The Authority's reasons
120 The Authority summarised the protection claims of appellant AZT22 as follows (AZT22 Authority reasons [40]) (footnotes omitted):
The wife applicant's claims can be summarised as follows:
• She is a Tamil Christian female from the Eastern Province
• Her mother and younger sister were the only survivors of an attack on 50 to 60 Tamils in 1991;
• She grew up under the threat of sexual violence in Sri Lanka. She knows of women who have been raped. She herself was chased on the street when she was aged 14 years;
• Her late husband was taken in a roundup in 2004. He was suspected of LTTE links and mistreated. He died around one year later;
• Her current husband, [appellant BIR22], was adversely affected by communal and interethnic violence both growing up in Sri Lanka and during the conflict. In 1990 he was arrested and mistreated suspected of LTTE links;
• Her husband was also coerced into providing financial support to the LTTE and pro-government paramilitary groups;
• In early 2010 her husband was attacked by armed soldiers and had his jewellery stolen. Later that year, he was abducted by men in a white van;
• After opening a restaurant called the Star Hotel in 2012, her husband was targeted by armed groups, beaten, and forced to go into hiding. She and her son (the child [appellant BIS22]) were also threatened;
• People have been looking for them since their departure from Sri Lanka;
• If returned to Sri Lanka [appellant AZT22] fears she will be harmed or killed by the Sri Lankan authorities and associated groups due to:
- her Tamil ethnicity
- her profile as a woman, or Tamil woman
- past events involving [appellant AZT22] and her first husband, and their profiles
- her religion, as a Christian
- the 2014 'data breach'
- her illegal departure
- her profile as a failed asylum seeker.
121 The Authority records that, on 28 August 2020, appellant AZT22 provided the authority with a statutory declaration (AZT22 Authority reasons [22]). The statement included new information that was personal information about appellant AZT22 that, due to the nature of that information, she requested not be shared with her husband (appellant BIR22) and son (appellant BIS22). The new information concerned a traumatic event involving sexual assault of appellant AZT22 in 2012. The appellant said that the event took place while her husband was away in hiding. The new information related to aspects of the protection claim of appellant AZT22. The statutory declaration included an explanation for the reasons that the information had not been previously provided to the Minister or a delegate of the Minister.
122 The review material included written claims appellant BIR22 made in his TPV statement in 2015, a statutory declaration of appellant AZT22 made in 2015 and transcripts of TPV interviews with delegates in 2015. Within these statements, appellant BIR22 and appellant AZT22 gave an account that appellant BIR22 was beaten in 2012 and went into hiding for three days. Therefore, that appellant BIR22 was 'in hiding' in 2012 formed the premise or context of the events the subject of the new information of appellant AZT22.
123 The Authority set out the substance of the new information and submissions appellant AZT22 made on that information. The Authority then said, in respect of part of that information, 'for reasons outlined later in this decision, I am not satisfied that s.473DD is met' (AZT22 Authority reasons [22]-[24]). The Authority then went on to consider and give reasons as to why it was or was not satisfied that s 473DD was met with respect to various integers of the remaining part of that information (AZT22 Authority reasons [24]-[39]).
124 It is important to appreciate that these paragraphs of the Authority's reasons are contained in a preliminary section of the reasons in which the Authority identified the 'Information before the IAA'. That is, the review material and the new information in respect of which the Authority was satisfied that the criteria in s 473DD had been met. In this section of the reasons, the Authority considered and provided reasons as to why it was or was not satisfied that various new information met those criteria (AZT22 Authority reasons [5]-[39]).
125 After identifying the information before the Authority, the member then identified the protection claims of appellant AZT22 ([40]), the applicable law ([41]-[42]) and then considered the information before the Authority to decide if appellant AZT22 had a well-founded fear of persecution (AZT22 Authority reasons [43]-[143]).
126 In the course of addressing the information before the Authority, the member considered the claims of appellant AZT22 (to the extent these were based on statements of appellant BIR22 and appellant AZT22) to the effect that appellant BIR22 was targeted by armed groups, beaten, and forced to go into hiding. As to these claims, the Authority said (footnotes omitted):
65. I found [appellant BIR22's] and his wife's evidence about events in Sri Lanka between 2010 and 2012 highly problematic. In particular, their oral evidence appeared to significantly differ from their written evidence, and each other.
66. In his TPV statement, [appellant BIR22] claimed that in early 2010 he was attacked by armed soldiers after closing his shop and having commenced his journey home. He was tied up, blindfolded, and had his jewellery stolen. He was eventually left in a bush area. He also claimed that in December 2010 he was abducted by men in a white van. Again, his hands were tied and he was blindfolded. One of the men wanted to shoot him, but another was of the view he should be thrown from the van. The men then untied him and demanded money. In response, [appellant BIR22] said he could not keep paying but the men released him anyway telling him that were letting him live so they could get money from him in the future. When asked about the 2010 incidents in the TPV interview [appellant BIR22's] initial response was that it was very dangerous and that he didn't mention the details in his entry interview because he was mentally affected. I note this differed from his explanation in his TPV statement that information wasn't provided at that time because he was told to keep his answers brief. He then indicated to the delegate that there was only one incident in 2010, which was a combination of the two incidents outlined in his written claims. He stated that he was not attacked but kidnapped by soldiers while walking home from his shop. His personal items were taken and he was allowed to live so they [could] get "more things" from him in the future. He was blindfolded and left in a forest. The delegate asked [appellant BIR22] why he was allowed to live if he told them that he could no longer pay. In response, he said that the soldiers believed he had information about other people who were rich. On 2 December 2012, the [appellants'] former representative provided a post-interview written submission (post-TPV interview submission), which reiterated [appellant BIR22's] written evidence that he had been involved in two incidents in 2010.
67. Overall, I considered [appellant BIR22's] evidence about events in 2010 inconsistent and his oral evidence vague. Although he was asked by the delegate what specifically happened to him his responses were quite evasive and appeared to be about the difficulties faced by Tamils in general. While I accept [appellant BIR22] may have been the victim of jewellery theft by opportunistic criminal elements operating in the east of Sri Lanka at the time, I am not satisfied he was threatened, kidnapped or attacked by soldiers in 2010. I also considered [appellant AZT22's] evidence in her TPV interview that the purported kidnapping occurred in December 2012 not supportive of [appellant BIR22's] evidence.
68. [Appellant BIR22] claimed in his TPV statement that in January 2012 he and his family moved from Kalmunai to Batticaloa and opened a restaurant. He said it wasn't long until he was targeted by armed groups. He was beaten and was forced to go into hiding for three days. When he returned, armed men came to the restaurant early in the morning and threatened to shoot his wife and child. One of the men hit [appellant BIR22] in the face causing him to pass out. He decided to leave Sri Lanka due to fear for the safety of his wife and child.
69. Like her husband, [appellant AZT22] also indicated in her written statement that [appellant BIR22] went into hiding after being beaten. When he returned from hiding men came to the restaurant and threatened to kill her and the child.
70. In the TPV interview, the delegate asked [appellant BIR22] about the problems he purportedly faced in Batticaloa. He explained that he lived in fear because there were different groups that would come and ask for meals and cigarettes but not pay. He said that due to the pressure he went into hiding for around a week. While he was away armed persons came to the door of the restaurant and knocked on it. His wife called him immediately and he returned. He stated that soon after opening the restaurant the following morning, he was approached by the army and beaten. He had been running the restaurant for around five months and decided that he no longer wanted to live in Sri Lanka. He ceased operating the business and made arrangements to leave the country, which included selling his house. All arrangements were made within about a two-month period. The [appellants] departed Sri Lanka in September 2012.
71. The delegate asked [appellant BIR22] whether he could provide any evidence that he owned a restaurant in Batticaloa. In response, he indicated that unlike Australia there is no such document or evidence that can be provided as proof of business ownership. The delegate then asked whether there was a record of the business being registered or a change of ownership, to which he replied that he didn't have the opportunity to register the business because of everything that happened during the five-month period. He also didn't sell the business because he didn't want to draw attention to the fact that he was planning to leave Sri Lanka, and not even the restaurant staff were aware of his plans.
72. In her TPV interview, [appellant AZT22] advised the delegate that the incident where the armed men attempted to break into the restaurant occurred in January 2012. She believed the persons responsible were either the army or police. When asked why they would be targeting the family, she said it was because of her husband's problems. When asked what those problems were, she said that her husband had a lot of problems prior to their marriage (in 2009). [Appellant AZT22] also claimed that while her husband was in hiding for three days she and her son were threatened by the CID (Criminal Investigation Department). She was told that she would be killed unless her husband came out of hiding. She advised the delegate that they sold their business and their house prior to leaving Sri Lanka and that the process took around six months. I note in her entry interview [appellant AZT22] indicated some unknown paramilitary groups came to the restaurant and asked for money.
73. In the post-TPV interview submission, [appellant BIR22's] former representative reiterated [appellant BIR22's] and [appellant AZT22's] written evidence that [appellant BIR22] was attacked prior to going into hiding.
74. In his TPV statement, [appellant BIR22] claimed that since his departure from Sri Lanka the SLA had been speaking to his 'cousin's brother' wanting to know [appellant BIR22's] whereabouts. The SLA advised the cousin's brother that they are waiting for [appellant BIR22] to return to Sri Lanka so that they can deal with him. [Appellant BIR22] believes that the SLA started looking for him due to the 2014 data breach. In her TPV interview, [appellant AZT22] advised the delegate that she feared returning to Sri Lanka because as recently as three days earlier someone had come looking for them there.
75. Having considered the evidence in its entirety, I am not satisfied that [appellant BIR22] or his family came to the adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed. In particular, I consider [appellant AZT22's] and her husband's apparent differing evidence as to when the events of 2012 occurred significant which leads me to conclude they were not recalling a genuine personal experience. I find it difficult to reconcile [appellant BIR22's] oral evidence about the order of events and the period he was in hiding with his written claims. Also, [appellant BIR22] made no mention in the TPV interview of his wife being approached and that she and the child were threatened with death, as per his written claims, despite being asked by the delegate to provide details as to what occurred. Further, [appellant AZT22's] oral evidence that she was threatened while [appellant BIR22] was in hiding bore little resemblance to her written claims or [appellant BIR22's] written evidence that this occurred after he returned from hiding. I also find [appellant AZT22's] and her husband's conflicting evidence about whether they sold the business and the timeframe in which they made the arrangements to leave Sri Lanka not insignificant. Moreover, in contrast to other aspects of their evidence, I considered both [appellant AZT22's] and her husband's oral evidence in respect of these purported events to be at times incoherent and lacking in detail which further leads me to doubt they were recalling a personal experience. I am not satisfied [appellant BIR22] was in hiding in 2012.
76. A number of these concerns were put to [appellant AZT22] and her husband towards the end of the TPV interview. They were given a break to discuss these issues in private with their former representative. Following this discussion, [appellant BIR22] advised the delegate that he had told his wife that he had given the restaurant to someone prior to leaving Sri Lanka. He indicated he told her this because otherwise she would ask for the money and that would cause problems between them. However, I find this difficult to reconcile with [appellant AZT22's] evidence that the restaurant was in fact sold (and not given away). None of the other concerns about their problematic evidence was addressed in the interview and it was agreed that written submissions would follow. However, the post-TPV interview submission was silent on these particular concerns.
77. In coming to these conclusions, I have given consideration to [appellant AZT22's] evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative. I have also considered [appellant BIR22's] claim in the TPV interview that he was 'mentally affected' when he arrived in Australia and that his mind is not stable. However, there is no credible evidence before me to indicate [appellant BIR22] has been diagnosed with a psychological condition or that his ability to engage throughout the TPV process was adversely impacted by his mental state. I am not satisfied that the problems with [appellant BIR22's] and his wife's evidence about events in Sri Lanka are due to [appellant BIR22's] mental state, either now or when he arrived in Australia.
127 At para [78], the Authority set out the substance of the new information:
78. [Appellant AZT22's] new evidence to the IAA is that 'in or around 2012', while her husband was in hiding, she was raped in Batticaloa. She states that the incident occurred at a 'shop' they owned. They lived on the same premises as the shop. I infer the wife applicant is referring to the restaurant they owned in 2012 called the Star Hotel. She states in her August 2020 statement that:
…
The balance of para [78] set out in 11 bullet points the substance of the evidence of appellant AZT22 about the traumatic event and sexual assault. It included a statement that the events took place '[w]hile her husband was in hiding'.
128 The Authority then provided reasons for the member not being satisfied that the new information was 'credible' personal information within the meaning of s 473DD(b)(ii) and said:
82. The applicant's representative contends that the outcome of the above is that the wife applicant has not previously been given a genuine opportunity to engage with the protection visa process and to put forward her claims for protection. She submits that for this reason there are exceptional circumstances for considering the new claims and associated country information. The representative further submits that exceptional circumstances exist to consider the new information because the TPV application was lodged by a Registered Migration Agent appointed through the Primary Application Information Service (PAIS), which means the family were assessed by the Department as 'extremely vulnerable'. She also argues that because the delegate did not explore the question of whether the wife applicant faced harm on the basis of her gender, the IAA should find that this is an exceptional circumstance.
83. I am keenly aware of the difficulties faced by persons with claims relating to sexual assault. I also acknowledge the country information that indicates such events as claimed by the wife applicant were widespread in Sri Lanka at the relevant time. I give some weight to the fact that the wife applicant expressed a fear of sexual assault in Sri Lanka before the delegate and that this, without more, may provide some support for the new information to the IAA. I accept it is not implausible that victims of sexual assault will often decline to disclose their experiences due to factors including general discomfort, shame, stigma, psychological or cultural reasons. I also accept it is possible that a lack of understanding about the protection process and/or the use of a male interpreter could act as a barrier to disclosing claims relating to past sexual assault. I further accept that someone who was affected by the data breach may lack confidence to divulge sensitive information for fear that information may not remain confidential. It is also possible that a legal representative assisting an applicant may not have asked the right questions or sought information in a culturally appropriate manner.
84. I have concerns about some of the reasons advanced by the applicants' representative as to why the information was not advanced earlier. For example, I am not satisfied the wife applicant was disadvantaged throughout the TPV process due to her limited English language skills or her lack of understanding of the TPV process. Notwithstanding the various reasons to the IAA about why the information was not provided earlier, I note she was assisted throughout the TPV process by a legal representative and confirmed in the TPV interview that she understood Australia's protection obligations. The delegate emphasised the importance of providing the Department full and accurate protection claims during the TPV process and prior to a decision being made. I am also satisfied her written and oral claims were provided with the assistance of an accredited interpreter. As noted above, the delegate, a female, asked the wife applicant about her personal experiences in Sri Lanka. The interview was conducted without her husband present and with her former representative, also female, present.
85. I also find it difficult to reconcile some of the reasons put forward. On one hand, it is suggested the wife applicant was prevented from putting forward the claims earlier because of the actions (or inactions) of the former representative, because a male interpreter was used, because the delegate did not explore the issues, or due to stigma / shame / psychological / cultural factors. However, on the other hand, it is submitted that she consciously didn't advance the claims earlier because of a lack of confidence due to the data breach or because she thought her husband's claims would be accepted. It is difficult to see how the applicants' 'PAIS' status contributed to the non-disclosure of the new information earlier. I have also noted the wife applicant's claim that she has not explained to her treating doctor the cause of her symptoms though has had surgery in Australia and takes medication, both in connection with the claimed events/assault. However, there is no evidence of the wife applicant having undergone any medical treatment, beyond her assertions.
86. In respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied her husband was ever in hiding, which significantly undermines the credibility of the new information. Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information. In particular, the wife applicant's claim that she opened the door assuming it was her husband returning home and that it didn't occur to her that anyone else would be knocking on the back door of the house. I simply don't find this credible in circumstances where both she and her husband claimed that, at the relevant time, the situation was so dangerous that the applicant was forced to leave their restaurant/home and go into hiding. This leads me to further doubt the credibility of the new information.
87. The new claims are not inconsistent with the country information before me. However, when I consider the difficulties with the evidence about the events of 2012 (when the assault is said to have occurred), that the claims are being advanced for the first time over four years since the delegate's decision and following two previous IAA reviews, the differing reasons advanced as to why it was not provided earlier, the fact the wife applicant was represented by a female representative throughout the TPV process, that she advanced claims before the Minister in respect of her fear of sexual violence, that the female delegate did touch on gender in the TPV interview, that the wife applicant specifically advised in the TPV interview that she had never faced harm personally, and that I am satisfied she was well aware of the importance of raising all claims and evidence prior to the delegate's decision, I am not satisfied the new information about the sexual assault is credible. I am not satisfied the new information was not put forward earlier due to the wife applicant believing that she didn't need to because she thought her husband's experiences/claims would be sufficient, due to her English language skills, due to her lack of understanding of the TPV process, due to shame, stigma, psychological or cultural factors, due to the actions (or inactions) of the delegate or her former representative, due to being assisted by a male interpreter, due to the data breach, due to her 'PAIS' status, or for any other reason. I am not satisfied that exceptional circumstances exist to justify considering the new information.
88. In the September 2020 submission, the applicants' representative states that the wife applicant requests a 'hearing' to be heard on the claims advanced in her August 2020 statement. The representative, as a registered migration agent, would be aware that the IAA provides a limited form of review which, as a general rule, does not involve accepting, getting, or requesting new information. The representative would also be aware that the IAA Practice Direction allows applicants to provide a written submission about why they disagree with the decision or about a claim or matter presented that was overlooked and to provide further information which can be considered in limited circumstances. In this case, numerous written submissions and a detailed statement have been provided and the representative and wife applicant have taken the opportunity to both address matters that were before the delegate and to raise new claims. While the IAA may get any information not before the Minister and which it considers relevant, including at an interview, it does not have a duty to do so. For reasons outlined above, I am satisfied that the wife applicant has had ample opportunity to present her case. Further, given my significant concerns noted above about the credibility of the new information, I am not satisfied that an interview is warranted.
89. The wife applicant states in her August 2020 statement that she feels like her memory has been affected due to the assault (which I have not found credible or considered). However, there is no diagnosis, medical opinion, or other credible information before me to indicate the wife applicant has problems with her memory. I am not satisfied the wife applicant's ability to engage throughout the TPV or IAA process, including in respect of providing the new information via the representative, has been adversely impacted due to memory issues. I am not satisfied the wife applicant suffers with memory problems.