AHZ16 v Minister for Immigration
[2017] FCCA 2000
•25 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHZ16 v MINISTER FOR IMMIGRATION | [2017] FCCA 2000 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Applicant applied for a Protection visa – application for Protection visa held by a delegate of the Minister of Immigration to be invalid by force of s.91P of the Migration Act 1958 (Cth) as the Applicant appeared to be a dual national of both Syria and Greece – application to Court for judicial review of delegate’s decision – expert evidence of foreign law established that Applicant was a dual national of both countries – no jurisdictional error – delegate’s decision correct – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.47, 91N, 91P, 91Q |
| Cases cited: Neilson v Overseas Projects Corporation of Victoria Ltd and Anor (223) CLR 331 |
| Applicant: | AHZ16 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 311 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 28 September 2016, 29 September 2016 and 2 December 2017 |
| Date of Last Submission: | 2 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2017 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondent: | Mr D Hughes of Counsel |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
THE ORDERS OF THE COURT ARE AS FOLLOWS
The Application filed in this Court on 12 February 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 311 of 2016
| AHZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male aged 46 years, having been born on 28 January 1971.
By Application filed in this Court on 12 February 2016 he seeks to quash and have redetermined a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 27 January 2016 notifying him that his application lodged on 23 December 2015 for a Protection (Class XA) visa (Protection visa) was not a valid application because of ss.91N and 91P of the Migration Act 1958 (Cth) (the Act).
Background
In his Protection visa application lodged on 23 December 2015 the Applicant stated and claimed as follows:
a)he last arrived in Sydney, Australia, on 20 April 2015 from Greece holding a Greek passport;
b)when he arrived in Australia he held a valid visa to do so and was immigration cleared and allowed entry;
c)he was born in Syria and his citizenship at birth was Syrian;
d)both his mother and father were Syrian citizens;
e)his current citizenship is Greek and he acquired Greek citizenship on 18 July 2014 by naturalisation;
f)he identified both Syria and Greece in answer to the requirement to nominate the country or countries that he was able to legally enter and / or reside in, including countries of which he was a citizen or national;
g)he had last left Syria in 1999 when he had completed his military service and then went to Greece where he worked as a steel fixer specialist from February 1993 until he came to Australia;
h)he could not return to Greece because of a conflict with his long-term employer over money and he could not go back to Syria because the situation there is very bad and as a Alawite he would suffer at the hands of fanatic Muslims and forced to join the Syrian army.
I note that it appears from the evidence that on 27 November 2015 the Applicant was granted a Visitor (Subclass 600) visa valid to 24 December 2015.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Delegate’s letter dated 27 January 2016 relevantly stated as follows:
Dear [AHZ16],
Notification of invalid application for Protection (Class XA) visa
This letter refers to your application for a Protection (Class XA) visa, which was lodged at Sydney City Office on 23 December 2015.
I wish to advise you that the application for this visa made by the following applicant(s) was not a valid application:
[AHZ16]
The following information indication that you are a national of Syria and Greece:
·In your application for a Protection visa (Class XA) visa you stated you were born in Syrian (sic) to Syrian parents, therefore you hold Syrian citizenship by virtue of your birth.
·You further stated that you had acquired Greek citizenship on 18 July 2014 and enclosed a copy of the biodate page of your Greek passport.
·You have not provided any evidence that you have renounced your Syrian citizenship.
·Syria and Greece allow dual citizenship.
Your application is therefore invalid because of the application of sections 91N and 91P of the Act. These provisions prevent persons who, at the time of visa application are nationals of more than one country from making a valid application for a Protection (Class XA) visa while they remain in the migration zone. However, the Minister has the power under section 91Q of the Act to determine that section 91P does not apply to you if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising that power.
The Protection (Class XA) visa application that you have lodged will be considered as a request for the Minister to exercise his public interest power under section 91Q of the Act and it will be assessed against the Consideration of purported Protection visa applications by persons with more than one nationality (the guidelines) to determine whether it should be referred to the Minister for consideration. The department will notify you of this outcome.
Relevant Applicable Laws
Pursuant to s.47(3) of the Act, the Minister has no power to consider an invalid visa application.
Sections 91N and 91P fall within Subdivision AK of Division 3 of Part 2 of the Act.
Section 91N relevantly provides:
Non-citizens to whom this Subdivision applies
(1)This Subdivision applies to a non-citizen at a particular time if, at that time, the noncitizen is a national of 2 or more countries.
(2)……………………….
(3)……………………….
(4)……………………….
(5)……………………….
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.
Section 91P relevantly provides:
Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
(1).................................................................................
(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.
Thus, a noncitizen who is “a national of 2 or more countries” under s.91N is, by reason of s.91P, unable to lodge a valid application for a Protection visa unless, pursuant to s.91Q of the Act, the Minister has personally made a determination that s.91P does not apply to the relevant visa application.
Grounds of Attack on Delegate’s Decision in this Court
The Grounds relied upon by the Applicant in the Application filed in this Court are as follows:
1.The Department must accept my application on the basis that on the materials before the Department there was not clear evidence to establish on the balance of probabilities that I can return to Syria a fact which is known by all authorities even though it was assumed that I hold Syrian citizenship by virtue of my birth.
2.I am a citizen of Greece but I have suffered in Greece and my life is in danger and at risk if I am compelled to return to Greece.
3.I am unable to return to either Syria or Greece as I have a genuine fear of harm in both countries.
Consideration
Grounds 2 and 3
These Grounds appear to invoke an impermissible merits review by this Court of his actual substantive protection claims of an inability to return to either Syria or Greece. However, these protection claims were never considered on their merits by the Delegate because the Protection visa application was regarded as invalid.
Ground 1
I infer that this Ground encompasses two submissions, namely:
a)that there was insufficient evidence to justify the Delegate coming to the conclusion that the Applicant was a national of Syria and Greece; and
b)whilst the applicant might be a “formal national” of Syria, according to Syrian law he was not an “effective national” and the legal meaning of “national” in s.91N is to be construed as meaning “effective national”.
In relation to the issue of sufficiency of evidence and whether the Applicant “is a national of 2 or more countries” the Respondent relies upon two expert reports, the first of Ms Mary Deligianni of 24 October 2016 concerning Greek law and the second of Mr Fadi Sarkis of 26 October 2016 concerning Syrian law.
Foreign law is a question of fact to be proved by expert evidence and can relate to both the content of the foreign law and to an extent to the application of the foreign law to the facts of the particular case: Neilson v Overseas Projects Corporation of Victoria Ltd and Anor (223) CLR 331 at 370 [115] and 371 [119]-[120].
Concerning Greek law Ms Deligianni is clearly an expert and in my view her evidence establishes the following:
a)Greek law permits dual citizenship and a person with dual citizenship has the same rights as a Greek national or citizen;
b)under Greek law “nationality” and “citizenship” have a similar meaning and are often used interchangeably;
c)as the Applicant appears to hold an authentic and valid Greek passport, this necessarily means he is a citizen of Greece; and
d)as the holder of an authentic and valid Greek passport the Applicant has the legal right to enter and reside in Greece or another European Union country.
Concerning Syrian law Mr Sarkis is clearly an expert and his evidence in my view establishes the following:
a)a person is deemed to be a Syrian national when born inside or outside Syria to a Syrian father or born in Syria to a Syrian mother and to an unknown father. In other words, an individual acquires Syrian citizenship by birth, regardless of his place of birth as long as his father is a Syrian citizen. If the person is born in Syria to a Syrian mother, but to an unknown father, he or she also acquires Syrian citizenship;
b)as the Applicant was born to a Syrian father and assuming no renunciation or revocation by Syrian legislative decree, the Applicant is a Syrian citizen.
c)Syrian laws do not differentiate between the concept of a Syrian national and a Syrian citizen. A person who is a Syrian national is a Syrian citizen and vice versa;
d)the Syrian Nationality law uses the terms “national” and Syrian “citizen” interchangeably where both terms are interpreted to have the same meaning;
e)the Syrian Constitution uses the terms “Syrian citizens” and “citizenship” when referring to persons holding Syrian nationality;
f)Syrian law recognises dual citizenship of Syrian citizens and if a Syrian citizen acquires a second citizenship in addition to his Syrian citizenship he has the option, but not the obligation, to renounce his Syrian citizenship by an application to the Syrian Minister of Interior who has the option, but not the obligation, to recommend revocation. Renunciation and / or revocation of Syrian citizenship in these circumstances can only be through a legislative decree;
g)based on the assumption that his Syrian citizenship has not been renounced the Applicants dual Syrian-Greek citizenship is recognised under Syrian law;
h)the Applicant has a constitutional right to enter and reside in Syria by reason of Article 38(1) of the Syrian Constitution which provides:
1)A citizen may not be deported from the homeland or denied re-entry to it.
The Applicant has never suggested, and there is no evidence to suggest, that he has renounced or sought revocation of his Syrian citizenship at any time or that it has been revoked by legislative decree.
This expert evidence is supported by the Applicant’s own statements in his Protection visa application recorded in [3] above.
Accordingly, I find that the Applicant “is a national of 2 or more countries” for the purposes of s.91N of the Act and that the word “national” in that section is not to be construed as involving more than the fact of nationality: SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448 per Buchanan, Barker and Robertson JJ. There is no room for the word “national” in that section to be construed as meaning “effective national”: SZQYM v Minister for Immigration and Citizenship (2014) 220 FCR 505 at 508 [8] per Farrell J. As a matter of law, by reason of his dual nationality, the Applicant is “a national of 2 or more countries”, namely Syria and Greece and the Delegate was right to so find in his decision of 27 January 2016 here under review.
Conclusion
All of the Applicant’s three Grounds for judicial review fail. The Applicant has failed to establish that the Delegate’s decision of 27 January 2016 is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 August 2017
0
4
2