CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCA 699 - FCA 2021 case summary — Zoe

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CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 699

Federal Court of Australia|2021-06-25|Before: Kenny J

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Court

Federal Court of Australia

Decision date

2021-06-25

Before

Kenny J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Background 3 CDN16 and CDS16 married on 4 September 2012. They are both citizens of Sri Lanka. CDN16 identifies himself as a Sinhalese Burgher. CDS16 is a Tamil woman. Both are Christians. They arrived in Australia as unauthorised maritime arrivals (as defined in s 5AA of the Migration Act 1958 (Cth)) on 13 October 2012. Their son CDT16 was born in Australia on 25 August 2013. 4 CDN16 and CDS16 were separately interviewed as irregular maritime arrivals on 12 December 2012. In her interview, in answer to the question, "why did you leave your country of nationality?", CDS16 said: Because of the Burger Singhalese and I am a Tamil and since I married him, my husband is Singhalese, they threatened to kill us. This part of the interview was further reported as follows: Q What was the nature of the threat that you received? After I reached and went to my husband's place and they found that he had married a Tamil woman, they threatened to kill him, and both of us. We phoned to our friend and we got to. Q What was the nature of the threat you received? They came and physically came with a baton and stick and then they couldn't find us and after that they left and then we got telephone calls and after that they went to my husband's restaurant and threatened him. Q Who were these people? The village people, both Singhalese and Tamil. They came on 6/9/2012 to threaten me. Q What date did they go to the restaurant? That was in November. Q You mentioned documents earlier? They came to my husband's place and they knocked down all the things. I have letters to support that, the police documents. Q Are there any other reasons why you left? I feared for my life, that's why I came. CDN16 gave a similar account at his entry interview when asked why he had left Sri Lanka. 5 On 12 September 2013, an application for a Protection (Class XA) visa was made on behalf of CDN16, CDS16 and CDT16. This application included the statutory declarations of CDN16 dated 12 September 2013 and CDS16 dated 10 September 2013. By a letter dated 28 October 2014, the Minister's Department informed the migration agent acting for CDN16, CDS16 and CDT16 that this application was not valid. By a subsequent letter dated 16 July 2015, the Department wrote to CDN16, advising that the Minister had exercised his power under s 46A(1) of the Migration Act to allow CDN16, CDS16 and CDT16 to make a valid visa application. 6 On 21 August 2015, the Department received an application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa made on behalf of CDN16, CDS16 and CDT16. This application contained a number of supporting documents including two statutory declarations dated 18 August 2015 outlining CDN16's and CDS16's respective protection claims. 7 In summary, in a statutory declaration made on 18 August 2015, CDN16 gave the following account. He and CDS16 met in December 2011. They commenced a relationship discreetly as they were worried about how CDS16's aunt (with whom CDS16 was then living) would react if she knew of the relationship. In March 2012, some Sinhalese men came looking for CDN16 at the hotel where he worked, and after this incident CDN16 was afraid that Sinhalese people from his town had found out about them and were beginning to threaten them. About six weeks later, some Tamil men came to the hotel asking for him and told one of the hotel managers, who was his friend, to pass on the message that he should stop seeing CDS16 "and that they would hurt [him] if I continued to [do so]". These men returned to the hotel a number of times asking after CDN16 and threatening to kill him if they saw him. In June 2012, CDS16 received a phone call to the effect that she would be killed if she did not stop seeing CDN16. She received other calls of this kind before they married. On 4 September 2012, CDN16 and CDS16 married and returned to CDN16's parents' house. A group of Sinhalese men came to the house the next day. They were armed with swords and wooden sticks and called for them from outside the house, threatening to kill them. Following this, CDN16 and CDS16 stayed with a friend. The Sinhalese men returned to CDN16's parents' house, which they damaged. CDN16, CDS16 and CDN16's parents made complaints to the local police about what had happened, but the police would not accept the complaints or investigate them. On 22 September 2012, CDN16 and CDS16 left Sri Lanka by boat headed for Australia. The Minister's Department wrote to CDN16 explaining that his, CDS16's and CDT16's details had been disclosed via the internet. CDN16 feared that as a result of this disclosure, the Sri Lankan authorities know he is an asylum seeker who fled illegally and, if he returned, would violently interrogate him for this reason. CDN16 claimed to fear serious harm because of his marriage to a Tamil woman whose family has links to the Eelam People's Revolutionary Liberation Front (EPRLF) and Liberation Tamil Tigers of Eelam (LTTE), and who herself was actively involved in the Tamil National Alliance (TNA), and because he departed Sri Lankan illegally. 8 In a statutory declaration also made on 18 August 2015, CDS16 stated as follows: Her father disappeared as a result of his involvement in the EPRLF when CDS16 was about one year old. When CDS16 was a young teenager, CDS16 stayed with an aunt and uncle who were supporters of the LTTE, and "would provide LTTE Cadres with temporary shelter and accommodation when required". She was compelled by her aunt to assist in such activities as delivering supplies and fundraising for the LTTE. She confirmed, however, that she had never been a member of the LTTE and was "forced to undertake these fundraising activities by [her] aunt". In early 2009, Sri Lankan army officers searched her aunt and uncle's house and took her aunt and uncle for questioning. The aunt and uncle were released some three hours later. CDS16 was not required to continue her activities for the LTTE after this incident. From February 2011 until about August 2012, while she was a student studying political science, CDS16 became interested in working for a political party. As a consequence, for about 18 months in 2011-2012, CDS16 was employed part-time by the TNA, doing such things as putting up posters, canvassing for votes, and organising meetings and events. In December 2011, she met CDN16. Like CDN16, she said that she received threats because of her relationship with him and that, shortly after they married, the home of CDN16's parents was attacked by Sinhalese men who were looking for them and that the police would not investigate their complaints. CDS16 also claimed that after marrying CDN16, she received threatening phone calls "almost daily" and sometimes "twice a day" from private numbers from Sinhalese and Tamil men, and that she believed that the phone calls might have been from TNA members or parties opposed to the TNA. CDS16 claimed to fear harm as a member of a mixed race marriage, and because of her father's involvement in the EPRLF, her activities and association with the LTTE, her political involvement with the TNA, and as a person who departed Sri Lanka illegally. 9 In particular, CDS16 claimed that she would have an "adverse political profile" because of her connections to the EPRLF (through her father) and to the LTTE (through her aunt), and her involvement in the TNA. In this regard, she said: I am also afraid I will be seriously harmed by the Sri Lankan authorities if forcibly returned because I will be imputed with an anti-government political opinion. I fear that this will happen for the combined reasons of being returned as a Tamil failed asylum seeker who fled Sri Lanka illegally, because my father had links to EPRLF, because of my fundraising activities for the LTTE [] under the order of my aunt [] and because of my active involvement with the TNA. All these things combined would give me an adverse political profile and would make the Sri Lankan authorities suspect that I am opposed to them. I fear that I will be violently interrogated by the authorities on return. I fear I will be arbitrarily detained and imprisoned. I fear that because of my imputed adverse political profile, I will be subjected to violence including of a sexual nature by the authorities. I fear that if I am detained, including for departing illegally, I will suffer violence in the prison I am taken to because I am a Tamil woman. Conditions in Sri Lankan prisons are awful and the authorities can harm whoever they want. I believe that I will be harmed intentionally if detained because I am a Tamil woman with an adverse political profile. (Emphasis added) 10 CDS16 went on to say: I also fear being seriously harmed and persecuted by the Sri Lankan authorities because of my Tamil race, as well as my real and imputed political opinion. I fear that I will be violently interrogated, seriously beaten and tortured. I fear that I will be viewed as being opposed to the Sri Lankan government for the combined reasons of being a Tamil woman from the Eastern Province who has worked actively with the TNA, who applied for asylum overseas after fleeing Sri Lanka illegally, who did fundraising for the LTTE as a teenager and who has family links to people who were involved with the EPRLF and LTTE. … I fear the authorities will use the excuse of me departing Sri Lanka illegally to detain me for many days or weeks to further interrogate and find out about me. I fear that because of my adverse profile, I will be seriously mistreated physically and sexually by the Sri Lankan authorities during any interrogation while I am detained. I fear that I will not be released and will [be] put into a prison by the authorities. Prison conditions in Sri Lanka are awful and as a young Tamil female with an adverse profile, I fear I will be seriously physically harmed by other inmates and the authorities who will purposefully target me for a combination of all of the reasons stated []. (Emphasis added) 11 On 10 and 16 December 2015, CDN16 and CDS16 were interviewed by a Departmental officer. After the interview, the officer provided their migration agent with a document headed "ADVERSE INFORMATION". This was said to contain information which the assessing officer considered "may be the reason, or part of the reason", for refusing to grant their application. This included information that: The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers, dated 21 December 2012 (UNHCR Guidelines) indicated that whether persons suspected of certain links to the LTTE will be included in its risk categories depends on the specifics of the individual case. CDS16's "involvement as a child assisting the LTTE was forced upon her by relatives and she has not experienced any repercussions living in Sri Lanka since the war ended". A DFAT country report, dated February 2015, indicated that failed asylum seekers who left Sri Lanka illegally and who are returned there "are not at any particular risk … unless suspected of a crime or membership of the LTTE". 12 A responsive submission dated 6 January 2016 was subsequently provided to the Department on behalf of the visa applicants by their migration agent. In these submissions, the migration agent noted that CDS16 agreed that the Sri Lankan authorities had not shown "any adverse interest in her for her suspected involvement with the LTTE" when she was last in Sri Lanka. The agent submitted, however, that the circumstances had changed because she had fled Sri Lanka illegally and claimed asylum; she had given birth to a child in Australia; her uncle and cousin had also fled Sri Lanka (to Malaysia) following "adverse treatment"; and that her and her family's personal information had been leaked on the Internet by the Department. The agent submitted that, in these circumstances: CDS16 would undergo intense questioning on return; her connection to the LTTE would be exposed; and she would be physically harmed. 13 The agent also referred to the UNHCR Guidelines, submitting that CDS16 fitted within profiles of a person who may require protection. Further, the agent submitted: If our clients are held in remand, detained or imprisoned, apart from the deplorable prison conditions they would encounter, they would, especially [CDS16], given her cumulative adverse profile, be targeted by prison authorities for severe mistreatment, punishment and torture (including of a sexual nature) and that such mistreatment would be specifically targeted against her because of her cumulative adverse profile. (Emphasis added) 14 In an email sent on 19 May 2016, the assessing officer asked CDS16 for further information, including about the telephone threats she had received concerning her marriage. A response was made on her behalf, by letter dated 3 June 2016. 15 By letter dated 24 June 2016, a delegate of the Minister notified that she had decided to refuse the visa applications made by CDN16, CDS16 and CDT16. In summary, the delegate accepted that: (1) CDN16 and CDS16 were subjected to harassment and threats from family members and unknown Sinhalese and Tamil persons in the community because of their mixed marriage, but that they had exaggerated the frequency of these threats "in order to enhance their claims for protection"; (2) in the current climate it would be possible for both CDN16 and CDS16 to access effective state protection in relation to any harassment or threats they may face in the future; and (3) while it is possible that if the applicants were returned to Sri Lanka, CDS16 might be questioned upon her return about her past political involvement, she did not have a profile that would put her in danger of being persecuted by Sri Lankan authorities. 16 The delegate concluded that CDN16 and CDS16 did not satisfy s 36(2)(a) of the Migration Act. The delegate accepted that if CDN16 and CDS16 were to remain in their village it was possible that the threats they had received could result in a real risk of harm to them both. The delegate found, however, that it would be reasonable for them to relocate to Colombo where there was no real risk that they would suffer significant harm. The delegate therefore concluded that CDN16 and CDS16 were not persons in respect of whom Australia had protection obligations within s 36(2)(aa) of the Migration Act. As CDN16 and CDS16 were both not found to be owed protection obligations, the delegate also refused to grant a protection visa to CDT16.

[3]

Mixed marriage 19 The Authority was not satisfied that if they returned to Sri Lanka, CDN16 and/or CDS16 faced a real chance of serious harm due to their mixed marriage because it considered their evidence concerning the threats to them due to their relationship to be inconsistent in material respects and not supported by country information: AR, [17], [27], [29]. 20 With respect to the men who came to CDN16's workplace, the Authority said (AR, [19]): I am concerned by the inconsistencies whether it was only Tamil or both Tamil and Singhalese men. I am concerned about the claimed number of times they came. I am concerned about whether they saw the husband. I am concerned too about the role of Mr PS in their departure from Sri Lanka. I consider these multiple and material inconsistencies in the evidence of the husband and of the wife and between them both undermines the credibility of the claims they were threatened by anyone because of their relationship and marriage. 21 With respect to the men who came to the home of CDN16's parents, the Authority said (AR, [21]): I am concerned by the inconsistencies whether it was only Singhalese or both Tamil and Singhalese men who came to his parents' home. I am concerned about whether they came once or twice. I am concerned too about whether the men were known by and/or related to the husband and the wife, or not. I am concerned [that] the husband and wife not providing further evidence to the police is characterised by them as the police refusing to accept a complaint. …I consider these multiple and material inconsistencies in the evidence of the husband and of the wife, and between them both, undermine the credibility of the claims they were threatened by anyone because of their relationship and marriage. 22 With respect to the men who made telephone threats to CDS16, the Authority said (AR, [23]): I am concerned by the inconsistencies in when the threatening telephone calls commenced. I am particularly concerned about the claimed frequency of the calls. I have difficulty accepting the wife received threatening telephone calls of the claimed frequency (ranging from once every two days, to daily, to twice a day) but would not change her telephone number. I am not persuaded by her explanation [that] she answered the phone calls because she feared not doing so would lead to harm to her or her family or that she did not wish to miss a phone call from her mother. It is reasonable to expect she could simply tell her mother if she obtained a new telephone number. I am not persuaded too by her explanation [that] things happened too fast and that she was hiding in a small village … and could only get a new SIM card from a large town. She has never claimed in the past she was hiding. The evidence elsewhere is she received threats over a period of several months between June and September 2012. The evidence elsewhere too is she was living with aunt 1 and then with her husband at his place of work, then with his family and then with his friend, Mr PS. The evidence elsewhere too is the husband was working through-out this period. It is reasonable to conclude he could obtain a SIM card for her. I consider it implausible the wife would not change her telephone number if she was genuinely receiving the threatening telephone calls of the claimed frequency. I consider this implausible evidence further undermines the credibility of the claims the husband and the wife were threatened by anyone because of their relationship and marriage. 23 Further, the Authority did not accept that the police had failed to investigate the complaints that CDN16, CDS16 and CDN16's parents had made following the incidents at the home of CDN16's parents. The Authority observed (AR, [24]): The[] husband and wife both said during the TPV interview they did not attend the police station because they were afraid the police are corrupt. ... I consider it reasonable the police would require information from the husband and the wife to investigate the claimed event of people coming to threaten them. 24 The Authority also rejected the claims made by CDN16 and CDS16 about the level of animosity in Sri Lanka between Tamils and Sinhalese, including as expressed in opposition to marriage between the two groups: AR, [25]. The Authority stated (AR, [26]-[27]): The delegate and the migration agent agreed there are no major reports regarding harm to people in Sri Lanka due to mixed marriages. In a post interview submission, the migration agent referred to a report by the department's country of origin information section on mixed marriages between Sinhalese and Tamils in Sri Lanka. In summary that report states it depends on the location, and religions of each case and most opposition is from family members of the couple in the mixed marriage. The delegate referred to information in the DFAT country and thematic report. There is no official discrimination by the Sri Lankan authorities. She referred too to information in a UK report, which 'guestimated' around 5% of marriages in Sri Lanka are mixed marriages. The migration agent's submissions are silent on the issue of harm to children of mixed ethnicity. Having regard to that country information about problems for people in mixed marriages stemming from relatives and having regard to the evidence of the husband and wife, I consider they have greatly exaggerated their claims of past harm and fabricated their claim they did not know the identity of the people who threatened them. I am willing to accept the wife's aunt 1 was initially opposed to her relationship with the husband, particularly where aunt 1 had plans the wife marry another man and the husband and wife had prior to that kept their relationship secret. I accept the wife had to leave the home of aunt 1 but I do not accept she was beaten. I accept the wife received a small number of telephone calls from her other family members who too were opposed to her relationship with the husband. That the callers were familiar with the personal details of the wife, her work with the TNA and of her mother supports a conclusion the callers had a level of intimate knowledge of the wife consistent with being her relatives. I find though that the wife's family are now accepting of her relationship and that the husband's family have always been accepting of the relationship. However due to the multiple and material inconsistencies in the evidence of the husband and the wife and between them I reject too that unknown people telephoned the wife to threaten them about their relationship or marriage or her work with the TNA. I reject too the husband or the wife or his parents made any complaint to the police or that the home of the husband's parents suffered any property damage. I consider the husband and wife have fabricated those parts of their claims so as to create a profile upon which to apply for protection. 25 As the Authority did not accept that the husband and wife were threatened in the past by anyone other than relatives of the wife, it did not accept that the threats were related to the wife's past connection to the TNA, LTTE or EPRLF: AR, [28]. 26 The Authority concluded that it was not satisfied that any of the referred applicants faced a real chance of serious harm due to CDN16 and CDS16 "being in a mixed marriage": AR, [29].

[4]

Imputed political opinion 27 The Authority expressly stated that it had had regard to the UNHCR Guidelines and the other country information provided by the referred applicants, specifically referring to these Guidelines in observing that both DFAT and the UNHCR assessed that Tamils who had provided "low level support to the LTTE" may be monitored by Sri Lankan authorities but were at low risk of being detained or prosecuted: AR, [31]-[32]. The Authority considered there was only "a remote or speculative" chance, not a real chance, that "the Sri Lankan authorities, Sinhalese men, Tamil men or thugs" would harm the applicants because CDS16 is Tamil: AR, [33]. 28 The Authority proceeded to consider the claim that CDS16's ethnicity, along with her and her relatives' political affiliations (to the EPRLF, LTTE and TNA and including that her uncle and cousin had gone to Malaysia), would heighten the interests of the Sri Lankan authorities in the referred applicants, but was ultimately not satisfied that they faced a real chance of serious harm by reason of these affiliations, whether considered individually or cumulatively: AR, [33], [42]. 29 In this connection: The Authority accepted that CDS16's father was in the EPRLF and disappeared when she was an infant, but found that there was only a "remote or speculative chance" that the authorities would harm the referred applicants because of this, noting that decades had passed since the father's disappearance and that there was no evidence that the authorities had previously questioned the wife or her family members about her father: AR, [34]. The Authority accepted that CDS16's aunt and uncle had assisted the LTTE and that CDS16 had "collected money and medicine for the LTTE" when she was a young teenager. It also addressed other family members whom CDS16 claimed had LTTE connections. Having done so, the Authority concluded that CDS16 had "only limited and low-level connection to the LTTE personally or through her relatives" and therefore, there was only a "remote or speculative" chance that the referred applicants would be harmed because of CDS16's "limited and low-level connections to the LTTE": AR, [37]-[38]. The Authority found that, "as a teenage school girl", CDS16 worked for the TNA but that as her work was of short duration, part-time and in a junior position, this work did not give rise to adverse interest from the authorities and only minor interest from opponents: AR, [40]. In light of this, and the changed political environment, the Authority held that there was only a "remote or speculative chance" the referred applicants would be harmed because of CDS16's involvement with the TNA. 30 The Authority concluded (AR, [42]): …I am not satisfied any of the applicants face a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion for the individual or cumulative reasons the wife is Tamil, she is from Eastern province, she lived in Northern province, her father was in the EPRLF, she and her family assisted the LTTE, and/or her uncle and cousin have gone to Malaysia, now or in the reasonably foreseeable future if he or she return to Sri Lanka.

[7]

Illegal departure 33 Under this heading the Authority discussed the referred applicants' claims to fear harm because CDN16 and CDS16 had departed Sri Lanka illegally. The Authority noted that "[i]n particular they fear being interrogated and mistreated during any such interrogation, including sexual mistreatment of the wife": AR, [50]. The Authority was not, however, satisfied that "any processes or penalties" that CDN16 and CDS16 may face on return to Sri Lanka because of their illegal departure would amount to serious harm and constitute persecution for the purposes of the Migration Act: AR, [56]. 34 The Authority found that, on their return to Sri Lanka, CDN16 and CDS16 would likely be charged and fined under the Sri Lankan Immigrants and Emigrants Act 1949 (IE Act): AR, [54]. The Authority continued: …In the event that the applicants elected to plead not guilty to the offence under the IAEA, they would either be granted bail on personal surety or a family member. There is no suggestion the husband or the wife was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that they would not face any chance of imprisonment, but it is likely that they will be fined. On the evidence before me, I find the imposition of a fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees such as the husband and wife. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the husband or the wife would face, I find there is not a real risk that the husband or wife would face such imprisonment. 35 The Authority did note, however, that the country information indicated that, although custodial sentences were not levelled against ordinary returnees, a person charged under the IE Act might be detained for several days pending an opportunity to appear before a magistrate. The Authority stated (AR, [55]): … I have considered whether a detention of several days would constitute serious harm. I accept although the son did not depart Sri Lanka illegally, he would be subject to questioning and detention while in the care of his parents. While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicants may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act.

[11]

Complementary protection criteria 42 The Authority concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka from Australia, there was a real risk that the referred applicants would suffer significant harm, and that they did not therefore meet the criterion in s 36(2)(aa) of the Migration Act for complementary protection. 43 With respect to the illegal departure of CDN16 and CDS16, the Authority concluded (AR, [67]-[68]): I found above that any questioning process, brief detention, fine or penalty the applicants would face on return to Sri Lanka due to the husband and wife's illegal departure would not be persecution. I found too the provisions and penalties of the IAEA are laws of general application that are not discriminatory in their terms or applied in a discriminatory way or selectively enforced. I have had regard to whether any harm the applicants may face arising for his or her committing an offence under the IAEA amounts to significant harm. I am not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act. I accept that the applicants may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate. … I find that the likelihood that the applicants will be detained in prison is remote, but if they are detained, I accept the applicants may experience poor prison conditions… While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which the applicants may be subject do not of themselves constitute significant harm as defined under the Act. 44 Further, the Authority was not satisfied that the imposition of a fine for the late registration of the birth of CDT16 would amount to significant harm as defined in the Migration Act. It added that (AR, [70]): In relation to the balance of the applicants' claims, I found above the applicants singularly or cumulatively do not have a real chance of serious harm on the basis of the husband and the wife being in a mixed marriage, the son being of mixed ethnicity, the wife being a Tamil, her and her family's connections to the LTTE and/or EPRLF, because the husband photographed some boats, because of the data breach, or because they will return to Sri Lanka as failed asylum seekers. For the same reasons, and applying the authority in MIAC v SZQRG [(2013) 210 FCR 505] I am not satisfied the applicants will face a real risk of significant harm if they are removed to Sri Lanka. 45 As the Authority was not satisfied that any of the referred applicants met the definition of refugee or the complementary protection criterion, it concluded that none of them met the family unit criteria in s 36(2)(b)(i) or (c)(i) and thus affirmed the decision of the delegate not to grant them the visas they sought.

[12]

the proceeding in the Federal circuit Court 46 On 4 August 2016, CDN16, CDS16 and CDT16 filed an application for judicial review of the Authority's decision in the Federal Circuit Court. On 21 February 2018, after obtaining legal representation, they filed an amended judicial review application in which they advanced the following grounds of review: 1. The Second Respondent (IAA) erred by failing to consider submissions and claims that the Applicant wife would suffer serious harm, or significant harm, as a Tamil woman. PARTICULARS A. The Applicant wife made a number of claims about why she would be harmed on return to Sri Lanka. One of these claims was that she would be harmed because of her gender. B. This claim formed part of her cumulative claims, but had a unique dimension. C. The claim that she would be targeted as a woman was not addressed by the IAA. D. Further, and specifically, the Applicant wife claimed she would be targeted if she was in detention. E. The findings of the IAA reveal that it was likely the Applicant wife would spend some time in detention by virtue of having left Sri Lanka illegally. F. In these circumstances, the issue of the Applicant's wife's gender claims is brought into sharp relief, and the question of whether she would suffer harm as a woman in custody ought to have been considered in the context. 2. The Second Respondent erred by failing to consider the relevant category of the UNHCR Guidelines about Tamils at risk of harm in Sri Lanka due to sheltering or supporting LTTE personnel or having family links with a person who sheltered or supported LTTE personnel. Further and alternatively, the IAA erred by misapplying the 'real chance' test. PARTICULARS A. The Applicant's advisor submitted specific country information about the applicability of the UNHCR Guidelines to the Applicants' case. B. While the IAA stated that they had regard to the UNHCR information, there was no consciousness or consideration of the category which fit the applicant. That information was not properly considered as required by law, and so the 'review' the IAA was affected by jurisdictional error. C. Further and alternatively, in order to properly apply the 'real chance' test it was necessary to do more than look at what happened in the past. In order to properly consider what would happen in the future, the IAA ought to have regard to the UNHCR Guidelines. 47 CDN16, CDS16 and CDT16 were subsequently represented by counsel in the Federal Circuit Court proceeding. As reflected in the grounds set out above, the focus of their submissions in this proceeding was on the position of CDS16, rather than on CDN16 and his marriage to CDS16. This did not go unnoticed: see, e.g., CDN16 & Ors v Minister for Immigration & Anor [2018] FCCA 1947 (PJR) at [26]. The primary judge also recorded in her reasons that "the applicants do not take issue with the findings of the [Authority] in relation to the husband or the child or in relation to the claims made by the applicant wife in relation to her alleged fears arising from the fact that she is in a mixed marriage or her alleged links to the LTTE": PJR at [25]. 48 The Federal Circuit Court dismissed the application for judicial review on 20 July 2018. The primary judge rejected the first review ground, primarily because she was not satisfied that the claim that CDS16 feared persecution because she was a woman "could be said to squarely arise from the material" before the Authority: PJR, [46]. Her Honour found that "[t]here is nothing in the material before the [Authority] which could be said to give rise [to] the necessary causation between the applicant's wife's gender and the requisite fear of persecution required": PJR, [46]. Responding at PJR [50] to references in the Authority's reasons to gender-based claims respecting CDS16, her Honour said: To say that one fears being subjected to sexual abuse, if imprisoned, is not necessarily the same as saying that one fears persecution because of their gender. The sexual assault is the form of the feared persecution and that is not the same as saying that the person's gender is the ground on which the fear of persecution is based. The claim before the [Authority] was that the applicant wife feared persecution because of her actual or imputed political associations, because of her mixed marriage and, if forced to return, because she would be returning as a failed asylum seeker and as a result of having left the country illegally. The form of persecution that she feared if she was to be returned to which she specifically referred was torture, including of a sexual nature. 49 The primary judge held that the Authority had considered the claim that CDS16 advanced to it to the effect that she feared persecution because of her actual or imputed political associations, her mixed marriage and/or, if forced to return, as a failed asylum seeker and a person who had left Sri Lanka illegally. The primary judge held that the Authority had considered those claims and had concluded that they had no merit. Those claims did not include a claim that she feared persecution because of her gender: PJR, [51]. Her Honour observed that, in the Authority's review, CDS16's stated concerns about sexual violence were alleged as "the consequence of the alleged persecution, not as the basis for it". 50 Also in the context of considering the first ground, the primary judge observed that CDS16 had been represented throughout the Authority's review "and made numerous submissions both in writing and at interview". Her Honour added that although this was "not determinative, it is a significant factor in determining in this case whether a claim now said to arise is clearly identifiable from the material" before the Authority: PJR, [52]. 51 The primary judge also rejected the second ground advanced by the applicants. With respect to the second ground, the primary judge held that it was evident from the Authority's reasons that it considered the specifics of CDS16's individual case and had concluded that her links to the LTTE were not such as to bring her to the attention of the authorities on her return. Noting that the Authority itself adverted to the UNHCR Guidelines, her Honour held that the Authority's conclusion about the significance of CDS16's links to the LTTE was consistent with the UNHCR Guidelines, and that there was no reason to go behind the Authority's statement that it had considered those Guidelines in this case: PJR, [64]. 52 Lastly, the primary judge rejected the applicants' contention that the Authority failed to apply the 'real chance' test. Her Honour held that a fair reading of the Authority's reasons showed that "it undertook the necessary forward looking exercise to determine whether the applicant wife faced a real chance of harm if returned to Sri Lanka": PJR, [66].

[13]

the proceeding in the federal court 53 On 6 August 2018, a notice of appeal from the judgment of the Federal Circuit Court was filed in this Court in the names of CDN16, CDS16 and CDT16. This notice of appeal advanced essentially the same grounds on appeal as advanced on judicial review before the primary judge. The stated grounds were: 1. The Federal Circuit Court erred in not finding that the Second Respondent ('IAA') erred by failing to consider submissions and claims that the Applicant Wife would suffer serious harm or significant harm as a Tamil woman. PARTICULARS (A) The Applicant wife made a number of claims about why she would be harmed on return to Sri Lanka. One of these claims was that she would be harmed because of her gender. (B) This claim formed part of her cumulative claims, but had a unique dimension. (C) The claim that she would be targeted as a woman was not addressed by the IAA. (D) Further and specifically, the Applicant wife claimed she would be targeted if she was in detention. (E) The findings of the IAA reveal that it was likely the Applicant wife would spend some time in detention by virtue of having left Sri Lanka illegally. (F) In these circumstances, the issue of the Applicant's wife's gender claims is brought into sharp relief, and the question of whether she would suffer harm as a woman in custody ought to have been considered in the context. 2. The Federal Circuit Court erred in not finding that the Second Respondent erred by failing to consider the relevant category of the UNHCR Guidelines about Tamils at risk of harm in Sri Lanka due to sheltering or supporting LTTE personnel or having family links with a person who sheltered or supported LTTE personnel. Further and alternatively, the IAA erred by misapplying the 'real chance' test. PARTICULARS (A) The Applicant's advisor submitted specific country information about the applicability of the UNHCR Guidelines to the Applicants' case. (B) While the IAA stated that they had regard to the UNHCR information, there was no consciousness or consideration of the category which fit the applicant. That information was not properly considered as required by law, and so the 'review' [by] the IAA was affected by jurisdictional error. (c) Further and alternatively, in order to properly apply the 'real chance' test it was necessary to do more than look at what happened in the past. In order to properly consider what would happen in the future, the IAA ought to have regard to the UNHCR Guidelines. 54 On 13 September 2018, CDN16 filed a notice of address for service, which indicated that the notice was filed only on his behalf and that he had no legal representation. On 17 December 2018, a notice of address for service was filed on behalf of CDS16 and CDT16, which stated that it had been prepared by Erskine Rodan & Associates, lawyers. On the very same day, however, Erskine Rodan filed a notice of discontinuance of the appeal on behalf of CDS16 and CDT16. This notice relevantly read: CDS16, the Second-named Applicant and CDT16, the Third-named Applicant discontinue the appeal. CDS16 and CDT16 consent to the discontinuance. 55 The Minister filed submissions addressing the grounds outlined in CDN16's notice of appeal on 22 January 2019. On 23 January 2019, CDN16 filed a document headed, "Amended Notice of Appeal", without the Court's leave, together with submissions. These submissions were at best out of time, since, by orders made on 8 November 2018, CDN16 had been required to file submissions in support of his appeal on or before 15 January 2019. 56 By his "Amended Notice of Appeal" CDN16 sought to raise the following additional grounds, which were numbered as indicated below: 2. The IAA failed to consider the Applicant husband's individual claims made in his Application. (A) The Applicant's husband made a number of claims about why he would be harmed on return to Sri Lanka. One of these claims was that he would be harmed because of entering a mixed marriage with a woman associated with the LTTE. (B) The IAA failed to consider the facts applicable to the husband individually to assess eligibility on its own but considered it in line with the wife's individual claims. 3. The IAA ignored/failed to consider Section 424A(1) of the Migration Act 1958. PARTICULARS (A) The IAA made an adverse decision against the claims made by the Applicant Husband affirming the decision made by the DIBP without giving any notice under section 424A(1) as required by legislation to address 'credibility'. (B) The IAA rejected the husband's claims in relation to failed asylum seeker taking into account the external report of DFAT than the legislation. By failing to apply the legislation the IAA made a jurisdictional error by not considering the significant harm that would give rise to the Complementary Protection Criteria. Neither of these proposed grounds had been raised in the Federal Circuit Court. 57 Orders were made by consent on 25 February 2019, which included that CDN16 have leave to file his amended notice of appeal and his submissions. Orders were also made as to costs and to permit the Minister to file further submissions. 58 CDN16 appeared without legal representation at the hearing of the appeal on 12 March 2019 and explained that he and CDS16 were "formally separated". The Court raised the position of CDT16 with counsel for the Minister, Mr Wood, and queried whether the Authority had given separate consideration to the consequences for CDT16 if his parents were returned to Sri Lanka and imprisoned even if briefly, as contemplated by the Authority in its reasons. A discussion ensued between the Court and Mr Wood about some possible procedural complexities that might arise from the fact a notice of discontinuance had been filed on behalf of CDS16 and CDT16. The matter was adjourned in order that further consideration might be given to CDT16's position, in light of the matters raised in that discussion. 59 A case management was fixed for 26 March 2019. By letter dated 25 March 2019, Erskine Rodan wrote to the Court, stating that the firm had been retained to appear at the case management for CDS16 and CDT16; that CDS16 had obtained an intervention order, by consent, against CDN16; and that CDS16 and CDT16 had requested the Minister to exercise his power under s 48B of the Migration Act to permit them to lodge another protection visa application. At a case management, Mr Rodan, for CDS16 and CDT16, outlined their visa status. Mr Wood, for the Minister, identified some possible difficulties with re-instating CDS16 as a party to the appeal arising from Chen v Monash University [2016] FCAFC 66; 244 FCR 424. He also posited that the position of CDT16 might be different from CDS16, bearing in mind that there had been no litigation representative appointed for CDT16 prior to the notice of discontinuance. Orders were made for the future conduct of the appeal in response to this discussion. 60 With the assistance of pro bono lawyers, CDS16 and CDT16 filed the interlocutory application referred to at [2] above. As indicated, whether CDS16 and CDT16 should be reinstated as appellants and given leave to raise a further new ground was deferred to the hearing of CDN16's appeal, when CDN16, CDS16 and CDT16, and the Minister were given an opportunity to make submissions on all relevant issues. These submissions and the Court's consideration of them are set out below.

[14]

CDN16's submissions in support of his appeal 61 Although CDN16 made no substantive submissions orally at the hearing of his appeal on 14 October 2019, he filed two sets of written submissions prior to the hearing. 62 In written submissions dated 22 January 2019, CDN16 contended that the Authority fell into jurisdictional error and the primary judge erred, because the Authority: failed properly to consider "the element of 'membership of a social group namely family member'" in Article 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951; failed properly to consider "whether the Appellant and his family fall[] within the definition [of] 'complementary protection'; failed properly to consider "[t]he danger of harm that the Appellant would suffer" in determining whether he met the complementary protection criterion in s 36(2(aa) of the Migration Act; and failed to consider his claims separately to his wife. CDN16 repeated the claims that he had made before the Authority that he feared: … that he will be treated differently by his family members for being a Burger ethnicity Sinhalese and marrying a Tamil … [and] fears his wife and child who was born in Australia will face the same consequences if he returns to Sri Lanka. … The Appellant received death threats by phone as well as [] a visit to his workplace satisfying the probability of persecution. The Appellant fled Sri Lanka, risking his life [] in a boat due to that fear of persecution. 63 In subsequent written submissions dated 5 September 2019, CDN16 submitted that the Authority "made a jurisdictional error as they did not consider his claims separately from his wife as to whether he satisfies the criteria to be granted protection or complementary protection". He submitted that: [H]is individual claims made in his Application were not considered. The Appellant continues to claim that the IAA failed to consider the facts applicable to his case individually; to assess eligibility on its own merit. … By not properly considering the Appellant's claims, the IAA failed to assess the significant harm that would give rise to the Complementary Protection Criteria applicable to the Appellant returning to Sri Lanka as a 'failed asylum seeker'. 64 CDN16 further submitted that the Authority failed to comply with its obligations under s 424A of the Migration Act in that the Authority did not provide the appellant with particulars of any information that it considered was a part of the reason it affirmed the delegate's decision in order to ensure that CDN16 understood why the information was relevant and to invite his comments. In this connection, CDN16 cited numerous authorities including VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678; 132 FCR 291 at [33]-[34]. In this context too, CDN16 submitted that: The credibility of the Appellant's evidence, viewed in line with Second Appellant's situation, should have been viewed individually in relation to his own eligibility. 65 CDN16 also filed post-hearing submissions dated 29 November 2019, to the effect that AJZ17 v Minister for Home Affairs [2019] FCA 1485, which was relied on in the case presented for CDS16 and CDT16, also aided his claims. He submitted that this was because the Authority had not properly considered or analysed whether the treatment he feared by reason of the Sri Lankan Prevention of Terrorism Act 1978 would constitute discrimination. 66 I interpolate here that CDN16's submissions are discussed below to the extent that they relate to the grounds advanced or sought to be advanced in his amended notice of appeal and also, with respect to this last mentioned submission, to the extent relevant to his son's proposed ground of appeal. For the most part, however, these submissions were not relevant to those grounds and the issues raised by the appeal.

[19]

[21]

Harm on the basis of gender (notice of appeal ground 1; amended notice of appeal ground 1) 76 In particulars to ground 1 of the amended notice of appeal, it was alleged that CDS16 claimed she would be harmed because of her gender and that this was not addressed by the Authority. 77 The Authority's reasons for decision indicate that there were numerous claims before it concerning the referred applicants, although none were to the effect that CDS16 feared harm because she was a woman. The Authority's reasons indicate that, at the forefront of the referred applicants' claims as it understood them, there was a claim that CDN16 and CDS16 faced a real chance of serious harm due to what was described as their "mixed marriage". As we have seen, the Authority was not satisfied that they faced a real chance of serious harm on this account because the Authority considered that their evidence about the threats due to their relationship was inconsistent in material respects and not supported by country information. 78 As we have seen, before the Authority, CDS16 also claimed to fear harm because she was a Tamil, with associations with the EPRLF (through her deceased father), with the LTTE (through relatives with whom she resided as a young teenager) and with the TNA (with whom she had worked part-time as a school student). As previously noted, the Authority had regard to country information, including from DFAT and the UNHCR, before finding that there was no credible evidence that CDS16 or other family members had been harmed by Sri Lankan authorities because they were Tamils and that the overall situation for Tamils had improved since 2009, concluding that there was only a remote or speculative chance that "the Sri Lankan authorities, Sinhalese men, Tamil men or thugs" would harm the applicants because CDS16 was a Tamil: AR, [33]. 79 With respect to the EPRLF, the Authority found that a couple of decades had passed since CDS16's father had disappeared; that the evidence was that the Sri Lankan authorities "had never questioned" CDS16 or any other member of her family; and that there was only a remote or speculative chance that the Sri Lankan authorities would harm CDS16 on the basis that her father was in the EPRLF: AR, [34]. 80 With respect to the LTTE, as already noted, the Authority accepted that, as a young teenager, CDS16 had collected money and supplies for the LTTE, as claimed, and that the Sri Lankan authorities had recorded her details at one point when the army searched the house where she lived with her relatives. The Authority noted, however, that, since then, CDS16 had never been questioned by the authorities regarding any connection with the LTTE, and did not accept her claim that an uncle and a cousin had fled to Malaysia following adverse treatment in Sri Lanka as credible: AR, [36]-[37]. As we have seen, the Authority found that CDS16 had only a limited and low-level connection to the LTTE; and that there was only a remote prospect that she would be harmed on the basis of this connection. 81 With respect to the TNA, the Authority accepted that, as a teenage school girl, she had worked for the TNA part-time for a relatively short period, and in a junior position, and did not accept that this had attracted any adverse interest from the Sri Lankan authorities at the time: AR, [40]. In light of the country information about the TNA, including that it was an official opposition party, the Authority found that the prospect that CDS16's connection to the TNA would give rise to adverse interest to be remote: AR, [41]. 82 Apart from unsuccessful claims regarding CDN16's detention following his photographing activity and regarding harm to CDT16 because his birth had not been registered with the Sri Lankan authorities, the Authority also addressed the referred applicants' claims to fear harm as failed asylum seekers, as a result of a data breach in Australia, and, in the case of CDN16 and CDS16, on account of departing Sri Lanka illegally. As previously noted, the Authority was not satisfied that they faced a real chance of serious harm if returned on account of being failed asylum seekers, because they did not have a profile that included "substantial links to the LTTE or outstanding warrants", or on account of the data breach. 83 There remained the claim that the referred applicants feared harm because CDN16 and CDS16 had departed Sri Lanka illegally. The Authority noted that "[i]n particular they fear being interrogated and mistreated during any such interrogation, including sexual mistreatment of the wife": AR, [50]. While the Authority accepted that, because CDS16 left Sri Lanka illegally she would be processed by the authorities at the airport, it was satisfied that there would be "no identification concerns, or criminal or security records that would raise the concern of these authorities": AR, [51]. The Authority found that "any questioning and detention the applicants may experience would be brief and would not constitute serious harm": AR, [55]. The Authority concluded that "[c]onsidered singularly or cumulatively, I am … not satisfied that any processes or penalties" that CDN16 and CDS16 may face on return to Sri Lanka because of their illegal departure would amount to serious harm: AR, [56]. 84 Consistently with this, in addressing the complementary protection criterion, the Authority was not satisfied that "any brief detention, questioning, fine or other penalty would amount to significant harm as defined" under the Migration Act. Amongst other things, it found that "the likelihood that the applicants will be detained in prison is remote", although it accepted that if detained in prison they "may experience poor prison conditions" but that these conditions did not constitute significant harm as defined in the Migration Act. 85 The Authority's reasons indicate that none of the referred applicants claimed that CDS16 would be harmed because she was a woman and that, if the claim were made, the Authority did not address it. 86 CDN16 did not make any submissions in this Court identifying where he said the relevant claim was made, although reference to the reasons for judgment of the primary judge indicates how the applicants, then represented by counsel, advanced the same contention before her Honour. According to her Honour's reasons, counsel had submitted that the claim arose from CDS16's 18 August 2015 statutory declaration and from the applicants' 6 January 2016 post-interview submission. 87 The primary judge stated (PJR, [30]-[31], [34]-[37]): [30] The first ground of review is: The Second Respondent (IAA) erred by failing to consider submissions and claims that the Applicant wife would suffer serious harm, or significant harm, as a Tamil woman. [31] This ground relied upon a finding that the applicant wife made a claim that she would be targeted on the basis of her gender and that the IAA failed to consider that claim. … [34] In support of this ground, the applicant refers to the fact that in the written submissions filed on the applicant wife's behalf on 6 January 2016, her representative stated: We submit therefore, that there is a real chance that … (the applicant) (and … (her husband) by association) will face serious harm at the hands of the Sri Lankan authorities if forcibly returned on account of her cumulative adverse profile. Her cumulative adverse profile is: • being a young Tamil woman from the Eastern Province; • whose father was involved in the EPRLF; • who lived in [] from [] 2006 to [] 2010; • who was forcibly involved in assisting the LTTE between 2007 to early 2009; • who worked for the TNA in []; • who fled Sri Lanka illegally given the fear of being harmed because of her mixed race marriage; • who applied for asylum in Australia; • who had a child in Australia that is not registered with the Sri Lankan authorities; • who would be forcibly returned as a failed asylum seeker; and • who lived with a family for over two years that was suspected of providing material assistance to the LTTE and whose uncle and cousin were forced to flee Sri Lankan after experiencing harm and mistreatment by the security forces following the end of the civil war because of their suspected involvement with and support of the LTTE. [35] In addition, the applicant refers to those parts of her material in which she expresses concern about being imprisoned if returned to Sri Lanka on the basis of having left the country illegally and being subjected to violence of a sexual nature. [36] For example, reference is made to the Statutory Declaration filed by the applicant dated 18 August 2015, the relevant extract of which are set out paragraphs 13 to 15 above. [37] The applicant wife's representative also made the following submission in the post interview submission filed on behalf of the applicant wife dated 6 January 2016: We also submit that if our clients are held in remand, detained or imprisoned, apart from the deplorable prison conditions they would encounter, they would, especially (the applicant wife), given her cumulative adverse profile, be targeted by the prison authorities for severe mistreatment, punishment and torture (including of a sexual nature) and that such against her because of her cumulative adverse profile. 88 In her reasons at [13]-[15], the primary judge set out the following parts of CDS16's 18 August 2015 statutory declaration: I am also afraid I will be seriously harmed if forcibly returned because I will be imputed with an anti-government political opinion. I fear this will happen for the combined reason of being returned as a Tamil failed asylum seeker who fled Sri Lanka illegally, because my father had links to EPRLF, because of my fundraising activities for the LTTE in [] under the order of my aunt [] and because of my active involvement with the TNA. All these things combined would give me an adverse political profile and would make the Sri Lanka authorities suspect that I am opposed to them. I fear that I will be violently interrogated by the authorities on return. I fear I will be arbitrarily detained and imprisoned. I fear that because of my imputed adverse political profile, I will be subjected to violence including of a sexual nature by the authorities. I fear that if I am detained, including for departing illegally, I will suffer violence in the prison I am taken to because I am a Tamil woman. Conditions in Sri Lankan prisons are awful and the authorities can harm whoever they want. I believe that I will be harmed intentionally if detained because I am a Tamil woman with an adverse political profile. … I also fear being seriously harmed and persecuted by the Sri Lankan authorities because of my Tamil race, as well as my real and imputed political opinion. I fear that I will be violently interrogated, seriously beaten and tortured. I fear that I will be viewed as being opposed to the Sri Lankan government for the combined reasons of being a Tamil woman from the Eastern Province who has worked actively with the TNA, who applied for asylum overseas after fleeing Sri Lanka illegally, who did fundraising for the LTTE as a teenager and who has family links to people who were involved with the EPRLF and the LTTE. … I fear the authorities will use the excuse of me departing Sri Lanka illegally to detain me for many days or weeks to further interrogate and find out about me. I fear that because of my adverse profile, I will be seriously mistreated physically and sexually by the Sri Lankan authorities during any interrogation while I am detained. … I fear I will be seriously harmed by other inmates and the authorities who will purposefully target me for a combination of all of the reasons stated above. 89 A careful reading of the material to which the applicants' counsel apparently referred her Honour does not disclose any express claim to the effect that CDS16 feared harm just because she was a woman. It may be accepted, of course, that the Authority "must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body": see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [79]. In the subsequent case of AYY17 at [18], a Full Court accepted that: (a) a finding as to whether a claim clearly emerges is not to be made lightly; (b) the fact that a claim might be said to arise from the materials is not enough; (c) to emerge clearly from the materials, the claim must be based on "established facts"; (d) while there is no precise standard for determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials, a court will be more willing to draw the line in favour of an unrepresented party; and (e) in determining whether a claim clearly emerges from materials, consideration must be given to the way an applicant's claims are presented over time. 90 Having regard to the authorities, it cannot be said that the material before the Authority to which reference has been made squarely raised a claim that CDS16 feared harm just because she was a woman or that such a claim clearly emerged from that material. As the primary judge said, although it had been said in submissions that one factor contributing to CDS16's adverse profile was that she was "a young Tamil woman from the Eastern Province", this was not tantamount to a claim that she feared serious harm on account of the fact that she was a woman: compare PJR at [44]. As her Honour said, read in context, the reference to her being a woman was part of a description of her ethnicity, place of origin, age and gender that, with other factors, gave rise to her fear of serious harm, not a claim to fear serious harm on account of her gender alone. 91 The other references to gender in the material before the Authority related to the specific nature of the harm (sexual abuse) that she may suffer if she were tortured, detained and imprisoned on account of her claimed "adverse political profile" or on account of having departed Sri Lanka illegally. The Authority referred to CDS16's stated concerns that she would be mistreated, including sexually mistreated, on account of her adverse political profile but had no need to explore this particular concern further because the Authority found that CDS16 did not have a political profile of the kind alleged and that there was no real chance that she would suffer serious harm on such a basis. 92 The Authority also had no need to explore the stated concern that CDS16 would suffer sexual abuse if detained or imprisoned because she had departed Sri Lanka illegally. Having acknowledged the claim and the related concern as the Authority did, it was sufficient for the Authority to address the claim through its finding that "any questioning and detention the applicants may experience would be brief and would not constitute serious harm" (AR, [55]) and that it was "not satisfied that any processes or penalties that the husband or the wife may face as person[s] who left Sri Lanka illegally and returning to Sri Lanka would amount to serious harm" (AR, [56]). As the Full Court said in WAEE at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Having regard to these findings, it was unnecessary for the Authority to address the issue of sexual abuse specifically because that issue was subsumed in its findings of greater generality. 93 Accordingly, I would reject ground 1.

[22]

Failure to consider UNHCR Guidelines (notice of appeal ground 2; amended notice of appeal ground 4) 94 The UNHCR Guidelines were in evidence in the Federal Circuit Court, and material parts are set out in the primary judge's reasons for judgment. These Guidelines stated that, at the time of publication, the UNHCR considered that certain individuals may be, and in some cases were likely to be in need of international refugee protection, depending on the individual circumstances of their case. The Guidelines indicated that on this account certain specified profiles, including persons suspected of certain links with the LTTE, attracted a need for particularly careful consideration. CDN16's contention as set out in ground 4 of his amended notice of appeal (which was ground 2 in his notice of appeal) was that the Authority erred in failing to consider what was said in the UNHCR Guidelines about Tamils at risk of harm in Sri Lanka due to sheltering or supporting LTTE personnel or having family links with a person who sheltered or supported LTTE personnel. In the same ground, CDN16 also contended that the Authority had misapplied the "real chance" test. For the following reasons, this ground must fail. 95 In the 6 January 2016 post-interview submissions, the Authority's attention was drawn to this aspect of the UNHCR Guidelines, and it was submitted that, by reason of being a Tamil with a relevant association with the LTTE, CDS16 fell within a UNHCR-recognised category of persons who were at risk of harm if returned to Sri Lanka. The Authority clearly addressed this claim. It specifically referred to the relevant part of the UNHCR Guidelines in its reasons: see AR, [31]-[32]. It clearly considered the Guidelines, having regard to the particular circumstances of the case, including, relevantly, the particular circumstances of CDS16's case, noting the specific nature of her association with the LTTE. The Authority had regard to relevant country information, including the UNHCR Guidelines and a more recent DFAT report. It also had regard to CDS16's evidence that she had never been questioned about her connection with the LTTE. It found that there was "no credible evidence … that the wife nor any member of her family, were harmed by the Sri Lankan authorities for [the] reason that she or they are Tamil". 96 The Authority rejected CDS16's claim concerning an uncle and cousin who, so she claimed, had left for Malaysia in 2011 and 2013, as they had been harmed by the Sri Lankan army on account of their LTTE connections. This was because the Authority found that the claim was not credible, explaining that "the evidence before me is aunt 2 and the wife's other cousins remain in Sri Lanka and have not been harmed by the Sri Lankan authorities": AR, [37]. Having regard to its findings about CDS16 and her family members, it was clearly open to the Authority to conclude that CDS16 had "only a limited and low-level connection to the LTTE personally or through her relatives" and did not face a real chance of harm from the Sri Lankan authorities or anyone else on this account: AR, [38]. The Authority was not required to make any other specific finding, including about the UNHCR Guidelines. For these reasons, this ground also fails. 97 Further, it must be accepted that the Authority conducted the requisite future focussed assessment in applying the "real chance test". If it were necessary to do so, I would accept that, as the Minister submitted, Ponnudurai is distinguishable from the present case because in this case the Authority did not treat the fact that CDS16 had not been harmed in the past as dispositive; rather it considered her situation in light of all the relevant circumstances affecting her, including both past events and the present situation in Sri Lanka as described in the country information before it.

[24]

Failure to consider/comply with s 424A, particularly by failing to give "notice under section 424A(1) … to address 'credibility'"; and, regarding the prospective status of CDN16 as a failed asylum seeker, error in "taking into account the external report of DFAT [rather] than the legislation" and by not considering the significant harm that would give rise to the Complementary Protection Criteria" (amended notice of appeal ground 3) 98 It may be accepted that each of these two grounds were new in the sense that neither were raised before the primary judge. It may also be accepted that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX at [48], "[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated". The Full Court added that, "[w]here, however, there is no adequate explanation for the failure to take the point, and it seems of doubtful merit, leave should generally be refused". For the reasons explained hereafter, this case is of the latter kind and, accordingly, leave should not be granted to raise the proposed new grounds. 99 On the one hand, the Minister did not submit that he would suffer any particular prejudice if leave were given to permit these grounds to be agitated in this Court, whereas it may be accepted that the consequences for CDN16 are significant if an adverse decision is made on the appeal. On the other hand, CDN16, with CDS16 and CDT16, were represented by counsel at the hearing before the primary judge and there has been no explanation for the failure to take either point previously. Ultimately, the most significant consideration in this case is that, for the reasons I am about to explain, neither ground has sufficient merit to justify the grant of leave. 100 By the first of CDN16's new grounds, CDN16 contended that the Authority failed to consider his individual claims, including that "he would be harmed because of entering a mixed marriage with a woman associated with the LTTE" and that his claims "were considered in line with [CDS16's] individual claims". The difficulty with this proposition is that, at the time of the Authority's review, CDN16 and CDS16 both advanced claims designed to satisfy the primary criteria for protection; and, in particular, both of them claimed to fear harm in consequence of their "mixed marriage". 101 CDN16's claim that he would be harmed because of entering what he described as a "mixed marriage" with a Tamil woman associated with the LTTE was dependent on CDS16's claim that, so far as the Sri Lankan authorities were concerned, her association with the LTTE would give her an adverse political profile that would create a real chance of harm. In this context, CDN16's individual claim could not be assessed independently of CDS16's claim. The same can be said of the claim made by both CDN16 and CDS16 to fear harm because of CDS16's past connection with the TNA, and her deceased father's connection to the EPRLF. For the reasons already explained at [79]-[81] above, CDS16 failed to satisfy the Authority that her associations with any of these political entities would give rise to a real chance of harm, with the consequence that because this part of CDN16's claims was dependent on CDS16, this part of his claims failed. 102 Likewise, both CDN16 and CDS16 claimed that, if they returned to Sri Lanka, they would be harmed by Sinhalese and Tamil men and/or the Sri Lankan authorities because of their mixed marriage. The relevant consequences of this marriage were comprehensively considered by the Authority: see AR, [14]-[29]. The claim was rejected by the Authority in large part because of what the Authority described as the "multiple and material inconsistencies in the evidence of [CDN16] and of [CDS16] and between them both", and because of the country information: see AR, [19], [21], [23], [25]-[27]. The Authority properly considered the evidence of both CDN16 and CDS16, individually and together, in assessing the claim that each made, to fear harm on account of their marriage. Having done so, it was evidently open to the Authority to reject the referred applicants' claim that they would suffer harm on account of this marriage. 103 Further, there is no basis for the proposition that the Authority failed to assess the complementary protection criteria applicable to him as a "failed asylum seeker", and such a submission must fail. At AR [67]-[68], the Authority specifically addressed whether "any questioning process, brief detention, fine or penalty the applicants would face on return to Sri Lanka" due to CDN16's and CDS16's illegal departure would amount to persecution. It was not satisfied that "individually or cumulatively" any of the processes or penalties the referred applicants may encounter would satisfy the complementary protection criteria. 104 Finally, I note that, where appropriate, it is apparent that the Authority did in fact consider any claim that related to only one of the referred applicants on an individual basis. For example, the Authority was careful to acknowledge, and assess individually, CDN16's claim in his entry interview that in 2006 he was detained for three days because he photographed ships in a harbour in the Eastern Province. 105 The contention sought to be maintained in proposed ground 2 of the amended notice of appeal is plainly untenable. The ground has no merit. 106 In the second of CDN16's proposed new grounds, CDN16 sought to advance the proposition that the Authority had failed to consider and/or comply with s 424A of the Migration Act, especially with respect to credibility concerns. The particulars to this ground also appeared to allege that the Authority had impermissibly relied on a DFAT report and had not properly applied the complementary protection criteria in respect of CDN16. 107 Section 424A of the Migration Act requires the Administrative Appeals Tribunal, in certain circumstances, to give an applicant clear particulars of any information that would be the reason, or part of the reason, for affirming a decision under review and to invite the applicant to comment and respond to that information. The obvious difficulty with CDN16's argument is that the decision under review in his case was not made by the Tribunal but by the Authority. Section 424A does not apply to the Authority, and did not impose any obligation on it at all. 108 Reviews by the Authority are governed by Division 3 of Pt 7AA, which "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted" by the Authority: see s 473DA. Section 473DB sets out the "primary requirement" that the Authority is to review a decision referred to it by considering the review material provided to it by the Secretary under s 473CB without accepting or requesting new information and without interviewing the referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22]. The Authority considered the DFAT report as part of the material provided to it under s 473CB, and in so doing was entitled to give it the weight it did: see, for example, SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 at [27]. It cannot be said that such weight was unreasonable. Subdivision C of Div 3 provides for exceptions to the general rule that the Authority is not to accept or request new information; and to fall within these exceptions certain criteria must be satisfied. None of these exceptions were relevant in this case. 109 To the extent CDN16 submitted that the Authority failed to apply the complementary protection criteria applicable to him as a "failed asylum seeker", such a submission must fail for the reasons set out at [103] above. 110 The contention sought to be maintained in proposed ground 3 of the amended notice of appeal is untenable, and this ground has no merit. Leave to raise grounds 2 and 3 of the amended notice of appeal will be refused, as already indicated.

[26]

The submissions made on behalf of CDS16 and CDT16 in support of the proposed appeal ground 114 The written submissions for CDS16 and CDT16 identified a number of passages in the materials before the Authority in support of the proposition that the Authority's decision was affected by jurisdictional error because the Authority had failed to consider the claim arising out of those materials that CDT16 would be at risk of harm if CDN16 and CDS16 were incarcerated on their return to Sri Lanka as a consequence of having departed Sri Lanka illegally. I refer to these and other passages below. 115 Referring to Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27] and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [35]-[36], [38], it was further submitted that jurisdictional error arose in this case because the Authority did not give proper, genuine or realistic consideration to "the issue that the child applicant would be at risk of harm if the child's parents were incarcerated upon return to Sri Lanka in the context of the parents having departed illegally". Citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24], it was also submitted that the Authority failed to respond to a clearly articulated argument. It was submitted that the Authority's reasons for decision disclosed that it considered various claims relating to CDT16 but did not consider the claim that he "may be left without a mother or father while the parents are detained"; and that while the Authority considered that CDN16 and CDS16 may be remanded in custody for a short period at the airport or at a prison, the Authority failed to consider "whether the imprisonment or custody of a child, or the separation of the child from his parents while they were detained, amounted to significant harm". It was further submitted that, having accepted that "the applicants may be remanded in custody, it was necessary to consider the risk of harm to the child in that scenario" and the Authority's failure to do so amounted to jurisdictional error. 116 In submissions at the hearing, counsel for CDS16 and CDT16 submitted that in considering the referred applicants' claims the Authority was required to differentiate between the impact of detention on CDT16, as compared with his parents, which it failed to do, citing AJZ17 at [44] and CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; 272 FCR 131 at [23]. In this context, it was noted that a law of general application on its face can still be discriminatory in its effect; and that it should be enough to show that because one group is disproportionately affected by conduct that is done deliberately (here imprisoning conduct) the conduct has a discriminatory effect on that group, even if it is a law of general application. 117 In a written reply to the Minister's post-hearing written submissions, CDS16 and CDT16 reiterated that the Court should follow AJZ17, referring also to VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 at [20], Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; 204 CLR 1 at [29] and SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; 229 FCR 497 at [72]. In this connection too, attention was drawn to the fact that the legislation chose to insert the words "intentionally inflicted" into the definition of "cruel or inhuman treatment or punishment" in s 5 for the purposes of s 36(2)(aa) "but did not insert any requirement for intention into the definition of [a well-founded fear of] persecution in s 5H or 5J of the Act".

[27]

The submissions made by the Minister in opposition to the proposed appeal ground 118 In written submissions dated 2 October 2019, the Minister submitted that no-one had "ever clearly articulated a claim that CDT16 would suffer serious or significant harm on any return to Sri Lanka, or the basis for any such claim", despite having been professionally represented throughout the process by a migration agent (and solicitor). The Minister further submitted that the latter fact was a salient one, citing AYY17 at [18]. Referring to the material before the Authority, the Minister submitted that, to the contrary, it had been consistently said that CDT16 did not have his own claims for protection; rather, it was his parents who had these claims. Referring to a frequently-cited statement made by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1], the Minster submitted that this circumstance was important in assessing the proposed ground of appeal. 119 The Minister further submitted that no Convention-nexus for CDS16's briefly stated fear that CDT16 would suffer harm in the absence for any period of his parents in Sri Lanka had been identified by the applicants, and none "clearly emerges" from the material before the Authority. 120 The Minister submitted that he apprehended that the proposed ground of appeal was directed to whether CDT16 might satisfy the "complementary protection" criterion in s 36(2)(aa) of the Migration Act in light of the possible detention of his parents as a consequence of their illegal departure from Sri Lanka. Referring to AR, [54] and [68], the Minister submitted that the applicants had never claimed that CDT16 would be separated from his parents for any period of detention that they might face; and that "the Authority, contemplating the possibility that the parents might be 'detained for several days pending an opportunity to appear before a magistrate', considered that, in this event, CDT16 would likewise be detained 'in the care of his parents'". The Minister submitted that the Authority had considered and rejected the possibility of suffering significant harm during any such period of detention at AR, [67]-[68]. The Minister further submitted that the Authority had also addressed the possibility that CDT16 might suffer relevant harm at AR, [60]. 121 In conclusion, the Minister submitted that, even if CDT16 made a claim to fear serious or significant harm of the kind suggested, such a claim was dealt with because: 1. The Authority found that [] CDN16, CDS16 and CDT16 might be detained on remand (together) for a short period, but did not consider that this would involve persecution, nor would it be the result of discriminatory treatment. 2. The Authority found that there was only a "remote" (i.e., not real) chance that such detention would be in prison, where conditions are bad. 3. Furthermore, and in any event, the Authority was not satisfied that there would be a specific "intention" to cause harm to CDT16 of a kind encompassed by the definition of "significant harm" in the Act (and no such evidence has been identified in these proceedings). 122 With respect to the lack of specific "intention", the Minister referred to DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [103] and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362. 123 In post-hearing submissions dated 25 October 2019 and filed pursuant to leave, the Minister addressed CDT16's contention that the Authority erred by failing to consider the possible discriminatory impact of the operation of Sri Lankan laws on CDT16, as relevant to the application of the "refugee" criterion in s 36(2)(a) of the Migration Act. The Minister submitted that AJZ17 was distinguishable as there was no clear claim, supported by evidence, that CDT16 faced a real chance of suffering persecution by reason of his membership of a particular social group. In AJZ17, so the Minister submitted, it was claimed that the appellant would be denied medical treatment for his schizophrenia and that his unstable, erratic and delusional behaviour might lead him to be subject to abuse and mistreatment by other prisoners. By contrast, in this case, the Minister submitted that there was no information before the Authority to indicate that the relevant law would be applied in a discriminatory manner to target CDT16 and, in the absence of such evidence, it should not be inferred that the Authority failed to discharge its statutory function. The Minister also drew attention to the observations of the Full Court in SZTEQ to the effect that "systematic" in s 91R(1)(c) of the Migration Act as it then was (see now s 5J(4)(c)) was used "in the same way that 'discriminatory' is used, to direct the decision-maker's attention to the motivation of the alleged persecutor".

[28]

consideration of the case sought to be made by CDS16 and CDT16 124 It may readily be accepted that the Authority must engage actively with the claims and issues arising on a review; and that the authorities have expressed this obligation in various ways, including that such claims and issues must be given "a proper, genuine or realistic consideration": see BZD17 at [35]-[36], [38] and the authorities there cited. A failure to engage as required with the claims and issues may give rise to jurisdictional error. Assuming for a moment that one or other or both of CDS16 and CDT16 are reinstated as a party to the appeal and that the Court grants leave to raise the new ground as they propose, the first issue is whether the referred applicants squarely raised or clearly identified the basis for the claim that they feared that CDT16 would suffer serious or significant harm if, on being returned to Sri Lanka, his parents were detained in prison as a consequence of them departing Sri Lanka illegally. 125 It can be accepted at the outset that the Authority did not expressly address such a claim. As previously noted, the Authority specifically addressed CDT16's situation in its reasons at [57]-[60], under the heading "Harm to the son". It expressly rejected (at [59]) the claim that the failure to register CDT16's birth with Sri Lankan authorities "creates any independent or cumulative real chance" that the referred applicants "will face serious harm" if returned to Sri Lanka. Under this heading too, it also expressly rejected CDS16's claim that "the son will be left with no one to care for him", in substance because the Authority was not satisfied that there was a real chance of harm to CDN16 and CDS16 and, in consequence, it was not satisfied that there was a real chance that "the son will face any harm arising from being deprived of having one or more of [his parents] to care for him". The Authority also rejected the referred applicants' claim that any of them, including CDT16, faced a real chance of serious harm due to CDT16 "being of mixed ethnicity, now or in the reasonably foreseeable future if they return to Sri Lanka". 126 In this circumstance, it cannot be said that the Authority failed to take account of CDT16's status as the child of CDN16 and CDS16. The failure to refer to a claim that the referred applicant feared that CDT16 would suffer serious or significant harm if, on return to Sri Lanka, CDN16 and CDS16 were detained in prison as a consequence of them departing Sri Lanka illegally may indicate a relevant failure on its part, including that it failed to recognise that such a claim was made. Alternatively, it may indicate that no such claim or issue arose on the material before it. 127 As noted at [114] above, CDS16 and CDT16 relied (or apparently relied) on a number of passages in the materials before the Authority to support the proposition that the claim or issue had been raised or identified at the time of the review. It was submitted that a claim was made or emerged from the following documents: (1) in his 18 August 2015 statutory declaration, CDN16 said "I fear for the safety of my wife and son if we are forcibly returned"; (2) in her 18 August 2015 statutory declaration, CDS16 said "I fear I will be arbitrarily detained and imprisoned"; "I fear that if I am detained, including for departing illegally, I will suffer violence in the prison I am taken to…"; "I fear that because of my adverse profile, I will be seriously mistreated physically and sexually by the Sri Lankan authorities during my interrogation while I am detained"; "I fear that I will not be released and will [be] put into a prison by the authorities"; and "I fear for the safety of my son who may be left without a mother or father and no one to care for him"; (3) in the 6 January 2016 post-interview submissions the migration agent submitted that "there is a real chance that CDS16 … will face serious harm at the hands of the Sri Lankan authorities if forcibly returned on account of her cumulative adverse profile"; that "given her cumulative adverse profile, [she] would be subjected to interrogation, likely violent, on forced return to Sri Lanka either when being held in remand or shortly after her return to her home area where she will likely be subjected to periods of arbitrary or pre-trial detention"; (4) the delegate recorded that CDS16 had submitted that "if returned and she is given an adverse political profile the Sri Lankan authorities may subject her to imprisonment and violence of a sexual nature …" and that she "fears for her son who may be left without a mother or a father and no one to care for him"; and (5) the delegate further recorded a finding that "[b]oth applicants may be subjected to questioning and face fines for departing the country illegally, but this does not mean that they will be subjected to significant harm as a result". 128 Having regard to these passages, it must be accepted that there was no express claim in the materials before the Authority to the effect that any of the referred applicants feared that CDT16 would suffer serious or significant harm if, on return to Sri Lanka, his parents were detained in prison as a consequence of them departing Sri Lanka illegally. As previously noted, however, this is not the end of the matter, because the Authority is also bound to consider an unarticulated claim that is raised clearly on the materials before it: see BBS16 at [79] and AYY17 at [18], discussed at [89] above. In order to determine if the Authority failed to respond to an unarticulated claim of this kind it is necessary, as counsel for CDS16 and CDT16 recognised, to assess the material before the delegate and the decision-maker on review. 129 In assessing whether the claim in question is clearly raised on this material, the principles mentioned in this connection in AYY17 at [18] must be borne in mind, including that it is not enough that a claim might be said to arise from the material. Also relevant to this assessment in this case is the fact that the referred applicants were professionally represented by their migration agent through-out the process, both before the delegate and the Authority, and in consequence it is not appropriate to adopt the beneficial approach pursued where applicants have not received such professional assistance: compare AYY17 at [18]. 130 As I have said, there was no express claim made on CDT16's behalf that it was feared that he would be harmed (or he was at significant risk of harm) if, on return to Sri Lanka, his parents were detained in prison as a consequence of them departing Sri Lanka illegally. More than this, the application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa, which was made on behalf of CDT16, specifically stated that CDT16 was not making his own claims for protection. 131 The materials before the delegate and the Authority made it clear that CDN16 and CDS16 both claimed to fear arbitrary detention and imprisonment and, in the case of CDS16, violent assault, including of a sexual kind, in the course of her detention and imprisonment. So far as CDT16 was concerned, however, nothing they said clearly raised any claim of the kind in question. At best, CDN16 stated in a very general way that he feared for the safety of his son, while CDS16 stated, with only slightly more specificity, that she feared for her son "who may be left without a mother or a father and no one to care for him". 132 The latter statement of CDS16 must be understood in the context in which it was made. That is, in the context of her own stated fear that, in consequence of her illegal departure, she would be detained "for many days or weeks" and that, on account of her adverse profile, she would be seriously mistreated during interrogation, imprisoned and mistreated in her imprisonment. It was in the context of her own apprehension of harm that CDS16 said that: There is no safety for me anywhere if I am forced to return to Sri Lanka. I fear for my safety and life. I fear for the safety of my son who may be left without a mother or a father and with no-one to care for him. It does not seem to me that it can fairly be said that, read in context, this brief statement clearly raised the claim in question. Further, as we have seen, the Authority found that her stated apprehension of harm was not well-founded. 133 What is more, CDS16's brief statement about her fear for CDT16's safety (like CDN16's similarly brief statement about his fear for her and CDT16's safety) were not elaborated, and the referred applicants, professionally advised and represented, continued to proceed on the basis that only CDN16 and CDS16 had claims for protection. Consistently with this, the delegate noted in the decision record that CDT16 was a member of their family unit "without claims", an understanding that the applicants, professionally represented in the review process, did not seek to correct before the Authority. The Authority evidently had no reason to depart from the delegate's understanding about CDT16's situation. 134 At most it can be said in this case that on the material before the Authority a claim or an issue about the risk of harm to CDT16 might have arisen by implication from his parents' claimed fear that they would be arbitrarily detained and imprisoned if returned to Sri Lanka on the basis that they had departed the country in contravention of the IE Act and the obvious fact that this would have consequences for their child, who would be returning with them. It cannot, however, be said that the claim in question was clearly or squarely raised by the material before the decision-maker or the facts as it found them. On judicial review, and on appeal from a decision on judicial review, a decision of the Authority, like a decision of the Administrative Appeals Tribunal, must be assessed having regard to the application, submissions and representations, and other material advanced by a referred applicant, and not on a different basis that may appear tenable at a later date: compare S395 at [1]. 135 It may be that the Authority recognised that there was a possible issue about the risk of harm to CDT16 if his parents were detained in prison on their return to Sri Lanka because they had left illegally, since it addressed this possibility in its reasons, at AR, [60] and [67]-[68]. Its findings would have denied CDT16 the possibility of a successful claim had such a claim been made. 136 In response to CDS16's statement that she feared CDT16 would have no-one to care for him if his parents were imprisoned, presumably for contravention of the IE Act, the Authority stated (AR, [60]): In her TPV statement, the mother further claimed she fear[ed] that if she and the husband are harmed, that the son will be left with no one to care for him. For the reasons set out above in relation to the Refugee definition above and in relation to complementary protection below, I am not satisfied there is a real chance of harm to the husband and the wife. It follows therefore I am not satisfied there is a real chance the son will [] face any harm arising from being deprived of having one or more of the husband and wife care for him. 137 I interpolate here that there was, as the Minister noted, no Convention-nexus identified in the materials for any stated fear that CDT16 would suffer harm on account of his parents' detention or imprisonment in Sri Lanka, that might meet the criterion in s 36(2)(a) of the Migration Act. Nor was such a nexus identified in argument at the hearing. Rather, the focus at the hearing was on the criterion in s 36(2)(aa), having regard to the possible detention of CDT16's parents as a consequence of the illegal departure from Sri Lanka. 138 The difficulty with any attempt by CDT16 to rely on s 36(2)(aa) was that the referred applicants did not at any point claim that CDT16 would be separated from them for any period of detention that they might face in consequence of their illegal departure, and the Authority found that CDT16 would not be separated from parental care during at most their several days' detention. At AR, [54]-[55], the Authority found that there was no real risk that CDT16's parents would face a custodial sentence for their breaches of the IE Act and, at AR [67]-[68], it addressed CDT16's situation if his parents were detained for several days on their return until an opportunity arose for them to appear before a magistrate. The Authority found that, like them, CDT16 would be subject to questioning and detention, but that he would be in their care. Having turned its mind to this prospect, the Authority said it did not consider any questioning and detention of any of the applicants would constitute serious harm as defined in the Migration Act. That is, the Authority rejected the possibility that the applicants might suffer significant harm during their several days' detention. It may be inferred at this point that "the applicants" included CDT16, as this statement immediately followed the Authority's consideration of his situation on the family's return to Sri Lanka. 139 As already noted, counsel for CDS16 and CDT16 submitted that the Authority's consideration of the issues relating to CDT16's situation was not sufficiently "proper, genuine or realistic" for the purposes of its statutory task; and, in particular, the Authority was required to differentiate between the impacts of detention on CDT16 as compared with his parents. Counsel submitted that AJZ17 at [44] and CAR15 at [23] showed that it was not sufficient for the Authority to make a general finding that the detention faced by the family would not constitute significant harm. Neither these two cases nor the earlier cases to which they referred supported this argument. 140 The relevant issue in AJZ17 was whether the Administrative Appeals Tribunal had failed to consider if Kenyan criminal laws would be implemented or enforced in a discriminatory way with respect to people with a mental illness: AJZ17 at [46]. Referring to submissions and statements before the Tribunal, Moshinsky J held that the claim was squarely raised: AJZ17 at [39]. 141 After referring to the authorities, Moshinsky J accepted that: … in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258. It may be accepted that his Honour's analysis in this paragraph was consistent with the authorities to which he referred, and to which counsel for CDS16 and CDT16 also referred at the hearing: see, for example, Ibrahim at [24]-[33] (Gaudron J), BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 at [44] fn 35, SZTEQ at [72], and VSAI at [20]. 142 In those cases, however, the circumstances were very different from the present, and the relevant legal issue was not the same. In this case no claim was squarely raised before the Authority to the effect that the implementation and enforcement of the IE Act would be discriminatory with respect to children (including CDT16). None of the referred applicants made any specific claim about whether CDT16 might be detained with one or both of his parents or about the impact of any such detention on him. Unsurprisingly, in this circumstance, there was no material before the Authority about the latter matter. Also, as the Minister submitted, AJZ17 and cases like it are concerned with laws of a general application, which are applied in a discriminatory manner against certain individuals on a Convention basis (that is, on the basis of race, religion, nationality, membership of a particular social group or political opinion). In AJZ17's case, it was said that laws of general application were applied in a discriminatory manner against individuals such as he who were members of the relevant social group, being individuals with a mental illness. In CDT16's case, no Convention basis was sought to be identified, and in any event no-one suggested that the relevant provisions of the IE Act applied to him at all, bearing in mind that he, unlike his parents, had not departed Sri Lanka illegally. 143 In CAR15 the child appellant, in contrast to CDT16, had advanced her own independent claim for protection before the decision-maker and on review, she alleged (see [23]) that: … the Tribunal conflated the issue of the appellant's reasonable relocation with that of her parents'. The Tribunal erred, so it is said, by concluding that the appellant and her parents could return to Lagos without actually finding that they would. In the case of a child, it was said to be necessary for the Tribunal to have done the latter; and, by not doing that, the conflation to which ground 6 refers was exposed. The Tribunal could not, so the appellant contended, have found that she could safely and reasonably relocate to Lagos if her parents were, instead, minded to return with her to one of their home villages. 144 The Court found that the Tribunal had erred in confining its attention to whether it was reasonable for the appellant's parents to relocate to Lagos with her and her sister (at [40]) without also considering whether the appellant would have a reasonable opportunity to relocate to Lagos, having regard to the practical realities that affected her: CAR15, at [33], [40]-[41]. The Tribunal's error in that case was to misunderstand the particular statutory task required of it in assessing compliance with s 36(2B)(a) of the Migration Act. This is not the issue before the Court in this case, and CAR15 does not assist the case sought to be made by CDS16 and CDT16. 145 For the reasons stated, even if one or other or both of CDS16 and CDT16 were reinstated as a party to the appeal and the Court granted leave to raise the new ground they sought to advance, this ground would likely fail. 146 It does not follow from this, however, that there should be no leave granted to them to raise the ground. Whether leave should be granted is a separate, though clearly related, question, assuming that one or other or both of CDS16 and CDT16 were reinstated as a party to the appeal. The principles relating to this question have already been discussed: see [98]-[101] above. 147 It must be accepted that, if an order for reinstatement were made, the ground could not be raised without the Court's leave, it not having been raised before the primary judge. The parties were represented before her Honour and the point was not taken. The Minister does not, however, contend that he would suffer any particular prejudice if leave were granted, and indeed the merits have now been fully argued. I have found that the claim described in the proposed ground was not clearly or squarely raised by the material before the decision-maker or the facts as they were found and that the ground would likely fail. At the same time, it seems to me that, as already stated, on the material before the Authority, a claim about the risk of harm to CDT16 might very well have arisen by implication from his parents' claimed fear that they would be arbitrarily detained and imprisoned if returned to Sri Lanka on the basis that they had departed the country in contravention of the IE Act and the obvious fact that this would have consequences for their child, who would be returning with them. In these circumstances, it seems to me that leave should be granted, there being sufficient merit to justify the grant of leave, and the matter having been fully argued.

[29]

CDS16's and CDT16's reinstatement submissions 148 In written submissions, CDS16 and CDT16 submitted that the Court ought to reinstate them as parties to CDN16's appeal as an exercise of the discretionary power in s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Referring to Chen v Monash University [2016] FCAFC 66; 244 FCR 424 at [41], it was said that this provision permitted the Court, in appropriate circumstances, to reinstate a discontinued appeal in order to prevent an abuse of process or to protect the integrity of those processes. In particular, referring to Chen at [46], CDS16 and CDT16 submitted that where the filing of a notice of discontinuance did not constitute a "deliberate and informed act", then the Court had power under s 23 to reinstate the discontinued appeal to prevent an abuse of process. 149 CDS16 and CDT16 submitted that although it was neither possible nor desirable to list all the factors relevant to the exercise of discretion in s 23, nonetheless "factors such as prospects of success and the utility of reinstating the appeal may be taken into account", referring to Cremona v Administrative Appeals Tribunal [2015] FCAFC 72; 230 FCR 1 at [52] and BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [232]. They submitted that their proposed ground of appeal had good prospects of success if their reinstatement application were successful and there was considerable utility in reinstating the appeal. 150 In written submissions, CDS16 and CDT16 identified such utility as follows: 13. The utility in granting their application for reinstatement arises because if CDN16 (the father) succeeds in his appeal, the consequential orders would be likely to include that the IAA's decision is quashed. If the appeals of CDS16 and CDT16 are reinstated, then the three persons the subject of the IAA's decision can all have their matters dealt with by the IAA upon remittal. Such a result is consistent with the concept that "a decision that lacks legal foundation and is properly regarded, in law, as no decision at all". On the other hand, if the IAA decision is quashed but CDS16 and CDT16 are not parties to the appeal, an anomalous result would follow: even if the Court found the IAA's decision was affected by jurisdictional error the IAA decision would continue to bind CDS16 and CDT16, but not CDN16. 14. A decision that is beyond power continues to exist in fact until it is quashed. Here, if the appeal succeeds for CDN16 in the absence of CDS16 and CDT16 being reinstated, then the decision of the IAA will be quashed in relation to CDN16 but continue to exist in relation to CDS16 and CDT16. 15. The preferable outcome is for the appeal to be reinstated for CDS16 and CDT16 so that the existence and enforceability of the IAA's administrative decision has consistent application to the father, mother and child visa applicants. 151 It was submitted in writing that CDT16 did not discontinue his appeal by a "deliberate or informed act" because at the time the notice of discontinuance was filed he was a child for whom no litigation representative had been appointed; and, in these circumstances, he was unable to make a deliberate or informed choice to discontinue his appeal. It was further submitted in writing that: CD[S]16's application to discontinue the appeal was a deliberate and informed act. However, the discontinuance was done in circumstances where domestic violence between CD[S]16 and CD[N]16 motivated her to remove herself from her husband's appeal and where she was unaware of the legal argument available to her that is now being run for her in her potential appeal. 152 Referring to r 39.05(f) of the Federal Court Rules 2011 (Cth) (Federal Court Rules), CDS16 and CDT16 also contended that, if the Minister consented to the reinstatement they sought, then the Court could reinstate them as parties to the appeal pursuant to this rule. 153 At the hearing, counsel for CDS16 and CDT16 departed from these earlier written submissions, accepting that, if CDN16 (or a reinstated CDT16) were successful on the appeal, then that outcome could affect the position of the other members of the family unit, regardless of whether they were reinstated. Further, if CDT16 were successful on a subsequent review, then CDS16 "may be eligible for a protection visa as a member of her son's family unit". 154 At the hearing, counsel for CDS16 and CDT16 sought to distinguish their case from the case in Chen, particularly with respect to CDS16's position, on the basis that the appeal here was still on foot; CDS16's subjective fear of CDN16 had informed her decision to file the notice of discontinuance; and, if the Authority's decision were affected by jurisdictional error, the outcome would affect CDS16, so she should have the benefit of the appeal. Further, counsel contended that there was utility in reinstatement not only of CDT16 but also CDS16 because … if she does not rejoin the appeal then she may be at risk of [being] in a situation where… at a future point in time, … the Minister or the IAA take the approach … that she cannot, therefore, be a part of the IAA's remitted decision-making process. 155 In post-hearing submissions dated 21 November 2019, CDS16 and CDT16 reiterated that: [I]f the Court allows the child's appeal to be reinstated and the Court finds the IAA's decision in relation to CDT16 to be affected by jurisdictional error, the Court would have an extra reason to exercise power under s 23 of the [Federal Court Act] to reinstate the appeal of CDS16. That extra reason to exercise the Court's power to reinstate the mother's appeal is because there would be no prejudice to the Minister in allowing the reinstatement or allowing the appeal, because the ultimate effect of the appeal would merely be to quash an IAA decision that is already - as a matter of law - no decision at all. On the other hand, if the decision remains - in fact - unquashed in respect of the mother, then even though the IAA decision may be no decision at all as an abstract question of law, it would have real continuing effect in fact. … Furthermore, while the Minister has submitted that it would be "open to" the IAA to resume its review of the delegate's decision with respect to the mother, the situation is uncertain. … (Emphasis in original)

[30]

The Minister's reinstatement submissions 156 Noting that CDS16 and CDT16 had filed a notice of discontinuance in accordance with r 36.73(1)(a) of the Federal Court Rules, the Minister submitted that, by virtue of r 36.73(2), the effect was that the appeal stood dismissed, so far as they were concerned, even though it did not affect CDN16's position. While accepting that the Court had the power to reinstate a discontinued appeal in the circumstances described in Chen, the Minister contended that the Court did not have power to reinstate a discontinued appeal by reference only to the interests of justice, referring to Chen at [42], [46]-[47] and DZY17 v Minister for Home Affairs [2018] FCAFC 196; 267 FCR 673 at [46]. The Minister emphasised that the power to reinstate will arise only where the notice of discontinuance was not filed "as a deliberate and informed act", for example, where the notice were filed as a result of fraud in which the appellant was not complicit, citing Chen at [46], Moussa v Minister for Immigration and Border Protection [2015] FCA 1280; BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 at [16]-[17]; SZUXV v Minister for Immigration and Border Protection [2016] FCA 1321 at [8], MZADF v Minister for Immigration and Border Protection [2017] FCA 160; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048 at [33]. 157 The Minister submitted that r 39.05 of the Federal Court Rules and the principle of finality in litigation require that an order discontinuing a proceeding only be set aside "where it is just and appropriate to do so by reason of 'exceptional circumstances of the case'", citing Perre v Apand [2004] FCA 1220 at [10]-[12]. 158 In what the Minister described as "the exceptional circumstances of this case", the Minister stated in written submissions that he consented to "the Court exercising power under rule 39.05(f) … to set aside the deemed order under rule 36.73(2) dismissing CDT16's appeal". In the Minister's submission: The exceptional circumstances are that CDT16's notice of appeal, and notice of discontinuance, were filed where no litigation representative had yet been appointed for him. In these circumstances CDT16 may not be bound by the deemed order. In any event, the irregularity of the process to this point is sufficient to justify the Court setting aside the deemed order, with the Minister's consent. (Footnote omitted) 159 The Minister opposed the reinstatement of CDS16, submitting that the Court should not reinstate her appeal under s 23 of the Federal Court Act. The Minister submitted that: [T]here are no such exceptional circumstances that apply with respect to CDS16. CDS16 correctly accepts that she filed the discontinuance, with respect to her own appeal, knowingly and voluntarily. (Footnote omitted) The Minister submitted that in the case of CDS16, "an operative, if not the operative, reason for the discontinuation of the appeal was her perception that it didn't have prospects or that she had a better pathway, being ministerial intervention". Counsel added that: Moreover, to the extent that the mother's assessment of her options, and I understand she was advised at the time, was influenced by intervention orders or related matters, [t]hey have nothing to do with an abuse of process of the court, nor is it manifest that those concerns, real as they may be, couldn't be managed as indeed they're being managed today. 160 Finally, the Minister submitted that, if an appeal by CDN16 or CDT16 were to succeed and if it were held that a decision of the Authority was affected by jurisdictional error, "then that will be so regardless of whether or not [CDS16] was an appellant". Referring to BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 at [53]; 272 FCR 15, counsel for the Minister submitted that this was not because the Authority made one decision and a finding of jurisdictional error therefore affected all the referred applicants. Rather, counsel submitted that the effect of s 36(2)(b) and (c) of the Migration Act is that a member of the same family unit as a non-citizen who satisfies 36(2)(a) or (aa) was entitled to a protection visa, subject to satisfying the other criteria. 161 In what was described as a note "with agreement from CDS16" dated 1 November 2019, the Minister augmented his submissions on s 36(2)(b) and (c) of the Migration Act, stating that: [4] If the Court allows CDT16 (the child) to reinstate her appeal, and the Court finds that the decision of the Authority to affirm the decision of the delegate to refuse to grant CDT16 a protection visa is affected by jurisdictional error as alleged in the proposed notice of appeal, then the Minister accepts that the (separate) decision of the Authority to affirm the decision of the delegate to grant CDS16 (the mother) a protection visa is likewise affected by jurisdictional error. That is because any jurisdictional error by the Authority in assessing (or failing to assess) whether CDT16 satisfied the criterion in sections 36(2) (on the basis of satisfying paragraphs (a) or (aa) and the time of decision criterion in clause 790.221 (on the basis of satisfying subclause 790.221(2)) infects the Authority's assessment of whether CDS16 satisfied the criterion in section 36(2) (on the basis of satisfying paragraphs (b) or (c)) and the time of decision criterion in clause 790.221 (on the basis of satisfying subclause 790.221(3)). [5] To put the point another way, but for the jurisdictional error alleged by CDT16 (if indeed that is a jurisdictional error), the Authority may have found that CDT16 (the child) satisfied the requirements of section 36(2)(a) or (aa) of the Act and clause 790.221(2) of Schedule 2 to the Regulations. And, in this event, the Authority might have found that CDS16 (the mother) satisfied the requirements of section 36(2)(b) or (c) and clause 790.221(3) of Schedule 2 to the Regulations on the basis that CDS16 is a "member of the same family unit" as CDT16, and might have granted CDT16 a SHEV. [6] Accordingly, and noting the principle in [Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597], if the Court quashes the Authority's decision with respect to CDT16 (the child), but grants no relief with respect to CDS16 (the mother) on the basis that her appeal is not reinstated, the Minister accepts that the Authority's decision with respect to CDS16 would nevertheless at law be affected by jurisdictional error, and it would therefore be open to the Authority to resume its review of the delegate's decision with respect to her. 162 As already indicated, CDN16 did not make any submissions on the reinstatement issue.

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Consideration of the reinstatement issue 163 It may be accepted that the issue of reinstatement is in this case governed by the principles set down in Chen. In that case, a Full Court of this Court refused Dr Chen's application to reinstate his appeal after he had filed a notice of discontinuance. 164 The relevant provisions of the Federal Court Act and the Federal Court Rules considered in Chen have not been altered since then, and included r 36.73 of the Federal Court Rules and s 23 of the Federal Court Act. 165 Provision is made in r 36.73 for an appellant to discontinue an appeal by filing a notice of discontinuance. This has the effect of an order of the Court dismissing the appellant's appeal: r 36.73(2). A notice of discontinuance filed by one appellant does not affect any other appellant in the appeal: r 36.73(3). Whilst Dr Chen's appeal ceased to exist because he was the sole appellant in his appeal, in this case the appeal remained on foot because CDN16, unlike CDS16 and CDT16, did not file a notice of discontinuance. So far as CDS16 and CDT16 were concerned, however, the effect of them filing their notice of discontinuance was that, so far as they were concerned, the appeal was dismissed. 166 The Full Court in Chen held, at [41], that the Court might, "in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of power of the Court or to protect the integrity of those processes". This power was held to be derived from or related to s 23 of the Federal Court Act. The Full Court held, at [40], that the power to reinstate an appeal following the filing of a notice of discontinuance could "either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23". 167 The scope of the power to reinstate following the filing of a notice of discontinuance, as described in Chen, is a discretionary power that arises only in certain specific circumstances. Thus the Court said in Chen, at [46]-[47]: While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant's instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit. In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate and appeal "in the interests of justice", which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal. 168 Where an appellant has not filed a notice of discontinuance as a deliberate and informed act, the power to reinstate the appeal is enlivened, although the exercise of that power remains discretionary, so that the prospects of success of the proposed appeal and other matters may be considered: see Chen at [48]. 169 Applying these principles, the Court in Chen concluded, at [110], that the power had not been enlivened because Dr Chen's decision to file a notice of discontinuance was deliberate and "not actuated by fraud". The Court held, furthermore, that even if the power had been enlivened, it would not have been appropriate for the Court to reinstate the appeal, given its view that the appeal had had no reasonable prospects of success: see Chen, at [111], [150]. 170 Chen was followed in DZY17, in which a Full Court upheld the decision of the primary judge, amongst other things, to dismiss DZY17's application to reinstate her appeal. Shortly after filing a judicial review application in the Perth Registry of the Federal Circuit Court, DZY17 filed a notice of discontinuance. She subsequently filed substantially the same application in the Melbourne Registry of that Court. Her evidence was that she had filed the notice because she was unable to move to Perth: DZY17 at [7]. The Full Court rejected DZY17's submission that Chen was distinguishable from her case as she had not appreciated the legal consequences of filing a notice of discontinuance at the time, and therefore her filing of the notice was not a "deliberate and informed act", as the primary judge had found. The Court stated in DZY17, at [46], that: There is no scope for the applicant to argue that her filing of the notice of discontinuance was an abuse of process having regard to the meaning of that phrase in cases such as Moussa, which stand for the proposition that no abuse of process is involved where a party knowingly and voluntarily files a notice of discontinuance, as was the case here… 171 Relevantly, in Moussa (delivered before Chen) Perram J held that earlier decisions showed that the jurisdiction to set aside a notice of discontinuance was not engaged where a party knowingly and voluntarily files a notice of discontinuance, and that Mr Moussa's decision to file a notice of discontinuance was not the result of fraudulent conduct. Reinstatement of CDS16 172 CDS16 conceded in written submissions filed before the hearing that the filing by her of a notice of discontinuance was a "deliberate and informed act". This concession was consistent with her affidavit of 11 April 2019, which was admitted into evidence at the hearing. In this affidavit, CDS16 affirmed that: … I filed a notice of discontinuance as I thought that this matter had no prospects of success and I would be better of[f] pursuing other options. It is also apparent from the face of this notice of discontinuance that CDS16 had the benefit of legal advice at the time. 173 On the basis of her own uncontested evidence, I accept as more probable than not that CDS16 filed a notice of discontinuance principally because she did not believe that the appeal had any prospects of success and that there were better pathways open to her. This is not to disregard her statements also in that affidavit that she was "afraid" of her husband, CDN16; that she had obtained an intervention order against him; and that she "did not want to be involved with the appeal with him". It may be accepted that, as she affirmed, her relationship with CDN16 contributed to her decision to discontinue the appeal. CDS16 did not claim, however, that she was coerced into filing the notice because she feared domestic violence: indeed, such a claim would be have been inconsistent with her concession that her decision to file the notice was a deliberate and informed one. It would also have been inconsistent with the statement appearing on the face of the notice itself that she (and CDT16) consented to the discontinuance. (I return to CDT16's position shortly.) In these circumstances, application of the principles stated in Chen leads to me to conclude that the power to reinstate CDS16 in the appeal has not been enlivened, and CDS16's application for reinstatement must therefore be refused. Chen is clear that the Court's power to reinstate an appeal is limited to circumstances where there has been an abuse of process and that this will not be so where the filing of the notice of discontinuance was a "deliberate and informed act". DZY17 confirms this. Since the discretionary power to reinstate has not been enlivened in her case, it is not open to the Court to consider factors that might otherwise be relevant to the exercise of that discretion, such as her fear of CDN16, her lack of knowledge about other available arguments, their prospects of success, or the utility of her reinstatement in the appeal. 174 It is convenient to note at this point, that there seemed to me to be some force in the Minister's post-hearing note dated 1 November 2019, to the effect that, if CDT16 were reinstated and succeeded on the appeal and in a subsequent review by the Authority, then it would, for the reasons advanced by the Minister, be open to the Authority to resume its review of the delegate's decision with respect to CDS16: see [161] above. Reinstatement of CDT16 175 As we have seen, CDT16's position was different from that of CDS16 in significant respects. At the time the notice of discontinuance was filed in his name, he was a child of five years old; and no litigation guardian had been appointed for him, in accordance with the Federal Circuit Court Rules 2001 (Cth): see rr 11.08(2), 11.09, 11.11. Nor had a litigation representative been appointed for him in accordance with the Rules of this Court: see rr 9.61 9.63, 9.66(1). Rule 9.61 of the Federal Court Rules provides: A person under a legal incapacity may start, or defend, a proceeding only by the person's litigation representative. 176 Rule 9.66(1) further provides that: Anything in a proceeding that is required or authorised by these Rules to be done for a person under a legal incapacity by the person may only be done by the person's litigation representative. A five-year old child is a person under a legal incapacity for the purposes of these Rules: see the Dictionary to the Rules. 177 With respect to an infant or young child, the appointment of a litigation guardian (or, in this Court, litigation representative) serves a number of purposes, but "principally to institute and carry on the proceeding on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights …": see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 113 (Williams J). The effect of the appointment of a litigation representative has been considered in this Court from time to time: see, for example, Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [18], where the Full Court noted that such an appointment ensured that the proceeding bound the person under the disability and ensured that an opposing party had the benefit of any costs order made in that party's favour: see also SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426; 126 FCR 552. 178 Proceedings brought without a litigation representative, including appeal proceedings, are not a nullity, and may be regularised by the appointment of a litigation representative before the proceeding concludes: see, for example, SBAH at [1], [33]; Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1619 at [26]. Further, the Court may by order dismiss proceedings irregularly commenced by a person under a disability. Whether, however, the notice of discontinuance filed pursuant to r 36.73(1) of the Federal Court Rules was entirely effective in this case in so far as it purported to be filed in CDT16's name is a matter for another day: compare r 9.66(1) above. It is sufficient that it cannot be said in this case that the filing was a "deliberate and informed act" by the then five-years-old CDT16, for whom no litigation representative had been appointed. In all the circumstances, it seems to me open to conclude that the filing of the notice of discontinuance in CDT16's name was an abuse of process in the sense used in Chen and that the power to reinstate CDT16 in the appeal is therefore enlivened. Assuming that, so far as CDT16 was concerned, the notice of discontinuance had the effect of an order of the Court dismissing the appeal, then in the exercise of discretion CDT16 should be reinstated as an appellant in the appeal, bearing in mind that the Minister has properly accepted that the circumstances affecting CDT16 were exceptional. 179 It will have been seen that the Minister proposed an alternative path to reach this outcome, in so far as he consented to the Court exercising its power under r 39.05(f) of the Federal Court Rules to set aside what he described as the deemed order under r 36.73(2) created by the filing of the notice of discontinuance. If it is correct to say that, by virtue of r 36.73(2), the filing of a notice of discontinuance in fact gives rise to an order dismissing the appeal so far as CDT16 is concerned, which may be set aside under r 39.05(f), then I would do so. Whether r 36.73(2) and r 39.05(f) have this effect was not contested and therefore not the subject of argument in this case. I have doubts about such an interpretation: it seems to me that r 39.05 is directed to a judgment or order entered following a judgment actually delivered or order actually made by the Court in its own right. It is not concerned with an act done by an appellant, which under the Federal Court Rules is given effect as an order of the Court. This is, however, another issue for another day.

[32]

DISPOSITION 180 For the reasons stated, I would make the following orders:

The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
CDT16 by CDS16 as his litigation representative be reinstated as an appellant in the appeal proceeding VID946/2018.
Leave to raise proposed grounds 2 and 3 of the amended notice of appeal filed on 23 January 2019 be refused.
Leave to raise the proposed new ground of appeal identified in the draft notice of appeal filed on 10 September 2019 on behalf of CDS16 and CDT16 by CDS16 as his litigation representative be granted, and the draft notice of appeal stand as a further amended notice of appeal in this proceeding.
The interlocutory application dated 5 April 2019 be otherwise dismissed.
The appeal be dismissed. 181 The interlocutory application dated 5 April 2019 was, so it seems to me, substantially successful, in that it has enabled the new ground to be raised and considered at the instance of CDT16 by CDS16 as his litigation representative. Given the nature of the sole appeal ground, this may fairly be thought to have been the principal object of the application. Further, although the Minster opposed the reinstatement of CDS16, the relevant law with respect to her and her son's reinstatement was much the same, and the facts were not in dispute. Having regard to these matters, I am of the provisional view that there should be no order as to costs on the interlocutory application. 182 Neither CDN16 nor CDT16 has succeeded on the appeal. Both the grounds that CDN16 initially raised by his notice of appeal have failed, and, for the reasons stated I would refuse leave to raise the two new grounds identified in the amended notice of appeal that he subsequently filed. Ordinarily, a successful party is entitled to an award of costs in the absence of special circumstances justifying some other order: see, for example, Plaintiff B9/2014 by his mother as litigation guardian v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [5] and the cases there cited. It seems to me that CDN16 should pay the Minister's costs with respect to the appeal, save with respect to the ground of appeal advanced by CDT16 by CDS16 as his litigation representative. 183 I am not presently disposed to make an award of costs in respect of this latter ground. Although the appellants have failed to establish jurisdictional error in the Authority's decision-making, the fact remains that CDT16 was only a young child at the time of the Authority's decision, and the Authority gave remarkably little attention to the obvious fact that the child would either accompany one or other or both of his parents to prison if they were detained pending their appearance before a magistrate or be separated from his parents until they were released. The only express recognition of the child's probable predicament was the Authority's statement that this small child would be "subject to questioning and detention while in the care of his parents". The Authority did not mention any country information concerning the treatment of children returning to Sri Lanka in the company of a parent or guardian who had departed Sri Lanka illegally and faced a period of detention. The Authority referred to the poor conditions in Sri Lankan prisons, but gave seemingly no attention to the actual capacity of CDT16's parents to care for him in that environment. Nor did it advert to the possibility that placing a child in such a prison, and subjecting him to detention and questioning even though with his parents, might well have a more significant adverse effect on him than on an adult. Further, my concern about the process was not alleviated by the fact that the Authority's discussion of the illegal departure claims made by CDN16 and CDS16 had a somewhat formulaic tone, in that its reasons at this point resemble other discussions in other reviews concerning failed asylum seekers returning to Sri Lanka after their illegal departure. The failure to consider the obvious consequences for a small child, in the context of reasons having, at the relevant point in the Authority's discussion, a formulaic flavour tends to indicate that the Authority did not direct its attention to the vulnerabilities of a child, such as CDT16, in the realities of the circumstances that, according to the Authority, he might face on return to Sri Lanka. I am inclined to the view that these considerations take this ground of the appeal outside the ordinary rule as to costs. Accordingly, on at least a tentative basis, it seems to me that, the appropriate order in this case is:
Unless a party notifies the Court in writing by 4:00pm on 2 July 2021, indicating opposition to this order as to costs, CDN16 pay the Minister's costs of the appeal other than the costs arising from the ground raised by the further amended notice of appeal on behalf of CDS16 and CDT16 by CDS16 as his litigation representative, and there be no other order as to costs. 184 The Court would also like to record its appreciation of counsel and the solicitors who represented CDS16 and CDT16 pro bono in the interlocutory application and in the appeal. It is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served. I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.

Parties

Applicant/Plaintiff:

CDN16

Respondent/Defendant:

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Legislation Cited (4)

Federal Court of Australia Act 1976(Cth)s 23

Migration Act 1958(Cth)ss 36, 424A, 473CB, 473DA, 473DB

Federal Court Rules 2011(Cth)rr 9.61, 9.66, 36.73, 39.05

Federal Circuit Court Rules 2001(Cth)

Cases Cited (42)

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 DZY17 v Minister for Home Affairs [2018] FCAFC 196; 267 FCR 673 Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; 204 CLR 1 Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 Plaintiff B9/2014 by his mother as litigation guardian v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Ponnudurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91 SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426; 126 FCR 552 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; 229 FCR 497 SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

KENNY J: 1 This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 20 July 2018, dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority made on 25 July 2016. On that date, the Authority had affirmed a decision of a delegate of the respondent Minister made on 14 June 2016 not to grant CDN16, his wife (CDS16) and their child (CDT16) a Safe Haven Enterprise (Class XE) (Subclass 790) visa. The Federal Circuit Court's decision has the citation CDN16 & Ors v Minister for Immigration & Anor [2018] FCCA 1947. 2 As explained below, this appeal is complicated by the fact that, while CDS16 and CDT16 were parties to this appeal when it was instituted, a notice of discontinuance was later filed in their names. Since then, however, by an interlocutory application dated 5 April 2019, they have applied to be reinstated as appellants in the appeal, and for leave to raise a new ground of appeal. Also in that application, CDS16 sought to be appointed as the litigation representative of CDT16, both in respect the application and this appeal. It is convenient to note at this point that, on 15 May 2019, the Court ordered that: 1. The former second appellant be identified in any documents filed or published in this appeal as "CDS16". 2. The former third appellant be identified in any documents filed or published in this appeal as "CDT16". 3. CDS16 be appointed as litigation representative for CDT16. 4. Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with. 5. Any further compliance with rr 9.63 or 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with. 6. There be no order as to costs. In conformity with these orders CDN16's wife and child continue to be identified in this proceeding as CDS16 and CDT16. Further, CDT16 now pursues the balance of the interlocutory application and, so far as he is able, this appeal by his mother CDS16 as his litigation representative: see further CDN16 v Minister for Immigration and Border Protection [2019] FCA 674.

[1985] HCA 28

(2013) 210 FCR 505