FEDERAL COURT OF AUSTRALIA EIC18 v Minister for Home Affairs [2020] FCA 370 Appeal from: EIC18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1244 File number: NSD 1230 of 2019 Judge: DAVIES J Date of judgment: 19 March 2020 Catchwords: MIGRATION – application for an extension of time to appeal decision of Federal Circuit Court to dismiss applicants' application for judicial review of Immigration Assessment Authority decision affirming delegate's decision to refuse applicants' application for safe haven enterprise visas – delay in filing notice of appeal not significant and explanation provided– where third applicant claimed to fear harm including sexual harassment and assault on return to Sri Lanka as a Tamil Kuravar woman – whether Authority erred by failing meaningfully to consider third applicant's ethnicity and caste as integers of her claim – extension of time granted – appeal allowed Legislation: Migration Act 1958 (Cth) Cases cited: ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Omar [2019] FCAFC 188 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10 Date of hearing: 19 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicants: Mr V. A. Kline Counsel for the First Respondent: Ms K. Morris Solicitor for the First Respondent: Clayton Utz ORDERS NSD 1230 of 2019 BETWEEN: EIC18 First Applicant EID18 Second Applicant EIE18 (and others named in the Schedule) Third Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: DAVIES J DATE OF ORDER: 19 March 2020 THE COURT ORDERS THAT: 1. The application for an extension of time within which to bring an appeal is allowed. 2. The applicants have leave to rely on the proposed amended notice of appeal filed on 26 February 2020. 3. The appeal be allowed. 4. The orders of the Federal Circuit Court dated 17 June 2019 be set aside and in lieu thereof: (a) the decision of the second respondent dated 7 August 2018 be quashed; and (b) the matter be remitted to the second respondent for determination according to law. 5. The first respondent pay the applicants' costs, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: 1 The applicants have applied for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia (FCC) dismissing their application for judicial review of a decision of the Immigration Assessment Authority (Authority), which affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicants' combined application for Safe Haven Enterprise Visas. As the application was filed shortly after the time for appeal had passed and was supported by an affidavit in which the failure to file the appeal within time was satisfactorily explained, the substantive issue on the question of whether an extension of time should be granted concerns the merits of the proposed appeal. By consent, the application was listed on the basis that full argument would be heard on the merits of the proposed appeal and, if an extension of time be granted, the appeal be treated as having been heard concurrently with the application for an extension of time. 2 The applicants are citizens of Sri Lanka from the North Western Province and members of the one family. The proposed appeal concerns the claim of the third applicant (who is referred to as the second applicant in the Authority's reasons), the wife of the first applicant, that, being a Tamil woman of the Kuravar social caste, she faces a real chance of sexual abuse and harassment by the authorities, members of the community and her extended family if returned to Sri Lanka. She claimed that as a Tamil Kuravar woman, she always lived in fear of sexual assault by men in the community and had been sexually assaulted several times by male members of the Sri Lankan Army (SLA) at army check points. The Authority accepted that the third applicant had experienced discrimination and harassment as a Tamil Kuravar woman both by men in the community and by members of the SLA when passing through army checkpoints across Sri Lanka. The Authority noted that the third applicant's claims about her treatment by the army were consistent with country information about the impunity with which the military committed sexual assaults against women during the conflict and the harassment that women faced. However, the Authority was not satisfied that the third applicant faced a real chance of serious harm or would suffer significant harm if returned to Sri Lanka. The Authority relevantly reasoned at [61]–[64], [68], [82] as follows: 61. Country information supports the applicants' claims that the authorities acted with impunity during the conflict in terms of both sexual harassment and violence against women, but the UN Special Rapporteur on minority issues found in 2017 that conditions for women are much improved since the war. She noted that women in the north and east continue to suffer from the scars of the conflict, as well as the insecurity that resulted from the subsequent militarization, however, the applicants were from the north west. In the last stages of the war and its aftermath, human rights abuses against the civilian population by both sides to the conflict were rife, including sexual and gender-based violence. DFAT reports in 2018 that the government no longer restricts travel to the north and east. It removed military checkpoints on major roads in 2015. Military involvement in civilian life has diminished, although military involvement in some civilian activities continues in the north. Given that it is nearly ten years since the end of the conflict, the incidence of sexual assaults by military personnel is said to have decreased with the downsizing of the army and the applicants have not described any intention of moving [sic] the north or east of Sri Lanka having spent most or all of their lives in the north west, I am satisfied that the likelihood of them being subject to sexual violence by the Sri Lankan authorities, including the SLA is remote. 62. Article 12(2) of Sri Lanka's Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol. However, DFAT reports that women still face a moderate risk of societal discrimination. There are also reports that men [sic] and girls belonging to minority communities often face unique challenges and multiple or intersecting forms of discrimination emanating from their gender and their status as persons belonging to minorities. This is particularly acute in Sri Lanka, where women's participation in decision-making is strikingly low and gender-based violence is prevalent. In this context it is possible that the female applicants may face real [sic] chance of harm in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender 63. The UN Secretary-General on Conflict Related Sexual Violence reported gender-based crimes in all nine provinces of Sri Lanka and this includes domestic violence. International and local observers attribute the higher prevalence of sexual violence and domestic abuse in the north and east due to the conflict and militarisation in these regions but note that this has decreased. The majority of women experiencing harassment and sexual violence were reported to be former LTTE members or women from female headed households. Female headed households include mainly war widows but also the never married, disabled women, elderly women and family members and activist [sic] of the disappeared. 64. I am satisfied that the second applicant and her children would be returning to Sri Lanka with the first applicant as part of a family unit with a male head of household. They have not expressed a desire to settle in the north of east [sic] of Sri Lanka having family in the north west and they have not reported any threat of domestic violence in their immediate family. As such I am not satisfied that the chance of the applicants being subject to an opportunistic assault by a member of the community is anything more than remote. In addition to this, the evidence before me does not indicate that the Sri Lankan military or other authorities are currently actively perpetrating violence against women on behalf of the state. … 68. Overall, in the context of country information and the applicants' previous experience living in Sri Lanka, I accept that the second, third and fourth applicants may face a degree of societal discrimination and harassment as Tamil women of the Kuravar caste. However, I am not satisfied that such treatment amounts to serious harm. Furthermore, I find the risk of them being subject to serious harm including violence from the authorities, the community or family members to be remote. I am not satisfied that the second applicant or her daughters have a well-founded fear of persecution on the basis of being Tamil Kuravar females on their return to Sri Lanka. … 82. I have also accepted that as Tamil women of the Kuravar caste the second, third and fourth applicants may be subject to discrimination and harassment. However, likewise I am not satisfied that the treatment they may face as Tamil Kuravar women who are returning asylum seekers amounts to significant harm as defined. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am also not satisfied that it amounts to pain or suffering that is cruel or inhuman in nature, severe pain or suffering, or extreme humiliation for the purposes of the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment. (footnotes omitted) 3 Before the FCC, the applicants relied on a ground of review substantially in the same terms as the remaining ground in the proposed notice of appeal. The ground was as follows: The [Authority] asked itself the wrong question or addressed the wrong issue, and failed to take into account relevant considerations, when deciding what constituted serious harm within the meaning of s.5J(4)(b) of the Migration Act 1958 (Cth) (the Act), and significant harm within the meaning of ss.36(2)(aa) and 36(2A) of the Act, in relation to the First and [Third] Applicants, and thus fell into jurisdictional error. Particulars in relation to Ground 2 (i) The [Authority] accepted that the First and [Third] Applicants experienced bullying and discrimination including having rocks thrown at their house. (ii) The [Authority] accepted that the [Third] Applicant, when passing through army checkpoints, would be sexually harassed and touched with impunity, by members of the SLA, as well as by men in the community. (iii) The [Authority] accepted that when the Applicants approached an army checkpoint the First Applicant would often be [waved] through whilst his wife, the [Third] Applicant was taken into a room to be sexually assaulted, thus leaving the First Applicant powerless to help her. (iv) The [Authority] failed to make any finding as to the psychological impact on the First Applicant, and whether this amounted to serious or significant harm, it being a matter arising clearly on the materials before it. (v) Despite all of the above, the [Authority] failed to find that the First and [Third] Applicants had been subjected to serious or significant harm. 4 The FCC dismissed that ground, holding that the acceptance of the applicants' claims of past harm did not determine the outcome in the case and it was open to the Authority to conclude that the female applicants would not face a real chance of harm at the hands of the Sri Lankan state, based upon country information: EIC18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1244 at [72]. The FCC also held that the Authority did consider the risk posed by sexual harassment as degrading treatment and the assessment that the risk posed did not reach the level of a real risk of significant harm was within the range of available conclusions on the material before the Authority: at [74]. 5 The proposed ground of appeal is as follows: The Primary Judge erred in law in failing to find that the [Authority] asked itself the wrong question or addressed the wrong issue, and failed to take into account relevant considerations, when deciding what constituted serious harm within the meaning of s 5J(4)(b) of the Migration Act 1958 (Cth) (the Act), and significant harm within the meaning of ss 36(2)(aa) and 36(2A) of the Act, in relation to the First and Third Appellants, and thus fell into jurisdictional error. Particulars in relation to Ground 2 (i) The [Authority] accepted that the First and Third Appellants experienced bullying and discrimination including having rocks thrown at their house. (ii) The [Authority] accepted that the Third Appellant, when passing through army checkpoints, would be sexually harassed and touched with impunity, by members of the SLA. (iii) The [Authority] accepted that when the Appellants approached an army checkpoint the First Appellant would often be waived [sic] through whilst his wife, the Third Appellant was taken into a room to be sexually assaulted, thus leaving the First Appellant powerless to help her. (iv) The [Authority] accepted that the Third Appellant was sexually harassed, with impunity, by men in the community from time to time, that this was based on her caste, and that such caste discrimination had existed for thousands of years in Sri Lanka. (v) Despite all of the above, the [Authority] failed to find that the Third Appellant had been subjected to serious or significant harm. (vi) The [Authority] failed to make any finding as to the psychological impact on the First Appellant of the sexual assaults on his wife the Third Appellant, which he was powerless to stop, and whether this amounted to serious or significant harm, it being a matter arising clearly on the materials before it. (vii) The [Authority] failed to address an integer of the Third Appellant's claim, namely that her real chance of serious harm arose not only as a woman, but as a woman of the Kuravar caste. 6 It was argued for the applicants that: (a) the Authority overlooked that the third applicant's real chance of persecution did not arise from her being a woman simpliciter, but from her being a Kuravar woman, and that sexual assaults perpetrated against her in the community were not on the basis of what happened during the conflict, but on the basis of her being a Kuravar woman, a situation which the Authority acknowledged had been a problem for such women for a long time; (b) the Authority overlooked that the third applicant was not claiming a well-founded fear on the basis of the conflict in the north and east, where women continue to experience "the scars of the conflict", but on the basis of being a Kuravar woman suffering sexual assault and harassment in the community in general and at army checkpoints when she was required to travel away from her home to the north, the east or Colombo; (c) a decrease in the incidence of sexual assaults is different from an elimination of sexual assaults, and did not preclude a real chance of sexual assault; (d) whatever might have happened to the majority of women, the third applicant's fears arose not from being the head of a household or from being a Liberation Tigers of Tamil Eelam (LTTE) member, but from being a Kuravar woman – the Authority thus focussed on an irrelevant and distracting fact; and (e) the Authority did not consider the psychological impact on the first applicant of being told at army checkpoints to go through whilst his wife was taken inside to be sexually assaulted, and the psychological impact upon him of the sexual harassment carried out on his wife by members of Sri Lankan civil community. 7 It was further argued that whilst the Authority said that "it is possible that the female applicants may face a real chance of harm in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender", and despite the Authority's finding about the sexual assault and harassment suffered by the first applicant, the Authority still concluded that the treatment the third applicant would face did not rise to the level of risk of serious harm. It was submitted that the approach was illogical on its face and to arrive at such a conclusion the Authority must have addressed the wrong issues or asked itself the wrong questions. 8 For the Minister it was argued that the submissions amounted to nothing more than an attempt to cavil with the Authority's assessment of the claims and evidence before it and to engage the Court in a constitutionally impermissible review of the merits of the Authority's factual findings. It was argued that: (a) the applicants' contentions, in large part, proceed upon bare disagreement with the country information relied on by the Authority and the conclusions reached by the Authority relying on such information. It was submitted it is well settled that the choice of country information, the use made of it and the weight to be accorded to it is entirely a matter for the merits review decision maker, citing NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]–[13]; (b) the third applicant's claim regarding past sexual harassment included a claim that the "worst type" of harassment she had faced was "at army check points". Given this, it was argued, it plainly was relevant for the Authority to take into account country information recording that there had been improvements since the war/conflict and, in particular, recording that the government had "removed military check points" and "military involvement in civilian life has diminished" (Authority decision at [61]). It was submitted that the Authority's references to "conflict" at [61]—when read in context—showed nothing more than that the Authority was addressing the claims before it; (c) likewise, it was plainly relevant for the Authority to take into account the fact that country information reported that "women in the north and east" were at greater risk, and to take into account that, by contrast, the third applicant was from the "north west" and had not given any indication that she intended to move to the north or east (Authority decision [61]). Furthermore, it was submitted, the Authority did not overlook that a decrease in the rate of sexual violence was different from elimination of such violence; rather, the Authority at [61] found that the likelihood of being subject to sexual violence by the SLA was remote and therefore fell short of the real chance test; (d) the applicants sought irrationally to invert the country information relied on by the Authority at [63]. It was submitted that, contrary to the applicants' assertion, the Authority clearly took into account the fact that the third applicant had not claimed either to be a "former LTTE member" or from a "female headed household", and thus did not fall within the category of women that the country information reported was most at risk of experiencing harassment and sexual violence (cf Authority decision at [64]). It was submitted that the fact that the third applicant was not in such a category plainly was relevant to an assessment of the risk she faced. Furthermore, the Authority had immediately prior (at [62]) considered other country information, including that persons from "minority communities often face unique challenges and multiple or intersecting forms of discrimination emanating from their gender and their status as persons belonging to minorities". It was submitted that the Authority was also clearly aware of the third applicant's claim to face harm as a Kuravar woman and expressly considered that claim at [15], [21]–[23], [25], [57]–[68], [76], [81]-[82] of its reasons. Relevantly, it was submitted, the applicants' legal representatives did not put forward any country information supporting a claim that the third applicant would face a higher risk as a Kuravar woman and, indeed, recognised that the available country information did not "specifically address physical or sexual mistreatment of low caste people". 9 Thus, it was submitted for the Minister, in short, the essential premise on which the applicants' submissions rested was misconceived. It was submitted that when the Authority's decision was read in full, taking into regard the claims in evidence before it, the passages relied on by the applicants showed nothing more than that the Authority considered the available relevant material and assessed whether or not the statutory criteria was satisfied. In the Minister's submission, apart from mere disagreement with (and bare assertions of error in) discrete findings, the applicants otherwise did nothing more than set out the findings that they contended should instead have been made, and nothing in their submissions demonstrated appealable error on the part of the Authority or the primary judge. It was submitted that the Authority's reasons were not lacking an evident and intelligible justification, nor was the decision arbitrary, capricious or clearly unjust. It was submitted that the Court should instead find that the Authority did nothing more than adopt an orthodox approach to performing its statutory task and gave logical and coherent reasons for the conclusions reached, which were reasonably open on the material before it. 10 Finally, with respect to the submission that the Authority failed to consider a claim by the first applicant—namely the psychological impact on him of being told at army check points to go through whilst his wife was taken inside to be sexually assaulted, and the psychological impact upon him of the sexual harassment carried out on his wife by members of the Sri Lankan civil community—it was submitted that, first, given the Authority's finding that the third applicant will not face a real chance of harm if returned, there was no basis for the assertion that the first applicant would face consequential psychological harm. Secondly, as recorded by the Authority at [35], the applicants "made no specific claims regarding their mental health". Thirdly, the applicants had wholly failed to demonstrate how any error of the kind contended would be material, given the Authority's findings that the third applicant would not be subject to serious or significant harm in respect of any sexual harassment (or otherwise) and, moreover, its findings that none of the applicants would face serious or significant harm (by reference to the extensive claims made). 11 A failure by the Authority to deal with some aspect of the claims raised by the applicants can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act 1958 (Cth) and thereby amount to jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at 20 [63]; ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 at [26]. Furthermore, a failure to engage in an active intellectual process with significant and clearly expressed relevant representations can also amount to jurisdictional error: Minister for Home Affairs v Omar [2019] FCAFC 188 at [36(d)]. Giving meaningful consideration to a clearly articulated and substantial or significant representation may require an evaluation of whether the feared harm is likely to eventuate: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at 146–7 [32]–[37]. 12 In this case, the third applicant's claim was that as a Tamil Kuravar woman, she had, in Sri Lanka, experienced discrimination, sexual harassment and sexual assault and, as a Tamil Kuravar woman, she faced a real chance of sexual abuse and sexual harassment from men in the community and the authorities if she returned to Sri Lanka: Authority's reasons at [15]. The Authority accepted that women in Sri Lanka still face "a moderate risk of societal discrimination" (Authority's reasons at [25]) and it was "possible" that the female applicants may face a real chance of harm "in the form of societal discrimination and harassment on the basis of the combination of their ethnicity, caste and gender": Authority's reasons at [62]. The Authority also considered the risk that women in Sri Lanka face of gender-based violence against them. Critically, however, the Authority did not address the particular form of discrimination that the third applicant may face as a Tamil Kuravar woman if she returned to Sri Lanka, nor evaluate whether such discriminatory treatment may amount to serious or significant harm. Nor did the Authority, in evaluating the risk to the third applicant of gender-based violence and sexual abuse and assault, consider that risk in terms of the third applicant as a Tamil Kuravar woman—rather than simply as a woman in Sri Lanka—which was one of the factual bases upon which she had made her claim to fear harm. The Authority was required to consider and address the combination of the third applicant's characteristics as an integral component of her claim to fear harm if she returns to Sri Lanka. It did not do so. There was therefore a constructive failure to carry out its statutory task and a failure to give meaningful consideration to, and to engage in an active intellectual process with, a clearly articulated and substantial or significant representation. This is not a simply case of challenging the factual conclusions, as submitted by the Minister. Further, those failures were material in the sense that it is possible that such considerations and evaluations could have made a difference to the decision made by the Authority: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–5 [30]–[31] per Kiefel CJ, Gageler and Keane JJ; 147–8 [72] per Edelman J. The errors were material and are not answered by the Minister's submission that the applicants' legal representatives did not put forward any country information supporting a claim that the third applicant would face a higher risk as a Kuravar woman. 13 The claim that the Authority fell into error in not considering the psychological impact on the first applicant of the sexual abuse and harassment of his wife is in a different category. I was not taken to such a claim made by the first applicant, nor is it apparent on the material before me that such a claim was specifically raised before the delegate or the Authority. Nor do I consider that such a claim "clearly arose on the material" as contended for the applicants. Accordingly, I reject the contention that the Tribunal fell into error in not considering that claim. 14 Accordingly, the extension of time should be granted and the appeal should be allowed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 19 March 2020 SCHEDULE OF PARTIES NSD 1230 of 2019 Applicants Fourth Applicant: EIF18 Fifth Applicant: EIG18