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The Frydenberg case and the stateless refugee claim

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Trevor Poulton discusses the matter of an erroneous "stateless passport" claim in the Frydenberg dual citizenship case.

THE FEDERAL COURT is due to hand down a decision on Treasurer Joshua Frydenberg s44 dual citizenship petition filed by Kooyong constituent Mr Michael Staindl in the High Court (Court of Disputed Returns).   

At the Federal Court hearing on 18 February 2020, Frydenberg’s lawyers Arnold Bloch Leibler (ABL) conceded that there is no Hungarian citizenship law to support the claim that Frydenberg’s mother Erica Frydenberg (nee Strausz) and her family had been deprived of their citizenship.  

However, ABL lawyers entreated the three justices to accept the proposition that Erica Frydenberg’s family likely renounced their citizenship before emigrating from Hungary to Australia. 

According to the ABC report of the hearing, Frydenberg’s lawyer conceded,

'"... we can't produce a piece of paper" to conclusively prove renunciation.' 

Frydenberg’s lawyer also submitted to the court that

'... the Strausz family believed it had separated from Hungary and described themselves as "stateless" on arrival in Australia.’   

Advancing the stateless claim, Frydenberg’s lawyers had filed an expert opinion asserting the Strausz family had obtained a French passport in Paris in 1950, whilst in transit to Australia, that would have required the production of the International Refugee Organisation (IRO) certificate declaring the family to be ‘stateless refugees’. In fact, the particular passport they obtained was plainly not issued by the French Government as a travel document for "stateless refugees". This went unchallenged by Michael Staindl’s lawyers and the Attorney-General.

The myth that the family were stateless refugees rather than migrants, perpetuated by certain media organisations and various politicians, has now infected the Federal Court case as a consequence of an erroneous "expert opinion" left unchallenged.

The following email, attaching a detailed commentary on the passport controversy, has been sent to the legal teams for the Attorney-General, the petitioner and the respondent, recommending that they alert the Court to the error:

From: Trevor Poulton  
Sent: Sunday, 8 March 2020 8:22 PM
Subject: Federal Court - No. VID1351/2019 Staindl -v- Frydenberg - Erroneous 'stateless passport' claim

To: 
Intervener – Commonwealth Attorney-General Christian Porter MP
Thomas Wood – Counsel for the Solicitor-General 
Respondent – Hon Joshua Frydenberg MP’s Lawyers
Arnold Bloch Leibler Lawyers
Catherine G Button QC – Counsel
Petitioner – Michael Staindl’s Lawyers
Bleyer Lawyers 
Alex Aleksov – Counsel

 

Hi All

 

I refer to the Staindl -v- Frydenberg case.  

 

I am the author of the Frydenberg Case – Legal Opinion (11/7/2019), and have been following the case with interest. It is clear the Federal Court justices have been erroneously advised by the lawyers for the parties about the legal status of the French Titre d’Identité et de Voyage (TIV) substitute passport. The claim in the Expert Opinion of Dr Balint that the Strausz family were deemed to be "stateless refugees" by the International Refugee Organisation (IRO) because they were able to obtain a Titre d’Identité et de Voyage (substitute passport) is factually not maintainable, and is a legal nonsense.

 

Dr Balint was not called as a witness by ABL Lawyers at the hearing on 18 February 2020. According to the court record of filed documents, the Petitioner’s lawyers did not file an opinion in response to Dr Balint’s Expert Opinion. Further, they did not require Dr Balint’s attendance for cross-examination. As such, it can be assumed that the lawyers acting for the Petitioner opted to not dispute the controversial TIV claim. Regrettably, the three presiding justices, Chief Justice Allsop, Justice Kenny and Justice Robertson would not have had an opportunity to inquire into Dr Balint’s opinion, and may now be accepting it on face value.  

 

There is no reliable evidence that the Strausz family were the concern of the IRO. Nor is there evidence that they were recognised as "stateless refugees" when they obtained the Titre d’Identité et de Voyage in Paris from the Le Préfet de Police. Informing the Justices of a factual and accurate legal account of the status of the Titre d’Identité et de Voyage is relevant to the attention given by the justices to the historical account of the family’s migration from Hungary to Australia. The justices need to be confident that the Strausz narrative aligns with factual realities to avoid drawing erroneous or false conclusions in the reasons given for their judgement. Whilst the TIV may or may not be a key issue for determining Frydenberg’s Mother’s Hungarian citizenship status, perpetuating an entirely erroneous narrative about the TIV may distort the justices’ perceptions with regards to other factual and legal implications, such as those relating to inside Hungary.   

 

One cannot second-guess what weight or credence the Justices will give to the "stateless refugee" claim, including in determining whether Joshua Frydenberg had taken reasonable steps to renounce his Hungarian citizenship in the circumstances of this particular case.

 

In my view, Bleyer Lawyers for the Petitioner, Arnold Bloch Leibler Lawyers for the Respondent and the Commonwealth Attorney-General the Hon Christian Porter have a duty to now alert the Federal Court justices to the discrepancies surrounding the TIV before the justices hand down their judgment. In that regard, my attached commentary dated Monday 8 March 2020 is available for the justices to peruse upon revisiting the issue. 

 

Regards

 

Trevor Poulton
Solicitor

We shall see if the lawyers are able to rise to the occasion in this unorthodox situation where the justices are now deliberating over their judgment.

Trevor Poulton is a lawyer, author and a champion for environmental causes, and was a member of the Labor Party for 26 years.

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