Consideration
40 It is not clear that the appellant raised a claim of societal stigma or discrimination arising from her status as a (Tamil) woman survivor of rape. However, two things are clear. One is that she said that she could not tell "anyone, not even her husband". She did not say that she could not tell her husband and therefore could not tell anyone else for fear that her husband might then learn of the fact that she was raped. She put her inability to tell "anyone" first followed by "not even her husband" which carries with it the implication that there was some reason in relation to everyone, not just her husband, that she could not speak of her rape.
41 The other thing that is clear is that the Authority considered that the appellant had raised a claim of societal stigma or discrimination based on the fact that she is the survivor of a sexual assault or rape at [7] of its reasons quoted at [24] above. Moreover, the Authority referred to country information which demonstrates that there is a factual basis to a realistically possible conclusion that (Tamil) women survivors of sexual assault in Sri Lanka face persecution by way of societal stigma or discrimination.
42 In the latter regard, a United Kingdom Home Office report, Country Policy and Information Note - Sri Lanka: Tamil separatism (March 2017), cites the Human Rights Watch Annual Report 2017 recording that "Allegations of sexual and other violence committed against women during the civil war are expected to be addressed through the transitional justice mechanisms, although there are concerns that many women will be reluctant to come forward absent an independent victim and witness protection program."
43 Further, an Australian Department of Foreign Affairs and Trade report, DFAT Country Information Report Sri Lanka (24 January 2017), states that reported incidents of sexual assault and rape in Sri Lanka have increased in recent years, and tend to be higher in remote areas, "but the majority of cases are likely to go unreported due to social stigma."
44 If a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 341; 107 FCR 184 at 196 [42] per Merkel J, Heerey and Sundberg JJ agreeing.
45 Where the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].
46 The Tribunal is required to deal with the case raised by the material or evidence before it, even a case that is unarticulated if it arises "squarely" on the material, meaning that a claim not expressly advanced will attract the review obligation when it is apparent on the face of the material before the Tribunal: NABE at [58] per Black CJ, French and Selway JJ.
47 In Appellant S395/2002, two male citizens of Bangladesh applied for protection visas. The Refugee Review Tribunal rejected their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal accepted that it was not possible to live openly as a homosexual in Bangladesh, but found that the applicants had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now" with the result that they would not suffer serious harm by reason of their sexuality. The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution.
48 McHugh and Kirby JJ who formed the majority with Gummow and Hayne JJ, in dealing with a submission on behalf of the Minister that the applicants had not claimed before the Tribunal that they had suffered harm by reason of having to live discreetly with the result that the matter could not be raised, stated as follows (at [39]):
On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of applicants or the Minister cannot narrow the Tribunal's jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law. … If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution.
49 Returning to the present case, the above authorities make it clear that since on the material before it the Authority identified the claim to persecution on the basis that the appellant feared social stigma as a result of her having been sexually assaulted, and that she had kept the assault secret, in order to properly exercise its jurisdiction it was obliged to make a finding on that claim. Here, the Authority rejected that claim on the basis that since very few people would know of the appellant being the survivor of a sexual assault there is no real chance that she will suffer societal discrimination because of it. It reasoned that few people will have that knowledge because the appellant feels unable to tell anyone about the incident.
50 In Appellant S395/2002, McHugh and Kirby JJ (at [40]) stated that "persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality." Their Honours reasoned (at [43]) that the well-founded fear of persecution held by an applicant could be the fear that, unless that person acts to avoid the harmful conduct, they will suffer harm; it is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
51 McHugh and Kirby JJ (at [51]) held that because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladeshi society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh. Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live.
52 Finally, McHugh and Kirby JJ (at [55]) held that by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal had effectively broken the genus of 'homosexual males in Bangladesh' into two groups - discreet and non-discrete homosexual males in Bangladesh. That inevitably invited error.
53 Gummow and Hayne JJ (at [88]) identified the error by the Tribunal as not asking why the appellants would live discreetly if they returned to Bangladesh. It did not ask whether the appellants would live discreetly because that was the way in which they would hope to avoid persecution.
54 Gummow and Hayne JJ (at [90]) also agreed with McHugh and Kirby JJ that the Tribunal was in error by dividing the genus of homosexual males in Bangladesh into two groups - discreet and non-discrete homosexual males in Bangladesh.
55 In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317, French CJ, Hayne, Kiefel and Keane JJ identified the essence of the decision in Appellant S395/2002 as follows (at 325 [17]):
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed - whether the fear of persecution was well founded - had not been addressed.
56 In the same case, Gageler J, referring to Appellant S395/2002, said (at 330 [36]):
The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.
57 The Authority in the present case fell into the same error as the Tribunal did in Appellant S395/2002. It concluded that the appellant would not suffer societal discrimination in Sri Lanka because she would be discrete about the fact that she had suffered rape at the hands of the CID. That approach impermissibly divided the genus of Tamil women in Sri Lanka who are survivors of sexual assault into two sub-groups, namely those whose assault is already public and those whose assault is not public. Although the Authority asked why the appellant did not tell her husband of the assault, it did not ask why she did not tell anyone else (other than her mother and her brother). As I have indicated, the appellant squarely put the claim that she felt unable to tell "anyone".
58 That identifies the error of the primary judge. His Honour (at [38]-[40]) distinguished Appellant S395/2002 on the basis that in that case the appellants needed to be "discrete" about their homosexuality because they feared persecution from the Bangladeshi authorities, and the Bangladeshi society in general, if their homosexuality was disclosed rather than because of some reason personal to them - in this case being the reason for the appellant not wishing to tell her husband.
59 The error is further exposed by the following consideration. What if the appellant's husband finds out about the rape of the appellant at the hands of the CID, perhaps even through this very case - he would then know and the Authority and the primary judge's reasoning with regard to the appellant keeping the rape a secret would not apply. Yet the appellant's claim of not being able to tell "anyone" would remain. That claim was not considered by the Authority.
60 ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 is to similar effect. Rangiah J (at [34]) identified that the Authority had accepted that if the appellant's sexual abuse as a child was exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. His Honour found that the Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, it may have been found that he feared persecution on the basis of membership of a particular social group depending on the Authority's findings concerning any "real chance" that the appellant would be "persecuted".
61 SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299 is different. There, Rangiah J identified (at [19]) that the Tribunal found that it was not satisfied that the appellant faced any real chance of persecution in Iraq based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant "would not wish to continue to engage in such groups should he return to Iran". That finding was based upon the Tribunal's satisfaction that the appellant "lacks any real interest" in Kurdish political organisations and its lack of satisfaction that he had "any political (or other) convictions, that would give rise to a real chance of persecution in Iran". Rangiah J found (at [20]) that the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so.
62 FTQ18 v Minister for Home Affairs [2019] FCA 2025 is also different. Steward J found (at [26]) that the primary reason for the appellant being likely to be discrete in Iran about not believing in Islam, or about being agnostic, was not the product of fear, but of his personal values including seeing no reason to "propagate and promote" his views.
63 As I have identified, in the present case the Authority failed to ask why the appellant felt unable to tell "anyone" of her having been sexually assaulted by the CID. Because of that error with regard to the inquiry into why the appellant feels compelled to keep the sexual assault secret, the Authority failed to enter upon the inquiry whether the particular social group suffers persecution as a consequence of societal stigma or discrimination. The Authority then did not undertake the assessment which is required under s 5J(1) of the Act of whether the appellant specifically has a well-founded fear of persecution on the basis of any identified societal stigma or discrimination.
64 If the Authority had found that s 5J(1) was satisfied, that would require it to consider s 5J(3) of the Act. For the present purposes it is sufficient to say that if s 5J(3) had been considered by the Authority, further issues would have arisen, including whether the provision applies to behaviour that has already been modified, the reasonableness of taking steps to modify the appellant's behaviour and whether any modification would conceal an immutable characteristic: see ESD17 at [35]. There is a realistic possibility that the Authority's assessment on that point would have been in the appellant's favour.
65 With reference to the assessment required by s 5J(4) and (5) with regard to the potential for the persecution to involve serious harm, as I have already identified, the Authority referred to country information which indicates that had the Authority entered upon that inquiry there is a realistic possibility that it might have reached a conclusion in favour of the appellant.
66 In regard to a serious harm finding, reference was made before me to R (Hoxha) v Special Adjudicator [2005] UKHL 19; [2005] 1 WLR 1063 in which an issue - referred to as "a subsidiary issue" - arose as to whether a person may fall within the definition of "refugee" in Art 1A(2) of the Refugee Convention in circumstances where they have a fear of the continuing effects of persecution afflicted upon them in the past.
67 In the context of discussing that issue, on which the answer was "no", Baroness Hale (with whom Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood agreed) stated the following:
36. To suffer the insult and indignity of being regarded by one's own community (in Mrs B's words) as "dirty like contaminated" because one has suffered the gross ill-treatment of a particularly brutal and dehumanising rape directed against that very community is the sort of cumulative denial of human dignity which to my mind is quite capable of amounting to persecution. Of course the treatment feared has to be sufficiently severe, but the severity of its impact upon the individual is increased by the effects of the past persecution. The victim is punished again and again for something which was not only not her fault but was deliberately persecutory of her, her family and her community. …
37. If what they fear is capable of amounting to persecution, is it for a Convention reason? It is certainly capable of being so.
68 Baroness Hale's comments were implicitly endorsed by Branson J in SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942; 87 ALD 498 at [34].
69 At a more general level, I note that it is now well established that stigma, shame and embarrassment are significant barriers to survivors of sexual assault disclosing their assault and to their recovery: Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 4. There have been numerous studies indicating that prolonging disclosure of sexual assault, feelings of shame and experience of stigmatisation or negative social reactions increase vulnerability of sexual assault survivors to a range of adverse health outcomes. See for example: B Ensiuk, W van Berlo and FW Winkel, "Secrecy and Persistent Problems in Sexual Assault Victims" (2000) 10 International Criminal Justice Review 81-97; DM Quinn, MK Williams, F Quintana, JL Gaskins, NM Overstreet, et al., "Examining effects of anticipated stigma, centrality, salience, internalization, and outness on psychological distress for people with concealable stigmatized identities" (2014) 9(5) PLoS ONE 1-15; SE Ullman, and L Peter-Hagene, "Social Reactions to Sexual Assault Disclosure, Coping, Perceived Control and PTSD Symptoms in Sexual Assault Victims" (2014) 42(4) Journal of Community Psychology 495-508.
70 I have not taken reports or articles in the preceding paragraph into consideration in reaching a conclusion as to the result in this case as they were not before the Authority. I only note their existence and that it is by no means obvious that social discrimination or stigmatisation cannot amount to persecution. Further, the Minister rightly accepted in oral submissions that stigma or discrimination arising from sexual assault could give rise to a relevant claim. His argument, which I have dealt with, is that the claim was not made.
71 There is a realistic possibility that the Authority might have found that there is a real chance that upon return to Sri Lanka the appellant would be persecuted for the reason of membership of a particular social group being Sri Lankan Tamil women from the Northern Province who have been victims of sexual assault. There is then the realistic possibility that the appellant could have been found to be a refugee under s 5H of the Act and could therefore fulfil the criteria under s 36(2)(a) of a non-citizen of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.