BHT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 1031
•13 MAY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BHT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1031
File number(s): SYG 2910 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 13 May 2021 Catchwords: MIGRATION – Application in a Case for summary dismissal – previous protection visa application refused – applicants purporting to make a fresh application without the consent of the Minister, which was rejected – no prospect of judicial review application succeeding. Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.10(a)
Migration Act 1958 (Cth) ss 48A, 48B
Cases cited: BHT18 & Ors v Minister for Home Affairs [2018] FCCA 2056
BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205
SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121.
SZSGC v Minister for Immigration and Border Protection [2017] FCCA 1083
Number of paragraphs: 7 Date of hearing: 13 May 2021 Place: Sydney Counsel for the Applicants: The First and Fifth Applicants appeared in person Solicitor for the Respondent: Mr H Gao of Australian Government Solicitor INTERLOCUTORY ORDERS
SYG 2910 of 2018 BETWEEN: BHT18
First Applicant
BHV18
Second Applicant
BHU18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
13 MAY 2021
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the applicants’ application, filed on 16 October 2018, is dismissed.
3.The first and fifth applicants pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,337.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER
I have before me an Application in a Case filed on 22 December 2020 on behalf of the Minister. By that application, the Minister seeks the summary dismissal of a judicial review application, filed on 16 October 2018. The Application in a Case is supported by a short affidavit made by the Minister’s solicitor on 18 December 2020. I received that affidavit as a submission. I have before me as evidence the book of relevant documents filed on 29 November 2018. The Minister’s solicitor made helpful oral submissions this afternoon.
The first and fifth applicants on the judicial review application, being the applicant father and the applicant mother, attended today’s hearing by telephone with the assistance of a Mandarin interpreter. Having heard the Minister’s submissions, they did not wish to make any submissions of their own, although they did ask several questions which I answered. In my view, it is pellucidly clear that the judicial review application is doomed to fail.
All five applicants have, at an earlier time, made application for a protection visa albeit not all at the same time. Those protection visa applications have been determined both by a delegate of the Minister and by the former Refugee Review Tribunal and the Administrative Appeals Tribunal (Tribunal). A judicial review application by three of the applicants failed[1]. The applicants collectively made a purported second application for protection. The Minister’s delegate on 5 October 2018 found that application to be statute barred under s 48A of the Migration Act 1958 (Cth) (Migration Act). It is that decision which the applicants seek to review in this Court. The grounds in the application assert that the initial protection visa applications were invalid because of the form used.
[1] BHT18 & Ors v Minister for Home Affairs [2018] FCCA 2056
As the applicants themselves acknowledge in their application for judicial review that issue was addressed by the Federal Court in BVJ16 v Minister for Immigration and Border Protection[2]. The proposition was rejected. I followed that decision in SZSGC v Minister for Immigration and Border Protection[3]. The Full Federal Court approved it in SZMOX v Minister for Immigration and Border Protection[4]. I see no prospect of the argument succeeding in this Court on the state of the authorities. As I explained to the applicants, s 48A of the Migration Act operates as a bar on a second protection visa application being made, unless with the consent of the Minister under s 48B of the Migration Act.
[2] [2017] FCA 1205
[3] [2017] FCCA 1083
[4] [2018] FCAFC 121
A relevant factor in that regard may be that the applicants’ eldest child, one of the present group of applicants, will attain the age of 10 years on 16 May 2021. He will thereupon be eligible to apply for Australian citizenship. That might be regarded as a relevant change in circumstance for the purposes of s 48B of the Migration Act. That is beyond the scope of this proceeding.
I agree with the Minister that the judicial review application before the Court is doomed to fail and hence it should be summarily dismissed under rule 13.10(a) of the Federal Circuit Court Rules2001 (Cth). I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The first applicant indicated that the family would have difficulty paying that amount but, as I explained to him, the issue for the Court is whether the costs have been reasonably and properly incurred. I am satisfied that they have been. I will, in addition, order that the first and fifth applicants pay the respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with the Court scale and Rules.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 20 May 2021
SCHEDULE OF PARTIES
SYG 2910 of 2018 Applicants
Fourth Applicant:
SZSCO
Fifth Applicant:
SZSCP
0
4
0