FER17 v Minister for Immigration

[2018] FCCA 3767

FEDERAL CIRCUIT COURT OF AUSTRALIA

FER17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3767

Catchwords:
MIGRATION – Application for judicial review – jurisdictional error – refusal of refugee visa – new information – where the applicant claims to be stateless – whether entitlement to citizenship equates to nationality – jurisdictional error found – relief refused on discretionary grounds.  

Legislation:

Migration Act 1958 (Cth), ss. 7AA, 5H, 5J, 36(2)(aa)

Citizenship Act 1948 (Sri Lanka) ss. 3, 5, 5(2)

Cases cited:

VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Applicant: FER17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 481 of 2017

Judgment of: Judge Young

Hearing date: 19 September 2018

Date of Last Submission: 16 November 2018

Delivered at: Darwin

Delivered on: 20 December 2018

REPRESENTATION

Counsel for the Applicant: Mr McDonald

Solicitors for the Applicant: Tern Visa and Migration Lawyers

Counsel for the Respondents: Mr D'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. There is no order for costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 481 of 2017

FER17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMET AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) affirming a decision of the Minister’s delegate to refuse the applicant a refugee visa.

2. The applicant was born to parents of Tamil ethnicity from Sri Lanka who sought refuge in India during the Sri Lankan civil war. The applicant was born in India and has never lived in Sri Lanka. The applicant is not a citizen of India. He arrived in Australia by boat in 2013.

3. The applicant sought a Safe Haven Enterprise Visa and initially claimed to be a citizen of Sri Lanka and to fear persecution should he be sent to Sri Lanka. The delegate assessed the applicant’s claims which centred around an assertion that the Indian authorities had previously detained his father on suspicion of membership of the LTTE and that the applicant would be imputed with pro-LTTE or anti-Sri Lankan government sympathies should he be sent to Sri Lanka.  He also claimed to be at risk if he were to be sent to Sri Lanka without any proof of identity or right to enter Sri Lanka and because he would be sent to Sri Lanka after seeking asylum in Australia. The delegate rejected the applicant’s refugee claims.

4. The applicant sought a review of the delegate's decision under the fast track review process of Part 7AA of the Migration Act (“the Act”). The Authority found that various claims raised by the applicant in his submission to the Authority were not new information and refused to consider them. These included claims that the applicant did not know his family's home town in Sri Lanka, that the Sri Lankan authorities would ascertain that his father was a former LTTE combatant and conclude that the applicant was also likely to be an LTTE member, that the applicant is a "vulnerable witness" because he is unable to remember relevant facts and unable to articulate his case properly and that the Indian authorities will have on record that the applicant’s father was a former LTTE combatant and would pass this information to the Sri Lanka authorities, putting the applicant at risk.  These claims had not been previously raised but the Authority was not satisfied that the criteria for reception of new information were satisfied and refused to consider them.

5. However, the Authority addressed the applicant's claim raised in his submission that he was "stateless". The Authority noted that the delegate did not consider whether the applicant's birth in India affected his ability to enter and reside in Sri Lanka or to obtain Sri Lankan identity documents. In this context the Authority considered new information which included the Citizenship Act of Sri Lanka and information prepared by the Sri Lankan government which dealt with conferral of citizenship on persons born outside Sri Lanka to Sri Lankan citizens. The Authority considered this was new information and that there were exceptional circumstances to justify its consideration.

6. The application for review raised a number of grounds but the common thread was an assertion that the Authority committed jurisdictional error in concluding that the applicant was a national of Sri Lanka. The application further asserted that this conclusion was unreasonable because there was no proper or intelligible basis for the conclusion.

7. In my view, the material and the application for review raise two related questions: was the Authority in error in concluding that the applicant’s “nationality” is Sri Lankan and, if so, was that error a jurisdictional error, having regard to its gravity and materiality?

8. The concept of "nationality" arises in a number of ways under the Act. In considering the applicant's refugee claim under section 36(2)(a) regard must be had to section 5H of the Act which defines a person as 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 form habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

9. The meaning of “well-founded fear of persecution” in section 5J of the Act also takes up the concept of nationality and provides that a person has a “well-founded fear of persecution” if:

   (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a);….

10. Section 5 of the Act defines “receiving country” to mean:

    (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 form habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

11. Additionally, Australia may have complementary protection obligations under section 36(2)(aa) of the Act if as a consequence of removing an applicant “from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…”

12. The Authority addressed the question of the applicant’s nationality at paragraphs [16] to [26] of the reasons. It noted that the applicant was born in India and had received a birth certificate from the government of Tamil Nadu. The certificate stated that the applicant’s nationality was "Sri Lankan". The applicant also received a “Refugees of Sri Lanka Identity Card” issued by the Indian authorities recognising that the applicant was an Indian-born Sri Lankan refugee.

13. In Australia when the applicant lodged his application for a protection visa he stated his citizenship at birth as "Sri Lanka" and his current citizenship as "n/a”.  He said he was seeking protection in Australia so he did not have to return to Sri Lanka. In his protection visa interview in February 2017 the applicant was asked about his nationality or country of citizenship and replied "no country". He was asked if he was claiming to be stateless. He said "I was born in India and have no document to state [I am a] citizen of Sri Lanka”. He said his parents had been born in Sri Lanka.

14. At paragraph [22] of the reasons the Authority referred to country information which indicated 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.  An application is required to be completed and lodged with supporting documents…

    It is apparent from footnote 1 to paragraph [22] that the Authority also had reference to a version of the Citizenship Act 1948 (Sri Lanka) (“the Citizenship Act”) available on the internet.

15. The Authority was satisfied that the applicant had a Refugees of Sri Lanka Identity Card, a marriage certificate for his parents and birth certificate for his mother although his father does not have any Sri Lankan identity documents. The Authority was satisfied that the applicant’s father could obtain a copy of his birth certificate. The Authority found that, according to country information, Sri Lankan refugees residing in Tamil Nadu can obtain identity documents from the Sri Lankan High Commission office in Chennai.

16. The Authority accepted that the applicant's birth may not have been registered with the Sri Lankan government but was satisfied that the applicant's birth could be registered and citizenship “conferred”.  The Authority was not satisfied that any "fine" imposed would amount to serious harm.

17. The Authority was satisfied that the applicant was born to Sri Lankan citizens and is not stateless but is a national of Sri Lanka.

18. The applicant submitted that this conclusion was not open to the Authority because the Citizenship Act, referred to by the Authority, made it clear that in the case of a person born outside Sri Lanka citizenship required the registration of the birth under section 5 of the Citizenship Act and the applicant’s birth had not been so registered.

19. It was agreed between the parties that the question of the determination of the applicant’s nationality must be determined "solely by reference to the law of that country" in accordance with the definition of “receiving country” in section 5 of the Act.

20. Section 3 of the Citizenship Act provides that “A citizen of Sri Lanka may, for any purpose in Sri Lanka, describe his nationality by the use of the expression ‘Citizen of Sri Lanka”. Accordingly, the Citizenship Act of Sri Lanka appears to treat citizenship and nationality as synonymous. This was not challenged by the Minister.

21. Subsection 5(2) of the Citizenship Act provides 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.

22. Although neither party identified “the appointed date” for the purposes of subsection 5(2) it appeared to be conceded that the applicant was born after that date.

23. No other sections of the Citizenship Act were identified by the parties as relevant.

24. The applicant said that in the absence of the registration of the applicant's birth under this section he did not have the "status of a citizen of Sri Lanka" and this meant that he did not have Sri Lankan nationality.

25. The Minister argued that the applicant had an entitlement to citizenship by virtue of section 5(2) and that the Authority was correct to equate this with "nationality".

26. Counsel for the Minister relied on passages from two textbooks: P Weiss, Nationality and Statelessness in International Law (London Institute of World Affairs, 1956) and D P O'Connell,  International Law, 2nd ed (Stevens & Sons, 1970). Weiss said, at p 3, “The term "nationality" in the sense in which it is used in this book is a politico– legal term denoting membership of a State."  The author went on to observe that in those states which have adopted the notion of a "citizen of the State (as opposed to a ‘subject’) the terms ‘nationality’ and ‘citizenship’ must be regarded as synonymous".  Weiss gave some examples of citizenship and nationality not being synonymous but these were exceptional and related to particular peoples or states at particular times.  O'Connell noted, at p 670, that:

    ‘Nationality’ is a term of art used to denote the primary legal connection between an individual and a State, but it is an inconstant expression employed for different purposes in international law and municipal law, and in different contexts in both.

27. The applicant did not take issue with these observations.  However, the concepts referred to in these texts, while no doubt correct, are of limited usefulness in my view.  Both subsections 36(2)(a) and (aa) ultimately require a refugee claim and a claim for complimentary protection, in the case of a person who is said to have a nationality of a country, to be assessed by reference to that "receiving country" and to be “determined solely by reference to the law of the relevant country”.  If, at the end of that process of determination, it is found that the applicant does not have a nationality the claims are assessed by reference to the country of the applicant’s former habitual residence.

28. Whether the applicant was a citizen of Sri Lanka was to be determined solely by reference to the law of Sri Lanka.  In my view, the applicant was clearly entitled to seek citizenship of Sri Lanka because he is descended from a Sri Lankan citizen. If his birth was not registered within one year from the date of birth, then the birth can be registered in the prescribed manner "within such further period as the Minister may for good cause allow".

29. Although the applicant is entitled to seek citizenship he is not, in my view, a citizen of Sri Lanka until his birth is registered in the prescribed manner. The evidence indicated that has not occurred.  Notwithstanding that a Sri Lankan government website suggested that the registration was hardly more than a formality upon payment of a "fine" (probably a fee was meant) the fact remains that until registration of the birth in the prescribed manner the applicant is not a citizen of Sri Lanka.

30. The Minister was unable to point to any authority which stated that entitlement to obtain nationality was equivalent to having nationality, although counsel relied on VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 and asserted the case was authority for that proposition.

31. VSAB concerned an applicant for refugee protection who asserted that he had a well-founded fear of persecution in Bosnia-Herzegovina.  He held a passport for the Former Yugoslav Republic of Macedonia (FYROM) but he asserted that the passport had been obtained fraudulently as a result of a bribe and he was not in fact a citizen of FYROM.  The tribunal rejected that claim and found that the applicant was a citizen of FYROM because, among other things, he held a passport, the passport had been renewed and he was, according to the law of FYROM, entitled to citizenship. Both the tribunal hearing an application for review and, later, the Federal Court hearing an appeal referred to evidence that the applicant fulfilled the criteria for and was entitled to citizenship. However, the purpose of referring to this fact was to rebut the applicant's claim that his passport was fraudulently obtained and that he did not hold current citizenship.  The fact of his entitlement to citizenship indicated the passport had been properly obtained and that the passport was evidence of existing citizenship of FYROM. VSAB did not hold that an entitlement to citizenship or nationality was equivalent to citizenship or nationality. 

32. I am satisfied that, according to the law of Sri Lanka, the applicant is not a citizen of that country. At most he has an entitlement to citizenship should he apply to register his birth in the prescribed manner and to seek an extension of time in which to do so, should the Minister for good cause allow. I am satisfied the tribunal’s conclusion is erroneous, but is this error jurisdictional?

33. In Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 the plurality (Kiefel CJ, Gageler and Keane JJ) said at [24]:

    Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute to which the decision-maker purported to make it. 

34. At [25] their Honours said:

    … jurisdictional error is an expression not simply of the existence of an error, but of the gravity of that error. (Emphasis in original). 

35. And at [27] they said:

    Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute.  The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

36. A breach of such a condition does not always lead to jurisdictional error and "… the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance" (at [29]).

37. Their Honours went on to say at [30]:

    Whilst the statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with the condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.  The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of open ‘the possibility of a successful outcome’, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take into account could not have materially affected’ the decision that was made. 

38. In this case a decision about the applicant's claims required assessment of whether the applicant was a national of Sri Lanka "determined solely by reference to the law" of Sri Lanka. In my view, the Authority’s conclusion is not consistent with the Citizenship Act of Sri Lanka and therefore must have been determined other than solely by reference to the law of Sri Lanka. The determination is not, therefore, consistent with the statutory condition for the determination.

39. For essentially the same reason, I am also satisfied that the Authority’s conclusion that the applicant was a citizen of Sri Lanka lacked a proper and intelligible basis and was thus unreasonable.

40. I should refer to the submission of counsel for the Minister that VSAB is binding authority for the proposition that the determination of nationality according to foreign law is always a question of non-jurisdictional fact. I reject that submission. The observation to that effect in VSAB is an obiter dictum and is, in any event, not easy to reconcile with the High Court’s formulation of jurisdictional error as failure to comply with a statutory condition for the decision, combined with an assessment of materiality.   

1. The question of materiality in this case is more difficult. The applicant’s submission to the Authority dated 18 August 2017 (Court Book 166) asserts that the applicant was not a Sri Lankan citizen by birth and is "not eligible for a Sri Lankan birth certificate, national identity card or passport". The submission went on to say that the applicant’s "citizenship is stateless".

2. Whether or not the applicant was a citizen by birth (he was entitled to seek conferral of citizenship because of his descent from a Sri Lankan citizen according to the Citizenship Act) or eligible for a Sri Lankan birth certificate (presumably not if he was born in India) are irrelevant matters. The submission that he is not eligible for a Sri Lankan passport is probably true to a limited extent: he would not be entitled to a passport until citizenship had been conferred after he followed the process set out in the Citizenship Act, that is, registration of his birth.

3. However the submission then went on to address the delegate’s findings by reference to Sri Lanka. The submission entirely failed to address the question that arose if the applicant did not have Sri Lankan nationality. In that case, the applicant’s claims would be addressed according to the second part of the definition of “receiving country”, being the country of his former habitual residence, India. The question was whether the applicant has a well-founded fear of persecution if returned to India. The Authority was not asked to undertake this assessment. The applicant has never raised a formal claim that he had a well-founded fear of persecution in India.  In his "statement of claims" attached to his protection visa application he referred to "problems in India".  He said he had "lots of difficulties because of racial discrimination and taunting by other students and some of the teachers" at school and that he "always stayed with my parents at home and only left the house to go to school because it was dangerous to me to go anywhere else in India".  The applicant also referred to his father being arrested at one point because of suspected links to the LTTE but said he was later released. His only claims to face a real chance of persecution or a real risk of significant harm were in reference to Sri Lanka.

4. The delegate considered the applicant's claims in relation to his treatment by the Indian authorities and found that:

   In considering the applicant's claim of discrimination in India, I find it plausible that as a result of being a Tamil refugee, the applicant may have been subjected to some form of societal ostracism, however, based on the country information above, I find that the applicant's movements outside of the camp were restricted as part of the normal routine of life in the refugee camp.

5. Although it cannot be said with certainty that if the Authority had assessed the claims of the applicant about India that there would have been no difference to the decision, that is, that Australia had no protection obligations to the applicant, it appears unlikely, given the vagueness of the applicant's claims, the assessment of country information about India by the delegate and the absence of any new claims about India raised by the applicant, that the Authority’s decision to refuse the applicant a protection visa would have been different.

6. Materiality is assessed, according to the prescription in the plurality judgment in Hossain, by asking if the failure to comply with a condition "could have made no difference to decision that was made in the circumstances in which that decision was made" (at [30]).  Although I consider a different outcome would have been highly unlikely, I am unable to conclude that the failure to comply with the statutory condition by the Authority could have made no difference to the outcome or, in other words, a different outcome was a practical impossibility.

7. Accordingly, I am satisfied that the Authority’s error was a jurisdictional error.

8. The judgment of Edelman J in Hossain refers to the residual discretion to refuse a writ of certiorari. This is different to the test of materiality. At [30] his Honour said:

   There has long been a residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd, this Court said that the discretion might be exercised to refuse a writ of certiorari ‘if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made’.  Reference to the potential exercise of discretion where no useful result could ensue thus looks forward to the utility of another hearing.  Although the residual discretion is not confined to being ‘forward looking’, it contrasts with the usual consideration of materiality, discussed above, which looks backwards to whether the error would have made any difference to the result. 

9. I raised with counsel for the applicant my concern that the applicant had not made a claim in relation to India in his submission to the Authority.  Counsel appeared to imply that this was the result of misunderstanding or oversight by the applicant’s migration agent.  He submitted, in substance, that the applicant’s failure to make any claim about India to the Authority should be of no concern to the court and it was enough to show that the Authority had committed jurisdictional error.  The applicant would have the opportunity to raise any claims about India on a rehearing and they could be examined by the Authority then.  I am unable to accept that the ambit of the court’s consideration is as limited as this submission implies.    

10. In my view, the applicant's claim to this court lacks merit.  Although the Authority has failed to comply with the statutory condition for the assessment or identification of the relevant "receiving country" the applicant has never prosecuted a substantial claim in respect of India.  His claims to have a well-founded fear of persecution and a real risk of suffering significant harm have been in relation to Sri Lanka.  His claims of "problems" in India were considered by the delegate and found to lack real substance. The applicant failed to make any claims relation to India in his submission to the Authority. Where the applicant has not made any substantial claims in relation to India but instead focused on Sri Lanka, a belated claim in the application for review to this court, one not made previously, that India ought to have been the country of reference considered by the Authority appears to me to lack genuineness or good faith.  For that reason, while I find there has been jurisdictional error, I decline, as a matter of discretion, to grant the applicant relief.

11. As the respondent has failed on the grounds raised by him and succeeded for a reason not raised by him I do not propose to make any order for costs.

12. Yesterday, after this matter was listed for delivery of judgment the solicitor for the respondent wrote to my chambers saying that the parties had agreed that costs should follow the event. For the reasons given in the preceding paragraph I do not propose to make such an order.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 20 December 2018