AZABF v Minister for Immigration

[2015] FCCA 1386

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZABF v MINISTER FOR IMMIGRATION [2015] FCCA 1386

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – bias – whether the Tribunal failed to put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958, s.48A

SZRWA v Minister for Immigration and Border Protection [2015] FCA 293

Applicant: AZABF

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: ADG 355 of 2014

Judgment of: Judge Street

Hearing date: 20 May 2015

Date of Last Submission: 20 May 2015

Delivered at: Adelaide

Delivered on: 20 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondent: Mr d’Assumpcao

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADG 355 of 2014

AZABF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in the nature of mandamus alleged to be within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a refusal by the Minister to entertain a protection visa application by the applicant, which refusal was communicated on 11 August 2014.  The grounds are set out as follows:

   Section 48A of the Migration Act does not prevent a person from making a subsequent Protection visa application where claims for protection (complementary protection) were not previously considered.

   The introduction of section 48A (lC) on 28 May 2014 does not prevent an individual who has not previously had a claim for complementary protection considered by the Department from making an application for a Protection visa.

2. Counsel for the applicant properly drew to the Court’s attention at the commencement of the hearing to the fact that the grounds raised in the application were ones in respect of which there is a binding decision of the Federal Court of Australia that is dispositive of the only grounds sought to be raised by the applicant. The applicant candidly and properly conceded that there are no distinguishing circumstances from the binding application of the legal principles identified in that case.

3. The applicant’s counsel identified that the Court was bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293 in relation to the amendments made to s.48A of the Migration Act 1958 with effect from 28 May 2014.  Relevantly, in relation to that application counsel for the applicant acknowledged that the applicant was a non-citizen who, while in a migration zone, made an application for a protection visa which had been refused and which, in fact, had been finally determined.

4. It is, in those circumstances, clear that this Court is bound by the decision in SZRWA and that the applicant is not entitled to make a further application for a protection visa while in the migration zone.  It is common ground that the applicant is still in the migration zone, and the decision of the Minister declining to entertain the further application was clearly correct.  Counsel for the applicant foreshadowed a formal challenge to the decision binding on this Court.  I am clearly satisfied that the decision of Gleeson J in SZRWA is both binding on this Court and is correct in the construction of s.48A of the Migration Act 1958.  For these reasons, the application is dismissed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  26 May 2015