BNH18 v Minister for Home Affairs

[2020] FCCA 896

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNH18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 896

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – where Minister conceded error in IAA’s decision – whether error was material – error not material – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CA, 473CB, 473DA, 473DD, 473GA, 473GB, 476

Cases cited:

AZK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 331

CNY17 v Minister for Immigration & Border Protection [2019] HCA 50
FER17 v Minister for Immigration, Citizenship & Multicultural Affairs [2019] FCAFC 106
Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32

Applicant: BNH18

Second Applicant: BNI18

Third Applicant: BNJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 161 of 2018

Judgment of: Judge Kendall

Hearing date: 15 April 2020

Date of Last Submission: 15 April 2020

Delivered at: Perth

Delivered on: 23 April 2020

REPRESENTATION

Counsel for the Applicant: Mr E Rajadurai

Counsel for the First Respondent: Ms A Ladhams

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 161 of 2018

BNH18

First Applicant

BNI18

Second Applicant

BNJ18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 2 March 2018.  The IAA affirmed a decision of the first respondent (the “Minister”) to refuse the applicants a Class XE Subclass 790 Safe Haven Enterprise (temporary) visa (the “visa”).

2. The first applicant was the primary visa applicant. The second applicant, (his son) and the third applicant (his wife) were secondary applicants to the visa.

3. This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the IAA has fallen into jurisdictional error.

4. The Court had before it applicants’ amended judicial review application filed 5 March 2020, a Court Book (“CB”) numbering 318 pages (marked as Exhibit 1), outlines of written submissions from the Minister dated 12 February 2020, 5 March 2020 and 21 March 2020 and an outline of written submissions from the applicants dated 17 March 2020.

5. In light of current health protocols adopted by the Federal Courts, this matter proceeded by teleconference.

Background

1. The background to this matter is set out at Part II of the Minister’s written submissions dated 12 February 2020. The Court adopts that summary, with some amendments, as follows. 

2. The first applicant before this Court is a national of Sri Lanka.  He is of Tamil ethnicity and identifies as a Christian (CB 3 and 150). He left Sri Lanka for India when he was quite young. 

3. The third applicant (the wife of the first applicant) was born in Tamil Nadu, India (CB 86).

4. The first and third applicants were married in India.

5. In 2013, the first and third applicants entered Australia by sea at the Territory of the Cocos (Keeling) Islands (CB 231). Accordingly, they are unauthorised maritime arrivals.

6. The second applicant is the son of the first and third applicants.  He was born in Murdoch, Western Australia (CB 145).  Accordingly, he too is an unauthorised maritime arrival (by force of law).  There are two other children born to the first and third applicants but they are not parties to these proceedings.

7. On 16 December 2016, the Minister lifted the bar under s.46A(2) of the Act and invited the applicants to apply for the visa (CB 40-41).

8. On 6 June 2017, the first applicant applied for the visa. The second applicant (the son) and the third applicant (the wife of the first applicant) were listed as secondary applicants. The third applicant also made her own claims for protection (CB 48-159). Both the first applicant and the third applicant claimed to fear harm in India and Sri Lanka. The applicants’ claims are summarised below.

9. The applicants attended an interview before the delegate on 18 September 2017 (CB 217-218).

10. On 27 September 2017, the first applicant provided copies of certified translations of a number of documents from India to the Department (CB 219-223).

11. On 11 October 2017, the delegate refused to grant the applicants the visa (CB 226-251).

12. On 16 October 2017, the Minister referred the matter to the IAA in accordance with s.473CA of the Act (CB 253).

13. On 2 November 2017, the applicants gave the IAA a submission commenting on the delegate’s decision (CB 278-283).

14. On 2 March 2018, the IAA affirmed the delegate’s decision not to grant the applicants the visa (CB 288-309).

IAA’s Decision

1. It is not disputed that the applicants here satisfy the criteria in s.5(1) of the Act for “fast track applicants”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.

2. Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:

   a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;

   b)material provided by the “referred applicant” to the delegate before a decision was made;

   c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and

   d)the referred applicant’s contact details.

3. The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.

4. The IAA can, however, obtain “new information”. When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act which provides as follows:

   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.

5. Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.

6. Here, the IAA’s decision is 22 pages long and spans 79 paragraphs long.

7. Unfortunately, the identification of “Applicant 1” (the husband) and “Applicant 3” (the wife) differs in the IAA’s decision to the identification of these two applicants in this Court.  This does not alter the substance of the IAA’s decision but does make cross referencing rather confusing. 

8. In the application for judicial review in this Court:

   a)the application refers to the father as the first applicant;

   b)the son as the second applicant; and

   c)the first applicant’s wife as the third applicant.

9. In the IAA’s decision, however:

   a)the father is identified as “Applicant 1”;

   b)his wife is identified as “Applicant 2” (even though she appears third on the IAA decision cover sheet); and

   c)the son is identified as “Applicant 3”.

10. To make matters even more confusing, the IAA occasionally refers to both the mother and her son as “Applicant 3”.  This is less than ideal.  Although this error is “problematic”, it does not alter the substance of the IAA’s findings as it is clear (contextually) who is being referred to throughout the IAA’s decision. 

11. For ease of reference, in the judgment that follows the applicants will be referred to as follows:

    a)the first applicant will be referred to as “applicant 1”;

    b)his wife will be referred to as “applicant 1’s wife”; and

    c)their child will be referred to as the “son”.

12. The IAA noted that the submission provided by the applicants in part commented in part on issues before the delegate and in part raised new claims and evidence that was not before the delegate (CB 289 at [4]). The “new information” was (CB 289 at [6]):

    a)that applicant 1’s father’s role in the LTTE was that of a ‘strategist’, ‘planner’ and ‘master-mind’ who determined how a particular site would be targeted or attacked and supplied materials to the LTTE as a disguise for the organisation’s covert operations;

    b)that applicant 1’s two cousins were shot in 1990; and

    c)that applicant 1’s wife’s parents fled to India because her father was involved with the LTTE. If returned to Sri Lanka, the applicants will suffer harm on account of this further involvement.

13. The IAA declined to consider the new information provided by the applicants. The IAA noted that the applicants did not explain why the information could not have been provided to the delegate or why it was credible personal information. The IAA ultimately found that the information pre-dated the delegate’s decision, it was not credible as it was inconsistent with information previously given and there were no exceptional circumstances to justify considering the new information: (CB 289-290 at [7]-[13]).

14. The IAA summarised the applicants claims as follows (at [15]-[16]):

    15.    Applicant 1’s claims can be summarised as follows:

    • [He] is a Tamil male who originates from Jaffna District, Northern Province, Sri Lanka;

    • From 1990 to 2013, [he] lived in India as a refugee;

    • [His] father was a supporter and member of the LTTE;

    • Prior to 1990, [his] father drove for the LTTE, and provided transport and building materials to the organisation;

    • One day, [his] father was arrested by the Sri Lankan Army (SLA) and severely beaten. His friend who was travelling with him escaped;

    • [His] father was released after two to three days when his wife ([his] mother) found him at a police station and pleaded for his release;

    • Upon release, [his] father was threatened and told that if called he must come;

    • Two weeks later, the police came looking for [his] father but he was away on business;

    • [His] mother passed a message to his father that the army was looking for him;

    • [His] uncle warned [his] parents that the authorities were rounding up LTTE sympathisers and warned his family to get away;

    • [His] father decided the family should travel to India;

    • [He] and his father travelled to India on the same boat. [His] mother and siblings took a separate boat which was intercepted by the SLA. [He] and his father thought the mother and siblings had died on the journey; however, they were returned to Sri Lanka and detained for one week;

    • Following her release, the SLA visited [his] mother at home to ask where her husband was. She was also taken to a SLA camp and tortured so that she would tell where her husband was;

    • In 1990, [his] uncle told the Sri Lankan authorities that [he] and his father had died travelling to India on the boat;

    • In around 1990, [his] uncle was shot by the SLA in front of [his] mother. [His] father’s relatives were also questioned and harassed by the Sri Lankan authorities;

    • The SLA came to [his] mother’s house and shot dead two small children. The SLA mistook the children as his siblings;

    • In 2007, many families returned to Sri Lanka from India and it was at this time [he] and his father learned that the mother and siblings were still alive, and the family got back in contact with each other;

    • [He] only learned (from his father) what happened in Sri Lanka after he arrived in Australia;

    • In 2012, [he] was involved in organising a memorial day in remembrance of LTTE soldiers. The Indian government did not approve of the memorial and on the day of the ceremony the authorities came and disrupted everything. Two days later, [he] had to report to the authorities in the refugee camp. He was beaten and threatened with death. The authorities also verbally abused his wife;

    • Prior to leaving India, [he] was due to appear in court in relation to an assault of a family member;

    • If returned to Sri Lanka, [he] fears he will be captured and questioned about his father’s whereabouts, and that he will be questioned about his own LTTE links due to his father’s history;

    • [He] also fears that if he returns to Sri Lanka that he, his mother, and siblings will be in danger because his mother did not alert the authorities that her husband and son were still alive when she learned of this in 2007;

    • [He] further fears that if returned to Sri Lanka he will be treated like a ‘new person’. He states he will be perceived as a LTTE supporter, and as a person in hiding for a long period now returned with the intention of joining the LTTE. He fears he or his wife will be tortured and perceived as LTTE, ex-LTTE or as supporters of the LTTE;

    • [He] also fears harm in Sri Lanka on account of his Tamil ethnicity because Tamils face discrimination and it is not safe for Tamils in Sri Lanka. He also states there is a good likelihood that on return he will be given a lethal injection disguised as a vaccination, which has caused the death of many Tamils.

    16. [Applicant 1’s wife’s] claims can be summarised as follows:

    •[Her] husband (Applicant 1) was captured by the Indian police due to his role in organising a memorial day for those who fought in the Sri Lankan civil war. He was imprisoned for one week and tortured. He was released on bail after [she]  engaged the services of a local lawyer;

    • Due to her interference in his case, [she] was threatened by the Indian police that they would make her husband disappear;

    • [She] and her husband made plans to escape India soon after he was released;

    • If returned to Sri Lanka, [she] fears harm from the Central Bureau of Investigations, the SLA, and the police. She fears she will be suspected of helping the LTTE as an outsider and that this suspicion will lead her to be raped by the SLA, especially because she is a woman. She also fears she will be administered with a poisonous injection.

15. In relation to the applicants’ identity and the receiving country (for the purposes of the IAA’s overall assessment), the IAA found as follows:

    19.Applicant 1 claims that he is a Tamil male who originates from Jaffna District in the north of Sri Lanka. He has provided some evidence of his identity, including a copy of his birth certificate (with accompanying NAATI translation). On the basis of his evidence, I accept that he is a Tamil male from this part of Sri Lanka.

    20.[Applicant 1’s wife] claims that she is a Tamil female born in Tamil Nadu, India, and that she is the daughter of Sri Lankan citizens. In the SHEV interview she advised the delegate that her father arrived in India in 1990 and her mother in 1992. As evidence of her identity she has provided a copy of her birth certificate issued by [identifier omitted] in the state of Tamil Nadu. She has also provided a copy of her Sri Lankan refugee identity card issued by the government of Tamil Nadu. On the basis of his evidence, I accept that she is a Tamil female, born in India, and the child of Sri Lankan citizens.

    21.In her SHEV application, [applicant 1’s wife] declared her citizenship as ‘(Effective) Statelessness’. She stated that her parents applied to the Sri Lankan government for citizenship but the application was refused. She further stated that although she has a legal right to apply for Sri Lankan citizenship, the Sri Lankan government had refused to enforce that right. In the SHEV interview, the delegate explored with [applicant 1’s wife] the attempts she had made to obtain Sri Lankan citizenship. She advised the delegate that she had tried to obtain a Sri Lankan birth certificate in 2001 through the Sri Lankan Consulate via an organisation called OfERR (Organization for Eelam Refugees Rehabilitation), but that her application was refused. [Applicant 1’s wife] also advised that in 2001 she had no documentation to provide OfERR as evidence of her identity.

    22.Information before me indicates that OfERR assist Sri Lankan refugees to obtain civil and legal documentation, including Sri Lankan citizenship papers. I accept that in 2001 [applicant 1’s wife] (or her parents on her behalf) attempted to register her birth with the Sri Lankan government, via OfERR, and was unsuccessful. However, I find it difficult to accept [applicant 1’s wife’s] claim in the SHEV interview that her application to register her birth or to obtain a birth certificate from the Sri Lankan authorities in 2001 was rejected because she ‘was born in India’. I find it more likely that her application was refused because she had no birth certificate (as required to support the application) or other identity documentation at that time. I note that since that time [applicant 1’s wife] has now obtained a number of identity documents including a birth certificate (issued in 2003) and a Sri Lankan refugee identity card (issued in 2007).

    23.Further, according to information before me, being born in India (or outside Sri Lanka) is not an obstacle to registering a birth with the Sri Lankan authorities, and nor does it act as a barrier to obtaining Sri Lankan citizenship. I am satisfied that children born outside of Sri Lanka to Sri Lankan parents are entitled to Sri Lankan citizenship.

    24.The Sri Lankan government advise that parents must register their child’s birth within one year of birth for the confirmation of the child’s citizenship. A child can still be registered for citizenship after one year of age; however, a fine (500 rupees for each year not registered which in [applicant 1’s wife’s] circumstances will equate to approximately AUD $95.00) will be imposed. An application is required to be completed and lodged with supporting documents. The application can be lodged by either of the child’s parents or a third party. The supporting documents include proof of the parent’s residency abroad (or if parents are refugees, a Sri Lankan refugee identity card), original birth certificates and marriage certificate for parents and birth certificate of child. A certificate for the Registration of Birth is then issued to the child. Country information indicates that Sri Lankans refugees residing in Tamil Nadu can obtain identity documentation from the Sri Lankan High Commission office in Chennai. There is no evidence before me to indicate that [applicant 1’s wife’s] parents, or a third party, would be unable to attend the Sri Lankan High Commission office in Chennai. I am satisfied that [applicant 1’s wife]’s parents would be able obtain a copy of their Sri Lankan birth certificates and other documents if required.

    25.I accept that [applicant 1’s wife’s] birth may have not been registered with the Sri Lankan government; however, I am satisfied the birth can be registered and citizenship conferred. I am satisfied that after this process [applicant 1’s wife’s] can obtain any necessary Sri Lankan identity documents. I accept that the registration of her birth with the Sri Lankan government will be after one year of age and a fine will be imposed; however, I am not satisfied on the evidence before me that the payment of a fine in this case amounts to serious harm.

    26.I am satisfied on the totality of the evidence that [applicant 1’s wife] is a child born to Sri Lankan citizens and for the purposes of this application is not stateless but a national of Sri Lanka.

    27.I accept that (the son) was born in Australia on 12 June 2015 and he is the son of Applicant 1 and [applicant 1’s wife].  I have sighted a copy of his birth certificate and a copy of his parents’ marriage certificate. Although [the son] was born in Australia, there is no claim or evidence before me to suggest that he would not also be recognised as a national of Sri Lanka.

    28.I find Sri Lanka to be the receiving country for the purpose of this assessment.

1. The IAA accepted that prior to 1990, applicant 1’s father transported construction materials for the Liberation Tigers of Tamil Eelam (the “LTTE”). The IAA found applicant 1’s claim that his father was a member of the LTTE to be unconvincing, but nevertheless accepted that he might have been a low-level member (CB 295 at [29]-[30]).

2. The IAA also accepted that it was plausible that applicant 1’s father’s relatives were questioned and harassed and that this may have been connected to the father’s prior LTTE involvement and that applicant 1’s uncle was shot by the Sri Lankan authorities in 1990 as claimed (CB 295-296 at [32]). However, the IAA did not accept that the Sri Lankan Army killed two small children in his mother’s home (CB 296 at [33]-[34]).

3. At [35], the IAA stated:

   I have accepted that Applicant 1’s father was a low-level member of the LTTE. I have also accepted that he transported construction materials for the LTTE prior to 1990 and that he came to the adverse attention of the Sri Lankan authorities on this basis. I note he was released from custody when his wife pleaded for his release. I have also accepted that following his release from custody he was pursued by the Sri Lankan authorities. I have further accepted that Applicant 1’s father’s relatives were questioned and harassed following his father’s departure from Sri Lanka in 1990, and that his mother was detained and questioned following her failed departure to India at that time. I have accepted that Applicant 1’s uncle was shot and killed by the SLA in 1990. However, I am not satisfied that, some 28 years later, the applicants face a real chance of serious harm in Sri Lanka on account of the events that transpired at that time. The applicants have not advanced any claims that their family have been recently questioned or otherwise pursued by the Sri Lankan authorities in connection with Applicant 1’s fathers past LTTE involvement 28 years ago, or for any other reason. I have also had regard to country information from the UK Home Office that assesses that international protection is not warranted in cases where a person evidences past membership or connection with the LTTE, unless they had a significant role in it (i.e. LTTE’s former leadership (combat or civilian) and/or former members who were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE), or if they are, or perceived to be, active in post-conflict Tamil separatism. I note that none of the applicants have claimed to have been involved with the LTTE, or that they have been active in post-conflict Tamil separatism.

4. In relation to the claimed events that occurred in India, the IAA determined as follows:

   36.I accept that Applicant 1 participated in a memorial celebration in remembrance of LTTE soldiers (Martyrs’ Day) in November 2012. However, I find the applicants’ evidence as to the events that followed unconvincing.

   37.In his written claims, Applicant 1 claimed that as an organiser of Martyrs’ Day he was told to report to ‘Q division’ at the refugee camp two days following the celebration. He stated that he was scared so he took his wife with him. He stated that he and the other boys were beaten, and that he was threatened that if he continued with such activities he would be killed. He also stated that his wife was verbally abused. However, in the SHEV interview, he advised the delegate that he was not arrested, but detained and beaten. He said he was not charged and that his wife and mother then attended the office and begged for his release. In the entry interview, Applicant 1 advised he started making arrangements to leave India in mid-April 2013.

   38.[Applicant 1’s wife] provided a different account. In her SHEV application she claimed that Applicant 1 was imprisoned for one week and tortured. She further claimed that he was released on bail after she engaged the services of a lawyer. She also stated that she and her husband made plans to escape India after his release.

   39.In the SHEV interview, Applicant 1 advanced new information that in January 2013 he got involved in an altercation with his father-in-law’s sister. He claimed that there was hostility between certain members of his and his wife’s family about their inter-religious marriage. He advised the delegate that he intervened when his father-in-law’s sister tried to attack his father. He said that he separated them by pushing her and as a result she fell to the ground. Following this, his father-in-law’s sister was hospitalised and she lodged a report with the police. Applicant 1 claimed that he was due to appear in court in relation to the matter but that he left India before the hearing.

   40.Applicant 1 and [applicant 1’s wife] departed India in April 2013. I note that Applicant 1 advised the delegate that he would have brought his father with him to Australia but that the decision to get the boat was made in haste. However, as noted above, [applicant 1’s wife] stated in her SHEV application that arrangements were made to leave India in around November 2012, which I note was consistent with her evidence in the entry interview. I further note Applicant 1’s evidence in the entry interview where he stated that the arrangements to leave India were made at a time when many people were leaving for India to Australia and it was in fact the smuggler that initiated the contact with him. 

   41.When considered cumulatively, I consider the above inconsistencies and other evidence discussed to lead me to conclude that Applicant 1 and [applicant 1’s wife] were not recalling a genuine personal experience in relation to their circumstances or the events that transpired prior to their departure from India. While I have accepted that Applicant 1 participated in Martyrs’ Day celebrations in November 2012, I am not satisfied he came to the adverse of the Indian authorities on this basis. Nor am I satisfied that Applicant 1 or [applicant 1’s wife] left India in haste in relation to their involvement or connections with Martyrs’ Day celebrations in November 2012.

5. The IAA then considered country information about Tamils in Sri Lanka (at [42]-[47] and [52]) and was not satisfied that the applicants would be imputed with LTTE links or would face a real chance of serious harm in Sri Lanka as a result of the events that applicant 1’s father was involved in in 1990 or applicant 1’s involvement in the November 2012 Martyrs’ Day celebrations (CB 297 at [48]). The IAA was not satisfied that the applicants would face a real chance of serious harm by virtue of their Tamil ethnicity, on account of any actual or imputed LTTE connections, including family connections, or because of applicant 1 being a “new person” (CB 298-300 at [49]-[51] and [53]).

6. The IAA, relying on country information, did not consider that the applicants would face a real chance of serious harm as a result of being failed asylum seeks from Australia, or due to time spent in India as refugees (CB 300-301 at [54]-[57]). The IAA also found that applicant 1 would not face persecution as a result of his illegal departure from Sri Lanka. The IAA found that applicant 1 may be fined but that this did not amount to persecution (CB 301-302 at [58]-[62]).

7. The IAA, considering applicant 1 and applicant 1’s wife’s claims individually and cumulatively, was not satisfied that they would face a real chance of harm (CB 302 at [63]-[64]).

8. At [65]-[66], the IAA stated:

   65. I have accepted that [the son] was born in Australia and would be recognised as a national of Sri Lanka. I have accepted that if returned to Sri Lanka he would be identified as a failed asylum seeker. In assessing his claims both individually and cumulatively I have found they do not give rise to a real chance of serious harm on return to Sri Lanka.

   66. I have further considered whether [the son] is at risk of harm on account his parents’ profile and experiences in Sri Lanka or India. On the evidence before me, I am not satisfied there is a real chance that he will face serious harm upon return to Sri Lanka on this basis now, or in the reasonably foreseeable future.

9. Overall, the IAA was not satisfied that the applicants met the criteria in s.36(2)(a) (CB 303 at [68]).

10. The IAA then turned to consider the complementary protection provisions. For similar reasons as those given in relation to the refugee assessment, the IAA was not satisfied that the applicants met the criteria in s.36(2)(aa). The IAA found that any brief detention on return or fine imposed because of the applicant 1’s illegal departure or delayed registration of his son’s birth did not amount to significant harm (CB 303-305 at [71]-[79]).

11. The IAA affirmed the decision not to grant the applicants the visa.

Proceedings in this Court

1. When the applicants initially filed their application for judicial review application on 26 March 2018 they were unrepresented. Their application advanced four grounds of review. 

2. On 26 February 2020, a new legal representative for the applicants filed a notice of address for service.

3. The applicants’ legal representative foreshadowed that he would be seeking an adjournment of the hearing and provided a proposed amended application with two grounds of review. The Minister, in the hours prior to the hearing of 5 March 2020, provided Chambers with written submissions outlining why the Minister opposed the adjournment and opposed leave being granted to rely on the amended application.

4. At a hearing before this Court on 5 March 2020, the Court granted an adjournment and allowed the proposed amendment application. The Court adjourned the matter to 15 April 2020. The applicants were required to pay the costs thrown away.

5. The matter returned to the Court for final hearing on 15 April 2020.

6. There are now two grounds of review before the Court, as follows:

   Ground 1

   Authority failed to take into account relevant considerations.

   Particulars

   Based on the evidence before it Authority failed to discern a Convention nexus and future harm from LTTE connections. Authority accepted family involvement with the LTTE and anti Sri Lankan government activities in India.

   Ground 2

   One or more Applicants in this matter may be stateless and the Authority based its decision on a fact and that does not exist. ·

   Particulars

   The decision of the Authority treated [applicant 1’s wife’s] receiving country as Sri Lanka but it is now established per FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (24 June 2019) that [applicant 1’s wife]  is stateless. That may also be the case with [the son].

7. These two grounds of review are considered below.

Consideration

Ground 1

Authority failed to take into account relevant considerations.

Particulars

Based on the evidence before it Authority failed to discern a Convention nexus and future harm from LTTE connections. Authority accepted family involvement with the LTTE and anti Sri Lankan government activities in India.

Applicants’ submissions

1. Unfortunately, although legally represented, the applicants’ written submissions were not particularly on point.  For example, the written submissions do not seem to address ground 1 as presented.  Rather, they contend (without alteration) as follows:

   11.Based on the evidence before it Authority failed to discern a Convention nexus and future harm from LTTE connections. Authority accepted family involvement with the LTTE and anti-Sri Lankan government activities in India.

   12.IAA Decision at AB 296: at 35

   I have accepted that Applicant 1’s father was a low level member of the LTTE. I have also accepted that he transported construction material to the LTTE prior to 1990 and that he came to the attention of the Sri Lankan authorities on this basis. I note that he was released from custody when his wife pleaded for his release. I have also accepted that following his release he was pursued by the Sri Lankan authorities. I have further accepted that Applicant 1’s father’s relatives were questioned and harassed following his father’s departure from Sri Lanka in 1990, and that his mother was detained and questioned following her failed departure to India at that time.

   13.However IAA concluded:

   I am not satisfied that, some 28 years later, the Applicants face a real chance of serious harm in Sri Lanka on account of the events that transpired at that time.

   14.It is submitted that the above conclusion was not open to the IAA as there was country information before the IAA which stated that there were still problems in Sri Lanka. Country situation on Sri Lanka spoke of improved situation rather than complete normalcy. AB: 298 at 43

   15.Similarly, it was not open to the IAA to conclude that Applicants will not be harmed for leaving Sri Lanka illegally as the country information indicated that the risk of mistreatment for people suspected of an offence under the IAEA is low. AB: 302 at 61 and AB at 241: last paragraph at 242 first paragraph.

   16.Applicant 1 also claimed that he was involved in Heroes Day Celebrations. AB at 239: last three paragraphs.

2. These submissions are more akin to arguments about unreasonableness and/or illogicality than any perceived failure to “address a relevant consideration”.

3. At the hearing of this matter on 15 April 2020, Counsel for the applicant conceded that ground 1 was “better considered as an allegation of illogicality of unreasonableness” and that (other than what appears in his written submissions) he had nothing further to say in relation to ground 1.

Minister’s Submissions

1. In relation to ground 1 of the amended application, the Minister relied on written submissions dated 12 February 2020 (which addressed the original grounds 1 and 2 of the first application for judicial review) and further submissions dated 5 March 2020 and 31 March 2020.

2. The Minister’s position can be summarised as follows:

   a)the applicants are essentially expressing disagreement with and seeking impermissible merits review of the IAA’s findings;

   b)the applicants have not actually identified what “relevant consideration” was not taken into account;

   c)the IAA made findings that applicant 1’s father was formerly a low-level member of the LTTE and that his uncle was shot and killed by the SLA in 1990 and took these findings into account. However, the IAA referenced country information from the UK Home Office and was not of the view that applicant 1 would be of interest to the Sri Lankan authorities some 28 years later.  As such, he would not face a real chance of serious harm. It was open to the IAA on the evidence before it to reach the findings that it did in this regard;

   d)the applicants appear to be challenging the finding that the applicants would not face a real chance of serious harm on account of events that happened 28 years ago (namely, applicant 1’s fathers low level involvement with the LTTE) based on the IAA’s assessment at [43] that ‘[c]ountry information indicates that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009’. Multiple sources are cited for this proposition and the IAA then proceeds to consider the country information in detail and evaluate the chance of harm overall for the applicants. This is an orthodox and legally sound approach.  The IAA’s findings, based as they were on the country information, were entirely open to it;

   e)the IAA relied on a January 2017 DFAT assessment that states that the risk of mistreatment of those suspected of an offence under the Immigrants and Emigrants Act is “low”. It was open to the IAA to rely on the DFAT report in assessing whether the applicants would face harm for breaching the Immigrants and Emigrants Act; and

   f)the IAA’s findings in relation to the claims concerning “Heroes Day Celebrations” were similarly open to be made on the materials before the IAA.

3. At hearing, Counsel for the Minister emphasised that the threshold or bar for illogicality is very high and that it has not been met in the circumstances of this case.

Consideration

1. In relation to what appears to be an assertion that the IAA failed to take into account a relevant consideration, the Court finds as follows. 

2. The IAA took into account the applicants’ claims to fear harm on the basis of an imputed LTTE connection. The applicants’ claims were the only “relevant considerations” that needed to be addressed in this regard. All were addressed, thoroughly and without error.

3. In relation to “illogicality” or “unreasonableness”, in Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172 at [34]-[37], Justices Gilmour and Mortimer set out the following principles that govern this Court in relation to contentions of the sort seen here:

   34. To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]–[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:

   A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   35. Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].

   36. As to unreasonableness, the applicable standard was summarised by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] as follows:

   In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225 ; [2013] HCA 18 at [105]):

   It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].

   37. Here, where reasons have been provided for the Tribunal’s decision, the Court must assess the reasoning process and identify the factors of legal unreasonableness: Singh at [45]. Those factors are fact dependant: Singh at [48]. Equally, even if reasons have been provided, it may be the case that a Court is unable to comprehend how the decision was arrived at, in which case ‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].

1. The applicants refer to [35] of the IAA’s decision, wherein the IAA states:

   35. I have accepted that Applicant 1’s father was a low-level member of the LTTE. I have also accepted that he transported construction materials for the LTTE prior to 1990 and that he came to the adverse attention of the Sri Lankan authorities on this basis. I note he was released from custody when his wife pleaded for his release. I have also accepted that following his release from custody he was pursued by the Sri Lankan authorities. I have further accepted that Applicant 1’s father’s relatives were questioned and harassed following his father’s departure from Sri Lanka in 1990, and that his mother was detained and questioned following her failed departure to India at that time. I have accepted that Applicant 1’s uncle was shot and killed by the SLA in 1990. However, I am not satisfied that, some 28 years later, the applicants face a real chance of serious harm in Sri Lanka on account of the events that transpired at that time. The applicants have not advanced any claims that their family have been recently questioned or otherwise pursued by the Sri Lankan authorities in connection with Applicant 1’s fathers past LTTE involvement 28 years ago, or for any other reason. I have also had regard to country information from the UK Home Office that assesses that international protection is not warranted in cases where a person evidences past membership or connection with the LTTE, unless they had a significant role in it (i.e. LTTE’s former leadership (combat or civilian) and/or former members who were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE), or if they are, or perceived to be, active in post-conflict Tamil separatism. I note that none of the applicants have claimed to have been involved with the LTTE, or that they have been active in post-conflict Tamil separatism.

2. The applicants argue that that this finding was not open to be made in light of what the IAA noted in [43] of its decision – i.e., that:

   …country information indicates that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009.

3. The applicants appear to be suggesting that because the IAA referred to country information that said “improved” this means that there was still “a chance” that the applicants would face a real chance of harm some 28 years later.

4. Here, the applicants have taken one comment in isolation to suggest illogicality.

5. The IAA’s reasons are to be read as a whole and without an eye finely attuned to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

6. Here, the IAA’s finding that it was not satisfied the applicants faced a real chance of harm on the basis of an imputed pro-LTTE opinion arising from events that occurred 28 years later was based upon:

   a)the fact that the applicants had not claimed that their family had been recently questioned or otherwise pursued by the Sri Lankan authorities in connection with applicant 1’s father’s past LTTE involvement 28 years ago;

   b)country information which suggested that international protection is not warranted in cases where a person evidences past membership or connection with the LTTE unless that membership or connection was “significant”. Here, the IAA had found it was “low-level”;

   c)none of the applicants claimed to have been involved with the LTTE or that they had been active in post-conflict Tamil separatism; and

   d)country information (detailed out at [43]-[48]) which sets out the situation in Sri Lanka for Tamils with imputed LTTE connections and which the IAA used to evaluate the chance and risk of harm to the applicants.

7. In effect, the applicants are suggesting that the IAA should have given more weight to a particular passage or piece of country information.

8. That argument is rejected.  The weight to be given to country information is a matter for the IAA: NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

9. It was clearly open to the IAA to determine that it was not satisfied that the applicants faced a real chance of serious harm in Sri Lanka on account of events that transpired 28 years ago. The IAA’s findings have an evident and intelligible justification.

10. The applicants also refer to the IAA’s statement that:

    DFAT has assessed the risk of mistreatment for people suspected of an offence under the IAEA as low…

11. The IAA directly referenced the Department of Foreign Affairs and Trade Report for this proposition.

12. Again, the IAA’s decision must be read as a whole. The IAA discussed applicant 1’s chance or risk of harm as a result of his illegal departure at [59]-[62]. The IAA’s finding that applicant 1 would not be at risk of harm because of his departure took into account country information and assessed that information in light of applicant 1’s particular circumstances. Again, this was a finding that was entirely open to be made on the evidence. 

13. Finally, the applicants reference concerns with the IAA’s analysis of the “Heroes Day Celebrations”. The Court understands this to be a reference to “Martyrs Day” in the IAA’s decision.

14. The IAA clearly considered this issue at [36]-[41]. The IAA ultimately found that although applicant 1 participated in these celebrations, the IAA was satisfied that applicant 1 would not be the subject of any adverse attention because of this participation.

15. In circumstances where the IAA found that applicant 1’s participation had not come to the adverse attention of the authorities and the applicants had not claimed to be involved in post-conflict Tamil separatism, the IAA’s finding that the applicants would not face a real chance of harm for this reason were, again, open to it.

16. The IAA did not overlook a relevant consideration and the IAA’s findings have an evident and intelligible basis. It cannot be said here that no reasonable decision-maker could have come to the same conclusion as the IAA on the same evidence or that no logical inference that can be drawn between the information before the IAA and the conclusions it ultimately reached.

17. Ground 1, accordingly, fails.

Ground 2

Ground 2

One or more Applicants in this matter may be stateless and the Authority based its decision on a fact and that does not exist. ·

Particulars

The decision of the Authority treated [applicant 1’s wife’s] receiving country as Sri Lanka but it is now established per FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (24 June 2019) that [applicant 1’s wife’s]  is stateless. That may also be the case with [the son].

Applicants’ Submissions

1. The applicants’ written submissions provided (without alteration) as follows:

   6.In addition to the LTTE related claims for protection, right from the outset Applicants 1 and (his wife) alerted about their statehood. AB: p16 at Q 65b: AB: p 23 q 11. AB: q17: AB: 79 q88:

   7.Crucially, (Applicant 1’s wife) stated in her protection visa application AB: p 86 q 19:

   I was born in India. My parents applied to the Sri Lankan government for my Sri Lankan citizenship but this was refused. Although I have a legal right to apply for Sri Lankan citizenship, the Sri Lankan government has refused to enforce this right. AB: p 87 at 24:

   Q 24 Have you ever been refused, renounced or rescinded citizenship of any country?

   [Answer] Yes. Country Sri Lanka.

   Applied through an aid organization to the Sri Lankan government, but my application was refused. AB: q 17

   Question: Your citizenship at birth (if none, write stateless)

   [Answer] (Effective) Statelessness.

   8.The Authority referred to the claims of (Applicant 1’s wife) being stateless. AB: at pp293-295 19-28. Delegate of the Second respondent also referred to this issue: AB: 236 under the subtopic Wife born in …..

   9.The Authority gave its decision on the 2 March 2018. AB: p 285. Subsequently the case law changed with the Full Court of the Federal Court delivering a judgment in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (24 June 2019). That case deals with the question of statehood of an applicant of Sri Lankan Tamil ethnicity who sought protection in Australia.

   10.Applicants provided a reason for the refusal of their Sri Lankan citizenship application being it was due to her parents residing outside the country for a long period. AB: 237 1st paragraph.

2. During the course of the applicants’ oral submissions a submission was made by Counsel for the applicants that the argument in ground 2 could be framed differently. Although not entirely clear, Counsel referred the Court to Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 and argued that the IAA had not satisfied an “essential precondition” as it had incorrectly identified applicant 1’s wife’s receiving county.

Minister’s Submissions

1. The Minister’s submissions dated 5 March 2020 provide (at [14]-[21]) as follows:

   14.The second proposed ground asserts that the IAA based its decision on a fact that does not exist, namely that the third applicant (the second named applicant before the IAA) was a national of Sri Lanka when she was stateless, and possibly also the second applicant (third named applicant before the IAA).

   15.The applicants’ ground is based on the Full Court’s decision in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (FER17), which was delivered over a year after the IAA’s decision in the present matter. The Full Court in FER17 found that, for the purposes of the Migration Act, the terms ‘a national’ and ‘nationality’ do not extend to a person who is not presently a national of another country but who might have, or has, the capacity to acquire that other country’s citizenship: [78] (see also, [32]).

   16.In the present matter, the IAA found that the third applicant was a national of Sri Lanka, and that Sri Lanka would therefore be the ‘receiving country’ within the meaning of s 5 of the Migration Act and for the purposes of s 5J, because the third applicant could register her birth and citizenship could then be conferred on her: [25]-[26]. The Minister accepts that, on the basis of FER17, this approach of the IAA amounted to error. The Minister accepts that, for the purpose of assessing whether the third applicant met the criteria for a protection visa, and on the facts found by the IAA, the third applicant was not a national of Sri Lanka and the IAA should have considered whether she was the national of another country, or if not, her country of former habitual residence. The third applicant’s claims for protection should then have been assessed against that country.

   17.While the Minister accepts that there was an error by the IAA, the Minister submits in the present case that relief should be refused because the error is not material taking into account the whole of the IAA’s reasons, or alternatively on discretionary grounds.

   18. The third applicant claimed to be stateless in her application for a protection visa, on the basis that she was born in India to Sri Lankan parents and her birth was not registered in Australia. She did not claim to be a national of any other country and did not claim to have previously lived in any other country. Accordingly, had the IAA applied the test in FER17, it could only have found that the third applicant’s country of former habitual residence was India and that India was the receiving country for the purposes of the assessment of the third applicant’s claims for protection.

   19. The third applicant’s claims for protection are set out at CB 104-106, and she made claims in respect of both India and Sri Lanka. Insofar as they relate to India, the third applicant’s claims can be summarised as follows:

   19.1. The third applicant’s husband (the first applicant to this application) was captured by the local police as one of the organisers of a memorial day for those who had died during the Sri Lankan civil war, and he was captured, imprisoned and tortured for perceived sympathies with the LTTE. The third applicant sought the help of a local lawyer and her husband was freed after a week, but her efforts displeased the local authorities. She was not physically harmed, but claimed that local police threatened to make the first and third applicants disappear.

   19.2. If she returns to India, she and the first applicant will be detained by police, questioned as to their whereabouts and accused of supporting the LTTE. There will be beatings, violence and worse and all their documents would be taken away meaning that they would effectively be imprisoned indefinitely in the camp with the local police.

   20. Thus, the basis of the third applicant’s claimed fear of harm in India is that her husband was detained by the authorities for his organisation in Memorial Day celebrations. The IAA considered and rejected the basis for these claims. The IAA found at [41] that, due to inconsistencies in the evidence of the first applicant and the third applicant, they were not recalling genuine personal experiences. The IAA accepted that the first applicant participated in Martyr Day celebrations in November 2012 but was not satisfied that he came to the adverse attention of the authorities on this basis. It follows from this that the IAA must also have considered that the third applicant did not upset the police by making efforts to have her husband released, or that the third applicant would have been threatened by the authorities.

   21. Given that the IAA rejected the fundamental factual premise of the third applicant’s claims to fear harm if returned to India, it follows that the IAA could not have found that the third applicant could have met the criteria in s 36(2) if it had considered India to be the receiving country. Accordingly, the IAA’s error did not reasonably deprive the applicant of the possibility of a successful outcome and does not amount to jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45].

2. The Ministers submissions (at [5]-[7]) dated 31 March 2020 further provide:

   5.The applicants’ submissions in relation to this ground address only that the IAA adopted a different approach to nationality to that subsequently held to be the correct approach by the Full Court in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106. So much is conceded at paragraph 16 of the Minister’s supplementary submissions filed on 5 March 2020.

   6.The applicants make no submission that any error on the part of the IAA is material, nor do they address the factual findings made by the IAA that the Minister has referred to in submitting that the IAA has effectively disposed of any claims for protection by the third applicant in relation to events in India. The applicants do not identify any evidence that would provide the basis for any finding that the IAA’s error is material.

   7.The applicants, of course, bear the onus of proof in establishing jurisdictional error in the IAA decision: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 367 ALR 711 at [39], BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [38]; Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [15]. This includes the onus of satisfying the Court that any error of the IAA is material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4] per Bell, Gageler and Keane JJ. They have not discharged this onus.

Consideration

1. The Minister has conceded that the IAA erred as per the decision in FER17 v Minister for Immigration, Citizenship & Multicultural Affairs [2019] FCAFC 106 (“FER17”).

2. The Minister argues, however, that this error does not amount to jurisdictional error because the error is not “material”, taking into account the whole of the IAA’s reasons.

3. Oddly, as noted by the Minister above, the applicants did not address the Minister’s argument in this regard in their written submissions. 

4. When prompted at the hearing to address this issue, Counsel for the applicants again chose not to make submissions that addressed the issue of materiality. Rather, Counsel framed what he referred to as the “alternative argument”.

5. As the Minister rightly pointed out, the applicants’ alternative argument (i.e., that determining applicant 1’s wife’s receiving country correctly was an “essential precondition”) still requires a consideration of the materiality of the error in question.

6. Indeed, this has been made quite clear in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 at [15], wherein the High Court explained:

   Consistently with repeatedly articulated interpretative principle, however, the precondition to the Authority exercising jurisdiction is not to be interpreted so rigidly as to result in the invalidity of the Authority’s decision where the non-compliance that occurred is immaterial to the decision of the Authority in the sense that the non-compliance could not realistically have made any difference to the decision.

7. Hence, the alternative argument the applicants attempted to advance at hearing must still meet the “materiality” threshold.  Unfortunately, Counsel for the applicants did not address this issue (despite the Court’s best efforts to get him to do so).

8. The onus of satisfying the Court in relation to the materiality of any error falls on the applicant: Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 at [4] (“SZMTA”). The fact that the applicants advanced no argument on this issue makes meeting that onus rather difficult.

9. It is now well settled that an error which does not reasonably deprive the applicants of the possibility of a successful outcome will not amount to jurisdictional error: SZMTA at [45].

10. Insofar as the applicants allege that the IAA erred in considering the son to be a Sri Lankan citizen, it is important to note that no claim was made to the contrary. The son’s visa application form identified his citizenship as “Sri Lankan” (CB 111). No claim was ever made otherwise. As held in AZK18 v Minister for Immigration, Citizenship, & Migrant Services & Multicultural Affairs [2020] FCA 331 at [39] and [44], the argument is without merit in circumstances where no claim had been made that the son was stateless until these judicial review proceedings.

11. Here, the issue to be addressed is whether the IAA’s error was material in the sense that it deprived the applicants of the possibility of a successful outcome. It is not in dispute that applicant 1’s wife claimed to be stateless.   

12. The claims made by applicant 1’s wife in relation to her fear of harm in India were that (CB 104-106):

    My husband was captured by the local police as one of the organisers of a memorial day for those who had died during the Sri Lankan civil war. As a result, my husband was captured, imprisoned and tortured for what the police believed to be sympathies for the LTTE. I tried to get the police to free him, but to this was not successful.

    …

    My husband was released after a week after I had sought the help of a local lawyer. Even though I was not physically harmed, my efforts at trying to free my husband displeased the police. They threatened both my husband and I that they would make us both ‘disappear’ and tell people that we had run away. Soon after my husband was released, we began plans to escape

    …

    If I return to India, me and my husband will be detained by police. They will question us about our whereabouts, and accuse us of supporting the LTTE.

    …

    There will most likely be beatings, and violence, and worse. They will also take away all of our documents, which will mean that we essentially no-longer exist. We will not be able to go anywhere or do anything. We would be effectively imprisoned indefinitely in the camp with the local police.

    …

    I did not experience physical harm, but I was warned and threatened by the local police because of my interference with my husband’s imprisonment. They threatened to make me and my husband disappear and tell people that we had run away.

    …

    If I return to India, I will most likely be captured and interrogated, and probably beaten/tortured.

    …

1. Applicant 1’s wife’s claims were based upon applicant 1’s claim to have been beaten and detained by the “Q Force” in India as a result of his involvement in Martyrs’ Day celebrations in 2012.

2. At [41], the IAA stated:

   When considered cumulatively, I consider the above inconsistencies and other evidence discussed to lead me to conclude that Applicant 1 and [Applicant 1’s wife] were not recalling a genuine personal experience in relation to their circumstances or the events that transpired prior to their departure from India. While I have accepted that Applicant 1 participated in Martyrs’ Day celebrations in November 2012, I am not satisfied he came to the adverse of the Indian authorities on this basis. Nor am I satisfied that Applicant 1 or [Applicant 1’s wife] left India in haste in relation to their involvement or connections with Martyrs’ Day celebrations in November 2012.

3. It is noted that the IAA has omitted a word after “adverse” in the above emphasised passage. It can be implied that the IAA had found that applicant 1 had not come to the adverse “attention” of the Indian authorities.

4. In effect, the premise on which applicant 1’s wife’s claimed to fear harm in India was based was entirely rejected by the IAA. The IAA rejected applicant 1’s claim that he had been the subject of adverse attention (and therefore the treatment he claimed) because of his involvement in Martyr’s Day celebrations.  This was the basis of the alleged harm applicant 1’s wife says she feared would arise if she returned to India.

5. It is the Minister’s submission that, for this reason, the error cannot be said to have been material.

6. The Court agrees. While the IAA erred in not considering India to be applicant 1’s wife’s receiving country and assessing her claims on that basis, given that the factual basis of her claims to fear harm in India were rejected in any event, the error cannot be said to have deprived the applicants of a successful outcome.

7. The error was not material. For that reason, the error is not jurisdictional.  Ground 2 must, accordingly, be dismissed.

Conclusion

1. The applicants’ amended grounds of review have failed to satisfy the Court that the IAA made a material error in denying them the visa they seek.

2. The application is, accordingly, dismissed.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  23 April 2020