AZK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-03-13|Before: Perry J

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

AZM18 (and others named in the Schedule) Third Appellant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

JUDGE: PERRY J DATE OF ORDER: 13 MARCH 2020

The appellants have leave to file and serve the amended notice of appeal in the terms provided to the Court on 24 February 2020.
The appellants have leave to raise ground 1 of the amended notice of appeal.
The appeal is dismissed.
The first and second appellants are to pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [5] 2.1 The criteria for the grant of the safe haven visa [5] 2.2 The appellants' claims and decision of the delegate [8] 2.3 The IAA's decision [10] 2.4 The FCC's decision [17] 3 CONSIDERATION [18] 3.1 Leave to amend the notice of appeal and raise new ground 1 on appeal [18] 3.2 Did the IAA err in considering the claim to fear harm by reason of the father's association with Mr P who was a former LTTE combatant (ground 1)? [24] 3.3 Did the IAA err in "assuming" that the fourth appellant was a citizen of Sri Lanka (ground 2)? [35] 4 CONCLUSION [46]

INTRODUCTION 1 The appellants are a Tamil family from the Northern Province of Sri Lanka. The first and second appellants are husband and wife, and the third, fourth and fifth appellants are their children. All of the appellants were born in Sri Lanka and arrived in Australia illegally by boat in 2012, save for the fourth appellant who was born in Australia. On 10 March 2017, the appellants lodged combined applications for Safe Haven Enterprise (Class XE) Subclass 790 visas (the safe haven visas). 2 This is an appeal from the decision of the Federal Circuit Court of Australia (the FCC) dismissing the appellants' application for judicial review of a decision by the Immigration Assessment Authority (the IAA). By that decision the IAA affirmed a decision by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refusing to grant the safe haven visas (AB430). 3 Two issues are raised on the appeal, namely: whether the IAA fell into jurisdictional error in its consideration of the father's claim to fear harm by reason of his association with his late brother, Mr P, who was a combatant with the LTTE; and whether the IAA fell into jurisdictional error in "assuming" that the fourth appellant, a child born in Australia, was a citizen of Sri Lanka. 4 For the reasons set out below the appeal must be dismissed.

2.1 The criteria for the grant of the safe haven visa 5 The safe haven visa for which the appellants applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellants to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Migration Act 1958 (Cth) (the Act). 6 Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations "because the person is a refugee". A person is a "refugee" for the purposes of the Act if the person (relevantly) "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" (s 5H). In turn, s 5J(1) of the Act provides that: (1) For the purposes of the application of this Act and the regulations to a particular person, the 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); and (c) the real chance of persecution relates to all areas of a receiving country. 7 In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm". The phrase "significant harm" is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

2.2 The appellants' claims and decision of the delegate 8 The father was the primary appellant for the safe haven visas. He claimed relevantly that he was a former member of the Liberation Tigers of Tamil Eelam (LTTE) and that his brother had been killed fighting with the Sea Tigers, being the naval wing of the LTTE. He claimed that he had been identified, questioned, and assaulted by the authorities due to his own LTTE involvement and because of his association with his brother. The mother claimed to fear harm as a result of her husband's profile, on account of her gender and on other grounds. The remaining appellants, the first and second appellants' children, did not make separate claims and were included in the same visa application as members of the primary appellant's family unit. 9 On 31 July 2017, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused to grant the safe haven visas (AB427). The delegate largely accepted the claims by the father and mother. With respect to the father, the delegate accepted that he had provided low-level support to the LTTE and that his brother was a Sea Tiger. The delegate was not, however, satisfied that there was a genuine suspicion on the part of the authorities that the father was an LTTE cadre or leadership figure. Nor did the delegate accept the submissions of the appellants' representative that the father was a person who held a particular risk profile and would be of interest to the Sri Lankan authorities.

2.3 The IAA's decision 10 The delegate's decision was referred to the Immigration Assessment Authority (IAA) on 4 August 2017 on a fast track review under Part 7AA of the Migration Act 1958 (Cth) (the Act) (AB451-461). The IAA is established by Div 8 of Pt 7AA of Act and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). 11 On 8 February 2018, the IAA wrote to the appellants advising that it had decided to affirm the delegate's decision (AB503-507) and enclosing a copy of its reasons (AB510-532). In summarising the IAA's reasons, it is convenient to focus upon those findings by the IAA which are relevant to the appeal. 12 While accepting many of the father's factual claims including his claim that his brother Mr P had been a combatant with the Sea Tigers, the IAA found that the appellant was not of any adverse interest to the Sri Lankan authorities given among other things that the father had provided low-level support only to the LTTE and that the authorities had not displayed any more than a low level of interest in the father's relationship with his brother (IAA at [29]). 13 Specifically, while accepting that the authorities questioned and harmed the father's brother-in-law because of the father's disappearance, the IAA found that there were no claims that the authorities had made any enquiries of any other family members or demonstrated any ongoing interest in the father or his whereabouts. It found that "the authorities' interests in the father was low-level, investigative/intelligence gathering and not a suspicion that the primary applicant had a high level LTTE profile" (at [25]). The IAA was also satisfied that the LTTE had not displayed any ongoing adverse interest in the father arising from his departure while on conditional release other than the incident with his brother-in-law and did not have any adverse interest in him because of the circumstances of his departure (at [26]). The IAA then referred to country information regarding the appellants' risk profile, finding that: 27. DFAT has assessed that in 2017, those former LTTE members most at risk of monitoring, arrest, detention or prosecution are those who are high profile former members. This includes former leaders, those suspected of having committed serious terrorist or criminal acts, and those who provided weapons or explosives to the LTTE. DFAT also assessed that low profile former LTTE members who had not been processed in rehabilitation centres may be subject to detention and rehabilitation if they returned to Sri Lanka, but this generally involves persons who were former combatants, administrators or who provided a high level of non-military support to the LTTE during the conflict [citing Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report - Sri Lanka", 24 January 2017, CISEDB50AD105 at p. 17]. I have found that above that the primary applicant was not involved in a combatant role and the support that he did provide was low-level. 28. Having regard to all of the above, I am satisfied that at the time that the primary applicant departed Sri Lanka, he was of no, or only a very low level, interest to the Sri Lankan authorities. Given this low level of interest and the lack of any evidence demonstrating an ongoing interest now, I do not accept the claim that the Sri Lankan authorities' suspicion of him will now be confirmed because he fled Sri Lanka. I also take into account that he has not claimed that he or any member of his family in Australia has been involved in any activities since leaving Sri Lanka that may lead to the authorities having an adverse interest in him or his family. 14 The IAA then turned to consider claims relevantly related to the primary appellant's brother, Mr P, finding that: 29. Although I have accepted that the primary applicant's brother P and a cousin were involved with the LTTE, I take into account that he has not claimed that the authorities knew of, or have questioned him about his cousin. He claims that the authorities told him that they knew about P and P's involvement with the LTTE but the primary applicant's evidence indicates that they focused on his own involvement. I am satisfied that the authorities have not displayed any more than a low level of interest in the primary applicant's relationship with P. I also note that the authorities have not questioned, harassed or demonstrated any adverse interest in the primary applicant's other siblings or his parents in relation to P. I am satisfied that the primary applicant is not of any adverse interest to the authorities because of his association with P or his cousin. 15 The IAA then concluded on these claims that: 30. Considering all of the evidence and information above, while I accept that the primary applicant was of low-level interest to the Sri Lankan authorities in 2012, I am satisfied that he is not now of adverse interest to the Sri Lankan authorities for any reason including any reason associated with his involvement with the LTTE, or for any family association with the LTTE. (See also IAA reasons at [43]) 16 After rejecting the father's and mother's other claims, the IAA found that the appellants did not meet the requirements of the definition of refugee in s 5H(1) of the Act and therefore did not meet the criterion in s 36(2)(a). Nor, having found that the appellants did not face a real chance of harm including because of the father's real or imputed association with the LTTE through association with his brother Mr P or otherwise, the IAA did not accept that there were substantial grounds for believing that they would suffer significant harm so as to meet the criterion for complementary protection in s 36(2)(aa) (at [67]-[74]). It therefore followed that the other appellants did not meet the family unit criteria in s 36(2)(b)(i) or (2)(c)(i) of the Act.

2.4 The FCC's decision 17 The amended application for judicial review in the FCC raised five grounds of review. The FCC dismissed the application finding none of the grounds to be established. Ground 2 of the notice of appeal challenges the finding by the primary judge for dismissing ground 5 which alleged that the IAA fell into jurisdictional error when it found that Sri Lanka was the receiving country for all of the appellants for the purposes of the review. I considered the primary judge's reasons for rejecting this ground in the context of considering this challenge. Otherwise, no challenge is made to the primary judge's decision as ground 1 seeks to raise a new issue not argued in the FCC.

3.1 Leave to amend the notice of appeal and raise new ground 1 on appeal 18 At the time when the appeal was instituted, the appellants did not have legal representation. The notice of appeal simply stated under the heading "Grounds of Appeal" that "I am appealing from the entire judgement of the Federal Circuit Court" (AB610). 19 Shortly before the hearing on or about 24 February 2020 the appellants, having engaged legal representation in the interim, sought to file an amended notice of appeal. While the Minister advised by email dated 25 February 2020 that he opposed the grant of leave, the objection was not pressed at the hearing of the appeal. In the circumstances, therefore it is appropriate to grant leave to file and serve the amended notice of appeal. 20 However, the appellants' legal representative drew to the Court's attention that ground 1 of the amended notice of appeal raised a new ground not raised in the FCC and accepted that leave would therefore be required to raise that ground. 21 The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 as follows: 46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 47. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. See also Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court). 22 After considering these authorities, Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (with whose reasons Conti J agreed) explained that: 165. It is no accident that the 'practice' spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country's immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving. 166. Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? 23 Applying these principles, I consider that it is in the interests of justice to grant leave. In reaching this view I have given particular weight to the following considerations: (1) the seriousness of the consequences for the appellants as asylum seekers depending upon the outcome of the appeal, including the consequences for the children who are all minors and have all spent the majority (and in the fourth appellant's case, all) of their lives in Australia; (2) the fact that from an impressionist perspective (and with the benefit of clarification of the ground at the commencement of the appellant's oral submissions), I do not consider that the ground lacks any merit; (3) the Minister did not contend that he would suffer any particular prejudice if leave were granted; and (4) the parties had addressed the grounds already (albeit briefly) in written submissions filed in advance of the hearing.

3.2 Did the IAA err in considering the claim to fear harm by reason of the father's association with Mr P who was a former LTTE combatant (ground 1)? 24 The first ground in the proposed amended notice of appeal reads: Ground one IAA failed to apply law to the facts as found, taking irrelevant considerations into account. (Before FCC grounds 2, 3, and 6) Particulars (At AB 1 of 1 p 13) Appellant claimed: They accused our family are supporting for LTTE… And they said my brother who passed away was LTTE. They tied my legs and arms and they beat me for one day. So after that my wife came and she was crying and then they released me… After that they have been to my house when I am not there and then investigated my travel to other towns and tried to put restrictions on my travel to other towns. After that I decide to leave the country through my brother-in-law. (At AB1 of 1 p 495 at 14,15, p 497 at 24,25) IAA accepted Appellant suffering mistreatment is credible. IAA failed to discern a Convention nexus based on familial connection, and future harm based on the evidence before it. (errors in the original) 25 The quotation in ground 1 is taken from the first appellant's arrival interview at AB33. The ground then notes that the IAA found that the first appellant's account of being questioned and assaulted in mid-2012 is credible. 26 The appellant's solicitor's submissions in support of ground 1 can be summarised as follows. (1) Ground 1 is concerned with the IAA's treatment of the father's claim to fear harm by reason of his association with his brother and his claim to have been interrogated and assaulted by the authorities in part due to this association. (2) The IAA at [14] accepted that the father's brother Mr P had joined the LTTE as a combatant and was killed a couple of years later in 2008. (3) The IAA also accepted the assessment by the Department of Foreign Affairs and Trade (DFAT) of those former LTTE members who were most at risk of harm from the authorities, including former combatants, in the "DFAT Country Information Report - Sri Lanka", 24 January 2017, CISEDB50AD105 (DFAT Report) at p. 17 (IAA at [27]). (4) However, when assessing at [29]-[30] whether the father had a well-founded (i.e. objective) fear of persecution by reason of his familial association with his brother it did not take into account that the DFAT Report also cited with apparent approval the UNHCR Eligibility Guidelines for Sri Lanka (December 2012) (AB562). Those Guidelines identified that those links or perceived links which may give rise to a need for international refugee protection included persons with family links to persons who were former LTTE combatants (DFAT Report at [3.32]) (AB562). (5) In giving weight instead to the fact that the authorities in the past had displayed only a low level of interest in the father's relationship with Mr P, the IAA failed to refer to the DFAT report on the issue of a risk of future harm, despite this being evidence accepted in another part of the reasons as objective and apparently reliable. (6) Country information is the only evidence of whether there is an objective fear of persecution. 27 It was not in issue that the appellants have a subjective fear of persecution if returned to Sri Lanka and the IAA accepted among other things that the father had been subjected to terrible acts of violence (IAA reasons at [24]). These included being tied up, punched, beaten until he was unconscious, and burnt with burning coconut husks during questioning when he was detained at the SLN camp in mid-2012. 28 Nor was it in issue that a determination must also be made of whether the appellants' subjective fears are objectively "well-founded" and that this requires the Tribunal to assess what will occur in the future. A fear is "well-founded" when there is "a real substantial basis for it", even where the chance of the object of the fear eventuating is less than 50 per cent, but is not well founded if it is merely assumed or speculative: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). If the Tribunal failed properly to apply this test, the error would be jurisdictional in nature as it would constitute a failure to determine the appellant's claims in accordance with the statutory criteria. 29 However, contrary to the assumption which appeared to underlie the appellants' submissions, the question of whether a subjectively held fear of persecution is well founded is not necessarily determined by reference to country evidence. As in this case, there is no reason why the IAA could not have regard to other evidence in determining whether the father's fear is well-founded. Here the evidence relied upon by the IAA in finding it was not satisfied that the father was of adverse interest to the authorities because of his association with his brother included the father's evidence that the authorities had focused upon his involvement in the LTTE rather than his brother's, and that the authorities had not demonstrated any adverse interest in the father's other siblings because of their relationship to Mr P (at [29]). 30 Nor is there any necessary inconsistency or illogicality in the IAA: (1) relying upon the 2017 DFAT Report in relation to the categories of persons who might be most at risk from the authorities in Sri Lanka at [27] in the context of assessing the risk of harm to the appellant from his personal involvement with the LTTE on the one hand; and (2) considering whether the authorities might regard the appellant as being of adverse interest because of his association with his brother Mr P, on the other hand, without referring to the 2017 DFAT Report. 31 In this regard, as counsel for the Minister pointed out, the DFAT Report suggests that cases where such an association might give rise to a risk of persecution or harm is where the close relative is still alive and is wanted by the authorities. As the DFAT report states at [3.47] (AB564): DFAT is aware of but cannot verify reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring. (emphasis added) 32 By contrast, the appellant's brother had tragically been killed in 2008 while assisting the LTTE. 33 In short, while reasonable minds might well have reached a different conclusion, the conclusion reached by the IAA on this issue is a logical and rational one founded in the evidence and no error is demonstrated in its approach to the issue. 34 Finally, I would emphasise that the jurisdiction of the FCC is confined to deciding whether the IAA's decision was made lawfully under the Act, that is, whether its decision is invalid by reason of a jurisdictional error. The IAA would make a jurisdictional error if, for example, it misunderstood the criteria for determining whether to grant the safe haven visas: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the FCC has jurisdiction to grant the appellants a safe haven visa, to consider whether they satisfy the criteria for the grant of a visa, or to correct mistaken findings of fact by the IAA: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the Court below agrees with the IAA's decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have reached a different conclusion.

3.3 Did the IAA err in "assuming" that the fourth appellant was a citizen of Sri Lanka (ground 2)? 35 The second proposed ground of appeal reads as follows: Ground two IAA decision is based on incorrect assumption to a child or IAA based its decision on the fact and that fact does not exist. Particulars One child was born in Australia whose birth was not registered with the Sri Lankan authorities resulting in that child being stateless, (IAA decision at 1 AB 1 of 1 p 512 at 1) per FER17 v Minister for Immigration [2019] FCAFC 106 This is an important consideration to decide whether that child will be prohibited from being sent from Australia (errors in the original) 36 It was not in issue that the fourth appellant was born in Australia (see e.g. AB432). Nor was it in issue that by force of s 10 of the Act, she is a non-citizen and is taken to have entered Australia when she was born. 37 The appellants contended that, while the IAA assessed the applications for safe haven visas on the basis that Sri Lanka was the receiving country for all of the appellants, there were no documents to prove that the fourth appellant was a Sri Lankan citizen. Moreover, in circumstances where the appellants were applying for safe haven visas in Australia (and arrived as illegal maritime arrivals), the appellants' solicitor submitted that it was purely hypothetical to suggest that the father and mother might attend the Sri Lankan embassy to register her birth thereby enabling her to obtain Sri Lankan citizenship. As such, the appellants submitted that the IAA had based its decision on certain assumed facts insofar as the fourth appellant was concerned which were wrong and this gives rise to a jurisdictional error, referring to the decision in FER17 v Minister for Immigration [2018] FCCA 3767 (FER17 (FCC)) which was upheld in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (FER17 (FCAFC)). Furthermore, while the appellants accepted that the visa application claimed that the fourth appellant was a citizen of Sri Lanka, through no fault on anyone's part that assumption had been shown to be wrong, there having been a change in the law when FER17 (FCC) and FER17 (FCAFC) were decided. 38 In his reasons, the primary judge held that: 50. There is no substance to this ground. 51. All applicants claimed to be Sri Lankan nationals [referring to CB 201; 229; 255; 281; 307; see also CB 333 [3]; 338 [2]]. The applicants' written submissions apparently concede this. The Authority did not err in finding Sri Lanka was the applicants' receiving country [citing CB 495 [13]], including in circumstances where the citizenship of none of the applicants was in issue. FER17 v Minister for Immigration [[2019] FCAFC 106] is factually distinguishable. 52. In the absence of any claim of statelessness or of nationality of some country other than Sri Lanka in respect of the fourth applicant and in circumstances where the fourth applicant was represented to be a Sri Lankan citizen and almost certainly is, this ground must fail. 39 In so holding, the primary judge was plainly correct. The ground must be dismissed because no claim was made by the appellants that the fourth appellant was stateless prior to the FCC application for judicial review as I explain below. 40 It is well established that a failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which "is apparent on the face of the material before the Tribunal": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 19 [58] (the Court). 41 However, as the FCC held, the short point is that no claim was made to the IAA, or was apparent on the face of the material before it, that the fourth appellant was stateless or not a citizen of Sri Lanka. To the contrary the fourth appellant was claimed to be a Sri Lankan citizen in the safe haven visa application (AB301). It follows, as the FCC held, that the decision in FER17 is distinguishable. 42 In FER17 the visa applicant claimed before the IAA that he was stateless because he was not born in Sri Lanka, had never lived there, and did not have Sri Lankan citizenship (FER17 (FCC) at [5] and [12]-[13]). The IAA considered country information indicating that children born outside Sri Lanka to Sri Lankan parents are entitled to Sri Lankan citizenship and that the child's citizenship could be confirmed by registering the birth within one year, or could be obtained subsequently by lodging the relevant documents on payment of a "fine" (or, probably more accurately, a fee) (FER17 (FCC) at [14] and [29]). While the IAA accepted that the appellant's birth may not have been registered with the Sri Lankan government, it was satisfied on the documentary evidence available to the appellant that his birth could be registered and Sri Lankan citizenship "conferred" (FER17 (FCC) at [15]-[16]). 43 In FER17 (FCC), the FCC held that the IAA had fallen into jurisdictional error by proceeding on the basis that the appellant was therefore a Sri Lankan national and that Sri Lanka was his "receiving country" for the purposes of its review under the Act. Specifically, the FCC held that the IAA had misconstrued the law of Sri Lanka when it had concluded that FER17 was a national of Sri Lanka and that Sri Lanka was his receiving country for the purpose of its review because under Sri Lankan law "[a]t 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" (at [32]). The Full Court upheld this decision save that it found that the FCC had fallen into error in denying relief. Relevantly, the Full Court held that: 78. Once it is accepted that the meaning of "a national" and "nationality" for the relevant purposes of the Act, properly construed, does not extend to a person 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, it is clear that the Minister's cross-appeal cannot succeed. 44 These decisions were considered subsequently in BZV18 v Minister for Home Affairs [2019] FCA 1406 which is relevantly on point with the present case. While two of the appellants in that case also argued that FER17 (FCAFC) represented a change in the law, I held that the ground was without merit because, in contrast to FER17 (FCAFC), the appellants did not claim to be stateless until judicial review proceedings were instituted to challenge the decision by the IAA. To the contrary, they asked for their claims to be assessed against Sri Lanka as the receiving country. 45 This case is relevantly indistinguishable from that in BZV18. It follows that ground 2 of the notice of appeal cannot succeed.

CONCLUSION 46 For these reasons, the appeal must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

SCHEDULE OF PARTIES NSD 1666 of 2019 Appellants Fourth Appellant: AZN18 Fifth Appellant: AZO18

Migration Act 1958(Cth)ss 5H, 5J, 10, 35A, 36(2), 36(2A), Part

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (24)

Cited By (2)