Federal Court of Australia

CXB20 v Minister for Home Affairs [2020] FCA 1667

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 14 October 2019 are set aside.

3.    A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 19 February 2019.

4.    A writ of mandamus issue requiring the Immigration Assessment Authority to decide the referral made in respect of the appellants’ visa application according to law.

5.    The first respondent pay the appellants’ costs of the appeal and the proceeding before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The appellants appeal against a judgment of the Federal Circuit Court of Australia delivered on 14 October 2019. The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority).

2    The Authority had affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant Safe Haven Enterprise Visas (SHEV) to the appellants.

3    The grounds of the notice of appeal are that:

(1)    The primary judge erred in failing to find that the Authority fell into jurisdictional error by impermissibly confining its consideration of whether there were “exceptional circumstances” to justify consideration of “new information” under s 473DD(a) of the Migration Act 1958 (Cth) to when the appellants could have provided the information.

(2)    The primary judge erred in failing to find the Authority ignored relevant considerations when considering if there were “exceptional circumstances”, including the age of the second appellant and the reasons for the first appellant not disclosing her own sexual assault.

(3)    The primary judge erred in failing to find the Authority misapplied s 5J of the Migration Act 1958 (Cth) by not turning its mind to the issue of whether the Sri Lankan State was unable or unwilling to protect the first appellant from sexual assault by the security officers for a Convention reason.

4    I will describe the background and the decisions of the Authority and the primary judge before considering the merits of the appeal.

Background

5    The first appellant is the mother of the second appellant. I will refer to them as “the mother” and “the daughter” respectively. They are of Tamil ethnicity and Hindu religion and are from the Northern Province of Sri Lanka. They arrived in Australia as “unauthorised maritime arrivals” in November 2012.

6    The mother was interviewed by an officer of the Department of Immigration and Citizenship on 21 January 2013, shortly after her arrival in Australia (the Entry interview). In the interview, the mother claimed she had fled Sri Lanka because the Criminal Investigation Department (CID) of the Sri Lankan Police would come to her house looking for her husband, who had disappeared, that they would tell her to come with them “for sexual reasons”, and they would abuse her daughter. The mother claimed she came to Australia to “protect [her] life”. The daughter was interviewed by the same officer, and claimed that her class mates were raped by the CID and that if she returned to Sri Lanka the same would happen to her.

7    The appellants lodged a combined SHEV application on 10 May 2016. The mother made a claim for protection, and the daughter relied on her mother’s claims but did not make any claims for protection of her own. The mother claimed that she feared harm from the Sri Lankan Government, the CID and the Sri Lankan Army (SLA).

8    In a statutory declaration sworn on 5 October 2015 and provided to the delegate on 13 October 2016, the mother claimed, amongst other things, that:

(a)    She had to place her daughter in a hostel for her safety while she was away in Lebanon, “as there was a lot of violence against girls and women occurring at this time, including rape by the Sri Lankan army”.

(b)    On one occasion, people who she believed to be members of the army or the police came looking for her at her house and wanted to take her away to ask her questions about her husband, who had disappeared. She claimed that when she refused, they started pushing her and touching her “inappropriately”, and that they only left after her neighbours intervened.

(c)    She was visited at her home by men from the SLA or the CID on at least five occasions, and on one occasion three men came to her house in plain clothes and two of them held her down while the third man raped her.

(d)    She could not seek help from the Sri Lankan Government, as the army and the CID were the ones inflicting harm on her.

(e)    She has been receiving counselling and has confided in her counsellor about the rape. She feels very ashamed of the rape and does not like talking about it, and has never told her daughter about it and does not want her to know that it happened.

9    The mother was interviewed by an officer of the Department of Immigration and Border Protection as part of her protection visa application on 13 February 2018 (the SHEV interview). Legal submissions were made by the Refugee and Immigration Legal Service (RAILS) on her behalf. RAILS referred to country information discussing the prevalence of sexual assaults of Tamil women by Sri Lankan military and security personnel in the north and east of the country, and saying that such assaults were carried out with impunity.

10    On 17 July 2018, the delegate accepted the mother’s claim of sexual assault and her reasons for not disclosing it at her Entry interview, but ultimately refused to grant the combined SHEV application on the basis that Australia did not owe the appellants protection obligations. The decision was then referred to the Authority for review on 20 July 2018.

11    On 9 August 2018, further submissions were made to the Authority on behalf of the appellants, which included a statutory declaration of the mother dated 6 August 2018. The statutory declaration made reference, for the first time, to the daughter allegedly having been sexually assaulted in 2003 at a young age, and claimed that this was the reason she had been placed in a hostel while the mother was in Lebanon. The mother provided reasons for not previously disclosing this new information as follows:

20.     I have not disclosed this information previously, as I wanted to spare my daughter. I was scared that if I revealed this information I would somehow tarnish her name. I did not want my daughter to be questioned about what had happened to her. I did not want her to relive the traumatic events of the past. It is very difficult for me to speak about what happened to my daughter and I felt great shame over it. Even disclosing this information to my lawyer was very distressing to me.

21.     I cannot take my daughter back to Sri Lanka. I fear for her safety if we were to return and I fear for her mental wellbeing. I have been trying to protect my daughter by not disclosing this information in the past. I also ask that my daughter not be questioned about this event in the future.

The decisions of the Authority and the Federal Circuit Court

12    On 19 February 2019, the Authority decided to affirm the delegate’s decision. The Authority found that it was not permitted to consider the new information relating to the daughter’s sexual assault, as it was not satisfied that there were “exceptional circumstances” to do so pursuant to s 473DD(a) of the Migration Act 1958 (Cth) (the Act). The Tribunal gave the following reasons for its finding:

The first applicant’s statutory declaration refers to a new claim, that her daughter was sexually assaulted in 2003 in [name redacted] Camp, and indicates that is the reason why her daughter had to live in the hostel. The first applicant states that she believes her daughter was assaulted by the men who were policing the camp, and whilst she was in Lebanon she received a call saying her daughter was taken by a child protection agency and placed in a hostel for her safety. She was not told the specific reasons and it was only later she realised it was in relation to a sexual assault. The first applicant provides no details about who called her, or exactly when they did so, or when and how she formed the belief that her daughter has been sexually assaulted. The first applicant states that she did not disclose this information previously as she wanted to spare her daughter, was scared it would tarnish her name, did not want her daughter to be questioned about what had happened and relive past events, and because she felt great shame over it, and it is very difficult and distressing for her to speak about what happened to her daughter. The first applicant goes on to state that she has been trying to protect her daughter by not disclosing this information in the past, and asks that her daughter not be questioned about this event in the future. Of note, at her Entry interview, in January 2013, when asked why she left Sri Lanka the second applicant said the CID came to her house and asked her and her Mum to go to their camp, that some of her classmates were raped by the CID and fears that would happen to her if she went to their camp. When asked if she had ever gone to the CID camp she said ‘no’. Taking into account that the applicants were represented by RAILS throughout the Visa application process, who I consider as experienced practitioners would have advised them of the importance of putting forward all claims, that the first applicant received information prior to the SHEV interview stressing the importance of raising all of claims for protection, that despite the cultural shame associated with such assaults the first applicant disclosed her own sexual assault in her statement of claims and during the SHEV interview, and that the second applicant did not refer to being sexually assaulted during the Entry interview, or make her own claims for protection, and noting that the events took place several years ago, the first applicant has not satisfied me the information could not have been provided prior to the delegate’s decision, or that the claim is credible, as I consider it would have been made at an earlier time if the events had genuinely occurred. In all the circumstances, I am not satisfied there are exceptional circumstances to consider this new claim.

13    The Authority went on to consider the merits of the mother’s claims. The Authority was prepared to accept the first appellant was sexually assaulted in the manner claimed, and that the men may have been security officers, but found that the incident was an opportunistic criminal act, perhaps motivated by the fact that the first appellant had no adult male figure in her household at the time, and was not an act sanctioned by Sri Lankan authorities. The Authority found that the chance of her being subjected to an opportunistic assault if she were returned to Sri Lanka was remote.

14    The appellants filed an application for review of the decision of the Authority in the Federal Circuit Court on 12 March 2019, and an amended application on 12 June 2019.

15    In Grounds 1 and 2 of the amended application for review, it was asserted that the Authority erred in failing to find that there were exceptional circumstances justifying it considering new information concerning the alleged sexual assault of the daughter. The primary judge held that it was open to the Authority to find that there were no exceptional circumstances justifying its consideration of the information.

16    Ground 1A asserted that the Authority ignored the fact that the daughter’s Entry interview was conducted by a male at a time when she was only 15 years of age, and in circumstances where the Authority had accepted that the mother had not disclosed that she had been sexually assaulted at the time of her Entry interview because of her shame at revealing that matter. The primary judge held that to the extent that the Authority did not mention some factors, it was not required to do so, and that the Authority’s findings on credibility were open to it.

17    Ground 3 asserted that the Authority misapplied the test set out in s 5J of the Act. His Honour held that it could not be said that the Authority did not turn its mind to whether the appellants would face a real chance of harm either at the hands of government security or military personnel, or from non-government agents such as those who the Authority considered may have committed the opportunistic attack upon the first appellant in 2012. His Honour considered that the Authority undertook a considered assessment as to whether the appellants had any well-founded fears of persecution as provided for in s 5J(2) of the Act, and found that there were no such fears. It may be that his Honour intended to refer to s 5J(1), rather than s 5J(2).

18    It is unnecessary to discuss the other grounds of the application, as they were not relied upon in the appeal. The primary judge concluded that no jurisdictional error on the part of the Authority had been established and dismissed the application.

Legislation

19    The provisions of the Act that are most directly relevant for the appeal are ss 5H, 5J, 36(2), 473DC and 473DD.

20    Section 36(2) of the Act provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

21    Section 5H(1) provides, relevantly:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

…

22    Section 5J of the Act provides, relevantly:

5J    Meaning of well‑founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(2)    A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.

…

23    Section 473DC(1) of the Act provides as follows:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

24    Section 473DD of the Act provides as follows:

473DD    Considering new information in exceptional circumstances

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

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

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

25    Pursuant to s 473DC(1), the claim that the daughter had been sexually assaulted contained in the mother’s statutory declaration was “new information”. Under s 473DD, the Authority was forbidden from considering the new information unless it was satisfied that the preconditions in subsections (a) and (b) were met.

Consideration

Grounds 1 and 2

26    Grounds 1 and 2 of the notice of appeal concern the provision of new information by the mother to the Authority regarding a sexual assault against the daughter. As these grounds were addressed together by the appellant in oral and written submissions, I will consider them together.

27    In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, the plurality of the High Court described the operation of s 473DD of the Act:

7    The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of “exceptional circumstances” justifying its consideration of that new information .

8    New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of “credible personal information”, that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.

…

11    Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

12    The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

(Citations omitted.)

28    What will amount to exceptional circumstances is, “inherently incapable of exhaustive statement”: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [30]. For a circumstance to be exceptional, it “need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”: R v Kelly [2000] 1 QB 198 at 208, quoted in Plaintiff M174/2016 at [30].

29    In determining whether there are exceptional circumstances within s 473DD(a), the Authority must consider, “all the relevant circumstances”: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [41]; AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [7]–[8]. That is because, “even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional”: BVZ16 at [41].

30    In Ground 1, the appellants allege that the Authority impermissibly confined its consideration of whether there were exceptional circumstances to whether the new information could have been provided earlier. It is submitted that the Authority did not take into account the fact that an explanation had been given by the mother for why the new information had not been disclosed earlier.

31    The appellants submit that this case is analogous to CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148, where the Full Court held at [44]:

In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims.

32    The Minister submits that the Authority did not impermissibly confine its consideration of whether there were exceptional circumstances only to whether the new information could have been provided earlier.

33    The Authority concluded at [7] of its reasons that it was not satisfied that there were exceptional circumstances to justify considering the new information pursuant to s 473DD(a). The Authority stated that it was not satisfied that the new information could not have been provided prior to the delegate’s decision. The Authority also said that it was not satisfied that the claim was credible, as, if the events had genuinely occurred, then the claim would have been made at an earlier time. In its reasons, the Authority stated that it took into account the following factors in reaching its conclusion:

    The appellants were represented by RAILS throughout the visa application process, who as experienced practitioners would have advised them of the importance of putting forward all claims.

    The mother received information prior to the SHEV interview stressing the importance of raising all claims for protection.

    Despite the cultural shame associated with sexual assault, the mother disclosed her own sexual assault in her statement of claim and the SHEV interview.

    The daughter did not refer to being sexually assaulted during the Entry interview, and did not make her own claims for protection.

34    It is clear that the Authority did consider the mother’s explanation for why the new information had not been disclosed previously when it stated:

The first applicant states that she did not disclose this information previously as she wanted to spare her daughter, was scared it would tarnish her name, did not want her daughter to be questioned about what had happened and relive past events, and because she felt great shame over it, and it is very difficult and distressing for her to speak about what happened to her daughter. The first applicant goes on to state that she has been trying to protect her daughter by not disclosing this information in the past…

35    The Authority took into account more than whether the new information could have been provided earlier. The Authority considered the credibility of the new information and concluded that it was not satisfied the claim was credible, noting the previous opportunities the appellants had to raise the new information before the delegate; the fact that the mother raised her own sexual assault before the delegate, notwithstanding the associated cultural shame; the fact that the appellants were represented by RAILS; the fact that the daughter did not raise her sexual assault before the delegate and did not make her own claims for protection; and that it considered the claim “would” have been made earlier if it had genuinely occurred. The Authority ultimately concluded that in “all the circumstances” it was not satisfied that exceptional circumstances existed to justify considering the new information.

36    The Authority did not impermissibly confine its consideration to whether the new information could have been provided earlier. Therefore, the primary judge did not err in concluding that it was open for the Authority to find that there were no exceptional circumstances justifying its consideration of the new information. Ground 1 is not established.

37    In Ground 2, the appellants allege that the Authority failed to take into account the following matters:

    The daughter’s Entry interview was conducted by a man.

    The daughter was only 15 years old at the time of the Entry interview.

    While the mother also did not disclose her own sexual assault at her Entry interview or subsequently in her initial protection visa application, the Authority accepted her reasons for not doing so.

38    The appellants rely on the following observations of the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56]:

…[S]ome caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

39    The appellants submit that the Authority failed to respond to a substantial, clearly articulated argument relying upon established facts, which amounted to jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]. To succeed on this ground, it must be shown that the argument was raised squarely or clearly on the material available to the decision-maker: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]–[60]; SZTOR v Minister for Immigration and Border Protection [2019] FCA 349 at [37].

40    The Minister submits that the Authority did turn its mind to each of the three matters. The Minister also submits that none of the matters were cited by the mother as reasons for the late provision of the new information in her statutory declaration dated 6 August 2018 or the further submissions provided to the Authority by RAILS on 9 August 2018, so that it would “hardly be surprising” if it is found that the Authority did not take such matters into account. This seems to be a submission that the three considerations relied on by the appellants were not squarely raised in the material before the Authority, and as such were not required to be considered.

41    For the appellants to establish jurisdictional error on the basis of a failure to take into account the three matters set out above, it must be established that they:

(1)    were raised squarely, or clearly arose from, the material before the Authority;

(2)    rely upon established facts;

(3)    were not considered by the Authority when determining whether to grant the visas;

(4)    were substantial, or material, in the sense that consideration of the arguments might realistically have resulted in a different decision.

42    The appellants provided the Authority with the mother’s statutory declaration dated 6 August 2018 and the further submissions on 9 August 2018.

43    The appellants submit that the first relevant matter overlooked by the Authority was the fact that the Entry interview was conducted by a man. The relevance of this consideration seems to be that the appellants’ failure to raise the new information earlier can be explained by the fact that the interviewer was male, as they would not have wanted to disclose the daughter’s sexual assault to a man.

44    The fact that the Entry interview was conducted by a man was not raised either in the mother’s statutory declaration or the submissions provided by RAILS. There was some reference in this material to the cultural shame associated with disclosing the daughter’s sexual assault, and to the mother’s fear that revealing the sexual assault would tarnish the daughter’s name. The appellant submits that the name of the interviewer is stated on the record of the Entry interview, and is clearly the name of a man.

45    However, the fact that the interviewer was a man and the relevance of that matter as an explanation for why the new information was not disclosed before the delegate was not squarely raised in either the statutory declaration or the submissions provided by RAILS. As that matter was not clearly raised, the failure of the Authority to consider it does not amount to jurisdictional error: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [48]–[52].

46    The second matter alleged to have been overlooked by the Authority is the young age of the daughter at the time of the Entry interview. The relevance of this consideration seems to be that the daughter’s failure to raise the new information earlier can be explained by her age, as she was too young to be able to discuss her undoubtedly traumatic experiences of sexual assault, especially before a stranger.

47    The daughter’s date of birth was included in the mother’s statutory declaration which was provided to the Authority. Her date of birth is also stated on the record of the Entry interview, which was also before the Authority. However, the age of the daughter was not referred to in the parts of the material that addressed why the new information had not been provided earlier. The relevance of her age at the time of the Entry interview was not squarely raised in the material before the Authority. The Authority’s failure to consider it does not amount to jurisdictional error: WAEE at [48]–[52].

48    The third matter alleged to have been overlooked is the fact that the Authority accepted the mother’s reasons for not disclosing her own sexual assault at her Entry interview or in her initial protection visa application. The relevance of this consideration is said to be that the Authority’s finding that the appellants’ reasons for not disclosing the mother’s sexual assault earlier were credible was inconsistent with its finding that the reasons for not disclosing the daughter’s sexual assault earlier were not credible, when the reasons for not disclosing both claims of sexual assault earlier were the same.

49    The fact that the reasons for not disclosing both claims of sexual assault earlier were the same was not put forward expressly as a reason for why the daughter’s claims of sexual assault ought to be accepted as credible. This was accepted by counsel for the appellants in oral submissions. I do not consider that this consideration was squarely raised in either the mother’s statutory declaration or the submissions provided by RAILS.

50    This matter was not clearly raised before the Authority, such that failure of the Authority to consider it does not amount to jurisdictional error.

51    The primary judge did not err in finding that the Authority did not ignore the three matters contended for by the appellants when considering if there were exceptional circumstances. Ground 2 is not established.

Ground 3

52    In Ground 3, the appellants allege that the Authority misapplied s 5J of the Act by not turning its mind to the issue of whether the Sri Lankan State was unable or unwilling to protect the mother, as a Tamil woman, from sexual assault by the security officers for a Convention reason.

53    The Authority accepted that the mother had been sexually assaulted by members of the security forces, but found that it was an opportunistic attack, and not one sanctioned by the Sri Lankan authorities. The appellants submit that, “the Authority should have gone on to consider the claim…she was at risk of future harm because of the selective or discriminatory failure by the Sri Lankan authorities to enforce the criminal law against military and CID perpetrators of sexual violence against Tamil women”. The appellants argue that the Authority, “impermissibly narrowed the scope of s 5J by failing to consider whether the persecutory nature of the mother’s sexual assault consisted of the act of the perpetrators in conjunction with the discriminatory withholding of state protection”.

54    The error asserted seems to be a combination of misconstruction of s 5J of the Act and an error of the type identified in Dranichnikov at [24], namely that the Authority failed to respond to a substantial, clearly articulated argument relying upon established facts. However, if it can be shown that an argument of this kind was overlooked, it may not be necessary to demonstrate that the error arose as a result of misconstruction of s 5J.

55    To establish jurisdictional error of the kind in Dranichnikov, it is necessary to demonstrate the four matters set out at [41] of these reasons.

56    In her statutory declaration sworn on 5 October 2015, the mother claimed that she had been sexually assaulted by three men in plain clothes who were members of the SLA or CID. The mother stated that she did not believe she could seek help from the Sri Lankan government, as the SLA and the CID were the ones, “questioning [her] and threatening to take [her] away from [her] family to the torture camps”.

57    In its submission to the delegate, RAILS asserted that the mother had, “experienced persecution at the hands of the Sri Lankan authorities including interrogation, threats of detention and rape”. The submission said, “There are no effective protection measures available to [the mother] in Sri Lanka”. The submission continued:

Country information from 2016 and 2017 maintains that security forces continue to sexually assault Tamil women. In addition, it demonstrates that impunity persists for crimes of violence against women, including acts of rape by military personnel.

58    The submission went on to say that, “Country information and the UNHCR guidelines indicate that [the mother] is at risk of sexual abuse and exploitation by the Sri Lankan authorities”. It said that the risk of violence against her was “further increased” and “heighten[ed]” by factors including that she would be living in a female-headed household, she would be imputed to be a war widow, she would be living in the Northern province and she would be without male protection.

59    RAILS’ submission claimed that the mother was at high risk of societal discrimination and violence and, in particular, that she was at heightened risk of sexual assault if she were returned to Sri Lanka. It was submitted that she had a well-founded fear of persecution on the basis of her past experiences, including her rape by members of the security forces, the lack of effective protection measures from the Sri Lankan government and impunity and weak administration of justice.

60    Section 5J(1) of the Act describes the circumstances in which a person will have a “well-founded fear of persecution”. The Authority was required to be satisfied, in the circumstances of the case, that:

(a)    the mother fears being persecuted for reasons of her membership of a particular social group, namely Tamil women;

(b)    there is a real chance that she would be persecuted for such reasons if returned to Sri Lanka; and

(c)    the real chance of persecution relates to all areas of Sri Lanka.

61    Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country.

62    The Authority’s reasons, as will be seen, rejected the mother’s claims at the s 5J(1) stage. The Authority, having rejected the claims at that stage, found it unnecessary to consider the availability of effective protection measures for the purposes of s 5J(2).

63    The claim made by the mother of a fear of persecution as a Tamil woman within s 5J(1)(a) and (b) of the Act relevantly had two components. First, she claimed to fear persecution in the form of rape carried out by Sri Lankan authorities, namely members of the security forces. Second, she claimed to fear such persecution resulting from toleration and discriminatory inactivity by higher Sri Lankan authorities in respect of rapes carried out by members of the security forces.

64    The mother claimed that the real chance that she, as a Tamil woman, would be raped by members of the security forces if returned to Sri Lanka, was demonstrated by the fact that she had been raped by members of the security forces in the past. She also claimed, relying on country information, that she faced an increased or heightened risk of rape because of the impunity with which security forces are able to act.

65    In my opinion, these arguments were clearly articulated in the evidence and submissions that had been provided to the Minister’s delegate, and which were before the Authority.

66    In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, McHugh J addressed the meaning of the word “persecution” at 429–430:

The term “persecuted” is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes “being persecuted”. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be “persecuted” because he or she is a member of a group which is the subject of systematic harassment. Nor is it a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention. The threat need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution…

(Citations omitted.)

67    In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, McHugh J observed at [99]:

Selective harassment which discriminates against a person for a Convention reason is inherent in the notion of persecution. Unsystematic or random acts are non-selective.

68    In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, the respondent claimed that she had been a victim of domestic violence perpetrated by her husband and members of his family in Pakistan and that the police authorities failed to investigate complaints of domestic violence by women. The High Court held that persecution within the meaning of the Refugees Convention could exist where persecution was inflicted otherwise than by the State, including infliction by private citizens which was tolerated or condoned by State authorities in a discriminatory manner. Chief Justice Gleeson held:

26    As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes...

…

29    If there is a persecutor of a person or a group of people, who is a “non-state agent of persecution”, then the failure of the state to intervene to protect the victim may be relevant to whether the victim’s fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.

30    The references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation…

31     Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state…

69    In Khawar, McHugh and Gummow JJ held:

84    It should, in our view, be accepted that, whilst malign intention on the part of State agents is not required, it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group. If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here.

85    That selective and discriminatory treatment, if shown on facts found by the Tribunal, would appear to answer Mason CJ’s criterion mentioned in Chan of harm amounting to persecution by denial of a fundamental right otherwise enjoyed by Pakistani nationals, namely access to law enforcement authorities to secure a measure of protection against violence to the person.

86    Whilst the Tribunal appears to have treated the violence of non-State actors of “which Ms Khawar complained as sufficiently severe to amount to “persecution”, that classification is not determinative for several reasons. First, in any event, there would be the further requirement of a Convention reason; victims of domestic violence would meet the Convention definition only by showing more than the harm of which they complain.

87    Secondly, and this is crucial for the basis propounded above, the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Thus, the harm is related to, but not constituted by, the violence…

70    Further, Kirby J held:

101    …[T]he Tribunal committed an error of law in failing to make findings of fact on the respondent's allegation that she was unable to secure protection of the law and its agencies in Pakistan against the serious harm perpetrated against her and that she was a member of a “particular social group” of at least one of the kinds propounded before the Tribunal.

71    In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, the plurality said at [18]:

It was pointed out in Minister for Immigration and Multicultural Affairs v Khawar that, although the paradigm case of persecution contemplated by the Convention is persecution by the State or agents of the State, it is accepted in Australia, and in a number of other jurisdictions, that the serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the State. But not all serious harm inflicted upon a person by his or her fellow-citizens amounts to persecution, even if it is inflicted for one of the reasons stated in the Convention. The word used by Art 1A(2) is “persecuted”, not “harmed”, or “seriously harmed”. Furthermore, it is used in a context which throws light on its meaning.

(Citations omitted.)

72    The cases cited were decided under a form of s 36(2) of the Act which stated that the grant of a protection visa required satisfaction of the definition of “refugee” in Art 1A of the Refugees Convention. They were decided prior to the amendment of the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which substituted a statutory definition of “refugee” in s 5H, with various components of that definition being further defined in ss 5J–5LA. Nevertheless, these provisions are based substantially upon the definition of “refugee” in the Refugees Convention, and I consider that these cases are applicable to the construction of s 5J of the Act.

73    Accordingly, a random act of criminal violence is not “persecution” for the purposes of s 5J(1) of the Act. However, where random acts of criminal violence committed against people for reasons of race, religion, nationality, political opinion or membership of a particular social group are tolerated or condoned by State authorities, resulting in a systematic failure to apply the law to the perpetrators, there may be “persecution” within s 5J(1). Where such a claim is made, the question of whether there are “effective protection measures” available in the receiving country is not confined to s 5J(2) of the Act.

74    Under the heading “Well-founded fear of persecution”, the Authority’s reasons addressed the mother’s claims of sexual assault at para 28 as follows:

The first applicant claims she was sexually assaulted in 2012. This claim was first made in her statement of claims, and during the SHEV interview she said she did not raise this claim during the Entry interview because in her culture it is a shame to reveal such things in front of men, and that she did not get medical attention because if she revealed what happened to her she would be outcast from society. I accept the first applicant’s reasons for not disclosing the assault during the Entry interview, and place no significance on her failure to make this claim earlier. The statement of claims refers to night-time visits from the SLA or CID asking questions about her husband, on at least five occasions, and on one of these occasions when three men came to the house in plain clothes and she was raped whilst her young son slept in the next room. Having not accepted the first applicant was questioned at this time about her husband, I do not accept this incident, or any harassment the first applicant experienced was related to such questioning. In 2017 DFAT reported ongoing claims of sexual assaults and rape attributed to the military in the North and East, and noting that the men were not dressed in uniforms, I am prepared to accept the first applicant was sexually assaulted in the manner claimed, and that the men may have been security officers, and I am also prepared to accept the first applicant was scared for her safety as a result of the incident. I consider the incident was an abhorrent opportunistic criminal act, perhaps motivated by the fact that the first applicant had no adult male figure in her household at the time, and not an act sanctioned by Sri Lankan authorities.

(Emphasis added.)

75    The Authority noted at para 41 that the mother, “claims to fear harm on return to Sri Lanka as a Tamil woman without male protection who has a dependent daughter, and because of her family’s unwillingness to provide her with male protection, and that she would be at high risk of being subjected to sexual violence”.

76    The Authority observed at para 42 of its reasons:

Country information from DFAT, the US Department of State, and the UK Home Office indicate that women Sri Lanka face societal discrimination and that violence against women does occur throughout Sri Lanka. The 2017 report of the UN Secretary-General on Conflict Related Sexual Violence reported gender-based crimes in all nine provinces of Sri Lanka, including domestic violence. International and local observers attribute the higher prevalence of sexual violence and domestic abuse in the north and east compared to other parts of Sri Lanka to the conflict and militarisation in these regions. In 2017, the UN Special Rapporteur on minority issues reported a decrease in the incidence of sexual assault by the military as it drew down in the north and east, but Tamil women continue to fear sexual assault in locations where the military presence remains. The majority of women experiencing harassment and sexual violence were reported to be former LTTE members or women from female-headed households, which includes mainly war widows, but also those never married, disabled and elderly women, and family members of the missing or disappeared. A 2016 survey estimated there to be 1.4 million female-headed households in Sri Lanka (representing 25.8 per cent of the population), mostly in the north and east of Sri Lanka. The DFAT and UK Home Office reports indicate that the situation is particularly tenuous for female-headed households in Sri Lanka. These women face increased risks of sexual and gender-based harm, a lack of physical security for their family, lack of permanent housing and economic opportunities, and difficulties accessing health services.

77    A matter of note is that the Authority’s summary of the country information made no reference to RAILS’ submission that country information from 2016 and 2017, “demonstrates that impunity persists for crimes of violence against women, including acts of rape by military personnel”.

78    At para 43 of its reasons, the Authority found that there was nothing to indicate that the appellants would be unable to find accommodation and live with the mother’s son, who is an adult male, on their return to Sri Lanka. The Authority did not accept that the appellants would be without male protection, or that they would be part of a female-headed household, or be at risk of harm for that reason.

79    The Authority went on to conclude at para 44 of its reasons that:

On my findings, the first applicant would return to Sri Lanka as part of a family with a male head of household, and I consider the chance of her being subjected to an opportunistic assault is remote. The post-SHEV submission suggests the first applicant is at risk of harm as a result of being previously sexually assaulted by Sri Lankan authorities, however there is nothing in the information before me to support that the first applicant is at greater risk as a result of a prior assault some six or seven years ago, and I do not accept that there is. I do not accept the first applicant has a profile such that she is at risk of being detained on her return. She and her daughter are likely to return to the Northern Province of Sri Lanka, where military presence has reduced. The Siresena Government has expressed a commitment to taking action to prevent the abuse of women and, while under-resourced, there are women and child bureaus at police stations across Sri Lanka. While the country information indicates there is a risk of violence to some women, the weight of evidence in the reports before me does not indicate that gender-based and sexual violence continues to occur at a level, or with a frequency, such that I consider the applicants would face a real chance of harm on return to their home area in Sri Lanka, now or in the reasonably foreseeable future, taking into account their Tamil ethnicity, their prior residence in an LTTE-controlled area, and the first applicant’s prior interactions with Sri Lankan authorities, and even when considered against the background of her physical and mental health conditions.

(Emphasis added.)

80    The finding that the appellants would not “face a real chance of harm on return to their home area in Sri Lanka” reflected the Authority’s lack of satisfaction of the requirements of s 5J(1)(b) of the Act. The Authority did not find it necessary to go on to consider whether, within s 5J(2), effective protection measures would be available to the appellants in Sri Lanka.

81    It must be considered whether, for the purposes of s 5J(1) of the Act, the Tribunal failed to deal with the mother’s claim that she was at risk of persecution by reason of the Sri Lankan authorities’ systematic tolerance of sexual assaults perpetrated by security forces.

82    The Authority accepted at para 28 of its reasons that the mother had been sexually assaulted by three members of the security forces. The Authority also found that the rape was not “sanctioned by the Sri Lankan authorities” and that it was an “opportunistic criminal act”. However, those findings do not address or answer the question of whether sexual assaults by security forces are tolerated by the Sri Lankan government. To find that an action is not “sanctioned” by Sri Lankan authorities is not to find that it is not tolerated by those authorities; and to find that an action is an opportunistic criminal act is not to find that the act is not tolerated by the authorities.

83    The Authority referred at para 42 to country information, but not to the appellants’ submission that the literature demonstrated that impunity persisted for crimes of violence against women, including acts of rape by military personnel. The Authority made no finding upon whether the country information supported that submission.

84    The Authority at para 44 found that as the mother would live with a male head of household, “the chance of her being subjected to an opportunistic assault is remote” and referred to the Siresena Government’s expressed “commitment to taking action to prevent the abuse of women”. The Authority also stated that it did not consider that, “gender-based and sexual violence continues to occur at a level, or with a frequency, such that…the applicants would face a real chance of harm”. However, these findings did not refer to, and were not made in light of, the appellants’ claim of tolerance of sexual assault by security forces against Tamil women by Sri Lankan authorities and their systematic failure to apply the law to the perpetrators.

85    In its reasons, the Authority accepted the appellants’ claim that the mother had been raped by members of the Sri Lankan security forces, but rejected the argument that those members of the security forces could be described as “Sri Lankan authorities”. This was apparently on the basis that the members of the security forces were acting in some private and unauthorised capacity, such that they were to be regarded as non-State actors. However, the Authority made no reference to the argument that the mother, as a Tamil woman, had a well-founded fear of criminal acts of rape by security forces, due to toleration and discriminatory inactivity by higher Sri Lankan authorities. I find that this argument was not considered by the Authority.

86    The failure here bears some resemblance to the erroneous approach taken by the judges at first instance in PS (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1213. Lord Justice Sedley (with whom Hughes LJ and Hedley J agreed) described the facts of that case at [1]:

The Appellant is a 26-year old Tamil woman whose family home is in the Jaffna Peninsula, where the insurgent LTTE has long been active. In November 2006 she was raped in her home, which was also her father’s grocery shop, by two Sri Lankan soldiers who used to make purchases there. Five days later one of them returned with another soldier, and both of them raped her. A week or so later the same two returned and again raped her, on this occasion holding her father at gunpoint so that he would witness it.

87    In PS, the first instance judges had rejected the appellant’s claim to have a well-founded fear of persecution on a basis similar to the reasoning of the Authority in these proceedings—that the perpetrators were “rogue” soldiers and their actions were “not sanctioned by the Sri Lankan authorities”. The relevant passage from the reasons at first instance is extracted in the judgment of Sedley LJ at [7]:

… the fact that the Appellant was raped by three rogue soldiers means that this is not relevant to an assessment of the likelihood of the Appellant being at risk of persecution at the hands of the Sri Lankan authorities. Again, her past experience of being raped by three rogue soldiers has as much relevance to that question as it would have had if she had been raped by three criminal civilians - that is to say, it has no relevance…

There are good reasons to consider this – that is, that the Appellant was raped in the past by rogue officers and that their actions were not sanctioned by the Sri Lankan authorities.

88    The error in that reasoning was described by Sedley LJ at [8]:

The Appellant’s experience and continuing fear … was of repeated sexual abuse by state military personnel in Jaffna. Her case is that, with perpetrators in the uniform of the state, there was no sensible possibility of state protection from conduct bearing clear hallmarks of toleration and impunity, and that is why she fled. To this I can see no answer on the evidence. The second immigration judge’s characterisation of the soldiers’ conduct as no different from that of civilian rapists is, with respect, unsustainable. The whole point was that, unlike ordinary criminals, the soldiers were in a position to commit and repeat their crime with no apparent prospect of detection or punishment.

89    The Minister argues that if the issue of toleration of sexual assault by the Sri Lankan authorities had been addressed, it could have made no difference to the outcome of the case. The Minister argues that the Authority found that the appellants would live in a male-headed household upon their return to Sri Lanka, so that they would not be at risk of sexual assault by security forces. However, this finding is not a complete answer to the appellants’ argument. RAILS’ submission to the delegate claimed that the mother would be vulnerable to sexual assault by security forces because such assaults are tolerated by the Sri Lankan authorities. The submissions also claimed that the risk of violence against the mother was “further increased” and “heighten[ed]” by factors including that she would be living in a female-headed household. In my opinion, the Authority’s findings that the appellants would live in a male-headed household and have male protection answer the submission that the mother’s vulnerability was “further increased” or “heighten[ed]”, but do not answer the claim that the mother would nevertheless be at risk of sexual assault by reason of the impunity of the security forces. Neither does the Authority’s finding that the Siresena Government had expressed a “commitment to taking action to prevent the abuse of women” answer the claim in the absence of consideration of the argument of toleration of sexual abuse of Tamil women by security forces and whether that commitment extended to the ending of such abuse. Further, the Authority’s finding that it did not consider that, “gender-based and sexual violence continues to occur at a level, or with a frequency, such that…the applicant would face a real chance of harm”, does not take into account any risk posed to Tamil women as a result of toleration of sexual violence perpetrated by security forces.

90    The Authority erred by failing to consider the argument clearly advanced by the appellants that sexual assaults upon Tamil women are tolerated by the Sri Lankan authorities and that security forces are able to carry out such assaults with impunity. If that were established, the Authority ought then to have considered whether, on that basis, there was a real chance that the mother would be sexually assaulted if she were returned to Sri Lanka. If the Tribunal had considered the argument, there would have been a realistic possibility that it would have decided that the mother had a well-founded fear of persecution within s 5J(1) of the Act.

91    In my opinion, the Authority made an error, which was a jurisdictional error. The primary judge erred by finding to the contrary.

92    I will mention one other matter. At para 28 of its reasons, the Authority seemed to distinguish between a criminal act done by security forces in an official capacity and a criminal act done by them in a private capacity. The Authority did not explain why, in the circumstances of the case, the rape of the mother by members of the security forces was not an act perpetrated by State actors. That the Authority found that the men were out of uniform and the rape was an opportunistic criminal act, does not necessarily mean that the rape was not “sanctioned by Sri Lankan authorities”. Further, to say that the act was not “sanctioned by Sri Lankan authorities”, presumably referring to authorities at some higher military or governmental level, does not necessarily answer the question of whether the rape was perpetrated by Sri Lankan authorities, or State actors, at a lower level, namely at the level of the security forces. However, this was not a ground argued by the appellants. I mention it because the Authority, when reconsidering the application in the future, may (or may not) consider this to be a relevant issue.

93    The appellants have established Ground 3.

Conclusion

94    The appellants have established that the primary judge erred in finding that the Authority’s decision was not affected by jurisdictional error. The appeal will be allowed. The orders of the Federal Circuit Court will be set aside.

95    I will order that a writ of certiorari issue quashing the decision of the Authority and that a writ of mandamus issue requiring the Authority to decide the referral according to law.

96    I will order that the Minister pay the costs of the appeal and the proceeding before the Federal Circuit Court.

Associate:    

Dated:    18 November 2020