SZUZO v Minister for Immigration
[2017] FCCA 2836
•24 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUZO v MINISTER FOR IMMIGRATION | [2017] FCCA 2836 |
| Catchwords: MIGRATION – Application for protection visa – review of delegate’s decision – whether the applicants were nationals of Lebanon at the time of their protection visa applications – whether the applicants are a national of 2 or more countries – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.174, 175 Migration Act 1958 (Cth), ss.29, 45, 47, 91M, 91N, 91P, 91Q, 91X, sub-div.AK of div.3 of pt.2 Other materials cited: Lebanese Nationality Act |
| Cases cited: Baron de Bode’s Case (1845) 8 QB 208; 115 ER 854 SZQYM v Minister for Immigration & Citizenship (2014) 220 FCR 505; [2014] FCA 427 |
| Applicant: | SZUZO |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1148 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 31 July 2017 |
| Date of Last Submission: | 31 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondent: | Ms A Mitchelmore |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1148 of 2016
| SZUZO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 31 July 2017, there were four matters before the Court, as explained in the matter of SZUSF & Anor v Minister for Immigration [2017] FCCA 2553 Each matter concerns the same factual and legal issues. The parties relied upon the same submissions in respect of all matters and for those reasons, I repeat my findings below. .
The applicant named as SZUZO for the purpose of these proceedings is the daughter and sister of each of the other applicants: SZUSF, SZUSG, SZUNJ and SZVGE[1]. They were all born in Lebanon but fled to Israel in 2000 with the husband of SZUSF (the father of the other applicants), who was a member of the South Lebanese Army (SLA).
[1] These identifiers are used not out of any disrespect but by reason of a naming convention intended to be in compliance with s.91X of the Act.
The applicants lodged applications for protection visas. On 19 June 2014, an officer of the Department of Immigration and Border Protection (Department) determined that each of the applications was invalid by operation of ss.91N and 91P of the Migration Act 1958 (Cth) (Act). Those provisions will be set out later in these reasons. For that reason the protection visa applications were not considered by the Minister. The applicants sought judicial review of that determination and, by orders made by consent on 9 March 2015, the Minister was ordered to consider the applications for protection visas according to law. The stated basis for that order was that:
There was not “clear evidence” to establish, on the balance of probabilities, that the applicants were Lebanese nationals according to the laws of Lebanon and dual citizens of Israel and Lebanon, such that sections 91N and 91P of the Act applied.
As will become clear, that was not a sound basis for the order.
On 14 April 2016, a different officer of the Department wrote to the applicants notifying them that their applications were invalid by operation of ss.91N and 91P of the Act. The applicants once again seek judicial review concerning that determination, and the failure by the Minister to consider each of their protection visa applications.
In essence, the applicants contend that, while they were once Lebanese citizens, they lost their citizenship by virtue of having attained Israeli citizenship in 2007. For those reasons, they say ss.91N and 91P of the Act do not apply and their applications were valid.
In order to identify the issue for the Court and the manner in which it is to be resolved, it is first necessary to have regard to the relevant statutory regime.
Statutory framework
In order to have the right to enter and remain in Australia, a non-citizen must apply for a visa of a particular class (ss.29 and 45 of the Act). The Minister must consider a valid application for a visa, but must not consider an application that is not a valid application: s.47(3) of the Act. There are a number of provisions dealing with the validity of an application for a visa. The relevant provision for the purposes of these proceedings is s.91P of the Act.
Section 91P is found in sub-div.AK of div.3 of pt.2 of the Act. Section 91M explains that that subdivision was inserted into the Act 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. …
Section 91N of the Act determines the non-citizens to whom the subdivision applies. It relevantly provides that the 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”. Section 91N(6) provides that, for the purposes of the 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”.
Section 91P(2) provides:
(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 of the Act provides that the Minister may determine that s.91P does not apply to a particular non-citizen. No determination under that provision has been made in these cases.
The issue for determination then, is whether each of the applicants was, at the time of the application for a protection visa, a “national of 2 or more countries”. Before considering the way in which this issue must be determined, it is necessary to address briefly, one aspect of the way in which the parties approached the issue.
There was no expert or other admissible evidence about the law of Israel. That was no doubt because there was no issue between the parties that the applicants were all Israeli citizens. The protection visa applications were made on that basis and these applications were brought on the basis that the applicants’ Israeli nationality disqualified them from Lebanese nationality.
The proceedings in SZQYM v Minister for Immigration & Citizenship (2014) 220 FCR 505; [2014] FCA 427 (SZQYM) appear to have been conducted, and determined, on the basis that the only issue was whether the appellants were nationals of South Korea: see [37], [47], and [56]. It seems to have been agreed that the appellants were, at the relevant time, nationals of North Korea. In light of that, and the way that the applicants conducted these proceedings, even though there was no formal agreement concerning Israeli nationality, I will proceed on the basis that the only relevant factual issue is whether the applicants were, at the time of the protection visa applications, nationals of Lebanon.
Establishing nationality of a foreign country
The word “national” in this context, carries its ordinary meaning which assumes, prima facie, a capability on the part of the non-citizen to avail himself or herself of protection: SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448 at [61]; [2012] FCAFC 33 (Robertson J, with whom Buchanan and Barker JJ agreed).
The determination of the issue is not left by the Act to the satisfaction of the Minister; rather, the Court must “make fresh findings of fact as to the relevant effect” of the nationality laws of the relevant countries on the basis of the evidence before it: SZQYM at [14] (Farrell J). In other words, the question whether a visa applicant is a national of two or more countries is a jurisdictional fact (see City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]; [2000] HCA 5 and Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 at [37]-[41]; [1999] NSWCA 8 (Spigelman CJ)). It is for that reason, with all due respect, that the state of the evidence before the Minister at the time of determining the application of s.91P of the Act is not a sufficient basis for the issue of the writ of mandamus (see [3] above).
At common law, the law of a foreign country is a question of the law of the foreign country and is to be resolved as a question of fact by reference to expert opinion: Re Roberts (2017) 91 ALJR 1018; [2017] HCA 39 at [69] (Keane J referring to the well-known passage in the opinion of Lord Wright in Lazard Bros & Co. v Midland Bank Ltd [1932] All ER 571; [1933] AC 289 at 298 and to Buerger v New York Life Assurance Co. (1927) 96 LJKB 930 at 940-941).
In Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54, Gummow and Hayne JJ explained, at [115]:
The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law. In particular, an English translation of the text of foreign written law is not necessarily to be construed as if it were an Australian statute. Not only is there the difficulty presented by translation of the original text, different rules of construction may be used in that jurisdiction.
(Citations omitted)
See also Baron de Bode’s Case (1845) 8 QB 208, 246-247; 115 ER 854 (de Bode); Earl of Nelson v Lord Bridport (1845) 50 ER 207; (1845) 8 Beav 527, 536; Bumper Development Corporation v Commissioner of Police of the Metropolis [1991] 1 WLR 1362; [1991] 4 All ER 638.
The position at common law has been modified by the introduction of the uniform evidence law. Sections 174 and 175 of the Evidence Act 1995 (Cth) provide:
174 Evidence of foreign law
(1)Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a)a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b)a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c)a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or
(d)a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.
(2)A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country.
175 Evidence of law reports of foreign countries
(1)Evidence of the unwritten or common law of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country.
(2)Evidence of the interpretation of a statute of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute.
(Emphasis in original)
The evidence
Expert evidence
The applicants and the respondent each qualified an expert in Lebanese law.
The applicants qualified Raymond Jamhoury, an Attorney-at-Law, who has been registered at the Bar Association of Beirut since 1970. The Minister relied on the evidence of Rabih Fakhry, a Lebanese lawyer, who has been registered as a member of the Law Bar Association of Beirut since 1994. There is no question that being registered practising lawyers in Lebanon qualifies these witnesses to give expert evidence about the law of Lebanon: de Bode.
The parties tendered an opinion from their expert on four identical questions. It is convenient to set out the evidence of each expert in respect of each question, together with my resolution of the differences of opinion.
a. Is a person born in Lebanon to a Lebanese father considered a national of Lebanon?
The experts both referred to Article 1 of the Lebanese Nationality Act (LNA) No.15 of 19/1/1925 and agreed that a person whose father was a Lebanese national is also a Lebanese national.
b. Can a person be a Lebanese national by reason of their birth in Lebanon, irrespective of the nationality of their father?
Mr Fakhry’s answer to this question was:
15.1.As per Article (1) of the Lebanese Nationality Act No 15 of 19/1/1925, a person is considered as a Lebanese national by reason of their birth in Lebanon, irrespective of the nationality of their father in the following cases:
1-If it is not proven that this person did not acquire a foreign nationality, upon birth, by affiliation; or
2-If that person was born of unknown parents or parents of unknown nationality.
Mr Jamhoury gave the following evidence:
As per article (1) above, the Lebanese citizenship is granted to every person born to a Lebanese father and, as we said earlier, to be considered a Lebanese national, a person must be necessarily born to a Lebanese father and therefore, the condition of the place of birth in normal cases is not required to consider a person born in Lebanon a Lebanese national.
But Article (1), clause (2) of act nᴼ15 provides that:
“Is considered Lebanese:
-Every person born in the Greater Lebanon territory and did not acquire a foreign nationality, upon birth, by affiliation”.
And according to clause (3) of the same article:
-Every person, born in the Greater Lebanon territory of unknown parents or parents of unknown nationality”.
These two clauses were intended to help people who were in the Greater Lebanon territory at the time of establishment of the Lebanese nationality so that every person who was living in the Greater Lebanon territory at the time of establishment of the Lebanese nationality becomes a Lebanese national, while within the State’s territory.
Note that those sections are no longer effective as the deadlines given for the selection of the Lebanese nationality by those living in the Greater Lebanon territory at the time of establishment of the Lebanese nationality expired, and only the first section is currently applicable in terms of giving the persons the Lebanese nationality. In other terms, it is the blood relation that determines the Lebanese identity. However, it is worth saying that according to the law, the persons born in Lebanon are Lebanese nationals if they have unknown parents or parents of unknown nationality.
(Emphasis in original)
With respect to Mr Jamhoury, the meaning of the qualification in the penultimate paragraph of this evidence is not clear. In particular, it is not clear what “time of establishment of the Lebanese nationality” refers to. The reference to “Greater Lebanon” indicates that Mr Jamhoury could be referring to the period after the first world war and the collapse of the Ottoman Empire, in which France held a mandate over the land that included what is the modern state of the Republic of Lebanon.
Given the lack of clarity in Mr Jamhoury’s opinion, I accept the evidence of Mr Fakhry that a person born in Lebanon is a Lebanese national unless “if it is not proven that this person did not acquire a foreign nationality, upon birth, by affiliation”.
c. In what circumstances can a national of Lebanon lose their status as a Lebanese national?
In response to this question, Mr Fakhry referred to Article (1) of the LNA of 31/1/1946 which, he said, states (without alteration):
Will lose the Lebanese nationality:
1-Each and every Lebanese who gets a foreign citizenship, after having obtained the authorization for that, from a decree issued by the head of the country.
2-The Lebanese who accepts in Lebanon a post given to him by a foreign government or by department of a foreign country, without him getting the authorization for that from the Lebanese government. If the Lebanese government doesn’t give an answer regarding the request for the authorization within two months, starting to count from the date of presenting the request, the non-response is considered as a refusal.
3-The Lebanese who lives outside the Lebanese territories and accepts a public post given to him by a foreign country in a foreign country, and keeps this job even if he was ordered to quit this job within an appointed time.
4-The Lebanese who is working now in a post given to him by a foreign country, and keeps this job even if he was ordered to quit it within an appointed time. The loss of the Lebanese nationality in the clauses 2, 3, and 4 takes place in conformity with decree issued by the cabinet.
5-The government can at any time cancel the authorization here abovementioned, by a decision taken by the cabinet.
6-Will also lose the Lebanese nationality the Lebanese person who obtained the Lebanese nationality by naturalization:
(A)- If he was convicted for a crime concerning the security of the country.
(B)- If he belongs to an organization which made a conspiracy or an assault on the security of the country.
(C)- If he belongs to an organization: that have a political crumbled targets or doesn’t have an authorization, or if he was convicted for achieving an activity for the benefit of this organization.
The loss of the Lebanese nationality mentioned in the clauses here above will take place by a decision taken by the cabinet on the suggestion of the Minister of Interior.
Mr Fakhry then referred to Article (3) of the LNA of 31/1/1946, which provides:
Each and every foreigner who was naturalized Lebanese, will lose this nationality if he stays away from Lebanon for five continuous years.
(Citations omitted)
Mr Fakhry explained that naturalisation was regulated by the law dated 27 May 1939. His description of that law indicates that it is not relevant to these proceedings.
Mr Fakhry gives his opinion on the basis of his exposition of the Lebanese laws that a national of Lebanon may lose his or her status as a Lebanese national in the following ways:
16.3.1.Voluntarily, by acquiring a foreign nationality after obtaining a licence by decree of the Head of State … or,
16.3.2.As a result of a sanction as per Articles (1) and (3) of the law of 31/1/1946.
Mr Jamhoury first refers to Article (8) of Act No.15 amended by the Act dated 31/1/1946 and by Decree No.10828 of 9/10/1962 which appears, in substance, to be the same as the law to which Mr Fakhry referred. Article (8) provides (without alteration):
1-Each and every Lebanese who gets a foreign citizenship, after having obtained the authorization for that, from a decree issued by the Head of the country.
2-The Lebanese who accepts in Lebanon a position given to him by a foreign government or a department of a foreign country without him getting the authorization for that from the Lebanese government. If the Lebanese government does not give an answer regarding the request for the authorization within two months, starting to count from the date of submitting the request, the non-response is considered as refusal.
3-The Lebanese who lives outside the Lebanese territories and accepts a public position given to him by a foreign country in a foreign country, and keeps this job even if he was ordered to quit this job within a determined time limit.
4-The Lebanese who is working now in a position given to him by a foreign country, and keeps this job if he was ordered to quit it within a determined time limit.
The loss of the Lebanese nationality in clauses 2, 3 and 4 takes place in conformity with a decree issued by the Cabinet.
Clause (6): Will also lose the Lebanese nationality the Lebanese person who obtained the Lebanese nationality by naturalization:
(A)-If he was convicted for a crime concerning the security of the country.
(B)-If he belongs to an organization which made a conspiracy or an assault on the security of the country.
(C)-If he belongs to an organization that has political crumbled targets or doesn’t have an authorization, or if he was convicted for achieving an activity for the benefit of this organization.
(Emphasis in original)
Mr Jamhoury then refers to Article (3):
Article (3) – Each and every foreigner who was naturalized Lebanese will lose this nationality if he stays away from Lebanon for five continuous years.
(Emphasis in original)
Mr Jamhoury explains that:
In this act, the legislator made a distinction between two cases: 1) intentional waiver of the Lebanese nationality by a Lebanese citizen and 2) compulsory deprivation of the Lebanese nationality…
He then explains that:
With respect to the crimes committed by the Lebanese against the State security such as treason, infiltration and illegitimate contacts with the enemy, the Lebanese code of criminal procedure only provides for the imprisonment as sanction against those. Regarding the illegitimate contacts with the enemy, Article 285 of the code of criminal procedure stipulates as follows:
-Shall be sentenced to at least one-year imprisonment and a fine of no less than LBP /200,000/ every Lebanese and every resident of Lebanon who has concluded, or sought to conclude, whether directly or through a false person, a purchase, sale or trade agreement with any of the enemy’s nationals or any resident of the enemy State.
-Shall be sentenced to the penalty every Lebanese and every Arab national residing in Lebanon who, directly or indirectly, and without the prior consent of the Lebanese State, enters the enemy country, even if not for the purpose of any of the activities set forth in the previous section of this article.
(Emphasis in original)
Mr Jamhoury then refers to Article 278 of the Code of Criminal Procedure (CCP) which, he says, provides:
Any Lebanese who has offered housing, food or clothing to a spy or to an enemy soldier or to an infiltrator or assisted him to escape or intentionally made contact with him is punished with temporary imprisonment with hard works.
Shall be sentenced to temporary detention any Lebanese who has facilitated the escape of a prisoner of war or any of nationals of the enemy imprisoned.
(Emphasis in original)
Mr Jamhoury then expresses the following opinion (without alteration):
It results from the foregoing the exclusive cases in which the State can deprive a Lebanese citizen from his (her) Lebanese nationality as stated above.
But the mere entry of Lebanese citizens to an enemy State, i.e. Israel herein, with no crime having been committed by them against the Lebanese State shall be sanctioned under Article (285), clause (2) of the Lebanese code of criminal procedure, although being holders of the Israeli nationality shall not make them lose the Lebanese one as previously mentioned.
However, the Lebanese State shall deal with them the way it deals with any Lebanese persons who have breached the Lebanese law. Accordingly, in case of the return of the Lebanese citizens who have entered Israel, resided therein and acquired its nationality, they shall be immediately transferred, as soon as they step on the Lebanese territory, to the Lebanese Army Intelligence, then to the Lebanese military court where they shall be subject to trial pursuant to the abovementioned laws.
Note that to be allowed to enter Lebanon, the Lebanese citizen, holder of an Israeli passport, must deliver his (her) Israeli passport to the Lebanese authorities at the first Lebanese Security center and automatically desist from the Israeli nationality, for the Israeli citizen is someone who belongs to an enemy State and thus, is prohibited from entering or living in Lebanon as long as he (she) holds the Israeli nationality or the nationality of any other State labeled as enemy State.
On the other hand, the national and social aspect must be taken into consideration in this case, for the place of residence of the persons concerned in this case is located in what is previously known as the “Israeli-Lebanese border line” region where both Christians and non-Christians lived (most of whom are Shiaa Muslims mostly affiliated with Hezbollah whose role was major in the defeat of Israel in 2000 and the dissolution of the South Lebanon Army which caused thousands of Lebanese citizens to flee with their families to Israel for fear of any potential attacks against them at that time).
Since so far, no national reconciliation has been made by the Lebanese State in that region, that would involve renouncement of the claims and legal proceedings filed against the Lebanese citizens who escaped to Israel for fear of any attacks against them, which means that the security situation is still shaky for those who intend to return to Lebanon, not to mention the legal proceedings against them, in addition to the sanctions and judgments they would incur.
Mr Jamhoury does not express the basis for his opinion that, in order to be allowed to enter and reside in Lebanon, a Lebanese national must hand his or her Israeli passport to the authorities and desist from Israeli citizenship. I will deal with this aspect of Mr Jamhoury’s opinion in more detail after setting out Mr Fakhry’s opinion in respect of the fourth question.
d. If a Lebanese person becomes a citizen of Israel and obtains an Israeli passport, does that person automatically lose their status as a national of Lebanon?
Mr Jamhoury’s answer to this question appears to have been given in response to the previous question. He states that the mere fact that a Lebanese national becomes a citizen of Israel does not result in the loss of Lebanese nationality.
Mr Fakhry gave the following response to this question (without alteration):
17.1.In 2000, upon the liberation of the South of Lebanon and the withdrawal of the Israeli forces, number of Lebanese, who were member of the South Lebanon Army (SLA), escaped with their families (wives and kids) to Israel and obtained the Israeli citizenship and Israeli passports. After residing for more than ten years in Israel, some of them returned to Lebanon. They were prosecuted by the public prosecution based on article 278 of the criminal code which stipulates that:
Any Lebanese who has presented housing, food or clothing to a spy or to an enemy soldier or to an infiltrator or assisted him to escape or intentionally made contact with him is punished with temporary imprisonment with hard works.
17.2In this regard the Criminal Chamber of the Court of Cassation in its judgment No. 68/2016 (Session on 16/2/2016) ruled that:
The act attributed to (F.A) is the marriage of an Arab who holds the Israeli nationality and therefore acquiring himself that nationality is not sufficient alone to prove the availability of any of the criminal acts provided for in Article 278 of the criminal code…
17.3.Also in its judgement No 328/2012 (Session on 13/11/2012) the Criminal Chamber of the Court of Cassation ruled that:
The mere acquisition of the Israeli citizenship as a result of residence in the enemy country after the escape and resorting to it following the liberation in 2000, is not sufficient to say alone that one of the criminal act stipulated in Article 278 of the criminal code mentioned above has been committed
17.4.It can be concluded from the above court cases that the fact for a Lebanese person to acquire the Israeli Nationality is not a proof of committing an incriminated act, and cannot therefore constitute a ground for making him loose [sic] his status of Lebanese Citizen.
17.5.Moreover, in February 2002, the Minister of Defense addressed a letter to the Presidency of the Council of Ministers requesting the withdrawal of the Lebanese nationality from Officer Antoine Lahad under Article 3, paragraph 3 of the law issued on 31/12/1946 to be able to cut the financial pension rights that he was entitled to.
17.6.The request was based on the fact that Lahad has accepted a public function given to him by Israel despite the fact that he had been ordered to give it up, and not on the unique fact that he has acquired the Israeli Citizenship.
17.7.The letter of the Minister of Defense was published in Al Safir newspaper dated 5/3/2002, stating as follows:
Since Lahad is in charge of the SLA militia, which is directly related to the Israeli enemy who has equipped this militia and paid the salaries of its soldiers, and gives them orders and instructions, and that the infiltrator has an Israeli passport similar to that granted to Israeli Arabs and is in the city of Tel Aviv, in a secured villa,
… since article 3 (1), as amended by the law of 31 December 1946, provides for the loss of Lebanese nationality “to a Lebanese resident outside Lebanese territory who accepts a public office held by a foreign government in a foreign country, despite the fact that he was ordered to give up at a certain time”,
… Since the conditions of the above presented text are verified in the case of infiltrator Antoine Lahad, since his connection with the Israeli enemy is functional, financial and at the security level, noting that what is required in above mentioned paragraph (3) is not possible for the presence of the infiltrator in Israel, as it is impossible to notify him the order of abandoning his duties as the commander of the South Lebanon Army linked
The retirement rights can only be obtained following the loss or deprivation of Lebanese nationality, as stipulated in Articles 38 and 39 of Legislative Decree No. 47/1983 (Retirement and Discharge)
17.8.It can be established from the letter addressed by the Minister of Defense to the Presidency of the Council of Ministers that the fact that a Lebanese person becomes a citizen of Israel and obtains an Israeli passport, does not constitute in itself a cause for losing automatically his status as a national of Lebanon.
(Emphasis in original)
Mr Fakhry concludes:
19.1.A person born to a Lebanese father is considered a national of Lebanon.
19.2.A national of Lebanon loses his or her status as a Lebanese national in the circumstances mentioned in Articles (1) and (3) of the Lebanese Nationality Act of 31/1/1946
19.3.If a Lebanese person becomes a citizen of Israel and obtains an Israeli passport, he does not automatically lose his or her status as a national of Lebanon.
Mr Fakhry does not address either the operation of Article 285 of the CCP referred to in Mr Jamhoury’s opinion, or the question of whether a Lebanese national who has acquired Israeli citizenship, would be required to renounce his or her Israeli citizenship in order to enter and reside in Lebanon. It appears that, apart from those two issues, both expert witnesses agree with the proposition stated in [41] above. For that reason, I accept that those matters represent the Lebanese law regarding nationality.
In respect of the two issues concerning the return to Lebanon of Lebanese nationals with Israeli citizenship, only the second is of any possible consequence: that is, whether or not that person will be prohibited from entering or living in Lebanon as long as he or she holds Israeli nationality. Mr Jamhoury does not say that prosecution under Article 285 of the CCP will, of itself, result in the loss of Lebanese nationality.
Unlike Mr Jamhoury’s other opinions, his opinion about this issue is not supported by reference to any law. Rather, it is no more than the expression of a conclusion. As such, I would either reject it, or if it were admitted into evidence, give it no weight. For that reason, although I do not consider that it is important to the resolution of the issues (as to which see [54] below), I am not satisfied that, in order to enter and live in Lebanon, a Lebanese national who holds Israeli nationality must first renounce his or her Israeli nationality.
Other evidence
The applicants accepted that they were born in Lebanon. That is consistent with their passports and the information in their protection visa applications. In addition, they each stated that their citizenship at birth was Lebanese.
As I have noted, SZUSF is the mother of the applicant in this proceeding and the other applicants. The protection visa applications show that her husband, the father of SZUZO and the other applicants, was also born in Lebanon. An extract of the records of the Department, records the father’s citizenship as Lebanese. It appears that the father had applied for, but was refused, an offshore Refugee and Humanitarian visa in 2002. I infer that the notation of his citizenship came from that application.
In submissions filed on behalf of all the applicants, applicant SZVGE stated that she had spoken to a person at the Lebanese Consulate General in Sydney and was told that she could not have Lebanese citizenship so long as she held Israeli citizenship. There was no admissible evidence of that opinion and I do not take it into account.
The applicants also relied on an extract from a website maintained by Wikipedia concerning Israeli nationality law. This extract included the following statement:
Cancellation of citizenship
There are cases in which the state can initiate a cancellation of citizenship of an Israeli citizen. Article 11 of the Israeli nationality law establishes three circumstances for which citizenship can be revoked:
■If the person entered a state which is considered an enemy of Israel, or obtained citizenship of an enemy state.
…
A 2008 amendment to the Nationality Law of 1952 designated nine countries as enemy states: Afghanistan, Iran, Iraq, Lebanon, Libya, Pakistan, Sudan, Syria and Yemen, as well as the Gaza Strip.
(Emphasis in original)
No basis for that statement is given in the extract and I give it no weight. In any event, there was no evidence that, at the time of the protection visa applications, any of the applicants had entered Lebanon after acquiring Israeli citizenship. That means that the applicants remain Israeli nationals.
The applicants relied on another extract from Wikipedia to the effect that “Israeli law enforcement treats Lebanon as an ‘enemy state’”. So much may be accepted; however, there is no evidence of any consequence of that apart from the extract set out at [48] above. For the reasons I gave at [49], that information does not resolve any of the issues before the Court.
Consideration
The applicants were all born in Lebanon. On the basis of the evidence of Mr Fakhry, which I have accepted, according to Lebanese law a person born in Lebanon is a Lebanese national unless it is proven that this person acquired a foreign nationality, upon birth, by affiliation. There was no evidence that any of the applicants acquired a foreign nationality upon birth by affiliation. Accordingly, I am satisfied that the applicants were all Lebanese citizens at birth.
The same conclusion can be supported by the fact that, with the exception of SZUSF, the evidence shows that the applicants’ father was a Lebanese national.
That conclusion is not controversial. The only real issue between the parties was whether, at the time of the application for a protection visa, the applicants remained Lebanese nationals in spite of their attainment of Israeli nationality.
Again, the answer is clear. With one exception, the expert evidence in respect of this question was the same: a person does not lose Lebanese nationality by the mere fact of having attained the citizenship of another country, even if that country is Israel, an enemy of the State of Lebanon. In light of that, the applicants were at the time of the protection visa applications and remain, nationals of both Israel and Lebanon.
The one matter in respect of which the expert witness qualified by the applicants went beyond the other expert witness, was on the question of whether a person will be prohibited from entering or living in Lebanon as long as he or she holds Israeli nationality. I have given this aspect of the evidence of the applicants’ expert no weight. However, as I have observed, it does not matter in any event.
The validity of an application for a visa is not determined by reference to a time in the future when the visa applicant is to return to one or the other of his or her countries of nationality. Rather, it is to be answered by reference to the time of the visa application: sub-s.91P(2)(b) of the Act. There is no evidence that any of the applicants had re-entered Lebanon and were forced to renounce (or had voluntarily renounced) his or her Israeli nationality prior to lodging the application for a protection visa. As a consequence, even if I were to accept that Israeli nationality could be lost in that way, none of the applicants had lost Israeli nationality before their protection visa applications in that manner.
For those reasons, s.91N of the Act applied to the applicants at the time of their protection visa applications and those applications were invalid by operation of s.91P(2). The Minister was obliged not to consider the applications because of s.47(3) of the Act.
Conclusion
Each application must be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 24 November 2017
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