DJG18 v Minister for Home Affairs
[2020] FCCA 2141
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2141 |
| Catchwords: MIGRATION – Application for judicial review – Immigration Assessment Authority – protection visa application – jurisdictional error – relevant considerations – children born in Australia – application dismissed. |
| Legislation: MIGRATION ACT 1958 (CTH), S.473DC |
| Cases cited: Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158 |
| First Applicant: | DJG18 |
| Second Applicant: | DJH18 |
| Third Applicant: | BWW20 |
| Fourth Applicant: | BXA20 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | LNG 38 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr Aleksov |
| Solicitors for the Applicants: | Tasmanian Refugee Legal Service Inc |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
LNG 38 of 2018
| DJG18 |
First Applicant
| DJH18 |
Second Applicant
| BWW20 |
Third Applicant
| BXA20 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
In this matter the applicants seek judicial review of a decision of the Immigration Assessment Authority (the ‘IAA’) to refuse their protection visa applications. The four applicants are a family unit; the first and second applicants being the father and mother who came to Australia from Sri Lanka, and the third and fourth applicants are their children who were born in Australia. The first applicant left Sri Lanka in 2006 and went to India with his mother to join his father and sister. The second applicant left Sri Lanka with her own family when she was three years of age and went to India, where she lived in a refugee camp. The first and second applicants married in August 2012, leaving India soon after, and arriving in Australia in November 2012. They were irregular maritime arrivals and invited to make application for a protection visa nearly four years later, in August of 2016. The application was made in July 2017, following which the applicants were interviewed by a delegate in October 2017. In February 2018, the delegate refused to grant the applicants a visa. The matter was referred to the IAA, who affirmed the decision of the delegate on 1 June 2018.
The first applicant, the father, claimed that he would be at risk if returned to his home country due to suspected involvement with the Liberation Tigers of Tamil Eelam (‘LTTE’). His claims are summarised in paragraph [6] of the IAA decision. The first applicant claims that in approximately 1999, he was caught in round-ups of young Tamil males and that he worked as an intelligence operative from 2002 to 2006. He said he was arrested and beaten in 2003 and was later charged with timber smuggling, for which he said he paid a bribe, pleaded guilty and paid a fine. The first applicant left the country and went to the United Arab Emirates, but then returned to Sri Lanka. In 2004, he left Sri Lanka again and went to Qatar, returning after two to three months, as he said he could not find suitable work in Qatar. He said that he worked in Sri Lanka for a period of time, before leaving Sri Lanka for India with his mother in September 2006. After he left Sri Lanka again, his brother-in-law had used his SIM card which contained contacts for men from the LTTE who had been arrested. The first applicant said that this resulted in his sister and brother-in-law being detained and tortured for two days. He also said that local Tamils in India had monitored and questioned him after he had moved to India.
The IAA did not accept that the first applicant was an LTTE intelligence operative: see paragraph [19] of the decision. The IAA found the SIM card claim entirely implausible. The IAA also rejected the first applicant’s account of an incident said to have occurred in 2007, due to significant differences in his description of the incident, including an entirely different name for the victim on different occasions: see paragraph [28] of the decision. The IAA did not accept that the first applicant left India as a result of fear due to LTTE suspicions: see paragraph [32] of the decision.
At paragraph [34] of the decision the IAA concluded that the chances of an informant becoming aware of the first applicant’s occasional involvement in the LTTE over eleven years ago would be remote. The IAA further concluded that there was no evidence that he had been involved in any diaspora activities that would be of interest to the authorities, nor that the applicant intended to engage in any activities that would be construed as attempts to regroup the LTTE in Sri Lanka: see paragraph [34] of the decision. The IAA had regard to recent country information which pointed to a change in Sri Lanka, whereby Tamil ethnicity no longer leads to an imputation of LTTE membership or pro-LTTE opinion, ultimately finding (at paragraph [39]) that:
39. I am satisfied the situation for Tamils in Sri Lanka has significantly improved since the first applicant departed in 2006, and continues to improve. I am satisfied the Siresena government is taking steps to address past discrimination and violence against Tamils, and that the security situation in the Eastern Province is greatly improved. I accept Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE, and that former members may be at risk of arrest, detention, prosecution, rehabilitation and/or monitoring by authorities, however, I am not satisfied the first applicant was an LTTE member. I have found the first applicant’s involvement providing information to the LTTE to be very low profile, and I do not consider there is a real chance of he or his family being subjected to harm on return to Sri Lanka based on that involvement over 11 years ago, their ethnicity or his links to the Eastern province.
With respect to risks specific to the second applicant, the IAA said (at paragraph [40]):
40. The first applicant claims that if his wife is returned to Sri Lanka she is at risk of being detained, raped and tortured in detention, or in their village, and that his children are at risk of being orphaned. If the second, third and fourth applicants are returned to Sri Lanka they will return with the head of the family, the first applicant. Country information indicates that vulnerable woman such as war widows or female heads of households are more likely to face violence from the Sri Lankan military [FN: DFAT, “DFAT Country Information Report Sri Lanka”, 24 January 2017, CISEDB50AD105]. No information has been provided to suggest that the second applicant would live apart from her husband on return. I do not consider that the second applicant fits this profile nor does she face a real chance of any specific threat. I am not satisfied that she faces a real chance of harm on the basis of being a Tamil woman should she return to Sri Lanka. In addition, taking into account my finding that the first applicant does not have a profile of interest to Sri Lankan authorities, I am not satisfied the children are at risk of becoming orphans.
The IAA dealt with concerns about what might occur to the applicants on return to Sri Lanka (at paragraphs [44]-[45]), saying:
44. I accept the Sri Lankan authorities may infer that the applicants sought asylum in Australia due to the manner of their return. I accept some asylum seekers with actual or perceived links to the LTTE may be at risk of harm during arrival processing. I have found the first applicant would not be of adverse interests to authorities on his return to Sri Lanka, and I do not consider he or his family face a real chance of harm as Tamils who have sought asylum in Australia, or because they have spent a period of time in Australia.
45. I accept that given their mode of departure, the first and second applicants will be detained for a short period at the airport and face questioning. There is also a possibility they may be detained for up to several days in a prison. However, even having regard to the poor prison conditions in Sri Lanka, which DFAT states do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions [FN: DFAT, “DFAT Country Information Report – Sri Lanka”, 24 January 2017, CISEDB50AD105], I do not consider a few days detention would constitute serious harm for the first or second applicants. I am also satisfied there is a real chance the first and second applicants may incur a fine, however I do not consider imposition of a fine that can be paid by instalments, in this case will threaten their capacity to subsist. I do not consider a brief period of detention in the conditions described and the possible imposition of a fine, and questioning, together amount to serious harm.
Grounds for review
Ground 1
The first ground relied upon by the applicants in the Further Amended Application filed on 5 May 2020 is framed as follows
The decision of the Second Respondent was affected by jurisdictional error in that it was unable to carry out the statutory task as required by s.473CC, namely to review the fast track reviewable decision made by the delegate.
a. The decision of the IAA was based on the evidence which the Applicant had given, or not given, to the delegate, through the medium of the interpreter;
b. The IAA did not have a transcript of the SHEV interview;
c. A transcript of the SHEV interview annexed to the Affidavit of Donna Woodleigh filed with this Court identifies a failure by the second interpreter to interpret correctly;
d. The failure to interpret correctly was in relation to the issue of the type of, and nature of the harm that the Applicant told the Interviewer would occur if he was not found to be a refugee;
e. The IAA accepted that the applicant was stressed at his SHEV interview and that the second interpreter was at times. unprofessional. Despite the circumstances where there were real concerns about the accuracy and adequacy of the SHEV Interview with the applicant, there is no indication that the IAA considered exercising its discretion under s.473DC to get information from the applicant by way of a fresh interview or by any other means;
f. The failure of the IAA to exercise or consider exercising its discretion under s.473DC in the circumstances was unreasonable.
The first respondent’s submissions (at paragraph [28]) identifies the relevant passage in the translations as follows:
DIBP0: I have some concerns which I need to go through. Before I do that do you have anything else you want to say about what happened and why you fear returning?
IP2- in Tamil: Before I give my comments are you going to give your reasons as to why you can't return to your country?
NESM: If I’m sent back to my country, the CID can take me, the Army can shoot me, or the white van can murder me or my wife can be taken and something could happen, something could happen to my children. I have two kids who were born here. Anything could happen. Our life will be destroyed if we go to Sri Lanka.
IP2– in English: If I go back to Sri Lanka Army can take me, CID can take me, I don’t know what would happen to my wife, I have two children who were born in Australia, I don’t know what will happen to my children. My life will be destroyed. My family will be destroyed if I go back to Sri Lanka.
A reading of the transcript as a whole shows a number of small slippages in language in the interview. However, nothing of particular significance emerges. The applicant did not point to any particular passage with respect to this ground of judicial review. When considering translations, it is important to remember that the art of translating language is not a mathematical process and there will inevitably be slippages in meaning and nuance.
The applicant sets out in their written submissions (at page 5) the following points:
i. The decision of the IAA was based on the evidence which the Applicant had given, or not given, to the delegate, through the medium of the interpreter;
ii. The IAA did not have a transcript of the SHEV interview;
iii. A transcript of the SHEV interview annexed to the Affidavit of Donna Woodleigh filed with this Court on the 8 October 2019 identifies a failure by the second interpreter to interpret correctly;
iv. The failure to interpret correctly was in relation to the issue of the type of, and nature of the harm that the Applicant told the Interviewer would occur if he was not found to be a refugee;
Counsel for the first respondent sets out (at paragraphs [34]-[37]) that:
34. It is correct that the Authority did not explicitly consider [re-]interviewing the first applicant or seeking additional information from him ‘by any other means’. That does not mean its failure to do so was unreasonable. A review by the Authority is intended to be a review on the papers (s 473DB). It has no duty analogous to that imposed on the Tribunal by s 360 to give an applicant an opportunity to be heard (s 473DC(2)) and the scope for considering new information is limited (s 473DD). It already had detailed material before it, including:
34.1. a statement of claims in the form of a statutory declaration which the applicants’ migration lawyer said had taken 4 days to prepare using a single interpreter (rather than a 3¼ hour interview process towards the end of which the interpreter changed)
34.2. lengthy submissions provided to the delegate after the interview by their migration lawyer, who represented them at the interview and who the Authority considered to be ‘an experienced migration lawyer’ (CB 393[17]) – the submissions noted a number of issues arising from the interview (CB 269)
34.3. further lengthy and more detailed submissions addressing the interview process and the first applicant’s responses at the SHEV interview which were provided to the Authority (CB 375).
35. The issues raised in relation to the interpretation related primarily to the manner in which the interpretation was provided rather than the accuracy of the translation. It was not suggested that another interview should be conducted. To the contrary, the written submissions to the Authority stated explicitly that the applicants did not seek to advance new claims or provide new evidence, but wanted to address some of the central findings of the delegate (CB 375).
36. The submissions were made to ‘explain any deficiencies in the evidence provided during the SHEV interview’ (CB 393[17]). It was submitted that the applicant’s ‘responses at interview, on the whole, need to be seen in the light of these pressures that he bore on the day’ and were to be ‘contrasted with the level of detail provided in his Statutory Declaration, which was prepared over 4 days, in his home, using one interpreter’. The pressures were said to arise from the stress suffered by the first applicant because of concern about himself and his family members which ‘was not ameliorated’ by the issues with the interpreters outlined above (CB 270; see also CB 376 where it was submitted that ‘factors beyond the [first] applicant’s control on the day of the interview led to a loss of trust and composure, leading to his constrained responses …’). Reference was also made to ‘a perception by the [first] applicant that his detailed written claims obviated the need to restate his responses at interview in the same level of detail …’.
37. The Authority took these submissions into account. It accepted that the first applicant may have felt stressed during the interview and that ‘the circumstances of the interview, and the at times unprofessional conduct of the second interpreter, may have exacerbated’ the first applicant’s stress during the interview. At no time did it reject a claim made by the first applicant solely on the basis of a discrepancy between the statement of claims and the answers given in the SHEV interview. However, taking into account, inter alia, that the first applicant had been represented by an experienced migration lawyer and his ‘generally appropriate and sometimes detailed responses, to the delegate's question throughout the interview’, the Authority was ‘not satisfied he was materially hindered in presenting his claims by the conduct of the interview’ (CB 393[17]). That was a finding of fact open to the Authority, which, in any case, took into account the stress the first applicant may have been feeling when evaluating his answers.
In FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 (‘FSG’) the Court said:
59. On a number of occasions, this Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. As observed by O’Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31], each case turns on its own facts but it is possible to distil the following principles from the decisions:
(a) The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority”: DGZ16 v Minister for Immigration and Border Protection[2018] FCAFC 12; (2018) 258 FCR 551 at [69] (DGZ16).
(b) As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection[2018] FCAFC 222 at [74].
(c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].
(d) Another example is afforded by DPI17 v Minister for Home Affairs[2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant's demeanour at the interview and the delegate's acceptance of certain claims by the applicant was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).
Importantly, in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, 258 FCR 551 (‘DGZ16’) the Full Court said, at paragraph [72]:
72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
However, DGZ16 should not be taken ‘as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material’: see DPI17 v Minister for Home Affairs[2019] FCAFC 43 (‘DPI17’) at paragraph [41].
In DPI17 there was an important concession that the IAA had failed to consider exercising its discretion under section 473DC of the Migration Act 1958 (Cth): see paragraph [44]. The core factual issue in that matter was whether or not the applicant had been sexually assaulted. The IAA came to a different conclusion to that of the delegate in circumstances where the delegate had specifically relied upon the applicant's demeanor in accepting the applicant's evidence, despite there being discrepancies in the evidence given. There are two important aspects to reasons set out in paragraph 46:
[…]
(3) … if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.
[…]
(5) … some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. … while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.
The delegate in DPI17 identified the body language and oral delivery of the applicant as important factors in deciding to accept his credibility, and the delegate told the applicant that his credibility was accepted despite inconsistencies, but did not set out the reasoning in this regard in the decision. The latter point, as Burley J sets out in BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 at paragraph [46] was significant as it denied the IAA the capacity to critically analyse the credibility issues on the papers. Griffiths J, in FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at paragraph [37] explains that by saying to the applicant that the inconsistencies were not major, the conduct of the delegate in DPI17 may have influenced the applicant not to make further submissions on that point (see also DIN16 v Minister for Home Affairs [2020] FCA 406 per Markovic J at paragraph [56]). Griffiths J points out that there is a difference between the ability to carefully analyse the evidence given on a recording, from which the IAA can make its own conclusions, and credibility finds: at paragraph [40].
In FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815 (‘FOA18’), White J applied the principles in allowing an application in similar circumstances to those in DPI17, noting that in FOA18 the delegate had said that the applicant’s “responses to questions appeared spontaneous and as if being recalled from memory”, these demeanor observations overcame the assessment of the version as otherwise “far-fetched” (at paragraphs [34]-[38]). White J also drew the inference that the IAA had not considered the applicant’s request to provide oral information, as the IAA had considered various aspects of the submissions, but not noted the relevant request: see paragraph [46].
In BUP17 v Minister for Immigration & Anor [2019] FCCA 3193 Judge Kelly allowed an application of this type in circumstances where:
102. The delegate made an affirmative finding that the applicant had been sexually assaulted by SLA personnel. However, that finding was not made in a vacuum. To the contrary, the delegate deliberately abstained from getting further information from the applicant in relation to the sexual assault by those personnel (which occurred over a period of three hours) because the delegate accepted that recounting the incident had been extremely distressing for him, and for that reason did not press him for further details of the assaults. The delegate accepted that the assaults occurred in January 2012, that the applicant had been assaulted by several Sri Lankan officers and that the assaults had occurred over a three hour period. The delegate accepted that the applicant’s decision not to divulge the assaults to anyone was consistent with country information about the stigma associated with such assaults. Contextually, the applicant was aged about 17 years at that time. The findings above are also to be seen in the broader context that the delegate found the applicant to be a forthright and credible young man.
In this case, it is clear that the IAA had regard to the fact that the applicant was stressed at his interview and that the interpreter was, at times, not as perfect in the translations as one might hope. It cannot be said that the IAA was unaware of the failings of the interpreters, nor does it appear that the difficulties realistically impeded the IAA from undertaking its task in the style contemplated by the legislative scheme.
The nature of the review process established by Parliament is that of a review ordinarily carried out on the papers. This is not a case where the demeanour of the applicant was central to the assessment of his evidence.
I am not persuaded that the IAA acted in a way that was legally unreasonable in relying upon the material in the context of this case.
Ground 2
The second ground is framed as follows:
The IAA fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information concerning the second applicant.
In this ground, the applicant refers to paragraph [40] of the decision, (which is set out above in paragraph [5]). The applicant argues that the second applicant’s profile was not considered beyond that discussed in paragraph [40] of the decision. The applicant refers to country information showing that violence against women occurs throughout Sri Lanka, and that women in Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence.
It is apparent that (at paragraph [40] of the decision) the general position of women in Sri Lanka was addressed, in that the IAA considered that the second applicant would not be living apart from her husband upon return and that, as a result, she did not face real chance of any specific threat of harm. The material referred to does indicate that there are difficulties with respect to domestic violence and support access for women in that area in Sri Lanka. In this case there is no suggestion that the second applicant is at risk of domestic violence from the first applicant. As this was not an issue before the IAA, it was not necessary for the IAA to specifically deal with it. I therefore find that the applicant cannot succeed under this ground.
Ground 3
Ground 3 is framed as follows:
The IAA erred in concluding that the third applicant and the fourth applicant are Sri Lankan citizens, in that:
The IAA constructively failed to perform a review of the review material (being the “information before the delegate regarding nationality”), or acted on no evidence, in that there was nothing to suggest that the third applicant or the fourth applicant had their birth registered with the Sri Lankan authorities, nor that they had received a beneficial exercise of ministerial discretion to permit them to become citizens of Sri Lanka, as was indicated to be necessary by the “information before the delegate regarding nationality”.
This ground concerns the question of whether or not the third and fourth applicants (the children of the family unit), who were born in Australia, are in fact ‘stateless’. The evidence before the IAA and the delegate was very limited. In the application forms (at questions 17 to 19), the following questions and answers appeared for each of the children:
17. Your citizenship at birth (if none, write ‘stateless’)
Sri Lanka
18.Your current citizenship (if different at birth)
-
Date acquired Day/Month/Year
[blank]
19. If you are stateless, how when and why did you become stateless? Note A stateless person is not a national or a citizen of any country
-
There is no question that the first and second applicants are Sri Lankan citizens, although they were unable to provide relevant documents: see question 98 at Court Book pages 201 and 228.
The children’s birth certificates in Australia were produced. This led to the delegate noting the effects of subsection 5(2) of the Sri Lankan Citizenship Act and concluding (for each of the children):
Subsection 5(2) of the Sri Lankan Citizenship Act provides that:
… a person born outside Sri Lanka … shall have the status of a citizen of Sri Lank [sic] if at the time of his birth either of his parents is or was a citizen of Sri Lanka and if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner [FN omitted].
According to the Sri Lankan Department of Immigration and Emigration website, the confirmation of Sri Lankan citizenship for children born outside Sri Lanka to a Sri Lankan parent or parents is by registration. If not registered within a year of the child’s birth the registration can still be affected but will incur a fine [FN omitted].
There is no evidence before me that the [child’s] birth has been registered with the Sri Lankan authorities.
Given the Applicants’ failure to register the birth of their child within a year of his birth, it appears that under Sri Lankan law his citizenship may be dependent on subsequent registration which, in turn, relies upon the discretionary action which ‘the Minister may for good cause allow’.
Because [the child’s] Sri Lankan citizenship appears to depend upon a discretion, which may or may not be exercised, it is not possible for me to determine that he is a Sri Lankan citizen.
Thus, for the purposes of this assessment, I regard [the child] as stateless.
The visa application forms were completed clearly stating that each of the children had Sri Lankan citizenship, which had not changed since birth: see Court Book pages 179 and 206. There was no statement by the first or second applicants to the effect that the children had not had their births registered in Sri Lanka for citizenship, nor an allegation that they did not have Sri Lankan citizenship, as alleged on the visa application forms. On the material before the delegate, it appears that the delegate acted contrary to the evidence, speculating that there may be an issue if the first and second applicants had not registered the births of their children in Sri Lanka.
There does not seem to have been any evidence placed before the delegate or the IAA that the births have not in fact been registered with Sri Lankan authorities. There was not a claim that the children were stateless (which would necessarily be based upon evidence that the first and second applicants had not registered their births in Sri Lanka).
In submissions to the IAA, the applicant's representative said (at Court Book page 375):
I submit that the delegate erred in relation to Applicants 3 & 4, in finding that they were stateless, but no further assessment was made in relation to the ramifications of this, given that they are minors and totally dependent on the primary and secondary Applicants.
The IAA concluded, on this issue, (at paragraph [10] of the decision) that:
10. The third and fourth applicants claim to be Sri Lankan citizens in their SHEV applications. They were born in Australia, and have provided copies of their Australian birth certificates. The delegate concluded the applicant children who were born in Australia were stateless. However, the first and second applicants have claimed that their children are Sri Lankan citizens. Having regard to this, the fact that both parents are Sri Lankan citizens, and the information before the delegate regarding nationality, I am satisfied the children are Sri Lankan citizens. I find that Sri Lanka is the receiving country for all the applicants.
The case presented a number of difficulties for the IAA. At the outset, it is apparent that the only evidence before the delegate was to the effect that the children were Sri Lankan citizens. The submissions of the applicants’ representative appears to argue that the delegate erred in finding that the children were stateless. No request was made to lead evidence that the statements in the visa application forms (to the effect that the children are Sri Lankan citizens) were false. It is remarkable that the IAA would have had such limited material placed before it by the applicants, despite their being represented, if this were a real issue.
Counsel for the applicants argues that the submissions by their representative to the IAA should not be read as indicating that the applicants challenged the finding of the delegate that they were stateless, but rather to convey a complaint that the delegate failed to consider the ramifications of the delegate’s finding that the children were stateless. The submission was drafted in most unclear terms, leaving both interpretations open. However, the evidence before the IAA was only that contained in the visa application forms, to the effect that the applicants were citizens of Sri Lanka. Even if this were considered to be weak evidence, it remains the only evidence before the IAA: see generally Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158 at paragraph [27]. The IAA had before it no specific evidence, nor specific allegations of non-registration, or failure to register the children’s births. Even if the births were not registered, there is no evidence as to the likelihood that registration would be refused in Sri Lanka for two children of Sri Lankan nationals living in Sri Lanka. It is remarkable that such a point would not have been the subject of specific evidence and submissions from the applicants if it were alleged that the children were (and likely to remain) stateless.
On the limited material before the IAA, it appears that it was within the breadth of their legally reasonable discretion for them to conclude that the third and fourth applicants were citizens of Sri Lanka, as is recorded at question 17 of the visa application forms. I therefore find that this ground is not made out.
Ground 4
Ground 4 is framed as follows:
The IAA erred in not considering what may happen to the third applicant or the fourth applicant upon their compulsory return to Sri Lanka (including in relation to re-entry procedures, or possible separation from their parents whilst their parents are detained noting that the third applicant and the fourth applicant did not leave Sri Lanka illegally and would not be detained for that reason).
In this case, the IAA concluded that the first and second applicants could be detained for a short period, up to several days (as set out above at paragraph [45] of the IAA’s decision) for having left Sri Lanka illegally. The third and fourth applicants could not be said to have left Sri Lanka illegally, as they were born outside of Sri Lanka and have not yet been there.
The applicants argue that the IAA failed to consider what would occur with respect to the third and fourth applicants if both of their parents were detained for several days in Sri Lanka upon their return.
Counsel for the Minister argued that the focus of the matter was upon the claims with respect to the risks of harm to the first applicant. Whilst the first applicant identified concerns for the plight of his children, including a concern of a risk that the children would be orphaned, this was all based upon the consequences of harm befalling the first applicant. These claims were not accepted as a real risk by the IAA: see paragraph [40]. The applicants made no specific claims about what may occur to their children, should they be detained for a brief period upon return to Sri Lanka. There are various obvious hypothesises, such as, the children may be detained briefly with the parents; they may be placed with a family member in Sri Lanka; or they may be briefly placed in state care until a parent is released. There is evidence of extended family still residing in Sri Lanka, for example: see the visa application form at Court Book page 76; the IAA decision (at the second dot point of paragraph [6]); the Delegate’s decision at Court Book pages 345-346 and; applicant’s statutory declaration at paragraphs [33], [40], [88], [89] and [103] at Court Book pages 96-111.The applicants must have been aware of the possibility of brief detention upon return to Sri Lanka, as it was identified in the delegate’s decision (at Court Book page 359) where the delegate said:
[t]he above information indicates that the Applicant is likely to be questioned, briefly detained and fined as a result of departing Sri Lanka illegally.
There is no evidence or submissions to the effect that the children may be at risk of serious harm if the parents are briefly detained on return to Sri Lanka. This was not an issue that was raised with the IAA, nor was there any material to suggest that the children would face a real risk of harm in the circumstances of this case.
In the circumstances, the IAA does not appear to have made a judicially reviewable error.
Costs
The parties agreed that costs should follow the event. The costs should be met by the adult applicants. I therefore order that the first and second applicants pay the first respondent’s costs fixed at $7,467.00.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 4 August 2020
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