Alg17 v Minister for Home Affairs - [2019] FCCA 1266

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALG17 & ORS v MINISTER FOR HOME AFFAIRS

[2019] FCCA 1266

Catchwords:
MIGRATION – Application for Protection (subclass 866) visas where earlier protection visas had been refused – second application found to be invalid by operation of s48A of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Acts Interpretation Act1901 (Cth)

Migration Act 1958 (Cth), s.48A

Cases cited:

BVJ16 v Minister for Border Protection [2017] FCA 1205

BZB15 v Minister for Home Affairs [2018] FCCA 2590

CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390

SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121

First Applicant:

ALG17

Second Applicant:

ALH17

Third Applicant:

ALI17

Fourth Applicant:

AAZ18

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

SYG 21 of 2018

Judgment of:

Judge Humphreys

Hearing date:

13 May 2019

Date of Last Submission:

13 May 2019

Delivered at:

Parramatta

Delivered on:

13 May 2019

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondent:

Mr Dennis, Minter Ellison

ORDERS

The application is dismissed.
The First Applicant pay the costs of the Respondent fixed in the amount of $5,600.00.

DATE OR ORDER: 13 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 21 of 2018

ALG17

First Applicant

ALH17

Second Applicant

ALI17

Third Applicant

AAZ18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

Introduction

The first applicant is the husband of the second applicant and the father of the third and fourth applicants. They are all citizens of Indonesia. The third and fourth applicants, however, were born in Australia.
In 2014, three of the applicants applied for a Protection (subclass 866) visa which was lodged in Sydney on 24 February 2014. In a decision dated 5 November 2014 a delegate of the Minister determined to refuse the applications for protection visas. This decision is before the Court as detailed in an annexure to the affidavit of Ms Underwood, affirmed on 23 November 2018.
The basis upon which the protection visas were sought is that the applicants are Christians and were subject to violence and persecution in Indonesia. The first applicant came to Australia in 1988 when he was 17 with his mother and brother. His mother departed to Indonesia in 1999. The basis upon which those protection visas were sought, however, is not relevant to this matter.
On 5 August 2015, the fourth applicant, AAZ18, also applied for a Protection (subclass 866) visa. I note that he was born in Australia on 20 May 2015. In a decision dated 23 December 2015, a delegate of the Minister also refused that application.
On 18 December 2017 each of the applicants made a further application for a Protection (subclass 866) visa. In a decision dated 19 December 2017 each of the applicants were advised that their applications had been refused pursuant to s 48A of the Migration Act 1958 (Cth) (“The Act”). Under that section, a person who has not left Australia since a protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1266
Decision Date: 13 May 2019

CaseChat Overview and Summary

Alg17 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant protection visas. The applicant had previously applied for protection visas, which were refused. The applicant's subsequent applications for protection visas were found to be invalid by operation of section 48A of the *Migration Act 1958* (Cth). The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the respondent had made a jurisdictional error in deeming the applicant's second protection visa applications invalid under section 48A of the *Migration Act*. This section generally prevents a non-citizen who has had a visa refused or cancelled from applying for a further visa while remaining in Australia, with limited exceptions. The applicant contended that the circumstances of their case fell within an exception or that the application of section 48A constituted a jurisdictional error.

Judge Humphreys reasoned that section 48A of the *Migration Act* clearly applied to the applicant's situation, as they had previously had protection visas refused and were seeking to make further applications while remaining in Australia. The court found no evidence to suggest that any of the exceptions to section 48A were applicable. Consequently, the respondent's decision to treat the subsequent applications as invalid was not a jurisdictional error. The court therefore dismissed the applicant's application.

Orders