Alg17 v Minister for Home Affairs - [2019] FCA 1565

FEDERAL COURT OF AUSTRALIA
ALG17 v Minister for Home Affairs [2019] FCA 1565

Appeal from: ALG17 & Ors v Minister for Home Affairs [2019] FCCA 1266

File number: NSD 850 of 2019

Judge: ALLSOP CJ

Date of judgment: 24 September 2019

Catchwords: MIGRATION – where subsequent applications for protection visa made after initial applications for protection visa refused – where subsequent applications considered to be invalid by reason of s 48A of the Migration Act 1958 (Cth) – where grounds of appeal analogous to those rejected in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 and SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 – no error in approach of primary judge – appeal dismissed with costs

Legislation: Migration Act 1958 (Cth), s 48A

Cases cited:
ALG17 v Minister for Immigration and Border Protection [2017] FCCA 2816

AUM17 v Minister for Immigration and Border Protection [2018] FCA 306

BLR15 v Minister for Immigration and Border Protection [2018] FCA 67

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

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

SZLZS v Minister for Immigration and Border Protection [2018] FCA 748

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

Date of hearing: 18 September 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 15

Counsel for the Appellants: The appellants appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Mr L Dennis of MinterEllison

ORDERS

NSD 850 of 2019

BETWEEN:
ALG17

First Appellant

ALH17

Second Appellant

ALI17

Third Appellant

AAZ18
Fourth Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

FEDERAL CIRCUIT COURT

Second Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

24 SEPTEMBER 2019

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
ALLSOP CJ:

This is an appeal against orders made on 13 May 2019 by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of a delegate of the then Department of Immigration and Border Protection made on 17 December 2017, which determined that the appellants’ applications for Protection (subclass 866) visas were invalid applications by reason of the operation of s 48A of the Migration Act 1958 (Cth) (the Act).
The notification of that decision to the appellants made clear that, under s 48A of the Act, a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia. The letter went on to state that the Minister has the power under s 48B of the Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so…

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] FCA 1565
Decision Date: 24 September 2019

CaseChat Overview and Summary

In the case of Alg17 v Minister for Home Affairs, the dispute involved the applicant's subsequent applications for a protection visa, which were deemed invalid under section 48A of the Migration Act 1958 (Cth). The matter was heard in the Federal Court of Australia. The applicant had initially sought judicial review of the Minister's decision to reject these subsequent applications. The court was tasked with determining whether the primary judge had erred in his approach to the applicant's appeal.

The central legal issue was whether the primary judge had erred in dismissing the applicant's appeal, given the grounds were analogous to those previously rejected in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 and SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121. The court needed to assess if the primary judge's approach and interpretation of the law were correct. The applicant argued that the primary judge had misapplied the law by not considering all relevant evidence and factors.

The court found no error in the primary judge's approach. It was held that the primary judge had correctly interpreted and applied the relevant sections of the Migration Act. The court found that the applicant's grounds for appeal were similar to those rejected in previous cases, and therefore, the appeal was dismissed. The Federal Court also ordered that the appeal be dismissed with costs. This decision underscores the importance of adhering to established legal precedents and the criteria outlined in the Migration Act when considering applications for protection visas.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	ALG17 & Ors v Minister for Home Affairs [2019] FCCA 1266
File number:	NSD 850 of 2019
Judge:	ALLSOP CJ
Date of judgment:	24 September 2019
Catchwords:	MIGRATION – where subsequent applications for protection visa made after initial applications for protection visa refused – where subsequent applications considered to be invalid by reason of s 48A of the Migration Act 1958 (Cth) – where grounds of appeal analogous to those rejected in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 and SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 – no error in approach of primary judge – appeal dismissed with costs
Legislation:	Migration Act 1958 (Cth), s 48A
Cases cited:	ALG17 v Minister for Immigration and Border Protection [2017] FCCA 2816 AUM17 v Minister for Immigration and Border Protection [2018] FCA 306 BLR15 v Minister for Immigration and Border Protection [2018] FCA 67 BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 SZLZS v Minister for Immigration and Border Protection [2018] FCA 748 SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121
Date of hearing:	18 September 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Appellants:	The appellants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr L Dennis of MinterEllison

JUDGE:	ALLSOP CJ
DATE OF ORDER:	24 SEPTEMBER 2019