaching a conclusion as to the result in this case as they were not before the Authority. I only note their existence and that it is by no means obvious that social discrimination or stigmatisation cannot amount to persecution. Further, the Minister rightly accepted in oral submissions that stigma or discrimination arising from sexual assault could give rise to a relevant claim. His argument, which I have dealt with, is that the claim was not made.

71    There is a realistic possibility that the Authority might have found that there is a real chance that upon return to Sri Lanka the appellant would be persecuted for the reason of membership of a particular social group being Sri Lankan Tamil women from the Northern Province who have been victims of sexual assault. There is then the realistic possibility that the appellant could have been found to be a refugee under s 5H of the Act and could therefore fulfil the criteria under s 36(2)(a) of a non-citizen of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

Conclusion

72    For the above reasons, the appeal must succeed. The orders of the primary judge should be set aside and replaced with orders granting the application for judicial review of the Authority’s decision and remitting the matter to the Authority for reconsideration according to law.

73    The parties accepted that the costs should follow the event. The Minister must accordingly pay the appellant’s costs.

Associate:

Dated:    3 August 2020