SZIPL v. Minister for Immigration & Anor

[14] I dealt with this issue at [34]-[37] of my earlier judgment. In that judgment I took the view that the Tribunal erred in asking itself the wrong question. Although the Tribunal stated that it had not accepted that the applicant is an Iraqi national and found that she is a Syrian national, there was no consideration of the possibility of dual citizenship. In fact, there was no reasoned consideration of the possibility of Iraqi citizenship at all. I stated that s.36(6) of the Migration Act requires that the determination of nationality be made solely by reference to the law of the relevant country. I said that the Tribunal was confronted by two questions as to nationality and effectively answered only one of them, albeit on the opposite basis to the first Tribunal which accepted that both the applicant’s natural parents were Iraqi and was not satisfied that she was a Syrian national. My conclusions require reconsideration in the light of the more complete submissions made by the parties on the issue of nationality at the rehearing before me on 23 June 2009.

[15] The applicant made conflicting and confusing statements about her nationality. In her protection visa application she claimed to be a citizen of Syria with a Syrian father and an Iraqi mother and Syrian siblings. In an application for migration to Australia made in 1999 the applicant stated that she only held Syrian citizenship. She also provided evidence of Syrian nationality. Further, the applicant claimed to be Syrian in a partner migration application made in 2004. However, before the first Tribunal the applicant claimed to be an Iraqi national. She denied being a Syrian citizen. The Tribunal as presently constituted considered the applicant’s claims on that basis. There is no dispute that there was evidence before the Tribunal which entitled it to conclude that the applicant was a Syrian national. The applicant contends that there was no evidence before the Tribunal which supported a finding that she was not an Iraqi national and that the Tribunal’s non acceptance of her claim to be an Iraqi national must have been based on the view that nationality of both Syria and Iraq was mutually exclusive.

[16] The Tribunal made no express finding that the applicant was not an Iraqi national. The Tribunal was not satisfied that the applicant was an Iraqi national as she had claimed. I accept the Minister’s submission that the Tribunal did not require controverting evidence to support that lack of satisfaction. There is nothing before me which would enable me to conclude that the applicant was or was not entitled to Iraqi citizenship (which would, it seems, turn on the fact that her mother was an Iraqi). Neither is there anything before me that would enable me to conclude whether, if the applicant was entitled to Iraqi citizenship, that was capable of being held at the same time as Syrian citizenship. Neither did the applicant claim to be a dual national. She claimed only to be a national of Iraq before the Tribunal.

[17] Further, I accept the Minister’s contention that even if the applicant had dual nationality, she would not be entitled to protection pursuant to the Convention unless she had a well-founded fear of harm for a Convention reason in both Iraq and Syria.

[18] The difficulty is that while the Tribunal’s finding that the applicant was a Syrian national was clearly articulated and explained, the Tribunal did not provide any reasoning for not accepting the applicant’s claim that she was an Iraqi national. It may have been that the Tribunal considered that claims of Iraqi and Syrian dual nationality were not available. There may or may not have been a proper basis for such a view. I do not know. Secondly, the applicant’s claims of a well-founded fear of harm in Iraq were not considered by the Tribunal as presently constituted because it did not accept the applicant’s claim that she was an Iraqi. The Tribunal only considered her claims in relation to Syria.

[19] Although the applicant’s protection visa application asserted that she was a Syrian national, her statement of her claims provided with that application supported four possibilities, namely that she was a Syrian national or that she was an Iraqi national or that she had dual nationality or that she was stateless. The first Tribunal erroneously proceeded on the basis that the applicant was stateless. The Tribunal as presently constituted proceeded on the basis that the applicant was Syrian and only Syrian. Having found that the applicant was a national of Syria, the Tribunal did not need to consider the possibility that the applicant was stateless. The issue of dual nationality would be relevant if it bore on the risk of harm that the applicant feared in Syria. The applicant’s protection visa claims asserted that she was at risk of being refouled from Syria to Iraq or at least to be put between the two countries. In other words, the applicant feared that she would not receive protection or enjoy the benefits of Syrian citizenship because of her connection with Iraq.

[20] Upon reflection, in my view, the Tribunal dealt adequately with the applicant’s claim of being at risk in Syria because of her connection to Iraq (whether based on citizenship or otherwise) in its reasons. Relevantly, the Tribunal said:

"The Tribunal accepts that the applicant and her family resided in Iraq for 20 years and that they returned in 1994. The Tribunal accepts that the applicant may have had difficulty obtaining employment and education in Syria. The Tribunal has not accepted that the applicant is an Iraqi national and has found that the applicant is a Syrian national. The Tribunal does not therefore accept that the applicant was denied education and employment for that reason. The Tribunal does not accept that the fact that the applicant’s mother was an Iraqi national or that she had lived in Iraq for 20 years would affect her ability to obtain employment and education, given that she was in possession of valid identity documentation showing that she is a national of Syria. While the Tribunal is prepared to accept... that the applicant may initially have been perceived as Iraqi given that she lived in Iraq for 20 years, has an Iraqi mother and may have spoken with an accent that differed from other Syrians, the Tribunal does not accept that the applicant could not readily have produced identification showing her status as a Syrian national. The independent evidence, cited in the decision of the previously constituted Tribunal, also indicates that there are many thousands of Iraqis living in Syria and there is no evidence of mistreatment, although they are not generally treated generously in terms of resettlement (US State Department Report on Iraqi refugees in Syria). The Tribunal does not therefore accept that the applicant was denied education or employment in Syria for a Convention reason. The Tribunal is also not satisfied that there is a real chance that the applicant would encounter difficulties in relation to employment or education for a Convention reason upon her return to Syria."

[21] Accordingly, while it would have been better if the Tribunal had addressed more clearly the issue of Iraqi nationality, the risk of harm in Syria that would have flowed from such nationality was subsumed in the consideration of the risk of harm that the applicant feared in Syria by reason of her connection with Iraq.

[22] I conclude that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.