BZACB v Minister for Immigration
[2012] FMCA 1274
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZACB v MINISTER FOR IMMIGRATION | [2012] FMCA 1274 |
| MIGRATION – Visa – protection visa – applicant seeking review of a non-reviewable decision. |
| Federal Magistrates Court Rules r.44.12 Migration Act1958, ss.48A, 49A(1),48B, 474(7), 477(1), 488(2), 476(2)(d) |
| SJQJI & Ors v Minister for Immigration & Anor [2011] FMCA 841 SZLLH v Minister for Immigration [2008] FMCA 322 SZOXM v Minister for Immigration [2011] FMCA 564 |
| Applicant: | BZACB |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | BRG 154 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 14 March 2012 |
| Date of Last Submission: | 14 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
That the application filed 15 February 2012 be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $1250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 154 of 2012
| BZACB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The applicant seeks an order that “the material be forwarded to the Minister to be dealt with pursuant to s.48B of the Migration Act” (the Act). The respondent contends the application is incompetent and should fail in limine. It submits that the application ought to be summarily dismissed and that the applicant be called upon to show cause as to why that course ought not follow. To understand both the application and the respondent’s response and application for summary dismissal pursuant to the show cause provisions (see FMCR 44.12) it is necessary to understand the history preceding the applicant’s present application.
The applicant was the second respondent in application SJQJI & Ors v Minister for Immigration & Anor [2011] FMCA 841. She was the wife of the applicant who in that instance sought relief. Broadly, on 4 March 2006, the first applicant in that application arrived in Australia from Fiji to study at the University of Queensland. His studies were supported by a scholarship from the Fijian Government which at that time employed him in its Ministry of Agriculture. Apparently, the scholarship was cancelled in 2008 after a military coup took place in Fiji and the applicant then subsequently resigned from his employment with the Government on 7 January 2010.
On 16 August 2010, the applicant in that application, together with the applicant in this application and their dependent children, applied to the Minister for a Protection (Class XA) Visa. On 9 February 2011, a delegate of the Department refused those applicants’ applications for the protection visas. The refusal was affirmed by the Tribunal on 17 May 2011 and subsequently by this Court in its orders made on 28 November 2011. There was no appeal from that decision.
By reason of her involvement in SZQJI as a second respondent, the applicant was captured by s.48A of the Act. Subject to s.48A(1) a non‑citizen refused a protection visa may not make further application for a protection visa. Subject to s.48B, a non‑citizen who while in the migration zone has made:
“ ... an application for a protection visa where the grant of the visa has been refused (whether or not the application has been finally determined);
...
may not make a further application for a protection visa while in the migration zone.”
No doubt not appreciating that provision, the applicant attended the Queensland State office of the Minister on or about 23 December 2011 and lodged an application for a Protection (Class XA) Visa. By letter dated 9 January 2011, the Minister’s relevant officer wrote to the applicant in the following terms:
“I wish to advise you that the application for this visa made by the following applicants was not a valid application:
[various six visa applicants]
On 09 February 2011, 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. However, the Minister has power under section 48B of the Act to allow a person to apply again for a protection (class XA) visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.
The protection (class XA) visa application if lodged will be considered as a request for the Minister to exercise his public interest power under section 48B of the Act and will be assessed against the Minister’s guidelines - section 48A cases and requests for section 48B Ministerial intervention - to determine whether it should be referred to the Minister for his consideration. The Department will notify you of the outcome of this assessment.”
It follows that the applicant’s application filed 23 December 2011 was treated as an application pursuant to s.48B of the Act, and the Minister indicated it would be assessed against the relevant criteria. Importantly, the Minister’s decision is one that must be exercised personally. In its response, the respondent Minister contends three grounds in support of the show cause application calling for summary dismissal. They are:
a)The application for judicial review does not provide any particulars or any legal ground of review in connection with the decision of an officer of the Department of Immigration and Citizenship (the Department) dated 9 January 2012.
b)The Court has no jurisdiction to review the decision dated 9 January 2012. Subsection 477(1) of the Act applies and the application in this Court was not filed within 35 days of the date of the Tribunal decision. The applicants have not applied in writing for an extension of time specifying why they consider that it is necessary in the interests of the administration of justice to extend the time that is required by s.477(2).
c)The Court has no jurisdiction to review the decision of an officer of the Department dated 20 January 2012 not to refer the matter to the first respondent to consider whether to exercise his discretion under s.91Q of the Act as s.476(2)(d) and s.474(7) of Act applies.
At the hearing, the applicant was self‑represented. Plainly, she did not have an appreciation of the issues being advanced by the respondent’s legal representatives. One of the grounds complained of constitutes a technical failure to bring an application for review of the decision of 9 January within the 35 day period provided. The application is, in fact, two days out of time and, ordinarily, an application for extension would be favourably considered in these circumstances (see s.477(2)). Here however a more fundamental difficulty faces the applicant, such that an extension of time application is rendered otiose. Likewise, the respondent’s complaint concerning the absence of particulars of any legal ground of review in connection with the decision of 9 January 2012 will not ordinarily constitute an insurmountable hurdle to an applicant being permitted to advance her application.
However, in this case, the applicant’s fundamental problem arises from the third ground advanced by the respondent in its response. Before addressing that matter in particular, it is necessary to closely examine the applicant’s grounds for application. In her application, she contends as follows:
“(1)The respondent erred in that it denied the applicant the opportunity to have consideration given under section 48B of the Migration Act.
Particulars
(a)The applicant personally lodged an application for a protection visa on 23 December 2011 at the DIAC office in Adelaide Street, Brisbane.
(b)The Department delegate administered by the Minister (the Department) received the protection (class XA) application, determined and accepted the application to be in order and directed the applicant to pay the necessary application fees.
(c)The Department delegate determined that the application was valid on 23 December 2011.
(d)The Department delegate reaffirmed the application in a valid letter dated 4 January 2012.
(e)Then on 9 January 2012, the Department determined the applicant invalid.
(f)The Department declined to refer a request under section 48B of the Migration Act to the Minister.
(g)Section 48B requires the Minister to exercise the power personally.
(h)By not referring the request to the Minister, the Department’s conduct prevented the Minister from considering or from determining not to consider the specific request received.
(i)By failing to refer the matter, the applicant was deprived of the rights and/or legitimate expectation that regardless of whatever steps were taken by the Minister to consider or not to consider the matter placed before him that section 48B of the Migration Act provides.”
The grounds are clearly premised in part on a misunderstanding by the applicant of her situation following her unsuccessful application concerning her earlier protection visa application. While it is factually correct that:
a)the applicant personally lodged an application for a protection visa on 23 December 2011 at the DIAC office in Adelaide Street, Brisbane; and
b)the Departmental delegate of the Minister received the Protection (Class XA) application and directed the applicant to pay the necessary fees,
the action alleged here was limited to the simple administrative conduct preceding the application. If the application was void for want of a jurisdictional fact, no action by the delegate in receiving it and receiving payment of the usual fee could correct that deficiency. It follows that what is asserted at paragraph (c) of the particulars is not correct; that is, that the delegate determined the application as being valid on 23 December 2011. Likewise, the letter alleged at paragraph (d) does not add any support to the absent jurisdictional fact evident here.
What is at issue in this application is to be found at paragraphs (e), (f), (g), (h) and (i). Unquestionably, as alleged in clause (e), on 9 January 2012, the Department determined the application invalid. That was the application made by the applicant on 23 December 2011 for a protection visa. The delegate, however, proceeded to advise that the application would be treated as a “request for the Minister to exercise is public interest power under s.48B.” The real complaint by the applicant is the alleged failure by the Department to “refer the request under s.48B to the Minister.”
On the face of the delegate’s letter of 9 January 2012, that is simply not the case. What the Department advised and remains the current status, is that the application:
“ ... will be considered as a request for the Minister to exercise his public interest powers under section 48B of the Act and will be assessed against the Minister’s guidelines - section 48A cases and requests for section 48B ministerial intervention - to determine whether it should be referred to the Minister for his consideration.”
The advice concluded by informing the applicant that it would notify her of the outcome of that assessment. As I understand it, that is where things presently remain. In other words, no notice of assessment has yet been advised to the applicant. However, in the meantime, insofar as the applicant has purported to lodge an application for a protection visa, that application has been rejected. It is the only decision extant and in respect of which relief might be sought, but none can be because no error can be demonstrated in respect of it. This follows simply on a plain reading of s.48A.
Here, however, what the applicant really seeks is relief against what she anticipates will be the outcome of the Minister’s personal decision or a decision not to forward her application to the Minister following a consideration of it against the guidelines, because her application does not satisfy the criteria set out therein for consideration of ministerial intervention. Although those steps are yet to be fulfilled, I am satisfied it is appropriate to proceed to deal with this application because, notwithstanding those matters, it is plain that this Court has no jurisdiction to intervene in the event that those matters are determined unfavourably for the applicant. Plainly, if the position is otherwise by reason of a favourable decision, this application would in any event be rendered otiose.
The respondent has referred me to a number of authorities dealing with the principles in issue here, namely, the jurisdiction of this Court to entertain an application for review of the Minister’s decision or failure by the Minister to make a decision under s.48B of the Act. In summary, this Court has no jurisdiction. Relevantly, s.476(2) of the Act provides so far as the jurisdiction of this Court in this area is concerned:
“(2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision or purported privative clause decision of the Administration Appeals Tribunal on review under section 500;
(c)a privative clause decision or purported privative clause decision made personally by the Minister under section 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).”
Section 474(7) provides:
“To avoid doubt, the following decisions are privative clause decisions within the meaning of section 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under ... section 48B ...”
A decision includes not only a decision, but also a decision not to exercise the power under s.48B: see s.474(7)(a) – a reference to “decision” including a reference to “conduct preparatory to the making of a decision.” The effect of that provision is to address the assistance that might be provided to the Minister in his decision, but it is probably not relevant in this case: see generally decisions of this Court in SZLLH v Minister for Immigration [2008] FMCA 322 and SZOXM v Minister for Immigration [2011] FMCA 564 and the authorities and decisions referred to therein.
While those cases may be distinguishable on their individual facts, the principle enunciated in them is on point. The Court has no jurisdiction in respect of a privative clause decision. The decision, if there be one to review, is a privative clause decision and it follows that the application in this instance fails at the threshold and is dismissed.
The respondent seeks costs. The only basis advanced by the applicants against the ordinary order is that the applicants do not have the financial means to meet the costs. That is not a proper basis to resist what would otherwise be the appropriate order in this instance.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 22 September 2014
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