AWG18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 May 2020
• Neutral Citation: [2020] FCA 744
• Date: 29 May 2020

FEDERAL COURT OF AUSTRALIA

AWG18 v Minister for Home Affairs [2020] FCA 744

Appeal from:	AWG18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2150
File number(s):	QUD 593 of 2018
Judge(s):	GREENWOOD J
Date of judgment:	29 May 2020
Catchwords:	MIGRATION – consideration of the question of whether the primary judge fell into error by failing to recognise that the Immigration Assessment Authority had engaged in error constituting jurisdictional error – consideration of whether the Immigration Assessment Authority engaged in jurisdictional error in the context of contentions that the Authority failed to appreciate an essential integer of the claimed fear; failed to consider particular country information reports and text in those reports emphasised by the appellants; and whether in reaching a conclusion about a particular matter, the Authority made a finding affected by illogicality or irrationality
Legislation:	Migration Act 1958 (Cth), ss 35A, 36, 65
Cases cited:	AWG18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2150 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Date of hearing:	6 February 2019
Date of last submissions:	30 January 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	168
Counsel for the Appellants:	Mr Mark Steele and Mr Hamish Clift
Solicitor for the Appellants:	Angus Francis Lawyers
Counsel for the First Respondent:	Mr J D Byrnes
Solicitor for the First Respondent:	MinterEllison

ORDERS

		QUD 593 of 2018
BETWEEN:	AWG18 (and others named in the Schedule) First Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	29 MAY 2020

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders made by the Federal Circuit Court of Australia on 30 July 2018 are set aside and in their place, it is ordered that:

   1. the constitutional writs of mandamus and certiorari issue quashing the decision of the Immigration Assessment Authority (the “Authority”) dated 8 February 2018 and remitting the matter to the Authority to be determined according to law;

   2. the first respondent pay the applicants’ costs of the proceeding.

3. The first respondent pay the appellants’ costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1. These proceedings are concerned with an appeal by four appellants. The appellants are a Tamil Sri Lankan family comprising a husband and wife and their two daughters. The husband and wife and elder daughter arrived in Australia on 23 April 2013 as unauthorised maritime arrivals. The younger daughter was born in Australia in February 2014.

2. On 15 December 2016, the appellants lodged an application for a Safe Haven Enterprise visa (XE‑790) (the “Safe Haven visa”) pursuant to s 35A and s 36 of the Migration Act 1958 (Cth) (the “Act”). One of the claims of the husband was a fear that his wife and daughters would be at risk, if the appellants returned to Sri Lanka, of sexual and physical assault by Sri Lankan authorities as Tamil women who formerly resided in the north and east of the country (in Batticaloa in the Eastern Province of Sri Lanka).

3. At para 106 of a submission dated 6 September 2017 and lodged with the Department of Immigration and Border Protection by email that day by “RAILS Refugee and Immigration Legal Service Inc” on behalf of the appellants, the author of the submission says that the husband is concerned about “the risk of physical and sexual assault by the Sri Lankan authorities against his wife and daughters, as they are vulnerable females”. That observation is the opening paragraph of a topic described as “Fear of persecution faced on the basis of being Tamil women in Sri Lanka”.

4. I will return to aspects of that submission later in these reasons.

5. On 24 October 2017, the Minister’s delegate refused the application for the Safe Haven visa for each appellant.

6. The delegate’s decision was referred to the IAA under the provisions of the Act.

7. On 8 February 2018, the IAA affirmed the decision of the Minister’s delegate refusing each application.

8. The appellants sought judicial review of the IAA’s decision and sought the grant of the constitutional writs before the Federal Circuit Court of Australia. That application was dismissed with costs on 30 July 2018. The primary judge delivered ex tempore reasons explaining the basis of the orders made that day: AWG18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2150.

9. The appellants filed an amended notice of appeal from the orders and decision of the Federal Circuit Court relying on the following three grounds of appeal:

1. [The primary judge] erred in finding that the [IAA] had addressed an integer of the Appellants’ claims, namely that the Second, Third and Fourth Appellants were Tamil females.

2. [The primary judge] erred in finding that the [IAA] had not ignored evidence (namely, evidence regarding the risk of harm to the Second, Third and Fourth Appellants as a result of being Tamil females) and erred in finding that the [IAA] had not failed to take into account a relevant consideration (namely, that the Second, Third and Fourth Appellants were Tamil females).

3. [The primary judge] erred in finding that the [IAA’s] decision was not illogical or irrational.

10. I propose to now identify the way in which counsel for the appellants put the case for the appellants in support of the grounds of appeal.

11. The starting point is the submission of 6 September 2017 mentioned earlier.

12. The following paragraphs of that submission are identified as highlighting a contended “clear conjunction” between the gender of the appellant wife and two daughters and their Tamil ethnicity on the one hand, and their fear of harm by virtue of ongoing reports of sexual violence by security forces specifically against Tamil women, on the other hand. The paragraphs in the submission emphasised by the appellants are paras 106 and 107 and paras 111, 112 and 114. Those paragraphs are quoted below and I have included paras 108, 109, 110 and 113 in order to put the emphasised paragraphs in context. In the paragraphs emphasised by the appellants quoted below, I have also marked in bold the particular text emphasised by the appellants:

Fear of persecution faced on the basis of being Tamil women in Sri Lanka

106. A fear of harm that the first applicant is also concerned of is the risk of physical and sexual assault by the Sri Lankan authorities against his wife and daughters, as they are vulnerable females.

107. Sexual and gender‑based violence still persists in Sri Lanka. According to a 2016 report by the International Truth and Justice Project Sri Lanka (ITJP),

‘One year after the change of government in Sri Lanka the security forces continue to detain, torture and sexually violate Tamils in a network of sites across the island.’ [Citing an ITJP Report entitled “Silenced: Survivors of Torture and Sexual Violence in 2015”, January 2016].

108. More recently, a report by Amnesty International notes that impunity persists for violence against women, including acts of rape by military...