SZVGE v Minister for Immigration and Border Protection

1. The application for an extension of time within which to appeal be granted and the appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This is an unfortunate matter. 2 The history of the civil war in the Lebanon from about 1975 to 1990 is a very complex one. Part of that narrative involves the activities of the South Lebanon Army (SLA) which operated in Southern Lebanon and was actively supported by the State of Israel. The alliance between the SLA and Israel lasted until Israel's withdrawal from Southern Lebanon in 2000. At this time a number of SLA officers sought refuge in Israel with their families fearing reprisals from Hezbollah. 3 In 2004, the Israeli Knesset passed legislation granting Israeli citizenship to members of the SLA and their spouses, parents and children who were living in Israel at the time. 4 It is against this factual background that the circumstances of these cases arise. The applicants, both of whom had filed applications to extend time to appeal an adverse decision of the Federal Circuit Court (and whom I will refer to as the appellants), are children of a former member of the SLA. They were both born in the Lebanon and fled to Israel, together with their parents, in 2000. They lived in Israel for some time, but in December 2013 arrived in Australia and thereafter lodged protection visa applications. 5 A Departmental Officer concluded that the protection visa applications of both appellants were invalid by reason of the operation of ss 91N and 91P of the Migration Act 1958 (Cth) (Act). Following an initial application for judicial review, in March 2015 the Federal Circuit Court made consent orders quashing the decision of the departmental officer and remitting the applications to the Minister for determination according to law. In April 2016, a Departmental Officer again notified the appellants that their applications were invalid on the same basis as had been identified in the earlier decision. 6 In a considered and detailed decision of the primary judge, the critical finding was made, following an extensive consideration of expert evidence of Lebanese law, that the appellants did not lose Lebanese nationality by reason of having obtained the citizenship of another country, specifically, of Israel. The primary judge explicitly noted that this was the case even though Israel was, on the evidence, described as an "enemy" of the State of Lebanon. It followed that the primary judge found at [54] that the appellants were nationals of both Israel and the Lebanon at the time of the protection visa applications, and at the time of the primary judgment. 7 This finding was determinative for reasons explained by the Full Court in SZOAU v Minister for Immigration and Citizenship [2012] FCAFC 33; (2012) 199 FCR 448. In that case, Robertson J (with whom Buchanan and Barker JJ agreed), rejected a submission centred on s 91M of the Act. Section 91M is in the following terms: 91M Reason for this Subdivision 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. 8 The effect of the submission was that the expression, "a non-citizen who can avail himself or herself of protection from a third country" was the controlling expression in that section and that "nationality" or, "some other right to re-enter and reside in a third country" were the two relevant classes of that capability. The Full Court also rejected a submission that the natural meaning of "can avail" is that the right of the relevant person must be real rather than merely theoretical and that mere nationality, which might not include a right to re-enter and reside, was insufficient. The Full Court explained that a correct reading of s 91M demonstrates that Parliament has made an assumption that nationality means one has the right to re-enter and reside, such that no enquiry should or need be made by the Court beyond the mere fact of nationality (if such a fact is proven). 9 I note an application for special leave against the decision of the Full Court in SZOAU was refused; see SZOAU v Minister for Immigration and Citizenship [2012] HCATrans 190. 10 There are two principal points made in the present appeals with some force by the appellants. 11 The first amounts to the contention that the primary judge fell into error, by finding that they remain nationals of the Lebanon. It is asserted that "the undisputed fact" is that they are prohibited from entering or living in the State of Lebanon for so long as they hold Israeli nationality. The difficulty with this contention is that it is irreconcilable with the finding made by the primary judge following a careful review of the expert evidence, that they remain "nationals" of the Lebanon, and the clear statement of the law in SZOAU that the Court cannot look past this fact to enquire into a right to re-enter and reside. 12 The second point which is made, in further submissions filed today, is that there is a real risk of the appellants, as persons who have held Israeli citizenship, being prosecuted on their return to the Lebanon. As it was put orally in the course of submissions, this is not only by reason of the application of the criminal law of the State of Lebanon but also arises by reason of the possibility of reprisals from persons associated with Hezbollah. The difficulty with this argument is that, as the primary judge correctly found, in circumstances where prosecution under the criminal law (or some other form of retribution) would not result in the loss of Lebanese nationality, it was not relevant to the question before his Honour for the reasons explained by the Full Court in SZOAU. 13 It follows that neither of these grounds demonstrate error. 14 A third matter was raised, which can be dealt with shortly, relating to a consent order made in the earlier proceeding to which I have already made reference at [5] above. The fact that a consent order had been made in a previous proceeding did not provide any basis upon which the primary judge was required to determine the case in a particular way. 15 As noted above, the appellants were out of time in bringing their appeals from the decisions of the primary judge, but at the commencement of the hearing, given that the Minister could point to no particular prejudice, I was prepared to extend the time to grant leave to appeal and deal with the matter on its merits. 16 Before leaving this case I should make reference to s 91Q to which passing reference was made in submissions. Section 91Q(1) provides that: If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given. 17 As s 91Q(7) provides, however: The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. 18 Since the Minister does not have a duty to consider whether to exercise the power under sub-s (1), this power is one which is non-compellable. 19 Having extended the time for leave to file these appeals in the circumstances I have explained, the appropriate course is to dismiss the appeals with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.