AKY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 4 AKY18 is a citizen of Sri Lanka who arrived in Australia on 25 April 2013. 5 On 2 January 2017, she applied for a SHEV along with her husband and their five children. 6 AKY18 claimed that she feared that she would suffer harm in the event that she was to return to Sri Lanka on the basis of her own familial links to the Liberation Tigers of Tamil Eelam (LTTE), and because her husband's family had been perceived to have links to that organisation. 7 Her claimed familial links to the LTTE were said to arise from a particular relative, whom she claimed had joined the LTTE in 2002. That relative lived with AKY18's family. In or around 2004 or 2005, he was allegedly arrested by the police. AKY18 claimed that her father had gone to the police station and acted as the surety for his bail. After he was released, the relative moved from the family home. He was later shot and killed in a public place by unknown persons. AKY18 believed that those persons were members of Sri Lankan security forces. 8 AKY18 further claimed that the same relative had been tortured by the authorities and had revealed, under torture, that he had hidden weapons. He had allegedly said that the authorities could ask her where those weapons were hidden, and had given her address in relation to the hidden weapons. This, so it was said, resulted in the authorities visiting her on two or three occasions to ask about the weapons. 9 It was claimed that, on one occasion, the Criminal Investigation Department (CID) had come to her house at night to ask about the hidden weapons, at which time she was at home with only her infant daughter and mother-in-law. She claimed that she was sexually assaulted by one of the CID officers, who asked her where the weapons were hidden. After this incident, she went to stay with her mother. 10 AKY18 moved to Kuwait in 2006 to join her husband, who was living there. She returned to Sri Lanka in 2008 for a period with her children, at which time she was asked by people where she had been. She subsequently rejoined her husband in Kuwait, but again returned to Sri Lanka in 2010. 11 It was claimed that, in around 2013, the family decided to live together. They initially planned to travel to India, and AKY18 obtained passports for her and her children for this purpose. Her husband returned to Sri Lanka but, while the family was waiting at a bus stop, he was approached and detained by police. Shortly after his release, the family travelled to India. It was claimed that they travelled from there to Australia by boat. 12 On 2 June 2017, a delegate of the Minister refused to grant a SHEV to AKY18.

The decision of the Authority 13 The Minister's decision was referred to the Authority for review, in accordance with the Migration Act 1958 (Cth) (Migration Act). 14 The Authority's decision and reasons were published on 10 January 2018. 15 At the outset of its reasons, the Authority expressly listed the information that had been before it. This included, amongst other things, a submission made on behalf of AKY18 and certain country information reports. 16 It was noted that the submission had "trust[ed]" that the Authority would call AKY18 for an interview if required. However, the Authority declined to conduct such an interview, citing the fact that it generally did not hold such interviews and the fact that it could only consider new information in exceptional circumstances. That position was consistent with its duties under Part 7AA of the Migration Act. 17 After setting out the factual background to AKY18's case in some detail, it turned to the specific allegations on which the claim for protection was based. 18 It was accepted by the Authority that AKY18 had a close relative who joined the LTTE in 2002, and who was arrested in 2004 and later killed. 19 However, the Authority did not accept that she was of interest to the CID due to her relative's alleged confession regarding hidden weapons. It concluded that it was implausible that, if the relative had confessed to the CID that he had hidden weapons, he would then have been released before the weapons were seized or attempts were made to locate them. It was further noted that, although AKY18 left Sri Lanka in 2006, shortly after the claimed visits from the authorities, and did not return until 2008, there was no indication that any further enquiries were made of her family members about the weapons in her absence - including her father, who stood as surety for the relative when he was released. There was also no evidence that the CID made any search of her home, despite the relative's alleged confession that the weapons were hidden there. The Authority concluded on this issue as follows: 13. … Noting the implausibilities in her account I do not accept that the CID had an interest in the applicant because of suspicions about hidden weapons. I note that after her return to Sri Lanka in 2010 there have been no further enquiries about these weapons and I am not satisfied that there is a real chance she will be of adverse interest to the authorities should she return to Sri Lanka because of any hidden weapons or the LTTE connections of her relative. 20 It did, however, accept as plausible the claim that the CID had visited AKY18's family home as part of the general security exercises that were occurring at the relevant time, and it accepted that she had been assaulted at her home by a CID officer in 2005. 21 The Authority noted that AKY18 was questioned upon her return to Sri Lanka from Kuwait in 2008, but found that this questioning raised no concern that the authorities might have an adverse interest in her. She was able to re-enter the country at the airport in Colombo without any apparent problem, notwithstanding the fact that this was a time of heightened conflict in the civil war, when the Tamil population was subject to strict monitoring. Whilst she was asked about where she had been and what she had been doing, she was not accused of any LTTE-related activity, or questioned about any weapons or her relative. The more basic questioning to which she was subject was routinely faced by Tamils living in the east of the country at that time, and did not indicate that she was of adverse interest to the authorities. In addition, the Authority noted that she was able to return to live openly with her children in Trincomalee. 22 The Authority was not satisfied that AKY18 had a well-founded fear of harm or mistreatment at the hands of the Sri Lankan authorities. Whilst there had been difficulties for the Tamil population during the war, which would have justified such concerns, there had been a "significant change" in the country since the war's conclusion and the defeat of the repressive Rajapaksa government in 2015. The Authority was not satisfied that there was a real chance that she would experience harm upon her return to Sri Lanka as a Tamil, or as a woman. 23 The Authority then proceeded to consider the country information before it, which reported an "improvement" in the security situation in Sri Lanka and recognised that monitoring and harassment of Tamils had decreased under the new government. It was noted that there had been reports of Sri Lankans, including Tamils, being abducted and of ongoing human rights violations, including the use of torture against suspects. The Authority expressly acknowledged that it had noted country information reporting on human rights abuses, but it recognised that, overall, the reports of harm related to people with LTTE connections or people who were otherwise Tamil separatist activists. In relation to this point, it found that: 19. … The applicant does not have a real or imputed LTTE profile and I have not accepted that she was of adverse interest to the authorities because of weapons or her links to her LTTE member relative or her husband's family. 24 Reference was also made to country information regarding the incidence of sexual assault against women by military personnel, and country information that indicated that women in female headed households were vulnerable to abuse and sexual assault. However, whilst the Authority accepted that violence against women and sexual assault was present in Sri Lanka, it was not satisfied that the chance that AKY18 would be harmed in this manner was more than remote. In support of this conclusion, it added that the assault against AKY18 in 2005 had occurred in the context of the CID visiting her family home during the civil war and after the recent death of her relative, who was an LTTE member. The circumstances that led to the visit by the CID in 2005 were no longer present, and the authorities did not have any ongoing interest in her. 25 Further country information considered by the Authority indicated that female headed households in Sri Lanka may be vulnerable to harassment and abuse. However, it was noted that AKY18 had lived in Sri Lanka without her husband in the past, during the time that he had worked abroad, and that her father and two brothers continued to reside in Sri Lanka, such that she would have access to their support and protection. It found that the improved security situation and the absence of those factors that had existed in 2005 reduced the chance that she would come to harm in future in Sri Lanka as a woman, or as a Tamil woman. The Authority added: 21. … On the information before me I am not satisfied that there is a real chance that the applicant would be harmed or assaulted by the CID, greasemen, or others, on return to Sri Lanka. 26 Ultimately, the Authority was not satisfied that AKX18 met the criteria for a protection visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act. She did not meet the requirements necessary to fall within the s 5H(1) definition of "refugee", nor were there substantial grounds for believing that there was a real risk that she would suffer "significant harm", as defined in s 36(2A). It affirmed the delegate's decision to refuse to grant a SHEV to AKY18.

The decision of the Federal Circuit Court 27 Before the Federal Circuit Court, AKY18 advanced two grounds of appeal, which were identified as items nine and ten in an amended application filed on 24 January 2020. 28 By the first ground of appeal, which was described as "ground nine", it was contended that the Authority had erred in finding that there had been "significant" changes in the circumstances in Sri Lanka since the end of the civil war and the change in government in 2015, such that it could not be satisfied that AKY18 would experience harm upon return to the country as a Tamil or as a woman. It was also contended, in a similar way, that the Authority had erred in finding that the security situation in Sri Lanka had improved. AKY18 submitted that the Authority had cited a number of matters, drawn from the country information before it, that actually indicated that there had been little change or improvement in the security situation in Sri Lanka, and that the country still faced many of the same dangers as existed before the change in government. It was said to follow that the Authority "committed jurisdictional error in misunderstanding the evidence and making a finding which was unreasonable". 29 The primary judge found that this ground of appeal merely recited information that was before the Authority and complained that the Authority's findings were incorrect because certain material before it, to which AKY18 drew attention, was to a contrary effect. His Honour held that the impugned findings were "open" on the country information before the Authority and were not the product of any misunderstanding of the evidence. The fact that a different decision-maker may have come to another conclusion, or that the decision was considered harsh, did not afford sufficient reason to find legal unreasonableness. 30 By the second ground of appeal, which was described as "ground ten", it was contended that the Authority had failed to address AKY18's claim that she was fearful for her general safety in Sri Lanka from "greasemen", who attacked women at night. AKY18 submitted that this amounted to a constructive failure to exercise jurisdiction. 31 The primary judge stated as follows at paragraphs [31] and [32] of his judgment: 31. … The Authority noted the applicant cited an incident in 2013, which she was collecting her daughter from school and there was a disturbance, people were shouting and her daughter was scared, as evidence in support of this claim. 32. No other material was put to the Authority to support the claim in relation to greasemen. 32 His Honour went on to observe, in the remainder of paragraph [32], that the Authority had no obligation to investigate this allegation further: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 16 - 17 [19]. He also acknowledged that the onus of proof was on AKY18: Abebe v Commonwealth (1999) 197 CLR 510, 576 [187]. 33 Unfortunately, the conclusion thereafter drawn by the primary judge on this ground was expressed in somewhat infelicitous terms. Immediately following the reasons summarised above, his Honour stated at paragraph [33] that: Based on a review of all the material that was available to the Authority, the Court is satisfied that the finding was reasonably open to it and was within the realm of legitimate decisional freedom. The decision is not legally unreasonable. Ground nine reveals no jurisdictional error. 34 With respect, this conclusion does not seem properly to meet the second ground of appeal, "ground ten". It refers to the concept of legal unreasonableness and to "ground nine" - that is, the first ground of appeal, addressed above. It does not determine in especially clear terms the question actually posed by the second ground of appeal: namely, whether or not there was a constructive failure to exercise jurisdiction on account of the Authority's alleged omission to deal with AKY18's claim that she feared for her safety in Sri Lanka due to the presence of greasemen. 35 Nevertheless, the reasons given by the primary judge in paragraphs [31] and [32] of his judgment, in conjunction with his ultimate order that the application be dismissed, make sufficiently clear both the decision that was reached in respect of the second ground of appeal and the basis upon which it was reached. The primary judge made express mention of the fact that the Authority did have some regard to AKY18's claim in relation to the threat posed by the greasemen. His Honour pointed out that the claim was supported only by AKY18's account of a single incident, and noted that the Authority was not required to investigate the claim further. The apparent implication of these points, when taken in combination, is that the primary judge was of the view that the Authority had considered the claim in relation to the greasemen to an extent that was commensurate with the material put on by AKY18 in support of the claim, and that this meant that there had not been any constructive failure to exercise jurisdiction. In other words, because the claim was framed by AKY18 only briefly and in limited detail, and the Authority was under no obligation to conduct further inquiries of its own, there was no error in the Authority's decision to express its conclusion on the point only concisely, without detailed reasons. The conclusion drawn in respect of the threat posed by greasemen was "reasonably open" to the Authority, and was "within the realm of legitimate decisional freedom".

The appeal to this Court 36 The notice of appeal to this Court was lodged in mid-2020. It stated that AKY18 appealed from the whole of the judgment of the Court below, and that she relied on "the grounds and particulars being already stated in [her] FCC Application". The grounds of appeal were identified as being that: The Federal Circuit Court failed to find that the [Authority] declined its jurisdiction to me. The Federal Circuit Court erred when it found the Authorities' [sic] decision is not affected by jurisdictional error. 37 AKY18's written submissions in support of these grounds were not filed in accordance with the directions of the Court. Instead, they were filed belatedly, approximately ten days before the hearing, such that the Minister was not afforded sufficient time to prepare a written response. 38 Mr Johnson, as Counsel for the Minister, nevertheless indicated that he was able to deal with the submissions orally on the basis that they were much the same as those advanced before the Federal Circuit Court. It was apparent on the face of the written submissions ultimately filed on behalf of AKY18 that this was indeed the case: the submissions substantially repeated the two grounds relied upon in the Court below. Those grounds may now be addressed in turn.

Ground 1 - the "significant" changes and the improvement in the security situation in Sri Lanka 39 The first ground of appeal was that the Authority had erred when it found that there had been "significant" changes in the country circumstances in Sri Lanka since the end of the civil war and the change in government in 2015, such that it could not be satisfied that AKY18 would experience harm on return to Sri Lanka as a Tamil or as a woman. It was also contended, as part of the same ground of appeal, that the Authority had erred when it found that the security situation in Sri Lanka had improved. The primary judge was said to have erred in finding that the Authority had considered the country information available to it, and in upholding the Authority's conclusion that there was not a risk of serious harm to AKY18, should she be returned to Sri Lanka. 40 AKY18 submitted that, whilst the Authority had referred to certain facts in the country information that indicated that there had been "significant" changes in Sri Lanka and that the security situation in the country had improved, it had also referred to other facts in the country information that weighed against any such conclusion. It was essentially contended that, in light of those latter negative facts, the positive facts relied upon by the Authority could not support its finding that there had been a "significant" change in the country circumstances or an improvement in the security situation. The finding was accordingly said to be unreasonable. 41 In substance, AKY18 attacked the Authority's determination, which had been made on the basis of its evaluation of the evidence before it, as to the risk of harm that she would be exposed to upon her return to Sri Lanka. The difficulty is that this was a purely factual determination, made after the Authority's consideration of the relevant country information. In other words, it was the conclusion of a qualitative assessment, which included a weighing of various facts drawn from several reports. The Authority had found that: 17. … Throughout the war the Tamil population was subject to scrutiny, monitoring, harassment and there are credible reports of human rights violations by the security forces. It was in this environment that the applicant was assaulted after the death of her relative and questioned on her return from abroad in 2008. However, there has been a significant change in the country circumstances since the end of the war and the defeat of the repressive Rajapaksa government in 2015, and I am not satisfied that there is a real chance she would experience harm on return to Sri Lanka as a Tamil, or as a woman. 42 In support of the conclusion drawn in the second sentence of that passage, the Authority referred to several pieces of evidence from the country information, including: (a) a decrease in the number of Tamils held in detention; (b) the election of the Sirisena government in 2015, leading to greater political cooperation; (c) a decrease in the monitoring of Tamils from former LTTE areas; (d) the Sirisena government having adopted a more proactive approach to human rights and reconciliation, and having engaged constructively with Tamil political parties; (e) a report from the Department of Foreign Affairs and Trade that the security situation in the east of the country had greatly improved since the end of the conflict, and that the monitoring and harassment of Tamils had decreased under the Sirisena government; (f) a report from the United Kingdom Home Office that the Sri Lankan government was only concerned with Tamil activists who were working for Tamil separatism or to destabilise the unitary Sri Lankan state; and (g) the fact that reports of human rights abuses related to people with LTTE connections or who were otherwise Tamil separatist activists. 43 Although other aspects of the country information referred to by the Authority did acknowledge or indicate the continued existence of problems in Sri Lanka, it was for the Authority to weigh the various matters before it and draw its own conclusions about the circumstances prevailing in the country and whether or not those circumstances revealed any risk that AKY18 would suffer serious harm upon her return. As a general proposition, it is for the Authority to determine what weight will be given to a particular piece of evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281 - 282, 291 - 292. It is not for this Court to second-guess how the weighing of evidence occurred or should have occurred. In the present case, it is apparent that there was a substantial amount of evidence before the Authority that was capable of supporting its conclusion that there had been a "significant" change in the country circumstances and an improvement in the security situation, which in turn justified the determination that AKY18 would not be at risk of harm were she to return. It cannot be said that this conclusion was unreasonable merely because some matters in the broader collection of material before the Authority might be understood to have weighed against it. On the contrary, the Authority having had due regard to those matters, and having assessed that their effect was outweighed by the effect of other evidence, the conclusion was apparently well founded. 44 AKY18's submission that the Authority's decision was unreasonable on account of the existence of certain more negative aspects of the country information essentially invites the Court to engage in merits review. It urges the Court to attribute its own weight to the various pieces of evidence and make its own assessment of the circumstances in Sri Lanka at the relevant time. That exercise would go well beyond the proper bounds of judicial review. 45 If, hypothetically, there was no evidence to support the Authority's conclusion, then it might be possible to regard it as unreasonable. However, where the Authority has made an evaluative judgment on the basis of conflicting indicators, it is impossible to regard its conclusion as being supported by no evidence and as being, on that basis, unreasonable: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 [34]. 46 Put simply, the Authority drew a conclusion of fact that flowed logically from the evidence before it. That conclusion is not susceptible to judicial review, and the primary judge was correct so to find. It follows that the first ground of appeal must fail.

Ground 2 - the claims in relation to "greasemen" 47 The second ground of appeal was that the Authority had erred by failing to address AKY18's claim that she was fearful for her general safety in Sri Lanka due to the presence of "greasemen", who attack women at night. This was said to amount to a constructive failure to exercise jurisdiction. It was submitted that the primary judge erred in finding that the Authority's conclusion "was reasonably open to it and was within the realm of legitimate decisional freedom". 48 It was submitted that the Authority did not adequately address this claim because its ultimate finding on the matter was expressed briefly at paragraph [21] as being that it was "not satisfied there is a real chance that the Applicant would be harmed or assaulted by the CID, greasemen, or others, on return to Sri Lanka". The complaint made is that the Authority did not consider such relevant matters as, for example, who these greasemen were, why or whether they attacked women at night, and whether AKY18 might be attacked by them. It was submitted that the Authority's finding was "nothing more than a throw away line which included the word 'greasemen', without any basis or proper consideration of that claim". 49 The difficulty here is that AKY18's claim in relation to the risk posed to her by greasemen in Sri Lanka was only obliquely raised. It was recorded by the Authority at paragraph [9] of its reasons as follows: The applicant is fearful about her general safety in Sri Lanka and expressed her concern about greasemen who attack women at night. She cited an incident in 2013 where she was collecting her daughter from school and there was a disturbance and people were shouting and her daughter was scared. 50 When this passage is taken in its context, it is apparent that the reference to "greasemen" was part of AKY18's broader claim about her fear that she will come to harm in Sri Lanka because she is a woman. However, her claim did not suggest that she had ever encountered greasemen, or was particularly likely to in future. Her reference to the incident in 2013 raised, at best, a remote possibility that this might occur. 51 The Authority otherwise dealt in some detail with AKY18's claim about the risk of harm that she would face in Sri Lanka as a woman. It referred specifically to the Sirisena government taking action to prevent the abuse of women, the continuing allegations of sexual assault and rape by the military in parts of the country, the reduction in the number of assaults on women by military personnel but the "climate of fear" that remained in an area where some military presence continued, the risk to women in female headed households, and the continued occurrence of violence and sexual assault against women in Sri Lanka. After citing other matters, including the improved security situation and AKY18's access to support and protection in Sri Lanka, it made the aforementioned finding at paragraph [21] of its reasons. 52 The Authority accordingly dealt with the overall situation for women in Sri Lanka and, more specifically, the situation for persons in the position of AKY18. The complaint about greasemen was merely part of her general concern as to her safety as a woman, and it was advanced only vaguely by reference to a single event described in little detail. The Authority was entitled to deal with the issue in a manner that reflected the way in which it was raised. Without access to any other material in relation to the nature of greasemen or their activities, it was no doubt particularly difficult for the Authority to be satisfied that greasemen posed a genuine threat to AKY18's safety in Sri Lanka. The Authority was not obliged to undertake investigations of its own in order to determine whether further consideration of this point was warranted. As recognised by the primary judge, it was not required to seek out further material about greasemen, their activities, or the risks that they posed. It was only obliged to act on the information before it. AKY18 did not, in the Federal Circuit Court or in this Court, identify any evidence or material that was before the Authority in relation to greasemen that ought to have been, but was not, considered. Indeed, it seems apparent that there was no such evidence or material before the Authority by reference to which it might conceivably have engaged in more detailed consideration of the issue or reached a different conclusion. 53 The material before this Court suggests that the Authority dealt with AKY18's claim in relation to greasemen in relatively little detail because that was how the claim was advanced. The primary judge was correct to conclude that this ground of appeal should be dismissed. There was no constructive failure to exercise jurisdiction on the part of the Authority in circumstances where, by reason of the very limited information and material put before it, it was effectively left with little choice but to express its conclusion on the point briefly and in relatively general terms. 54 It follows that this second ground of appeal must also fail.

Conclusion 55 For the foregoing reasons, neither of the grounds of appeal can succeed. The appeal must be dismissed. 56 No reason was advanced as to why the usual order for costs should not be made in this case. The appellant should accordingly pay the Minister's costs of the appeal. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.