BTX17 v Minister for Immigration (No.2)
[2020] FCCA 2270
•21 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTX17 & ANOR v MINISTER FOR IMMIGRATION (No.2) | [2020] FCCA 2270 |
| Catchwords: MIGRATION – Application for extension of time to make application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decisions that applications for protection visas are not valid applications because of s.91P of the Act because the applicants are said to be nationals of Kenya and Zimbabwe – order made – whether question whether applicants are nationals of two or more countries is a question about the existence of a jurisdictional fact – question is about a jurisdictional fact – whether applicants are nationals of both Kenya and Zimbabwe – applicants nationals of Kenya but not satisfied nationals of Zimbabwe – relief granted. |
| Legislation: Australian Constitution, s.44 Migration Act 1958 (Cth), ss.46, 47, 65, 91N, 91P, 476, 477(1), 477(2) |
| Cases cited: AHZ16 v Minister for Immigration and Border Protection [2018] FCA 164 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 Bankstown Municipal Council v Fripp (1919) 26 CLR 385 Bunbury v Fuller (1853) 9 Ex 111 Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5 Lichtenstein v Guatemala [1955] I.C.J. 4 Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 Minister for Immigration and Citizenship v Le [2007] FCA 1318 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 Sykes v Cleary (No 2) (1992) 176 CLR 77 SZOAU v Minister for Immigration and Citizenship [2012] FCAFC 33 SZQYM v Minister for Immigration and Citizenship [2014] FCA 427 The King v Burgess; Ex parte Henry (1936) 55 CLR 608 Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8 |
| First Applicant: | BTX17 |
| Second Applicant: | BTY17 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 1250 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 13 February and 16 March 2020 |
| Date of Last Submission: | 19 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2020 |
REPRESENTATION
| Litigation guardian in person, on behalf of the first and second applicants, and assisted by Mr H Ford with leave of the Court |
| Counsel for the Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period provided by s.477(1) of the Act for making an application under s.476 of the Act in relation to the decisions communicated to each of the applicants by letters dated 16 February 2017 that their applications for a protection visa made on 9 February 2017 were not valid applications for a visa is extended to 26 April 2017.
Each of the decisions communicated to each of the applicants by letters dated 16 February 2017 that their applications for a protection visa made on 9 February 2017 were not valid applications for a visa is set aside.
The respondent consider each of the protection visas referred to in orders 1 and 2 according to law.
The respondent pay to the applicants’ litigation guardian such costs as the litigation guardian may be entitled as an unrepresented party.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1250 of 2017
| BTX17 |
First Applicant
| BTY17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are twin infant brothers. They were born in Australia to parents who are not citizens or permanent residents of Australia.
On 9 February 2017 the parents lodged on behalf of each of the applicants an application for a Protection (subclass 866) visa (Protection visa). By letters dated 13 February 2017 addressed to each of the applicants, an officer of what was then known as the Department of Immigration and Border Protection (Department) stated that each of the applications for a Protection visa had been assessed as a valid application.
By letters dated 16 February 2017 addressed to each of the applicants, however, a different officer of the Department recorded a decision (Decision) that each of the applications for a Protection visa was not valid because of s.91N and s.91P of the Migration Act 1958 (Cth) (Act). The effect of these provisions is that an application for a protection visa made in the migration zone by a non-citizen is not a valid application if the non-citizen “is a national of 2 or more countries”. The officer decided the applicants were citizens of both Zimbabwe and Kenya; and the officer so found because the applicants’ father (father) is a national of Zimbabwe, and the applicants’ mother (mother) is a national of Kenya; and, under the laws of Zimbabwe and Kenya, both of the applicants are citizens of Zimbabwe and of Kenya.
On 20 April 2017 the applicants filed an application in this Court for remedies under s.476 of the Act in relation to the Decision. This occurred more than the 35 day period provided for by s.477(1) of the Act. The applicants did not, however, in their form of application claim an order under s.477(2) of the Act extending the time prescribed by s.477(1) of the Act. This deficiency was remedied at the hearing on 13 February 2020 when I permitted the applicants’ father, who had been appointed litigation guardian of the applicants, to prepare and file in Court an application for an order under s.477(2) of the Act. The Minister did not oppose my making an order extending time under s.477(2); and I am satisfied that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act.
Before I identify the questions that arise on the application before me, it will be necessary to describe the background to the applications for the Protection visas, and the course of the proceeding before me.
Background
In 2008 the father applied at the Department’s office in Nairobi for a subclass TU-572 (Student (Temporary)) visa.[1] In support of that application the father submitted a joint affidavit he made with his former wife on 2 September 2004.[2] In that affidavit the father and his former wife deposed they were both Kenyan citizens by birth.
[1] Affidavit of A M Moss 28.05.2018, [5(a)]
[2] Affidavit of A M Moss 28.05.2018, [6]; annexure “AM-3”
On 26 August 2016 the applicants and their parents applied for a subclass WE-050 Bridging E (Class WE) visa.[3] In support of that application the father and the mother submitted the following documents:
a)A “Notice of the Birth of a Child born outside Zimbabwe to citizens of Zimbabwe otherwise than by descent” dated 25 August 2016.[4] That document relates to the first applicant, whose name is recorded as [EMK]. It purports to be issued by the Zimbabwe Embassy in Canberra. It records the father’s and mother’s names, [LKM] and [SK] respectively.
b)A “Notice of the Birth of a Child born outside Zimbabwe to citizens of Zimbabwe otherwise than by descent” dated 25 August 2016.[5] That document relates to the second applicant, whose name is recorded as [JTK]. It, too, purports to be issued by the Zimbabwe Embassy in Canberra. It records the father’s and mother’s names, [LKM] and [SK] respectively.
c)A certificate of marriage issued on 2 November 2012 in relation to the marriage of the applicants’ parents on 19 October 2012.[6]
d)A document titled “Certified Copy of an Entry of Birth Registered in the District of Mutare in Zimbabwe” in relation to the mother.[7] The document appears to have been issued in 2016 by the Zimbabwean Registrar-general of Births and Death.
e)A document titled “Certificate of Birth” in relation to the father issued in 1999 under the Kenyan Births and Deaths Registration Act.[8]
[3] Affidavit of A M Moss 28.05.2018, [5(b)]
[4] Affidavit of A M Moss 28.05.2018, [7(a)]; annexure “AM-4”
[5] Affidavit of A M Moss 28.05.2018, [7(b)]; annexure “AM-4”
[6] Affidavit of A M Moss 28.05.2018, [7(c)]; annexure “AM-4”
[7] Affidavit of A M Moss 28.05.2018, [7(d)]; annexure “AM-4”
[8] Affidavit of A M Moss 28.05.2018, [7(e)]; annexure “AM-4”
On 14 December 2016 the applicants and their parents applied for another subclass WE-050 Bridging E (Class WE) visa.[9] In support of that application, the father and mother submitted the following documents:
a)A document titled “Certified Copy of an Entry of Birth Registered in the District of Harare in Zimbabwe”.[10] The Minister submits this relates to the first applicant, although the name given to the person in relation to whom the certificate is issued is [EMM], not as [EMK]. The father’s and mother’s names are recorded, however, as [LKM] and [SM] (being the mother’s maiden name), but the mother’s name next to “signature or mark” is recorded as [SK].
b)A document titled “Certified Copy of an Entry of Birth Registered in the District of Harare in Zimbabwe”.[11] The Minister submits this relates to the second applicant. The name given to the person in relation to which the certificate is issued is [JTM]. The father’s and mother’s names are also recorded.
[9] Affidavit of A M Moss 28.05.2018, [5(c)]
[10] Affidavit of A M Moss 28.05.2018, [8(a)]; annexure “AM-5”
[11] Affidavit of A M Moss 28.05.2018, [8(b)]; annexure “AM-5”
Each application for a Protection visa, which appears to have been prepared by the mother and father, records the father was born in Kenya, and the mother was born in Zimbabwe. Each application claims the applicants cannot return to Kenya with the mother because she does not have rights to live in Kenya; and the mother will be subjected to persecution by state security agencies if she returns to Zimbabwe.
Grounds of application and course of proceeding
The application to this Court was signed by Mr Ford as lawyer for the applicants. The application contains the following grounds (errors in original):
1.That the delegate to the Minister made a jurisdictional error by declaring the applications as invalid applications and took irrelevant consideration to reach the decision which is the application of sections 91N and 91P of the Migration Act 1958.
2.The delegate made an error of law while reaching the decision to declare the applicants as duel nationals without having definite answer as to their exact citizenships.
3.Both the applicants were born in Australia [in 2016].
4.The mother of the applicants is Zimbabwean citizen and the father is citizen of Kenya.
5In the decision, the delegate acknowledged that according to the Citizenship of Zimbabwe Act (as amended up to Act 12/2003) the applicants were not awarded citizenship of Zimbabwe because their father was not a Zimbabwean citizen. As per this section of the Act, it is mandatory for the father to be the citizen of Zimbabwe and mother as a citizen of Zimbabwe does not suffices for her children to become citizens of Zimbabwe.
6.Further down at paragraph 3, the delegate itself negated its afore mentioned assertion of the process of Zimbabwean citizenship and quoted section 36 (2) of the Act where it says, persons born outside Zimbabwe are Zimbabwean citizens by descent if, they were born,
a, Either of their parents or any of their grandparents was a Zimbabwean citizen by birth or descent.
b, Either of their parents was a Zimbabwean citizen by registration.
7.There is a huge contradiction and inconsistencies in paragraphs 2 and 3 as to the criteria of citizenship of Zimbabwe for children born outside of Zimbabwe.
8.The delegate made an error of law at paragraph 5 where it declared the applicant’s father as a citizen of Zimbabwe. The applicant’s father is not the citizen of Zimbabwe and never been the citizen of Zimbabwe but he is the citizen of Kenya.
9.The applicants believes that he has a good case with every likelihood of success.
10.It is in interest of justice and fairness that this application may be decided on its merits.
11.The applicant reserves the right to add, amend or delete any of the grounds in support of this application.
These grounds are directed to the Decision; the grounds claim the Decision is affected by various errors and, for that reason, it must be set aside. The Minister, on the other hand, submits the relevant question is not whether the Decision is affected by error, but whether, on the evidence that is before the Court, the applicants are nationals of two or more countries within the meaning of s.91N of the Act. In other words, the Minister submits that whether the applicants are nationals of two countries is a “jurisdictional fact”; and the Minister submits that, on the evidence before the Court, the applicants are nationals of both Zimbabwe and of Kenya.
By email sent to my associate on 8 January 2020 the Minister’s lawyers stated they were uncertain whether Mr Ford still represented the applicants because, the lawyers stated, Mr Ford was not currently listed as having a practising certificate on the register of practitioners of the Australian Capital Territory Law Society website. At my direction, my associate sent an email to Mr Ford requesting that he inform the Court whether he is still acting on behalf of the applicants and, if he is not representing the applicants, to ensure he complies with r.9.03 of the Federal Circuit Court Rules 2001 (Cth).[12] Mr Ford responded by email sent on 4 February 2020 in which he said that he proposed to appear at the hearing “as a friend of the Court”.
[12] Which deals with the withdrawal of lawyers from the record.
At the hearing on 13 February 2020 I heard extensive argument on whether I should permit Mr Ford to assist the father. I determined that argument by granting Mr Ford leave to provide such assistance as the father were to require in reading out his written submissions, and in the adducing of evidence. This leave proved inadequate, because the father appeared to be reluctant to say anything without first consulting with Mr Ford. As the hearing progressed, I permitted Mr Ford to speak on behalf of the father and, as the hearing progressed, Mr Ford assumed the role of advocate for the father.
At the hearing on 13 February 2020 counsel for the Minister read an affidavit of Mr Moss that annexed, among other things, a report prepared by Dr Bronwen Manby headed “The citizenship laws of Kenya and Zimbabwe”. Counsel for the Minister commenced his submissions, but he was unable to complete them in the time that was allocated for the hearing. I therefore adjourned the hearing part-heard to 16 March 2020.
On 15 March 2020 the applicants filed a document titled “Applicants [sic] Further Written Submissions”. That document indicated the applicants intended to obtain evidence in response to the report of Dr Manby, and also to cross-examine her. At the hearing on 16 March 2020 I asked Mr Ford whether it was the applicants’ intention to apply for an adjournment. After discussion Mr Ford applied for an adjournment which the Minister opposed. I dismissed the application for an adjournment, but did so on the basis that I would make an order allowing the applicants to file and serve by 17 April 2020 an application in a case for leave to file an amended application, and evidence in support.[13] I then heard submissions on the grounds stated in the application, and the written submissions on which the parties relied. At the end of the hearing I made orders that included the following:
[13] BTX17 & Anor v Minister for Immigration [2020] FCCA 2304
3.By 17 April 2020 the applicants file and serve:
a.an application in a case for leave to file an amended application, such amended application to be attached to the application in a case; and
b.file and serve all affidavits on which the applicants rely both in support of the application in a case and, if leave is granted to amend the application, the amended application.
4.If by 17 April 2020 the applicants do not file an application in a case, judgment in this matter will stand reserved as from 17 April 2020, and Judge Manousaridis will be at liberty to give judgment on the basis of the application as filed.
The applicants have not filed an application in a case. Instead, on 19 April 2020, Mr Ford sent an email to my associate attaching what Mr Ford said was an “experts [sic] report in the matter”. That is a reference to a document titled “The Citizenship Laws of Zimbabwe Expert Opinion of Her Excellency Ambassador Jacqueline Zwambila Former Zimbabwe Ambassador to Australia and New Zealand”. That report is annexed to an affidavit, apparently made by Ms Zwambila. The lawyer for the Minister responded by email sent to my associate and Mr Ford on 21 April 2020 in which she stated:
As the applicants did not file an application in a case by 17 April 2020, the Minister is proceeding on the basis that, consistently with the terms of order 4, his Honour will be giving judgment based on the application filed on 20 April 2017 and without reference to or consideration of the Affidavit of Ms Zwambila filed on 19 April 2020.
For reasons that will become apparent later, it is unnecessary to determine whether I should consider the affidavit of Ms Zwambila.
Questions arising
I will begin by considering the relevant portions of s.91N and s.91P of the Act, being the provisions the Departmental officer decided operated to prevent the application for a Protection visa each of the applicants made from being a “valid application” for a visa. Of particular relevance is the requirement that the applicant for a Protection visa “is a national of 2 or more countries” (dual nationality condition). I will then address the following questions:
a)Is the dual nationality of each of the applicants a condition the Minister (or some other person), and only the Minister (or some other person) must be satisfied exists; or is the existence or non-existence of the dual condition a matter to be determined by this Court. In other words, is the dual nationality condition a “jurisdictional fact”?
b)Assuming the existence or non-existence of the dual nationality condition is a “jurisdictional fact”, is it for the Minister to establish that the dual nationality condition exists or for the applicants to establish the dual nationality precondition does not exist?
c)Assuming the existence or non-existence of the dual nationality condition is a “jurisdictional fact” is the dual nationality condition satisfied or, in the alternative, not satisfied in relation to each of the applicants?
Statutory provisions
Sections 91N and 91P of the Act are contained in Subdivision AK of Div.3 of Part 2 of the Act. Division 3 is headed “Visas for non-citizens”, and subdivision AK is headed “Non-citizens with access to protection from third countries”. Section 91N of the Act identifies the various circumstances in which Subdivision 2 applies. One of those is s.91N(1) of the Act, which provides that “[t]his 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”. The significance of Subdivision AK applying to a person is that s.91P(2) of the Act potentially applies to that person. That subsection provides as follows:
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, if a non-citizen is a “national of 2 or more countries”, and the non-citizen lodges an application for a Protection visa when he or she is in the migration zone but who has not been immigration cleared, the application will not be a “valid application”.
The Act does not define “national”; but that word has a well-known meaning. In any given context it simultaneously denotes two things, a particular person (or class of persons), and a relationship between that person (or class of persons) and a State. The relationship it denotes is that of “a subject of a certain State, and therefore its citizen”.[14] At common law “the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of the foreign State”.[15] That reflects the principle of international law that “it is for every sovereign State . . . to settle by its own legislation the rules relating to the acquisition of its nationality”.[16] The common law position is also a product of necessity; for “it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status”.[17] It is not, however, in all cases or for all purposes that the law of a state is permitted to define the nationality of a person. That is the case in international law where a state exercises diplomatic protection, where the “national” requires a genuine connection with the state in question;[18] and it is the case when applying s.44 of the Constitution.[19]
[14] The King v Burgess; Ex parte Henry (1936) 55 CLR 608, at page 649 (Latham CJ)
[15] Sykes v Cleary (No 2) (1992) 176 CLR 77, at pages 105-106
[16] Lichtenstein v Guatemala [1955] I.C.J. 4, at page 20 quoted in Sykes v Cleary (No 2) (1992) 176 CLR 77, at page 106
[17] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, at [37]
[18] Sykes v Cleary (No 2) (1992) 176 CLR 77, at page 106, referring to Lichtenstein v Guatemala [1955] I.C.J. 4
[19] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, at [39]-[46]
Section 91N of the Act does not assume that the question whether a person is a “national of 2 or more countries” is to be determined by the common law; subsection 91N(6) provides that “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”. That subsection may be broader than the common law or international law. It requires that the question whether a person is a national of a particular country be determined “solely” by reference to the law of the country in question. Read literally, s.91N(6) does not permit limiting the effect to a foreign law in relation to citizenship because, for example, the foreign law does not require a genuine connection with the State in question.
There is one other matter that may be noted. In SZOAU v Minister for Immigration and Citizenship, Robertson J said that, for the purposes of s.91N(1), “no additional inquiry into the non-citizen’s ability to avail himself or herself of protection is to be made, beyond the fact of nationality”.[20] This view was repeated by Perry J in AHZ16 v Minister for Immigration and Border Protection, where her Honour said that “no additional inquiry into the non-citizen’s ability to avail herself or himself of protection is to be made beyond the bare fact of nationality for the purposes of s 91P”.[21]
[20] SZOAU v Minister for Immigration and Citizenship [2012] FCAFC 33, at [61] (Barker K agreeing, at [9])
[21] AHZ16 v Minister for Immigration and Border Protection [2018] FCA 164, at [20]
Jurisdictional fact?
It would be useful if I identify the legal principles I consider relevant to determining whether the dual nationality condition is a “jurisdictional fact”.
Legal principles
Before a power repository can exercise a power conferred on him or her he or she must be satisfied that certain facts or state of affairs exist or do not exist (relevant facts). The relevant facts of whose existence or non-existence a power repository in any given case must be satisfied depends on the terms of the particular legislative provision that confers the power on the power repository.
In most cases – probably in the vast majority of cases – whether relevant facts exists or do not exist is a matter solely for the power repository to determine. The power repository’s determination in these circumstances is not immune from challenge in a court for jurisdictional error; but on such challenge a court cannot decide whether the relevant facts exist or do not exist. A successful challenge, at least in most cases, will result in the power repository being required to consider again whether he or she should be satisfied of the existence or non-existence of the relevant facts.
In some cases, however, it is not within the sole power of the power repository to determine relevant facts; a court whose jurisdiction has been properly invoked must do so. The expression “jurisdictional facts” is used to denote this class of relevant facts. They are relevant facts that a power repository must determine exist or do not exist before they can exercise the power reposed in them; but it is a court whose jurisdiction has been properly invoked that has the ultimate authority to determine whether the relevant facts exist or do not exist.
There are general statements in the cases which attempt to describe facts a power repository is required to make that are “jurisdictional facts”. A basic and well-rehearsed idea is that jurisdictional facts are facts that must exist at the outset before a tribunal or inferior court with limited jurisdiction can lawfully commence to do that which it has jurisdiction to do. Sometimes such facts were referred to as “collateral facts” as opposed to the “merits”, being facts the tribunal or inferior court had jurisdiction to determine. This distinction appears in the following passage from the judgment of Coleridge J in Bunbury v Fuller:[22]
Now it is a general rule, that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior court.
[22] Bunbury v Fuller (1853) 9 Ex 111, at page 140 (quoted in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, at pages 196 and 189-190)
A common legislative drafting technique to limit the range of facts that could be characterised as jurisdictional facts has been to predicate a power repository’s jurisdiction on the power repository’s holding an opinion, or being satisfied, that certain facts exist or do not exist.[23] In those circumstances, a power repository’s holding or not holding an opinion, or being satisfied or not satisfied that certain facts exist or do not exist, are themselves treated as jurisdictional facts liable to be reviewed for jurisdictional error.[24]
[23] See Bankstown Municipal Council v Fripp (1919) 26 CLR 385, at page 403
[24] See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, at [37], where Gummow and Hayne JJ said: “The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned.”
More recently broader formulations have been given of what constitute “jurisdictional facts”. It has been said that the “term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion”;[25] and that “jurisdictional fact” is a matter which the power depository “had jurisdiction to decide as an essential preliminary to the exercise of its substantive jurisdiction”.[26]
[25] Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5, at [28]
[26] Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25, at [31] (French CJ)
An approach that has proved influential is that of Spigelman CJ in Timbarra Protection Inc v Ross Mining NL.[27] His Honour said that a “jurisdictional fact” is “a convenient way of expressing a conclusion – the result of a process of statutory construction”.[28] The object of such construction is the text of a statutory (or other legislative) provision or provisions which prescribes the circumstances in which action may be taken under a statute (or other legislative instrument). The circumstances prescribed by the statutory text will constitute “jurisdictional facts” if, on the proper construction of the statutory text, the circumstances consist of a fact or facts the presence or absence of which will invalidate action under the statute. That, at any rate, is how I understand the following passage from his Honour’s judgment:[29]
The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute . . . . The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (‘objectivity’) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (‘essentiality’) . . . .
‘Objectivity’ and ‘essentiality’ are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of ‘essentiality’ will often suggest ‘objectivity’.
[27] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8
[28] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [39]
[29] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [37], [38]
Spigelman CJ identified some of the factors that are relevant to determining whether a fact on the basis of which statutory action may or may not be taken as a jurisdictional fact. One factor is where “a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker – “opinion”, “belief”, “satisfaction””. Where this factor is present “the construction is often, although not necessarily, against a conclusion of jurisdictional fact”, but where “such words do not appear, the construction is more difficult”.[30]
[30] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [42]
A second factor which his Honour said is an important “and usually determinative” indication of parliamentary intention is:[31]
[W]hether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.
[31] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [44]
A third factor is whether the “factual reference in a statutory formulation” relates to “the instigation of a statutory decision-making process”. Where that is the case, it is more likely “by reason of its extrinsic nature, to turn on an objective fact”.[32]
[32] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [50]
As counsel for the Minister submitted, the approach of Spigelman CJ in Timbarra is consistent with the judgments in Corporation of Enfield v Development Assessment Commission & Anor.[33] The principal question before the High Court in that case was whether the question whether a particular development was “general industry” as opposed to “special industry” and, for that reason, was a “non-complying development”, was one for, and only for, the relevant authority to determine. The plurality answered that question in the negative, principally because the text of the statutory provision to which the determination of that question was relevant provided that (subject to exceptions) the relevant authority must not grant a provisional development plan in relation to a “non-complying development”; and the text of the relevant provision indicated that “it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by [the relevant statutory provision] applies because the development is a “non-complying” development”. Nor did the relevant text of the relevant statutory provision “define the criterion of operation as the opinion of the relevant authority as to the classification of the development”.[34]
[33] Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5
[34] Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5, at [33]. See also at [50] where the plurality described the required task of the primary judge as having “to determine the question of the jurisdiction” of the relevant authority “upon the evidence as to “special industry” before him, as opposed to the probative material which had been before the” relevant authority.
If a power repository has determined that a fact exists or does not exist, and that fact is a “jurisdictional fact”, it is open to a party with standing to apply to a court with jurisdiction for the court to determine whether the fact exists or does not exist. As the plurality said in Corporation of the City of Enfield, where “the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case”.[35]
[35] Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5, at [48]
Is the dual nationality condition a jurisdictional fact?
In SZQYM v Minister for Immigration and Citizenship Farrell J considered the issues in that case on the basis that the dual nationality condition was a jurisdictional fact.[36] That, however, does not necessarily mean I am bound to conclude that the dual nationality condition is a jurisdictional fact; and that is because it was not disputed before her Honour that the dual nationality condition was a jurisdictional fact.[37] For that reason, it is not open to me to reject the applicants’ contention that the dual nationality condition is not a jurisdictional fact, only because the Federal Court determined the appeal in SZQYM on the basis of an assumption shared by the parties to that appeal.
[36] SZQYM v Minister for Immigration and Citizenship [2014] FCA 427
[37] SZQYM v Minister for Immigration and Citizenship [2014] FCA 427, at [46]
In their written submissions filed on 15 March 2020 the applicants submitted that the consequence of characterising the dual nationality condition as a jurisdictional fact is to permit a decision maker to act unlawfully; the “jurisdictional fact doctrine is a most slippery slope”; the Court is not equipped to deal with merits review, which would be the consequence of holding that the dual nationality condition is a jurisdictional fact; and that is because the question of the nationality of the applicants is a most complex matter, and is not simply a case “of ticking a box”; the Court in any event has a discretion to determine for itself jurisdictional facts, it being submitted that this is what the High Court did in Plaintiff M70/2011 v Minister for Immigration and Citizenship;[38] even if the dual nationality condition is a jurisdictional fact, and the Court finds the applicants are dual citizens, that would leave unaffected the decision recorded in the Department’s letters dated 13 February 2017 that each of the applicants’ applications for a Protection visa had been assessed as valid applications; and the “jurisdictional fact doctrine” has been criticised. Mr Ford repeated the substance of these submissions at the hearing on 16 March 2020.
[38] Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32
The difficulty with these submissions is they do not engage with the text of s.91N(1) and s.91P(2) of the Act with a view to making submissions about whether, on their proper construction, the dual nationality condition is a jurisdictional fact. When attention is directed to the text, considered in its relevant statutory context, there are at last three matters that point to the dual nationality condition – that is, the requirement that a non-citizen “is a national of 2 or more countries” - being a jurisdictional fact.
a)Whether a non-citizen who makes an application for a Protection visa is “a national of 2 or more countries” is relevant to whether the Minister comes under the duty imposed by s.47 of the Act to consider a “valid application for a visa”. That is so because s.47 requires the Minister to consider only a “valid application for a visa” but, under s.46 of the Act, an application for a visa is “valid if, and only if”, among other things, “it is not invalid under any provision of this Act . . . including . . . section 91P (non-citizens with access to protection from third countries)”.
b)The condition that a non-citizen be “a national of 2 or more countries” is not expressed by reference to the state of mind of any person. That is to be contrasted with other provisions in the Act, and in particular s.65 of the Act which conditions the Minister’s granting or not granting a visa on his being satisfied of a number of matters. This points to the dual nationality condition being a jurisdictional fact.
c)The dual nationality condition is relevant to the validity of an application for a Protection visa. An application for a visa being a valid application is a necessary precondition to the Minister coming under the obligation imposed by s.47 of the Act to consider such application. It may be characterised as “extrinsic” to the duty imposed by s.47 of the Act of having to consider a valid application for a visa. Being of an “extrinsic nature”, therefore, the satisfaction of the dual nationality condition is likely “to turn on an objective fact”.[39]
d)Whether a non-citizen is “a national of 2 or more countries” is not a question the Minister is required to consider when considering whether he or she is satisfied that an applicant satisfies the criteria for the grant of a Protection visa. The Minister, therefore, will not necessarily have to consider whether an applicant for a Protection visa is a national of two or more countries. That points to the dual nationality condition being a jurisdictional fact.
[39] Timbarra Protection Inc v Ross Mining NL [1998] NSWCA 8, at [50]
It is true, as the applicants submit, that if the dual nationality condition is a jurisdictional fact, the court will have to determine for itself whether that condition is satisfied and, to that extent, the Court will be engaging in merits review; and it may be that a Court determining that question may be more costly and time consuming than if the question were determined administratively. But this is a consequence of a fact being characterised as a jurisdictional fact; they are not matters – at least not in the circumstances of this case – that are relevant to construing whether the dual nationality condition is a jurisdictional fact.
Further, I do not accept the applicants’ submissions that a court has a discretion not to decide a jurisdictional fact but instead remit the re-determination of that question to the original fact finder. That would treat jurisdictional facts as non-jurisdictional facts; and, in any event, “[o]rdinarily, questions of abuse of process, forum non conveniens and the like aside, jurisdiction conferred upon a court is to be exercised”.[40] Also relevant is the following passage from the judgment of Gaudron J in Corporation of the City of Enfield:[41]
Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.
[40] Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559, at pages 585-586 [52], page 639 [218]
[41] Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5, at [60]
Finally, the High Court did not in Plaintiff M70/2011 remit to any administrative decision maker the determination of any jurisdictional fact.
For these reasons, I find that the dual nationality condition – that is, the requirement provided for by s.91N(1) of the Act that a non-citizen be “a national of 2 or more countries” - is a jurisdictional fact; and that it is for this Court to determine whether the applicants are nationals of Zimbabwe and of Kenya.
Onus of proof
It has been said that “the onus of proof rests on a party seeking to establish jurisdictional error”;[42] and that “the characterisation of a matter as a jurisdictional fact does not alter the [applicants’] onus of proof”.[43] It has also been said, however, that “[i]ssues regarding the burden of proof are not always straightforward in judicial review proceedings”.[44] These statements do not explain what is meant by “onus of proof”, or what sort of issues may arise in relation to “onus of proof” in judicial review proceedings that may not be straightforward. It will be unnecessary for me to consider these matters, however, because the question of onus of proof in relation to the dual nationality condition has been determined by Farrell J in SZQYM.
[42] IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66, at [27] (Gray, Whitlam, and Moore JJ)
[43] Maroun v Minister for Immigration and Citizenship [2009] FCA 1284, at [15] (Jagot J)
[44] Minister for Immigration and Citizenship v Le [2007] FCA 1318, at [55] (Kenny J)
In that case the applicants claimed they were nationals of North Korea; but the delegate found they were also nationals of South Korea and, for that reason, the applicants were each nationals of two countries. The primary judge proceeded on the basis that the applicants would succeed if they proved they were not nationals of South Korea. The primary judge further found that whether or not the applicants were not nationals of South Korea depended on the applicants’ establishing that their respective fathers were not born on the Korean peninsula. The primary judge was not satisfied the applicants’ respective fathers were not born on the Korean peninsula and, for that reason, the applicants did not establish they were not citizens of South Korea.
On appeal Farrell J held the primary judge erred. Her Honour said (emphasis added):[45]
I consider that the primary judge misinformed himself when he accepted at [27] that “each of the applicants could be found not to have South Korean nationality, if the Court was satisfied that their respective fathers had not been born within the Korean peninsula”. While it is undoubtedly true (on the basis of South Korean law as found by the primary judge) that the appellants would not be South Korean nationals in that case and therefore unsurprising that it was common ground between the parties, it was not the test. For s 91N to apply to the appellants it was necessary for the primary judge to find, on the balance of probabilities, that the appellants’ fathers were born within the Korean peninsula and thus that a necessary precondition to the operation of s 91P had been made out.
[45] SZQYM v Minister for Immigration and Citizenship [2014] FCA 427, at [57]
Farrell J also said (emphasis added):[46]
I consider that the primary judge erred in finding that in the face of the dearth of evidence he had a basis for upholding the administrative decision taken by the delegate that the appellants had dual nationality. Whatever the content of South Korean nationality law, it is plain that the mere fact that the appellants claimed to be North Korean nationals is not enough to engage the operation of s 91N. The pro forma Delegate’s Letters were not a sufficient basis to throw the onus on the appellants to prove that they are not South Korean nationals once the primary judge was satisfied that South Korean nationality laws are more complex than the summary given in the Delegate’s Letters.
As neither the primary judge nor I have been able to find evidence which satisfies either of us, on the balance of probabilities, that either of Ms SZQYM or Mr SZQYN is a South Korean national, their appeals should be allowed, the decisions of the delegate advised in the Delegate’s Letters should be quashed and writs of mandamus should issue requiring the Minister to consider their applications for protection visas according to law.
[46] SZQYM v Minister for Immigration and Citizenship [2014] FCA 427, at [68]-[69]
It is apparent from these passages, and the orders her Honour made, that her Honour was of the view that the Minister, as the relevant contravener, bore the onus of proving that s.91N(1) of the Act applied to the applicants. Consequently, in the absence of evidence on the basis of which it could have found on the balance of probabilities that the applicants were also nationals of South Korea, Farrell J held the application for a Protection visa was a valid application and, given that s.47 of the Act requires the Minister to consider only valid applications for a visa, the Minister was required to consider the applications as if they were valid applications.
I am of course bound by her Honour’s finding that the burden lies on the contravener to prove that s.91N of the Act applies and, if the contravener does not discharge that burden, the application for a protection visa is not an invalid application for a visa for the reason that an applicant is a national of two or more countries. With respect, however, the finding and consequence do not sit well with s.46 of the Act. That section identifies the elements of a valid application for a visa. One of the elements is that specified in s.46(1)(e) of the Act, namely, the application for a visa “is not invalid under any provision of this Act . . . including . . . section 91P (non-citizens with access to protection from third countries)”. The effect of the orders made in SZQYM is that the Minister was required to consider an application for a visa in the absence of a finding that the applications for Protection visas were not invalid because of s.91P of the Act, being, at least in the circumstances of that case, a necessary element of a valid application for a visa.
The nationality of the applicants
As I have already noted, the nationality of the applicants is to be determined solely by reference to the law of the country of which it is said the applicants are nationals, those countries being Zimbabwe and Kenya.
Proof of foreign law – some principles
Under the common law, where foreign law applies to the determination of a dispute, the foreign law is treated as a fact which must be proved by expert evidence.[47] This has been modified by s.174 and s.175 of the Evidence Act 1995 (Cth) (Evidence Act). Relevant to the evidence that has been adduced before me is s.174(1) of the Evidence Act which relevantly provides that evidence of a statute may be adduced in a proceeding by producing “a copy of the statute”.
[47] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54, at [115]
The rule provided for by s.79(1) of the Evidence Act applies to a person who purports to give evidence of foreign law. That person must have “specialised knowledge based on the person’s training, study or experience”; and the opinion such person expresses about foreign law must be “wholly or substantially based on that knowledge”.
The cases have drawn a distinction between evidence of the rules and principles of foreign law, and “the application of those rules and principles, as so ascertained, to the particular facts and circumstances of the instant case”. The application of the principles of foreign law so ascertained to the facts of the case “is a question of law for the court of the forum, upon which evidence is not receivable”. Where, however, the rules of the foreign law confer discretions on the courts that administer them, “evidence is receivable as to the manner in which those discretions are exercised, with reference to any pattern or course of decision”.[48]
[48] National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, at page 226; referred to with approval by Gummow and Hayne JJ in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54, at [120]
Dr Manby’s report
The Minister relies on an expert’s report prepared by Dr Bronwen Manby. The report is not in the form of an affidavit, and it may be taken that it has been tendered as an “expert’s certificate” under s.177 of the Evidence Act. The Minister did not prove service of the certificate. The report, however, was annexed to the affidavit of Mr Moss which was filed on 28 May 2018. Mr Ford did not submit he had not been served with the affidavit at around the time it was filed.
In her report, Dr Manby says she was admitted as a solicitor in England and Wales in 1989, although she has not practised as a solicitor; she has had 25 years professional experience related to human rights and democracy in Africa; and she is the author of several publications of citizenship law in Africa. Dr Manby was also awarded a doctorate by the faculty of Law of Maastricht University on comparative African citizenship law, and its development over time. The thesis on the basis of which Dr Manby was awarded her doctorate includes case studies on the application of citizenship law in both Kenya and Zimbabwe.
Dr Manby then addressed particular questions, first in relation to the law of Kenya, and then in relation to the law of Zimbabwe. As to the law of Kenya, Dr Manby expresses opinions and statements that include the following:
a)Kenyan citizenship is governed by Chapter 3 of the Constitution of Kenya (Kenya Constitution) and by the Citizenship and Immigration Act No.12 of 2011 (Kenya Citizenship Act).[49]
[49] Dr Manby’s report, [7]
b)The Kenya Constitution provides for two categories of citizenship, namely, by birth or registration.[50]
[50] Dr Manby’s report, [8]
c)The acquisition of citizenship by birth is provided for by Art.14 of the Kenya Constitution, which (as reproduced by Dr Manby) provides as follows:[51]
[51] Dr Manby’s report, [9]
(1)A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
(2)Clause (1) applies equally to a person born before the effective date [the date of entry into force of the constitution, 27 August 2010], whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen.
(3)Parliament may enact legislation limiting the effect of clauses (1) and (2) on the descendants of Kenyan citizens who are born outside Kenya.
(4)A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth.
d)Section 7 of the Kenya Citizenship Act, as amended by “the 2015 amendments” responds to Art.14(3) of the Kenya Constitution and provides that a “person born outside Kenya shall be a citizen by birth if on the date of birth that person’s mother or father was or is a citizen”.[52]
e)The Kenya Constitution does not provide for the loss or deprivation of citizenship in the case of a citizen by birth, although a person who has acquired citizenship by registration may be deprived of citizenship in certain circumstances involving conviction for a serious crime.[53]
f)On the basis of these laws, a child born in Australia to a father who is a Kenyan citizen would acquire Kenyan citizenship automatically at birth; and that would be so even if the mother is not a Kenyan citizen.[54]
g)Before 2010 a Kenyan citizen would in most cases automatically lose Kenyan citizenship on voluntarily acquiring another. Since 2010, this has not been the case; but a Kenyan citizen who does acquire another citizenship is required by legislation to notify the Kenyan authorities. Failure to disclose is an offence, but the Kenya Citizenship Act does not establish what the consequences are for entitlement to Kenyan citizenship if disclosure is not made.[55]
h)Neither the Kenya Constitution nor the Kenya Citizenship Act include any provision relating to persons who are born with two citizenships, or the potential to hold two citizenships, although the Citizenship and Immigration Regulations adopted in 2012 include the possibility of a person declaring that two citizenships are held “by birth”, and that possibility is manifested by a form in a schedule to the regulations.[56]
[52] Dr Manby’s report, [11]
[53] Dr Manby’s report, [13]
[54] Dr Manby’s report, [15]
[55] Dr Manby’s report, [23]
[56] Dr Manby’s report, [24]
As to the law of Zimbabwe, Dr Manby expresses opinions and statements that include the following:
a)Citizenship is governed by Chapter 3 of the Constitution of Zimbabwe (Amendment No.20) Act 2013 (Zimbabwe Constitution) and by the Citizenship of Zimbabwe Act No.23 of 1984, as most recently amended in 2003 (Zimbabwe Citizenship Act).[57]
[57] Dr Manby’s report, [25]
b)The Zimbabwe Constitution provides for three categories of citizenship, these being by birth, by descent, and by registration.[58]
[58] Dr Manby’s report, [26]
c)Art.36 and Art.37 of the Zimbabwe Constitution (as reproduced by Dr Manby) are as follows:[59]
[59] Dr Manby’s report, [27]
36. Citizenship by birth
1. Persons are Zimbabwean citizens by birth if they were born in Zimbabwe and, when they were born –
a. either their mother or their father was a Zimbabwean citizen; or
b. any of their grandparents was a Zimbabwean citizen by birth or descent.
2.Persons born outside Zimbabwe are Zimbabwean citizens by birth if, when they were born, either of their parents was a Zimbabwean citizen and –
a. ordinarily resident in Zimbabwe; or
b. working outside Zimbabwe for the State or an international organisation.
3.A child found in Zimbabwe who is, or appears to be, less than fifteen years of age, and whose nationality and parents are not known, is presumed to be a Zimbabwean citizen by birth.
37. Citizenship by descent
Subject to section 36(2), persons born outside Zimbabwe are Zimbabwean citizens by descent if, when they were born –
a.either of their parents or any of their grandparents was a Zimbabwean citizen by birth or descent; or
b.either of their parents was a Zimbabwean citizen by registration;
and the birth is registered in Zimbabwe in accordance with the law relating to the registration of births.
d)The effect of these provisions in relation to a child born outside Zimbabwe is that a child is a citizen by descent if either parent or any grandparent was at the time of birth a citizen “by birth or descent” or if either parent was a citizen by registration.[60]
e)The Zimbabwe Constitution retained the language introduced in 2009 to the previous constitution that the births of those born outside Zimbabwe must be “registered in accordance with the law relating to the registration of births” for citizenship by descent to be acquired by a child. The “new language leaves an ambiguity as to whether consular registration only would be sufficient for citizenship to be acquired by the child”.[61]
f)The Births and Deaths Registration Act No.11 of 1986 (Zimbabwe BDR Act), as amended up to 2005, does not contain any provision for the registration of the birth of a child born outside Zimbabwe in wedlock to a Zimbabwean mother, or for the registration of a child born outside Zimbabwe out of wedlock to a Zimbabwean father. The Zimbabwe BDR Act is the subject of a challenge on the grounds it is unconstitutional.[62]
g)On the basis of these provisions:
i)a child born in Australia to a mother who is a Zimbabwean citizen would be eligible to acquire Zimbabwean citizenship by descent, but only if the child’s birth is “registered in Zimbabwe in accordance with the law relating to the registration of births”;[63] and this would remain so even if the father is not a citizen of Zimbabwe;[64] and
ii)the Zimbabwe BDR Act does not provide for the registration of the birth of a child born in Australia to a Zimbabwean mother in wedlock outside Zimbabwe; and it would therefore appear that a child born in Australia to a Zimbabwean mother and non-Zimbabwean father could be registered and acquire the mother’s citizenship only if born outside of wedlock.[65]
h)The Zimbabwe Constitution is silent on the question of dual citizenship for citizens by birth; but Art.42 provides that Parliament may make legislation regarding “the prohibition of dual citizenship in respect of citizens by descent or registration”. On the basis of these matters, dual citizenship “is thus now permitted for citizens by birth, and parliament is given the power to decide for other categories of citizen”.[66] Notwithstanding these provisions, s.9 of the Zimbabwe Citizenship Act continues to provide for a comprehensive prohibition on dual citizenship for all adults;[67] but that section is “clearly unconstitutional insofar as it applies to citizens by birth”.[68]
[60] Dr Manby’s report, [29]
[61] Dr Manby’s report, [30]
[62] Dr Manby’s report, [32]
[63] Dr Manby’s report, [36]
[64] Dr Manby’s report, [37]
[65] Dr Manby’s report, [38]
[66] Dr Manby’s report, [41]
[67] Dr Manby’s report, [42]
[68] Dr Manby’s report, [43]
Admissibility of Dr Manby’s opinions
Dr Manby does not hold a degree of law from any university or higher education institution in either Kenya or Zimbabwe; she is not admitted to practice law in either Kenya or Zimbabwe; and she has not been involved in the administration of the citizenship laws of either Zimbabwe or Kenya. Her knowledge about the citizenship laws of Kenya and Zimbabwe is based entirely on her pursuing an academic interest in those laws and their application.
These matters do not mean the opinions Dr Manby expresses in her report cannot fall within s.79 of the Evidence Act. As has been noted by a commentator, evidence of academics has been accepted.[69] I am satisfied that Dr Manby has specialised knowledge of the citizenship laws of Zimbabwe and Kenya, and that her specialised knowledge is based on her study and, to a lesser extent, experience. Thus, I find that opinions contained in the report of Dr Manby about the citizenship laws of Zimbabwe and Kenya are based or substantially based on her specialised knowledge of those laws, and, for that reason, are admissible as evidence of what those laws are.
[69] McCormish, J. “Pleading and Proving Foreign law in Australia” (2007) 31 Melb. U.L. Rev. 400, at page 427, fn.190
Are the applicants citizens of Kenya?
I accept Dr Manby’s evidence that under the law of Kenya a person born outside Kenya is a citizen of Kenya by birth if on the date of birth the person’s mother or father is a citizen of Kenya. There is no question that the applicants’ father is a citizen of Kenya. I therefore find that on their birth in Australia both applicants became citizens of Kenya by birth, and they remain citizens of Kenya.
Are the applicants citizens of Zimbabwe?
I accept Dr Manby’s evidence that, under the law of Zimbabwe a child born outside Zimbabwe is capable of becoming a citizen by descent if either parent or any grandparent was at the time of birth a citizen by birth or descent, or if either parent was a citizen by registration; such a child can acquire citizenship by descent, but only if the child’s birth is registered under the Zimbabwe BDR Act; and the Zimbabwe BDR Act does not contain any provision for the registration of the birth of a child born outside Zimbabwe in wedlock to a Zimbabwean mother. Additionally, I find that the applicants’ mother is a citizen of Zimbabwe. That means that the applicants can become citizens of Zimbabwe if they register under the Zimbabwe BDR Act.
The Minister submits that each of the “Certified Cop[ies] of an Entry of Birth Registered in the District of Harare in Zimbabwe” (purported birth registrations) is evidence that each of the applicants has been registered under the Zimbabwe BDR Act and, therefore, each of the applicants is a citizen of Zimbabwe. The Minister makes this submission even though, according to Dr Manby, the Zimbabwe BDR Act contains no provision for the registration of a child born outside Zimbabwe in wedlock to a mother who is a citizen of Zimbabwe. The Minister submits that, according to Dr Manby, it “appears that the applicants’ births have been registered in accordance with the terms of the Zimbabwe Constitution but contrary to the terms of the [Zimbabwe BDR Act]”, and that in “that regard, Dr Manby notes that there is a degree of discretion given to Zimbabwean officials in the administration of the applicable rules”. The Minister submits it may therefore “be inferred that the issuing of the birth registrations was within the zone of discretion”.[70] I do not accept these submissions.
[70] First Respondent’s Outline of Submissions, [39]
First, Dr Manby does not say that the applicants’ births “have been registered in accordance with the terms of the Zimbabwe Constitution”. Dr Manby says that the “embassy has (to its credit) decided to respect the constitution rather than the discriminatory provisions of the act”.[71] It may be inferred that Dr Manby does not say “in accordance with the constitution” because Art.37 of the Zimbabwe Constitution requires that the birth be “registered in Zimbabwe in accordance with the law relating to the registration of births”, not in accordance with the Zimbabwe Constitution. Art.37 of the Zimbabwe Constitution expressly contemplates that the registration of a birth would be effected under a particular law that relates to the registration of births; and the only law which answers that description Dr Manby has identified is the Zimbabwe BDR Act. Dr Manby’s reference to an official respecting “the constitution” appears to be an appeal to a meaning or principle underlying Art.37 of the Zimbabwe Constitution that is not expressed in the text of that Article or anywhere else in the Zimbabwe Constitution; but she has not identified any principle of the law of Zimbabwe that permits Art.37 to be read in a manner that would permit the registration of a birth directly under its terms.
[71] Dr Manby’s report, [39]
Second, although Dr Manby says there “is a degree of discretion to officials in the administration of the statutory rules”, she does not identify the nature or source of the discretion. In particular, Dr Manby does not identify any statutory provision or any principle of any unwritten law which permits an official to act in a manner not authorised or contrary to statutory provisions. The most that can be inferred Dr Manby’s intends to convey by her statement that there “is a degree of discretion to officials in the administration of the statutory rules” is that those with authority in Zimbabwe tolerate officials not complying with the statutory law of Zimbabwe. If that is what Dr Manby intends to convey, it is not an opinion she is qualified to give, because it is not an opinion about any principle of the law of Zimbabwe; and even if she were qualified to give such opinion, it would be irrelevant, and that is because officials not complying with laws is not reasonably capable of answering the description of “law”.
Third, Dr Manby has not identified any principle of the law of Zimbabwe that is relevant to determining the legal effect of acts done by officials that are not authorised by any statute or which are done contrary to statute. Thus, there is nothing before me that suggests that under the law of Zimbabwe the purported birth registrations would be given any legal effect. The inference that is available to be drawn on the generalisation that laws are enacted for the purpose of being obeyed, and which I do draw, is that a purported registration of a birth in circumstances not permitted by the Zimbabwe BDR Act is at the very least liable to be questioned as a legally valid registration. My confidence in drawing this inference is strengthened by Dr Manby’s reference to the Zimbabwe BDR Act being the subject of a constitutional challenge. That suggests the Zimbabwe BDR Act has legal force unless it is declared to be unconstitutional.
For these reasons, I find that the purported birth registrations do not constitute a registration of the applicants’ births according to the Zimbabwe BDR Act. Given that, under the law of Zimbabwe, the applicants can acquire citizenship only if their births are registered according to the Zimbabwe BDR Act, it follows I am not satisfied the applicants are citizens of Zimbabwe.
Conclusion and disposition
I have found the applicants are citizens of Kenya, and have concluded I am not satisfied they are citizens of Zimbabwe. Given that in SZQYM Farrell J made orders on the basis of her Honour’s not being satisfied the dual nationality condition applied to the applicants, it is unnecessary for me to make a positive finding that the applicants are citizens of Zimbabwe. If, however, the onus is on the applicants to prove they are not nationals of Kenya and Zimbabwe, or if a finding to that effect were necessary for s.46(1)(e)(vi) of the Act to be satisfied in relation to the applicants’ applications for a Protection visa, I would have concluded I am satisfied, on the balance of probabilities, that the applicants are not citizens of Zimbabwe.
In light of my conclusions, it is unnecessary for me to consider the grounds stated in the application.
I propose to make an order under s.477(2) of the Act extending time, and orders substantially to the effect of the orders Farrell J made in SZQYM. I also propose to order that the Minister pay such costs to which the father, as an unrepresented litigation guardian of the applicants, may be entitled.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 August 2020
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