Eht17 v Minister for Immigration - [2019] FCCA 2617

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHT17 v MINISTER FOR IMMIGRATION

[2019] FCCA 2617

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision a Delegate of the Minister of Immigration and Border Protection which found an application for a Protection (Class XA) (Subclass 866) visa to be invalid by force of ss.91N and 91P of the Migration Act 1958 (Cth) as the Applicant was a dual national of both Syria and Lebanon – expert evidence of foreign law and evidence before the Court established that the Applicant was a dual national of both Syria and Lebanon – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Evidence Act 1995 (Cth), s.136
Migration Act 1958 (Cth), ss.47, 91M, 91N, 91P, 91Q

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Neilson v Overseas Projects Corporation of Victoria Ltd and Anor (2005) 223 CLR 331

SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448

SZQYM v Minister for Immigration and Citizenship (2014) 220 FCR 505

Applicant:

EHT17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2983 of 2017

Judgment of:

Judge Dowdy

Hearing date:

23 May 2019

Delivered at:

Sydney

Delivered on:

19 September 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the Respondent:

Mr D. Hughes of Counsel

Solicitors for the Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 27 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2983 of 2017

EHT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

The Applicant in this proceeding is a male aged 28 years, having been born on 20 September 1991, who claims to be a national of Lebanon and denies being a national of Syria.
By Application filed in this Court on 27 September 2017 he seeks to quash and have re-determined the decision of the Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 September 2017 notifying him that his application lodged on 30 June 2017 for a Protection (Class XA) (Subclass 866) visa (Protection visa) was not a valid application because of ss.91N and 91P of the Migration Act 1958 (Cth) (the Act), which in short provide that a national of 2 or more countries cannot make a valid application for a Protection visa.

Background

In his Protection visa application form lodged by his migration agent on 30 June 2017 the Applicant stated and claimed as follows:
a)he last arrived in Sydney, Australia on 21 May 2017 from Lebanon holding a Lebanese passport;
b)when he arrived in Sydney he held a Sponsored Family Visitor (Subclass 600) visa;
c)he was born in the city of Tartous in Syria on 20 September 1991;
d)both his mother and father held Syrian and Lebanese citizenship;
e)his citizenship at birth was Lebanese and he is a citizen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2617
Decision Date: 19 September 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Dowdy J considered an application for judicial review brought by the applicant, Eht17, against a decision of a Delegate of the Minister for Immigration and Border Protection. The dispute concerned the validity of the applicant's application for a Protection (Class XA) (Subclass 866) visa. The Delegate had found the application to be invalid by force of sections 91N and 91P of the *Migration Act 1958* (Cth), on the basis that the applicant was a dual national of both Syria and Lebanon.

The legal issues before the Court were whether the applicant was indeed a dual national of Syria and Lebanon, and if so, whether the Delegate’s decision that the protection visa application was invalid by operation of sections 91N and 91P of the *Migration Act 1958* (Cth) was affected by jurisdictional error. The Court was required to determine the applicant's nationality by reference to the laws of Syria and Lebanon, as stipulated by section 91N(6) of the Act.

Dowdy J reasoned that the evidence before the Court, including expert evidence of foreign law, established that the applicant was a dual national of Syria and Lebanon. The applicant was born in Syria to parents who held dual Lebanese-Syrian citizenship, conferring Syrian citizenship at birth under Syrian law. Furthermore, the applicant held Lebanese citizenship by descent from his father, evidenced by a valid Lebanese passport. As there was no evidence of loss or forfeiture of either citizenship, the applicant was considered a national of both countries. Consequently, the Court found that sections 91N and 91P of the *Migration Act 1958* (Cth) applied, rendering the protection visa application invalid. The Court concluded that no jurisdictional error had been established.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Delegate, in his Notification of Invalid Application for a Protection Visa dated 7 September 2017 (Delegate’s decision), stated relevantly as follows:a)the Applicant’s application for a Protection visa was not valid because the following information indicated that he was a national of Syria and Lebanon;i)the Applicant was born in the state of Syria to a mother and father both in possession of dual Lebanese – Syrian citizenship and Article 3(a) of Legislative Decree 276 provided that anyone born to a Syrian Arab father would hold Syrian citizenship at birth, and on that basis the Applicant had held Syrian citizenship from the time of his birth;ii)the Applicant also held Lebanese citizenship because of Article 1 of Decree No. 15 on Lebanese Nationality due to his father’s Lebanese citizenship and the Applicant had presented evidence of a valid Republic of Lebanon passport bearing his own personal details, and on this basis the Applicant currently held Lebanese citizenship;iii)given that there was no evidence of a loss, revocation or forfeiture of the citizenship of either nation the Applicant was a citizen of both Syria and Lebanon. Therefore his application for the Protection visa was invalid because of ss.91N and 91P of the Act, which prevents persons, who were within Australia, had been immigration cleared and at the time of application are nationals of more than one country, from making a valid application for a Protection visa while they remain in the migration zone; andb)accordingly, the Protection visa application of the Applicant would be considered as a request for the Minister to exercise his public interest power under s.91Q of the Act. Pursuant to s.47(3) of the Act the Minister has no power to consider an invalid visa application. Sections 91N and 91P fall within Subdivision AK of Division 3 of Part 2 of the Act. The reason for the Subdivision is set out in s.91M, which reads: Reason for this SubdivisionThis 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 of the Act relevantly provides:Non-citizens to whom this Subdivision applies(1)This Subdivision applies to a non-citizen at a particular time if, at that time, the noncitizen is a national of 2 or more countries.(2)……………………….(3)……………………….(4)……………………….(5)……………………….Determining nationality(6)For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

Ratio Decidendi

Legal Principle Established

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