SRI LANKAN MOTHER AND DAUGHTER APPEAL AGAINST A JUDGMENT DISMISSING THEIR SHEV APPLICATION
CXB20 v Minister for Home Affairs [2020] FCA 1667 (18 November 2020)
The appellants appeal against a judgment of the Federal Circuit Court of Australia. The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority).
Facts:
The first appellant is the mother of the second appellant, “the mother” and “the daughter” respectively.
They are of Tamil ethnicity and Hindu religion and are from the Northern Province of Sri Lanka. They arrived in Australia as “unauthorised maritime arrivals” in November 2012.
The mother was interviewed by an officer of the Department of Immigration and Border Protection as part of her protection visa application on 13 February 2018 (the SHEV interview). Legal submissions were made by the Refugee and Immigration Legal Service (RAILS) on her behalf.
The delegate accepted the mother’s claim of sexual assault and her reasons for not disclosing it at her Entry interview, but ultimately refused to grant the combined SHEV application on the basis that Australia did not owe the appellants protection obligations. The decision was then referred to the Authority for review.
The Authority found that it was not permitted to consider the new information relating to the daughter’s sexual assault, as it was not satisfied that there were “exceptional circumstances” to do so pursuant to s473DD(a) of the Migration Act 1958.
The appellants filed an application for review of the decision of the Authority in the Federal Circuit Court on the ground that the primary judge erred in failing to find the Authority misapplied s.5J of the Migration Act 1958 by not turning its mind to the issue of whether the Sri Lankan State was unable or unwilling to protect the first appellant from sexual assault by the security officers for a Convention reason. The appellants argue that the Authority, “impermissibly narrowed the scope of s.5J by failing to consider whether the persecutory nature of the mother’s sexual assault consisted of the act of the perpetrators in conjunction with the discriminatory withholding of state protection”.
Issue: Should the appeal be allowed?
Law:
- Migration Act 1958 5J
Analysis:
The Authority erred by failing to consider the argument clearly advanced by the appellants that sexual assaults upon Tamil women are tolerated by the Sri Lankan authorities and that security forces are able to carry out such assaults with impunity.
If that were established, the Authority ought then to have considered whether, on that basis, there was a real chance that the mother would be sexually assaulted if she were returned to Sri Lanka.
If the Tribunal had considered the argument, there would have been a realistic possibility that it would have decided that the mother had a well-founded fear of persecution within s.5J(1) of the Act.
In the court’s opinion, the Authority made an error, which was a jurisdictional error. The primary judge erred by finding to the contrary.
Conclusion: The appeal is allowed.
