AVH18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 326
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 326
File number: MLG 3878 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 May 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority applied wrong test in not exercising its discretion in s 473DC of Migration Act 1958 (Cth) to invite applicant to an interview – whether Authority acted unreasonably in not exercising its discretion in s 473DC to invite applicant to an interview – whether Authority erred in applying s 473DD by failing to consider criteria in s 473DD(b) – whether Authority failed to consider claim raised by applicants – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 46A, 57, 65 473CA, 473DB, 473DC, 473DD, 473DE, 476, 477 Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 350
BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
ERE18 v Minister for Home Affairs (No 2) [2021] FCA 1346
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 27 January 2023 Place: Perth Counsel for the Applicants: Dr A McBeth Solicitor for the Applicants: Estrin Saul Lawyers Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitors ORDERS
MLG 3878 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVH18
First Applicant
AVI18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 MAY 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 23 November 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants seek judicial review of a decision made by the Immigration Assessment Authority (Authority) on 23 November 2018 to affirm a decision made by a delegate of the Minister not to grant the applicants protection visas. The application is brought to the Court pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The first applicant is the mother of the second applicant and they applied for a protection visa together with a third person (husband applicant), who is the husband of the first applicant and father of the second applicant, as members of the same family unit. The Authority made a separate decision in relation to the husband applicant and the husband applicant has filed a separate judicial review application in respect of the decision relating to him. That application is referred to as AVG18 v Minister for Immigration, Citizenship and Multicultural Affairs and has been allocated the file number MLG 3880 of 2018 (AVG18). AVG18 was heard concurrently with this present application and, given that the applicants to this proceeding and the husband applicant are members of the same family unit, the parties agree that if I find jurisdictional error in either of the Authority decisions, both decisions of the Authority should be quashed and remitted for reconsideration according to law. While I accept this position advanced by the parties is accurate, I have found that both decisions are independently affected by jurisdictional error. Therefore, neither application turns on the applicants in this application and AVG18 being members of the same family unit.
The applicants have advanced four grounds in this application, which are addressed below. I have found jurisdictional error on the basis that the Authority misapplied s 473DD of the Migration Act in deciding not to consider new information provided to the Authority on behalf of the applicants. It follows that a writ of certiorari will issue to quash the Authority’s decision and a writ of mandamus will issue to require the Authority to reconsider the matter according to law.
BACKGROUND
The first applicant and the husband applicant are citizens of Sri Lanka who entered Australia by sea in October 2012. The second applicant was born in Australia.
The applicants applied for a protection visa on 24 January 2017, after the Minister exercised the discretion in s 46A(2) to lift the bar in s 46A(1) of the Migration Act. Only the husband applicant advanced claims for protection when the application was before the delegate, with the first and second applicants included in the application as members of the same family unit.
A delegate of the Minister made a decision not to grant the applicants a protection visa on 8 June 2017. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
When the matter was before the Authority, the applicants’ representative advanced submissions regarding claims that arose on the materials in relation to the first and second applicants. On 6 February 2018 the Authority purported to affirm the delegate’s decision. The applicants successfully sought judicial review of that decision, with writs of certiorari and mandamus issued on 11 October 2018.
After the matter was remitted to the Authority, the first applicant provided a statutory declaration and submissions advancing new claims for protection. She also requested that she be invited to an interview ‘to address her claims for protection and any adverse information that arises throughout the review process’, but the Authority did not invite her to attend an interview.
On 23 November 2018 the Authority affirmed the delegate’s decision not to grant the applicants protection visas. Those parts of the Authority’s decision that are relevant to the grounds of application are discussed below in the consideration of the grounds.
JUDICIAL REVIEW APPLICATION
The applicants commenced proceedings in this Court by way of an application filed on 20 December 2018. This is within 35 days of the Authority decision as required by s 477(1) of the Migration Act.
The applicants rely on an amended application filed on 20 December 2022,[1] which contains the following four grounds:
[1] The amended application was electronically lodged after 4:30pm on 19 December 2022 and is therefore deemed to have been filed on 20 December 2022, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
1.The Immigration Assessment Authority (‘IAA’) applied the wrong test in the exercise of its discretion under s 473DC of the Migration Act 1958 (‘the Act’).
Particulars
The IAA erred in conflating the test of “exceptional circumstances” from s 473DD of the Act with the test of “may be relevant” from s 473DC of the Act.
2.The failure of the IAA to exercise its discretion to interview the first applicant was unreasonable.
Particulars
(a)The first applicant was never interviewed by the delegate.
(b)The IAA was also deprived of certain documentary evidence relevant to the first applicant’s claims due to the unavailability of Departmental files.
(c)The failure of the IAA to exercise its discretion to interview the first applicant to remedy the gaps in the evidence before it was unreasonable in the circumstances.
3.The IAA failed to assess the new information provided by the first applicant against the criteria in s 473DD of the Act, properly construed.
Particulars
(a)The IAA made a finding that there were no exceptional circumstances within the meaning of s 473DD(a) to justify considering the new information.
(b)The IAA failed to make any finding under s 473DD(b)(i) or (ii).
(c)Further and alternatively, the IAA misconstrued the nature of its task under s 473DD.
4.The IAA misconstrued and thereby failed properly to consider the claims of the applicants that related to the second applicant’s statelessness.
Particulars
(a)The IAA misconstrued Sri Lankan citizenship law in erroneously finding that the second applicant was a Sri Lankan citizen.
(b)As a result of that misconstruction, the IAA failed to give proper consideration to each of the claims of the applicants that related to a fear of harm arising from or exacerbated by the second applicant’s stateless status.
The evidence before the Court comprises the court book filed on 15 June 2022 and an affidavit affirmed by Reuben Saul Jahnke on 19 December 2022 and filed on behalf of the applicants. Mr Jahnke’s affidavit annexes a copy of the Citizenship Act 1948 (Sri Lanka) (Citizenship Act), which is relevant to ground 4 of the application.
CONSIDERATION
Ground 1
Ground 1 alleges that the Authority applied the wrong test in choosing not to exercise the discretion in s 473DC of the Migration Act to interview the applicant.
Section 473DC of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents of information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
At [17] of its reasons, the Authority said (emphasis added):
I have noted the request in the submission for the IAA to provide the applicant (and dependent applicant) with an interview as her claims for protection were not heard by the Department. Section 473DC of the Act provides that while the IAA may get any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant. Based on the applicant’s very detailed statutory declaration, for the reasons I discuss below, I accept the applicant’s claim that she was verbally and sexually assaulted in Sri Lanka by members of the [Sri Lankan Army] in 2007 or 2008 and that this has had a significant psychological, physiological and emotional effect on her. I accept that she has had extreme difficulty in disclosing this information, and as I am prepared to accept the information as outlined in her statutory declaration relating to this claim, I do not consider there are exceptional circumstances to justify having her undertake an interview with the IAA. I also do not consider there are exceptional circumstances to justify interviewing the four-year-old dependent applicant.
In their written submissions, the applicants submitted that the penultimate sentence of [17], emphasised in bold in the extract above, demonstrates error on the part of the Authority because it is not necessary that there be exceptional circumstances for the Authority to exercise the discretion in s 473DC of the Migration Act to get new information, as distinct from the separate requirement in s 473DD that there be exceptional circumstances to justify the Authority considering new information. The applicants submitted that the test for the purposes of s 473DC is merely that the Authority considers that the information ‘may be relevant’, and by considering whether there were exceptional circumstances, the Authority conflated the different tests in ss 473DC and 473DD of the Migration Act.
In written submissions, the Minister submitted that ground 1 does not establish any jurisdictional error because:
(a)There is no ‘test’ for the Authority to apply in its consideration of whether or not to exercise its discretion in s 473DC to get new information, and the features set out in s 473DC(1) are not criteria to be applied in the exercise of the discretion but rather are definitional features of what constitutes ‘new information’. The exercise or non-exercise of the power in s 473DC is confined only by the terms of the section read in its statutory context and subject to the implied condition of legal reasonableness.
(b)It was open to the Authority to take into account the absence of exceptional circumstances as a factor relevant to its non-exercise of the power in s 473DC. There is no reference to s 473DD in the Authority’s reasons at [17] and the Court should not infer that the Authority had mistakenly applied one set of criteria when addressing another.
In oral submissions, both parties addressed the relevant principles identified by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17), a case which was referred to in the Minister’s written submissions. I accept that the relevant principles of law that apply to this ground are those explained by Thawley J in EMJ17 at [60], namely:
(1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.
(2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.
(3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.
(4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.
(5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].
(6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).
(7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.
The final two points made in the extract above are of particular relevance in this matter. There may be jurisdictional error if the Authority’s reasons are properly understood as disclosing that the Authority proceeded on the basis that exceptional circumstances were required before it could exercise the discretion in s 473DC to interview the first applicant. However, provided that the Authority understood that exceptional circumstances were not required, it may have been open to the Authority to have regard to the lack of exceptional circumstances in deciding not to exercise the discretion in s 473DC, although Thawley J did not ultimately determine this issue: see EMJ17 at [63].
The issue for the Court to resolve in determining this ground is therefore a question of fact as to whether or not the Authority proceeding on the misunderstanding that it could only exercise the discretion in s 473DC of the Migration Act to invite the first applicant to attend an interview if it was satisfied that there were exceptional circumstances.
In oral submissions, Counsel for the applicants submitted that the relevant reasoning of the Authority in the present matter is indistinguishable from the reasoning of the Authority which Thawley J found was affected by jurisdictional error in EMJ17. That reasoning is extracted at [59] of the judgment in EMJ17 and reads (emphasis added):
The submission contends that information regarding the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. The IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru.
Justice Thawley found, based on this reasoning, that the Authority decision considered in EMJ17 was affected by jurisdictional error because the Authority thought the discretion in s 473DC(1) of the Migration Act was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information, exceptional circumstances within the meaning of s 473DD(a) which would justify the Authority later considering the new information: see EMJ17 at [63].
I acknowledge that the language used in the penultimate sentence of [17] of the Authority’s reasons in the present matter, namely that the Authority did ‘not consider that there are exceptional circumstances to justify having [the first applicant] undertake an interview’ with the Authority, is not materially different from the impugned sentence in EMJ17.
However, it is important to read that sentence in its proper context within the Authority’s reasons. When I have regard to the whole of [17], I accept the submission advanced by Counsel for the Minister that I should not infer from the use of the term ‘exceptional circumstances’ in the present case that the Authority imported the requirement in s 473DD(a) to its consideration of whether it should exercise the discretion in s 473DC(1) to invite the first applicant to attend an interview. My reasons for reaching this view are largely consistent with the oral submissions advanced by Counsel for the Minister.
First, and most significantly, the Authority at [17] of its reasons expressly and accurately referred to the power in s 473DC to get new information, including the non-compellable nature of the power. This was absent from the relevant Authority reasoning in EMJ17. Of course, the correct identification of a statutory power does not necessarily lead to the conclusion that there is no error in the application of that power or discretion. However, in circumstances where the Authority correctly identified its discretion in s 473DC, and did not in any way refer to s 473DD of the Migration Act at [17] of its reasons, I would not find that the Authority imported the exceptional circumstances test in s 473DD(a) to its consideration of whether it should exercise its discretion in s 473DC to get new information by interviewing the applicant, unless the reasoning as a whole disclosed that the Authority had misunderstood its power in that way.
Second, the Authority referred to the general position that, subject to the requirements of the Migration Act, the Authority must conduct the review by considering the review material without interviewing the referred applicant. This is consistent with s 473DB(1)(b) of the Migration Act. The significance of this is an acknowledgement on the part of the Authority that although it has the discretionary power to get new information, there is no expectation in the Migration Act that that power would ordinarily be exercised in every case. As Counsel for the Minister submitted, it is ‘within the scope and purpose of that power [in s 473DC] for the [A]uthority to make reference to the absence of there being nothing out of the ordinary, nothing exceptional that would justify interviewing the applicant because it would only be, in the ordinary course, and exceptional or out of the ordinary case for that non-compellable power to be exercised’.
Taking into account the way in which the Authority identified the statutory power in s 473DC and the usual position that a review would ordinarily be conducted without interviewing a referred applicant, I accept the Minister’s submission that by referring to ‘exceptional circumstances’ at [17], the Authority should not be understood to be confusing itself by applying the test in s 473DD. Rather, the Authority, in the exercise of its discretion, took into account that there was nothing exceptional in the matter that would persuade it to invite the first applicant to attend an interview to give new information. This view of the Authority was reached after the Authority decided that the new information in the first applicant’s statutory declaration met the requirements of s 473DD and in circumstances where the Authority accepted the factual assertions of past harm referred to in the statutory declaration.
Nothing in the applicants’ ground or submissions amounts to an assertion that the Authority was prohibited from considering, in the exercise of its discretion to get new information conferred by s 473DC(1), whether there were exceptional circumstances, provided that the Authority did not import the exceptional circumstances test in s 473DD(a) of the Migration Act to its consideration of whether it should exercise its discretion in s 473DC(1) to get new information. This is consistent with the view that appears to have been preferred by Thawley J in EMG17 at [63].
Further, I accept the Minister’s submission that the requirement that the Authority consider that new information ‘may be relevant’ goes to the definition of ‘new information’. If the Authority forms the view that there is information that may be relevant to the review and which was not before the Minister at the time of the s 65 decision, that information will meet the definition of ‘new information’. The discretion in s 473DC(1) to get information that meets the definition of ‘new information’ is largely unfettered, save for the implication that it must be exercised reasonably. There does not appear to be anything in the language used in s 473DC(1), or its context within Part 7AA of the Migration Act, or in the Migration Act as a whole, that would lead to a conclusion that the Authority is prohibited from considering whether or not the matter before it is exceptional or unusual in deciding whether or not to exercise its discretion in s 473DC(1) of the Migration Act to get new information.
For the above reasons, I find that the Authority did not apply the wrong test in deciding not to exercise its discretion in s 473DC of the Migration Act to invite the first applicant to attend an interview. Ground 1 is not established.
Ground 2
By ground 2, the applicants assert that the Authority acted unreasonably in not exercising its discretion in s 473DC to invite the first applicant to an interview. The ground relates to the same paragraph of the Authority’s reasons that was considered in ground 1.
The first applicant’s request to be invited to attend an interview before the Authority was framed in the following way in her submissions provided to the Authority on 14 November 2018:
The Applicant requests the opportunity to be heard in relation to her claims for protection. Specifically, the Applicant requests the IAA utilises its discretion pursuant to s.473DC(3) of the Act to invite her to attend a hearing to address her claims for protection and any adverse information that arises throughout the review process. The Applicant submits that given that she was not interviewed by the Delegate, it would be unreasonable for the IAA not to consider giving the Applicant an effective opportunity to put forward her claims for protection to ensure the IAA arrives at the correct and preferable decision.
A similar request was made in the following terms in a separate submission provided on the same date addressing why the Authority should have regard to new information (footnotes omitted):
Additionally, the Applicant requests the opportunity to be heard in relation to her claims for protection that are ‘implicit in the material’ before the IAA and have been further elaborated on in the new information provided with this submission. The Applicant submits that it would be unreasonable for the IAA not to consider giving the Applicant an effective opportunity to put forward her claims for protection to ensure the IAA arrives at the correct or preferable decision. Such unreasonableness would be compounded by the fact that the Applicant has never been interviewed or heard by a delegate of the Minister for Home Affairs or the IAA. Should the IAA affirm the present Decision without interviewing the Applicant, the Applicant will have been denied an opportunity to impress at an interview or hearing and deprived of the possibility of a successful outcome (as described in WZARH v MIBP [2015] HCA 40).
The applicants submitted that in declining to exercise its discretion in s 473DC to invite the first applicant to an interview, the Authority acted unreasonably for the following reasons:
(a)The general presumption that a review under Part 7AA of the Migration Act will be conducted on the papers is based on the usual case in which an applicant will have had an opportunity to put his or her case in an interview with the delegate and to have that case tested by a delegate. The Authority will generally have access to an audio recording of the interview. However, in this case, the first applicant was never interviewed by a delegate and there was nothing from which to assess her claims except her statutory declaration and her representative’s written submissions.
(b)The Authority was deprived of information on which the first applicant relied, relating to the ‘exposure to traumatic triggers’ that had occurred when the first applicant was detained on Manus Island, which was important in assessing the vulnerability of the first applicant. The Department ‘deactivated’ its file in relation to that matter and no longer held the information. This created an informational gap in the case put forward by the first applicant.
(c)The Authority’s acceptance of the first applicant’s claims to have been sexually assaulted in the past, which is the reason it gave for not interviewing the first applicant, cannot dispose of the issue of whether or not she had a full opportunity to have her claims elaborated on and tested at an interview. Many of her claims, especially about what would happen in the future, were not accepted by the Authority.
(d)The High Court confirmed in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [16] that the Authority has powers to get and consider new information to enable the Authority to bridge an informational gap, and (it was submitted) this relates not only to an informational gap between the information before the delegate and the information before the Authority (as was the case in ABT17), but also to informational gaps between the information the Authority has in a particular case and the information that the Authority would ordinarily be assumed to have in the review material.
The Minister submitted that the ground is not established because:
(a)The applicants’ argument appears to assume that in cases where a fast track applicant is not interviewed by the delegate, the Authority on review must interview the applicant because otherwise the Authority will be limited to reviewing the claims on paper, which is a view that finds no support in the provisions of the Migration Act including Part 7AA.
(b)The applicants’ argument fails to acknowledge the discretionary nature of s 473DC and overlooks entirely the reasons given by the Authority for not interviewing the applicant. The Court should look to those reasons to understand why the power was exercised as it was. The reasons given by the Authority for not inviting the first applicant to an interview comprise a cogent and intelligible justification for the non-exercise of the discretion.
(c)The applicants’ submission that the Authority was deprived of information relating to the first applicant’s ‘exposure to traumatic triggers’ does not give rise to unreasonableness in circumstances where the Authority accepted that the first applicant had previously suffered seizures and where there was no information that the first applicant had suffered any seizures since being removed from Manus Island in 2013, or that she had sought medical or psychological treatment or counselling since being removed from Manus Island.
(d)There was no relevant informational gap, because the Department file that contained the information said to be relevant to the ‘exposure to traumatic triggers’ was not possessed by the delegate and therefore the Authority was at no disadvantage to the delegate in assessing the material before it relating to the first applicant’s protection claims.
(e)While the statutory scheme proceeds on the expectation that, in the normal course, a person who has advanced protection claims before the Department would have been given an opportunity to attend an interview, the first applicant in the present case made a choice to rely on the claims of her husband when the matter was before the Department. The first applicant explained the reasons for not advancing her claims sooner in her statutory declaration and the Authority accepted that these were perfectly understandable reasons. By the time the matter was before the Authority, the first applicant felt that she was in a position to advance her claims and she has taken up that opportunity by providing the Authority with as much detail as she has chosen, with appropriate advice, to give concerning her claims.
(f)The Authority took into account that the first applicant had not attended an interview before the Department. It was a matter for the Authority to assess, by reference to the information that it did have, whether the first applicant had a well-founded fear of persecution on return to Sri Lanka, or whether there was a real risk of significant harm, and it did not need to invite the first applicant to an interview simply to test her claims or to ask her to give more information than what she had chosen to give in her statutory declaration.
In resolving this ground, I take into account that although there is no statutory entitlement for a protection visa applicant to attend an interview with a delegate of the Minister, ordinarily a fast track applicant who advances claims for protection before the Department would be invited to attend an interview to discuss their claims for protection, and ordinarily a recording of that interview would be in the review materials provided to the Authority. I also take into account that the reason the first applicant did not attend an interview with the Department is because of decisions made by her and her representatives. This is not to criticise the first applicant in any way and I acknowledge that she provided understandable reasons in her statutory declaration as to why she did not advance claims at an earlier stage. Rather, it is to acknowledge that this is not a case where the Department’s ordinary procedures have miscarried in any way, and therefore not a case where the Authority would be expected to ‘fashion its procedures’ to overcome a defect in the process adopted by the delegate, or risk a finding of unreasonableness: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174/2016) at [49]. Neither party in the present matter is criticising the approach of the delegate in any way.
There is no question that the Authority had a discretion, conferred by s 473DC of the Migration Act, to invite the first applicant to attend an interview. It is well-established that the discretion in s 473DC to get new information must be exercised reasonably: Plaintiff M174/2016 at [21]; ABT17 at [3]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [27].
Notwithstanding the usual expectation that an applicant who advances claims for protection before the Department would be invited to an interview before a delegate, there is nothing in the text, context or purpose of the Migration Act, including Part 7AA, that would make it unreasonable for the Authority not to invite an applicant to an interview simply because an applicant did not advance their own claims before the Department and therefore did not attend an interview. The parties have not referred me to any cases which might suggest otherwise.
To this end, I do not consider that the way the applicants purport to rely on the High Court’s judgment in ABT17 facilitates the resolution of this ground. The type of informational gap considered in ABT17 was between the information that was before the delegate and the information that was before the Authority. In that case the delegate was able to visually assess the applicant whilst he gave evidence, which was relevant to the delegate’s assessment of applicant’s demeanour, whereas the Authority only had access to an audio recording of the interview the applicant attended with the delegate: see ABT17 at [13]. The finding that the Authority acted unreasonably was not based simply on a failure by the Authority to bridge the identified informational gap. Rather, the Authority was found to have acted unreasonably by making adverse findings in relation to the applicant’s credibility, contrary to the findings made by the delegate, without exercising the discretion in s 473DC to invite the applicant to an interview so that the Authority could assess for itself the applicant’s demeanour: see ABT17 at [29]-[30].
Unlike ABT17, the present case is not one where the delegate had access to information which was unavailable to the Authority and it is not a case where the Authority made findings adverse to the first applicant which were different to findings made by the delegate based on information available to the delegate but not the Authority. There is a significant difference between the nature of the unreasonableness found in ABT17 and an assertion, like the one advanced by the applicants in this case, that it is unreasonable for the Authority not to invite an applicant to provide new information simply because there is a gap between the information that is before it in a particular case and the types of information that the Authority would ordinarily expect to receive in the referred materials. ABT17 does not provide any direct support for the unreasonableness asserted by the applicants in the present case.
In circumstances where the Authority gave reasons for its decision not to interview the first applicant, it is appropriate to have regard to those reasons in determining whether the Authority’s decision was unreasonable.
The Authority’s reasons at [17] in the present case clearly take into account that the first applicant did not attend an interview with the delegate or some other officer of the Department. The Authority also took into account that the first applicant had requested an interview. The main reason given by the Authority for not interviewing the first applicant is that the first applicant provided a ‘very detailed statutory declaration’ and the Authority accepted the first applicant’s claims that she had been verbally and sexually assaulted in Sri Lanka by members of the Sri Lankan Army in 2007 or 2008 and this had a significant psychological, physiological and emotional effect on her.
This explanation of the Authority comprises an evident and intelligible justification for not interviewing the first applicant.
While I acknowledge the applicants’ submission that the Authority did not accept the first applicant’s claims that she would face future harm in Sri Lanka, the Authority’s findings in this regard were not based on any finding that the first applicant lacked credibility, but were rather based on country information and the absence of evidence. For example, the Authority took into account country information about the circumstances of women who are most at risk of gender-based violence and found that, as a married person who would be under the protection of her husband, the first applicant did not share the characteristics of those women most at risk of gender-based violence. The Authority also took into account the absence of any claim that the first applicant suffered further harm after 2009. It was not unreasonable for the Authority to make findings of this nature without interviewing the first applicant. The Authority is not obliged to invite an applicant to comment on country information and, if the first applicant had raised her claims before the delegate, the delegate also would not have been obliged to invite her to comment on country information: see ss 57(1)(b), 473DE(3)(a) of the Migration Act.
In written submissions, the applicants drew attention to the unavailability of the Department file in relation to the first applicant’s mental health conditions. I do not accept that the Authority has acted unreasonably in not inviting the first applicant to attend an interview to discuss her mental health conditions. The applicants did not provide a copy of the relevant Department file to the Authority or make any request that the Authority obtain the file from the Department. Rather, the applicant’s representative noted that a letter had been submitted to the Department as part of the protection visa application which contained information that was on the Department’s file to the effect that the first applicant experienced past trauma and suffered a very serious health consequence connected to that past trauma while in immigration detention. The submission also included a footnote which read ‘The Applicant was screened for a physiological cause of her seizures whilst in the care of the Department of Immigration and Border Protection and it appears in the absence of evidence to the contrary that the seizures she suffered were indicative of a somatoform disorder rather than epilepsy or any other biological disorder’.
The Authority, of its own volition, asked the Department for its file on this matter. This is seen in [12] of the Authority reasons where the Authority said (footnotes omitted):
The submission included new information that “the applicant was screened for a physiological cause of her seizures whilst in the care of the Department and it appears in the absence of evidence to the contrary that the seizures she suffered were indicative of a somatoform disorder rather than epilepsy or any other biological disorder”. This information was apparently obtained from an electronic Department file dated 2012 when the applicant was detained at Christmas Island. The IAA asked the Department for the file and if it had been before the delegate. The delegate stated it was not before him and it had been deactivated. I consider there are exceptional circumstances to justify considering this new information and also the new information provided by the applicant’s representative about non-epileptic seizures (PNES).
The first applicant gave evidence in her statutory declaration about three seizures she had experienced on Christmas Island and Manus Island. She did not give evidence of any further seizures since early 2013 and did not provide any updated medical evidence to the Authority. In finding that the applicant would not face harm from her seizures, the Authority relied on the lack of information before it that the applicant had experienced any seizures since being removed from Manus Island in 2013, or that she had sought medical or psychological treatment or counselling since being removed from Manus Island. The Authority acknowledged that this did not discount the possibility of re-traumatisation in highly stressful situations but noted that there was no information before it that the first applicant currently had a medical or psychological condition the required treatment. The Authority considered it to be speculative that the first applicant may have another seizure five years after her last recorded seizure in the context of a brief period of detention at the airport.
Taking into account the manner in which the first applicant raised these claims with the Authority, that she was receiving legal advice at the time she submitted her claims and that she did not provide any evidence of any seizures or health condition that she experienced after 2013, it was not unreasonable for the Authority not to invite the first applicant to an interview to discuss her mental health condition. It should also be borne in mind that the Authority is not under any obligation to assist an applicant to make further or better claims for protection: ERE18 v Minister for Home Affairs (No 2) [2021] FCA 1346 at [42]; Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187].
Finally, in oral submissions, Counsel for the applicants submitted that it was unreasonable for the Authority not to interview the first applicant to discuss the second applicant’s claims relating to statelessness. Again, I do not consider that it was unreasonable for the Authority not to invite the first applicant to an interview to discuss this aspect of the second applicant’s claims. The Authority accepted the factual foundation of the claims, namely that the second applicant was born in Australia and his birth had not been registered with the Sri Lankan authorities. The nature of the claims raised is discussed further below in relation to ground 4, but for present purposes, it is sufficient to note that the findings made by the Authority in relation to the nature of the claimed fear of harm were based on country information and not any credibility concerns.
The applicants have not established that the Authority acted unreasonably in not inviting the first applicant to attend an interview to discuss her claims for protection and ground 2 therefore fails.
Ground 3
By ground 3, the applicants assert that the Authority failed to assess new information provided by the first applicant against the criteria in s 473DD of the Migration Act.
In order to consider new information, the Authority must be satisfied that the requirements of s 473DD are met. Section 473DD provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), the High Court held that in applying s 473DD in respect of new information provided by an applicant, the proper approach is to first consider the criteria in both of s 473DD(b)(i) and (ii), and if either or both of those criteria are met, take into account the findings in relation to those criteria in determining whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a). This can be seen most clearly at [11] and [12] where the High Court said (footnotes omitted):
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either of the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12.The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
In considering the judgment in AUS17, Markovic J said in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17) at [79]:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in a particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed in s 473DD(b) has been considered prior to the consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
In the present case, the first applicant provided to the Authority a submission which contained new information about harassment her husband was experiencing prior to his departure from Sri Lanka. The Authority found at [13] that the new information did not meet the criteria in s 473DD. The Authority said:
The statutory declaration also included new information that she and her husband departed Sri Lanka in about September 2012 due to the harassment her husband was experiencing from authorities who would tell him to go to a nearby camp for questioning. She could see he was anxious and fearful and ‘could see the belt marks on his body’. He did not tell her about what happened when he was taken for interrogation. This occurred during the period between her husband’s return from Guinea and departure for Australia. This information contradicts the information her husband provided at his protection interview with the delegate in May 2017 at which, in response to the delegate’s questions, the applicant confirmed that the four occasions he was taken to the [Criminal Investigation Department] office for questioning were all before he left for Guinea and he was not questioned after his return from Guinea. Nor was he required to report to the authorities after his return from Guinea. The applicant received the delegate’s decision in which her husband’s evidence was recorded. Given the inconsistencies between her evidence and that of her husband who was the subject of the claimed harm, the applicant has not satisfied me that there are exceptional circumstances to justify considering this new information and it does not meet the requirements of s.473DD(a).
The applicants submitted that Authority made a finding only in relation to s 473DD(a) of the Migration Act, and did not address the criteria in s 473DD(b)(i) and (ii).
The Minister acknowledged that the Authority was required to take into account the outcome of its assessment under s 473DD(b)(i) and (ii) in deciding whether there were exceptional circumstances for the purposes of s 473DD(a), but submitted, relying on APH17, that the Authority is not required to engage in any particular formulaic consideration of s 473DD(b). The Minister submitted that the Court should infer:
(a)the Authority took into account the fact that the new information was information that could have been given to the delegate but was not (s 473DD(b)(i)) because the Authority identified that the new information related to past events the husband applicant had sought to explain in his interview with the delegate regarding the occasions on which he had been interrogated by the Criminal Investigation Department (CID); and
(b)the Authority took into account whether the new information was credible personal information because the Authority referred expressly to the inconsistency between the claim in the new information and the husband applicant’s explanations of the occasions he was questioned by the CID.
I accept the applicants’ submission that the Authority did not consider the new information against the criterion in s 473DD(b)(i) of the Migration Act, and therefore did not take into account its assessment in relation to the criterion in s 473DD(b)(i) in its finding for the purposes of s 473DD(a) that there were not exceptional circumstances to justify considering the new information. In my view, the first four sentences of [13] of the Authority’s reasons are simply describing the new information. They do not, in substance or in form, amount to any finding that the new information could have been, but was not, provided to the delegate prior to the decision under s 65 of the Migration Act. This remains the case even though it is clear that the new information relates to the first applicant’s recollection of past events in Sri Lanka.
In oral submissions, Counsel for the Minister submitted that if I was not persuaded by his submission that the Authority was clearly cognisant of the fact that the new information was information which could have been, but was not, provided to the delegate, the absence of any submission put by the first applicant to the Authority that the information was new or why it was not raised earlier means that any error could not be material. I do not accept this submission. While it is true the terms of s 473DD(b) and the Authority’s Practice Direction put the onus on an applicant to show that the criteria in s 473DD(b) are met, the first applicant in the present matter does appear to have advanced some submission purporting to discharge this onus, which the Authority does not appear to have considered in respect of the new information addressed at [13].
The new information was put forward in the first applicant’s statutory declaration. In a submission provided to the Authority with the statutory declaration, the applicants advanced two reasons as to why the new information in the statutory declaration was not provided to the delegate: the first applicant was not invited to attend an interview with the delegate, and the applicants’ previous migration agent never met with the first applicant and did not ask her about the reasons she feared returning to Sri Lanka at the time that the protection visa application was prepared. The Authority considered and accepted this explanation in relation to the new information addressed at [9]-[11] of its reasons about the first applicant’s claims of past sexual assault, but there is nothing in the Authority’s reasons to indicate whether or not it also accepted this explanation in respect of the new information addressed at [13]. This may be because the majority of the information in the applicants’ submissions focused on the claims of past sexual assault. Nevertheless, in circumstances where:
(a)the applicants offered an explanation as to why the new information was not provided to the delegate; and
(b)there is nothing in the Authority’s reasons from which I can infer that the Authority considered that explanation in respect of the new information addressed at [13] of the Authority’s reasons,
I cannot conclude, simply because the applicants bear the onus of satisfying the Authority of the matters referred to in s 473DD(b), that the Authority’s failure to consider the criterion in s 473DD(b)(i) is not material.
I therefore find that the Authority failed to consider the criterion in s 473DD(b)(i) and that error was material.
On balance, I also find that the Authority did not consider the criterion in s 473DD(b)(ii), although for slightly different reasons than those advanced by the applicants.
In responding to the Minister’s submissions, Counsel for the applicants submitted that the Court should following the judgment in AUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 350, where Moshinsky J at [14] found that the Authority had not considered s 473DD(b)(ii) in circumstances where it did not refer to subparagraph (ii) and did not refer to the test posed by subparagraph (ii), namely, whether the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. I acknowledge that, in the present case, the Authority likewise did not specifically refer to subparagraph (ii) or the terms of the criterion. However, if the Authority had made findings that, in substance, addressed the criterion in s 473DD(b)(ii), I would be willing to accept that the Authority had considered the criterion, consistent with the approach in the extract of APH17 above.
In the present case, the Authority made a finding that the new information was inconsistent with the husband applicant’s evidence to the delegate. This finding of inconsistency seems at first glance like a finding that the information was not credible. However, the only identified inconsistency relates to the timing of the interrogations. There is nothing in the Authority reasons to indicate whether the Authority proceeded on the basis that, because of the inconsistency in the alleged timing of the events, the whole of the new information considered at [13] was not capable of being believed, or whether the Authority turned its mind to whether the substance of the information itself might be capable of being believed, if one allowed for the possibility that either the first applicant or the husband applicant was mistaken about the timing of the incidents. In these circumstances, the more likely scenario is that the Authority simply found that the first applicant’s evidence as to the timing of the events was inconsistent with the husband applicant’s evidence about the timing of the events, without considering whether or not the balance of the new information considered at [13] was credible in the sense that it was capable of being believed.
Ground 3 is established and writs will issue as a result.
Ground 4
By ground 4 the applicants assert that the Authority misconstrued and failed to properly consider the claims of the applicants that related to the second applicant’s statelessness. Before turning to the parties’ submissions in relation to this ground, it is convenient to set out the way in which the applicants’ claims were advanced and how they were addressed by the delegate and the Authority.
The second applicant was born in Australia and claimed in his protection visa application that he was stateless.
The delegate found that the second applicant was a citizen of Sri Lanka. The delegate found, citing a document titled ‘Registration of Birth outside Sri Lanka’ dated 28 February 2017 (footnotes omitted):
According to the Sri Lankan Citizenship Amendment Act, No.16 of 2003 – Section 5(2) – A person born outside Sri Lanka after 15th November 1948 will be deemed to be a citizen of Sri Lanka if, at that time, his or her father or mother was a citizen of Sri Lanka. I am satisfied, based on findings made previously that applicants one and two are citizens of Sri Lanka and that they are the biological parents of applicant three. Therefore, applicant three is deemed to be a citizen of Sri Lanka.
In a submission to the Authority provided on 12 July 2017 by the applicants’ representative, the Authority was asked to accept a number of facts accepted by the delegate, including that the second applicant is ‘an ethnic Tamil and a Sri Lankan citizen’.
The purported decision of the Authority made on 6 February 2018 was quashed by consent because the Authority overlooked new information in the submission provided on 12 July 2017 regarding a claim by the second applicant that he feared harm resulting from the detention of his parents.
Following the remittal, in her statutory declaration to the Authority, the first applicant said (emphasis added):
29.On [date redacted] my son [name redacted] was born. Since we fear the Sri Lankan authorities, we have never registered his birth with them, so he never became a citizen of Sri Lanka.
…
35.When we arrive in Sri Lanka as involuntary returnees, my husband, son and I will be detained and questioned since we will be arriving on temporary travel documents. Because of my past experience of sexual assault and harassment by the Sri Lankan authorities, the fact that I fled Sri Lanka illegally and sought asylum overseas, and the fact that I am a Tamil woman married to someone associated with LTTE, I fear that I will be subjected to sexual violence and cruel, inhuman or degrading treatment or punishment, including of a sexual nature, if I am involuntarily returned to Sri Lanka. I fear that the fact that my son does not have Sri Lankan nationality since he was never registered with the Sri Lankan authorities will cause us to face further harm and/or to be detained for a longer period thereby increasing the risk of harm faced, and/or that I might be separated from [the second applicant] in this process.
The Authority then said at [70]-[73] of its reasons (footnotes omitted):
70.At the time of writing this decision the applicant was pregnant with her second child, due in December 2018. The applicant has stated that she fears the fact that her child/children do not have Sri Lankan nationality since they have never been registered with the Sri Lankan authorities will cause her to face further harm and/or to be detained for a longer period thereby increasing the risk of harm faced, and/or that she might be separated from her child/children in the process.
71.I had regard to the country information about the registration of births outside Sri Lanka which indicates that the applicant’s children are deemed to be nationals of Sri Lanka and their births can be registered at the Sri Lankan mission in the country of their birth, that is, Australia. A fine will be imposed if the birth is not registered within one year of the date of birth, but there are no other barriers to registration. A certificate of citizenship is then provided. The applicant has not suggested that she would refuse to register her children’s births with the Sri Lankan mission for any political or other reason and I am satisfied there are no obstacles to her doing so. Alternatively, the applicant can register the child/children’s birth on her return to Sri Lanka with the provision of their birth certificates and other relevant documents, until they turn 18 years of age. I am satisfied there is no real chance either she or the dependent applicant(s) will suffer any harm for reasons of not having registered the child/children’s births within a year of their date of birth.
72.There is no information before me to suggest that young children are separated from their parent when they undergo processing and questioning on their return to Sri Lanka. The applicant has not satisfied me that there is a real risk she will be separated from her children on her return for any reason. There is also no information before me to suggest that returning with children born outside of Sri Lanka would significantly increase the period the applicant and/or her husband may be detained.
73.Overall I am satisfied that the fact the applicant’s child/children were born in Australia and, in the case of the dependent applicant, was not registered as a Sri Lankan citizen within one year of his birth, will not result in any chance of serious harm to either the primary applicant or dependent applicant from Sri Lankan authorities or any other person if they return to Sri Lanka now or in the reasonably foreseeable future.
The applicants submitted that the Authority made the same mistake as the delegate in finding that the second applicant was not stateless, but was a citizen of Sri Lanka.
The applicants submitted that the question of whether a person is a citizen of a foreign country is a question that falls to be determined entirely by the construction of the foreign law, relevantly s 5(2) of the Citizenship Act, which provides:
Subject to the other provisions of this Part, a person born outside Sri Lanka on or after the appointed date shall have the status of a citizen of Sri Lanka if at the time of his birth either of his parents is or was a citizen of Sri Lanka and if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner:
(a) at the office of a consular officer of Sri Lanka in the country of birth, or
(b) at the office of the Minister in Sri Lanka.
The applicants submitted that as the second applicant’s birth was never registered, he is not a citizen of Sri Lanka, and that the Authority erroneously assumed that a child will automatically be a citizen from birth and that registration is not more than an administrative process to register the fact of citizenship that already existed. The applicants submitted that the Authority’s finding that the second applicant was a citizen by operation of s 5(2) of the Citizenship Act was an error.
The applicants submitted that, as a consequence of this error, the Authority failed to assess the claims of the second applicant by reference to the proper factual and legal context, namely the claims of a stateless person to fear harm if refouled to Sri Lanka. It also failed to assess the claims of the first applicant and the husband applicant by reference to the proper factual and legal context, namely the claims of individuals who are the members of the same family unit as a stateless child and who feared separation from him and differential treatment due to his status. In oral submissions, Counsel for the applicants submitted that the claim considered by the Authority at [71] and [72] related to whether any harm would arise as a result of a Sri Lankan citizen child not yet being registered, which is a fundamentally different question to whether the distinction between citizen parents and a stateless child would lead to separation or prolonged detention. That claim was never considered. In advancing the submissions, the applicants relied on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63], where the Full Court said:
It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusions in whole or in part upon the claim so misunderstood or misconstrued it error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
The Minister submitted that in judicial review proceedings, the existence, nature and scope of any rules and principles of the law of a foreign jurisdiction are to be treated as issues of fact upon which evidence is receivable: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at [226]. While the applicants adduced in evidence a copy of the Citizenship Act, the applicants have not adduced any expert evidence as to the meaning of the law or its effect in a situation such as the present. The Minister submitted that in the context of a judicial review, the question of the content of the laws of Sri Lanka relating to citizenship was a question for the Authority to determine within jurisdiction, and any error in the conclusion as to the content of Sri Lankan law does not amount to jurisdictional error. In this regard, the Minister relied on BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683, where Wigney J considered a submission that the Authority had conducted its review based on a false understanding of the citizenship status of some of the visa applicants and said at [76]:
… to the extent that the finding was based on a finding concerning the content of Sri Lankan law, that finding was a finding of fact, not law. As noted earlier, the content, scope or operation of foreign law is a question of fact….
The Minister submitted that the Authority has not in any material way misunderstood or failed to consider the claims made by the applicants. The Minister submitted that the Authority accurately identified the first applicant’s claim at [70] and the Authority considered and resolved that claim by having regard to Sri Lankan law as revealed to it through a document from the Consulate General of the Democratic Socialist Republic of Sri Lanka. The Minister submitted that the Authority made no assumption that the second applicant was automatically assumed to be a Sri Lankan citizen from birth or that registration was no more than an administrative process to register the fact of citizenship that already existed. The country information referred to by the Authority may be taken to be a credible and reliable source of information upon which basis the Authority addressed the question of the citizenship status of the second applicant.
In oral submissions, Counsel for the Minister submitted that the first applicant’s submission was that because her son was not a citizen, it would be necessary for her to register him and that doing so will cause her to face harm, principally because she feared that either the registration process would cause a longer period of detention or that there would be separation in relation to the process. The Authority’s treatment of this claim at [71] to [73] does not hinge upon the question of statelessness.
I accept the Minister’s submissions in relation to this ground.
Insofar as the ground is premised on the Authority making an incorrect finding as to whether or not the second applicant is a citizen of Sri Lanka, I am unable, on the evidence before me, to make any finding as to whether or not the Authority has proceeded on an incorrect understanding of the Sri Lankan law in a material way. Whilst I have in evidence a copy of the Citizenship Act, I do not have any expert evidence, country information or other material to explain how s 5(2) of the Citizenship Act is interpreted or applied. The Authority’s interpretation at [71] that the second applicant is deemed to be a national and his birth can be registered at the Sri Lankan mission in Australia appears, at face value, to be at odds with the express terms of s 5(2) of the Citizenship Act, which sets out two preconditions that must be met for a person to be deemed a citizen, the second being registration of the birth within one year or such further time as allowed.
However, the Authority made its decision based on country information, which is not in evidence before me, and which, on the face of the Authority’s reasons, appears to have contained more information about the application of s 5(2) than is evident from the terms of the provision itself. In particular, the Authority’s finding that a fine would be imposed if the birth is not registered within one year of the date of birth but that there are no other barriers to registration, and a citizenship certificate will then be provided, is based on country information from the Consulate General of the Democratic Socialist Republic of Sri Lanka. In circumstances where that evidence is not before the Court, I cannot conclude that the Authority’s finding based on that information was not open to it. In any event, while the applicants submitted that the Authority was wrong to find that the second applicant is deemed to be a citizen of Sri Lanka, the applicants have not challenged the findings based on country information that the applicants would need to pay a fine to register the second applicant’s birth, but that there are otherwise no barriers to registration.
Even if the Authority did make an error in finding that the second applicant is deemed to be a citizen of Sri Lanka, I am satisfied that this would be an error of fact within jurisdiction. I do not accept that any such error of fact caused the Authority to misunderstand or misconstrue the applicants’ claims. In this regard, I accept the Minister’s submission that the Authority’s reasoning at [71] to [73] does not hinge on the question of whether the second applicant was stateless.
It can be seen from the way in which the first applicant advanced her claims in the statutory declaration that she did not claim that the applicants would face harm because the second applicant was stateless per se, but rather claimed that the applicants would face further harm or be detained for a longer period, and might become separated, because the second applicant does not have Sri Lankan citizenship since he was never registered with the Sri Lankan authorities.
The Authority has effectively addressed the claim as advanced by the applicants by first finding that the applicants could, upon the payment of a fine, register the second applicant’s birth before returning to Sri Lanka. It is implicit in the Authority’s reasons that, if the applicants were to do this, the basis upon which they claim to fear harm is removed or mitigated because, if the birth is registered and a citizenship certificate issued whilst the applicants are still in Australia, the second applicant will be returning to Sri Lanka as a citizen.
The Authority then proceeded to acknowledge that there was an alternative way to register the birth of the second applicant, namely, by registering his birth upon return to Sri Lanka with the provision of a birth certificate and other relevant documents, until he turns 18 years of age. It is implicit in this that the Authority also turned its mind to a scenario where the applicants would return to Sri Lanka at a time before the birth of the second applicant was registered.
The balance of the Authority’s consideration of the applicants’ claim, to the effect that there was no information before it to suggest that young children are separated from their parents when they undergo processing or questioning upon return to Sri Lanka or that there would be any significant increase in the period in which the applicants may be detained as a result of the second applicant being born outside of Sri Lanka, is not dependent on any finding as to whether the second applicant would be returning as a citizen or whether he would return before his birth was registered.
I am satisfied that the Authority has considered the applicants’ claims as advanced and that any error of fact in the Authority’s approach to whether or not the second applicant is stateless did not cause the Authority to misconstrue or misinterpret the applicant’s claims in any material way.
Ground 4 is not established.
CONCLUSION
Given that I have found that ground 3 is established, it follows that the applicants are successful in their application to this Court and it is appropriate to issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the review according to law.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 May 2023
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