CNS18 v Minister for Home Affairs - [2020] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNS18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 1854

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – application for protection visa – applicants claiming to be stateless – issue concerning whether the IAA conflated the finding the applicants were not ethnically Rohingya with the finding they were not stateless – has IAA failed to exercise jurisdiction conferred upon it – is decision irrational, illogical or unreasonable – legal unreasonableness – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 65, 473CC, 474

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184

Chan v Minister for Immigration (1989) 169 CLR 379

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZMTA [2019] HCA 3

Minister for Immigration & Border Protection v SZVFW [2018] HCA 30

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259; [1996] HCA 6

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR

473

First Applicant:

CNS18

Second Applicant:

CNU18

Third Applicant:

CNV18

Fourth Applicant:

CNW18

Fifth Applicant:

CNX18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 187 of 2018

Judgment of:

Judge Brown

Hearing date:

10 February 2020

Date of Last Submission:

10 February 2020

Delivered at:

Adelaide

Delivered on:

7 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Rutherford

Solicitors for the Applicant:

Camatta Lempens Lawyers

Counsel for the Respondents:

Mr d’Assumpcao

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed 15 May 2018, amended 6 November 2019, is dismissed.
The applicants are to pay the first respondent’s costs in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 187 of 2018

CNS18

First Applicant

CNU18

Second Applicant

CNV18

Third Applicant

CNW18

Fourth Applicant

CNX18

Fifth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons relate to an application for judicial review of a decision of the Immigration Assessment Authority[1] not to grant the applicants protection visas pursuant to the provisions of the Migration Act 1958.[2] The first to fourth applicants were born in Mon State, Myanmar and are Sunni Muslims by religion but assert that they are unsure of their ethnicity. The fifth applicant was born in Australia.
[1] Hereinafter referred to as “the IAA”
[2] Hereinafter referred to as “the Act”
The applicants, a family group, arrived on Christmas Island by boat on 12 July 2013. They had no authority to land. As such, pursuant to the provisions of the Act, they are categorised as unauthorised maritime arrivals. This categorisation determines the review process to be applied to their application.
Pursuant to section 46A this classification prevents any such person from being able to apply automatically for any form of visa, including a protection visa, unless the relevant minister (the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs)[3] authorises it, on the basis of being satisfied that it is in the public interest to do so.
[3] Hereinafter referred to as “the Minister”
In the relevant jargon, this process is known as lifting the bar. The first applicant, the father, was interviewed, as an unauthorised maritime arrival, by departmental officers in February of 2013. The bar to the relevant applications was lifted on 3 March 2016 and his SHEV application was made, with the assistance of a migration agent, on 29 June 2016.
A consequence of the Minister allowing any applicant to make a visa application, in this way, is that such an applicant becomes characterised as a fast track applicant and, as such, the manner in which his/her application is to be determined and any review process arising is prescribed by Part 7AA of the Act.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
The first applicant applied for a Safe Haven Enterprise (subclass 790) Visa (SHEV) on 16 February 2017, listing the second, third and fourth applicants as members of his family unit. The fifth applicant, the first and second applicants’ daughter, was born in Australia.
The applicants claim that, although they were born in Myanmar and lived there on a permanent basis, they do not hold citizenship, such that they are considered stateless. The applicants claim that they were targeted and discriminated against, on the basis of them being Muslim, by Buddhist extremist groups.
In their statement of claim, the applicants describe various instances of discrimination in the form of verbal abuse, receiving anti-muslim pamphlets, and being treated unfairly by the authorities. The applicants further outline the general danger for Muslims in Myanmar, such as mosques being burned down with people inside them.
Ultimately, the applicants fear that if they return to Myanmar, they will be targeted on the basis that they are Muslim, stateless, and/or sought asylum in Australia. The applicants believe that upon their return, they will be subject to discrimination and may be arrested, detained indefinitely and tortured or possibly killed by the Myanmar government.
Pending the grant of any protection visa, the first applicant was interviewed by a departmental officer on 7 December 2017 in respect of his and his family’s claim to be entitled to Australia’s protection. Their claims can be summarised as follows:
·Tension between the Muslim and Buddhist communities had risen to the point that Buddhist extremist groups were actively targeting Muslims;
·The applicants had heard that a mosque was burned down by these extremist groups with people inside of it;
·The first applicant had received a pamphlet at his home which advocated for the killing and rape of Muslims;
·The second applicant had been the target of discrimination at her shop as authorities had allowed her to be swindled by customers;
·The applicants received verbal abuse on account of them being Muslim;
·The applicants were in constant fear for their safety and did not leave their home at night.
As a consequence of these matters, the applicants claimed that if they returned to Myanmar, they would be detained and possibly killed by the Myanmar government on the basis of them being stateless and Muslims, no matter where they were in the country.

Legal principles relevant to the grant of protection visas

Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The High Court has established that this definition has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality.”[4]
[4] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [72] – [73]
In cases such as Chan v Minister for Immigration[5] and Minister for Immigration v Guo,[6] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[5] Chan v Minister for Immigration (1989) 169 CLR 379
[6] Minister for Immigration v Guo (1997) 191 CLR 559
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.

The current application

The first applicant was interviewed, by departmental staff, in respect of his application on 7 December 2017. In this interview, the applicant re-iterated his claims for protection; that they would face a risk of harm due to them being stateless and Muslim.
Although it does not appear to be a claim that is raised on the applicant’s initial application, the applicant’s agent made a verbal submission to the effect that the applicant only came to believe he may be a Rohingya after he arrived in Australia. The relevance of this will become clear in due course.
The delegate, in his decision dated 8 March 2018, found that the applicants were citizens of Myanmar and therefore not stateless, based on the fact that the first applicant was not ethnically Rohingyan, as he lacked knowledge of the Rohingya ethnicity, and appeared not to have been subject to the harsh treatment that was typical of other stateless applicants in Myanmar who lacked the official documentation that the applicants did.
Although not specifically outlined in their statement of claim, the delegate did address the issue of whether the first applicant was in fact ethnically Rohingyan, apparently in response to the submission made verbally at the interview.
Additionally, the delegate made findings that, according to relevant country information, the applicants did not have a well-founded fear of persecution on the basis that they were Muslim given that, although there was evidence of discrimination, there was no evidence indicating a persecution of Muslims in Myanmar.
The delegate also concluded that the applicants would not be targeted on return to Myanmar on the basis that they were failed asylum seekers. Therefore, the delegate found the applicants were not owed protection obligations and refused their application for the visa. The decision was fast tracked for review by the IAA.

The decision of the IAA

The IAA addressed a number of issues in its determination. First, regarding the ethnicity/statelessness considerations, the IAA addressed both aspects under separate headings. Concerning the former, the IAA proceeded on the basis that the applicants had made claims to be of Rohingyan ethnicity, although these claims were described as equivocal. Specifically, the IAA described the claim as follows:
“The primary applicant has made what can be only described as equivocal claims relating to his Rohingyan ethnicity. This is significant as the Rohingya ethnic group is a highly persecuted minority ethnic group within Myanmar, particularly in Rakhine State. The representative contended that there is evidence that the applicant might be Rohingyan, whether or not he actually knows it. For the following reasons, I do not accept the primary applicant is of Rohingyan ethnicity.
In his written application, the primary applicant said he was not sure of his ethnicity, or where his family are from, as he was never told. He was born in Kyaik Ma Yaw City, in Mon State, in the south east of Myanmar. He claimed it is a mixed Muslim and Buddhist area, mostly Mon and Karen people, although some people who lived in the area spoke Rohingyan. The primary applicant was asked his ethnicity at the visa interview.
He said he did not know exactly.”[7]
[7] See Court Book at page 301 [14]-[16]
According to the IAA, there was little evidence provided by the first applicant to indicate that he was ethnically Rohingyan; he lived in an area with a different ethnic constitution and lacked ties to Rakhine State, an area primarily dominated by Rohingyans who are unable to leave.
The IAA further highlighted that the applicants were not subject to the same burdens and scrutiny that stateless and Rohingyan people were when attempting to travel within Myanmar.[8] It concluded that, even though the first applicant claimed not to hold an identity card or household register, he never indicated he faced any issues moving between places in Myanmar. The IAA did not accept that an ‘undocumented’ Rohingyan would face no penalty or additional difficulty when attempting to move around Myanmar.
[8] Ibid at page 302 [24]
These findings, together with the fact that the IAA was not satisfied that the applicant or anyone in his family had ever claimed to be or were perceived as Rohingyan, resulted in the IAA concluding that they were not, and would not be perceived to be, Rohingyan. If they were, they “would have faced more apparent discrimination or mistreatment from the Burmese authorities, and restrictions on their movements.”[9]
[9] Ibid at page 302-303 [25]
As mentioned, the IAA made a separate yet related determination as to the statelessness of the applicants. The IAA concluded that the applicants were not stateless on the basis that there was no evidence to indicate that they were denied the official documentation to allow them to obtain proper citizenship.
Rather, the IAA concluded that the applicants were eligible to obtain such documents and simply never applied for them. In reaching this conclusion, the IAA relied on the fact that the applicants may have held a household register in the past, which the first applicant indicated had expired and a new one never came, and the finding that the applicants were not ethnically Rohingyan. These findings indicated to the IAA that the applicants were registered with the authorities in the past and that they were not part of an ethnic group that would be barred from holding citizenship in Myanmar:[10]
“To the extent that the applicant did not have identity cards or other official documentation, I am not satisfied he was denied such documentation through routine discrimination, or because he was ineligible for such documentation. I find instead that he did not apply for it, as was the case with their lack of any updated family list/household register.”
[10] Ibid at page 304 [32]
The IAA went on to consider whether the applicants faced a real risk of harm based on their religion or other factors, such as their status as failed asylum seekers, concluding that the applicants would not face a real risk of serious or significant harm based on those factors.
Relying on an assessment made by the Department of Foreign Affairs and Trade (DFAT), the IAA found that the applicants would face a low risk of societal violence on the basis of their religion on a day-to-day basis. While acknowledging that country information indicated various instances of violence between religious groups in Myanmar, the IAA relied on DFAT advice that societal violence between Muslims and Buddhists was not so widespread and common that the applicants were at high risk of encountering such violence in their former home of Mon State, as follows:
“While there have been instances of violence between religious groups in some villages, DFAT advises that societal violence between Muslims and Buddhists has not occurred in every town with a Muslim population in Myanmar, nor does it occur on a daily basis. Credible sources have told DFAT of Muslim and Buddhist communities that are mutually dependent for trade and other livelihood purposes and that generally live together without violence. Muslim communities in major cities generally live peacefully. While there is clear evidence of serious incidents of ethnic/religious violence in Rakhine State, the incidence of religious violence outside of Rakhine appears far less common, less severe, and appears to have decreased in recent years. DFAT assesses that Muslims outside of Rakhine state face a low risk of societal violence on a day-to-day basis.”[11]
[11] Ibid at page 307-308 [51]

Therefore, the IAA concluded that:[12]
“I consider the prospect of the applicants facing serious harm on the basis of their religious background cannot be completely discounted, but in the context of their home area in Mon State (where there is limited evidence of anti-Muslim activities or violence), the low level nature of their past experiences living in Mon State, their personal circumstances and the prevailing country information, I find the chance the applicants would face physical or other serious harm for these reasons is low level and remote. Looking to all the circumstances, I am satisfied there is no real chance of the applicants facing serious harm for reasons of their religion, and I find their fear of persecution for these reasons is not well founded.”
[12] Ibid at page 308 [53]
Relying on country information, the IAA also found that the applicants would not face serious harm on the basis that they would be failed asylum seekers. Although there is a penalty of up to five years imprisonment in Myanmar for illegal departure from the country, the IAA again relied on advice from DFAT that there was no evidence to indicate that this penalty had been enforced in recent years, as follows:
“In terms of illegal departure, DFAT confirms that returnees to Myanmar who departed the country illegally are technically subject to up to five years imprisonment for having illegally crossed a border. DFAT understands that this provision has not been enforced in recent years. For example, in March 2015 a large number of migrant workers were returned to Myanmar from Malaysia, some of whom had departed Myanmar illegally. The Myanmar Government reached an agreement with the Malaysian Government to allow their return, and the workers gave their consent. The workers were processed in Yangon, and the government provided them with 10,000 Myanmar Kyat (approximately USD 8) to cover transportation costs back to their homes. In May 2015, a group of failed Rohingya Muslim migrants—predominantly from Bangladesh, but some originating from Myanmar—were rescued at sea. Myanmar authorities agreed to allow those Rohingya who had originated from Myanmar to be returned to Rakhine State, after verifying their place of origin using household registration lists and by contacting relatives. DFAT states it is not aware of any mistreatment of these people beyond that faced more generally by Rohingya people in Rakhine State. As noted above, DFAT was not aware of any credible reports of mistreatment of failed Rohingya asylum seekers stemming specifically from their having sought asylum overseas.”[13]
[13] Ibid at pages 309-310 [60]
The IAA concluded that the applicant would not face serious harm for these reasons. Therefore, the decision of the delegate that the applicants did not satisfy sections 36(2)(a) or 36(2)(aa) was affirmed.

The nature of judicial review proceedings

Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[14]
[14] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[15]
[15] See Craig v South Australia (1995) 184 CLR 163
In Minister for Immigration & Citizenship v Li[16] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.
[16] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error. In some cases, a decision which no reasonable person could have arrived at is also subject to being characterised as legally unreasonable.
In order to be successful in their application for review, it will be necessary for the applicants to demonstrate an error of jurisdiction arising in the decision of the IAA. This court is not able to substitute its own discretion for that of the Tribunal.
As I understand the applicant’s position, in the present case, it is that the decision of the IAA lacks the required level of intelligibility and is therefore open to be characterised as being legally unreasonable and therefore should not stand.

The current review application

On 15 May 2018, the applicants commenced proceedings, in this court, seeking a review of this decision. This application was amended, on 6 November 2019. The grounds of the amended application are as follows:
“1. The Immigration Assessment Authority (IAA) misunderstood the basis of the Applicants’ claim (and misstated it in the reasons for decision at paragraph [1] and elsewhere), such that the Applicants’ actual claim was never reviewed:
1.1The IAA proceeded on the incorrect basis that the Applicants claimed to be ‘stateless (Rohingya) Muslims from Myanmar’; (emphasis added) whereas
1.2The Applicants have consistently claimed that they are stateless Muslims from Myanmar and that they are uncertain of their ethnicity (without having made any statement about what that ethnicity might be);
1.3The IAA conflated its decision that the Applicants are not Rohingyan with its rejection of the Applicants’ claim to be stateless;
1.4The error is material in that the result could realistically have been different had the IAA correctly identified the true nature of the Applicants’ claim including where:
1.4.1the DFAT Country Information Report Myanmar (DFAT Report) relied on by the IAA was clear in stating that there were other groups, including Muslims, who are not of Rohingyan ethnicity, who were stateless (refer p 18, 29); and
1.4.2the First and Second Applicants have (subsequent to the IAA’s decision) obtained documentary evidence that the State of Myanmar considers them to be of Bengali ethnicity, thereby corroborating their claims to statelessness.
2. The decision of the IAA that the Applicants were nationals of Myanmar, eligible for the rights and documentation associated with full citizenship was illogical and not supported by evidence such that it was legally unreasonable:
2.1. The Applicants claimed to be a stateless Muslims from Myanmar, but were uncertain as to their ethnicity;
2.2. The IAA accepted that they are Muslim and that their receiving country is Myanmar;
2.3. The IAA determined that the Applicants were not Rohingyan;
2.4. The IAA further determined (at [32] of the reasons) that the Applicants ‘are from an ethnic group that is not barred from holding citizenship’ in Myanmar without making any findings as to which of the eight major ethnic groups (or 135 ‘races’) the Applicants belonged to;
2.5. The decision (as set out in the chapeau and in [2.4] above) was infected by:
2.5.1. The mischaracterisation of the Applicants’ claim as being of Rohingyan ethnicity;
2.5.2. The failure to take into account that the Applicants genuinely did not know their ethnicity;
2.5.3. Reliance on the First Applicant not claiming to be of an ethnicity that is ineligible for citizenship (which rather than discrediting the First Applicant’s claim is consistent with his stated position that he is unsure of his ethnicity);
2.5.4. Reliance on an assumption that because the Applicants’ family had held State-issued identity documentation in the past, they could obtain it again in the future by application, even though (as the IAA correctly recognised) such documentation is not determinative of whether a person is stateless;
2.5.5. The failure to consider that the First and Second Applicants were denied schooling due to their (and their parents’) statelessness (as opposed to on the grounds of religion, which the IAA did consider and reject);
2.5.6. An absence of evidence which would support the finding that the Applicants ‘are from an ethnic group that is not barred from holding citizenship’;
2.6. The error was material, in that had the decision-making not been infected by the unreasonableness outlined above, the resulting conclusion on the Applicants’ rights to citizenship of Myanmar could realistically have been different.”
The applicants are granted leave to rely on their amended application.

Discussion

Ground One

Ms Rutherford, counsel for the applicants, contends that the IAA proceeded with its review on an incorrect basis, which affected its decision to the extent that it did not consider the applicants’ claim at all. It is submitted that the IAA proceeded to determine the application for review on the basis that the applicants claimed to be stateless Rohingyas, which was not the case. In this context, the applicants submit that the IAA conflated its determination that the applicants were not Rohingyan, with the finding that they were not stateless.
Mr d’Assumpcao, counsel for the Minister, contends that the IAA was correct in addressing the question of the applicants’ Rohingyan ethnicity because the claim was squarely raised by the applicants. Alternatively, even if it was not raised, the alleged error did not amount to a jurisdictional error, as it did not identify a wrong issue, ask itself a wrong question, or make a material finding based on no evidence (or no probative evidence).[17]
[17] See Respondent’s Outline of Submissions filed 30 January 2020 at [27]
The first key issue related to this ground is whether the issue of the applicants being ethnically Rohingyan was actually raised by the applicants and whether the IAA afforded it the appropriate weight.
I consider the claims made by the applicants and their agent as to ethnicity and statelessness to be somewhat ambiguous in nature. It seems clear that the applicants’ original application did not make reference to the fact that they believed they were Rohingyan, or that they believed they would be perceived as such upon their return to Myanmar.
However, as counsel for the respondents outlines, the applicants’ agent did make reference to the fact that the applicants may be Rohingyan in submissions provided to the IAA, and indeed submitted that the first applicant feared persecution due to his status as a perceived Rohingya and Muslim.[18] It cannot be denied that the issue was at least canvassed by the applicants with the delegate in some way.
[18] Ibid at [10]; Court Book at page 278
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[19] the Full Court indicated that a reviewing body, which in my view should be taken to include the IAA, is required to consider only claims which are either:
·The subject of substantial clearly articulated arguments relying on established facts; or
·Those that clearly emerge from the material.
[19] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Whether a claim clearly emerges:
·Is not a finding to be made lightly;
·Must be based on facts which are established on the material before the Tribunal concerned;
·It is not an issue which can be determined axiomatically by reference to clearly delineated concepts. However, greater latitude, in this regard, will be given to unrepresented persons;
·It is not an issue to be determined in vacuo. Rather consideration should be given to how an applicant has presented his/her claims over time.
More specifically, the Full Court said as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated…By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant…It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”[20]
[20] Ibid at [58]
In reviewing the IAA’s decision in this respect, the following remarks made by Greenwood J in AWG18 v Minister for Home Affairs[21] are pertinent:
“The starting point of an assessment of the grounds of appeal is to recognise that the reasons of the IAA must be read not only with a view to examining the process of reasoning in reaching a state of satisfaction (or not) about particular topics and particular evidence, but also read overall as an integrated whole.”
[21] AWG18 v Minister for Home Affairs [2020] FCA 744 at [81]
Furthermore, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[22] the Full Court said as follows:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[22] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]
Therefore, the authorities provide that the applicant does not have to provide a hook on which to hang a case for any claim for protection, nor does an assessor have to pigeonhole, within confined parameters, an applicant’s claim for protection; the assessor must assess the evidence advanced in support of the claim as a whole.
The relevant question to be asked, in my view, is “whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.”[23] Ultimately, the relevant decision-maker is not required to only address the claims articulated by the applicant but it is not required to address claims that are not advanced by the applicant and those which do not clearly arise from the materials before it.[24]
[23] See Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [18]
[24] See NABE (supra) at [60]
Additionally, in determining whether a jurisdictional error has occurred, I must look to the decision in its entirety and not only at particular strands of reasoning, otherwise one runs the risk of misunderstanding the substance of the decision.
As I have mentioned, while the applicants’ potential Rohingyan ethnicity was not put as a claim initially, I am satisfied that the issue was canvassed by the applicants’ representative to the delegate and so the IAA was not able to simply ignore it. It was required to take into consideration all claims that arose from the material, not only those that clearly formed part of the applicants’ claim.[25]
[25] Applicant WAEE (supra) at [44]-[47] per French, Sackville and Hely JJ
In my view, on the material available to it, the IAA had cause to believe that there was at least the suggestion that the applicants were of Rohingyan ethnicity, which was a relevant consideration to their claim and so required determination. Therefore, I consider that the IAA was correct in addressing the issue as part of the claim of the applicants.
However, even if I considered that the IAA was incorrect in believing the applicants were claiming to be Rohingyan, the second key issue related to this ground is that of materiality; was the IAA’s finding as to the applicants’ Rohingyan ethnicity material to its overall finding that the applicants were not stateless? This aspect forms a key component of the applicants’ first ground of review, that being the IAA conflated the two findings such that it did not correctly assess the applicants’ statelessness.
The applicants rely on the case of NABE[26] to demonstrate that a jurisdictional error will occur where a decision-maker makes an error of fact in misunderstanding a claim and bases its conclusion in whole or in part upon the misunderstood fact or claim.
[26] NABE (supra) at [63]
Counsel for the respondent contends that the IAA did not fall into error because the claim was squarely raised by the applicants, and so making a determination as to that claim could not be considered a jurisdictional error on the part of the IAA.
If I were to accept the applicant’s submission that the only claim raised by the applicants was that they faced harm because they were stateless and of an uncertain ethnicity, since the IAA still addressed the claim of statelessness, the question becomes whether the IAA’s findings regarding ethnicity informed their finding as to statelessness to the extent that they committed jurisdictional error.
The test for materiality is whether the error was material to the outcome of the decision such that its avoidance would have realistically resulted in a different decision.[27] This requires an analysis of whether the IAA’s finding on statelessness would likely have been the same if it had not made its finding as to Rohingyan ethnicity in the manner that it did.
[27] See Minister for Immigration & Border Protection v SZMTA [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ
At paragraph 32 of its reasons, the IAA found that, since it did not accept that the applicants were ethnically Rohingyan, it found that they were from an ethnic group that was not barred from holding citizenship in Myanmar.
Furthermore, significantly in my view, it found that the first applicant did not hold official documentation in Myanmar, not because he faced discrimination but because he had not applied for it. The IAA further stated that the ‘applicant has not claimed to be from any other ethnic group that is ineligible for citizenship (such as some Indian Muslims).’[28]
[28] See Court Book at page 304 [32]
These appear to be the primary reasons for the IAA’s determination that the applicants were not stateless; that there was no evidence to suggest that they encountered any particular difficulty on account of them being stateless. In this respect, the IAA relied on the first applicant’s evidence that he had never approached government and sought to apply for identity documentation.[29]
[29] Ibid

In my view, despite the fact that the IAA considered its finding as to ethnicity significant in terms of its stateless assessment,[30] its finding as to statelessness appears to have primarily stemmed from its finding that the applicants were not from an ethnic group that was barred from citizenship, which was based on the separate findings as to their past treatment by the Myanmar government.
[30] Ibid at page 303 [31]
Importantly, the IAA did not conduct an assessment as to whether the applicants belonged to any other ethnic groups that would be ineligible for citizenship because these claims were not put before it, which it was not required to do in any event. Although the IAA was required to assess any claims that arose squarely on the material before it, no such claims were apparent on the material before the IAA.
Therefore, in my view, had the IAA not considered what it thought was the applicants’ claim to be of Rohingyan ethnicity, it would have reached the same conclusion that the applicants did not belong to an ethnic group that is barred from citizenship. For these reasons, ground 1 is dismissed.

Ground Two

The applicants contend that the IAA’s finding that the applicants were citizens of Myanmar was unsupported by the evidence before it and therefore was legally unreasonable. In support of this submission, the applicants contend that the country information could not have supported the finding that since the applicants were not ethnically Rohingyan, then they were not stateless.
Alternatively, the applicants contend the IAA’s findings were illogical since it failed to consider relevant aspects of the applicants’ claim, such as the fact the first and second applicants were unable to obtain schooling due to their statelessness, and did not rely on any evidence to reach its finding that the applicants were from an ethnic group not barred from citizenship.[31]
[31] See Applicant’s Outline of Submissions filed 24 January 2020 at pages 8-9 [34]
Counsel for the respondent contends that the IAA’s findings as to citizenship were ones that could logically, rationally or reasonably be reached on the evidence before it. Furthermore, the respondent emphasised that the IAA has a discretion to ascribe weight to evidence before it in the manner it sees fit, provided it is not exercised unreasonably.
In addressing these issues, I must keep in mind the comments made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[32]
“‘The reasons for the decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
[32] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at page 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
In assessing illogicality or legal unreasonableness, the relevant question is whether, on the probative evidence available to the IAA, a logical or rational decision-maker could not have come to the same conclusion.[33] It is not sufficient to amount to jurisdictional error if the conclusion reached is simply one in which reasonable minds may have differed.[34] The court must proceed cautiously in deciding this issue.
[33] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ
[34] Ibid
This ground requires an assessment of the IAA’s identification of evidence and the weight it attached to that evidence. The jurisdictional obligation of the IAA is to review the case presented before it, not to compare it to another one.
In addition, within the ambit of the jurisdiction conferred by section 473CC, the IAA has the freedom to place weight on the various factual matters coming before it, including country information, as it sees fit.
The fact that two different individuals may reach different conclusions about matters of fact and weight is not, of itself, indicative of jurisdictional error. As the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[35]
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[35] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
Reference has already been made to the manner in which a decision can be characterised as being legally unreasonable. In particular, in Li,[36] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[36] Li (supra) at [75]–[76]
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[37]
[37] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[38] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[38] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In Singh the Full Court indicated that the resolution of any controversy regarding legal unreasonableness would inevitably be fact dependent. However, supervision and the search for intelligible justification, although involving a degree of scrutiny of factual issues, could not involve the substitution of the reviewer’s own judgment for that of the decision-maker. [39]
[39] See Singh (supra) at [48]
In Minister for Immigration & Border Protection v SZVFW[40] Kiefel CJ said as follows of the considerations applicable to legal unreasonableness:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[40] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
Accordingly, the test of whether a decision is legally unreasonable is one which is to be applied strictly. In addition, it is one which is invariably driven by an analysis of the applicable facts and the identification of justification for the conclusions reached. Again in SZVFW Gageler J said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”[41]
[41] Ibid at [84]
It is clear that the IAA primarily based certain of its findings as to statelessness on the 2017 DFAT Country Information Report, as the applicants submit. Key elements of the report relied upon by the IAA included the fact that it was rare for Myanmar citizens not to be registered on a household list and that in order to gain citizenship, a person must be one of 135 officially recognised national ethnic groups, which excluded the Rohingyan ethnicity.
However, it was within the discretion of the IAA to decide the weight it attached to the findings of the 2017 report. As mentioned, the court will not lightly interfere with the weight ascribed to certain pieces of evidence by the decision-maker. The court cannot enter into an assessment of the weight that should have been afforded to country information as that would be tantamount to merits review.[42]
[42] See NAHI (supra) at [11]
In this case, the IAA gave weight to those aspects of the report mentioned above to conclude the following:
· Firstly, that the applicants were likely eligible for citizenship because they had held a household register in the past (although this was not determinative of their eligibility);[43] and
· Secondly, that because the applicants were found not to be ethnically Rohingyan, they were therefore found to be one of the 135 officially recognised national ethnic groups eligible for citizenship.[44]
[43] See Court Book at page 303 [29]
[44] Ibid at page 304 [32]
To the second point, counsel for the applicants contends that the IAA failed to recognise, or at least consider the possibility, that there were other stateless groups besides the Rohingyan ethnic group.
In my view, the IAA actively highlighted that there were other stateless groups besides Rohingyas; it considered that the applicant had not claimed to be from any other ethnic group that would be ineligible for citizenship, such as certain Indian Muslims.[45]
[45] Ibid
As mentioned previously, the IAA is only required to address the case before it; it is not required to actively address claims that were not made by the applicants themselves or those that did not squarely arise from the material. Therefore, it was the discretion of the IAA to make a finding as to the applicants’ ethnicity and to determine, based on the country information available to it, whether the applicants were indeed stateless.
In my view, the IAA’s reliance on the country information and the weight it ascribed to it was not illogical or legally unreasonable, considering that it provided justifications for its conclusions and acknowledged that there were other stateless groups besides Rohingyas in Myanmar, and that there was no evidence indicating that the applicants faced difficulties from the government in terms of their movement such as a person from a stateless group likely would.[46]
[46] Ibid at page 302 [24]
The applicants’ alternative submission is that the IAA was unreasonable in:[47]
·    its mischaracterisation of the applicant’s claim as being Rohingyan, a claim I have already addressed;
·    its failure to consider the applicants were unsure of their ethnicity;
·    its reliance on the applicants’ failure to claim to be of another stateless ethnicity, a claim which I have already addressed;
·    its reliance on the assumption that the applicants could obtain identity documentation in the future;
·    its failure to consider that the first and second applicants were denied schooling due to their statelessness; and
·    having no evidence on which to base its conclusion that the applicants were from an ethnic group that was not barred from citizenship.
[47] See Applicant’s Outline of Submissions filed 24 January 2020 at pages 8-9 [34]
As already mentioned, I am satisfied that the IAA did not fall into jurisdictional error in its reliance on and treatment of the country information, which founded its conclusion that the applicants were from an ethnic group that was not barred from citizenship.
This finding was also informed by the IAA’s consideration of whether the applicant was ethnically Rohingyan; the IAA made several observations regarding the first applicant’s own evidence as to his ethnicity to guide its conclusion that he and his family were not from a ‘stateless’ ethnic group.[48] In doing so, it made reference to the fact that the primary applicant had expressed he was unsure of his ethnicity.[49]
[48] See Court Book at pages 301-302 [19]-[25]
[49] Ibid at page 301 [15]
Accordingly, I am satisfied that the IAA sufficiently addressed the claims of the applicants and gave sufficient justification for its findings based on the evidence that was available to it. I am also satisfied that the IAA addressed the issue of the first and second applicants’ lack of schooling; at paragraph 42 of its reasons, the IAA concludes that the reason the first and second applicants were denied schooling was a consequence of them having grown up in a rural area where enrolment levels were lower.[50]
[50] Ibid at page 306 [42]
Importantly, the applicants seek to rely on evidence sourced subsequent to the IAA decision to augment its submission that the IAA could have come to a different decision as to the applicants’ statelessness.[51] While this may be the case, as counsel for the respondents submits, the principles of judicial review dictate that the decision subject to review must be assessed on the basis of the evidence that was available to the decision-maker at the time of its decision. Therefore, I cannot factor that evidence into my decision.
[51] See Applicant’s Outline of Submissions filed 24 January 2020 at page 10 [37]-[40]
For the reasons provided above, ground 2 is dismissed.

Conclusion

The application filed 15 May 2018, and amended on 6 November 2019, is dismissed. The Minister seeks costs in the amount of $7.467.00. I will order that the applicants pay these costs.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 7 July 2020