EON17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 650
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EON17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 650
File number: MLG 2190 of 2017 Judgment of: JUDGE CHAMPION Date of judgment: 26 July 2023 Catchwords: MIGRATION LAW – Protection Visa – Whether a person is a citizen or national of a receiving country is determined solely by reference to the law of that country – The existence, nature and scope of any principles of law of a foreign jurisdiction is a question of fact – There was a rational and intelligible foundation for the Authority’s decision that the Applicant was a Sri Lankan national and not stateless – There is a distinction between a person who is presently a national or citizen of a country and a person who has the capacity to acquire nationality or citizenship of a country – It was not unreasonable for the Authority not to get new information as to whether the Applicant was a Sri Lankan national or stateless either in writing or at an interview with him – The Authority did not fail to have regard to material evidence – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5, 5H, 36, 473DC, 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 583; [2003] FCAFC 184
BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CRY16v Minister for Immigration & Anor (2017) 253 FCR 475; [2017] FCAFC 210
FER17 v Minister for Immigration and Border Protection (2019) 269 FCR 580; [2019] FCAFC 106
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 1 June 2023 Date of hearing: 1 June 2023 Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the Respondents: Mr Tran Counsel for the Respondents: Mills Oakley ORDERS
MLG 2190 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EON17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
26 July 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION AND SUMMARY
The Applicant was born in 1993 in Tamil Nadu, India to Sri Lankan parents who had left Sri Lanka in 1990. The Applicant has never lived in, or been to, Sri Lanka. On 25 April 2013 the Applicant arrived in Australia by boat (CB10).
In summary, Ground 1 was that the Immigration Assessment Authority (IAA or Authority) ought to have assessed the Applicant to be a stateless person and not a Sri Lankan national. There was a rational and intelligible foundation, in answers given in the protection visa interview in conjunction with other information, for the Authority’s finding that the Applicant was a Sri Lankan national. As to Ground 2, it was reasonable for the Authority not to get new information to address any “confusion” as to whether the Applicant was a Sri Lankan national or stateless. There was no relevant “informational gap” such that the s. 473DC statutory discretion miscarried. As to Ground 3, the fact that the Authority did not in its reasons refer to the Applicant’s explanation that he obtained further details about why his parents fled Sri Lanka having been requested by his representative to speak to them, was not a jurisdictional error: it was an example of the principle that it is not necessary to refer to every piece of evidence or contention in the reasons.
The application will be dismissed. I set out my reasons below.
JUDICIAL REVIEW APPLICATION
There are three grounds of review in the Amended Application.
Ground 1: Did the Authority incorrectly apply the law in finding that the Applicant was a Sri Lankan national?
Ground 1 is as follows:
1.The decision of the IAA was affected by jurisdictional error in that the IAA incorrectly applied the law in finding that the applicant was a citizen of Sri Lanka.
Particulars
a)The applicant was born to Sri Lankan parents in a refugee camp in India, has never visited Sri Lanka and consistently claimed to be stateless.
b)Sri Lankan law provides that a person born to Sri Lankan parents outside Sri Lanka will only be a citizen if registered in the manner described in Sri Lankan legislation.
c)The IAA erred in finding that the applicant was a Sri Lankan citizen.
d)As a consequence of that error, the IAA assessed the applicant’s claims on the incorrect basis, namely that he ought to have been assessed as stateless.
[Emphasis added]
The Migration Act 1958 (Cth) – Relevant Provisions
The statutory scheme differentiates between a person who has a nationality and a person who has no country of nationality (i.e. is stateless). In particular, as to when a person is a “refugee” ss. 5H(1)(a) and 5H(1)(b) of the Migration Act 1958 (Cth) are as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Further, a “well-founded fear of persecution” is to be assessed in relation to the “receiving country” defined in s. 5 defines as follows:
“receiving country”, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
[Emphasis added]
By reference to those provisions, if the Applicant was a national or citizen of Sri Lanka whether he was a refugee was to be determined solely by reference to the law of Sri Lanka. If the Applicant was stateless, his country of “former habitual residence” was India and the “receiving country” was India.
Relevant Authorities
The correct characterisation of a person’s nationality is “fundamental”. In FER17 v Minister for Immigration and Border Protection (2019) 269 FCR 580; [2019] FCAFC 106 the Full Court held at [85]:
The Court rejects the proposition that applying the wrong law with respect to a person’s nationality when determining his or her application for a protection visa is not a failure to comply with a statutory precondition or condition. The correct characterisation of a person’s nationality is fundamental. The IAA’s decision thereby lacked an essential characteristic necessary for that decision to be given force and effect by the statute pursuant to which the decision-maker purported to make it.
[Emphasis added]
In this context, “nationality” and “citizenship” have the same meaning: FER17, [78].
There is a distinction between a person who is presently a national or citizen of a country and a person who has “or might have” the capacity to acquire citizenship of a country: FER17, [78].
In BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 at [66] and [69], Wigney J held the existence, nature and scope of the law of a foreign jurisdiction (here, relevantly Sri Lankan law) in judicial proceedings, and in an Australian tribunal such as the Authority, is a question of fact, not law, and that the content of the law of the foreign jurisdiction was to be established by “the material put before the body”:
66.[…] There is no doubt that the question whether a person is or is not the citizen of a particular country necessarily depends on the law of that country: Re Canavan (2017) 263 CLR 284 at [37]. It should perhaps be noted, in this context, that the existence, nature and scope of any rules and principles of the law of a foreign jurisdiction are, at least in judicial proceedings, to be treated as an issue of fact upon which evidence is receivable: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 226.
[…]
69. …. As was just noted in the context of the appellants’ second proposition, the content of the law of a foreign country is essentially a question of fact. In a court, it would generally be established by evidence. In an administrative body, including the Authority, it would properly be established by the material, in the form of documents or information, put before the body. As discussed in detail earlier, however, the Authority must generally conduct its review on the basis of the “review material”, subject to its discretion to get “new information”. It follows that, subject to the exercise of the discretion to get new information, the Authority could only be said to be obliged to “consult Sri Lankan citizenship law” to the extent that the review material included information or documents concerning Sri Lankan citizenship law. […]
[Emphasis added]
In BJB17, Wigney J also noted at [72]:
[…] it is at best doubtful that the Authority was permitted to, let alone required to, consult Sri Lankan citizenship law beyond what was contained in the review material.
Facts in this case
As already noted, on 25 April 2013 the Applicant arrived in Australia by boat (CB10).
Entry Interview
On 16 July 2013 (3 months after arriving in Australia) a departmental officer completed an induction form (Induction Form) as part of the Applicant’s Induction Interview (CB2-17).The answer at Q10 on the Induction Form recorded that the Applicant had Sri Lankan citizenship. The answer at Q11 on the Induction Form recorded that he was “stateless” (CB4). At Q53, the answer to the ‘Final Question’ was that the “client is stateless, however Sri Lanka is listed as citizenship” (CB 11).
Protection visa application
On 8 July 2016 in his written protection visa application (CB29-69), the Applicant recorded that his citizenship at birth was “Sri Lankan” (Q17) (CB46) and at Q19 in answer to a question “if you are stateless, how, when and why did you become stateless?” the question was answered: “I was born in India as a refugee from Sri Lanka I was born in a refugee camp in India to a Sri Lankan parent. I have never got a citizenship of Sri Lanka or India.” (CB46).
The Applicant had also provided as part of the Visa application process a Certificate of Birth issued by the government of Tamil Nadu (i.e. a document of a State government of India) that recorded that he was Sri Lankan (CB73). Further, the Applicant provided to the Delegate a Sri Lankan refugee identity card issued by the government of Tamil Nadu (CB74) and an identity card issued by the government of Tamil Nadu (CB77-78).
The Applicant’s protection Visa interview – 9 December 2016
On 9 December 2016 the Applicant had a protection visa interview with a departmental officer (Ms Gench). A 30 page transcript of that interview was admitted into evidence in this court: (Exhibit A1).
The Authority relied on answers in that interview to reach its conclusion that the Applicant was a Sri Lankan national and not stateless. In the protection Visa interview, the Applicant gave some answers himself via an interpreter. Those answers are denoted “interpreter”. His representative answered other questions. The Reference to “Mr ….” in the Transcript is a reference to the Applicant’s representative. Relevant extracts from the protection visa interview are below.
At P15:L25 – P16: L30 the Transcript records:
MS GENCH: So have you ever tried to go to office in Chennai and register yourself?
INTERPRETER: What regarded?
MS GENCH: So we’re aware there’s thousands of Tamils, Sri Lankans in India, we’re aware of it. Some of them have been actually called back in to actually register their children. So they can actually gain their citizenship back again.
INTERPRETER: The first they – they registered in refugee camp with – with (indistinct)
MS GENCH: Yeah?
INTERPRETER: They have to – I haven’t heard anything – anything about the registration or my birth documents or something like that.
MS GENCH: So you’re not aware that Sri Lankans can go and register and obtain documentation?
[Page 16]
INTERPRETER: Yeah, that facility is – is available in a camp, I – where I lived or stayed.
MS GENCH: The facilities are available or not available?
INTERPRETER: Available in the camp.
MS GENCH: Yeah.
MR………: He’s saying that’s what happened in the camp, they did that during the time they were in the camp and there’s nothing else happened after it., So the embassy, if you’re talking about the - - -
MS GENCH: Yeah.
MR………: --- consulate
MS GENCH: Chennai, yeah.MR………: So they actually visited and they did the registration at the camp
MS GENCH: Okay.MR………: But nothing’s been happen after that. So they didn’t receive any documentation or anything.
MS GENCH: So are you telling me, you are registered?
INTERPRETER: Yeah. That’s - the Chennai office is far away from our camp.
[Emphasis added]
At P17:L16-L31 there is the following excerpt:
MS GENCH: Let me go back again. You said they came, so the office from Chennai, officers came to the refugee camp and registered people. You said that.
INTERPRETER: Many people have the babies in the camp. They’re not – they are not allowed to go – go to the (indistinct) office. Then they (indistinct) organise the office in camp to register whoever have a baby. Then they register there.
MS GENCH:Okay. So we need to talk about you. When you were born, did you parents register you or not? It’s a yes or no question.
INTERPRETER: No
MS GENCH: It’s a yes or no.
[Applicant]: Yes.
INTERPRETER: Yes.
At P17:L45 – P18:L29 there is the following excerpt:
INTERPRETER: They will check time to time – on the time to time, whether they are registered, whoever born in that camp. But in my – five years old or six years old, they came and ask whether I was registered.
MS GENCH: So do you remember recollecting when you were five, or did your parent tell you? Like how do you know?
INTERPRETER: When they came – when they came, my parents said we registered but we didn’t have any - we didn’t heard anything about the registration.
MS GENCH: Okay. But do you remember, or did your parents tell you? Like they came. Do you remember them coming?
INTERPRETER: I knew that when I was at the tender age that they came.
MS GENCH: Okay. So you remember them coming to the refugee camp and asking people around?
[Applicant]: Yes.
MS GENCH: And then your parents said yes he’s been registered?
[Applicant]: Yeah.
MS GENCH: Okay. So you were registered before the age of five?
[Applicant]: Yes.
INTERPRETER: Yes.
At P21:L23-L45 the transcript read:
MS GENCH: Yeah, okay. Now are you aware of people actually in the camp receiving citizenship? Sri Lankan citizenship?
INTERPRETER: No, never happen.
MS GENCH:So there’s about 27,000 people in the refugee camp in Tamil Nadu and we’ve got information 16,000 of them now have been offered citizenship.
INTERPRETER: Sri Lankan.
MR ………: You’re saying Sri Lankan citizenship, yeah.
MS GENCH: Yes, Sri Lankan citizenship.
INTERPETER: No, I wasn’t given.
MS GENCH: But do you know anyone who has been given a Sri Lankan citizenship?
INTERPRETER: I never heard about any –anyone was given citizen – Sri Lankan citizen been – in camp where I was – where I was.
Delegate’s decision
On 27 March 2017 the Delegate had found that the Applicant was a national of Sri Lanka: (CB 204).The Delegate found that: “the applicant claimed that his father registered him when he was five years old with Sri Lankan authorities so he could attend school”: (CB203).
The Authority’s reasons
The Authority recorded its conclusions as to the Applicant’s statements at the protection visa interview on 9 December 2016 as follows (CB264, [8], CB265, [13]-[14]):
8.The applicant claimed he is a Hindu Tamil male born in Bhavanisagar, Erode District, Tamil Nadu, India in 1993. He resided in Tamil Nadu, India as a Sri Lankan refugee. As a refugee who has left India he has no right to enter and reside there. His parents are both citizens of Sri Lanka. He does not have any identity documents to prove his Sri Lankan nationality.
[…]
13.On 9 December 2016, the applicant attended a protection visa interview. The applicant was asked a number of questions about his nationality. He was asked did he have any Sri Lankan documentation, he stated no. He was asked are you a citizen of Sri Lanka, he stated no. He was asked if he had citizenship of any country, he stated no. The applicant was asked if he was stateless, he stated yes.
14. The delegate asked the applicant if he was aware that he could register his birth in India with the Sri Lankan government office in Chennai (Chennai office). He stated that there were facilities in the refugee camp where he lived to do this. He stated he had been registered but he didn’t receive anything after that. He was asked did people from the Sri Lankan government office in Chennai come and register people in his refugee camp. He stated many people had babies in the refugee camp and it was organised so that the office would go to the refugee camp and people could register because they were not allowed to go to the Chennai office.
15. The applicant was asked was your birth registered, he stated yes. He was asked when, he stated “think it got registered I don’t know whether it was registered in 1993”. The applicant was asked how he knew he had been registered. He stated they would check from time to time who was registered in the refugee camp. He stated when he was 5/6 years old he remembers that they came and asked if he was registered. He stated his parents told them he was registered but that they had not heard anything after that. […]
The Authority held at (CB265, [17]-[18]):
17. Country information before the delegate indicates that children born outside of Sri Lanka to Sri Lankan parents are entitled to Sri Lankan citizenship. Parents must register their child’s birth within one year of birth for the confirmation of the child’s citizenship. A child can still be registered for citizenship after one year of age; however a fine will be imposed. A certificate for the Registration of Birth is issued to the applicant. [footnote 1].
18. Individually, the applicant’s birth in India and the absence of any Sri Lankan identity documents or a Registration of Birth raises questions about the applicant’s nationality. However, I am satisfied that when considered cumulatively; the nationality listed in the Certificate of Birth, the statements in the applicant’s protection visa application, the applicant’s own evidence that both his parents are Sri Lanka citizens and that his birth has been registered in the past with the Chennai office when it visited the refugee camp and the country information, satisfy me that the applicant is a national of Sri Lanka.
[Emphasis added]
Footnote 1 to para. [17] of the reasons recorded that the Authority had accessed the Citizenship Act (Sri Lanka) (Citizenship Act). Neither party relied on other material referred to in the footnote to the Authority’s reasons.
As the Authority noted (CB265, [17]) above, the Applicant’s Certificate of Birth is a certificate of the government of Tamil Nadu (in India) and records the Applicant’s nationality as “Sri Lankan”: (CB264, [9]; CB73). Further, the Authority found Applicant had two Sri Lankan Refugee Identity Cards which “support his claim that he was considered to be an Indian born Sri Lankan refugee by the Government of Tamil Nadu”: (CB264, [10]; CB74; CB77-78).
Citizenship Act (Sri Lanka), Section 5(2)
Section 5(2) of the Citizenship Act (CB265, [17], footnote) is as follows:
Subject to the other provisions of this Part, a person born outside Sri Lanka on or after the appointed date shall have the status of a citizen of Sri Lanka if at the time of his birth either of his parents is or was a citizen of Sri Lanka 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
(a) at the office of a consular officer of Sri Lanka in the country of birth,
or
(b) at the office of the Minister in Sri Lanka
Analysis
Whether the Applicant was a national of Sri Lanka was a question of fact (BJB17, [66]) “to be determined solely by reference to the law of the relevant country” (see meaning of “receiving country” and the statement of principle in BJB17 at [66] and [69]) namely, Sri Lanka. The content of Sri Lankan law was to be “properly […] established by the material, in the form of documents or information put before the body”: BJB17 at [69].
It was uncontentious that the Applicant was born outside Sri Lanka to Sri Lankan parents. Section 5(2) of the Citizenship Act permitted Sri Lankans born outside Sri Lanka to have the status of a Sri Lankan national if their birth was duly registered. As a result, the central inquiry as to Ground 1 expressed as a question was as follows: did a combination of the material drawn from Induction Form, the written protection visa application and the protection visa interview transcript when read together with the provisions of s. 5(2) of the Citizenship Act permit of a rational and intelligible conclusion that the Applicant’s birth was duly registered by Sri Lankan authorities in India such that the Applicant was a Sri Lankan national?
The Tamil Nadu birth certificate and refugee identity cards (as documents of an Indian State government) could not apparently assist the Authority to determine whether the Applicant was a Sri Lankan national in circumstances in which the legislation required that question “to be determined solely by reference to the law of the relevant country” namely, Sri Lanka. As the tribunal noted (CB265, [18]) there were no Sri Lankan identity documents.
The answers on the Induction Form and on the written protection visa application were equivocal: some answers tended to suggest that the Applicant was a Sri Lankan national; other answers tended to suggest he was a stateless person. At a preliminary level, if different answers pointed in different directions, that would suggest that it may have been “open” to the Authority (in the sense of a rational and intelligible foundation being available) to conclude that the Applicant was a Sri Lankan national.
In the protection visa interview, in the passage from P15:L25 – P16:L30 (extracted above), Ms Gench (the interviewer) asked about Sri Lankan citizens registering their children “so they can actually get their citizenship back again” (P15:L29) and the Applicant’s representative answered at (P16:L20): “they actually visited and they did the registration at the camp”. The context suggests the representative’s reference was to Sri Lankan officials from the Chennai consulate registering the birth of children at the camp. Those answers suggested that the Applicant’s birth had been registered by Sri Lankan authorities at the refugee camp for the purposes of Sri Lankan law.
The Applicant submitted that there was some confusion about whether the Applicant was being asked about registration of his birth by the Indian authorities or registration of his birth by the Sri Lankan authorities. The Applicant also pointed out that in a later passage of the protection visa interview transcript (P21:L23-L45) the Applicant’s answers were unequivocal (and not subject to the same possible confusion) when he asserted that he never heard of anyone being given Sri Lankan citizenship in the camp (P21: L45). Those submissions had some force.
Nonetheless, in my view, the questions and answers provided in the transcript at P15:L29 – P16:L20 provided a rational and intelligible foundation for the Authority’s conclusion that the Sri Lankan authorities had visited the camp and registered the Applicant’s birth with the result that the Applicant had the status of a Sri Lankan national.
Any debate about the preferable reading of the protection visa transcript engages the Court in impermissible merits review. Once there was material to support a rational and intelligible conclusion that the Applicant was a Sri Lankan national (once that reading of the protection visa interview transcript was “open” taken together with the equivocal material in the Induction Form and the written protection visa application), the Authority was entitled to proceed as it did.
To the extent that these answers (at Transcript, pp. 15-17) were given by the Applicant’s representative, rather than by the Applicant himself, there was no basis on which the Applicant could dissociate himself from his representative’s answers when it came to the Authority’s assessment of whether there was material which rationally supported the conclusion that he was a Sri Lankan national.
Section 5(2) of the Citizenship Act did not preclude a finding that the birth registration might occur by Sri Lankan officials coming into the refugee camp rather than the birth registration occurring at the “bricks and mortar” Sri Lankan consulate in Chennai.
On judicial review, in my view, it is not open for me to draw any inference (one way or the other) as to whether it was inherently likely (or unlikely) for Sri Lankan consular officials in India to be visiting a refugee camp for the purpose of registering the birth of children born to Sri Lankan refugees outside Sri Lanka so as to entitle them to Sri Lankan citizenship.
The facts in this case are distinguishable from the facts in FER17. The Authority found that the Applicant was presently a Sri Lankan national by reason of his parentage plus the registration of his birth by Sri Lankan officials in accordance with s. 5(2) of the Citizenship Act. The Authority did not proceed (in error) to conclude that the Applicant was a Sri Lankan national on the basis that he might have a capacity to acquire Sri Lankan citizenship.
Ground 1 has not been made out.
Ground 2: Did the Authority unreasonably fail to exercise its discretion to get new information from the Applicant in relation to his citizenship status?
Ground 2 is as follows:
2.The IAA unreasonably failed to exercise or consider exercising its power under s 473DC of the Migration Act to invite the applicant to an interview or to get new information from the applicant in relation to his citizenship status in some other form.
Particulars
a)The IAA recorded that no new information was obtained or received.
b)There is no evidence that the IAA considered exercising its power under s 473DC of the Migration Act.
c)In light of the obvious confusion during the interview with the delegate as to whether the applicant’s birth had been registered with Sri Lankan authorities in the manner required by Sri Lankan law to confer Sri Lankan citizenship, and given the centrality of that issue to the IAA’s decision and the IAA’s professed uncertainty as to the evidence a reasonable decision-maker would not have made an adverse finding without exercising or considering whether to exercise the power in s 473DC to get new information from the applicant.
[Emphasis added]
Ground 2 approaches the Authority’s finding as to the Applicant’s nationality “from a different direction” (RS18). Because there was material found in the answers in the protection visa interview which provided a foundation for two different conclusions – that the Applicant was a Sri Lankan national or that he was a stateless person – the Applicant submitted that it was legally unreasonable for the Authority not to clear up the “obvious confusion” by getting “new information” as to that issue in writing or at an interview. Section 473DC provided the possibility for each of these modes of getting “new information”.
Relevant principles
The Authority was operating in the “fast track” process established under Part 7AA of the Act which provided for the provision of new information only in “exceptional circumstances”: s. 473DD. The Authority provided its Practice Direction to the Applicant which included an opportunity to make a written submission (no longer than 5 pages) as to why he disagreed with the Delegate’s decision and any claim or matter presented to the Delegate that was overlooked (CB222-226). It was unclear whether the Applicant made any written submission to the Authority.
The statutory discretion in s. 473DC of the Act to get new information must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 [49] (Gageler, Keane and Nettle JJ).
There is no reference to the s. 473DC discretion in the reasons. The Authority does not need to give reasons for the exercise (or non-exercise) of a procedural power. The mere failure by the Authority to mention the s. 473DC discretion “cannot support the drawing of an inference that the exercise of the discretion was not considered”: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34, the plurality held at [20]:
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant
[Footnotes omitted, emphasis added]
In ABT17, the plurality concluded that compliance with the reasonableness condition in the exercise of the statutory discretion compelled the Authority (in that case) to exercise its powers to get and consider new information by inviting the referred applicant to an interview to assess his demeanour in the conduct of a review: ABT17 at [4]. In ABT17, there was an “informational gap” because the delegate’s interview with the applicant had been conducted by the delegate in person and audio-recorded but not video-recorded. As a result, the “informational gap” was that the Authority did not have a “visual impression of how the referred applicant appeared during the interview – his or her demeanour”: ABT17, [13]. The legal unreasonableness arose because the decision-making pathway the Authority adopted was not to invite the referred applicant to an interview in order to gauge his or her demeanour for itself before it decided to reject his account the delegate had accepted, in circumstances in which it did not defer to the delegate’s advantage in having seen the applicant for itself: ABT17, [25].
In CRY16v Minister for Immigration & Anor (2017) 253 FCR 475; [2017] FCAFC 210 at [82] the Court found the statutory discretion miscarried because the Authority did not get information from the referred applicant as to the impact on him of relocation to Beirut. The delegate had not explored the issue of relocation within the receiving country at all.
In ABT17 and CRY 16, the unreasonableness arose because there was an “informational gap”. In ABT17, the informational gap was that the Authority did not have the information of the applicant’s demeanour. In CRY16, the informational gap was that the Authority did not have information about relocation within Lebanon. It was compelled to exercise its discretion to bridge that informational gap.
In each of ABT17 and CRY16 (and unlike in this case), the Authority decided the matter on a different basis from the delegate. In this case, the Delegate had decided that the Applicant was a Sri Lankan national at least in part on the basis of answers given in the protection visa interview (CB 204). Before the Authority, whether the Applicant was stateless or a Sri Lankan national did not concern “new information” or information the “authority did not have”. There was no information gap. Information as to the Applicant’s nationality had been traversed in the induction form, the written protection visa application and at the protection visa interview all of which was before the delegate (and before the Authority).
If (as I have found) the review material permitted a rational and intelligible conclusion that the Applicant was a Sri Lankan national even if a different conclusion (namely, that the Applicant was stateless) might also have been available on that same material, the Authority was entitled to proceed on such information as it already had without being compelled to exercise its discretion to get and consider further information at interview or in writing so as to bridge any informational gap.
Ground 2 has not been made out.
Ground 3: Did the Authority fail to have regard to a clearly articulated submission of the applicant namely the details as to what happened to the Applicant’s parents in Sri Lanka that prompted them to flee in 1990?
Ground 3 is as follows:
3.The decision of the IAA was affected by jurisdictional error in that the IAA failed to have regard to a clearly articulated submission of the applicant, namely the explanation for his elaboration of the persecution suffered by his parents before he was born.
Particulars
a) The IAA recorded at [34] that the applicant had claimed in his interview with the delegate that his parents had left Sri Lanka for India in 1990, before the applicant was born because the Sri Lankan authorities “had committed a lot of atrocities to them and others.”
b) The IAA further recorded at [34] that the applicant had said in his interview with the delegate that he did not know whether his parents had been “affected by LTTE” but that “maybe they were suspected of being LTTE supporters.”
c) The IAA had before it written submissions made to the delegate after the interview, in which the applicant explained that he had contacted his father after the interview to obtain further details about his parents’ reasons for leaving Sri Lanka.
d) In dismissing the applicant’s claims about the harm suffered by his parents in Sri Lanka, on the basis that the applicant had not mentioned the claims earlier, the IAA failed to have regard to the applicant’s explanation contained in the written submissions.
[Emphasis added]
Before the Delegate, the Applicant made further written submissions by letter of his representative dated 9 December 2016 after his protection visa interview earlier the same day, providing additional details as to what happened to cause his parents to leave Sri Lanka: (CB180). The representative’s submissions were as follows:
I requested [the Applicant] to speak to his father and mother and request further information on what has happened back in Sri Lanka and why they have not made any attempt to go back for so many years since the war has completed
[…]
[The Applicant’s] father [name omitted] has been arrested by Sri Lankan military on many occasions in the past in suspected link with the militant LTTE organisation.
He was a farmer during the time of the civil wat· he used to go for an agriculture works and harvesting.
In one occasion, during May 1990 when [the Applicant’s] father and his brother [name omitted] and his cousin [name omitted] were going to work, got caught by the Sri Lankan military.
The Sri Lankan military have shot his brother [name omitted] in front of him and taken his other cousin in prison. [The Applicant’s] father was also shot in his front leg and ran and survived with injuries. Up to now no information is found on the whereabouts his cousin brother [name omitted]. Since this incident happened [The Applicant’s] father escaped Sri Lanka through sea and travelled to India as refugee.
This has caused a severe shock to [the Applicant] and his family. This is one of the main reason why they fearing to go back to Sri Lanka.
The fear that has caused back in 1990s has certainly travelled in the family and they are all very much scared to return to Sri Lanka.
[The Applicant] believes that the government might have the record of their names in the CID database and would take their family members direct to CID 4th floor to interrogate and torture them and eventually [the Applicant] is scared what happened to his uncle could also happen to him.
[Emphasis added]
In its reasons, the Authority referred to the fact that the allegations had been made “in a post-interview submission” (CB267, [33]) and accurately recounted the substantive allegations of highly traumatic events affecting the Applicant’s parents which had led them to leave Sri Lanka but did not refer to the first paragraph of the representative’s letter. The Authority did not accept that the substantive claims were true. It held as follows (CB268, [35]):
35. Having regard to all the evidence before me, I am not satisfied these claims are true. I do not accept the applicant’s father was arrested on many occasions in the past on suspicion of his links to the LTTE. I do not accept on one occasion his father was shot and injured, his uncle killed and his father’s cousin taken by the SLA. I do not accept that his father’s, uncle and father’s cousin’s names are recorded in the CID database.
The Applicant submits (AS55):
55. The IAA made no reference to the applicant’s explanation as to how and why the additional information was raised when it was, namely that the applicant had asked his parents for the details about what had happened before he was born because he had been unable to answer the delegate’s questions about that.
56. It was open to the IAA to consider the applicant’s explanation and to disbelieve it, on some rational basis set out in its decision record. However, there is no reference whatsoever to the applicant’s explanation in the decision record, giving rise to the inference that it was not considered.
It is accurate that the Authority made “no reference to the applicant’s explanation as to how and why the additional information was raised”. The Authority held: “the applicant made no mention of these claims at his entry interview or in his protection visa application or interview” and noted that “[t]he applicant was given a number of opportunities during and at the end of the protection visa interview to provide the reasons why he could not return to Sri Lanka.” His failure to mention these issues earlier was the reason the Tribunal did not accept those claims (CB267, [34]).
The Applicant referred to the principle in Minister for Immigration and Border Protection v MZYTS(2013) 230 FCR 431; [2013] FCAFC 114 at [62]. In MZYTS, the Court (Kenny, Griffiths and Mortimer JJ) held that the absence of a reference to a central matter in the reasons may give rise to an inference that the matter was not taken into account which could lead to a conclusion of jurisdictional error.
The First Respondent referred to the principle set out in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 583; [2003] FCAFC 184 at [46] namely, “it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”
The First Respondent also referred to Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99; [2013] FCA 317. In SZRKT, Robertson J referred to the fact that the Tribunal had decided that the visa applicant was not a credible witness because it believed he had been untruthful about his studies in Pakistan. Robertson J noted at [72] that the “relevance of the Punjab University transcript to the question of the nature of the applicant’s study at that university was so high that the obvious inference was that the absence of reference to the document [in the reasons] … supported the conclusion that the tribunal did not take it into account.” Robertson J said that the “real issue is whether or not the tribunal took the applicant’s academic transcript into account”. At [111], Robertson J held:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[Emphasis added]
I accept the First Respondent’s characterisation of the first paragraph of the post-interview letter as “adjectival” or “contextual background”. The representative offered the contextual explanation in advance to ward off the obvious inquiry as to why the Applicant had not previously detailed these matters.
In accordance with the authorities (Applicant WAEE, MZYTS and SZRKT above) the issue to be assessed is whether the introductory paragraph of the representative’s letter was a “central” issue (MZYTS) and to evaluate the importance of the material to the exercise of the Authority’s function (SZRKT). This must involve an evaluation of the significance of the evidence and it must be a matter of degree. As I have said, the representative’s explanation as to why the details were being provided at that stage was contextual rather than “central” to the Applicant’s claim: cf. MZYTS. The issue of why the information was being provided at that time did not have the very high level of importance to the Applicant’s claim that the university transcript had in SZRKT. It was not a “central” issue.In its reasons, although it rejected the claims, the Authority accurately referred to the substantive submissions (the substantial and consequential evidence) as to what the Applicant said had happened to his parents and the fact that those submissions were to be found in a “post-interview submission” in the representative’s letter (CB267, [33]).
I do not infer or accept that the Authority overlooked or failed to take into account the circumstances in which the Applicant (by his representative) came to make these further written submissions: namely, that the representative asked the Applicant to speak to his parents after the protection visa interview. The omission of any reference in the Authority’s reasons to the particular circumstances as to how the further submissions came to be made does not constitute jurisdictional error. In my view, it is an example of the principle that it is not necessary for the Tribunal to refer to every piece of evidence and every contention in its reasons: Applicant WAEE at [46].
Ground 3 has not been made out.
CONCLUSION
The application must be dismissed with costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 26 July 2023
0
17
0