FEDERAL COURT OF AUSTRALIA
NSD 1566 of 2019
Date of judgment:
Migration Act 1958 (Cth) ss 91M, 91N, 91P, 91Q,
Minister for Immigration v SZSSJ (2016) 259 CLR 180
Re Canavan (2017) 263 CLR 284
SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448
New South Wales
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Counsel for the Appellant:
The appellant was self-represented via an interpreter
Solicitor for the Respondent:
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(REVISED FROM THE TRANSCRIPT)
1 This is an appeal from the decision of the Federal Circuit Court refusing the appellant Constitutional writ relief against the decision of the Minister’s delegate made on 7 September 2017 to reject as invalid the appellant’s application for a protection (subclause 866) visa: EHT17 v Minister for Immigration and Border Protection  FCCA 2617.
The legislative scheme
2 Relevantly, s 91M explains the reason for Subdiv AK in Div 3 of Pt 2 of the Act, in which ss 91M–91Q appear. The Parliament stated that the reason it enacted Subdiv AK was that it considered that a non-citizen who could avail himself or herself of protection from a third country, because of, relevantly, his or her nationality, should seek protection from that third country instead of applying for a protection visa in Australia, and that any such person who is an unlawful non-citizen would be subject to removal under Div 8 of Pt 2 of the Act.
3 Section 91P provided, in substance, that where Subdiv AK applied to a non-citizen with dual nationality of two other nations (see s 91N(1)) then, despite any other provision of the Act, but subject to s 91Q, any visa application that he or she made within the migration zone would not be valid. Under s 91Q(1), if the Minister thinks that it is in the public interest to do so, he may by written notice determine that s 91P does not apply to such an application for a visa.
4 The appellant prepared his visa application dated 30 June 2017 with the assistance of a migration agent. In it, he claimed:
to be entitled to protection in Australia by reason of serious threats to his life and wellbeing arising out of circumstances in Lebanon;
that he had been born in Tartous, Syria in 1991, and
that each of his parents had both Syrian and Lebanese citizenship.
5 The delegate found that under Syrian law anyone born to a Syrian Arab father would hold Syrian citizenship at birth. Based on the appellant’s statement in the visa application about his father’s citizenship, the delegate found that the appellant held both Syrian and Lebanese citizenship from the time of his birth. The delegate made the finding as to the appellant’s Lebanese status based on his father’s citizenship under the laws of Lebanon.
6 Accordingly, the delegate found that the appellant was a dual citizen of both Syria and Lebanon, and because of the application of ss 91N and 91P of the Migration Act 1958 (Cth) he was not entitled to lodge the visa application and it was invalid.
7 The delegate’s letter of 7 September 2017 informing the appellant of the decision told him that his application would be considered as a request for the Minister to exercise his public interest power in s 91Q of the Act, and that the request would be assessed against the guidelines for the consideration of purported protection visa applications by persons with more than one nationality in order to determine whether the appellant’s invalid visa application should be referred to the Minister for consideration. The letter said that the Department would notify the appellant of the outcome. There was no evidence before his Honour or me as to what happened to that request, or of any outcome to it.
8 Having regard to what was notoriously known in June 2017 (and thereafter) about the civil war situation in Syria and displacement of thousands of civilians there, it is surprising that this application is still before the courts.
The proceeding before the trial judge
9 The appellant claimed before the trial judge that there was no clear evidence to establish that he was a Syrian citizen and that he was only a Lebanese citizen, despite his admission in the visa application of his parent’s dual nationality. He said that the Department was aware of the terrible situation in Syria but had failed to take that into account when considering him to be a citizen of Syria and that the Department ought to have considered him as being unable to avail himself of protection in that country. He claimed that he would be at serious risk of persecution if he had returned to Lebanon, and that his visa application had been prepared by his migration agent. He said that he was born in Lebanon, it was his country of origin and residence and “Syria was mentioned only because my parents are the holders of both Syrian and Lebanese citizenship”.
10 The appellant tendered two official extracts dated 4 July 2017 from documents of the Republic of Lebanon, first, the individual register of personal status, which stated that he had been born in Tartous in 1991 and had been Lebanese for more than 10 years by virtue of decree number 5247/1994, and, secondly, his family registration by the Ministry of the Interior that included statements that his father had been registered as a Lebanese citizen for more than 10 years, and that the appellant and a deceased younger brother had both been born in Tartous in 1991 and 1993 respectively, together with a notation: “NB: they were registered by virtue of degree number 5247/1994” (the Lebanese naturalisation decree).
11 The appellant also tendered a summary, prepared by a Lebanese university academic, of the effect of the Lebanese naturalisation decree that explained that the decree gave citizenship to a large number of people, over 42 per cent of whom were also Syrian nationals.
12 The appellant swore an affidavit on which he relied before his Honour in which he said that he had been born in Jabal Mohsen in North Lebanon, and had never been to Syria. He denied that he had been born in Tartous, and said that the statements in the two extracts from the Lebanese Government documents which he tendered wrongly stated that he was born there. His Honour, however, correctly rejected that evidence under s 136 of the Evidence Act 1995 (Cth) on the basis that a person is unable to give direct evidence of his or her own place or date of birth simply by a mere self-assertion of those matters. Nonetheless, it was clear enough that there was an issue before his Honour as to the appellant’s place of birth.
13 The Minister relied on evidence as to Syrian law given in an expert report of a Syrian lawyer, Fadi Sarkis, dated 11 May 2019.
The trial judge’s reasons
14 His Honour saw and heard the appellant giving oral evidence and formed an adverse impression of that evidence. He found that the appellant “only wished to give evidence which he believed would support his claims, rather than giving full and frank evidence to assist the [c]ourt”.
15 The trial judge found that the appellant was born in Tartous in 1991 on the basis of his passport that gave Tartous as his place of birth, his own statements in the visa application, the statements in the two official extracts, and his admission in cross-examination that Tartous was his place of birth. His Honour found that at the time of the appellant’s birth, both his parents were Syrian citizens, and that the appellant’s statement to that effect in his visa application supported that finding, as did his implicit and explicit statements in the grounds of his application to the Federal Circuit Court, together with the appellant’s admission in cross-examination that the reason he recorded in his application that his parents were citizens of both Lebanon and Syria, was that that was true.
16 His Honour rejected the appellant’s written and oral evidence that he had been born in Jabal Mohsen and found that the appellant had only made that assertion for the first time that his parents were not dual citizens of Syria and Lebanon after he had read the Minister’s written submissions and realised that it may not be sufficient for his own purposes in the proceeding to establish that he had been born in Lebanon rather than Syria.
17 His Honour accepted the unchallenged evidence of Mr Sarkis that, under Syrian law, a person was a citizen of Syria, if born to a Syrian Arab father.
18 Accordingly, his Honour found that the appellant was a national of two or more countries for the purposes of s 91N of the Act and that the delegate had been right so to find in the decision under review. It followed that the visa application was invalid, as the Full Court had held in SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448. In these circumstances, his Honour dismissed the application with costs.
The appellant’s submissions
19 Before me the appellant argued that his migration agent had inserted the statements that his parents were dual citizens in his visa application, and the migration agent had also made the same mistake when he drafted his grounds of review in the Federal Circuit Court. He said that his parents did not have Syrian citizenship but had been stateless when the Lebanese nationality decree conferred Lebanese citizenship on them. He said he had been careless in not checking the visa application form because the interpreter had not translated the document to him. He said that the two extracts were also mistaken in stating his place of birth as Tartous. He argued that his father did not have Syrian citizenship or identification documents. The appellant reasserted that he was a Lebanese and not a Syrian citizen. He argued that his adverse admissions to his Honour occurred because he was scared and that that had been his first time in court, but that he was telling me the truth about his heritage.
20 An appellate court is bound to conduct a real review of the evidence given at the trial, and of the judge’s reasons for his decision in order to determine whether the trial judge has erred in fact or law. Ordinarily, appeal courts exercise restraint from interfering with a trial judge’s findings of fact if those are likely to have been affected by the judge’s impressions about the credibility and reliability of witnesses whose evidence the judge has seen and heard, unless those findings are “glaringly improbable” or contrary to compelling inferences: Lee v Lee (2019) 372 ALR 383 at 396  per Bell, Gageler, Nettle and Edelman JJ.
21 Their Honours said that those constraints on interfering with a trial judge’s advantage in seeing and hearing witnesses also apply to findings of secondary facts that are based on a combination of a trial judge’s impressions and other inferences from primary facts. However, an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or, which having been disputed, were established by the findings of the trial judge: Lee 372 ALR at 396 .
22 At common law, the question of whether a person is a citizen or national of a particular foreign state is determined according to the law of the foreign state. The common law rule is, in part, a recognition of the principle of international law that every sovereign state has the right, by its own legislation, to settle the rules relating to the acquisition of its nationality: Re Canavan (2017) 263 CLR 284 at 304–305  per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
23 If a person is a dual citizen or holds dual nationality, the Minister cannot consider any application for a visa which the person makes because ss 91N(1) and 91P(2) deem it to be invalid: SZOAU 199 FCR at 449–450  (per Buchanan J), 453-454  (per Barker J) and 460 – (per Robertson J). However, this invalidity can be cured if the Minister, in exercise of his non-compellable power under s 91Q, determines that it is in the public interest that s 91P does not apply to the application:
24 The appellant challenged the trial judge’s findings of fact based on his assertions on appeal that his Honour erred in not accepting his evidence. I reject that argument. The trial judge made his findings based on his acceptance of the official extracts together with the appellant’s multiple admissions in his cross-examination, his visa application form and with his application to the Federal Circuit Court, that he had been born in Tartous and that each of his parents was a citizen of both Syria and Lebanon.
25 Having made those findings, his Honour was entitled, indeed bound, to conclude, having regard to the expert evidence, that the appellant was a citizen of both Lebanon and Syria, and that, accordingly, the delegate had been correct in concluding that his visa application was invalid by force of s 91P(2) of the Act: SZOAU 199 FCR 448; Lee 372 ALR at 396 .
26 Having regard to the statement in the delegate’s letter of 7 September 2017, that the invalid visa application was being treated under the guidelines as a request to the Minister for the purposes of s 91Q, it is unfortunate that there was no evidence before his Honour or this Court as to the outcome of that process, if there has been one, and even more unfortunate if no outcome of that process has yet occurred.
27 Despite what s 91M states, once the Department began the process of considering the “request” to seek that the Minister exercise his non-compellable power under s 91Q to allow the appellant, in the public interest, validly to make the visa application, unless or until that process has been finalised, no steps to remove the appellant should be taken: cf: Minister for Immigration v SZSSJ (2016) 259 CLR 180 at 197–201 – per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
28 The appeal must be dismissed with costs.