BJB17 v Minister for Immigration
[2020] FCCA 469
•6 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJB17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 469 |
| Catchwords: MIGRATION – Proper and genuine consideration of statelessness – conducting a review based on a false understanding – failure to exercise section 473DC power to get new information – no failure to comply with section 473CB(1)(b) requirement to give all material – no failure to have regard to substantial and relevant material. |
| Legislation: Migration Act 1958 (Cth), ss.473CB(1)(b), 473CB(1)(c), 473DC, 473DD |
| Cases cited: Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 |
| First Applicant: | BJB17 |
| Second Applicant: | BJC17 |
| Third Applicant: | BJD17 |
| Fourth Applicant: | BJE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 645 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 November 2019 |
| Date of Last Submission: | 12 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Mr Solomon-Bridge |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 30 March 2017 in MLG645 of 2017 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,983.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 645 of 2017
| BJB17 |
First Applicant
| BJC17 |
Second Applicant
| BJD17 |
Third Applicant
| BJE17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These matters arise by an Application made on 30 March 2017 by BJB17 (‘the First Applicant’ or ‘the husband'), BJC17 (‘the Second Applicant’ or ‘the wife’), BJD17 (‘the Third Applicant’) and BJE17 (‘the Fourth Applicant’) (collectively, ‘the Applicants’).
The Applicants seek judicial review of a decision of the Second Respondent (‘the Authority’ or ‘IAA’) dated 7 March 2017 which affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) to refuse to grant them Safe Haven Enterprise (subclass 790) Visas (‘SHEV’).
Background
The Applicants are a family unit comprising of a husband (the First Applicant), his wife (the Second Applicant), and their two sons (the Third and Fourth Applicants) (‘the children’).
The husband and the wife were both born in Sri Lanka and are Sri Lankan citizens. They left Sri Lanka for India in 1990 and did not return prior to arriving in Australia by boat in November 2012 as unauthorised maritime arrivals. Both sons were born in India and have never been to Sri Lanka.
On 15 December 2015, the Applicants were invited to apply for either a Temporary Protection (subclass 785) Visa or a SHEV.[1]
[1] CB 46-51
On 6 February 2016, the Applicants’ representative sent a letter to the Department of Immigration and Border Protection informing them of its appointment as legal representative and requesting an extension of time to complete their application.[2]
[2] [CB 52-55
On 3 March 2016, the Applicants lodged a combined application for the SHEV.[3] In so doing, the husband[4] and wife[5] each made a statement in support of the application, submitted together with additional country information.[6] This application was acknowledged on 11 April 2016.
[3] [CB 56−453]
[4] [CB 191−197]
[5] [CB 198−222]
[6] [CB 246−453]
On 23 August 2016, the Applicants were invited to attend an interview on 13 September 2016 to discuss the application and present evidence (‘the SHEV interview’).[7] It appears that the applicant did attend the SHEV interview, though the date of the SHEV interview is not apparent from the Court Book.
[7] [CB 472−474]
On 16 September 2016, the Applicants' representatives forwarded more documents including birth certificates, country information, including two CDs containing videos (‘the CDs’).[8]
[8] [CB 475−552]
On 26 October 2016, the Applicants were notified that the Delegate refused to grant the SHEV visa.
On 31 October 2016, the Applicants’ application was referred to the Authority.
On 17 November 2016 the Applicants’ representative emailed the Authority requesting an extension of time to file submissions.
On 18 November 2016, the Applicants’ representative filed further submissions to the Authority.
On 27 February 2017 a representative of the Authority called the Applicants’ representative regarding provision of written confirmation of authorised appointments for all Applicants and the Authority confirmed that it was not in receipt of the two CDs.
Also on 27 February 2017, an email was sent from the Authority to the Applicants’ representative requesting completed F2 forms for each Applicant.
On 1 March 2017, the Applicants’ representative sent an email to the Authority in response to the request for F2 forms for each Applicant.
On 3 March 2017, the Applicants’ representative sent a letter to the Authority enclosing a CD recording of an ABC report.
On 7 March 2017, the Authority affirmed the decision under review.
Claims of the parties
The husband’s and wife’s claims are summarised at [9]-[10] of the Authority’s decision. [9]
[9] CB 558 - 582
The sons were included as dependants on the Application and did not raise their own claims, although the wife raised claims on their behalf at [8] of the Authority’s decision.
The husband’s claim principally concerned his fear of harm arising from his membership, support of, and family links to the Liberation Tigers of Tamil Eelam (‘LTTE’), his participation in political activities in India and the resultant attention of the authorities.
The wife's claims recounted her family's own experience during the civil war, including her family's moving to India when she was three years old, and included claims to fear harm on account of her husband's imputed support of, and family links to, the LTTE. The wife added that that she worried about her sons and claimed that school children go missing.[10]
[10] RS [5]
Authority’s decision
The Authority’s decision in this matter is accurately summarised by the First Respondent at [8] of its written submissions:
8. On 7 March 2017, the IAA affirmed the Delegate's decision and gave its reasons for so doing. Among other things, the IAA:
8.1 Found that it was "not satisfied there is a real chance the Sri Lankan authorities will continue to have an adverse interest in the applicants" on account of the husband's deceased father's links to the LTTE;
8.2 Found that it was "not satisfied that the applicants will face a real chance of harm from the Sri Lankan authorities" on account of the husband's brother's involvement with the LTTE , or on account of the husband's not having maintained police reporting requirements in India;
8.3 Found that, without any evidence, it was "speculation" that there was a good chance that the husband's photograph from demonstrations in India had appeared in Sri Lankan newspapers, and it was further speculation that the leader of a Tamil party in India would have related to the Sri Lankan president that the husband had been attending political meetings in India;
8.4 Noted the improved circumstances for Tamils in Sri Lanka since the civil war and found the Applicants would not face harm on return to Sri Lanka for reasons associated with their Tamil ethnicity; and
8.5 Found that it was not satisfied that the husband and wife could not obtain a national identity card on return to Sri Lanka and was also not satisfied that the sons face a real chance of harm in Sri Lanka due to being stateless.
(citations omitted)
Grounds
The Applicants’ Amended Application for judicial review contains four grounds (ground 3 having been abandoned at hearing):
1. The IAA failed to give proper and genuine consideration to a claim that clearly arose from the material, namely the claim that the third and fourth applicants would face persecution and/or a real risk of significant harm on the basis of their statelessness, either alone or in combination with their Tamil ethnicity and/or the imputed pro-LTTE opinion of their parents.
Particulars
(a) The IAA at [54] purported to deal with the third and fourth applicants’ chance of serious harm “due to being stateless” in a single sentence.
(b) There is no evidence in the decision record of a genuine intellectual engagement with the claim.
2. The IAA made a jurisdictional error in conducting its review based on a false understanding of the citizenship status of the third and fourth applicants.
Particulars
(a) The IAA found, correctly, that the third and fourth applicants were stateless.
(b) The IAA assumed, incorrectly, that the third and fourth applicants were entitled to Sri Lankan citizenship
(c) The IAA failed to assess the chance of the applicants suffering serious or significant harm against the correct factual basis, namely that the third and fourth applicants were stateless, had no right of entry into either India or Sri Lanka and no entitlement to Sri Lankan citizenship.
4. The failure of the Secretary to comply with the mandatory requirement in s 473CB(1)(b) to give to the IAA all of the material that had been provided by the applicants to the delegate prevented the IAA from conducting the review required by law, resulting in a constructive failure of the IAA to exercise its jurisdiction.
Particulars
(a) The applicants provided two CDs to the delegate providing evidence in support of their claims.
(b) The delegate refused to watch the two CDs.
(c) The IAA was not provided with the CDs by the Secretary, in breach of s 473CB(1)(b).
(d) The IAA correctly found that the CDs were not new information because they had been before the delegate.
(e) One of the CDs was provided directly to the IAA by the applicants but the other was not.
(f) The failure of the Secretary to provide the CDs to the IAA prevented the IAA from conducting the review required by statute.
5. The IAA made a jurisdictional error in that it failed to have regard to substantial and relevant material in making its decision
Particulars
(a) The applicants repeat particulars (a) to (e) of ground 4.
(b) The evidence in the two CDs constituted substantial material that was relevant to the review.
(c) The IAA did not have regard to the information in either CD in making its decision.
Applicant’s submissions
Ground 1 – failure to give proper consideration of statelessness
The Applicants, by submissions dated 12 September 2019, say that the Authority was obliged to give proper, genuine and realistic consideration to the harm arising from the children’s statelessness.[11]
[11] AS [9]
The Applicants rely on BZD17 v Minister for Immigration (2018) 263 FCR 292 for the proposition that such proper consideration requires an active intellectual engagement with the issue, and that mere advertence to the issue will not suffice.[12] By contrast, the Applicants say that the Authority ‘purported to deal with the issue of harm relating to statelessness in a single sentence’.[13]
[12] AS at [35]-[36]
[13] AS [11]
The Applicants say that the Delegate wrongly identified the children as Sri Lankan[14] and contend that:
14. There is no evidence in the decision record of active intellectual engagement with the impact of the children’s statelessness on the treatment that the family could expect to receive in Sri Lanka, including the questions of whether the children had any right of entry into Sri Lanka and whether they would be separated from their parents.
[14] AS [13]
Ground 2 – false understanding of the children’s citizenship statuses
At [16]–[25], the Applicants submit that the Authority acted on the factually incorrect assumption that the children were entitled to Sri Lankan citizenship. According to the Applicant, this meant that the Authority’s evaluation of the risk of harm faced by the Applicants 9if they were to return to Sri Lanka) was based on a false premise.
At [26] the Applicants say that there was no consideration of the plight of stateless children in Sri Lanka generally, ‘presumably because the IAA had assumed that the statelessness could be overcome by invoking the children’s putative entitlement to Sri Lankan citizenship.’
Ground 3
This ground was not pursued.
Ground 4 – failure of Secretary to provide the CDs
Here the Applicants submit that the Secretary’s failure to comply with the mandatory requirement in section 473CB(1)(b) (to give to the Authority all of the material that had been provided by the Applicants to the Delegate) disabled the Authority from conducting the review required by statute in a manner that constitutes jurisdictional error.[15]
[15] AS [54]
The Applicants submit at [40]-[41] of their submissions that, as a consequence of this failure, the Authority was ‘left to conduct a review of something less than the full case presented by the applicants’ as to their entitlement to the visas sought.
Further, at [52] of their submissions, the Applicants cited ESV17 v Minister for Immigration [2019] FCAFC 20, where it was held that a breach of section 473CB(1)(b) will be a jurisdictional error when the material that was not received by the Authority could have made a difference to the evaluation of the Applicants’ claims. The Applicants say at [53] that this principle applies here:
53. In this case, it is possible that viewing the video that the Secretary failed to provide could have made a difference to the assessment of the applicants’ claims, including in relation to the treatment of Tamils generally or the treatment of Sri Lankan refugees returning from India.
Ground 5 – failure to consider evidence
The Applicants say that the Authority failed to have regard to the information in the video on the CD which was resubmitted, as well as the video on the CD which was not. See [60]-[62]:
60. It can be inferred from the absence of any reference to the video in the IAA decision record that the IAA did not take that evidence into consideration in making its decision.
61. The information in both videos (only one of which was before the IAA) was plainly relevant to the review in that it was repeatedly emphasised by the applicants as being evidence that supported their claims.
62. By ignoring substantial, relevant material submitted by the applicants in support of their claims, the IAA has failed to conduct the review required by statute.
(citations omitted)
First Respondent’s submissions
Ground 1 – failure to give proper consideration of statelessness
In response to Ground 1, the First Respondent cites Griffith J’s decision in SZQGC v Minister for Immigration and Citizenship (2012) 128 ALD 338 that presages the misconstruction of “proper, genuine and realistic consideration,” as a means to impermissible merits review.
The First Respondent submits that the Authority discussed the statelessness issue in some detail at [54]-[55] of the decision record, and that the Applicants have misconstrued [54] as the sole paragraph that dealt with the statelessness issue.
The Minister indicates at [14] that the Authority has no obligation to provide a sub-set of reasons as to why it accepted or rejected individual pieces of evidence, even if it is inconsistent with the findings made.
Ground 2 - false understanding of the children’s citizenship statuses
The First Respondent submits that the Authority’s findings as to the Sri Lanka’s citizenship law was a matter of fact for the Authority, and that a mistake of fact is not a ground for jurisdictional error. [16]
[16] RS [19]-[20]
Further, at [21], the First Respondent submits that the Applicants rely heavily on extracts from the Citizenship Act 1948 (Sri Lanka), but that it was not apparent that those provisions were before the Authority when it made its decision.
Ground 4 - failure of Secretary to provide the CDs
The First Respondent submits at [34] that the Secretary’s failure to forward the CDs to the Authority does not automatically mean there was a jurisdictional error, and that this issue:
34. […] will turn on the gravity of the breach and whether the error was material to the ultimate decision.
(citations omitted)
Even if there was a breach of the Secretary’s obligations in referring the CDs, the Minister contends that the Applicants ‘cannot discharge their onus of proving that any breach by the Secretary realistically deprived the Applicants of a successful outcome’.[17]
[17] RS [35]
With respect to the CDs, the First Respondent also notes that:
a)the Applicants were provided a full opportunity by the Authority to cure the alleged omission and instead only resubmitted one of the CDs to the Authority; and
b)the Applicants’ failure to resubmit the “missing” video once the omission was brought to their attention ‘amounts to acquiescence such that they cannot now complain that the IAA should have considered a video that they chose not to resubmit.
(citations omitted)
Ground 5 failure to consider evidence
The First Respondent says at [38] of its submissions that the Authority could not have had regard to information contained in a CD which was not before it.
With respect to the video which was resubmitted by the Applicants’ representative, the First Respondent submits that ‘it is plain that the IAA had regard to the information therein’[18] because [5] of the decision record identifies and considers the contents of the CD (which was not apparent from the letter that enclosed it).
[18] RS [39]
In its supplementary submissions, the First Respondent made detailed submissions about each video’s materiality to the Applicant’s claims:
1. The Applicants submit that the IAA’s not viewing three videos (which are contained in Annexure MW-3 to the affidavit of Mr Wimaleswaran made 10 October 2017) was material to the IAA’s decision to affirm the delegate’s decision to refuse the Applicants visas.
2. As the Minister understands it, the materiality of the videos is said to lie in the videos being probative of the Applicant being exposed to harm for attending protests against the Sri Lankan President in India and/or probative in showing media attention to such protests which attention might, in turn, have made the First Applicant’s claim that he was photographed by media at such protests and that such photographs appeared in Tamil newspapers in Sri Lanka more likely.
As to each video, the Minister says that there is no footage of protestors and nothing in the video which would bear upon any harm that any such protestors might face and that the video is immaterial to the Applicants’ claims.
Consideration
Ground 1.
At [54] – [55] of the decision record, under the subheading: ‘Fear of harm due to lack of Sri Lankan identity documentation/statelessness’, the Authority stated:
54. Based on the information that was before the delegate I am also not satisfied that the third and fourth applicant face a real chance of harm in Sri Lanka due to being stateless.
55. During his protection visa interview the first applicant claimed that the Sri Lankan authorities would not register his children because he left Sri Lanka when he was 10 years old and he does not have any record of that other than his Sri Lankan birth certificate. I am not satisfied that applicants three and four could not obtain Sri Lankan citizenship on return to Sri Lanka because they were born in India or because their parents left India as children and only have Sri Lankan birth certificates and no other Sri Lankan identification. According to the UNHCR, Sri Lanka has no habitual residents who are legally or effectively stateless. Children obtain citizenship from their Sri Lankan parents, whether born in the country or overseas. There is no information before me to satisfy me that the first and second applicants' Sri Lankan birth certificates would be insufficient in establishing their identity and entitlement to Sri Lankan citizenship in order for their children to be entitled to Sri Lankan citizenship.
[54] must fairly be read with [55]. By that paragraph, the Authority explains why it did not believe the children would be stateless if they were to return to Sri Lanka. There has been no failure on the part of the Authority to give active consideration to the claims in relation to the children’s statelessness. There is no jurisdictional error apparent in the way that the Authority approached consideration of this question or the sufficiency of its reasons. Further, there is no failure to give proper consideration to the claim.
Ground 2.
The Applicants submit that the Authority proceeded on a misunderstanding of the operation of the Citizenship Act 1948 (Sri Lanka). At [18]-[20] the Applicants make submissions regarding the effect of provisions of that Act. No evidence was placed before the Court as to the proper operation of that foreign Act.
I accept the submission of the First Respondent that the Authority set out in [55] its understanding of the law as it affected the Third and Fourth Applicants and made a finding of fact in relation to that.
The Court does not have jurisdiction to cure an administrative injustice or error: Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 (‘Quin’) at [35]-[36] per Brennan J.
The Applicant does not submit that the Authority’s consideration of the citizenship status of the Third and Fourth Applicants is affected by legal unreasonableness. The considerations arising in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [83] (Nettle and Gordon JJ), (citing Quin at [35]-[36]) regarding the distinction between looking at a decision to determine whether it is affected by legal unreasonableness and engaging in impermissible merits review, do not arise here.
Further, it is not apparent that the provisions of the Citizenship Act 1948 (Sri Lanka) were before the Authority when it made its decision.
Ground 4.
The First Respondent’s supplementary submissions go to the detail of what was contained in the three videos which were before the Delegate but not viewed by the Authority. I accept that the content of those videos would not bear upon the question of any harm which the First Applicant might suffer as a result of attending protests against the Sri Lankan President in India, or the First Applicant’s claim that he was photographed by media at such protests.
The summary indicates that the videos are anodyne and do not show footage of protesters. One video shows a panel discussion regarding the rehabilitation of bilateral relations between Sri Lanka and India. There is no footage of protesters. The second shows the then Sri Lankan President being received at a public ceremony by the Indian Prime Minister and dignitaries. Again there is no footage of protesters. The third contains footage of an official ceremony attended by the then Sri Lankan President but with no footage of protesters.
A question arises as to whether the failure to provide the videos to the Authority is material to the decision-making process. See EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [35] and Minister for Immigration and Border Protectionv CPA16 [2019] FCAFC 40 at [32].
I note that the Applicants were provided with a full opportunity by the Authority to cure the omission in relation to the failure to provide all of the videos to the Authority and that the Applicant’s chose to submit only one of the CDs to the Authority. The omission was brought to the attention of the Applicant’s representative and they chose not to resubmit a CD. In that regard they have acquiesced in the Authority not considering a video they chose not to resubmit.
Ground 5.
The decision record at [5] states:
The applicant’s representative subsequently provided the IAA with one CD which contained a video report of a news report from the “7.30” ABC show and a transcript of the report. I am satisfied that that this video report is the video the applicant provided to the delegate titled “730 Report RE: used (sic) of white van and Etc”.
This demonstrates that the Authority must have physically accessed the CD and considered its contents. The fact that the Authority did not subsequently refer to that material in its decision does not demonstrate that it did not have regard to that information, or that there is a jurisdictional error arising from the way dealt with the material.
Further, a failure to make further reference to the content of the video on the CD in the decision (even assuming that there was a requirement on the part of the Tribunal to do so) does not demonstrate any jurisdictional error because the information on the video was not material to any question that had to be determined by the Authority. That much is apparent from the summary of the content of the video contained in the First Respondent’s supplementary submissions.
For these reasons the application must be dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 6 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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