BYE15 v Minister for Immigration and Border Protection
[2015] FCCA 3023
•12 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYE15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION | [2015] FCCA 3023 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether an earlier application for a protection visa was a valid application – whether section 48A of the Migration Act 1958 (Cth) prevents the applicant from making a further application – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25C Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 46, 48A, 65, 412 Migration Regulations 1994 (Cth) regs.2.01, 2.07, Schedule 1 – Item 1401, Schedule 2 – cl.866.21. |
| Cases Cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 |
| Applicant: | BYE15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2602 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 October 2015 |
| Date of Last Submission: | 29 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Raymond Turner (Turner Coulson Immigration Lawyers) |
| Solicitor for the Respondent: | Mr David McLaren (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2602 of 2015
| BYE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Department of Immigration and Border Protection (“the Department”) dated 3 September 2015 (“the Delegate”).
The applicant claims to be a citizen of Lebanon, who fears harm from people in Lebanon who had asked him to bring steroids into Australia. Once the applicant was arrested on his arrival in Australia and the steroids seized, the applicant claims that the people who had asked him to bring the steroids to Australia had threatened to kill him.
Background
The applicant arrived in Australia on 15 November 2009 having departed legally from Lebanon on a passport issued in his own name and a visitor visa issued on 15 September 2015.
On 15 November 2009, upon his arrival in Australia, the applicant was arrested for carrying illegal drugs and subsequently convicted.
On 19 January 2010, the applicant lodged an application for a protection (Class XA) visa with the Department (“the first visa application”).
On 19 April 2010, a delegate of the Department refused the applicant’s application for a protection visa and notified the applicant of the decision by letter dated 3 May 2010.
On 17 May 2010, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal (“the RRT”).
On 2 July 2010, the RRT affirmed the decision of a delegate of the Department not to grant a protection visa.
On 3 September 2015, the applicant made a new application for a protection (Class XA) visa to the Department.
On 3 September 2015, the Delegate wrote to the applicant informing him that his application for a protection visa was invalid (“the Notification Letter”). The Notification Letter informed the applicant that, as he had been previously refused a protection visa and had not subsequently departed Australia, s.48A of the Act operated to prevent him from making a new protection visa application.
On 22 September 2015, the applicant filed an application in this Court seeking judicial review of the Delegate’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
2010 Legislative Scheme
At the time of the first visa application, being 19 January 2010, s.46(1) of the Act relevantly provided:
“46Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non‑citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
…
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.”
At the time of the first visa application, the criteria that had to be satisfied for a valid visa application were set out in reg.2.07(1) and Schedule 1 to the Regulations. Item 1401 of Schedule 1 to the Regulations sets out the relevant criteria for a valid application for a protection (Class XA) visa. Item 1401 of Schedule 1 is as follows:
“1401. Protection (Class XA)
(1) Form: 866.
(2) Visa application charge:
(a) First instalment (payable at the time application is made):
(i) In the case of each applicant who is in immigration detention and has not been immigration cleared: Nil
(ii) In any other case: $30
(b) Second instalment (payable before grant of visa): Nil.
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia.
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.
(4) Subclasses:
866 (Protection).”
At the time of the first visa application, s.36 of the Act set out the criteria that had to be satisfied for the grant of a protection visa. Section 36 of the Act relevantly stated as follows:
“36 Protection visas
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
…”
Schedule 2 to the Regulations prescribes additional criteria to be satisfied at the time of the application. At the time of the first visa application, cl.886.21 of Schedule 2 to the Regulations stated as follows:
“866.21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class XA) visa.”
2015 Legislative Scheme
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act define “significant harm.”
Section 46(1)(d) of the Act prescribes that a visa application will be valid unless it prevented by a provision of the Act. One such provision is s.48A of the Act, which relevantly states as follows:
“48A No further applications for protection visa after refusal or cancellation
(1) Subject to section 48B, 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.
…
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.”
The first protection visa application lodged on 19 January 2010
The applicant provided a statement in support of his protection visa application in which he stated that:
a)When he was travelling to Australia, some friends of his came to say goodbye to him. They brought with them two friends of theirs who asked the applicant to deliver some steroids to someone in Australia. In exchange, when the applicant returned to Lebanon, they would purchase a mutual gym together. The applicant “thought nothing” of taking the steroids to Australia because in Lebanon they are not illegal.
b)The people that had asked the applicant to bring the steroids with him to Australia are now trying to kill the applicant because they assume that, instead of the steroids being confiscated by the police, the applicant had personally retained the steroids.
Decision of delegate on 3 May 2010
On 3 May 2010, the Delegate refused the applicant’s application for a protection visa. While the Delegate accepted that the application was valid, it was rejected on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
At the time of the Delegate’s decision, s.36(2)(aa) of the Act had not been enacted and so the Delegate was not required to consider whether the applicant met the criteria for complementary protection.
Review and decision of Refugee Review Tribunal on 2 July 2010
On 17 May 2010, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The RRT found that the applicant had made a valid application for review of the Delegate’s decision.
Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer persecution for a Convention related reason were he to return to Lebanon. The RRT concluded that the applicant did not have a well-founded fear of persecution in Lebanon and for this reason the applicant was not a person to whom Australia owed protection obligations.
Accordingly, on 2 July 2010, having determined that the applicant did not satisfy the refugee criteria in s.36(2)(a) of the Act, the RRT affirmed the decision under review.
The second protection visa application lodged on 3 September 2015
On 3 September 2015, the applicant made a new application for a protection visa to the Department.
In his second visa application, the applicant stated that he fears significant harm from the people that had asked him to bring steroids to Australia and whom he claimed had threatened to kill him if he ever returned to Lebanon.
Later on 3 September 2015, the Delegate wrote to the applicant, informing him that his second visa application was invalid due to the operation of s.48A of the Act, which prevents a person who has had a protection visa application refused, but has not yet left Australia, from lodging a new protection visa application.
The proceeding before this Court
The applicant was represented before this Court by Mr. Raymond Turner, solicitor.
On 14 October 2015, Orders were made by consent setting the matter down for hearing on 29 October 2015. The matter was given an expedited hearing date due to the applicant being held in detention. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 26 October 2015.
On 22 October 2015, the applicant filed an Amended Application and submissions in support.
Mr Turner confirmed that the applicant relied on the ground contained in the Amended Application as follows:
“1. The Respondent misapplied the law to the facts as found.
Particulars
a. “On 19th April 2010 you were refused a protection (Class XA) visa. Under Section 48A of the Act a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.”
b. The Applicant, in his application of 3 September 2015, raised claims of complementary protection which were not considered in relation to his application of 19 April 2010.
c. In those circumstances, the Applicant is not precluded from lodging an application which raises a claim for complementary protection.
d. Alternatively, as the application refused on 19 April 2010 raised no claim of persecution, it was not a valid application, meaning that the Migration Act 1958 s.48A had no application”
At the heart of Mr Turner’s contentions was a contention that the applicant’s visa application, lodged on 19 January 2010, was invalid because the claims raised by the applicant in that application, related only to a fear of persecution from criminals and were not capable of substantiating a claim for Convention based persecution.
Alternatively, Mr Turner contended that if the 2010 application was valid, the applicant’s claims were not caught by the amendment to s.48A of the Act, as reflected in s.48A(1C) of the Act, which provides as follows:
“48A No further applications for protection visa after refusal or cancellation
…
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.”
Mr Turner contended that the reason the applicant’s application, filed on 3 September 2015, was not caught by s.48A(1C) of the Act is because the applicant’s claims had never been considered and, therefore, fell within the reasoning of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”) and the applicant was entitled to have those claims heard.
Section 48A(1C) of the Act was inserted into the Act with effect from 28 May 2014 in response to the judgment of the Full Court of the Federal Court of Australia in SZGIZ.
The application for a protection visa was filed by the applicant on 3 September 2015 and is therefore caught by s.48A(1C) of the Act.
Section 48A(1)(a) of the Act provides that a non-citizen (such as the applicant) who made an application for a protection visa while in the migration zone and had that application refused, may not make a further application for a protection visa while in the migration zone. Accordingly, in the event that the applicant’s application in 2010 is a valid application, then s.48A(1C) of the Act has the effect that the visa application made on 3 September 2015 is invalid.
The solicitor for the respondent, Mr McLaren, properly conceded that in the event that the 2010 application for a protection visa was not a valid application, then the applicant is entitled to proceed with his application for a protection visa filed on 3 September 2015. However, the respondent’s contention is that the visa application made in 2010 was a valid application.
At the time of the applicant’s application for a protection visa in 2010, the validity of a visa application was prescribed by s.46 of the Act, reg.2.07 of the Regulations and Item 1401 of Schedule 1 to the Regulations. Those provisions had the effect that consideration would have to be given to whether use had been made of an approved form, whether any charge prescribed had been paid and whether any prescribed form had been completed in accordance with any instructions on it (see Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324 at [32] per Gray J).
As stated above, the applicant’s contention is that the approved form, being Form 866, was not completed in accordance with the directions made by it because the claims raised by the applicant in that Form and in the applicant’s subsequent statement in support of the visa application did not disclose a Convention based claim of persecution.
As stated above, the applicant’s claims to fear harm if returned to Lebanon were that he would be killed by persons who had asked him to carry steroids into Australia following the detection and confiscation of those steroids upon the applicant’s entry into Australia.
As stated above, those claims were considered by a delegate of the respondent, and on 3 May 2010, were found not to have a Convention nexus. That delegate’s decision was affirmed by a decision of the RRT dated 2 July 2010.
The statement of decision of the RRT makes clear that the RRT found that the protection visa application before it was a valid application. The applicant’s claims were explored with him in some detail and the RRT put to the applicant concerns it had about his evidence and noted the applicant’s responses. Ultimately, the RRT found the applicant not to be a truthful witness and that his claims were implausible. The RRT provided reasons for those findings. The RRT concluded that there was no real chance that the applicant would face persecution for a Convention nexus reason were he to return to Lebanon and that any harm he suffered was not Convention related.
The RRT’s decision was not challenged further in the courts by the applicant.
I accept the submission of the solicitor for the respondent that an applicant’s claims are to be assessed on the basis of claims expressly made or that clearly arise on the material before a decision-maker (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [60] – [61] per Black CJ, French and Selway JJ).
The applicant’s claims in support of his protection visa application lodged in 2010 were as follows:
a)In answering the question ‘Why did you leave that country?’, the applicant responded “Please refer to attached statement”.
b)In answer to the question ‘What do you fear may happen to you if you go back to that country?’, the applicant stated “I would be killed. Please refer to documents attached”.
c)In answer to the question ‘Who do you think may harm/mistreat you if you go back?’ the applicant responded “I would be killed. The Justice of the Peace of my village has certified the death threats”.
d)In answer to the question ‘Why do you think this will happen to you if you go back?’, the applicant responded “As I had not met up to deliver the ampules to the person in Australia. They do not believe that I was arrested and the ampules confiscated. ”
e)In answer to the question ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’ the applicant responded “In villages authorities are not readily available. We have no police action readily available if one requires protection. The mayor or the Justice of the Peace of my village has authorised a letter asking me NOT to enter my village.”
The applicant’s statement of claims, dated 18 January 2010, expanded on those claims contained in his visa application.
The fact that the applicant’s claims were ultimately found not to satisfy the Convention criteria does not have the effect of invalidating the applicant’s application for a protection visa. This is not a case where the applicant disclosed no claims whatsoever in his protection visa application.
The applicant referred to Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566, 573 (“Bal”) where the Full Court of the Federal Court of Australia was considering whether there had been substantial compliance by an applicant with Form 866 in identifying the applicant’s complaints. The Full Court referred to s.25C of the Acts Interpretation Act 1901 (Cth) which provides that, unless the contrary intention appears, strict compliance with a prescribed form is not required and substantial compliance is sufficient.
The reference in Bal to cases that found that, whilst brief, an applicant had made clear the Convention grounds on which the applicant feared persecution are not directly relevant to the issue in this case. Those cases and Bal were not considering whether or not claims made must on their face be capable of disclosing Convention based persecution. It is sufficient for Form 866 to be substantially completed to enliven an obligation on the Department to consider whether the claims made satisfied the relevant criteria at the time of the decision.
In the case before this Court, the applicant completed the relevant form responsively. The applicant’s answers to the questions on the Form 866 are responsive to the questions asked. Whether the applicant’s claims ultimately satisfy the criteria is a matter for determination. At the time of the RRT’s decision in 2010, s.36 of the Act stated that it was for an applicant to satisfy the relevant decision maker that the applicant meets the relevant criteria for being a refugee in accordance with the Refugees Convention as amended by the Refugees Protocol. If the decision maker was not so satisfied, then, pursuant to s.65(1)(b) of the Act, the applicant must be refused a protection visa.
As stated above, in affirming the decision under review, the RRT found that the applicant had lodged a valid protection visa application on 19 January 2010 under s.412 of the Act. The RRT also noted that in general, the relevant criteria for the grant of a protection visa are those in force when the visa application is lodged. However, the RRT noted that some statutory qualifications enacted since then may also be relevant. The RRT stated that “Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.” The RRT identified the four key elements that give rise to an entitlement to protection under the Convention.
As stated above, the applicant never challenged the decision of the RRT in the courts. In particular, the applicant did not challenge the validity of his 2010 protection visa application on the basis contended for today by Mr. Turner.
In the circumstances, I am satisfied that the application lodged on 19 January 2010 was a valid application. Section 48A(1C) of the Act has the effect that the applicant is precluded from lodging another application for protection in circumstances where the applicant is a non-citizen, in the migration zone who has been refused a protection visa, regardless of the grounds on which the application would be made, irrespective of whether the grounds had existed earlier or whether the applicant had claimed earlier to satisfy the criteria.
Accordingly, the letter sent by the Department, dated 3 September 2015, informing the applicant that the application for a protection visa, lodged on 3 September 2015, was not a valid application, was not affected by jurisdictional error. The Department’s letter referred to the refusal of a protection visa to the applicant on 19 April 2010 and informed the applicant that, under s.48A of the Act, a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.
The finding in the Department’s letter that the applicant’s application for a protection visa, dated 3 September 2015, was not a valid application was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the grounds of the application are not made out. The proceeding before this Court, commenced by way of application filed on 22 September 2015, should be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 12 November 2015
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