SZGDO v Minister for Immigration
[2006] FMCA 1171
•14 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDO v MINISTER FOR IMMIGRATION | [2006] FMCA 1171 |
| MIGRATION – Review of a delegate’s decision that a protection visa application was invalid – applicant claiming to be a dual citizen of Argentina and Italy – delegate applying ss.91N and 91P of the Migration Act 1958 (Cth) – delegate overlooked the fact that the applicant denied having dual nationality – decision made incorrectly on the basis of citizenship rather than nationality – decision taken without proper enquiry – jurisdictional error established. |
| Migration Act 1958, ss.91N, 91P, , 91Q, 474, 476, 477, 500 Migration Litigation Reform Act 2005 (Cth) |
| Jong Kim Koe v Minister for Immigration [1997] FCA 306 |
| Applicant: | SZGDO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG573 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 14 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jayawardena |
| Solicitors for the Applicant: | John B Hajje & Associates |
| Counsel for the Respondent: | Mrs S Sirtes |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Time for filing of the application be extended until 22 February 2006.
A writ of certiorari shall issue quashing the decision of the delegate made on or about 13 May 2003 that the protection visa application made by the applicant was invalid.
A writ of mandamus shall issue requiring the Minister to reconsider the applicant’s protection visa application according to law.
The respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG573 of 2006
| SZGDO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of a delegate of the Minister that an application for a protection visa was invalid. The application for an order to show cause was filed on 22 February 2006 and asserted notification of the decision on 14 May 2003, the decision having been made the previous day. The notification of the invalidity of the protection visa application on 13 May 2003 is caught by the transitional provisions in Clause 42, Schedule 1 of the Migration Litigation Reform Act 2005 (Cth) and accordingly, by operation of s.477 of the Act applies as if the decision were notified to the applicant on 1 December 2005. By my calculation the application was filed 83 days after the applicant is taken to have been notified of the delegate's decision on 1 December 2005.
The applicant therefore requires an extension of time for the filing of the application. The Minister no longer opposes an extension of time. The passage of time from 1 December 2005 before the application was filed is significant but I accept that substantial issues are raised in the application and I note that an explanation for delay is provided in the affidavit appearing on pages 60 and 61 of the court book which I received as evidence for the purposes of today's hearing. The applicant was involved in related but separate proceedings in this Court last year[1], which were a distraction from the real issue raised by this application. In my view, the interests of justice require that an extension of time be granted and I order that the time for filing of the application be extended until 22 February 2006.
[1] SZFRK & Ors v Minister for Immigration (SYG337 of 2005)
Relevant background information relating to the application is set out in the Minister's written submissions. I adopt as background for the purposes of this judgment paragraphs 1 to 4 of those written submissions with minor amendments:
On 26 December 2002 the applicant, a (now) 41 year old citizen of Argentina arrived in Australia (court book, page 14).
On 12 May 2003 she lodged an application for refugee status with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 1 to 42) which included a statement of her claims in a letter from her migration agent (court book, pages 26 to 32). The applicant’s answer to question 22 of the protection visa application (which asks “Do you hold any other citizenship?”) was “yes” and stated that this additional citizenship was Italian (court book, page 13).
On 13 May 2003 a delegate of the respondent wrote the applicant and advised her that her protection visa application was invalid by reason of her dual citizenship by operation of ss.91P(2) and 91(N) of the Act and informing her that there was no right to merits review of the delegate’s refusal of the application for protection (court book, pages 43 to 44). On 10 June 2003 a request was made to the respondent to lift the s.91P restriction (court book, pages 45 to 46).
That application was declined by the respondent on 11 September 2003 (court book, page 55).
The Minister filed a notice of objection to the competency of the application on 9 May 2006 but that objection was not pressed.
The applicant sought to rely upon an amended application presented today. I was unable to accept that amended application in the form that it was presented in that it sought relief not only against the Minister but also against the Refugee Review Tribunal (“the RRT”) and contained two grounds, the second of which asserted error on the part of the RRT. The original application merely sought relief against the delegate of the Minister who made the decision in issue.
In SZFRK I permitted the applicant to discontinue an application to be joined to that judicial review proceeding seeking to review a decision of the RRT relating to her relatives. I believed then, and continue to believe, that the present applicant has no standing in this Court to challenge the decision of the RRT. For those reasons I was unable to accept the proposed amended application but I agreed to consider the judicial review application as if the first ground in the proposed amended application were substituted for the grounds of review in the original application.
I sought and obtained an undertaking given on behalf of the applicant to file and serve an amended application that reflected that outcome within seven days[2]. The position is that this Court has jurisdiction to review the decision of the delegate because the decision was not a primary decision for the purposes of s.476(2) of the Migration Act. The decision is not a primary decision because it was not reviewable under part 5 or 7 or s.500 of the Migration Act.
[2] That was done, although the registry declined to file the amended application on the basis that this proceeding had concluded
The decision of the delegate was that the applicant had not made a valid protection visa application. That decision prevented that application being further considered either by the delegate or by a review tribunal. The applicant was dissatisfied with the decision of the delegate and sought reconsideration by the Minister pursuant to s.91Q of the Migration Act. The Minister wrote to the applicant on 11 September 2003 declining to exercise that power (court book, page 55). The Minister's decision is not reviewable (see s.474(7)(a) of the Migration Act).
The issue in relation to the delegate’s decision is essentially whether the delegate was entitled to rely upon a statement by the applicant in her protection visa application that she was a citizen both of Argentina and Italy. In that application form (court book, page 13) the applicant answered question 20 in the application form by identifying her citizenship at birth as that of Argentina. In answer to question 22, “Do you hold any other citizenship?”, she answered "Yes" and identified Italian citizenship. The delegate took that to be an assertion of dual nationality which enlivened subdivision AK of the Migration Act, in particular s.91N(1) and s.91P.
The result was, in the delegate's view, that the protection visa application was invalid. The applicant asserts that her answer to the question in the application form was mistaken and blames confusion with her migration agent. That may well be so but mistaken action by a migration agent will not invalidate a decision taken in reliance upon statements made by an agent on behalf of an applicant.
The difficulty in this case concerns the applicant’s answers to questions 58 and 59 in the application form (court book, page 23). The applicant answered "No" to question 58:
Do you have nationality of any country(s) other than the country in which you claim to fear persecution?
She also answered "No" to question 59:
Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country of nationality or your former country of habitual residence?
This appears on its face to be inconsistent with the assertion of dual Argentinian and Italian citizenship.
Section 91N(1) is expressed in terms of nationality, not citizenship. That term no doubt derives from the Refugee’s Convention which uses “nationality” repeatedly in relation to refugees. Nationality and citizenship will often be the same thing but need not necessarily be so. For example, a person may claim to be a national of Palestine but to be stateless. Likewise, a person may consider themselves a Serbian national but be a citizen of Croatia, and vice versa. Likewise also, a person may consider themselves to be a national of an autonomous region in the Russian Federated Republic but to be a citizen of Russia. The concepts of nationality and citizenship may be easily confused. For example, a person might hypothetically declare citizenship of Iraq, Turkey and Syria but claim nationality of “Kurdistan”, which is not recognised internationally as a nation state, and the claimed borders of which include territory of all three countries.
The applicant asserts that the decision of the delegate was wrong in that in fact, she is not a citizen of Italy. The Minister concedes that indeed the applicant is not a citizen of Italy. The assertion of dual citizenship was apparently made in error. The applicant relies upon the decision of the Full Federal Court in Jong Kim Koe v Minister for Immigration [1997] FCA 306 in support of the assertion that the error establishes jurisdictional error. However, that decision was made before the enactment of subdivision AK of the Migration Act and I do not draw anything in particular from it, other than the obvious observation that questions of nationality are not necessarily simple to resolve.
The protection visa application in this case was received by the Minister's Department on 12 May 2003. The delegate notified his decision pursuant to s.91P(2) the following day. That establishes that the decision of the delegate was made very quickly. There is nothing in the court book to indicate that any inquiry was made by the delegate apart from an examination of what was in the protection visa application. That application on its face included contradictory statements or statements that might be contradictory. While asserting dual citizenship the applicant denied dual nationality. In my view it was not open to the delegate, in the face of a denial of dual nationality and in the absence of any other information, to determine that the applicant was a dual national of Argentina and Italy. The assertion of dual citizenship was not necessarily the same thing as dual nationality and the answers to questions 58 and 59 in the application required further inquiry.
The question of whether the applicant was a national of Italy is probably a jurisdictional fact for the purposes of s.91N(1) of the Migration Act. As a jurisdictional fact it is open to be determined by the Court. However, I do not have sufficient information before me, either of fact or of law, in order to determine whether the applicant is indeed a national of Italy as well as Argentina. She may or may not be. The Minister's concession on citizenship may well point to an outcome that she is not a national of Italy but that is something that can be considered further.
The failure by the delegate to pay proper regard to the answers to questions 58 and 59 in the protection visa application and the failure by the delegate to make any further inquiry when further inquiry was reasonably called for establishes in my view that the decision of the delegate is vitiated by jurisdictional error.
There being jurisdictional error, the applicant should receive relief in the form of the constitutional writs of certiorari quashing the decision and mandamus requiring the Minister to reconsider the applicant's protection visa application according to law. I will so order.
I am satisfied that costs of not less than $2,000 would have been incurred on a party and party basis on behalf of the applicant in this matter. Additional costs probably were incurred but may not have been productively spent. That is a matter for resolution between the applicant and her solicitors. I will order that the respondent pay the applicant's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2006
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