AHZ16 v Minister for Immigration and Border Protection

1.2 The decision of the Federal Circuit Court 9 In the FCC, the appellant raised three grounds of judicial review: 1. The Department must accept my application on the basis that on the materials before the Department there was not clear evidence to establish on the balance of probabilities that I can return to Syria a fact which is known by all authorities even though it was assumed that I hold Syrian citizenship by virtue of my birth. 2. I am a citizen of Greece but I have suffered in Greece and my life is in danger and at risk if I am compelled to return to Greece. 3. I am unable to return to either Syria or Greece as I have a genuine fear of harm in both countries. 10 With respect to the first two grounds, the primary judge held that the grounds appeared to invoke "an impermissible merits review" by the Court (FCC reasons at [13]). In other words, they asked the FCC to consider whether it accepted the appellant's claims to fear harm if returned to Syria or Greece, when the FCC had jurisdiction only to determine whether the delegate's decision was lawful. That being so, the primary judge held that the appellant's claims for protection "were never considered on their merits by the Delegate because the Protection visa application was regarded as invalid." (FCC reasons at [13]). As such, the question of whether findings by the delegate about the appellant's protection claims were lawfully reached did not arise before the FCC. That finding is plainly correct. The delegate never reached the point of considering the appellant's claims to fear persecution or significant harm because the delegate found that no valid protection visa application had been made. 11 The primary judge inferred at [14] that the first ground of judicial review encompassed two submissions namely: a) that there was insufficient evidence to justify the Delegate coming to the conclusion that the Applicant was a national of Syria and Greece; and b) whilst the applicant might be a "formal national" of Syria, according to Syrian law he was not an "effective national" and the legal meaning of "national" in s.91N is to be construed as meaning "effective national". 12 The primary judge rejected both submissions. First, the primary judge found that the appellant is a national of two or more countries, namely, Greece and Syria. This finding was based upon the unchallenged evidence of experts in Greek and Syrian law, the appellant's statements in his protection visa application, and the lack of any suggestion or evidence of renunciation or revocation of the appellant's citizenship of either country by him or by a legislative decree (FCC reasons at [15]-[21]). 13 As to the second submission, the primary judge held that the word "national" in s 91N of the Act is not to be construed as involving more than the bare fact of nationality, applying the decisions of the Full Court of the Federal Court in SZOAU v Minister for Immigration and Citizenship [2012] FCAFC 33; (2012) 199 FCR 448 (SZOAU) and the Federal Court in SZQYM v Minister for Immigration and Citizenship [2014] FCA 427; (2014) 220 FCR 505 (SZQYM) at [8] (Farrell J) (FCC reasons at [21]). 14 As a result, the primary judge held that the appellant had failed to establish that the delegate's decision was affected by jurisdictional error, and dismissed the application for judicial review.

1. RELEVANT LEGISLATIVE PROVISIONS 15 Sections 91M to 91Q appear in Division 3, subdivision AK of the Act entitled "Non-citizens with access to protection from third countries". The reason for the subdivision is set out in s 91M which reads: 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. 16 Section 91N relevantly provides that: (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. ... (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. 17 Section 91P in turn relevantly provides that: (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.

2. CONSIDERATION 18 The appellant submitted that even though he was born in Syria, he has not returned to Syria since 1993, as he stated in his protection visa application. Nor did he renew his Syrian passport. The appellant also submitted that there was no proof that he was Syrian or could return to Syria. Nor did he wish to return to Syria. Rather, in his submission, the evidence established only that he was born in Syria. However, the appellant submitted that if he were returned to Syria, he would face persecution from extremists and torture, be required to undertake military service because of the high position he previously held in the army, and would be in real danger, as he explained in his application for a protection visa. The risks that he would face if returned to Syria were matters which he submitted should have been taken into account by the delegate and should have meant that his application for a protection visa was accepted. 19 The appellant's submissions are based upon a misunderstanding of the relevant scheme of the Act, and cannot be accepted. 20 First, to the extent to which the appellant submits that the question posed by s 91P(2) is whether a protection visa applicant is an "effective national" of a third county and not merely a "formal national" according to the law of a third country (relevantly Syria), that construction was rejected by the Full Court in SZOAU (see also FCC reasons at [21]). Decisions of the Full Court are binding on a single judge of this Court on appeal and upon the FCC, that is, it is not open to a single judge of this Court or the FCC to reach a different construction of the legislative provision. Further, even if it was open to me to reconsider the issue, I would agree with the Full Court's construction. It follows, as the Full Court held in SZOAU, that Parliament has excluded notions of "effective nationality" from consideration in determining whether a person is a dual national. Thus Robertson J in SZOAU (with whose reasons Barker J agreed at [9]) held at [60]-[70] that it is apparent that the assumption underlying s 91M is that: a non-citizen can avail herself or himself of protection because of the third country nationality; and, therefore, no additional inquiry into the non-citizen's ability to avail herself or himself of protection is to be made beyond the bare fact of nationality for the purposes of s 91P. 21 Secondly, the appellant's views about whether he holds Syrian nationality based upon his desire not to return there, the fact that he has not renewed his passport, and the other matters on which he relies, do not answer the question of whether he holds Syrian nationality for the purposes of s 91P of the Act. Section 91N(6) requires that question to be answered "solely" by reference to Syrian law. 22 Thirdly, the content of foreign law must be proved by expert evidence as the primary judge held (FCC reasons at [16]). As Gummow and Hayne JJ held in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331: 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. 23 In this case, the primary judge accepted that each of the experts on Greek and Syrian law respectively called by the Minister were clearly experts and found that: 17. Concerning Greek law Ms Deligianni is clearly an expert and in my view her evidence establishes the following: a) Greek law permits dual citizenship and a person with dual citizenship has the same rights as a Greek national or citizen; b) under Greek law "nationality" and "citizenship" have a similar meaning and are often used interchangeably; c) as the Applicant appears to hold an authentic and valid Greek passport, this necessarily means he is a citizen of Greece; and d) as the holder of an authentic and valid Greek passport the Applicant has the legal right to enter and reside in Greece or another European Union country. 18. Concerning Syrian law Mr Sarkis is clearly an expert and his evidence in my view establishes the following: a) a person is deemed to be a Syrian national when born inside or outside Syria to a Syrian father or born in Syria to a Syrian mother and to an unknown father. In other words, an individual acquires Syrian citizenship by birth, regardless of his place of birth as long as his father is a Syrian citizen. If the person is born in Syria to a Syrian mother, but to an unknown father, he or she also acquires Syrian citizenship; b) as the Applicant was born to a Syrian father and assuming no renunciation or revocation by Syrian legislative decree, the Applicant is a Syrian citizen. c) Syrian laws do not differentiate between the concept of a Syrian national and a Syrian citizen. A person who is a Syrian national is a Syrian citizen and vice versa; d) the Syrian Nationality law uses the terms "national" and Syrian "citizen" interchangeably where both terms are interpreted to have the same meaning; e) the Syrian Constitution uses the terms "Syrian citizens" and "citizenship" when referring to persons holding Syrian nationality; f) Syrian law recognises dual citizenship of Syrian citizens and if a Syrian citizen acquires a second citizenship in addition to his Syrian citizenship he has the option, but not the obligation, to renounce his Syrian citizenship by an application to the Syrian Minister of Interior who has the option, but not the obligation, to recommend revocation. Renunciation and/or revocation of Syrian citizenship in these circumstances can only be through a legislative decree; g) based on the assumption that his Syrian citizenship has not been renounced the Applicants [sic] dual Syrian-Greek citizenship is recognised under Syrian law; h) the Applicant has a constitutional right to enter and reside in Syria by reason of Article 38(1) of the Syrian Constitution which provides: 1) A citizen may not be deported from the homeland or denied re-entry to it. 24 No error is established in the primary judge's understanding of the evidence of the expert witnesses. As no expert evidence was led by the appellant to the contrary and he did not challenge the expert evidence relied upon by the Minister, it follows that no error is demonstrated in the primary judge's acceptance of that evidence. Furthermore, the primary judge found that there was nothing to suggest that the appellant has renounced or sought revocation of his Syrian citizenship at any time, or that it has been revoked by legislative decree. That being so, and having regard to the appellant's admissions in his protection visa application, the primary judge's finding that the applicant is a national of two or more countries for the purposes of s 91N has not been shown to be in error (FCC reasons at [19]-[20]). 25 Fourthly, having found that the appellant, as an applicant for a protection visa in the migration zone, held two nationalities, it was not open to the delegate to consider the appellant's application for a protection visa, despite his claims to fear persecution or harm if returned to Syria or Greece. As the primary judge held at [11], a non-citizen who is a national of two or more countries under s 91N, is unable to lodge a valid application for a protection visa by virtue of s 91P, unless the Minister has personally determined that s 91P does not apply to that visa applicant under s 91Q. It was the appellant's own case that no such determination had (yet) been made by the Minister. In those circumstances, s 91P(2) mandates a particular outcome, namely, that the application is not valid for so long as the appellant remains in the migration zone. In turn, s 47(3) of the Act provides that the Minister is under a duty not to consider an application which is not a valid application, while under s 47(4) a decision by the Minister that the application is not valid and cannot be considered is not a decision to refuse to grant the visa. As such, ss 47(3) and (4) make it clear that a decision not to consider a protection visa application because it is invalid cannot be treated as a rejection of the substantive visa application for any purpose under the Act. It follows, as Buchanan J held in SZOAU that: 4. … The effect of the operation of ss 91N(1) and 91P(1) … is that a genuine claim for protection from a true refugee who holds dual nationality may not even be considered on its merits unless the Minister, in a non-compellable and substantially unreviewable exercise of discretion under s 91Q of the Act, makes a formal determination permitting consideration of the application on the ground that it is in the public interest to do so. That determination must then be laid, with supporting reasons, before both Houses of Parliament. Only in that circumstance may a holder of dual nationality obtain a right to consideration of a claim for refugee status, regardless of the peril of his or her situation. 5. The statutory language, which erects this barrier and prevents consideration of a genuine claim, appears to me to be intractable. Parliament must be taken to have intended such an apparently inequitable distribution of rights under the Act. 26 In any event, in this case the Minister submitted that the relevance of the appellant's submissions as to his fear of being returned to Syria or to Greece is not apparent when the appellant could request removal at any time to any country within the European Union other than Greece under s 198(1) of the Act, given his entitlement to reside in any country within the European Union by reason of Greece's membership of the European Union. 27 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)). 28 That said, Buchanan J as a member of the Full Court in SZOAU expressed a contrary view at [6], namely, that the finding of fact by the (then) Refugee Review Tribunal that the visa application was not valid was not reviewable by either this Court or the (then) Federal Magistrates Court. However, as no attack was made on the Tribunal's findings of fact in that case (SZOAU at [57]), his Honour's observation was obiter only. Nor does his Honour explain the basis on which he adopted that construction of the relevant provisions. It follows that I do not consider that the primary judge erred in deciding whether the visa application was valid based upon the evidence before him. 29 In any event, even if I am wrong on this issue and the primary judge erred in considering whether the appellant in fact was a national of two countries, there would have been no utility in granting relief on the appeal. This is because no jurisdictional error has been demonstrated in the delegate's decision, as the Minister submitted. It was plainly open to the delegate to find that the appellant was a national of Greece and Syria on the evidence before the delegate.

3. CONCLUSION 30 For these reasons, the appeal must be dismissed. As the Minister has been wholly successful in defending the appeal, the appellant should pay the Minister's legal costs as agreed or assessed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.