Federal Court of Australia

BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellants, a family of four, arrived in Australia by boat without visas in November 2012. The first and second appellants are citizens of Sri Lanka, but had resided in refugee camps in India for many years prior to travelling to Australia. Their children, the third and fourth appellants, were born in India and are stateless. The appellants applied for protection visas under the Migration Act 1958 (Cth) in March 2016. Those applications were refused by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on 26 October 2016. The delegate’s decision was affirmed on review by the second respondent, the Immigration Assessment Authority. The appellants subsequently applied to the Federal Circuit Court of Australia for prerogative relief in respect of the Authority’s decision. That application was unsuccessful: BJB17 & Ors v Minister for Immigration & Anor [2020] FCCA 469 (Judgment).

2    The appellants appealed to this Court from the judgment of the Circuit Court dismissing their judicial review application. The appeal raises three main issues.

3    The first issue concerns a finding made by the Authority to the effect that it was not satisfied that the third and fourth appellants would be unable to obtain Sri Lankan citizenship on return to Sri Lanka. The Authority accepted, in that context, a statement in a report authored by the Department of State of the United States of America that “[c]hildren obtain citizenship from their Sri Lankan parents, whether born in the country or overseas”. In the Circuit Court, the appellants argued that the Authority’s finding in that regard was wrong and gave rise to a jurisdictional error. That argument was based on a provision in the Sri Lankan Citizenship Act 1948 (Sri Lanka). It is common ground that the Authority was not aware, and not made aware, of that provision. The primary judge rejected the appellants’ argument essentially on the basis that, even if the Authority’s finding was wrong, it was a finding of fact and therefore did not constitute a jurisdictional error.

4    The Minister accepted, for the purposes of this appeal, that the Authority’s finding was wrong. The first issue for determination on this appeal is essentially whether the erroneous finding amounted to, or gave rise to, a jurisdictional error, or whether it was a mere error of fact within jurisdiction.

5    The second issue also relates to the Authority’s finding that it was not satisfied that the third and fourth appellants could not obtain Sri Lankan citizenship if they were returned to Sri Lanka. As already noted, it was common ground that the Authority did not have before it the relevant provision in the Citizenship Act. It would also appear to be common ground that information concerning that provision was not before the Minister’s delegate. The appellants argued that the Authority acted unreasonably in failing to exercise, or consider exercising, its discretion under s 473DC of the Act to get “new information” in relation to whether the third and fourth appellants would be able to obtain Sri Lankan citizenship. This was not an argument that was raised before the primary judge and the appellants accordingly require the Court’s leave to raise it on appeal.

6    Putting the question of leave to one side, the issue for determination on this appeal is whether the circumstances were such as to make it unreasonable for the Authority not to exercise its discretion, or consider exercising its discretion, to get documents or information concerning the relevant law in Sri Lanka that would apply in relation to any right or ability that the third and fourth appellants may have to obtain Sri Lankan citizenship.

7    The third issue concerns materiality. The issue is whether, if the appellants’ contentions concerning the first two issues are accepted and it is found that the Authority made an erroneous finding concerning Sri Lankan law, or unreasonably failed to exercise its discretion to get new information, those errors were material. The question, in short, is whether the appellants were denied the reasonable possibility of a different outcome.

RELEVANT BACKGROUND

8    It is unnecessary to delve in any great detail into the background facts and circumstances of the appellants’ visa applications. Following is a short summary.

The appellants’ visa applications and claims for protection

9    It is common ground that the appellants entered Australia in circumstances which made each of them an “unauthorised maritime arrival” as defined in s 5AA of the Act. As a result, they were effectively precluded from applying for a visa unless the Minister made a determination under s 46A(2) of the Act that s 46A(1) did not apply to them. The Minister made such a determination on 15 December 2015 and the appellants were accordingly “invited” to apply for protection visas. The appellants did so on 3 March 2016 by lodging a combined application for a Safe Haven Enterprise Visa, a type of protection visa.

10    It is unnecessary to detail the factual claims that were advanced by the appellants in support of their visa application. It suffices to note the following matters.

11    First, both the first and second appellants claimed that they were born in Sri Lanka and that, despite having resided in refugee camps in India for some time, they had no right to enter or reside in India.

12    Second, it was claimed, on behalf of both the third and fourth appellants, that they were born in India.

13    Third, the first appellant claimed that Australia owed him protection obligations because he had a well-founded fear of persecution in Sri Lanka, or that there was a real risk that he would suffer significant harm if he was required to return to Sri Lanka, on account of: his Tamil ethnicity; the fact that he would be perceived by the Sri Lankan authorities to have links to, or be a supporter of, the Liberation Tigers of Tamil Eelam (LTTE); the fact that he had attended meetings for pro-Tamil political parties while in India; and the fact that he was a failed Tamil asylum seeker who had resided abroad for many years and had departed Sri Lanka illegally.

14    Fourth, the second appellant claimed that Australia owed her protection obligations because she feared being harmed in Sri Lanka, or there was a real risk that she would suffer significant harm if she was returned to Sri Lanka, because Tamil woman are sexually abused and mistreated in Sri Lanka and she was a Tamil asylum seeker who had departed Sri Lanka illegally many years ago.

15    Fifth, and significantly, no separate protection claims were made by or on behalf of the third and fourth appellants. Their visa applications were based and dependent entirely on the fact that they were members of the same family unit as the first and second appellants. It was not claimed that they had a well-founded fear of persecution, or that there was a real risk that they would suffer harm, on account of them being stateless and unable to obtain Sri Lankan citizenship.

16    It should also be noted that the appellants were represented or assisted by a migration agent and that the appellants provided fairly voluminous documentation to the delegate, through the agent, in support of their visa applications. The documents and information provided to the delegate on the appellants’ behalf did not include any documents or information relating to the relevant law in Sri Lanka concerning citizenship.

The delegate’s decision

17    The delegate refused the appellants’ visa applications on 26 October 2016.

18    It is unnecessary to consider the delegate’s reasons for refusing the visa applications in any detail. It suffices to make the following points.

19    First, the delegate accepted that the first and second appellants did not have the right to enter or reside in India.

20    Second, the delegate accepted that the third and fourth appellants were the dependent children of the first and second appellants and that they were born in India.

21    Third, the delegate was not satisfied that either the first or second appellant had a well-founded fear of persecution in Sri Lanka, or that there was a real risk that they would suffer significant harm if they were returned to Sri Lanka. It followed that they did not satisfy the criteria for a protection visa in either s 36(2)(a) or s 36(2)(aa) of the Act.

22    Fourth, it followed that the third and fourth appellants did not satisfy the criteria in either s 36(2)(b) or s 36(2)(c) of the Act because, while they were members of the same family unit as the first and second appellants, the first and second appellants had not satisfied the criteria in ss 36(2)(a) or (aa) of the Act.

23    Fifth, the delegate made no findings about whether the third and fourth appellants would be able to, or would be likely to be able to, obtain Sri Lankan citizenship. That is most likely because, as already noted, no claims or submissions were made by, or on behalf of, the third and fourth appellants about their statelessness or their inability to obtain citizenship. As already noted, there is no indication that any documents or information relating to the third and fourth appellants’ right or ability to obtain Sri Lankan citizenship were before the delegate.

Referral to the Authority and the review material

24    Because the appellants were unauthorised maritime arrivals who had only been able to make visa applications because the Minister had made a determination under s 46A(2) of the Act, they were “fast track applicant[s]” as defined in s 5 of the Act. They were not “excluded fast track review applicant[s]” and were accordingly “fast track review applicant[s]” as those expressions or concepts are defined in s 5 of the Act. The delegate’s decision to refuse the appellants’ visa applications for the reasons discussed earlier were also “fast track decision[s]” and “fast track reviewable decision[s]” as defined in s 5 and s 473BB of the Act.

25    The upshot of the application of this somewhat bizarre labyrinth of definitional provisions to the appellants’ circumstances was that the Minister’s refusal of their visa applications was not reviewable by the Administrative Appeals Tribunal, but was instead required by s 473CA of the Act to be referred to the Authority.

26    A review by the Authority is a review “on the papers”; meaning that subject to certain exemptions, the Authority must review the fast track reviewable decision by considering the “review material” provided to it under s 473CB of the Act without accepting or requesting any new information and without interviewing the “referred applicant”: s 473DB(1) of the Act. The “review material” is, in simplified terms, the delegate’s reasons for the decision, the material provided to the delegate by the referred applicant and any other material in the possession of the Secretary of the Minister’s Department which the Secretary considers to be relevant to the review: s 473CB of the Act.

27    The Authority, however, has a discretion to get any “new information”; being documents or information that were not before the Minister or the delegate but which the Authority considers may be relevant: s 473DC(1) of the Act. The Authority does not, however, have any duty to get, request or accept any new information: s 473DC(2) of the Act. The Authority must also not consider any new information unless: first, it is satisfied that there are “exceptional circumstances to justify” that course; and second, the referred applicant satisfies the Authority that the new information “was not, and could not have been, provided to the Minister before the Minister made the decision” or is “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”: s 473DD of the Act.

28    The delegate’s decision to refuse the appellants’ combined visa application was referred to the Authority on 31 October 2016. The appellants were sent a Practice Direction issued by the Authority. The Practice Direction indicated that the appellants could provide a written submission. It also noted that the appellants could provide “new information”, but stated that the Authority could only consider new information in limited circumstances, which were summarised, and that if the appellants provided new information they would be required to provide an explanation as to why that information was not previously provided or was personal information which was not previously known.

29    Written submissions were prepared and sent to the Authority on the appellants’ behalf. It is unnecessary to refer to all of the submissions that were made on the appellants’ behalf. The relevant point to note is that the submissions did not refer to any claim or argument that directly related to the fact that the third and fourth appellants would not be able to, or would be unlikely to be able to, obtain Sri Lankan citizenship. Nor did it make any reference whatsoever to Sri Lankan citizenship law.

30    The submissions did note that the delegate had failed to deal with what was said to be the appellants’ “lack of Sri Lankan documentation” and that this absence would place them in a “very vulnerable position, if they were to be returned to Sri Lanka”. The submissions also referred to the fact that the appellants would be questioned on arrival and potentially detained for a period of time. It was submitted, in that context, that it was necessary to have regard to the appellants’ “inability to prove their identity and/or their right to remain in Sri Lanka” and that, while the first and second appellants would be able to establish that “prima facie they were citizens”, the position of their children, the third and fourth appellants, “was materially different”.

31    As will be discussed in more detail later in the context of the appellants’ second ground of appeal, the Authority considered that none of what was stated in the written submissions constituted “new information” as defined in s 473DC of the Act.

THE AUTHORITY’S DECISION

32    On 7 March 2017, the Authority decided to affirm the delegate’s decision not to grant the appellants protection visas. It sent the appellants a detailed document entitled Decision and Reasons which contained its reasons for affirming the decision.

33    Given the fairly narrow grounds of appeal, it is unnecessary to consider the Authority’s reasons in any great detail. It suffices to make the following points.

34    First, the Authority detailed the information that was before it for the purposes of the review: Reasons at [2]-[7]. The Authority noted, in that regard, that it had regard to the material referred by the Secretary under s 473CB of the Act. It also referred at some length to the written submissions that had been forwarded to the Authority on the appellants’ behalf. As discussed earlier, the Authority analysed those submissions and concluded that none of the information in them constituted or comprised “new information” as defined in s 473DC of the Act. Finally, the Authority noted that it had considered a new report from the Australian Department of Foreign Affairs and Trade (DFAT) in respect of Sri Lanka. The Authority concluded that there were “exceptional circumstances to justify considering this information”, though it did not identify exactly what those circumstances were: Reasons at [6]. The appellants do not, however, take any point in relation to the Authority’s consideration of the DFAT report.

35    Second, the Authority noted that the third and fourth appellants had been included in the visa application as dependents and had not raised their own claims for protection but that the second appellant had made claims on their behalf: Reasons at [8]. It would appear, however, that that claim was fairly limited, being that the second appellant “worries about her children and claims that schoolchildren are going missing”: Reasons at [10] (last dot point). The Authority found, in relation to that claim, that it was not satisfied that there was a real chance that the third or fourth appellants would “go missing or face a real chance of other forms of harm on return to Sri Lanka as children or as Tamil children”: Reasons at [56]. No challenge is made to that finding.

36    Third, the Authority referred to the information before it in relation to the appellants’ backgrounds. It concluded that there was no information before it to suggest that the first and second appellants had any right to enter and reside in India and that Sri Lanka was accordingly the “receiving country for the purpose of this assessment”: Reasons at [14].

37    Fourth, and more significantly for the purposes of this appeal, the Authority accepted that the third and fourth appellants were stateless: Reasons at [15]. It reasoned and concluded as follows in that regard:

In regards to the third and fourth applicant, I accept that they were born in India and have not returned to Sri Lanka since their birth. They have provided copies of their Indian birth certificates and I accept that their births have not been registered with the Sri Lankan authorities. I accept that the third and fourth applicants are stateless and that India is their country of former habitual residence. The third and fourth applicants have not raised individual claims of harm against India in the application for protection but during the protection visa interview the second applicant raised claims in relation to India which I have considered to be relevant to the third and fourth applicant and which I have considered below. In the application for protection, the third and fourth applicants have, however, also claimed that they are seeking protection from return to Sri Lanka. For this reason I have also assessed whether they would face a real chance of serious harm or real risk of significant harm if they were to return to Sri Lanka.

38    Fifth, the Authority addressed the claims made by the first and second appellants based on the fact that they did not have Sri Lankan identity cards. It concluded that the claim that they would “face a real chance of additional questioning, detention, torture or other harm from any group due to not having a Sri Lankan identity card is speculative” and that it was not satisfied that the first and second appellants faced a “real chance of harm on return to Sri Lanka because [they] do not have a Sri Lankan identity card”: Reasons at [53].

39    Sixth, and most importantly having regard to the grounds of appeal, the Authority concluded as follows (Reasons at [55]) in relation to a claim made by the first appellant that the Sri Lankan authorities would not “register” his children:

During his protection visa interview the first applicant claimed that the Sri Lankan authorities would not register his children because he left Sri Lanka when he was 10 years old and he does not have any record of that other than his Sri Lankan birth certificate. I am not satisfied that applicants three and four could not obtain Sri Lankan citizenship on return to Sri Lanka because they were born in India or because their parents left India as children and only have Sri Lankan birth certificates and no other Sri Lankan identification. According to the UNHCR, Sri Lanka has no habitual residents who are legally or effectively stateless. Children obtain citizenship from their Sri Lankan parents, whether born in the country or overseas. There is no information before me to satisfy me that the first and second applicants’ Sri Lankan birth certificates would be insufficient in establishing their identity and entitlement to Sri Lankan citizenship in order for their children to be entitled to Sri Lankan citizenship.

(Footnote omitted.)

40    While the first appellant’s claim was that the Sri Lankan authorities would not “register” the third and fourth appellants, the Authority’s findings in response to that claim in effect amounted to a finding that it was not satisfied that the third and fourth appellants would not be able to obtain Sri Lankan citizenship. It gave essentially two reasons for arriving at that finding. The first reason was that information in the Department of State report that was before it indicated that Sri Lanka has “no habitual residents who are legally or effectively stateless” and that “[c]hildren obtain citizenship from their Sri Lankan parents, whether born in the country or overseas”. The second reason was that there was no information before the Authority that satisfied it that the first and second appellants’ Sri Lankan birth certificates would be “insufficient in establishing their identity and entitlement to Sri Lankan citizenship in order for their children to be entitled to Sri Lankan citizenship”.

41    Seventh, as adverted to at [15] of the Authority’s reasons (extracted earlier), the Authority considered and made findings not only about whether there was a real chance of the third and fourth appellants suffering serious harm if they were to be returned to Sri Lanka, but also about whether there was a real chance of the third and fourth appellants suffering serious harm if they were to be returned to India: Reasons at [76]-[78]. In short, it found that there was no real chance of serious harm to the third and fourth appellants if they were returned to India. No challenge is made to that finding.

42    Eighth, the Authority also assessed the third and fourth appellants’ claims “cumulatively” and found that they “do not give rise to a real chance of serious harm” on return to either Sri Lanka or India: Reasons at [81] and [82].

CIRCUIT COURT proceeding and JUDGMENT

43    The appellants’ amended application in the Circuit Court included a number of grounds of review – however it is, for the purposes of this appeal, necessary to consider only one. The second ground of appeal was that the Authority “made a jurisdictional error in conducting its review based on a false understanding of the citizenship status of the third and fourth [appellants]”. The particulars to that ground were that the Authority found, correctly, that the third and fourth appellants were stateless, that the Authority “assumed, incorrectly, that the third and fourth [appellants] were entitled to Sri Lankan citizenship” and that the Authority “failed to assess the chance of the [appellants] suffering serious or significant harm against the correct factual basis, namely that the third and fourth [appellants] were stateless, had no right of entry into either India or Sri Lanka and no entitlement to Sri Lankan citizenship”.

44    The primary judge rejected this ground of challenge to the Authority’s Reasons. His Honour’s reason for so doing are, however, very brief and somewhat obscure.

45    It would appear that the appellants’ argument that the Authority’s “understanding” of the citizenship of the third and fourth appellants was “false” was based on the operation of s 5(2) of the Citizenship Act, which 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.

46    It would appear that the appellants contended, before the Circuit Court, that the Authority had assumed that the third and fourth appellants were entitled to Sri Lankan citizenship (see Judgment at [28]) and that the terms of s 5(2) of the Citizenship Act demonstrated that they were not so entitled.

47    It is somewhat unclear whether the primary judge accepted that the terms of s 5(2) of the Citizenship Act made out the appellants’ contention that the Authority’s understanding of the citizenship status of the third and fourth appellants was false.

48    The primary judge noted that no evidence had been adduced “as to the proper operation of that foreign Act”: Judgment at [49]. His Honour did not, however, suggest that there was any relevant uncertainty concerning the operation of the provision.

49    Subject perhaps to two qualifications, the operation of s 5(2) of the Citizenship Act would appear to be fairly self-evident from its terms: a person born outside Sri Lanka on or after the “appointed date” will be entitled to Sri Lankan citizenship if two conditions are satisfied: first, at the time of birth either of that person’s parents is or was a citizen of Sri Lanka; and second, the birth is registered in the “prescribed manner” at the office of a consular officer or the “Minister”, either within one year from the date of birth or within such further period as the Minister may for “good cause” allow. The two qualifications are: first, that it is not clear what the “appointed date” was or is; and second, it is not clear what the “prescribed manner” of registration entailed or entails.

50    Despite those qualifications, it is tolerably clear that, assuming that this provision was operative at the time that the Authority considered and made its decision on the review, a person born overseas to Sri Lankan parents was not, by virtue of that fact alone, entitled to Sri Lankan citizenship. It was also necessary for the birth to be registered. Moreover, that registration had to occur within one year of the birth. If it did not, it would be necessary for the registrant to persuade the Sri Lankan Minister that there was “good cause” to allow the registration outside that time period.

51    It would follow that there was and is some merit in the appellants’ contention that the third and fourth appellants are not entitled to Sri Lankan citizenship. While their parents are Sri Lankan citizens, the information before the Authority was that their birth had not been registered. In addition, because more than one year has passed since their birth, their births would only be able to be registered if there was “good cause” to allow that to occur well outside that time period.

52    Despite that, the primary judge did not directly engage with, or make any finding concerning, the appellants’ contention that the Authority assumed that the third and fourth appellants were entitled to Sri Lankan citizenship whereas s 5(2) of the Citizenship Act demonstrated that they were not entitled to citizenship unless and until they were able to persuade the relevant Sri Lankan Minister, presumably upon their return to Sri Lanka, that there was “good cause” to permit the registration of their births outside the one year period referred to in the provision. His Honour accepted that the Authority set out its “understanding” of the law as it affected the third and fourth appellants and “made a finding of fact in relation to that”: Judgment at [50]. His Honour appears, however, to have found that even if that finding was an error, the Court did not have jurisdiction to “cure” that error or any “administrative injustice” arising from it.

53    The primary judge cited, in support of that proposition, the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36]. His Honour presumably had in mind the following passage which appears at pages 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

54    It would thus appear that the primary judge found that the appellants’ challenge to the Authority’s finding or understanding concerning the third and fourth appellants’ citizenship status amounted to merits review, presumably because his Honour found that the finding or understanding was a finding of fact, not law. His Honour also noted that the appellants had not contended that the finding was legally unreasonable (Judgment at [52]) and that it was not apparent that the relevant provision of the Citizenship Act was before the Authority when it made its decision: Judgment at [53]. His Honour did not indicate why the latter finding was of any significance.

FIRST GROUND OF APPEAL: FALSE UNDERSTANDING OF CITIZENSHIP STATUS

55    The appellants’ first ground of appeal is in the following terms:

The Federal Circuit Court erred in failing to find that the [Authority] made a jurisdictional error in conducting its review based on a false understanding of the citizenship status of the third and fourth appellants.

56    This appeal ground would appear, at first blush, to challenge directly the primary judge’s findings in relation to the second ground of review in the Circuit Court. The Minister contended, however, that it effectively raised a new argument or arguments that were not raised in the Circuit Court and that the appellants required leave to raise those arguments. It may perhaps be accepted that the appellants’ arguments in support of this appeal ground may have a slightly different emphasis to the arguments that were put in the court below. The substance of those arguments, however, was effectively the same. It is therefore at best doubtful that the appellants required leave to argue this appeal ground. Even if leave were required, it would be appropriate to grant it in all the circumstances, particularly as the Minister did not suggest that he was prejudiced in any way.

57    The appellants advanced five propositions in support of this appeal ground.

58    The first proposition was that the Authority identified that the third and fourth appellants’ entitlement to citizenship was relevant to the review.

59    The second proposition was that citizenship can only be determined by reference to foreign law, in this case the law of Sri Lanka.

60    The third proposition was that the Authority “failed to consult Sri Lankan citizenship law”.

61    The fourth proposition was that, as a result of its failure to consult Sri Lankan citizenship law, the Authority made a finding that was “not consistent with Sri Lankan citizenship law”.

62    The fifth proposition was that it follows from the fourth proposition that the Authority “failed to perform its statutory task”.

63    Each of the appellants’ five propositions requires careful analysis.

64    The appellants’ first proposition may be accepted. It is apparent from [54] and [55] of the Authority’s Reasons that it interpreted or approached a claim made by the first appellant to the effect that the Sri Lankan authorities would not register his children, the third and fourth appellants, as amounting in effect to a claim that the third and fourth appellants would face a real chance of harm in Sri Lanka because they were stateless. It was in that context that the Authority gave consideration to the question whether the third and fourth appellants would be able to obtain or establish their entitlement to Sri Lankan citizenship.

65    It should, however, be emphasised, in this context that while it may be accepted that the first appellant claimed that the third and fourth appellants may not be able to obtain or establish their entitlement to Sri Lankan citizenship, there was never any articulation of what would flow from that, or what would flow from the fact that the third and fourth appellants were and might remain stateless. The appellants were unable to point to anything in the “review material” that was before the Authority which could be said to articulate or amount to a claim that the third and fourth appellants would suffer harm in either Sri Lanka or India on account of their being or remaining stateless. No such claim was made in the material submitted in support of the appellants’ combined visa application, which was approached by the delegate on the basis that the third and fourth appellants had not advanced their own protection claims and that their applications depended on the first and second appellants’ applications. Nor was any such claim clearly articulated in the written submissions made to the Authority on the appellants’ behalf.

66    The appellants’ second proposition was essentially uncontentious. 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.

67    In the Circuit Court, the appellants appeared to rely entirely on the text of s 5(2) of the Citizenship Act. It is, however, unclear how evidence in relation to that provision was adduced. Evidence of a foreign statute may be adduced in a proceeding in various ways, including by producing a book containing the statute that purports to have been printed by the government or official printer of the country, or a book containing the statute that appears to be a reliable source of information or a book that is or would be used in the courts of the country to inform the courts about, or to prove, the statute: s 174 of the Evidence Act 1995 (Cth). Expert evidence concerning foreign law is also able to be adduced, including in relation to the meaning and effect of foreign statute law. It would appear that the appellants did not adduce any expert evidence concerning the meaning or effect of s 5(2) of the Citizenship Act, nor was any evidence in relation to that provision adduced in accordance with s 174 of the Evidence Act. The Minister appears, however, not to have taken any point in relation to the proof of the provision.

68    The appellants’ third proposition requires close consideration. There are at least two problems with it.

69    The first problem is that it appears to be based on the premise that the Authority was somehow or for some reason obliged to “consult Sri Lankan citizenship law”. That is a false or erroneous premise. 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. It would appear now to be common ground that the review material did not include s 5(2) of the Citizenship Act. Moreover, as discussed later, the appellants did not request the Authority to get “new information” in relation to Sri Lankan citizenship law.

70    The second problem, which is in some respects related to the first, is that it is not correct to say that the Authority failed to consult Sri Lankan citizenship law. That is because it is apparent that the Authority did consult a document or information that was part of the review material that addressed an aspect of Sri Lankan citizenship law. That was the Department of State report which stated that “[c]hildren obtain citizenship from their Sri Lankan parents, whether born in the country or overseas”. It was open to the Authority to have regard to that report, even though it may at best comprise only a secondary source of the relevant law in Sri Lanka. It should also be noted that the Department of State report would appear to have been the only relevant information that the Authority had before it, in the review material, in relation to the relevant law in Sri Lanka which bore on the citizenship rights or entitlements of the third and fourth appellants. The appellants were not able to point to anything else in the review material that bore on that question.

71    It should also be emphasised, in this context, that one of the reasons for why there was no other documents or information concerning Sri Lankan citizenship law in the review material was that the appellants did not put any such information or documents before the delegate in support of their visa application. Nor did they include any reference to Sri Lankan citizenship law in the written submissions they provided to the Authority. And, as will be discussed later in the context of the second ground of appeal, the appellants did not request the Authority to get any “new information” about Sri Lankan citizenship law. Indeed, there was barely a mention of the issue in any of the material which was before the Authority.

72    It follows that the Authority did consult Sri Lankan citizenship law to the extent that there was any relevant information or documents in the review material on that topic. The short statement in the Department of State report, referred to at [55] of the Authority’s Reasons, would appear to have been the only information on that topic in the review material. Having regard to the terms of ss 473DB, 473DC and 473DD of the Act, 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.

73    As for the appellants’ fourth proposition, it may perhaps be accepted that, to the extent that the Authority made a finding in relation to the terms or operation of the relevant Sri Lankan citizenship law, that finding appears to have been wrong. The Authority appears to have found, at [55] of its Reasons, that the third and fourth appellants would be able to obtain Sri Lankan citizenship because their parents were Sri Lankan. That finding was based, at least in part, on the statement extracted from the Department of State report. The Authority also appears to have accepted, based in part on the first appellants’ claim that the Sri Lankan authorities would not “register his children”, that to obtain Sri Lankan citizenship it would be necessary for the third and fourth appellants to establish their identity. The Authority was not satisfied that the third and fourth appellants would not be able to do that.

74    The difficulty with the Authority’s finding, however, is that the terms of s 5(2) of the Citizenship Act appear to demonstrate not only that the third and fourth appellants’ birth would need to be registered, but also that the registration must take place within one year or “such further period as the Minister may for good reason allow”. The third and fourth appellants’ birth had not been registered within one year and it could not be concluded with any certainty that the Sri Lankan Minister would necessarily allow any further period.

75    Four important points should, however, be made in relation to the Authority’s erroneous finding that the third and fourth appellants would be able to obtain Sri Lankan citizenship because their parents were Sri Lankan.

76    First, to the extent that the finding was based on a finding concerning the content of Sri Lankan law, that finding was a finding of fact, not law. As noted earlier, the content, scope or operation of foreign law is a question of fact. In their oral submissions, the appellants effectively conceded that the relevant error was an error of fact. That was also essentially how their case was conducted in the Circuit Court.

77    Second, while the Authority’s finding concerning the content, scope or operation of the law of Sri Lanka in relation to the citizenship of children born of Sri Lankan parents may have been wrong given the terms of s 5(2) of the Citizenship Act, it was nevertheless a finding that was reasonably open to the Authority on the basis of the review material that was before it. That material included the brief statement or summary of the relevant operation of the law which was included in the Department of State report. That statement provided a reasonable basis for the finding.

78    The appellants appeared to submit that the Department of State report was not an apparently credible or reliable secondary source of the relevant Sri Lankan citizenship law. The basis of that submission appeared to be that the description of the report suggested that it was nothing more than a report on human rights practices in Sri Lanka, as opposed to a report in relation to the laws of Sri Lanka. There is, however, no merit in that submission. The Department of State is no doubt a reputable and reliable source of information, including information about human rights in particular countries. Such reports frequently contain a summary of the relevant laws of the countries in question, no doubt because there is a clear relationship, interaction or intersection between human rights practices and the laws of particular countries. There is, in those circumstances, no basis for the contention that it was not reasonably open to the Authority to have regard to the Department of State report as an apparently reliable secondary source of information concerning the relevant and applicable law in Sri Lanka.

79    Third, the Authority’s apparently erroneous finding concerning the content of the applicable Sri Lankan law was not, as contended by the appellants, a result of its failure to consult Sri Lankan citizenship law. As already discussed, the Authority did “consult Sri Lankan citizenship law” insofar as that topic was addressed in the information and documents contained within the review material.

80    Fourth, it essentially follows from each of the preceding three points that the Authority’s error was not a jurisdictional error. It was an error of fact within jurisdiction. This issue is addressed further in the context of the consideration of the appellants’ fifth proposition, as well as in the consideration of the issue of materiality.

81    The appellants’ fifth proposition is that the Authority did not “perform its statutory task” because it did not consult Sri Lankan citizenship law and as a result made an incorrect finding about that law. In essence, the contention is that the Authority constructively failed to exercise its review jurisdiction.

82    For the reasons already given, the premise underlying this contention is rejected. The Authority did not fail to consult Sri Lankan citizenship law and, while it may be accepted that it made an incorrect finding in relation to that law, that finding was a finding of fact which was reasonably open to the Authority on the materials before it.

83    The appellants sought to support the fifth proposition by reference to the decision of the Full Court in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106. Upon close analysis, however, that decision provides no support for the appellants’ contention concerning constructive failure to exercise jurisdiction.

84    The applicant in FER17 was, like the third and fourth appellants in this case, a person who was born in India to Sri Lankan parents but whose birth had not been registered with the Sri Lankan authorities. Also like the appellants in this case, the applicant in FER17 was a “fast track review applicant” whose unsuccessful protection visa application was referred to the Authority for review. As in this case, an issue arose before the Authority as to whether the applicant was a citizen or national of Sri Lanka. Unlike in this case, however, the Authority had regard to the Citizenship Act in answering that question.

85    Despite having the relevant provision in the Citizenship Act before it, and despite being aware that the applicant’s birth had not been registered, the Authority found that the applicant’s birth could be registered and citizenship “conferred”. It concluded, on that basis, that the applicant was not stateless but was a national of Sri Lanka.

86    The Authority’s finding and conclusion that the applicant was a national of Sri Lanka was successfully challenged in judicial review proceedings in the Circuit Court. The Circuit Court judge concluded that the question whether the applicant was a citizen of Sri Lanka was to be determined solely by reference to Sri Lankan law and that in accordance with that law, although the applicant was entitled to seek citizenship, he was not a citizen until his birth was registered. The Circuit Court judge also held that the Authority’s erroneous finding was a jurisdictional error because the finding was arrived at other than solely by reference to the law of Sri Lanka.

87    One other significant point should be made in relation to the facts of FER17. That point is that, because the Authority had found that the applicant was a national of Sri Lanka, it assessed and made findings concerning the applicant’s protection claims solely on the basis that Sri Lanka was the relevant “receiving country”.

88    The Circuit Court judge’s finding that the Authority had made a jurisdictional error in finding that the applicant was a national of Sri Lanka was upheld by the Full Court. The argument advanced by the Minister on appeal was largely based on the meaning of the expressions “national” and “nationality” in the Act. The Minister argued, in effect, that the Authority’s conclusion was correct and the Circuit Court judge’s conclusion was incorrect because those expressions were broad enough to include the situation where a person had the capacity to acquire citizenship.

89    That argument was rejected by the Full Court, which concluded that there was no basis to construe the expressions “national” and “nationality” as extending to any status that a person does not presently possess: FER17 at [64], [78]. The Full Court concluded (at [79]), in that context, that the Circuit Court judge was correct to have held that the Authority had “fallen into legal error by applying a wrong test in concluding that FER17 was a national of Sri Lanka”.

90    It is critical to emphasise that the “legal error” and “wrong test” which were the subject of that finding or conclusion was that the expressions “national” and “nationality” could be construed as extending to encompass someone “who is not presently a national of another country (understood in its ordinary sense) but who might have, or has, the capacity to acquire that other country’s citizenship”: FER17 at [78]. The relevant error was not an error as to Sri Lankan law. It was an error of domestic law, being the proper construction of provisions in the Act, which was the error in question.

91    It is in that context that the Full Court’s finding that the Authority’s error was a jurisdictional error must be understood. The appellants relied heavily on the following passage from the Full Court’s judgment (at [85]) in support of its contention that the Authority’s error in this case was a jurisdictional error:

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 [Authority’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.

92    As the preceding analysis of FER17 demonstrates, however, the “wrong law with respect to a person’s nationality” that was applied in FER17 was not the law of Sri Lanka, but was domestic law, the meaning of “national” and “nationality” in the Act, and the application of that law and the circumstances of the case to the relevantly uncontested law in Sri Lanka. In FER17, the error in construing the Act, which resulted in the incorrect application of the facts of the case to the law of Sri Lanka, was plainly an error of law. That is entirely consistent with the proposition that the effect of the application of foreign law to the particular facts and circumstances of a case is a question of law: National Mutual at 226. In this case, however, the relevant error, for the reasons given earlier, is an error of fact concerning the relevant law in Sri Lanka. Moreover, the Authority’s factual finding to that effect was open to it on the materials before it.

93    It should also be emphasised that the relevant error made by the Authority in this case was not, as it was in FER17, a finding that the relevant appellants were nationals of Sri Lanka. Rather, the relevant finding was that the third and fourth appellants would be able to obtain Sri Lankan citizenship.

94    There is a further important point of distinction between this case and FER17. In FER17, the Authority’s conclusion that the applicant was a national of Sri Lanka led it to consider the applicant’s protection claims solely as against Sri Lanka as the relevant receiving country. In this case, however, as was discussed earlier, the Authority considered the third and fourth appellants’ protection claims in respect of both Sri Lanka and India. It rejected the protection claims in respect of both countries. The Authority’s findings that the third and fourth appellants did not face a real chance of serious harm if returned to either Sri Lanka or India was not challenged either in the Circuit Court or on appeal.

95    This is a critical consideration in determining whether any error made by the Authority in relation to determining the third and fourth appellants’ citizenship status was material. The issue of materiality is addressed separately later. It suffices at this point to note that, on any view, the relevant error on the part of the Authority did not cause it to fail to “perform its statutory task” as contended by the appellants. The “receiving country” in the case of the third and fourth appellants was, on any view, either India or Sri Lanka. The Authority considered the third and fourth appellants’ protection claims in respect of both. There was no failure to exercise jurisdiction, constructively or otherwise.

96    It follows that the ultimate contention upon which the first ground of appeal was based, that the Authority made a jurisdictional error in conducting the review based on a false understanding of the citizenship status of the third and fourth appellants, must be rejected. While it may be accepted that the Authority proceeded on the basis of an incorrect finding in relation to Sri Lankan law, that was an error of fact, not law. The finding made by the Authority was also a finding that was open to it on the material that was before it. And, perhaps most fundamentally, the incorrect finding did not cause the Authority to fail to perform its statutory task as contended by the appellants.

97    The last-mentioned finding is also buttressed by what is said later in these reasons concerning materiality. In short, regardless of how the error made by the Authority is characterised, it was not a material error because the Authority assessed the third and fourth appellants’ protection claims in respect of both India and Sri Lanka. It was not suggested that any other country was, or was capable of being, the relevant receiving country.

98    It follows that the appellants’ first ground of appeal has not been made out. While the primary judge’s reasons for rejecting the relevant review ground based on the asserted error concerning the third and fourth appellants’ citizenship status was not entirely pellucid, his Honour was correct to reject that ground.

SECOND GROUND OF APPEAL: UNREASONBLE FAILURE TO EXERCISE DISCRETION TO GET “NEW INFORMATION”

99    As has already been noted, the appellants did not argue in the Circuit Court that the Authority unreasonably failed to exercise, or consider exercising, its discretion in s 473DC of the Act to get new information in relation to the “issue of Sri Lankan citizenship law or the statelessness of the third or fourth appellant”. The appellants accordingly require leave to raise this ground.

100    The main basis upon which the Minister opposed the grant of leave was that the new argument based on s 473DC of the Act was without merit. The Minister also submitted that this argument, if put in the court below, could have been met with evidence. It is, however, somewhat difficult to imagine what evidence the Minister could have led in response to this argument. The Minister did not otherwise submit that he was prejudiced in responding to this new argument. It was addressed in both the Minister’s written and oral submissions.

101    For the reasons about to be given, the appellants’ new ground based on s 473DC of the Act is without merit. Since it was fully argued, however, the appropriate course is nevertheless to grant the appellants leave to raise the argument for the first time on appeal, but to dismiss the ground of appeal.

102    There was no dispute between the parties that the Authority’s powers to get and consider new information are “conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness”: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3]. There was also no dispute that the Authority did not exercise its power to get new information on the “issue of Sri Lankan citizenship law or the statelessness of the third or fourth appellant”. The question is whether its failure to do so, or to consider doing so, was unreasonable in the relevant legal sense.

103    The short answer to that question is that it was not unreasonable for the Authority not to get new information in relation to Sri Lankan citizenship law or the statelessness of the third or fourth appellants. That is so for a number of reasons.

104    First, the appellants did not make any claim, or raise any issue, concerning the citizenship or statelessness of the third and fourth appellants in support of their visa application. The combined visa application was lodged on the express basis that the third and fourth appellants did not raise their own protection claims and that their applications were reliant on the first and second appellants’ applications. The issue of citizenship and statelessness was accordingly not an issue that was considered by the delegate.

105    Second, the appellants were given the opportunity to make written submissions to the Authority. They were also, in effect, invited to give the Authority new information that they wanted the Authority to consider, though the relevant practice direction made it clear that the Authority could only consider new information in limited circumstances and that the appellants would have to provide an explanation as to, amongst other things, why the information could not have been given before. The appellants provided written submissions, but did not directly raise any claim or issue in relation to Sri Lankan citizenship law or the statelessness of the third or fourth appellants. The submissions did no more than point out that the first and second appellants could establish that they were born in Sri Lanka and “prima facie they were citizens”, but that the “position of the [third and fourth appellants] was materially different”. The appellants did not invite the Authority to get any new information.

106    Third, despite the fact that the appellants had not addressed the third and fourth appellants’ statelessness or advanced any protection claim on that basis, the Authority nevertheless addressed that issue. As discussed at length earlier, the Authority addressed the issue of the third and fourth appellants’ citizenship status on the basis of apparently credible or reliable secondary source material. There was nothing before the Authority to suggest that the brief statement or summary contained in the Department of State report was anything but credible or reliable. It certainly could not be concluded that there was any obvious need for the review material to be supplemented to deal with this issue. The mere fact that the report was a report about human rights practices in Sri Lanka does not mean that it could not be a reliable source of secondary information about the law of Sri Lanka insofar as it intersected with human rights considerations.

107    It cannot be accepted, in all the circumstances, that it was not reasonable for the Authority to make a finding concerning the citizenship status of the third and fourth appellants on the basis of the Department of State report alone as the appellants contended. That is all the more so given that the appellants had barely raised that as an issue.

108    Fourth, as was noted earlier, and will be discussed further in the context of materiality, there was no apparent need for any new information in relation to this issue as the Authority, in any event, addressed and made findings concerning such protection claims as were made by the third and fourth appellants in respect of both Sri Lanka and India. They were the only two potential receiving countries in relation to the third and fourth appellants.

109    It should finally be noted in the context of this ground that many of the arguments and submissions advanced by the appellants tended to amount, in substance, to an argument that the Authority was effectively required to undertake further investigations in relation to the citizenship status of the third and fourth appellants and any protection claims they may have available to them arising from that status. The fact that this was the real substance of this ground tended also to be supported by the broad and general description of the new information that the appellants contended the Authority ought to have sought. The problem for the appellants is that it is at best questionable whether there is any duty imposed on the Authority to make any inquiry of the kind described in relation to Administrative Appeals Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123; see DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [72]. In any event, the appeal ground was not couched in such terms.

110    The appellants’ contention that it was legally unreasonable for the Authority not to exercise, or consider exercising, its discretion to get new information, under s 473DC of the Act, in respect of the third and fourth appellants’ citizenship status or statelessness is rejected. The appellants’ second ground of appeal is accordingly not made out.

MATERIALITY

111    It remains to say something briefly in respect of materiality. It is perhaps strictly unnecessary to do so because the appellants have not in any event established any jurisdictional error on the part of the Authority. That conclusion, however, is affirmed if not buttressed by the fact that the appellants have not demonstrated that either of the asserted errors, if made out, were material in the relevant sense.

112    The High Court has recently affirmed or confirmed that breach of an inviolable requirement or limitation governing the conduct of an administrative review will not constitute a jurisdictional error if the breach was not “material” and that a “breach is material to a decision only if compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]. Where materiality is an issue in an application for judicial review, “the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof” and “[l]ike any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application”: SZMTA at [46].

113    Even if the appellants established that the Authority had made a jurisdictional error in respect of its finding concerning the citizenship status of the third and fourth appellants, or had unreasonably failed to exercise its power or discretion under s 473DC of the Act, they nevertheless failed to establish that either of those errors or breaches were material in the sense that compliance could realistically have resulted in a different decision. That is because if the Authority had not made the incorrect finding in relation to Sri Lankan citizenship law, or had exercised its discretion to get new information in relation to that issue, which would in turn have resulted in a correct finding, the result would have been that the “receiving country” in respect of the third and fourth appellants would have been India. If the third and fourth appellants had no country of nationality, India was the country of their former “habitual residence”: see the definition of “receiving country” in s 5 of the Act. The appellants did not contend otherwise.

114    The difficulty for the appellants is that, as discussed in detail earlier, the Authority considered and made findings in respect of such protection claims that the third and fourth appellants had made in respect of them being returned to India. Those findings were not challenged by the appellants either in the Circuit Court or on appeal. It follows that there could not realistically have been a different decision even if the Authority had not made either of the asserted errors. The appellants ultimately sought to meet this difficulty by submitting that the result of finding that the receiving country for the third and fourth appellants was India would be that they would be separated from their parents, the first and second appellants. That was said to be because the first and second appellants could not be returned to India and the third and fourth appellants would be unable to enter Sri Lanka.

115    Those submissions, however, were based on mere speculation. The appellants never made any claims concerning separation, or any serious or significant harm that the third and fourth appellants would suffer if they were forced to separate. Nor did the appellants point to any material that was before the Authority which was capable of establishing that the third or fourth appellants would not be permitted to enter Sri Lanka for the purpose of them having their births registered and their citizenship established.

116    The appellants bore the onus of proof in relation to materiality. They failed to discharge that onus. It follows that, even if the appellants had established the errors asserted by them in their grounds of appeal, those errors were not material and were accordingly not jurisdictional errors. That alone would provide a basis for dismissing their appeal.

CONCLUSION AND DISPOSITION

117    The appellants failed to make out either of their grounds of appeal. The appeal must accordingly be dismissed. Given that the third and fourth appellants are still young, the appropriate order as to costs is that the first and second appellants pay the first respondent’s costs of the appeal.

Associate:

Dated:    23 November 2020