CZBJ v Minister for Immigration
[2013] FCCA 23
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZBJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 23 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – Tribunal finding protection visa application not valid – applicant a national of two countries – application of s.91P of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36, 91M, 91N, 91P, 91Q Federal Circuit Court Rules 2001 (Cth) |
| Cases Cited: Minister for Immigration & Anor v SZRTC [2013] FCCA 1 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 SZOAU v Minister for Immigration [2012] FCAFC 33; (2012) 199 FCR 408 |
| Applicant: | CZBJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 54 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 March 2013 |
| Delivered at: | Sydney, via telephone link to Canberra |
| Delivered on: | 2 May 2013 |
REPRESENTATION
The Applicant’s litigation guardian appeared on behalf of the Applicant
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 20 July 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 54 of 2012
| CZBJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant child (through her father as her litigation guardian) applies to review a decision of the Refugee Review Tribunal (Tribunal) made on 22 June 2012. The Tribunal set aside a decision of the Minister’s delegate refusing to grant the applicant a protection visa and substituted a decision that her protection visa application was not valid and could not be considered.
In this decision I have found that s.91P of the Migration Act 1958 (Cth) (Migration Act) prevented the applicant from making a valid protection visa application without the intervention of the Minister as she is a citizen of the United Arab Emirates (UAE) and the Philippines.
The following statement of background facts is derived from the submissions of the parties.
The applicant was born in Canberra on 6 November 2010. At that time her father, four sisters and mother had made an application for a protection visa which had been refused. Accordingly the applicant could not be part of their application as a family member and she made her own application for a protection visa on 15 September 2011. That application was refused by the Minister’s delegate on 23 February 2012. The applicant sought review by the Tribunal on 9 March 2012.
Tribunal decision
The decision of the Full Court of the Federal Court in SZOAU v Minister for Immigration[1] has established that a person is barred by s.91P of the Migration Act from making a valid application for a protection visa if they are a national of two or more countries as determined by the application of the law of those countries (ss.91N(1) and (6)). That decision was made before the commencement of amendments to the Migration Act to introduce the complementary protection criterion into s.36 but there is no significance in that[2]. That amending legislation amended subdivision AK but not in any material respect.
[1] [2012] FCAFC 33; (2012) 199 FCR 408 special leave refused [2012] HCA Trans 190
[2] SZGIZ v Minister for Immigration [2013] FMCA 215
The Tribunal found that it had no jurisdiction because there was no valid application for a protection visa as the applicant was a national of both the UAE and of the Philippines.
The applicant’s father is a citizen of the UAE. The material before the Tribunal included his current passport[3] as well as his two previous passports,[4] his UAE military identity card[5] and his family book[6].
[3] CB 119
[4] CB 779
[5] CB 341
[6] CB 844
The Tribunal records that it was the applicant’s submission to it that her claims should be assessed in relation to the UAE as her father was a UAE Citizen and UAE Federal Law No(10), Article 2 deemed her a UAE national[7].
[7] CB 1188 at [46]
The Tribunal found that the applicant was a national of the UAE[8].
[8] CB 11195 at [78]
The applicant’s mother is a citizen of the Philippines. The material before the Tribunal included her current passport[9]. In her application for a protection visa the applicant stated that she had a right to enter and reside in the Philippines[10]. The delegate found that the applicant was a national of the Philippines by the legal principle of Jus Sanguinus referred to on the Philippines Bureau of Immigration website[11].
[9] CB1141
[10] CB 6
[11] CB 208
The Tribunal found that the applicant was a national of the Philippines by reference to Article IV, Section 1 of the 1987 Philippine Constitution which provides that those whose mothers are citizens of the Philippines are citizens of the Philippines[12].
[12] CB1195-1196 at [79]-[81]
The Tribunal concluded[13] that the applicant was, at the time of her protection visa application, a national of two countries, the Philippines and the UAE. She was therefore subject to subdivision AK of Division 3 of Part 2 of the Migration Act[14]. This meant that she was prevented from making an application for a protection visa[15]. That prohibition does not apply if the Minister has given written notice that s.91P does not apply and an application is made in the following seven days[16]. There was no evidence that the Minister had given such written notice in this case and accordingly the Tribunal found that the protection visa application made on 15 September 2001 was not valid, and could not therefore be considered[17].
[13] at [82], CB 196
[14] see s.91N(1) and (6)
[15] see s.91P
[16] see s.91Q(1)
[17] at [83], CB 196
The judicial review application
These proceedings began with a show cause application filed on 20 July 2012. The applicant continues to rely upon that application. The grounds are identified in an attached affidavit by the applicant’s litigation guardian made on 20 July 2012. That affidavit is lengthy but raises three grounds of review:
a)the Tribunal erred in considering the application of s.91N of the Migration Act in finding that the applicant has dual nationality;
b)the Tribunal erred in its application of subdivision AK (s.91M of the Migration Act) because the applicant is not able to access protection in a third country; and
c)the Tribunal erred by failing to take into consideration the applicant’s rights under the Convention on the Rights of the Child (CROC) as a primary consideration in making its decision.
The Minister, in his response filed on 2 August 2012, does not admit that there is any jurisdictional error in the decision of the Tribunal and says that the Tribunal correctly found that the applicant is a national of two countries and is prevented from making a valid application for a protection visa[18].
[18] see ss.91N and 91P of the Migration Act
In addition to the litigation guardian’s affidavit of 20 July 2012, the application is supported by two further affidavits by him made on 19 September 2012 and 3 December 2012.
The Minister relies upon the court book filed on 27 August 2012 to the extent that it is relevant to the determination of the issues in dispute between the parties. The Minister also relies upon two affidavits by Pancho Garcia Ulmali made on 3 December 2012 and 16 January 2013 (in which Mr Ulmali gives opinion evidence concerning the nationality laws of the Philippines), and the affidavit of Rebecca Lee Kelly made on 12 December 2012 (in which Ms Kelly gives opinion evidence concerning the nationality laws of the UAE).
The parties made written and oral submissions.
Consideration
The applicant in these proceedings was not legally represented. It is, in my view, unfortunate that the applicant’s litigation guardian declined the Court’s referral for pro bono legal assistance made on 2 October 2012. It is also unfortunate that the applicant’s litigation guardian directed most of his attention at the hearing of this matter to repeated attempts to persuade the Court to give summary judgment for the applicant. He advanced the proposition that the applicant was entitled to summary judgment under the rules of Court because the Minister had not, in his response, responded to all of the applicant’s grounds of review. As I attempted to explain to the litigation guardian, however, that proposition was based upon a misunderstanding of rule 44.06 of the Federal Circuit Court Rules 2001 (Cth) which provides:
(1) Each respondent who intends to oppose an application must file and serve a response, including each ground on which the respondent opposes the application and details of each ground.
(2) For subrule (1), the grounds on which a respondent may oppose an application include the following:
(a) that the Court lacks jurisdiction to hear the application;
(b) delay in seeking the remedy;
(c) that there are, or have been, other judicial review proceedings in relation to the decision;
(d) that the applicant has not complied with subsection 486D (1) of the Migration Act.
Note Rules 4.03, 4.04 and 4.05 include requirements relating to responses.
The response called for pursuant to this rule is not a pleading and does not need to respond to every allegation made in an application. Rather, the obligation in the rule is for a respondent to identify each ground on which the respondent opposes the application and to give details to each ground of opposition. It was abundantly clear to me that the response filed on behalf of the Minister on 2 August 2012 complied with the rule. Regrettably, I was unable to convince the applicant’s litigation guardian of that and I was obliged to repeat my ruling on several occasions during the course of the hearing on 12 March 2013.
While the applicant was not entitled to summary judgment on her application, it raises a serious and significant issue for consideration. That issue concerns the operation of subdivision AK of Division 3 of Part 2 of the Migration Act. That subdivision provides in ss.91M – 91Q:
Section 91M
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
(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
(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
(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.
The operation of these provisions was considered by the Full Federal Court in SZOAU. In the light of that decision (which the applicant does not contest and by which I am, in any event, bound) the present application must fail.
Ground 1
The first ground asserts an error in the application of s.91N to the applicant. In substance, the assertion in the first ground is that the applicant is a national of the UAE only. The expert evidence filed by the respondent confirms that this UAE law does deem the applicant a national of the UAE[19]. While UAE law does not recognise dual nationality[20] it is only necessary to have regard to UAE law to determine nationality of that country, not the nationality of another country. UAE nationality is not lost simply by reason of dual nationality[21].
[19] Affidavit of Rebecca Lee Kelly sworn 12 December 2012 at 6.5.2 and 6.5.3 and the relevant legislation is exhibit 4 of that affidavit commencing at page 87 of the affidavit
[20] See the report of Ms Kelly at 6.2.13
[21] See the report of Ms Kelly at 6.5.2 and 6.6.4. According to UAE Federal Law No (17) 1972 (as amended) Article (15)C, UAE nationality is only lost if the national voluntarily adopts the nationality of another country.
The applicant’s submissions in support of this ground are set out in the affidavit of her litigation guardian sworn 19 September 2012. At [36] of that affidavit it is contended that:
On the face of it, where a person is a dual national they need to be able to demonstrate that they have taken steps to enter and reside in a third country of which they are apparently a national.
The Minister contends that the applicant’s litigation guardian has blended the terms of s.91N of the Migration Act with those of s 36(3). There is some logical conformity between ss.91N(2) and (3) and s.36(3) (especially when read with s.91M)[22] but that logical conformity does not extend to s.91N(1). The applicant nevertheless contends that the operation of s.91N should be confined to persons who have acknowledged their nationality of a third country by taking steps to enter it or reside in it. It is submitted by the Minister that the Full Federal Court in SZOAU has clearly stated that the inquiry to which s.91N is directed is the bare fact of nationality and no more. I accept that submission. Section 91N(1) was found by the Full Federal Court to be clear on its face and it is not permissible to have regard to what Parliament intended as expressed in s.91M[23]
[22] See Minister for Immigration & Anor v SZRTC [2013] FCCA 1
[23] See SZOAU at [3] per Buchanan J
Further Robertson J in SZOAU dismissed a similar argument concerning the use of the qualifying words in s.36(3) when construing s.91N[24].
[24] [2012] FCAFC 33 (2012) 199 FCR 408 at [65]-[67] Buchanan J agreeing at [8]and Barker J agreeing at [9]
Ground 2
The applicant’s second ground in effect asserts that subdivision AK does not prevent the applicant making a valid application because she cannot access protection in the Philippines.
The argument in support of this ground relies upon there being some requirement imported into subdivision AK by s.91M that the applicant be able to access effective protection in the third country of which the applicant is a national. Again this contention was rejected by the Full Federal Court in SZOAU[25].
[25] per Buchanan J at [3], Robertson J at [60]-[69]
Further, I accept that the factual assertion that the applicant cannot access protection in the Philippines is itself flawed. The suggestion of the applicant appears to be that as her father has been refused permanent residence in the Philippines, and, as she is a member of the father’s family unit, she has also been refused residence. The evidence which the applicant points to is a certificate from the Philippine Embassy which asserts that UAE Nationals are classified as restricted for Philippine Immigration purposes and are not eligible for permanent residence[26].
[26] CB 999
I find that the applicant has no need to apply for permanent residence of the Philippines as she is already a national of the Philippines. The expert evidence filed by the respondents confirms that[27]:
There is currently no Philippine law, administrative rule or jurisprudence which disqualifies a person from the coverage of Article IV, Section 1(2) of the 1987 Philippine Constitution on the basis of the nationality of the foreign parent.
[27] [12] of the expert opinion attached to Affidavit of Pancho Garcia Umali sworn 16 January 2013
This of course says nothing about the potential consequence of a child of tender years being required to live separately from her parents and the potential forced separation of her parents. The applicant’s litigation guardian showed anger and frustration at the hearing. That is perfectly understandable. This case brings into clearer focus than was apparent in SZOAU the harsh consequences of the operation of these legislative provisions.
Ground 3
The third ground asserts a failure to take into account CROC as a primary consideration. That contention is misguided. The Migration Act does not make the operation of s.91P subject to CROC. There is no discretion involved in the imposition of invalidity by s.91P to give scope for the notion of “primary consideration,” or the welfare of children, or, indeed, anything else[28].
[28] contrary to the position in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.
Australia is answerable to its convention partners for its compliance, or lack of compliance, with its obligations under CROC. Likewise, Australia is answerable to its convention partners for its compliance with its obligations to refugees, or those claiming recognition as refugees pursuant to the Refugees Convention. For present purposes in domestic law, however, because of ss.91N(1) and 91P of the Migration Act, the Executive cannot consider the applicant’s claim, unless the Minister exercises his power to lift the bar under s.91Q. Having regard to the terms of s.91M, that power assumes special significance if Parliament’s expressed intention is to be met.
Conclusion
I accept from the evidence of Mr Ulmali and Ms Kelly that the applicant is a citizen of both the United Arab Emirates and the Philippines. It follows from the decision in SZOAU that subdivision AK therefore applies to the applicant because she is a national of two or more countries. It also follows from that decision that ss.91N(2) and (3) are not material in the present circumstances where the applicant is caught by operation of s.91N(1). Thus, the Tribunal was correct in its application of s.91P of the Migration Act. The Tribunal’s decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 2 May 2013
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