1611744 (Refugee)

1611744 (Refugee) [2020] AATA 2225 (18 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611744
COUNTRY(S):  Germany, Nigeria
MEMBER:Mila Foster
DATE:18 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision refusing to grant the first, third, fourth and fifth named applicants protection visas and substitutes a decision that the protection visa application made by the first, third, fourth and fifth named applicants is not valid and cannot be considered.
The Tribunal affirms the decision not to grant the second named applicant a protection visa.

Statement made on 18 June 2020 at 2:17pm
CATCHWORDS
REFUGEE – protection visa – Germany/Nigeria – racial harassment and discrimination – validity of protection visa application – dual citizenship – German Nationality Act – Nigerian Constitution – Nigerian citizenship not ceased upon naturalisation as German citizen – decision under review substituted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 46, 65, 91N, 91P, 91Q
Migration Regulations 1994 (Cth), r 2.07; Schedule 2
CASES
MIMA v Li (2000) 103 FCR 486
SZGME V MIAC (2008) 168 FCR 487
SZOAU V MIAC (2012) 199 FCR 448
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants made a combined protection visa application for the visas on 12 April 2016. They claimed that the second and third named applicants were married (the applicant parents), and that the first, fourth and fifth named applicants were their children. The children are all minors. The applicants claimed they were nationals of Germany. The third named applicant claimed he had previously been a Nigerian national. The first named applicant applied for the protection visa on the basis that he had faced racial discrimination in Germany and would face racial discrimination if he returned. The remaining applicants applied for protection visas on the basis that they were members of the first named applicant’s family unit.
The delegate refused the first named applicant a protection visa pursuant to s.36(3) of the Act on the basis that he had not taken all possible steps to avail himself of his right, as a German national, to enter and reside in a European Union (EU) country. Having refused the first named applicant, the delegate refused to grant the remaining applicants protection visas because they could not satisfy the family membership criteria for the grant of a protection visa.
On review the applicants were invited to attend a hearing to give evidence and present arguments about the issues in the review. All five applicants attended at a hearing on 3 April 2019. The first, second and third named applicants gave evidence at the hearing. The applicants submitted additional evidence and information to the Tribunal after the hearing.
The applicants were represented on review by a migration agent. He made a written submission before the hearing and attended the hearing.
ISSUES IN THE REVIEW
The primary issue in this review is whether the first, second, fourth and fifth named applicants are nationals of Germany and Nigeria.
RELEVANT LAW
Dual nationality and validity of a protection visa
The Act and the Migration Regulations 1994 (the Regulations) prescribe certain requirements for the making of a valid application for a visa: ss.45 to 48A of the Act and r.2.07 of the Regulations. Schedule 1 to the Regulations also sets out certain matters relating to the making of a valid protection visa application. An application for a visa is a valid application if, and only if, it is made in the way required by the Act and the Regulations: ss.45 to 48A of the Act.
An application for a protection visa is valid only if it is not prevented by s.91P of the Act: s.46(1)(d). Section 91P provides that if Subdivision AK of the Act applies to a non-citizen the application is not a valid application. Subdivision AK applies to a non-citizen if, at the relevant time, the non-citizen is a national of two or more countries: s.91N. The Minister has a personal discretionary power to determine that s.91P does not apply to an application if the Minister thinks it is in the public interest to do so: s.91Q. This power can only be exercised by the Minister personally and a written notice to that effect must be issued and tabled in Parliament along with written reasons: s.91Q(4)-(6). Subdivision AK is extracted in the attachment to this decision
Whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. The word ‘national’ in s.91N is not to be construed as involving more than the fact of nationality and no additional enquiry into the non-citizen’s ability to avail himself or herself of protection is to be made, beyond that fact: SZOAU v MIAC (2012) 199 FCR 448.
If there is a reviewable decision but the visa application is not valid, the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li; MIMA v Kundu (2000) 103 FCR 486; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].
Criteria for a protection visa – s.36(2)
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion – s.36(2)(a)
Section 36(2)(a) provides 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 Australia has protection obligations because the person is a refugee.
Complementary protection criterion – s.36(2)(aa)
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa). Member of the same family unit – s.36(2)(b) and (c)
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant (‘family membership criterion’). Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a parent.
Safe third country protection - s.36(3)
Subsection 36(2) of the Act is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Those subsections provide that a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. I note that DFAT published such an assessment in relation to Nigeria on 9 March 2018 however it does not contain information which is relevant to the issues in this matter.
APPLICANTS’ CLAIMS AND EVIDENCE
The following is a summary of the claims and evidence presented by and on behalf of the applicants. The summary focuses on the claims and evidence which are relevant to the issues in the review.
Protection visa application
The information provided on the protection visa application form submitted by the applicants included the following.
The first named applicant was born in Germany on [Date 1]. The second named applicant was his mother and the third named applicant was his father.
He had been a citizen of Germany since birth, his mother and father were German citizens, he was not a citizen or national of any other country and had not been a national or citizen of any other country. He had never been refused, renounced or rescinded citizenship of any other country. He did not have a right to enter or reside, temporarily or permanently, in any country other than his country of nationality.
He lived in Germany until December 2014 and had lived in Australia since then.
He entered Australia [in] December 2014 on a visitor visa (having previously entered and departed [in] September 2014). On 15 June 2015 he was granted a student visa as a dependent. He had not travelled to any other country.
The second named applicant was born in Germany [Date 2]. She had been a citizen of Germany since birth, her mother and father were German citizens, she was not a citizen or national of any other country, and had not previously been a national or citizen of any other country. She had never been refused, renounced or rescinded citizenship of any other country. She did not have a right to enter or reside, temporarily or permanently, in any country other than her country of nationality.
She entered Australia [in] December 2014 on a visitor visa (having previously entered and departed [in] September 2014). On 15 June 2015 she was granted a student visa. She had not travelled to any other country.
The third named applicant was born in Nigeria on [Date 3]. He was a German citizen but had been a Nigerian citizen at birth. He had been a citizen of Nigeria from birth until [May] 2005. His father and mother were Nigerian citizens. He had never been refused, renounced or rescinded citizenship of any other country. He did not have a right to enter or reside, temporarily or permanently, in any country other than his country of nationality.
He lived in Germany from October 2003. He did not indicate where he lived prior to October 2003. He had lived in Australia since December 2014.
He entered Australia [in] December 2014 on a visitor visa (having previously entered and departed [in] September 2014). On 15 June 2015 he was granted a student visa as a dependent. He had not travelled to any other country.
The fourth named applicant was born in Germany on [Date 4]. The second named applicant and the third named applicants were his mother and father.
He has been a citizen of Germany since birth, his mother and father were German citizens, he was not a citizen or national of any other country, and had not previously been a national or citizen of any other country. He had never been refused, renounced or rescinded citizenship of any other country. He did not have a right to enter or reside, temporarily or permanently, in any country other than his country of nationality.
He lived in Germany until December 2014 and had lived in Australia since then.
He entered Australia [in] December 2014 on a visitor visa (having previously entered and departed [in] September 2014). On 15 June 2015 he was granted a student visa as a dependent. He had not travelled to any other country.
The fifth named applicant was born in Australia on [Date 5]. The second named applicant and the third named applicants were her mother and father.
She has been a citizen of Germany since birth, her mother and father are German citizens, she was not a citizen or national of any other country, and had not previously been a national or citizen of any other country. She had never been refused, renounced or rescinded citizenship of any other country. She did not have a right to enter or reside, temporarily or permanently, in any country other than her country of nationality.
She had lived in Australia since December 2014 and had not travelled to any other country.
Submitted in the support of the protection visa application was a statement written by or on behalf of the first named applicant giving his reasons for leaving Germany, copies of the biodata pages of German passports issued to the first, second, third and fourth named applicants, the second and third named applicants’ marriage certificate, and the first, fourth and fifth named applicants’ birth certificates.
According to the marriage certificate the second and third named applicants were married in Germany [in] March 2012. According to the first named applicant’s birth certificate the second named applicant was his mother and [Mr A] was his father. According to the birth certificates of the fourth and fifth named applicants, the second and third named applicants were their parents. The fifth named applicant’s birth certificate states that the first and third named applicants are children of the applicant parents’ relationship.
Pre-hearing submission
Prior to the Tribunal hearing the applicants’ migration agent made a written submission which focussed on the issue of safe third country protection and submitted copies of medical documents relating to the first named applicant’s medical treatment in Germany for [medical condition].
Tribunal hearing
At the hearing I informed the applicant parents about the issues in the review: whether the first, third, fourth and fifth named applicants were nationals of Germany and Nigeria and hence whether their protection visa application was invalid; if they were only nationals of Germany, whether the applicants had third country protection in other countries that were member states of the EU; and the outcome of the second named applicant’s protection visa application if the applicants could be granted protection visas.
The applicant parents gave evidence and presented arguments about those issues on their own behalf and behalf of the applicant children. The second named applicant stated that the first named applicant wished to give evidence about his experiences. All the applicants were present throughout the hearing.
I note here that at the time of the hearing I had overlooked that according to the first named applicant’s birth certificate [Mr A] was his biological father. The information on the protection visa application form, the first named applicant’s written statement and the pre-hearing submission referred to the third named applicant as his father and the second and third named applicants as his parents. And as noted above the fifth named applicant’s birth certificate states that the first named applicant is a child of the second and third named applicants’ relationship. As I outline further below, the second named applicant confirmed after the hearing that [Mr A] was the first named applicant’s biological father and stated that the third named applicant was the first named applicant’s stepfather. She stated there had never been intention to be misleading about the matter.
The first named applicant was an articulate and confident witness. He said that in Germany he was required to take [medication] to attend day care but he had not needed medication in Australia. In Germany he was subjected to racial discrimination in school in the form of derogatory name-calling and pushing. The teachers did not take action against the students who bullied him. In Australia however he was attending school and had friends and had not faced any discrimination. He said he did not want his siblings to experience what he had experienced in Germany.
The applicant parents stated, contrary to their protection visa application, that they had travelled to countries other than Australia. They stated that they travelled to [Country 1] and [Country 2] with the first named applicant, and to [Country 3] and [Country 4] with the first and fourth named applicants. They said that the purpose of those trips was to ascertain whether they could relocate to any of those countries given the discrimination in Germany. They decided those countries were not suitable countries to relocate to because the situation was the same as in Germany, lack of employment opportunities and terrorism. After researching Australia, they decided to visit here. They did not encounter discrimination when they visited and the first named applicant wanted to remain here. They thus returned to Australia in December 2014 to seek protection but applied for student visas on the misleading advice of a migration agent. However, the second named applicant was unable to continue her studies after having the fifth named applicant and they decided they should seek protection as they had initially intended.
Over the course of the hearing, the applicant parents indicated that the third named applicant had also experienced racial discrimination in Germany. The third named applicant indicated that although he had always worked in Germany and had studied there, he was not been given the same opportunities as others. The second named applicant stated that on one occasion the third named applicant was attacked at work by a co-worker who was a foreign national. She said the co-worker was dismissed but nothing else happened to him. The applicant parents stated that Australia was a multicultural country where they had not experienced discrimination, there were greater opportunities, the first named applicant was doing very well and was happy here. They said Australia was their home.
In relation to the discrimination encountered in the European countries they had visited, the second named applicant stated that in [Country 1] people of colour were not tolerated like whites. She said that at restaurants rather than serve the third named applicant, they looked to her. The third named applicant stated that the situation in Europe was the same as in Germany. The first named applicant stated that at a hotel in [Country 1], local children threw his soccer ball away and bullied him. In [Country 3] and [Country 2], racist comments were made.
I confirmed with the third named applicant that as stated in the protection visa application he had acquired Nigerian citizenship by birth and his parents were Nigerian citizens. Asked about his German citizenship, the third named applicant said he acquired it in 2013 on the basis of his marriage. I noted that according to his protection visa application his Nigerian citizenship ceased [in] May 2005 and asked how it came to end then. Contradictorily, the third named applicant responded that it ceased when he became a German citizen. The third named applicant confirmed that he had not renounced his Nigerian citizenship. The second named applicant stated that the third named applicant was naturalised just after the birth of the fourth named applicant but not on the basis of their relationship rather it was because he had been a permanent resident of Germany since 2005, had worked during that time, learnt German, passed the citizenship test and met the requirements to be naturalised.

The second named applicant stated that her parents were German nationals by birth and she was German by birth.
I put to the applicant parents that the primary issue in the review appeared to be whether, based on the laws of Germany and Nigeria, the third named applicant was a national of those countries and whether the first, fourth and fifth named applicants were dual nationals by virtue of being children of a Nigerian national. I explained that under the Australian law, dual nationals could not lodge a valid protection visa application unless the Minister had issued a written notice stating that s.91P did not apply. I told them that the claims made in an invalid protection visa application could not be considered. I noted that there appeared to be no evidence before me that such a notice had been issued by the Minister in relation to their protection visa application. I put to the applicant parents that the relevant Nigerian law indicated that Nigerian citizenship acquired by birth was not forfeited by acquiring citizenship of another country. I put to them that while the President of Nigeria could make a decision renouncing a citizen’s Nigerian citizenship there was no evidence that the third named applicant had renounced his Nigerian citizenship. I put to the applicant parents that it appeared according to German and Nigerian law, that as well as being German nationals the first, fourth and fifth named applicants were also nationals of Nigeria by virtue of their father being a Nigerian citizen.
In response the third named applicant stated that he had not returned to Nigeria since leaving. He said he could not return to Nigeria with his children given the conditions, the corruption, there. The second named applicant agreed that the third named applicant was a dual German and Nigerian national but said she had no knowledge about whether her children were Nigerian citizens. She said she was not aware of a notice having been issued by the Minister in their case.
I put to the second named applicant that if the protection visa application was invalid insofar as it related to the first named applicant, it would seem her application could not succeed because she had not made claims of her own and had made her application on the basis of family membership. The second named applicant had no comment.
In his submissions as the end of the hearing the applicants’ migration agent stated that while he was aware of s.91P and agreed that the third named applicant was a Nigerian national, Nigeria was a volatile place and the third named applicant was in Australia for the safety of children.
Post-hearing evidence
After the hearing the applicants provided a certified copy and translation from German into English of a German Citizenship Certificate issued to the third named applicant [in] 2013 which states that he became a German citizen through the process of naturalisation on [in] 2013. Also submitted was a certified copy of the biodata page of the expired Nigerian passport issued to the third named applicant in Germany [in] 2010 and two German visas issues to him. The nature of those visas is not apparent as they were not translated.
Having realised the oversight in relation to the first named applicant’s biological father, the applicants were invited to provide additional information about the first named applicant’s father. The second named applicant responded stated that [Mr A] was the first named applicant’s biological father and that the third named applicant was his stepfather. She said that the third named applicant had been in the first named applicant’s life from an early age, was raised as his son and called him ‘dad’ and hence was his father. She stated that there had been no intention to be misleading. The second named applicant also stated that [Mr A] was a Nigerian citizen and held no other citizenship at the time of the first named applicant’s birth. She stated that to the best of her knowledge [Mr A] was born in Nigeria and had acquired Nigerian citizenship by birth.
After receiving the above information I decided that a further hearing on the issue of the first named applicant’s citizenship was not required. The information put to the applicant parents at the hearing regarding the first named applicant’s possible Nigerian citizenship was relevant given that at the time of his birth his biological father was a Nigerian citizen by birth. Further, as there was no intention to be misleading about who the first named applicant’s father was, the applicant mother and stepfather had had the opportunity to give evidence and present arguments about whether the first named applicant’s acquired Nigerian citizenship by virtue of his biological father’s Nigerian citizenship. I am thus satisfied that the applicant parents were given the opportunity to give evidence and present arguments at the hearing about the issue of whether the first named applicant was a national of Nigeria by virtue of his biological father’s Nigerian nationality.
FINDINGS
Having considered the claims and evidence before me I have concluded that the protection visa application made by the first, third, fourth and fifth named applicants is not valid because they are nationals of Germany and Nigeria, and that the decision refusing the second named applicant a protection visa should be affirmed. My reasons are as follows.
The applicants’ relationships
I accept on the basis of the marriage certificate that the second and third named applicants are spouses who married in Germany [in] March 2012.
I accept on the basis of the birth certificates of the fourth and third named applicants that the second and third named applicants are their biological parents.
I accept on the basis of the first named applicant’s birth certificate and the additional post-heairng information that the second named applicant and [Mr A] are his biological parents. I accept on the evidence before me that the third named applicant is the first named applicant’s stepfather.
Nationality
In making the following findings, I have had regard to the relevant laws of Germany and Nigeria. Specifically, the German Nationality Act 1913[1] (the German Nationality Act) and Constitution of the Federal Republic of Nigeria 1999[2] (the Nigerian Constitution).
Second named applicant
[1] in particular Chapter III Citizenship, ss.25-30.
Section 4(1) of the German Nationality Act states that German citizenship is acquired by birth if one parent possesses German citizenship. The second named applicant has a German passport stating that she was born in Germany and is a German national. She has stated that her parents were German citizens by birth. I thus find that the second named applicant acquired German citizenship by birth.
Third named applicant
The third named applicant claims and his expired Nigerian passport confirms that he was born in Nigeria on [Date 3]. He claims his parents are Nigerian citizens born in Nigeria and that he acquired Nigerian citizenship by birth. Subsection 25(1)(b) of the Nigerian Constitution confers Nigerian citizenship by birth on every person born in Nigeria on or after 1 October 1960 either of whose parents or grandparents is a citizen of Nigeria. I thus find that the third named applicant acquired Nigerian citizenship by birth pursuant to s.25(1)(b) of the Nigerian Constitution. I do not accept that his Nigerian citizenship ceased [in] May 2005. There is no evidence to support that claim.
I find on the basis of the third named applicant’s German passport and the German Citizenship Certificate that he was naturalised as a German citizen [in] May 2013. The certificate does not state on what basis the third named applicant was naturalised. There is inconsistency in the evidence about the basis on which he was naturalised. He stated it was on the basis of his marriage to the second named applicant while the second named applicant stated it was on the basis of his 8-year residence in Germany and other criteria he satisfied. A person can be naturalised on either basis under the German Nationality Act: ss. 9 and 10. On the evidence before me either could be the basis on which the first named applicant was naturalised given he claims he began living in Germany in October 2003 and married [in] March 2012. There is no evidence before me to suggest that he was naturalised on any other basis. Thus, I find that the first named applicant was naturalised pursuant to either ss.9 or s.10.
Subsection 28(1) of the Nigerian constitution provides that a Nigerian citizen, other than a citizen of Nigeria by birth, will forfeit their Nigerian citizenship if they acquire or retain the citizenship or nationality of another country of which they are not a citizen by birth. I thus find that as a citizen of Nigeria by birth the third named applicant did not forfeit his Nigerian citizenship by acquiring German citizenship.
I note that a condition of being naturalised pursuant to s.9 or s.10 of the German Nationality Act, is that the person must give up their previous citizenship unless the condition is waived under s.12. The condition is waived under s.12 ‘if the foreigner is unable to give up his or her previous citizenship, or can do so only under very difficult conditions’. Under s. 29 of the Nigerian Constitution a Nigerian citizen aged 18 years and older[3] who wishes to renounce their Nigerian citizenship should make a declaration for the renunciation which the President will cause to be registered and upon registration the Nigerian citizen will cease to be a Nigerian citizen. However, the third named applicant stated in the protection visa application and confirmed at hearing that he has not renounced his Nigerian citizenship. His claim was that his Nigerian citizenship ceased upon his naturalisation as a German citizen. However, as I have found, that could not occur under the Nigerian Constitution in the applicant’s case. I thus find on the evidence before me that the condition was waived in the case of the third named applicant.
[3] Or any married woman (of any age).
I therefore find that the third named applicant is and was at the time he applied for the protection visa a national of Nigeria and Germany.
Fourth and fifth named applicants
It is claimed that the fourth named applicant has been a German citizen since birth. On the basis of his birth certificate and German passport and as both his parents were German nationals at the time of his birth, I find that the fourth named applicant acquired German citizenship by birth pursuant to s.4(1) of the German Nationality Act.
At the time of the fifth named applicant’s birth her parents were German citizens. I thus find that she acquired German citizenship by birth pursuant to s.4(1) of the German Nationality Act. I note that s.4(4), which applies to some children born aboard to German parents, does not apply to exclude the fifth named applicant from acquiring German citizenship in accordance with s.4(1) as neither parent was born after 31 December 1999. I also note that Australia’s laws do not confer Australian citizenship upon he by virtue of her birth in Australia.
Subsection 25(1)(c) of the Nigerian constitution confers Nigerian citizenship by birth on every person born outside Nigeria either of whose parents is a citizen of Nigeria. As the children of the third named applicant, I find that the fourth and fifth named applicants acquired Nigerian citizenship by birth pursuant to that provision. As citizens of Nigeria by birth the fourth and fifth named applicants did not forfeit their Nigerian citizenship by acquiring German citizenship by birth. It has not been claimed and clearly as minor children they could not have made a declaration renouncing their Nigerian citizenship under s.29 of the Nigeran Constitution.
I thus find that the fourth and fifth named applicants have been nationals of Germany and Nigeria since birth and hence were nationals of those two countries when the protection visa application was made on their behalf.
First named applicant
The first named applicant has a German passport stating he is a German national. I have accepted this his mother is a German national. I thus find that he has acquired German citizenship by birth pursuant to s.4(1) of the German Nationality Act.
I accept on the basis of the first named applicant’s birth certificate and the information provided by his mother that his biological father, [Mr A], was a citizen of Nigeria at the time of his birth. Thus, pursuant to ss.25(1)(c) of the Nigerian constitution he acquired Nigerian citizenship by birth. Further, pursuant to s.28(1) his Nigerian citizenship was not forfeited by his acquisition of German citizenship. It has not been claimed and as a minor child he could not have made a declaration renouncing their Nigerian citizenship under s.29 of the Nigeran Constitution.
Therefore, I find that the first named applicant has been a national of Germany and Nigeria since birth and was a national of those two countries at the time the protection visa application was made on his behalf.
Validity of protection visa application
I have found that the first, third, fourth and fifth named applicants were nationals of Germany and Nigeria when their protection visa application was made. There is no evidence that the Minister has issued a notice pursuant to s.91Q that s.91P does not apply to the applicants. Therefore, by operation of ss.91N(1) and 91P, the protection visa application made by the first, third, fourth and fifth named applicants is not valid and consequently cannot be considered.
Second named applicant
The second named applicant applied for the protection visa on the basis of family membership and has not made protection claims of her own. The protection visa application made by the other applicants is not valid. Therefore, the second named applicant does not satisfy the criteria for a protection visa in ss.36(2)(a), (aa), (b) or (c).
DECISION
The Tribunal sets aside the decision refusing to grant the first, third, fourth and fifth named applicants protection visas and substitutes a decision that the protection visa application made by the first, third, fourth and fifth named applicants is not valid and cannot be considered.
The Tribunal affirms the decision not to grant the second named applicant a protection visa.
Mila Foster
Member

ATTACHMENT - EXTRACT FROM MIGRATION ACT 1958
Subdivision AK - Non-citizens with access to protection from third countries
Section 91M    Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.
Note:    For protection visas, see section 36.
Section 91N    Non-citizens to whom this Subdivision applies
(1)This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.
(2)This Subdivision also applies to a non-citizen at a particular time if, at that time:
(a)     the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country) apart from:
(i)Australia; or
(ii)a country of which the non-citizen is a national; or
(iii)if the non-citizen has no country of nationality — the country of which the non-citizen is an habitual resident; and
(b)     the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and
(c)     a declaration by the Minister is in effect under subsection (3) in relation to the available country.
(3)The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:
(a)     declare in writing that a specified country:
(i)provides access, for persons seeking protection, to effective procedures for assessing their need for protection; and
(ii)provides protection to persons to whom that country has protection obligations; and
(iii)meets relevant human rights standards for persons to whom that country has protection obligations; or
(b)     in writing, revoke a declaration made under paragraph (a).
(4)A declaration made under paragraph (3)(a):
(a)     takes effect when it is made by the Minister; and
(b)  ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b).
(5)   The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.
Determining nationality
(6)For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7)   Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
Section 91P    Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
(1)  Despite any other provision of this Act but subject to section 91Q, if:
(a)  this Subdivision applies to a non-citizen at a particular time; and
(b)  at that time, the non-citizen applies, or purports to apply, for a visa; and
(c)  the non-citizen is in the migration zone and has not been immigration cleared at that time;
neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.
(2)  Despite any other provision of this Act but subject to section 91Q, if:
(a)  this Subdivision applies to a non-citizen at a particular time; and
(b)  at that time, the non-citizen applies, or purports to apply, for a protection visa; and
(c)  the non-citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.
Section 91Q    Minister may determine that section 91P does not apply to a non-citizen
(1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2)  For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.
(3)  The power under subsection (1) may only be exercised by the Minister personally.
(4)   If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a)  sets out the determination; and
(b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5)  A statement under subsection (4) is not to include:
(a)  the name of the non-citizen; or
(b)  any information that may identify the non-citizen; or
(c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned — the name of that other person or any information that may identify that other person.
(6)   A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a)   if the determination is made between 1 January and 30 June (inclusive) in a year — 1 July in that year; or
(b)  if the determination is made between 1 July and 31 December (inclusive) in a year — 1 January in the following year.
(7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

[2020] AATA 2225

18 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction