CNS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 921
•9 August 2021
FEDERAL COURT OF AUSTRALIA
CNS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 921
Appeal from: CNS18 & Ors v Minister for Home Affairs & Anor [2020] FCCA 1854 File number: SAD 110 of 2020 Judgment of: BESANKO J Date of judgment: 9 August 2021 Catchwords:
MIGRATION — appeal from orders made by Federal Circuit Court of Australia dismissing appellants’ application for judicial review of a decision of Immigration Assessment Authority — where Authority affirmed a decision of a delegate of Minister to refuse to grant Safe Haven Enterprise visas to appellants — where appellants claim protection on basis that they would face persecution by reason of being stateless Muslims from Myanmar of unknown ethnicity — where Authority did not accept that appellants are of Rohingya ethnicity — where Authority did not accept that appellants are stateless and found that appellants are nationals of Myanmar — whether Authority erred in treating finding that appellants are not of Rohingya ethnicity as determinative of whether they are stateless — appeal allowed
Legislation: Migration Act 1958 (Cth) ss 5AA, 46A Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 63 Date of hearing: 13 April 2021 Counsel for the Appellants: Mr S McDonald SC with Ms E Rutherford Solicitor for the Appellants: Camatta Lempens Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
SAD 110 of 2020 BETWEEN: CNS18
First Appellant
CNU18
Second Appellant
CNV18 (and others named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Circuit Court of Australia on 7 July 2020 be set aside and in lieu thereof there be the following orders:
(a)An order in the nature of certiorari quashing the decision of the Immigration Assessment Authority made on 30 April 2018;
(b)An order in the nature of mandamus directed to the Immigration Assessment Authority requiring it to review the decision of the delegate of the first respondent dated 8 March 2018 according to law.
3.The parties be heard as to the costs of the application for judicial review and of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an appeal from orders made by the Federal Circuit Court of Australia on 7 July 2020. On that day, the Federal Circuit Court made an order that the appellants’ application for judicial review filed on 15 May 2018 and amended on 6 November 2019 be dismissed (CNS18 & Ors v Minister for Home Affairs & Anor [2020] FCCA 1854).
In the appellants’ application for judicial review, they sought an order quashing a decision of the Immigration Assessment Authority (the Authority) and an order requiring the Authority to determine the appellants’ review according to law. The Authority had decided to affirm the decision of a delegate of the then Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant protection visas to the appellants.
The Facts
The appellants are a family group. The first appellant was the primary applicant and the other appellants, being his wife and three children, were members of the same family unit. The first to fourth appellants were born in Mon State, Myanmar and are Sunni Muslims by religion. They assert that they are uncertain of their ethnicity. The fifth appellant was born in Australia.
The first to fourth appellants arrived at Christmas Island by boat in 2013. Under the provisions of the Migration Act 1958 (Cth) (the Act), they were classified as unauthorised maritime arrivals (s 5AA). Under s 46A of the Act, an unauthorised maritime arrival is not able to make a valid application for any form of visa, including a protection visa, unless the Minister lifts the bar on the basis that he or she is satisfied that it is in the public interest to do so. The first appellant was interviewed as an unauthorised maritime arrival by officers of the Minister’s department shortly after his arrival in 2013 and the bar to the relevant applications was lifted on 3 March 2016.
On 16 February 2017, the first appellant applied for a Safe Haven Enterprise (subclass 790) visa and listed the second, third and fourth appellants as members of his family unit in the application. It is sufficient from this point to refer to the first appellant’s claims and circumstances.
It is necessary to go into some detail about the claims made by the first appellant because of the arguments put on the appeal. In his application, the first appellant claimed that he was stateless and that he did not know his ethnicity. In a written statement which accompanied his application, the first appellant made a number of claims and assertions and the following is a summary. The appellant is stateless and does not have a right to citizenship or a right to reside in any other country. His country of origin is Myanmar, but he is not a citizen of Myanmar. His mother and father were not citizens and nor are any of his family members. His wife is also stateless and so is her mother, father and family. He is not sure of his ethnicity or where he “descend[s] from” because he has never been told. He is a Sunni Muslim by faith and he continues to practise this faith in Australia. He was born on 2 September 1983 in Kyaik Ma Yaw City, a mixed Muslim and Buddhist area. There were mostly Mon and Karen people in the area and some other people who speak Rohingya. As he and his family are stateless, they do not have, and have never had, any identification documents from Myanmar. He has never had any formal education and he asked that this be taken into consideration when making an assessment of his claims, particularly his ability to articulate his claims. He left Myanmar because he is Muslim, because he is stateless and because he was sick of fearing for his life at the hands of anti-Islamic groups and the Myanmar Government. He states that in Myanmar, Muslims are discriminated against and the situation has always been difficult for them. He and his wife have never been allowed to gain citizenship in Myanmar even though they were both born there and “our parents’ parents were born there too”. He cannot legally return to Myanmar. If he is forced to return, he fears that he will be subjected to extreme discrimination and that he will be arrested, detained indefinitely, and tortured or possibly killed by the government or other nationalist or anti-Islam organisations or Buddhist civilians. He will be targeted because he is Muslim and stateless and he will be considered a traitor because he sought asylum in Australia which, in turn, will make the authorities suspicious that he has been criticising the government in Myanmar.
The first appellant was interviewed by a delegate of the Minister on 7 December 2017. The first appellant’s migration agent was also present on the telephone. The delegate used an interpreter in the Burmese language to assist with the interview. During the course of the interview, the first appellant, when asked if he spoke any languages other than Burmese, said that he had a slight knowledge of the Rohingya language. He said that he did not go to a particular school or any of the places to learn that language. However, some of the people he knew spoke the language and it is “like partial mother tongue in the area he used to live”. The first appellant was asked about his ethnicity. He responded by saying that he “doesn’t know what ethnicity, he doesn’t even understand what ethnicity means”. He was asked whether he knew who the Rohingya people are and in response he said that initially he did not know “who they are or who they are he didn’t know”, but that he had heard of some people called Rohingya living in some part of Burma. He knows more about Rohingya since coming to Australia. He was asked whether he could identify as a Rohingya person and in response he said the following:
He couldn’t answer that question directly. The main reason he was born in Burma so physically he is Burmese but his religion is Islam so they call it Burmese Muslim. So that is what he knows about his [inaudible].
The first appellant was asked whether he ever needed permits to travel around and in response to that question he said the following:
He didn’t have any permit as such but when he wanted to travel from one place to another place he had to go and get permission from some kind of authorities so it take some time piece of paper eventually he has authority to move from one place to another place.
At the end of the interview and as part of summarising the first appellant’s case, the first appellant’s migration agent said the following:
Arguably he’s Rohingyan, I know he’s not saying that he’s technically Rohingyan, it’s not clear, but does say his parents spoke Rohinghan at home and he speaks Rohinghan himself not fluently he’s instructed that it was only when he came to Australia that he learnt that the dialect that his parents spoke and that he speaks partly is Rohingyan so you know his claim is that he doesn’t know his ethnicity but I think there is evidence to suggest that he might be Rohingyan but whether or not he actually knows it but without going into country information detail there is country information that suggests that Muslims whether they are Rohingyan or not do suffer discrimination and also violence there’s also some information that violence in Rakhine is against Rohingyans there is spreading to Muslims population across the country and I would say that the discrimination amounts to, it cumulatively amounts to persecution, there’s also risk of violence and particularly in light of recent events but I think that leave the oral submissions at that point.
(Original formatting retained.)
On 8 March 2018, the delegate refused the first appellant’s application for a protection visa.
The matter was then referred to the Authority. The first appellant’s migration agent made a detailed submission to the Authority on 12 March 2018 and in that submission, the agent said, among other things, the following:
The delegate has ultimately found our client to be a citizen of Myanmar and also not of Rohingya ancestry. Our client maintains that he is unsure of his ethnicity but that he has links to the Rohingya community and that he has been denied government recognition and services due to his religion. We therefore submit that the statement of the delegate that ‘The applicant’s claim of being born in Mon state and his belief that he is a Myanmar citizen leads me to consider that he is of Burmese ethnicity from Mon state Myanmar’ would not be an accurate summation of our client[’]s claims for protection. We stress that our client has stated that he believed he was a citizen of Myanmar but rather that the government would not recognise him because he was Muslim, rendering him stateless. As such, we submit the delegate has made an error in their interpretation of the statements made at interview…
We submit that [the first appellant] has a well-founded fear of persecution in Myanmar, due to his status as a perceived Rohingya and a Muslim…
The Reasons of the Authority
It will assist in terms of clarity if I begin by isolating and stating in one section of these reasons the Authority’s uncontested findings about the general circumstances in Myanmar insofar as they might bear on the first appellant’s claims. Those findings are based on the country information which was before the Authority and, in particular, the information in a “DFAT Country Information Report, Myanmar, 10th January 2017” prepared by the Australian Government, Department of Foreign Affairs and Trade (the DFAT Report). The findings will be repeated to some extent in my summary of the Authority’s reasons.
(1)The Rohingya ethnic group is a highly persecuted minority ethnic group within Myanmar, particularly in Rakhine State;
(2)As far as a person’s ability to move throughout Myanmar is concerned, people staying at a place other than their usual place of residence are required to register their movements. Non-citizens (such as Rohingya) are typically required to register their movements. There are severe restrictions on movement for Rohingya, particularly within Rakhine State. In terms of relocation, most people can relocate within Myanmar with the exception of Rohingya and other stateless people. This highlights the additional burdens and barriers faced by Rohingya and other stateless persons moving within Myanmar;
(3)It is rare for a citizen of Myanmar who is resident in the country not to be registered on a household list. Registration on such a list is required to obtain documentation as to identity and to gain access to services such as water and electricity. The maximum penalty for a failure to register is seven days’ detention at the police station. During that time the detained person must prove that he or she belongs to a household and have the head of the household register the person on their household list. It is not clear what happens if a person is not claimed by his or her household head and it is not clear how often or how consistently penalties for incorrect registration are applied. The possession of a household list is not itself determinative of whether a person is stateless because some Rohingya may hold a family list, but it is an indication of registration with the authorities;
(4)In order to obtain citizenship in Myanmar, a person must belong to one of the 135 officially recognised national groups. The government recognises eight major ethnic groups as part of 135 “national races”. The law grants full citizenship to members of the 135 officially recognised national races. The law does not recognise Rohingya as an ethnic group and treats them as foreigners or stateless. They cannot apply for citizenship or related documentation. A number of Rohingya reside outside Rakhine State, particularly in Yangon. Rohingya outside Rakhine State may not face the high levels of discrimination faced by Rohingya in Rakhine State and in a place like Yangon they do not publicise their ethnicity and may be registered as “Burmese Muslims” in their identity documentation;
(5)Other ethnic groups ineligible for citizenship include some Indian Muslims. Some Muslims outside Rakhine State belong to ethnic groups that are recognised under Myanmar’s Constitution (the Constitution) and do not face significant restrictions on access to citizenship; and
(6)There are stateless people, notably Rohingya, who are unable to access state-funded education, although in practice, those with the ability to pay can often secure access to these services. There is no indication that non-Rohingya Muslims are denied access to education. As citizens, Muslims outside Rakhine State can generally access a similar level of government to other ethnic groups.
I turn now to the Authority’s reasons.
The Authority commences its reasons by referring to the fact that the appellants claim to be “stateless (Rohingya) Muslims from Myanmar”. The Authority identifies the various grounds upon which the first appellant claimed refugee status or a favourable complementary protection assessment. Those grounds are as follows: (1) Ethnicity; (2) Statelessness; (3) Religion; and (4) Other profile factors, including the fact of illegal departure from Myanmar, status as a failed asylum seeker and easily recognised Australian manners and language. Having regard to the grounds of appeal, the only claims which need to be addressed in these reasons are those based on ethnicity and statelessness.
With respect to the first appellant’s ethnicity, the Authority began by noting that the first appellant had made “what can only be described as equivocal claims relating to his Rohingyan ethnicity”. The first appellant’s representative had contended before the Authority that there was evidence that the first appellant might be Rohingya, whether or not the first appellant actually knew that.
The Authority did not accept that the first appellant is of Rohingya ethnicity. The appellants do not challenge the Authority’s conclusion that they are not of Rohingya ethnicity. Nevertheless, having regard to the arguments put by the Minister, I will need to return to some aspects of the Authority’s reasons with respect to its conclusion concerning ethnicity.
With respect to statelessness, the Authority noted that the first appellant also claimed that the appellants are stateless and undocumented. They claimed their country of origin is Myanmar, but that they are not citizens of that country. They claimed that the first appellant’s parents were not citizens and neither were any of his family members. The Authority rejected those claims and, in fact, found that the appellants are nationals of Myanmar (Authority at [34]).
The Authority’s reasoning was as follows.
The Authority noted that the first appellant did not have a birth certificate and did not have a household register or family list. It appeared that his family may have had a family list in the past, but that they did not have one now. The first appellant claimed that the old register expired and a new one never came. The first appellant confirmed that he had never tried to obtain other identification documents. He stated that it was not uncommon for others, including Burmese Buddhists, not to have a family list.
The Authority referred to the DFAT Report and said that it was rare for a citizen of Myanmar who is resident in the country not to be registered on a household list. Household registration is required to obtain identification documentation and to gain access to services such as electricity and water. If a person is found to be unregistered, the penalty is a maximum of seven days’ detention at the police station, during which time the person must prove they belong to a household and have the head of the household come to register them on their household list. The Authority noted that it is unclear what would happen if a person is not claimed by a household head and that DFAT conceded it did not have any information on how often or how consistently penalties for incorrect registration are applied.
The Authority noted that the country information indicated that there is a clear legal requirement to hold a household register, but was silent as to how strictly that requirement is enforced. It accepted that the first appellant did not currently have a household register or a copy of such a document. It accepted that it may not be uncommon for people in Myanmar to fail to update or apply for such documents. The Authority then said that it found it was significant that the first appellant’s family held such a list at some point. If the first appellant’s family previously held a household register, the Authority considered that there was no barrier to them obtaining that document in the past and considered that they would be entitled to one in the future. The Authority noted that the possession of such a list was not of itself determinative of whether the first appellant and his family are stateless. The Authority noted that, for example, some Rohingya may hold family lists. However, it was an indication, said the Authority, that the first appellant and his parents were registered with the authorities in Myanmar.
The Authority then said the following (Authority at [30]):
What I do consider significant in terms of my assessment of whether he is stateless is my finding above that the primary applicant, and his family, are not ethnically Rohingya.
The Authority then noted that in order to obtain citizenship, a person must belong to one of the 135 officially recognised national ethnic groups and that the law grants full citizenship to members of the 135 officially recognised national races. However, under the law, the government does not recognise Rohingya as an ethnic group and considers them foreigners/stateless. This prevents Rohingya from applying for citizenship and related documentation. The information before the Authority indicated that there are a number of Rohingya living outside of Rakhine State, probably in Yangon. Rohingya outside Rakhine State typically have higher incomes and better access to resources than those in Rakhine State and are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in their day-to-day life. Typically, Rohingya in Yangon are registered as “Burmese Muslims” on such documentation. Rohingya living elsewhere in the country, such as Yangon, do not publicise their ethnicity.
The Authority then said that as it did not accept that the appellants are ethnically Rohingya, it found that they are from an ethnic group that is not barred from holding citizenship in Myanmar (Authority at [32]). The circumstance that the first appellant did not have an identity card or other official documents did not prove he was stateless because he had never applied for such documentation. The Authority also said that the first appellant had not claimed to be from any other ethnic group that is ineligible for citizenship (such as some Indian Muslims). It also noted that the DFAT Report stated that some Muslims outside of Rakhine State belong to ethnic groups that are among those recognised under the Constitution and that these groups do not face significant restrictions on access to citizenship (Authority at [32]).
The Authority found that the first appellant is a national of Myanmar and is eligible to have a citizen identification card and other documentation should he elect to apply and obtain such documentation. It decided that the same applied to the other four appellants. It found that the appellants are “Burmese Muslims”. Barriers to obtaining documentation such as bribery and corruption within the Burmese authorities are not faced by the appellants, or in any event, such barriers would not mean that the appellants are not, in fact, Burmese Muslims and nationals of Myanmar (Authority at [33]).
The Authority concluded its reasons with respect to statelessness by saying that as it did not accept that the appellants are stateless Rohingya, it does not accept that any of the harm or discrimination the first appellant or his family may have faced in the past was related to such a profile (Authority at [34]). It was not satisfied that the first appellant or his wife were ever imputed with a profile of a stateless Rohingya in the past and it did not consider there to be any basis for them to be imputed with such a profile should they return to live in Mon State. It found that there was no real chance of the appellants facing serious harm on the basis they are stateless and/or have no nationality/citizenship, including on their return to the country.
The Application for Judicial Review in the Federal Circuit Court
There were two grounds in the application for judicial review before the Federal Circuit Court. Both grounds alleged a jurisdictional error with respect to the Authority’s conclusion that the appellants are nationals of Myanmar and are not stateless. The first ground alleged that the Authority failed to address a claim made by the appellants, namely, that they are stateless Muslims from Myanmar of unknown ethnicity, and the second ground alleged that the Authority’s conclusion that the appellants are nationals of Myanmar and are not stateless was illogical and not supported by evidence and, therefore, legally unreasonable.
There are four grounds of appeal to this Court. Grounds 1 and 2 relate to the first ground of judicial review before the Federal Circuit Court and involve a contention about the conclusion which that Court should have reached concerning the Authority’s decision (ground 1) and a complaint to the effect that the Court misunderstood the first ground of judicial review (ground 2). Grounds 3 and 4 relate to the second ground of judicial review and again involve a contention about the conclusion which the Federal Circuit Court should have reached concerning the Authority’s decision (ground 3) and a complaint to the effect that the Court had misunderstood the second ground of judicial review (ground 4).
The appellants made written submissions with respect to all four grounds of appeal, but confined their oral submissions to grounds 1 and 3, that is, contentions about the conclusions which the Federal Circuit Court should have reached about the Authority’s decision. As I understand it, they did that because they submitted that, unless I was considering a remitter of the application to the Federal Circuit Court, the determination of grounds 1 and 3 would determine the outcome of the appeal.
The Appeal
Grounds 1 and 2
The first ground is that the Authority constructively failed to exercise jurisdiction in that it failed to review the decision of the delegate. The particular failure alleged is that the Authority failed to review the claim by the appellants that they are stateless Muslims from Myanmar of unknown ethnicity. An aspect of this error was said to be that the Authority treated its finding that the appellants are not of Rohingya ethnicity as effectively determinative of whether they are stateless and/or would face persecution by reason of being stateless persons. Another aspect of this error was said to be that the Authority had dismissed the appellants’ claim to be stateless on an unsound and incorrect basis.
The Authority considered whether the appellants are stateless Rohingya Muslims from Myanmar. It decided that they are not. As I have said, the appellants do not suggest that the Authority was wrong to consider such a claim, or wrong to reject it. This is an issue addressed by the primary judge at some length, but it is not an issue on the appeal. The issue on the appeal is whether the Authority addressed the claim made by the appellants to be stateless Muslims from Myanmar of unknown ethnicity. If such a claim was made by the appellants and not considered by the Authority, then the Authority has constructively failed to exercise the jurisdiction given to it: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [25] per Gummow and Callinan JJ; at [89] per Kirby J.
It is clear from the Authority’s reasons that it was aware of the appellants’ claim to be stateless irrespective of whether they were of Rohingya ethnicity. The Authority separately addressed the issue of statelessness after it had addressed the issue of ethnicity and, in particular, whether the appellants are Rohingya. It was clearly aware of the appellants’ claim to be stateless and not aware of their ethnicity. The appellants accepted this and put the argument in relation to ground 1 on the basis that the Authority’s consideration of the appellants’ claim to be stateless Muslims of unknown ethnicity was cursory and insufficient or, to use the language in the Notice of appeal, it did not involve a consideration which was proper, genuine and realistic. As to the use of the phrase, “proper, genuine and realistic” consideration, I refer to Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [23]–[37] (see also the discussion in Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2016) at [7.20]–[7.30]).
As I will explain when considering ground 3 of the appeal, the Authority made a jurisdictional error in the course of its consideration of whether the appellants are stateless. That resulted in a failure by the Authority to consider the appellants’ claim to be stateless Muslims of unknown ethnicity and it is possible to characterise the jurisdictional error in terms of ground 1 of the appeal. However, the more direct characterisation is of a serious error of logic and, therefore, as a form of legal unreasonableness, or, at least, a doctrine or principle closely related to the doctrine of legal unreasonableness. I deal with the error in the context of my consideration of ground 3.
As far as ground 2 of the appeal is concerned, the appellants submitted in writing that the primary judge misunderstood the first ground of judicial review and, as a result, his analysis of the ground was flawed.
It is not clear to me how the appellants put the argument in relation to the first ground of judicial review to the primary judge. His Honour identified the “first key issue” as whether the issue of the appellants being ethnically Rohingya was actually raised by the appellants and whether the Authority afforded the issue “appropriate weight” (PJ at [52]). On the appeal to this Court, it was common ground that the issue was raised before the Authority and dealt with by it in a manner adverse to the appellants. As I have said, that conclusion is not challenged by the appellants. The primary judge identified the “second key issue” in connection with the first ground of judicial review as whether the Authority’s conclusion as to the appellants’ Rohingya ethnicity was material to its overall finding that the appellants are not stateless (PJ at [65]). On identifying the issue in this way, the primary judge went on to consider whether the Authority’s finding on statelessness would likely have been the same if it had not made its finding as to Rohingya ethnicity in the manner that it did. The appellants submit that not only does this description of the issue by the primary judge misstate the correct test of materiality, it is not the correct question, at least as it was formulated by the appellants on the appeal. In my respectful opinion, that is correct, although the issue did lead the primary judge to address some of the matters that are relevant to the arguments advanced on the appeal. For example, his Honour noted that the Authority found the reason the first appellant did not hold official documentation in Myanmar was because he had not applied for it, the first appellant had not claimed to be from any other ethnic group that is ineligible for citizenship and the appellants had not encountered any particular difficulties suggesting that they are stateless (PJ at [71] and [72]).
Ground 3
Ground 3 is in the following terms:
3.The Federal Circuit Court erred in holding that the decision of the Authority was not affected by jurisdictional error, when it should have held that the Authority’s decision was affected by a material finding that was legally unreasonable, illogical or irrational in that:
a.the Authority made a positive finding that the applicants were from an ethnic group that was not barred from citizenship in Myanmar;
b. the finding was ultimately based upon the combination of:
i.the Authority’s finding that the review applicants were not of Rohingyan ethnicity; and
ii.the Authority’s finding that the review applicants had not claimed to be of any other particular ethnicity; and/or
c.the finding ignored the fact that the applicants had expressly claimed not to know their ethnicity and that the suggestion that the applicants may have been of Rohingyan ethnicity was itself speculative, such that the resolution of that question against the applicants did not provide a rational basis to dismiss their claim that they were stateless persons of unknown ethnicity.
The essence of the appellants’ case is that the Authority’s reasoning was irrational or illogical in the sense identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [40] per Gummow ACJ and Kiefel J (as her Honour then was); at [130] per Crennan and Bell JJ. The appellants put the case in this way, rather than in terms of legal unreasonableness. The appellants also submitted that the degree of caution which was necessary before concluding that a decision was irrational or illogical was now to be considered in light of, or having regard to, the expansion of the doctrine of legal unreasonableness effected by the well-known cases of Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] per Hayne, Kiefel and Bell JJ; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [10] per Kiefel CJ; at [82] per Nettle and Gordon JJ.
At the forefront of the appellants’ argument are what they submit are clear statements of the Authority linking its findings that the appellants were not Rohingya with its findings that they are not stateless. In the section in its reasons dealing with statelessness, the Authority’s reasons included the following statements:
30What I do consider significant in terms of my assessment of whether he is stateless is my finding above that the primary applicant, and his family, are not ethnically Rohingya.
32As I do not accept the applicants are ethnically Rohingyan, I find they are from an ethnic group that is not barred from holding citizenship…
34As I do not accept they are stateless Rohingya, I do not accept any of the harm or discrimination the primary applicant or his family may have faced in the past was related to such a profile…
The appellants submit that a proper examination of the “other reasons” advanced by the Authority for its conclusion that they are not stateless reveals that they are without substance and that the Authority made the logical error of equating a finding that the appellants are not Rohingya with a finding that the appellants are not stateless in circumstances in which it is clear that there are groups in Myanmar who are stateless and who are not Rohingya.
The appellants submit that on establishing illogicality or irrationality, the decision ought to be set aside even if the Authority might have reached the same conclusion by a different process of reasoning. That appears to be correct unless the result is inevitable (Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [213]). At one point, the appellants described the logical error as one involving the fallacy of the undistributed middle.
The Minister sought to meet the appellants’ submissions by contending first that as a matter of law, to make out jurisdictional error on the basis of illogicality or irrationality, the illogicality or irrationality must be extreme. There is certainly a good deal of authority to that effect. In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 the Full Court of this Court said (at [30](5)):
A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
(see also CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60]). The reasons of Crennan and Bell JJ in SZMDS (at [135]) also show the stringency of the test. Their Honours said that a decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The Minister submits that it was appropriate for the Authority to take into account its finding that the appellants are not of Rohingya ethnicity in reaching the conclusion that the appellants are not stateless. The appellants do not disagree with the proposition that Rohingya is one of the stateless groups and that, therefore, it was appropriate for the Authority to take its finding about the appellants’ ethnicity into account on the issue of statelessness.
The essence of the Minister’s response to the appellants’ submission that the Authority’s decision was illogical or irrational was that, in fact, the Authority relied on a number of reasons in addition to its finding that the appellants are not of Rohingya ethnicity to reach the conclusion that the appellants are not stateless and are nationals of Myanmar.
The other reasons identified by the Minister as having been relied upon by the Authority are as follows.
First, in reaching its conclusion that the appellants are nationals of Myanmar and not stateless, the Authority relied on its finding that the first appellant had an entitlement to a household register and it is rare in Myanmar for a citizen not to be registered. Although the Authority said that this was not determinative of the issue of statelessness as some Rohingya have household lists, the Authority said that it was an indication of the fact that the first appellant and his parents were registered with the authorities.
Secondly, the Authority relied on the fact that the first appellant had never approached the government and applied for official documentation. He considered that he was Burmese, but that he had no rights and no identity cards. The Authority was satisfied that the first appellant did not have identity cards, not because he was ineligible for such documentation, but because he had not applied for such documentation. The appellants submit that this fact is neutral. In the same way as the first appellant cannot rely on the absence of identity cards as evidence that he is stateless, the Minister cannot rely on the absence of an application as evidence that the first appellant is a citizen.
Thirdly, the Authority relied on the fact that the first appellant had not claimed to be from any other ethnic group that is ineligible for citizenship (other than Rohingya). The appellants submitted that this case is somewhat unusual. The first appellant did not make a clear and definite claim that he is Rohingya. A claim that he is Rohingya was considered and rejected by the Authority, but the weight of the evidence in the form of the application for the visas, the accompanying statement and the delegate’s interview was that he did not know his ethnicity and, therefore, the emphasis that might otherwise have been placed on the rejection of a clear and definite claim to be Rohingya was not justified. In other words, had the first appellant made a clear and definite claim to be Rohingya and that claim had been rejected, there might be a basis to place weight on the fact that he did not make a claim to be a member of any other ethnic group. However, that is not so in this case.
Fourthly, the Authority relied on the fact that some Muslims outside Rakhine State belong to ethnic groups that are among those recognised under the Constitution and that these groups do not face significant restrictions on access to citizenship.
The Minister submitted that in addition to these four reasons which were all relied on by the Authority in its consideration of statelessness, another finding of the Authority, albeit in the context of its consideration of the appellants’ ethnicity, may be brought to account in the assessment of whether the Authority’s decision on statelessness was illogical or irrational. A reason the Authority found the first appellant is not Rohingya was his ability to move throughout the country. Although the Authority’s reasons are not entirely clear with respect to the significance of the first appellant’s ability to move throughout the country in Myanmar, the effect of its reasons seems to be that one reason the Authority concluded that the first appellant is not Rohingya is because he did not face the restrictions on movement throughout the country faced by “Rohingya and other stateless people” (emphasis added). Put in this way, the absence of restrictions on movement in the case of the first appellant is a reason to conclude that not only is he not Rohingya, but also he is not stateless.
This was a reason the Authority could have relied on to conclude that the appellants are not stateless. I did not understand the appellants to submit that the Authority could not have relied on this reason to conclude that the appellants are not stateless. Their point was that the Authority had not, in fact, relied on this reason for the purposes of its determination of the statelessness issue. The Minister, on the other hand, submits that the appellants’ approach is an example of over-zealous judicial review “by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
In my opinion, there was a failure in logic in the Authority’s reasoning and it was serious in nature and in effect. As to the latter, the point is that the error bore directly on the extent to which the Authority made a proper assessment of the appellants’ claim to be stateless Muslims of unknown ethnicity.
The appellants describe the Authority’s conclusion that they are not Rohingya as the “central and dispositive reason” for concluding they were not stateless. In my opinion, that is a correct description of the Authority’s approach. It is supported by the statements or observations made by the Authority which I have set out above (at [38]). Further, I consider the juxtaposition of paragraphs 29 and 30 in the Authority’s reasons to be important. In paragraph 29, the Authority addresses the first appellant’s entitlement to a household list, and then in paragraph 30 makes an observation about the significance of its finding that the appellants are not ethnically Rohingya:
29.… If the primary applicant’s family previously held a household register, I consider there was no barrier to them obtaining that document in the past, and I consider they would be entitled to one in the future. I note the possession of such a list is not of itself determinative of whether the primary applicant and his family are stateless (e.g. some Rohingya may hold family lists), however it gives some indication to me that the primary applicant, and his parents, were registered with the authorities.
30.What I do consider significant in terms of my assessment of whether he is stateless is my finding above that the primary applicant, and his family, are not ethnically Rohingya.
It seems to me that the Authority is treating its finding that the appellants are not ethnically Rohingya as significant and, in fact, decisive.
As I understand the Minister’s response, it is that there were, in fact, a number of reasons for the Authority’s conclusion and the fact that the Authority put weight on a particular reason that the Court would not, goes to the merits of the decision and is not jurisdictional error. If that is what the Authority did, then the proposition is almost certainly correct. However, in my opinion, that is not what the Authority did.
In addition to the matters referred to in [52] above, an examination of the other reasons identified by the Minister indicates that not only are they not individually sufficient to support the conclusion, but they are, in fact, of minimal significance.
First, and as I have already said, the Authority itself did not consider that the entitlement to a household list was of itself decisive of the issue of statelessness.
The second matter — that the first appellant had never approached government and applied for official documentation — is not evidence that the first appellant is a national of Myanmar. It simply negates an inference favourable to the first appellant from the fact that he did not have official documentation.
The third matter — that the first appellant did not claim to be from any other ethnic group that is ineligible for citizenship (other than Rohingya) — is the type of matter where the weight to be accorded to it depends on the context. Where the claim is to be stateless Muslims of Rohingya ethnicity, a rejection of that claim may, depending on the circumstances, be sufficient of itself and the Authority need not go on to examine whether the applicant might be a stateless Muslim of another ethnicity. In this case, however, there were two claims made by the appellants, one to be a stateless Muslim of Rohingya ethnicity, and the other to be a stateless Muslim of unknown ethnicity. In fact, the latter claim seems to have been the earlier in point of time. The third matter is of quite limited significance.
The fourth matter — the fact that there are some Muslims outside Rakhine State who belong to ethnic groups that are among those recognised under the Constitution and these groups do not face significant restrictions on citizenship — does not advance the matter beyond the point that it is possible that the first appellant is a national of Myanmar.
The additional reason relied on by the Minister — the first appellant’s ability to move throughout the country — was a finding made by the Authority in the context of its examination of whether the appellants are of Rohingya ethnicity, not a finding made in the context of its examination of whether the appellants are stateless. It is true that the finding extended to “non-citizens” and “other stateless people” and might have been relied on by the Authority in its reasons on statelessness, but in fact it did not rely on it for the purposes of its conclusion on the issue of statelessness. Absent a materiality argument (which is not advanced in this case), it is not for a court on judicial review to rely on a reason not relied on by the administrative decision‑maker. This is not an approach which involves an over meticulous approach to the Authority’s reasons, but rather an approach which involves a straightforward reading of those reasons.
Ground 3 of the appeal succeeds.
Ground 4
It is not necessary to address in detail the primary judge’s reasons for rejecting the second ground of judicial review. In my respectful opinion, for the reasons already given, his Honour erred in rejecting this ground in relying on the first appellant’s entitlement to a household register (PJ at [95]) and on the circumstance that the first appellant had not claimed to be from any other ethnic group that would be ineligible for citizenship (PJ at [97]). Furthermore, his Honour erred insofar as he characterised the issue as one of the weight to be accorded to country information and, therefore, not jurisdictional error (PJ at [94] and [98]).
Conclusion
For these reasons, the appeal must be allowed and the orders of the primary judge must be set aside. Orders in the nature of certiorari and mandamus in relation to the decision of the Authority will be made. The parties will be heard on the question of the costs of the proceedings before the Federal Circuit Court and of the appeal.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 9 August 2021
SCHEDULE OF PARTIES
SAD 110 of 2020 Appellants
Fourth Appellant:
CNW18
Fifth Appellant:
CNX18
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