BTX17 v Minister for Immigration (No.2)

This case concerned an application for an extension of time to seek remedies under section 476 of the *Migration Act 1958* (Cth). The applicants sought to challenge a decision by the Minister for Immigration that their applications for protection visas were invalid. This invalidity was asserted under section 91P of the Act, which states that a protection visa application is not valid if the applicant is a national of two or more countries. The Minister’s decision was based on the premise that the applicants were nationals of both Kenya and Zimbabwe. The matter came before Judge Manousaridis in the Federal Circuit Court.

The central legal issues before the court were whether the question of whether the applicants were nationals of two or more countries constituted a jurisdictional fact, and if so, whether the applicants were indeed nationals of both Kenya and Zimbabwe. The court was required to determine the ultimate authority on the existence of these facts, as opposed to the Minister's satisfaction being the sole determinant.

The court reasoned that the question of whether an applicant is a national of two or more countries is a jurisdictional fact, meaning a court has the ultimate authority to determine its existence. The Minister’s argument that the applicants were nationals of Zimbabwe, based on purported birth registrations, was rejected. The court found that the expert evidence did not support the assertion that these registrations were made in accordance with Zimbabwean law, and any perceived discretion by officials to register births contrary to statutory provisions was not a basis for establishing legal nationality. The court was satisfied that the applicants were nationals of Kenya but was not satisfied that they were nationals of Zimbabwe.

Consequently, the court granted the applicants' request for an extension of time to make their application for remedies. The court found that the applicants were nationals of Kenya but not of Zimbabwe, meaning they were not nationals of "2 or more countries" as required by section 91P of the *Migration Act 1958* (Cth) to render their protection visa applications invalid.