ESJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 164
Federal Circuit and Family Court of Australia
(DIVISION 2)
ESJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 164
File number(s): SYG 3269 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 7 March 2023 Catchwords: MIGRATION – Judicial review – whether Administrative Appeals Tribunal erred in finding whether the first applicant had a right to enter the European Union – whether s 91P applies to a dual citizen of Egypt and Poland Legislation: Evidence Act 1995 (Cth) s 174
Migration Act 1958 (Cth) ss 36, 91N, 91P, 438, 474
Cases cited: AHZ16 v Minister for Immigration and Border Protection [2018] FCA 164
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 21 September 2022 Place: Sydney The Applicants: In person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 3269 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESJ17
First Applicant
ESK17
Second Applicant
ESM17
Third Applicant
AND: MINISTER FOR IMMINGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
7 march 2023
THE COURT ORDERS THAT:
1.The application made on 23 September 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application filed in this Court on 23 October 2017, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 26 September 2017 (CB 290 to 307) affirming a decision of a delegate of the first respondent (delegate) not to grant them Protection (subclass 866) Visas (visas).
Background
The following background and summary of the Tribunal’s decision is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicants are a family (husband, wife and daughter) who most recently arrived in Australia on 23 December 2014 travelling on student visas. The applicant husband is a citizen of Egypt, the applicant wife a citizen of Poland. The applicant daughter’s nationality was said in the visa application to be Egyptian.
The applicants applied for Protection visas on 31 March 2015 (Court Book (CB) 1 to 156). They claimed to fear harm in Egypt arising from the interfaith marriage of the applicant husband and wife. It was claimed that the applicant husband's family did not approve of the marriage and had attempted to forcibly convert the applicant wife to Islam. The applicants further claimed that they feared harm in Poland from the father of the applicant wife, a Major in the Polish Army, who was also against their marriage.
On 18 November 2015, the applicant husband attended an interview with the delegate. On 26 May 2016, the delegate refused to grant the applicants the Protection visas (CB 217 to 241).
On 21 June 2016, the applicants applied to the Tribunal for review of the delegate’s decision, and appointed their migration agent as their authorised recipient. On 18 August 2017 the applicants’ migration agent on 25 July 2017 sent the Tribunal (undated) written submissions (CB 255 to 261), statutory declarations made by each of the first applicant (CB 262 to 263) and second applicant (CB 264 to 265), and an English translation of a letter to the first applicant from his brother in Egypt (CB 266 to 268).
On 22 August 2017, the Tribunal invited the applicants (via their authorised recipient) to attend a hearing of the Tribunal, which invitation they accepted. On 7 September 2017 all three applicants attended the Tribunal hearing, at which the first and second applicants gave evidence and presented arguments (the first applicant with the assistance of an interpreter in the Arabic language). The applicants’ migration agent was also present at the hearing (CB 281 to 283).
On 26 September 2017 the Tribunal notified the applicants (via their authorised recipient) of its decision, made that day. The Tribunal’s decision affirmed the delegate’s decision in respect of the applicant husband and applicant wife (CB 290 to 307). The Tribunal set aside the delegate's decision in relation to the applicant daughter, substituting it with a decision that her protection visa application was invalid, and could not be considered.
Tribunal decision
The Tribunal made the following preliminary findings of fact (CB 297 to 298 at [35]):
(a)the applicant husband is an Egyptian citizen, the applicant wife is a Polish citizen, and the applicant daughter is a dual Egyptian/Polish citizen;
(b)the applicant husband can renew his Egyptian passport in Australia;
(c)the applicant daughter is also a dual citizen and so her protection visa application was invalid pursuant to s 91P of the Migration Act 1958 (Cth)(Act);
(d)the Tribunal accepted the respective families of the applicant husband and the applicant wife oppose their marriage, and they have been subject to a “range of mistreatment” in Egypt; and
(e)a s 438 certificate on the Department file (CB 242) was not valid but, in any event, the Tribunal was not satisfied that any information referred subject to it was material to the applicants' case (CB 298 to 299).
The Tribunal accepted that the applicants face a real chance of suffering serious and/or significant harm in both the applicant husband’s home region in Egypt and the wife’s home region in Poland, for reasons of their membership of a particular social group comprised of persons in an interfaith marriage. It also accepted that the applicants could not safely relocate within Egypt (CB 298 to 299 at [36] to [38]) or Poland (CB 298 to 300 at [39] to [43]).
Noting that the applicants conceded at the hearing that the applicant daughter was a Polish citizen from birth, the Tribunal found the applicant wife and daughter are both citizens of Poland and as such, do not require a visa to travel to Poland (or to another State within the European Union (EU)). Further, on the basis of the available country information, the Tribunal was satisfied that the applicant husband could also reside in Poland (or in another State within the EU) as a family member of the applicant wife and applicant child. As a result, the Tribunal was satisfied that, for the purpose of s 36(3) of the Act, the applicants had not taken all possible steps to avail themselves of the right to enter and reside in a State within the EU outside of Poland (CB 300 to 303 at [44] to [56]).
The Tribunal then proceeded to consider the requirements in s 36(4) of the Act. The Tribunal found that the applicant daughter would not have a real chance of suffering serious harm or significant harm throughout the EU by reason of her mixed heritage. While the Tribunal accepted that the moving elsewhere in Europe would give rise to stress, it was not satisfied that this would cause the applicants to suffer serious harm or significant harm. The Tribunal was not satisfied that there was a real chance of the applicants being traced if they moved to another State within the EU. Nor was it satisfied that an “anti-Islamic sentiment” would give rise to a real chance that the applicants would suffer serious harm or significant harm. The Tribunal was also not satisfied that the applicants would face a real chance of suffering serious harm or significant harm on the basis of being failed asylum seekers. As such, it was satisfied that the applicants did not have a real chance of suffering serious harm or significant harm throughout the EU (CB 303 to 307 at [57] to [71] and [72] to [77]).
In relation to ss 36(5) and (5A) of the Act, the Tribunal was satisfied on the available country information that the applicants would not be returned from a State within the EU, to another EU State where they would have a real chance of suffering serious harm or significant harm (CB 306 to 307 at [72] to [75]).
For these reasons, the Tribunal concluded that Australia did not have protection obligations in respect of the applicants pursuant to s 36 of the Act (CB 307 at [78] to [81]).
Application to this Court
By an application to show cause filed with the Court on 23 October 2017, the applicants seek judicial review of the Tribunal’s decision, and raise six grounds of review.
The matter was initially docketed to another Judge of the Court (first primary Judge). On
2 February 2018, the first applicant appeared before the first primary Judge for directions. On that occasion the Court made orders by consent, inter alia, appointing the first applicant as litigation guardian for the third applicant because she was (and still is) a minor, and granting the applicant’s leave to file any Affidavits and an amended application by 25 May 2018. While the applicants filed three Affidavits on 23 May 2018, no amended application was filed within the period allowed by the grant of leave.
The proceedings were later transferred to the central migration docket where they remained until when, on 14 July 2022, they were brought into my docket. On that date I made orders for the preparation of the matter for hearing, which I listed before me on 21 September 2022. By those orders the applicants were again granted leave to file any amended application. They did not do so, nor did they file written submissions as ordered.
Accordingly, the grounds of review before the Court are those contained in the originating application and are as follows (errors in original):
1.The Tribunal affirmed the decision of The Department of Immigration and Border Protection decision without giving attention to [the first applicant’s] immediate rights and circumstances.
2.The Tribunal erred in that the Applicants Application should not be refused because he had no immediate right to go to any other country in his own right, and is dependent on his Wife’s exercising her right to go to the EU before any right arises for him to go there as her spouse.
3.The Tribunal sets aside the Department of Immigration and Border Protection decision to refuse [the third applicant] a protection visa and substituted the decision that her protection visa is not valid and cannot be considered.
4.The Tribunal made this decision based on the acceptance that the applicant daughter is a dual citizen (English/Polish).
5.This matter was previously dealt with, with the Department of Immigration and Border protection and determined that the applicant daughter was not a dual national. This was covered in an email to the Department of Immigration and Border Protection dated 31 December 2015.
6.The Tribunal in error has voided the Applicant daughter’s application.
At the hearing before me on 21 September 2022, the first and second applicants appeared in person, the first applicant utilising the assistance of an interpreter in the Arabic language. The first respondent was represented by Counsel.
The Court Book was received as evidence and marked Exhibit “1R” together with the following two Affidavits of Jennifer Louise Strugnell:
(a)made on 16 September 2022 (first Strugnell Affidavit) which was read without objection. The first Strugnell Affidavit annexed documents which ought to have been included in the Court Book at the time of its preparation; and
(b)made on 21 September 2022 (second Strugnell Affidavit) annexing evidence of Polish citizenship law. Initially the first applicant objected to the Affidavit being received on the basis that he disagreed with the content of the Annexures. However, the first applicant did not appear to maintain that objection once the Court had confirmed that certain information which had been obtained by the applicants from the Polish Consulate in Sydney was in the Court Book (CB 213). The second Strugnell Affidavit was received pursuant to s 174(1)(b) of the Evidence Act 1995 (Cth) as evidence of foreign law given that the Court is required, as part of assessing whether the Tribunal made a jurisdictional error, to determine whether or not it was open to it to decide as it did in relation to s 91P of the Act.
As noted above at [16], in 2018 the applicant’s filed three Affidavits, being two Affidavits of the first applicant made on 23 May 2018 which annexed documents that had already had been included in the Court Book. Accordingly, the Court did not receive them.
The Affidavit of the second applicant made on 23 May 2018 was received as a submission. By that Affidavit the second applicant made statements about difficulties she claimed to face if her husband were not allowed to stay in Australia and at [2] deposed to the following:
I would like to say, that unfortunately in case my husband is not able to legally reside in Australia and is asked to leave, I will not be able to provide him accommodation or help him to obtain residency in my home country, Poland or any other country. I will file for divorce and take my daughter to live with my parents. There are several reasons behind such decision.
As I explained to the applicants at hearing, evidence about their present marital circumstances or future intentions, which was not before the Tribunal, cannot invalidate the Tribunal’s decision. This includes the state of the applicant’s marriage some years after the decision, about which the Tribunal was not required to speculate unendingly. The second applicant told the Court that at the time of the Tribunal’s decision the marriage between she and her husband was “fine”, but that this had subsequently changed. This submission is supported by an Affidavit made by the wife applicant on 23 May 2018, by which she states that she would divorce the applicant if he is unable to remain in Australia.
Grounds 1 and 2
The first two grounds assert error in relation to the Tribunal’s finding that the applicant husband had a “right” to enter the EU within s 36(3), as this was dependent on his wife exercising such a right. The section of the Act relevantly provides:
(3)Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
In relation to the first and second grounds, the applicants told the Court that the Tribunal erred by failing to consider that the first applicant did not possess what he described to be a “full right” to travel to, and reside in, Europe (without obtaining a visa), because any such right is attached to the his relationship to his wife and/or daughter. In this regard, emphasis was again placed on the alleged (or impending) breakdown of the marriage, which the applicants say would crystallise if the first applicant were not allowed to remain in Australia.
The first respondent submits that these considerations do not equate to the applicant husband not having a “right” as interpreted in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 (SZRHU) at [77] to [79]. Such a right need not be legally enforceable and is less certain or secure than rights accompanying citizenship. In SZRHU at [79] the analysis of s 36(3) in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 (V856/00A) was approved. In V856/00A at [26] the Court contemplated that if “a statute or piece of positive law of the country in question granted a permission on satisfaction of certain preconditions” that may be “a right, albeit inchoate.” The right in question in the instant case is said to arise from satisfaction of certain preconditions (namely, the presence of the applicant wife). The first respondent says the Tribunal did not err in finding the applicant husband had a “right” within the ambit of s 36(3).
As I explained to the applicants at the hearing, the apparent change in circumstances (namely, the state of their marriage), does not give rise to a legal error such as would have the effect of invalidating the Tribunal’s decision, given that it is raised for the first time in statements made to the Court. In the circumstances of this case, the Tribunal was entitled to find that the husband applicant possessed a right pursuant to s 36(3) (as set out at [24] above) on the material before it.
The finding was made on the basis that the first applicant could still enter the EU albeit accompanying, or to join, his wife. That the husband applicant may not wish, or be able for some other reason, to travel with his wife or daughter does not detract from the Tribunal’s finding in this respect.
Grounds 1 and 2 are not made out.
Grounds 3, 4, 5 and 6
The remaining four grounds concern the applicant daughter. The Tribunal found that the child was a dual citizen at the time of the visa application (CB at 300 to 301 at [47]). The first respondent submitted that the Tribunal was correct to so find.
By reference to correspondence submitted from the Polish Consulate concerning proof of citizenship (CB 215) there is nothing to undermine the position that the daughter is a Polish citizen as a result of being born to a Polish citizen (her mother). As a dual citizen of Egypt and Poland, the applicant daughter would thereby satisfy s 91N(1) of the Act, which provides:
(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.
Having been found to satisfy the relevant Subdivision, the Tribunal found the applicant daughter’s visa application to be invalid pursuant to s 91P, which relevantly provides:
Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
(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.
It is noted by the first respondent that whether or not s 91P applies is a question of jurisdictional fact to be determined by the Court. In support of this, the first respondent relied upon Annexure “JS-1” to the second Strugnell Affidavit which is a copy of a document from the Polish Government website in relation to the acquisition of Polish Citizenship.
In relation to grounds 3, 4, 5 and 6 the applicants submitted at the hearing that although the applicant daughter is a dual citizen by birth, there appeared to be an absence of legal documentation to support this.
Before the Court the applicants accepted that the “right” was not dependent on documents, but rather was an entitlement to obtain said documents.
As the first respondent submitted, there is a distinction between being a citizen and persuading your government to give you evidence of that. In AHZ16 v Minister for Immigration and Border Protection [2018] FCA 164 per Perry J at [27] the Court held that:
Finally, I raised an issue with counsel for the Minister at the start of the hearing as to the nature of the FCC’s jurisdiction on judicial review of the delegate’s decision that the visa application was invalid. In this regard, the jurisdictional facts prescribed by s 91P(2) are not expressed to turn upon whether the Minister (or her or his delegate) is satisfied as to their existence: cf e.g. the criteria for the grant of a protection visa under s 36(2)(a) and s 36(2)(aa) of the Act which turn on whether the Minister “is satisfied” that protection obligations are owed to the person. As a consequence, it was not in issue before the FCC that it was for the primary judge to decide whether the appellant was a national of two or more countries for the purposes of s 91N(1) and 91P(2) of the Act. The primary judge was, in other words, required to make findings of fact based upon the evidence before him in order to decide whether the delegate correctly rejected the application as invalid. This was not therefore a case where the primary judge was required to decide whether the delegate had erred in being satisfied of the existence of those facts and, if so, to remit the matter to the delegate to reconsider those factual issues according to law. It follows that I agree with the construction in this regard adopted by Farrell J in SZQYM at [14] and [46]–[47] (applying the reasoning in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [128] and [38] (Gleeson CJ, Gummow, Kirby and Hayne JJ)).
Relying on AHZ16 (supra) the first respondent submitted that the task of obtaining documentation to evidence the applicant daughter’s citizenship was ultimately a matter for the applicants, but this did not vitiate the Tribunal’s findings, which were open to it. I agree.
Overall I am satisfied that s 91P applied to the third applicant such that the decision of the Tribunal that the visa application was invalid was correct. I am of the view that grounds 3 to 6 (inclusive) do not give rise to a jurisdictional error.
Lastly the first applicant made submissions to the Court to the effect that he was unhappy with the Tribunal’s findings that any right he had to enter or reside in Poland or any other European Union country. The root cause of this unhappiness appeared to be that the first applicant found it unpalatable that his rights were somehow contingent upon his wife. When asked, leaving his personal feelings aside, to identify any further legal error, the first applicant did not have any further submissions to make.
Overall, while it is understandable that the applicants are disappointed by the outcome of the Tribunal’s decision, I find that it was made according to law. There may be many reasons why the applicants would prefer to stay in Australia rather than to seek to make their way as a family in Europe, however those preferences aside and notwithstanding that there would inevitably be bureaucratic hurdles for them to clear in establishing themselves elsewhere is not sufficient to establish an error on the part of the Tribunal.
Absent a jurisdictional error, the decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Act, and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 7 March 2023
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