Aag17 v Minister for Immigration

[2018] FCCA 1696

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAG17 v MINISTER FOR IMMIGRATION [2018] FCCA 1696

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – second application by applicant for a protection visa – application for protection visa was assessed to be invalid by the delegate of the respondent under s.48A of the Migration Act 1958 (Cth) – none of the grounds asserted by the applicant established – no jurisdictional error otherwise established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46, 48A, 48B, 474, 476,

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150

Minster for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant: AAG17

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 6 of 2017

Judgment of: Judge Dowdy

Hearing date: 31 August 2017

Date Judgment Reserved: 6 September 2017

Delivered at: Sydney

Delivered on: 29 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr M. Wiese

Solicitors for the Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 3 January 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 6 of 2017

AAG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Fiji aged 45 years, having been born on 14 March 1973.

2. I first note that the Applicant’s former spouse, known by the pseudonym ‘SZRSX’, was the First Applicant in this proceeding (SZRSX). Due to her non-appearance at the hearing in this Court on 31 August 2018 and the Applicant’s indication that he was not present at the hearing to appear or make any submissions for or on behalf of SZRSX, her application to this Court was dismissed on that date pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for being an absent party.

3. By Application filed in this Court on 3 January 2017 the Applicant seeks to quash and have redetermined the decision of the Delegate (the Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 December 2016 assessing as invalid under s.48A of the Migration Act 1958 (Cth) (the Act) the Applicant’s application dated 24 November 2016 for a Protection (Class XA) (Subclass 866) visa (Protection visa).

Relevant Background

1. I make on the evidence the following factual findings.

2. The Applicant applied for a Tourist (Class TR) (Subclass 676) visa (Tourist visa) offshore in Fiji which was granted on 29 April 2011 and arrived in Australia on 16 May 2011 with SZRSX, who travelled with him also on a Tourist visa, and from whom he had already been divorced a short time before on 21 April 2011, prior to their arrival in Australia.

3. The Applicant applied for a Protection visa on 12 July 2011 (first Protection visa application).

4. By her Decision Record dated 9 March 2012 a delegate found that she was not satisfied that the Applicant was owed protection obligations pursuant to the Refugees Convention criterion under s.36 of the Act and cl.866.221 and she accordingly refused to grant a Protection visa to the Applicant.

5. The Applicant applied to the Tribunal (then the Refugee Review Tribunal) for merits review of the decision of the delegate. In conducting its review the Tribunal considered the Applicant’s claims to protection under both the Refugees Convention criterion, and also the complementary protection criterion under s.36(2)(aa) of the Act which had been introduced on 24 March 2012. However, by its Decision Record of 25 September 2013 the Tribunal affirmed the decision of the delegate not to grant a Protection visa to the Applicant.

6. The Applicant then on 19 December 2013 applied for judicial review of the decision of the Tribunal in this Court, which application was ultimately dismissed by his Honour Judge Nicholls on 16 July 2014.  

7. The Applicant on 24 October 2014 again applied for judicial review of the decision of the Tribunal in this Court, which application was dismissed by his Honour Judge Manousaridis on 3 February 2015.

8. Then on 9 October 2015 the Applicant made a request to the Minister to waive Condition 8503, known as the “no further stay” condition, to which his Tourist visa had been made subject. On 20 October 2015 a delegate of the Minister refused waiver of Condition 8503 and on 9 November 2015 the Applicant sought judicial review in this Court from the refusal of waiver. The Applicant’s application in that regard was dismissed by his Honour Judge Nicholls on 11 May 2016. The Applicant applied to the Federal Court of Australia for an extension of time and leave to appeal from this decision of Judge Nicholls but his application in the Federal Court of Australia was dismissed by her Honour Justice Jagot on 11 November 2016.

9. On 24 November 2016 the Applicant, together with SZRSX, lodged another application for a Protection visa the subject of the present proceeding (second Protection visa application). By decision dated 15 December 2016 this application was assessed to be invalid by the Delegate under s.48A of the Act (the Delegate’s invalidity assessment). It is this decision from which the Applicant seeks relief in this proceeding.

10. Finally, also on 15 December 2015 the Department of the Minister commenced consideration of the Applicant’s request under s.48B of the Act (to which s.48A is subject) for Ministerial intervention seeking that the Minister determine that s.48A did not apply to prevent the making of the second Protection visa application. However, this request was effectively denied on 16 February 2017 when it was finalised by the Department without referral to the Minister.

11. I further note that the evidence establishes, and the Applicant agreed at the hearing in this Court, that his second Protection visa application was made by him whilst he was in Australia.

12. I am satisfied that that this Court has jurisdiction under s.476(1) of the Act to review the Delegate’s invalidity assessment which is a privative clause decision under s.474(2) and s.474(3)(g).

Conditions for a Valid Protection Visa Application

1. Pursuant to s.46(1)(d)(ii) of the Act an application for a visa is only valid if it is not prevented, inter alia, by s.48A. As at 24 November 2016 s.48A relevantly provided as follows:

   48A  No further applications for protection visa after refusal or cancellation

   (1)  Subject to section 48B, a non‑citizen who, while in the migration zone, has made:

   (a)  an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)  applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.

   ………………

   (1C)  Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:

   (a)  the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;

   (b)  whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;

   (c)  the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;

   (d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.

   (2)  In this section:

   application for a protection visa means:

   (aa)  an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or

   Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.

   (aaa)  an application for a visa, a criterion for which is that the applicant is a non‑citizen who is a refugee; or

   (a)  an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (b)  an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (c)  an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

   (emphasis added)

2. I note that s.48A(1C) of the Act came into effect from 28 May 2014 in order to respond to and supersede the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration (2013) 212 FCR 235 (SZGIZ) which had found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds. The genesis, meaning and effect of s.48A(1C) are set out in the decision of the Full Court of the Federal Court of Australia in AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150 comprised of North ACJ and Collier and Flick JJ.

Grounds of Attack on the Delegate’s Invalidity Assessment in this Court

1. The Applicant relies on the following Grounds:

   1.The Department should not take our application as invalid because our circumstances changed and we provided evidence of religious grounds.

   2.The application should be treated as valid because we have a fear of harm and our previous application was never considered under complimentary protection.

   3.The Minister failed to exercise his power under s.48B which is contrary to the natural justice and fairness because we have new grounds since our previous application was refused.

Consideration

Ground 1

1. This Ground fails to establish jurisdictional error. The second Protection visa application was ether validly or not validly made. When considering the validity of the second Protection visa application the Delegate was not entitled to take into account what might be called exceptional circumstances, compelling circumstances, humanitarian circumstances, sympathetic circumstances or “religious grounds”. 

2. Ground 1 fails.

Ground 2

1. This Ground is factually incorrect. It is quite clear that the Tribunal considered the Applicant’s first Protection visa application under the Refugees Convention criterion and the complementary protection criterion as evidenced by and set out in its Decision Record dated 25 September 2013: see [8] above.

2. Ground 2 fails to establish jurisdictional error.

Ground 3

1. Ground 3 also fails to establish jurisdictional error. Section 48B of the Act grants to the Minister a personal non-compellable power to determine that s.48A does not apply to prevent an application for a Protection visa. In Minster for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 200 [53] the High Court expounded the construction and application of s.48B and the analogous sections s.195A and s.417 of the Act in the following terms:

   [53]First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

2. The Applicant is unable to complain in this Court of the Minister’s failure to exercise his power under s.48B of the Act either on “natural justice” or “fairness” grounds or because of any asserted “new grounds” arising since his first Protection visa application and Ground 3 also fails to establish jurisdictional error.

3. Regrettably for the Applicant the simple fact of the matter is that s.48A(1) of the Act precluded him from making his second Protection visa application in circumstances where the Tribunal in its Decision Record dated 25 September 2013 had considered his application for merits review from the adverse decision of the delegate under both the Refugees Convention criterion and the complementary protection criterion. In such circumstances he was never going to be able to avail himself of the decision of the Full Court of the Federal Court in SZGIZ. The effect of subsection (1C) of s.48A was to merely make even more emphatic the preclusion and bar to the Applicant’s lodgement of his second Protection visa application effected by s.48A(1).

Conclusion

1. Accordingly, in my view the Delegate’s invalidity assessment of the second Protection visa application is not affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 29 June 2018