BWE19 v Minister for Immigration

[2019] FCCA 3315

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWE19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3315

Catchwords:
MIGRATION – Review of decision by Administrative Appeal Tribunal –– Applicant argues Tribunal hearing should have been adjourned and nothing from the first hearing should have been considered –– the Tribunal adjourned the first hearing and reconsidered the matter –– Applicant argued he was not a citizen of Sri Lanka, which was non-consequential as that was not the receiving country nor a matter relied on by the Tribunal –– Applicant presented evidence of Indian citizenship, identity and nationality which was accepted –– Applicant argued his maternal forefathers were Sri Lankan –– Applicant argued that Tribunal failed to consider Citizenship Act 1948 (Sri Lanka) and relied on internet sourced legislation for purposes of s.91N(6) of the Migration Act 1958 (Cth) –– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1976 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 91N(6), 476

Cases cited:

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Applicant: BWE19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1099 of 2019

Judgment of: Judge Baird

Hearing date: 1 October 2019

Date of Last Submission: 1 October 2019

Delivered at: Sydney

Delivered on: 1 October 2019

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms K. Hooper

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the amended application dated 2 July 2019 and filed 3 July 2019.

3. ORDERS that the Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1099 of 2019

BWE19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. This is an Application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 4 April 2019 affirming a decision of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minster for Immigration and Border Protection), made 30 January 2019 to refuse to grant the Applicant a Safe Haven Enterprise (subclass 790) Visa or SHEV.

2. The Applicant applied to this Court seeking judicial review by application filed 7 May 2019, and he relies on an amended application filed 3 July 2019. 

3. He arrived in Australia on 16 November 2018 by plane, using a Malaysian passport in a name, not his own, and under a tourist visa.  On arrival, he was subject to visa cancellation and placed in immigration detention.  He remains in immigration detention. 

4. On 28 November 2018, the Applicant lodged his application for the Visa, before me, he gave evidence that his statement in support of his application for his Visa (dated 17 December 2018) was made with the assistance of a lawyer from RACS, however, neither before the Delegate, nor before the Tribunal, was the Applicant represented.  He is self-represented in this Court.   

Background

1. The Applicant, according to his Indian passport, was born in Kolathur, Kerala, India in 1978, making him 41 years old.  In his statement in support, however, he says he was born in Sri Lanka, and claims that his father was a Tamil Sri Lankan citizen, and that his mother was a Malayali Indian citizen from Kerala.  The Applicant claims his father passed away in Sri Lanka, and when he was three years old, his mother, elder brother and he moved from Sri Lanka to India.

2. The Applicant claims his father was a tailor in Batticaloa and a trader in textiles.  The Applicant’s mother told the Applicant that the army burned his father’s shop and his father was shot dead by the Sri Lankan Army as a Tamil person.  In his statement in support, the Applicant says that he did not have any Sri Lankan ID documents at that time and he has never been back to Sri Lanka.  He says he has no family in Sri Lanka, and his relatives have all gone to other countries.

3. He says the situation is bad in Sri Lanka for Tamil people, especially with Mr Rajapaksa trying to return to power.  He says he cannot get a Sri Lankan passport as “I have no evidence or documents of me or from my father or brother to prove Sri Lankan heritage.  I do not think I am a Sri Lankan citizen”.  The Applicant states he grew up in India, he had an Indian ADHAR card and an Indian passport and income tax statements.

The Applicant’s claims

1. I turn to the Applicant’s claims.  Before the Delegate and the Tribunal, the Applicant claimed to fear harm in India for the reason of his membership of the Communist Party of India (CPI).  The Applicant joined the Students’ Federation of India, which is an affiliate of the Communist Party of India (Marxist) (CPI(M)).  He claims he helped poor students to study, helped build houses and participated in and organised party meetings.  The Applicant’s claims are summarised in Part 4 of the Delegate’s decision, which I set out below.  I do so because the Applicant’s grounds of review before me do not relevantly cavil with the summary of the claims by the Delegate or the Tribunal. 

   The applicant’s claims for protection, including those raised at interview, and evidence provided by the applicant in support … are summarised below:

   ·The applicant grew up and was schooled in India. Whilst in school, he joined the Student Federation of India, which is affiliated with the Communist Party of India (Marxist) (CPM). As part of this role, the applicant helped poor students to study, helped build houses for people in poverty, and as involved in organising meetings for the party. He was a committee member of the student committee.

   ·The applicant worked in the film industry until he was approximately 30 years old, then began his rice business.

   ·He continued being involved and a member of the CPM after being a student. As part of his involvement, he organised meetings, put up posters and would campaign in elections for CPM candidates. The applicant was involved in two election campaigns in around 2012 or 2013 and approximately 2015.

   ·The BJP (Bharatiya Janata Party) are a political party in India that are against the CPM. They are influential and powerful in India.

   ·In 2013, six months after an election campaign, there were BJP-RSS (right wing parties) aligned to Bharatiya Mazdoor Sanght trade union members who came to the applicant’s shop. They were asking the applicant for donations. The applicant only gave a small donation and there was an argument as they demanded more money. The members then physically assaulted the applicant. He required six months of medical treatment.

   ·The applicant suspects they picked a fight with him because of his CPM membership.

   ·Over the years hundreds of people have died in conflict between the CPM and BJP.

   ·In 2016 there was a land dispute in Vazhapana (Valapana) between his neighbour and a BJP leader. The BJP leader of that area, Dr Maru7, tried to take the land from his neighbour.

   ·The applicant gave evidence to the police to help his neighbour.

   ·He believes the BJP leader was angry with the applicant and organised to kill him. One day, the applicant was with his neighbour outside his neighbour’s house when five or six BJP party members came and attacked his neighbour. The applicant attempted to assist his neighbour however he was attacked and his leg was cut. He was threatened that he would be killed.

   ·One of the attackers was caught by police however released. The applicant assumes the BJP paid a bribe for him to be released.

   ·The applicant has provided video evidence of the 2016 attack which was taken by a bystander on the day.

   ·• The applicant fled to Bangalore where he was for approximately six to eight months. Some BJP supporters saw him in Bangalore so he moved to Chennai for a couple of months. His ex-wife was also harassed due to the dispute so she left her home area.

   ·The applicant returned to Vazhapana to see his mother at the end of 2017. His mother has also been threatened and harassed.

   ·In early 2018 a BJP person was killed by the CPM. He was a friend of the applicant. A few days before he died, the applicant saw his friend. Following his death, the police contacted the applicant and suspected that he had some involvement because he is from the CPM.

   ·The applicant thought the BJP would seek revenge for his friend’s death by killing a CPM member and he fears he may be targeted. The applicant fears that the Communist Party of India (CPI) may betray him to the BJP.

   ·The applicant returned to Chennai however was seen by people from his home village. He feared that they would tell others and the applicant would be found and targeted by the BJP.

   ·After staying in Chennai for a month in 2018, the applicant fled to Europe. He did not want to be detained so he came to Australia.

   ·He cannot return to India because he will be targeted by BJP members who are violent and powerful.

   ·He cannot relocate in India because the BJP are national and influential. People from his home area may also see him.

   ·The applicant fears the police cannot protect him because of corruption from the BJP.

2. Following a claimed land dispute between the BJP leader of the area in which he lived, Dr Maru, and one of the Applicant’s neighbours, the Applicant says he gave evidence to the police to assist his neighbour, which led to him being attacked resulting in a large cut on his leg.  The Applicant then fled from one place to another, where he stayed for six to eight months.  He claims to have been spotted by BJP supporters and moved to Chennai, where he stayed for another couple of months.  He claims his ex-wife and mother were harassed during this period.  The Applicant fled to Europe in 2018, spending approximately, two hours in Germany, two months in France and two months in the United Kingdom before making his way to Australia.  He does not believe the Indian authorities can or will protect him due to the BJP influence.

The Delegate’s decision

1. The Delegate in her decision states that in response to a request dated 28 November 2018 to produce documentary evidence of his identity, nationality or citizenship under s.91W(1) of the Act, the Applicant produced the following documentary evidence: an Indian driver’s licence, an Indian Income Tax card and an Indian ID card.

2. The Delegate accepted those documents and found that the documentary evidence produced was satisfactory.  The Delegate also noted that on file was a copy of the Applicant’s Indian passport, which passport supports his claimed identity and indicates that his place of birth is Kerala, India.  In the Delegate’s decision at page 2, the Delegate noted the Applicant’s assertion that he was born in Sri Lanka and that at his SHEV interview conducted on 17 January 2019, the Applicant indicated that the above mentioned documents reflect his place of birth to be Kerala because that is his mother’s place of origin in India and it is where the Applicant resided for the majority of time in India.

3. The Delegate recorded that the Applicant’s claims that he was born in Sri Lanka to a Sri Lankan father, and noted that India did not recognise dual citizenship.  The Delegate noted that according to the information found by the Delegate, if a person has acquired Sri Lankan citizenship, they would have to surrender their full Indian citizenship.  The Delegate noted the following (at page 2 of the Delegate’s decision):

   I note the applicant has no Sri Lankan identity cards and based on his oral testimony and documentary evidence, as well as a consideration of the country information above, I find the applicant is a citizen of India and not Sri Lanka.  There is no evidence before me to indicate that the applicant is a dual citizen.

4. The Delegate found that the Applicant had very little knowledge of the CPI(M).  His answers were broad and could really be applied to any political party, such as saying “helps poor people in poverty”.  He also did not provide specific answers to the questions regarding which candidates he had helped.  This was concerning to the Delegate, considering the landslide nature of the 2016 electoral victory for the CPI. 

5. The Delegate was not satisfied that the Applicant is a refugee as defined by s.5H(1) of the Act and, therefore, the Delegate was also not satisfied that the Applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act. 

6. The Delegate then turned to consider the complementary protection criterion.  The Delegate was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to India, there is a real risk he will suffer significant harm as defined in s.36(2A) of the Act and, therefore, the Applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

7. I should note that the Delegate was concerned by the Applicant stating he had looked for work in the United Kingdom, which would not have been allowed under his tourist visa, and the Delegate found that the Applicant could have applied for asylum in France, United Kingdom, Germany or Nepal, however, chose not to do so, and had also twice applied for visas to the United States of America, raising concerns that his migration might be for economic reasons.  The Delegate also reviewed a video which, the Applicant claims, was of the attack where his leg was cut.  The Delegate said whilst the Applicant can be seen talking to the police, there is no evidence of his leg being cut.  The Delegate found the Applicant was not likely a target of the BJP. 

The proceeding before the Tribunal and the Tribunal decision

1. The Applicant applied to the Tribunal by application lodged on 3 February 2019.  The Applicant was invited to attend a hearing scheduled for 21 March 2019.  The Applicant attended that hearing on that date, having indicated he sought a Tamil interpreter.  However, at the Tribunal hearing the interpreter and the Applicant found difficulty in understanding each other.  The hearing was adjourned, and by subsequent email letter from the Tribunal dated 22 March 2019 the Applicant was invited to attend a resumed hearing on 25 March 2019, which the Applicant did. 

2. The Applicant was assisted at the resumed hearing before the Tribunal by an interpreter present in person, which interpreter interpreted in the Malayalam and English languages.  I note the hearing on 25 March 2019 commenced at 10.11 am and concluded at 1300 hours, and the time was also noted as 1.05 pm.  As I have said, the Tribunal affirmed the decision not to grant the Applicant a protection Visa. 

3. The circumstances of the Tribunal’s hearings are set out in the Tribunal decision at [18] and [19] as follows:

   [18]The applicant appeared before the Tribunal at a hearing held on 21 March 2019 and 25 March 2019, to give evidence and present arguments. The hearing began with the assistance of an interpreter in the Tamil and English languages, as requested by the applicant. However, the interpreter seemed to struggle with the applicant’s accent. The applicant confirmed that his first language is in fact Malayalam, and the hearing resumed with the assistance of an interpreter in that language. It started off with a telephone interpreter, but following audio problems, the Tribunal decided to adjourn the hearing until the following week, so that a Malayalam interpreter could be present in person.

   [19]At hearing, the applicant said vaguely that his mother might be able to locate further documents, such as a copy of correspondence he had sent to the Human Rights Commission. But he added that she was frail, and his brother did not assist her. The Tribunal noted that the applicant had already been in immigration detention for more than four months, and it was surprising that he had not already set out about obtaining any further documents (for instance, addressing the concerns that the delegate had raised in the decision under review). In the circumstances, the Tribunal allowed one further week, for any further written submissions. The Tribunal has received no further material, as of 3 April 2019.

4. Given the Applicant’s grounds of review, it is appropriate that I incorporate the Tribunal’s decision regarding the Applicant’s receiving country.  Under the subheading “Receiving country”, the Tribunal said at ([21] to [25]):

   [21]The applicant claims that he is a national of India. He presented a partial photocopy of his current Indian passport, which he claims to have lost in France. He travelled to Australia on a fraudulent Malaysian passport. The applicant speaks Malayalam, an official language in Kerala, and Tamil, a minority language in that state. He presented other evidence from India, and demonstrated his familiarity with that country. The Tribunal is satisfied, and finds, that he is a national of India.

   [22]The applicant claims to have been born in Batticaloa, Sri Lanka, and that his father had Sri Lankan nationality. A potential question arises as to whether he has dual Indian/Sri Lankan nationality. A non-citizen who is a national of two or more countries cannot make a valid application for a protection visa, unless the Minister has exercised his/her discretionary power to allow such an application, on the basis that s/he thinks it is in the public interest to do so.3 The decision-maker must determine whether a non-citizen is a national of a particular country with sole reference to the law of that country.

   [23]At the time of independence, Sri Lanka’s Citizenship Acts of 1948‑9 focused on nationality by descent, essentially rendering the large ‘Up Country’ Tamil community (those Tamils in the northern and eastern parts of the country, who had arrived during the period of British rule) stateless. A succession of agreements with India in the 1970’s sought to address this problem; one element of which included India’s grant of citizenship to 600,000 Tamils who wanted to return to India.5 Those Tamils who remained in Sri Lanka were granted Sri Lankan citizenship. The applicant was born in 1978. His father died when he (the applicant) was three years old, and he moved to India with his India-born mother. It appears that the applicant has no documentary evidence or further details relating to these circumstances. Although he is in contact with paternal relatives in the UK, he doubted that they had any documents relating to his birth in Sri Lanka or his father’s citizenship status.

   [24]On the available information, the Tribunal is not satisfied that the applicant is a national of Sri Lanka at the time, or that he has any other nationality.

   [25]Accordingly, India is the receiving country for the purpose of assessing his claims for protection.

5. I note that in his second ground of review, which I will come to, the Applicant directs attention to [23] and to footnote 5 of the Tribunal’s decision.  Footnote 5 is as follows:

   Minority Rights Group International, World Directory of Minorities and Indigenous Peoples – Sri Lanka : Tamils, March 2018, available at: [accessed 21 March 2019]

6. The Tribunal had broad concerns about the Applicant’s truthfulness, and the Tribunal member found the Applicant’s answers to be vague, unsubstantiated and based on speculation or suggestions that appeared to be contrived (see Tribunal decision at [28]). 

1. The Applicant claimed mental health issues for the first time before the Tribunal.  However, the Tribunal noted that the Applicant – “did not expand on this or provide any medical evidence concerning his mental health.  The Tribunal appreciates that the Applicant’s immigration detention and unresolved migration status may be stressful.  However, it did not observe anything to suggest that he has any medical issues that impaired his ability to present his case and evidence” (at [29]). 

2. The Tribunal expressed particular concerns about the Applicant’s credibility and his need for protection arising from his recent travel history, which circumstances it set out at [30].

3. Given the Applicant’s grounds of review, it is not necessary to further detail the Tribunal decision.  It is suffice to note the summary of the Tribunal’s findings and conclusions that Ms Hooper, Counsel appearing for the Minister, set out in the Minister’s written submissions at [8], which I adopt:

   8.The Tribunal summarised its factual findings at [90]. It accepted aspects of the Applicant’s claims, including that the Applicant was a supporter and ordinary member of the CPI(M), and that he had received demands for bribes, although not for political reasons. The Tribunal found that there was no real chance of the Applicant suffering serious harm amounting to persecution by reason of his political claims, or his extortion claims. The Tribunal considered the complementary protection criterion and concluded that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, there was a real risk that he would suffer significant harm.

Grounds of review

1. As I have noted, the Applicant relies on an amended application filed 3 July 2019.  That application contains two grounds of review, including particulars.  I set them out as follows (without alteration):

   1.The Tribunal misdirected itself in considering the law of the Democratic Socialist Republic of Sri Lanka for the purposes of s 91N(6) of the Migration Act 1958 (Cth) and thus fell in to Jurisdictional error.

   Particulars

   (a)Failure to consider the legislation of Democratic Socialist Republic of Sri Lanka, namely the Citizenship Act 1948 (Sri Lanka) ("the Citizenship Act") which deal with the nationality of a person.

   (b)The Tribunal relied on information in the internet for the purpose of s 91N(6) of the Migration Act 1958 (Cth), when the practice of the Democratic Socialist Republic of Sri Lanka in relation to its nationality is by reference to its statutory provisions.

   2.The Tribunal decision to consider the information given on hearing held 21 March 2019 was legally unreasonable and so fell into Jurisdictional error.

   Particulars

   (a)The Tribunal should not have considered the information given by the applicant on hearing held 21 March 2019 in circumstances when there was audio problems along interview process.

   (b)In circumstances when a hearing is adjourned due to audio problems, the Tribunal to consider the information given on new hearing date, especially here on the hearing dated 25 March 2019.

Proceeding in this Court

1. In support of the amended application the Applicant affirmed an affidavit dated on 2 July 2019, which annexed as “Annexure AB” pages 1 to 9 of the – “Citizenship Act 1948 (Sri Lanka)”, taken from the internet to be used as evidence in this matter. I received into evidence that affidavit and that annexure. I will return to sections 20 and 21 of the Citizenship Act, noting in particular sub-cls.20 (1) and (5).

2. Whilst orders were made by the Registrar on 23 May 2019 that as well as filing and serving an amended application, the Applicant should file any additional affidavit to be relied on, including any transcript of a Tribunal hearing, by 4 July 2019, and that the Applicant should file and serve written submissions and list of authorities 14 days before the hearing, until the Applicant appeared before me today, no additional evidence and no written submissions were filed or served.

3. However, at the hearing before me today, the Applicant has handed up a document headed “Applicant’s Oral Argument” to which I have had regard.  I incorporate the content of that document below when I describe the submissions made to this Court. 

The hearing before me today

1. Before me today the Applicant has appeared unrepresented but with the benefit of an interpreter in Malayalam and English.  Several times during the course of today, I have had to remind the interpreter to interpret what I am saying, or what Ms Hooper is saying as it is being spoken, and I note that has not always occurred.  However, by his demeanour and by both gesture and responses, the Applicant has indicated that in large part he is following what I am saying and Ms Hooper’s submissions.

2. At the commencement of the hearing I allowed time before I came onto the bench for the Applicant to have translated to him the Minister’s written submissions.  The Applicant confirmed that he had had the submissions translated to him and that he understood them.  He reiterated he wished to proceed with his amended application, and he confirmed that he wished to proceed with both grounds of the amended application. 

3. I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and it is not for this Court generally to reconsider the Applicant’s claims and to reach different factual findings or conclusions.  I also explained to the Applicant that the only issue before this Court on the application is whether or not there were “legal problems” with the Tribunal’s decision ‑ with what the Tribunal did or did not do, or how they did it, or as I otherwise expressed it, whether or not the decision of the Tribunal was made according to law. 

4. I further explained that disagreement with the findings or the conclusions of the Tribunal rarely by itself establishes a mistake going to the Tribunal’s jurisdiction.  I reiterated that this Court is not a place in which a party may simply reargue their case in the hope of convincing the judge to take a different view on the evidence, and that this Court has no jurisdiction generally to consider the “rightness” or the factual merits of an applicant’s claim. 

5. I also explained to the Applicant the cost consequences that would likely flow to him if he lost and if a costs order was made against him.  The Applicant indicated that he wished to proceed with his application today. 

6. As I have said, the Applicant sought to rely on a note of his oral argument.  The Applicant also spoke to that note. 

The Applicant’s submissions

1. In relation to ground 1, the Applicant said to me that his mother was born in Kerala, but his parents and forefathers were from Sri Lanka and came to Kerala for business.  He said that she studied in Kerala but got married in Sri Lanka, and that he was born in Sri Lanka.  Consistent with his statement in support of his protection claims, the Applicant said he had moved to Kerala when he was three years old, after his father passed away. 

2. In the “Applicant’s Oral Argument” the Applicant says that:

   “In relation to citizenship

   My mother was born in India but her parents were Sri Lankan citizens by operation of law. As she remained a Sri Lankan citizen by virtue of s.4(2) of the Citizenship Act (Sri Lanka), I am also a citizen of Sri Lanka pursuant to s.5(1) of the Citizenship Act (Sri Lanka).

   The Tribunal at hearing was concerned only about the citizenship of his father but was not asked about the background of my mother other than her citizenship.” 

   The document continues:

   “Whether the finding of citizenship material

   I believe the finding of the Tribunal in relation to the citizenship is material because the protection visa application might be invalid and the decision of the Tribunal might be made on an invalid protection visa application.”

3. Orally, the Applicant informed the Court that the Tribunal did not ask him about his mother’s forefathers, “so I didn’t tell them”.  I confirmed with the Applicant that he did tell the Tribunal that his mother was born in Kerala, and that he and his brother and his mother stayed in Kerala, and his grandfather stayed in Kerala.  When I asked why he said this was important, he said that all of his mother’s relatives were still in Sri Lanka, “and they say I don’t have Sri Lankan background, and Tamils fighting”. 

4. The Applicant confirmed that he had an Indian passport and was an Indian national.  He then made submissions in relation to the first Tribunal hearing, and after some discussion with the bench, with the assistance of Ms Hooper, I ascertained from the Applicant that the description set out in at [18] of the Tribunal’s decision (see above at [19]) properly reflected what occurred at the first hearing before the Tribunal and at the resumed hearing. 

5. The Applicant said that the interpreter at the first hearing on 21 March 2019 was an Indian Tamil, and so the Applicant found it difficult to follow the accent, or what I understood to be the accent, of the interpreter.  The Applicant was then given the benefit of an interpreter in Malayalam on the telephone, but there were problems, and the Tribunal hearing was adjourned and resumed. 

6. The Applicant confirmed that at the resumed hearing there was an interpreter speaking Malayalam in the room with him, and that he, the Applicant, understood what was happening.  The Applicant said that his mother’s background was not mentioned in the Court Book, and he confirmed that the Applicant did not tell the Tribunal about his mother’s background because the Tribunal did not ask. 

7. In relation to ground 2, largely as foreshadowed by the document headed “Applicant’s Oral Argument”, the Applicant said that the Tribunal did consider oral evidence given on 21 March 2019.  He referred to [23] of the Tribunal’s decision, and that the Tribunal had referred to a website which was accessed, as is apparent from footnote 5, on 21 March 2019 (see above at [21]).  The “Oral Argument” document stated “This is evidence as to the Tribunal considered the oral evidence to access information based on the evidence given on 21 March 2019”.  The Applicant said to me that his problem with the Tribunal’s decision was that the Tribunal “didn’t go deep into the matter, only the information they could find on the website”. 

8. The Applicant then made submissions that ever since he has landed in Australia he has had no chance to get a lawyer to explain what his arguments were.  I then ascertained that he did have a lawyer to help with his statement of his claims in support of his protection Visa.  He said that that statement did not say anything about his mother’s background, but he had explained that to the lawyer at RACS. 

9. I took the Applicant to his statement in support of his Visa, and he confirmed that paragraphs [3] and [4] of the statement, which I have summarised above at [5] – [7] were correct.  Ms Hooper then made her submissions, and the Applicant indicated he had nothing further to say.  I consider and incorporate Ms Hooper’s submissions in the course of my consideration of the Applicant’s grounds of review. 

Consideration

Ground 1

1. Turning first to ground 1, I refer to the Applicant’s submissions I have recounted above.

2. The Applicant’s application for the Visa was largely incomplete – and in relation to his identity, stated only his name.  However he supported his application with a copy of the photo page of an Indian passport in his name which was issued on 2 November 2015, gave his place of birth as Kolathur, Kerala, and his nationality as Indian. 

3. In his statement in support of his protection claims the Applicant claimed to have grown up in India, have had an Indian ADHAR card and an Indian passport and income tax statements.  He expressly stated that he did not think he was a Sri Lankan citizen, that is, he did not claim to be a citizen of Sri Lanka nor to claim dual nationality. 

4. The evidence before the Tribunal, at [21], was that he had presented a partial photocopy of his current Indian passport which he claimed to have lost in France, presented other evidence from India, and demonstrated his familiarity with that country. 

5. At [22] and [23] of its decision (see above at [20]), the Tribunal considered the question of the Applicant’s dual Indian‑Sri Lankan nationality, and referred specifically to ss.91P and 91N of the Act. At [23], the Tribunal specifically referred to the Sri Lankan citizenship legislation (the Citizenship Act) and focused on nationality by descent. The Tribunal recorded that the Applicant’s father died when the Applicant was three years old, and he moved to India with his Indian‑born mother. The Tribunal noted that the Applicant appears to have no documentary evidence or further details relating to these circumstances.

6. The Tribunal’s reference to the Sri Lankan Citizenship Act, with a focus on nationality by descent, is consistent with the evidence that the Applicant has relied on in this Court. 

7. Subsections 4.(2) and 5.(1) of the Citizenship Act as annexed to the Applicant’s affidavit sworn 2 July 2019 are contained in “Part II Citizenship by Descent” and provide as follows:

   4…

   (2)Subject to the other provisions of this Part, a person born outside Sri Lanka before the appointed date shall have the status of a citizen of Sri Lanka by descent, if –

   (a)his father and paternal grandfather were born in Sri Lanka, or

   (b)his paternal grandfather and paternal great grandfather were born in Sri Lanka

   5.(1)Subject to the other provisions of this Part, a person born in 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.

8. Subsections 8.(1) and (2), also in Part II, provide:

   8.(1)Any person who ceases under section 19 or section 20 to be a Citizen of Sri Lanka by descent may at any time thereafter make application to the Minister for a declaration that such person has resumed the status of a citizen of Sri Lanka by descent ; and the Minister may make the declaration for which the application is made

   (a)if that person renounces citizenship of any other country of which he is a citizen, in accordance with the law in force in that behalf in that other country ; and

   (b)if that person is, and intends to continue to be, ordinarily resident in Sri Lanka.

   (2)Where a declaration is made in relation to any person under subsection (1), that person shall, with effect from such date as may be specified in the declaration, again have the status of a citizen of Sri Lanka by descent.

9. Section 20 of the Citizenship Act provides in part, relevantly, as follows:

   20.(1)Where a person born before the appointed date is a citizen of Ceylon by descent, and is also on that date a citizen of any other country, that person shall –

   …

   (b)On the day on which he attains the age of 22 years … cease to be a citizen of Ceylon unless before that day he renounces citizenship of that other country in accordance with the law therein in force in that behalf, and notifies such renunciation to a prescribed officer …

10. I also note sub-s.20(5), which is as follows:

    20.(5)A person who is a citizen of Sri Lanka by descent shall cease to be a citizen of Sri Lanka if he voluntarily becomes a citizen of any other country. 

11. In the present case, it is apparent from the Tribunal’s consideration at [21] through to [25], the Applicant claimed he was a national of India, presented a partial photocopy of a current Indian passport, disclaimed that he was or thought he was a Sri Lankan citizen, and correctly identified that his mother was born in Kerala, and his father was born in Sri Lanka.  That appears to be the extent of any evidence before the Tribunal regarding the Applicant’s claimed citizenship or, in fact, nationality.

12. The Tribunal, as I have said, referred to, and appears to have considered, the Citizenship Act, and provision regarding nationality by descent, namely s.20. The provisions of ss.4 and 5 do not assist the Applicant in the present case: see s.8(2) above.

13. On the evidence before it, the Tribunal was properly entitled to accept the Applicant’s claim to be an Indian national and to find that he was not a Sri Lankan national, and I find that the Tribunal’s finding and conclusion that the receiving country of the Applicant was India, reflects a proper understanding of the Sri Lankan law on citizenship, so far as it’s set out in the Citizenship Act in evidence before me. I also note, under Sri Lankan law, it is not possible to be a dual national. I also note that the Delegate had also found that under Indian law it was not possible for an Applicant to be a dual national.

14. The claim that the Applicant’s mother’s forefathers came from Sri Lanka was not evidence before the Tribunal.  Whilst I have heard that assertion made by the Applicant today, nothing turns on the status of the Applicant’s parents and forefathers in the circumstance that the Applicant presented in his claims before the Tribunal.  As the Tribunal concluded, and as the Applicant said to me today, he claims to be Indian, and he has a current Indian passport, and the Tribunal was entitled to so accept that. 

15. The Tribunal referred to ss.91P and 91N of the Act.  It suffices to refer to the summary of the provisions in footnote 3 of the Tribunal’s decision.  In sum, if an applicant is a dual national of two or more countries, then save for the personal discretionary power of the Minister, any application for a protection visa is not valid if it is made in those circumstances. 

16. In the amended application the Applicant seeks constitutional writs directed to the Tribunal to quash its decision and to require it to reconsider the matter according to law.  If the Applicant is a dual national, then the Applicant cannot validly apply for a protection visa in the present circumstances, and that would mean that his application was invalid. 

17. Ground 1 is not made out.  I am satisfied that the Tribunal did not fall into jurisdictional error.  However, even if I was wrong, the consequence would be that the application for Visa is invalid.  In those circumstances, I would not, in my discretion, remit the matter to the Tribunal for reconsideration where the Tribunal has no jurisdiction.  No order is sought that the Tribunal decision be squashed and that I make any declaration that the Visa application is invalid. 

18. By reference to the particulars of ground 1 in the amended application, I find that particular 1(a) is contradicted by the first sentence of [23] of the Tribunal’s decision, which reveals that the Tribunal did consider the Citizenship Act. As to particular 1(b), I find that is not made out. The Tribunal was entitled to rely on information it sourced from the internet (which appears to be a copy of provisions of the Citizenship Act), and the Tribunal properly had reference to s.91N of the Act. Whether it did so via the internet, or in paper does not lead to any jurisdictional error.

Ground 2

1. Turning to ground 2, the Applicant appears to say that there were problems with the hearing on 21 March 2018, and that it should have been adjourned. Well, that is, in fact, what happened, as is clear from the Tribunal decision at [18]. The note of Applicant’s Oral Argument handed up to me, and the argument which the Applicant expanded upon orally today, as I understand it, is that because the Tribunal accessed the documents referred to at footnote 5 on 21 March 2019, and that the Tribunal thereby had regard to what was said at the hearing on 21 March 2019 before the hearing was adjourned, it fell into jurisdictional error.

2. First, simply because a document is accessed on 21 March 2019, which is also the date of a hearing, does not raise any issue of legal unreasonableness, nor does it, of itself, evidence that the Tribunal had regard to what was said by the Applicant or what occurred at the Tribunal hearing on that date.

1. Secondly, there is no jurisdictional error in the Tribunal having regard to oral evidence at the first hearing in circumstances where there is nothing on the face of the Tribunal decision or in the hearing record note in evidence that there was such a problem at the first hearing that the Tribunal member should not have regard to anything that occurred at that hearing.

2. It is clear that the Tribunal member had regard to what occurred at the further hearing on 25 March 2019, and that the Tribunal allowed a further one week after the resumed hearing for further submissions (see  the Tribunal’s decision at [19]) but that no further material was received.

3. Additionally, I note that the Applicant was subject to orders that he file and serve by way of affidavit any additional evidence to be relied on, including any transcript of a Tribunal hearing, by 4 July 2019 (pursuant to consent orders made at the first court date on 23 May 2019), and that the Applicant has filed an affidavit affirmed 2 July 2019.  Thus, he had an opportunity, but has not availed himself of any such opportunity, to provide any transcript if he had any concerns about either the hearing of the Tribunal on 21 March 2018 or on 25 March 2018.

4. The information that the Tribunal appears to have relied on from the document it sourced from a website on 21 March 2019 is set out in [23] of the decision.  There is no indication that any of that information is problematic.  Other than the fact of access, the Applicant has not pointed to any matter which would support his ground or give rise to any jurisdictional error on the part of the Tribunal in its decision.

5. It is well established that it is for the Applicant to prove jurisdictional error (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]-[68] and [91] to [92]). He has not discharged his onus in that regard.

6. I wish also to record that an applicant bears the responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and it is the responsibility of an applicant to provide sufficient evidence to establish the claim.  Such responsibility is made express in s.5AAA(1) and (2) of the Act, and is a matter of long-standing authority.

7. Whilst the Applicant complains that he did not say anything about his mother’s parentage because the Tribunal did not ask him, the Applicant bears the responsibility to make out his claim and to provide the evidence, and he did provide evidence and claims which went to him being a citizen and a national of India.  Ground 2 is not made out.

Conclusion

1. In sum, neither of the grounds of the Applicant’s amended application are established.  It follows the application is dismissed and that the Applicant must pay the Minister’s costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Baird.

Associate: 

Date: 22 November 2019