Discretion
26 The applicant seeks an order that the Parliamentary Secretary's decision be quashed and an order be directed to the Minister to reconsider revocation of the applicant's visa cancellation according to law. Although jurisdictional error has been found, the grant of this relief is discretionary and may be withheld on the ground of futility. This is because a court will not grant a writ unless satisfied that it will be effectual: R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 at 511.5. It may not be granted if, inter alia, no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400, cited with approval and quoted in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [56].
27 There is a need for considerable caution before a remedy is withheld on the ground that it could produce no useful result. Full Court authority suggests that the discretion to withhold relief should only be exercised where the eventual outcome is "crystal clear": see Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 per Griffiths and Moshinksy JJ at [95]; see also Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 at [12] and [45] (special leave to appeal to the High Court has been granted in Shrestha). Both Full Court decisions quote Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017) at [17.150] as follows:
There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of the likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker.
28 In the present case, the discretion to refuse relief should only be exercised if it is crystal clear that, notwithstanding proper consideration by the Minister or his delegate of the issue of indefinite detention as raised by the applicant, there would be no possibility of a successful outcome for the applicant.
29 To illuminate this issue thus raised, immediately prior to the hearing of the application for review, I caused my associate to send by email to the parties a publication of the United Nations High Commissioner for Refugees (UNHCR), entitled Citizenship and Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia, European Series, vol 3, no 1 (June 1997) (UNHCR publication), being material of the kind that could be before a decision-maker in a case such as this. The UNHCR publication was located on the United Nations' website. The email also reproduced the following passages from the UNHCR publication addressing the issue of citizenship after the dissolution of Yugoslavia:
With the disintegration of the SFRY [Socialist Federal Republic of Yugoslavia] and in the absence of a Succession Treaty, all States stemming from the SFRY have enacted citizenship laws to determine their initial body of citizens as well as to establish conditions to acquire and lose citizenship. Apart from Bosnia and Herzegovina, none of the other states are signatory to the 1961 Convention on the Reduction of Statelessness. All have confirmed being bound through succession to the 1954 Convention relating to the States of Stateless Persons which was ratified by the SFRY on 9 April 1959. The Socialist Federal Republic of Yugoslavia was characterized by a double level of citizenship, all former SFRY citizens were citizens of the Federal Republic and were also registered with a republican citizenship of one of the six SFRY Republics (Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia).
…
The Law on Croatian Citizenship (No. 53. 8 October 1991, the law on amendments was published under No. 28, 18 May, 1992 and became effective on 26 May 1992) determines two basic rules to define the initial body of citizens of the Republic of Croatia. The first rule is the application of the principle of legal continuity of the republican citizenship: all former SFRY citizens who had the republican citizenship of the Socialist Republic of Croatia on the day of October 8, 1991, regardless of where these persons actually had domicile, automatically became citizens of the Republic of Croatia (Article 30.1).
30 Further, the email reproduced s 144 of the Evidence Act 1995 (Cth) as follows, noting, in particular, subsection (4):
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
31 At the commencement of the hearing of the application for review, I raised with the parties the question of whether, pursuant to s 144 of the Evidence Act, the UNHCR publication could be taken into account, either in determining the fate of the grounds of review or in considering the exercise of the discretion to withhold relief. Counsel for the Minister contended that the UNHCR publication could be taken into account for both purposes, as denying any real possibility that the applicant is stateless and would face the prospect of indefinite detention. Senior counsel for the applicant submitted that the UNHCR publication could not, and should not, be taken into account for either purpose. Leave was granted for both parties to provide supplementary written submissions after the hearing.
32 The applicant's argument that the UNHCR publication could not, or at least should not, be taken into account for the purpose of determining whether the Parliamentary Secretary's decision was affected by relevant error should be accepted. That determination was required to be confined to the material that was before the Parliamentary Secretary and his reasons. The UNHCR publication was material that could have been before the Parliamentary Secretary, but was not. Whatever awareness might be shown on the part of the Parliamentary Secretary of the continuity of citizenship in the states emerging from the former Yugoslavia cannot ameliorate the error disclosed in his reasons of failing to consider and address the issue of statelessness and indefinite detention as sufficiently raised in the material before him.
33 Two key questions remain. The first is whether the contents of the UNHCR publication can be relied upon pursuant to s 144(1)(a) or (b) of the Evidence Act. The second is whether the facts that may be established by a decision-maker on remittal, by reference to the UNHCR publication, negate the reasonable possibility of any conclusion by the decision-maker on remittal that the applicant is stateless and would face the prospect of indefinite detention if the cancellation of her visa is not revoked.
34 As to the threshold issue, senior counsel for the applicant resisted the Minister's proposition that the Court could properly inform itself by reference to the UNHCR publication.
35 First, it was submitted that, for the purposes of s 144(1)(a), the purported facts contained in the UNHCR publication are not common knowledge in the locality in which the proceeding was being held or generally. It was submitted that the purported facts relate to complex legal and political data of a foreign jurisdiction, and that courts are not entitled to inform themselves of, and take into consideration, particular features of a legal instrument of a foreign state as a matter of judicial notice, citing Australian Communist Party v Commonwealth (1951) 83 CLR 1.
36 Secondly, it was submitted that, for the purposes of s 144(1)(b), the purported facts are not capable of verification by reference to the UNHCR publication as a document of which the "authority … cannot reasonably be questioned". It was submitted that:
(1) although the publication represents that its contents were written by independent national experts, it is impossible to authenticate the reliability of those experts in the absence of their curriculum vitae;
(2) the expert legitimacy of the publication may be doubted in circumstances where it makes plain that its contents do not reflect "an in-depth analysis of the various legal positions on the grant of nationality following the dissolution of a State";
(3) questions of citizenship relating to foreign law are to be resolved as questions of fact by reference to expert opinion, citing Re Roberts [2017] HCA 39. The publication is said to be unsatisfactory for this purpose because the particular opinions of the "independent experts" are given without identification of the expert witnesses' "specialised knowledge". It was suggested that the publication would therefore not be admissible as expert evidence for the purposes of s 79 of the Evidence Act;
(4) it is not sufficient that the UNHCR publication might be thought of as a reliable source of information - rather, the standard directed by s 144(1)(b) is "high", as considered by Perram J in Parmar v Minister for Immigration and Citizenship [2011] FCA 760; 195 FCR 186; and
(5) the Court would not rely upon an "unofficial translation" of the Act of Croatian Citizenship (6 October 1991), which is annexed to the publication and is said to be partly representative of the subsisting citizenship arrangements in the Republic of Croatia.
37 The Minister's submissions addressed each of the applicant's points in turn. It was submitted that the experts and material relied upon in preparing the UNHCR publication are identified in the report, and could be the subject of independent research by the applicant. It was submitted that the "authority" of the UNHCR is not reasonably open to question, having regard to the UNHCR's position as a specialist, independent and international body specifically tasked with, amongst other things, reducing statelessness. It was submitted that, while it might be true that questions of foreign citizenship are to be resolved by expert opinion, the critical question in these proceedings is not which state would recognise the applicant as a citizen but, rather, whether the decision-maker on remittal could find that there is a real possibility that the applicant might face the prospect of indefinite detention. It was submitted that Perram J's comments in Parmar should be understood having regard to the different facts of that case, which concerned whether the content of certain business websites met the "high" standard required by s 144(1)(b). It was submitted that the fact that the "Act of Croatian Citizenship" annexed to the publication is an unofficial translation is not relevant to the issue in these proceedings.
38 I do not accept the burden of the applicant's submissions that no reliance can be placed on the UNHCR publication under s 144, remembering that this is for the purpose of ascertaining the question of whether remittal would be futile. The UNHCR is an independent international body, specifically tasked with the reduction of statelessness, among other things. Decision-makers on a range of migration decisions routinely place reliance on UNHCR and other United Nations publications. Such decision-makers are not courts of law. The contents of the publication fall well within the purview of such decision-makers, and may not reasonably be doubted to the extent that they canvass historical legal developments of an open and publicly known nature. Accordingly, I am willing to have regard to the contents of the UNHCR publication as material that would likely be before the decision-maker on remittal, confined to the question of discretion, although care must be taken in characterising the facts that may thereby be established, even by such a decision-maker.
39 It should be emphasised that the UNHCR publication does not purport to provide an in-depth analysis of citizenship law governing the various states emerging from the former Yugoslavia, nor would it be safe to rely upon that publication for such analysis. In particular, it provides information about the fact and general effect of the passing of laws addressing the acquisition and loss of citizenship in the states emerging from the former Yugoslavia and, most relevantly, the provision for continuity of citizenship for citizens of the former Socialist Republic of Croatia.
40 The UNHCR publication suggests that it may be doubted that the applicant is in fact stateless. That is because, unsurprisingly, the states emerging from the disintegration of the former Yugoslavia have enacted laws addressing the issue of continuity of citizenship. That position is supported by the particular reference in the publication to the legal continuity of "republican citizenship", and where it is noted that "all citizens of the former Yugoslavia who also had republican citizenship of the Socialist Republic of Croatia on the day of October 8, 1991, regardless of where those persons actually had domicile, became citizens of the Republic of Croatia".
41 However, reference to the UNHCR publication cannot be said to lead inescapably to the conclusion that the decision-maker on remittal would find that there is no possibility that the applicant might be stateless and therefore would not face the prospect of indefinite detention if the cancellation of her visa were not revoked. First and foremost, that is because the UNHCR publication is not to be relied upon as an "in depth analysis" of the current state of the relevant citizenship laws, noting also that it cannot reflect any changes that might have been implemented since its release in 1997. Accordingly, it cannot safely be relied upon as establishing the current arrangements governing citizenship in the states emerging from the former Yugoslavia, let alone establishing those conclusively.
42 Secondly, although the UNHCR publication assuages some doubt about issues of continuity of citizenship, it is not clear on the material before the Parliamentary Secretary that was in evidence that the applicant in fact had citizenship of the former Yugoslavia at 8 October 1991. Relevantly, the submissions accompanying the applicant's request to revoke her visa cancellation stated that "large questions remain as to whether the applicant's place of national origin would recognise her for citizenship". The applicant had also stated in her request for revocation of the cancellation of her visa that she was "NOT SURE?" of her citizenship status, albeit that she had entered "Croatia" in the box for "Country of Citizenship" under the section for personal details. As to the uncertainty surrounding the applicant's status, senior counsel for the applicant made reference to information in the UNHCR publication that suggests that a child in the former Socialist Republic of Croatia would only have acquired citizenship of the Socialist Republic of Croatia automatically if born within the territory and if both parents had Croatian citizenship. He also referred to information suggesting that where only one parent of a child had such citizenship, the parents would need to have agreed for citizenship to be conferred.
43 Upon remittal, it is possible that the Minister, his delegate or the Parliamentary Secretary may readily be able to address the applicant's concerns about statelessness and allay concerns about the prospect of indefinite detention. Such concerns may also be negated by other factual findings open to the decision-maker on the available material. However, in circumstances where there has been a failure to consider the issue and the outcome is other than inevitable, these are matters best left for the primary decision-maker to determine. The final relief sought by the applicant will be granted accordingly.