BSY15 v Minister for Immigration
[2016] FCCA 3042
•25 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSY15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3042 |
| Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to consider application of review of decision made by Minister that the application for a Protection (Class XA) visa (Protection visa) was not a valid application for a visa because the applicant had previously applied for a Protection visa which was refused – whether Tribunal erred in concluding it did not have jurisdiction – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 47(1), 47(3), 47(4), 48A, 48A(1), 48B, 411, 414, 414(1) Migration Amendment Act 2014 (Cth) |
| Cases cited: AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; (2013) 212 FCR 235 |
| Applicant: | BSY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2377 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing Date: | 17 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2016 |
REPRESENTATION
The applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
The application is dismissed
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2377 of 2015
| BSY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of the People’s Republic of China (China), seeks judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review a notification by a delegate of the first respondent (Minister) that the applicant’s application for a Protection (Class XA) visa (Protection visa) was invalid.
Background
The applicant entered Australia on 18 September 2001 as the holder of a Korean passport issued under a false name.[1] On 29 November 2001 the applicant applied for but was refused a Protection visa using the Korean passport (First Protection Application).[2]
[1] CB36
[2] CB40
On 10 June 2015 the applicant made a second application for a Protection visa (Second Protection Application).[3] That application was made in the applicant’s true name, and provided details of a Chinese passport.
[3] CB1-38
By letter dated 12 June 2015 a delegate of the Minister notified the applicant that the Second Protection Application was invalid because of s.48A of the Migration Act 1958 (Cth) (Act) (Delegate’s Notification). The delegate stated that “[u]nder section 48A of the Act a person who has not left Australia since they were refused a protection visa in prevented from making a subsequent protection visa application”.[4] The delegate further stated “[t]here is no right of merits review of the assessment that an application is invalid” for this reason.[5]
[4] CB40
[5] CB40
The delegate also noted that, in light of the application of s.48A of the Act, the applicant’s application would be treated as a request for the exercise by the Minister of his power under s.48B of the Act to permit a subsequent Protection visa application. There is no evidence before the Court to indicate that the Minister decided whether to exercise his discretion under s.48B of the Act.
On 24 June 2015 the applicant applied to the Tribunal for review of the Delegate’s Notification.[6] By letter dated 6 July 2015 the Tribunal invited the applicant to comment on the validity of his application for review by 20 July 2015. That letter stated:[7]
[The Tribunal] can only review certain kinds of decisions, such as a decision to refuse to grant a visa or a decision to cancel a visa. I am of the view that your application is not a valid application as we do not have power to review a decision that a visa application has not been validly made. However, this is a matter which must be determined by a Member.
[6] CB43
[7] CB49
The applicant responded to the Tribunal’s invitation by email dated 23 July 2015. In that email the applicant stated:
I entered Australia on 18 September 2001 holding a Korean passport with the same of [SGL] and the DOB of 3 September 1965. I met a Korean who helped me with the application for protection visa in 2001, using the information on the Korean passport. The application was refused but the Korean did not tell me that I could file to RRT. And I could not get touch with him anymore after the application was refused.
I applied for protection visa with the name of [ZX] on 10 June 2015, but it was considered as an invalid visa application with the given reasons that I used a different name and passport when I applied for the first time in 2001.
Tribunal’s decision
The Tribunal noted the applicant was seeking a review of the delegate’s decision that the application for a Protection visa was not a valid application because, in November 2001, the applicant had already been refused a Protection visa, and that, under s.48A of the Act, a person who has not left Australia after being refused a Protection visa, is prevented from making a subsequent application. After noting the applicant’s response to the Tribunal’s letter inviting the applicant to comment on whether the Tribunal had jurisdiction to consider his application for review, the Tribunal concluded that the delegate’s decision that the applicant’s Second Protection Application was invalid was not a decision that was reviewable by the Tribunal.
Grounds of application
The applicant, who is not legally represented, made submissions, but these were not directed to the four grounds of application stated in the application for judicial review. I propose first to deal with the submissions the applicant made at the hearing.
Submissions at hearing
The applicant made two submissions. The first is that the addressee of the Delegate’s Notification was the false name the applicant used when he first entered Australia, and in which he made the First Protection Application. The applicant submitted that this rendered the decision illegal. I do not accept that submission.
The addressee stated in the Delegate’s Notification is the name the applicant previously used; there is no issue the applicant received the Delegate’s Notification and there is no issue that the applicant understood that the decision recorded in the Delegate’s Notification concerned the Second Protection Application. That last matter is demonstrated by the fact that the decision of which the applicant applied to the Tribunal for review was the decision recorded in the Delegate’s Notification. It follows, in my opinion, that although the Delegate’s Notification was addressed to the name the applicant previously used, it unequivocally was directed to the person – the applicant – who had previously used that name.
The Minister relied on the decision of Wilcox J in NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs.[8] In that case, his Honour held that s.48A of the Act barred consideration of a fresh application on behalf of an applicant, even if that application was made under a different name.[9] If the applicant intended to submit that the Second Protection Application was different from the First Protection Application, I do not accept it, not only because NAWZ held otherwise; but also because s.48A of the Act could be avoided simply by a person making an application in a name different from that in which the applicant had made a previous application. The focus of s.48A of the Act is on the person who purports to make a second application; it applies if that person is the same person who made a previous application, no matter by what name or names such person made the previous application. In this case, the applicant did not suggest, and there is no basis for suggesting, that the applicant is not the same person who made the First Protection Application.
[8] [2004] FCA 160
[9] [2004] FCA 160 at [17]
In any event, if, contrary to what I have concluded, the Delegate’s Notification was invalid, that would not have given the Tribunal any jurisdiction under s.414(1) of the Act. That is so because there would be no decision in relation to which the applicant could have applied to be reviewed. The Tribunal has jurisdiction only in relation to “Part 7-reviewable decisions”, as that expression is defined in s.411 of the Act.
The second submission the applicant made is the delegate ought to have accepted the Second Protection Application was a valid application for a visa because the First Protection Application had not been assessed against the complementary protection criterion that is now to be found in s.36(2)(aa) of the Act. There are two answers to this submission. First, the applicant’s submission appears to be based on the decision of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[10] As was held by the Full Federal Court in AZABF v Minister for Immigration and Border Protection, the Full Court’s decision in SZGIZ was superseded by the amendments to s.48A of the Act made by the Migration Amendment Act 2014 (Cth), which came into effect on 28 May 2014. The Full Court in AZABF said:[11]
In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.
[10] [2013] FCAFC 71; (2013) 212 FCR 235
[11] [2015] FCAFC 174; (2013) 212 FCR 235 at [26]
Even if, however, the delegate was wrong in concluding the Second Protection Application was not a valid application because it included claims that ought to have been assessed under the complementary protection criteria, the delegate’s decision would not be a “Part 7-reviewable decisions”, as that expression is defined in s.411 of the Act because, as provided for by s.47(4) of the Act (which I discuss below), the delegate’s decision was a decision “that an application is not valid and cannot be considered” and such decision “is not a decision to refuse to grant the visa”.
Grounds of application
The application contains four grounds of application. Ground 1 is:
The department of immigration did not accept my application. So my application is invalid. They failed to prudently consider my life during these 10 years in Australia.
I interpret this ground as raising two issues. The first is whether the Tribunal was correct in deciding it did not have jurisdiction to review the delegate’s decision. The starting point is the decision contained in the Delegate’s Notification. The delegate there stated that the applicant’s Second Protection Application was not a valid application; and it was not a valid application because of s.48A of the Act. Subsection 48A(1) provides that, subject to s.48B of the Act (which is not relevant to the application before me):
a non-citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.
Subsection 47(1) of the Act provides that the Minister “is to consider a valid application for a visa”. Subsection 47(3) of the Act provides the Minister “is not to consider an application that is not a valid application”. Subsection 47(4) of the Act provides that a “decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa”.
Thus, the delegate’s decision contained in the Delegate’s Notification is a decision that the applicant’s application is not valid. That means that, under s.47(4) of the Act, the delegate’s decision is not a decision to refuse to grant a visa. That, in turn, has the consequence that the delegate’s decision is not a decision that falls within the definition of “Part 7-reviewable decisions” contained in s.411 of the Act; and that the Tribunal, therefore, did not have jurisdiction under s.414 of the Act to consider the applicant’s Second Protection Application.
In my opinion, the Tribunal was correct to conclude the delegate’s decision was to the effect that the applicant’s Second Protection Application was not a valid application, that the application to the Tribunal was for a review of that decision, but that the Tribunal did not have jurisdiction to consider that application because the decision was not a Part 7-reviewable decision.
The second issue that is raised by ground 1 is whether the Tribunal made any jurisdictional error by failing to take into account the applicant’s having been present in Australia for ten years. Whether or not the applicant was present in Australia for ten years is not relevant to whether the Second Protection Application was a valid application, and, given that the delegate decided the applicant’s application was not a valid decision, whether the delegate’s decision was a Part 7-reviewable decision.
Ground 1, therefore, fails.
Ground 2 of the application is:
The Administrative Appeals Tribunal gave a decision based on the result of the department.
This ground appears to claim the Tribunal simply relied on the delegate’s decision that the Second Protection Application was not a valid application. I do not accept that claim. The Tribunal referred to the applicant’s evidence that he had entered Australia in September 2001 holding a Korean passport, and that the applicant had applied for, but was refused the grant of a Protection visa. Thus, the Tribunal appears to have satisfied itself that the applicant had made the First Protection Application while he was in Australia, and that the applicant, therefore, could not make another valid application.
In any event, even if the Tribunal had simply relied on the delegate’s decision, the Tribunal would not have made any jurisdictional error. Whether right or wrong, the delegate’s decision was that the Second Protection Application was not a valid application for a visa. Under s.47(4) of the Act, such a decision cannot be considered to be a decision to refuse to grant the visa.
Ground 2, therefore, fails.
Ground 3 of the application is:
During those years in Australia, I went to local church and never stopped my faith in Christianity. If I go back to China, I could not continue my faith. I wish the Federal Circuit Court could take the Christian environment of China into consideration.
Whether or not the matters in this ground are true are irrelevant to whether the delegate’s decision was to the effect that the Second Protection Application was not valid and, if so, whether such decision was a Part 7-reviewable decision. As I have already found, the Tribunal was correct to conclude the delegate’s decision was to the effect that the Second Protection Application was not a valid application, that the application to the Tribunal was for a review of that decision, but that the Tribunal did not have jurisdiction to consider that application because the decision was not a Part 7-reviewable decision.
Ground 3, therefore, fails.
Ground 4 of the application is:
I hope the Federal Circuit Court of Australia could consider my situation and do justice for me.
This ground does not disclose any jurisdictional error. Rather, this ground invites the Court to engage in impermissible merits review.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 25 November 2016
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