AUM17 v Minister for Immigration
[2017] FCCA 2070
•30 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUM17 v MINISTER FOR IMMIGRATION | [2017] FCCA 2070 |
| Catchwords: MIGRATION – application for protection visa held invalid – alleged erroneous form in earlier application – earlier form held valid – no basis to grant relief– application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 476 |
| Cases Cited: BBJ16 v Minister for Immigration and Border Protection [2017] FCCA 178 |
| Applicant: | AUM17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 548 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 30 August 2017 |
| Date of Last Submission: | 30 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Joel Adrian Joel & Co |
| Solicitors for the Respondent: | Mr A Keevers Sparke Helmore |
ORDERS
The show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.
The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $2,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 548 of 2017
| AUM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a Constitutional writ within the Court’s jurisdiction under s. 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the respondent made on 8 February 2017 that the applicant had lodged an invalid application for a Protection (Subclass 866) Visa.
The Decision
That decision identified that the applicant, who was a citizen of Pakistan, had made a previous application for protection on 18 September 2015, received by the respondent on 24 September 2015 and that that application had been refused by a delegate on 1 December 2016. No application for review was sought of that application.
The respondent in the decision made on 8 February 2017 referred to the effect of s.48A of the Act that 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 decision identified that the applicant cannot make another application while in Australia unless the Minister personally decides that it is in the public interest to allow the applicant to do so. There has been no such decision by the Minister.
The decision identified that the applicant remains currently, an unlawful non-citizen in Australia.
The Application to this Court
Mr Joel, solicitor for the applicant, relies upon an argument that has been the subject of earlier decisions in this Court in relation to the use of the form by the applicant, in respect of which the application for protection was made on 18 September 2015.
Detailed submissions in support of the argument were filed on behalf of the applicant. It was in circumstances of the existence of those submissions that the Court dispensed with the show cause hearing that had earlier been ordered.
The submissions advanced on behalf of the applicant seek to take issue with two earlier decisions of this Court and put substantive submissions in support of the argument that the decisions of this Court in BBJ16 v Minister for Immigration and Border Protection [2017] FCCA 178, as well as the decision of SZUGL v Minister for Immigration and Border Protection [2017] FCCA 419 are plainly wrong. The applicant contends that the form used on 18 September 2015 was not a form that was approved by the Minister and that there was no jurisdiction to entertain the application made on 18 September 2015 whereby the applicant was entitled to lodge the current application and accordingly was entitled to appropriate relief.
Affidavit evidence has been adduced by the respondent, identifying the visa application history by the applicant, as well as identifying the version of the form 866 as was approved on 20 October 1999. Mr Joel has drawn the Court’s attention to an error in the submissions advanced on behalf of the applicant in writing in respect of the current argument based on an amendment which commenced on 18 April 2015 and erroneously that the relevant first application for protection was made, as identified in paragraph 12 on 11 March 2014.
Mr Joel was correct to draw the Court’s attention to that error in the present case, as it does present a further difficulty with the argument advanced that the approved form 866 used by the applicant on 18 September 2015 was not an approved form. Notwithstanding the careful submissions prepared by counsel I am not persuaded that the decision in this Court in BBJ16 v the Minister was plainly wrong. It follows that I am not satisfied that the decision in SZUGL is, in my opinion, correct.
For the reasons I gave in BBJ16, item 1401 of schedule 1 should not be construed as fixing a specific form at the time it was made. On the material before the Court, the applicant made a valid application for protection on 18 September 2015.
Further, this Court has the benefit of the form completed by the applicant as at 18 September 2015, as well as the form as at 1999. The Court is of the opinion that there was substantial compliance with the requirement of the provisions in the present case and for that further reason, the applicant made a valid application on 18 September 2015.
In these circumstances, the decision of the respondent that the applicant was precluded by reason of s. 48A of the Act from making a further application for protection without the Minister personally deciding that it was in the public interest to permit the applicant to do so was correct.
No jurisdictional error was made by the delegate in the decision of the respondent dated 8 February 2017. It follows that there is no basis to grant the relief claimed in the application and that the application should be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 12 October 2017
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