Alg17 v Minister for Home Affairs
[2019] FCCA 1266
•13 May 2019
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 visa was refused or cancelled is prevented from making a further application for a protection visa while they remain in Australia.
Grounds of Appeal
In the originating application to this Court, the applicants claim that the previous decision was invalid on the basis that an invalid form, being form 866, was used.
The applicants assert that a jurisdictional error was made and, I summarise here, that under the Acts Interpretation Act1901 (Cth) there was a restriction to incorporating form 866 to the extent it existed when a regulation was passed, which took effect on 20 October 1999. The applicants suggested that the earlier application was invalid and the subsequent application, the subject of this particular hearing, was not barred by s 48A of the Act.
This precise issue has been the subject of some litigation. Burley J in the Federal Court of Australia in the matter of BVJ16 v Minister for Border Protection [2017] FCA 1205 considered the argument as put forward by the applicant in this matter and rejected it. His decision is binding upon me in this Court.
Although not binding upon me, in BZB15 v Minister for Home Affairs [2018] FCCA 2590, my colleague, Judge Baird, deals with an application in similar terms. Judge Baird at paragraph 15 notes that the same argument was also rejected by Bromwich J in CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 in which he stated that Burley J’s decision “seems unassailably correct.”
The matter was also considered by the Full Court of the Federal Court of Australia by Collier, Barker and Davies JJ in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 at paragraph 27 where the Court said: “There was little more we can usefully add to the analysis of Judge Burley in BVJ16.” The Court is bound by the decisions of the Federal Court and in this case by the Full Court of the Federal Court.
As was indicated to the applicants at the commencement of the proceedings, the Court can only consider whether or not the decision was lawful; it cannot consider whether or not there is any merit in the application.
The Court appreciates that the applicants may not wish to return to Indonesia, having been here in Australia for such a long time. That is not a matter that is within the Court’s purview to consider. I can only consider whether or not the decision to reject the further application was lawful. For the reasons given above, I’m satisfied it was lawful.
Accordingly, the application is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 20 May 2019
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