CCV16 v Minister for Immigration

[2016] FCCA 2717

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCV16 v MINISTER FOR IMMIGRATION [2016] FCCA 2717

Catchwords:
MIGRATION – Minister for Immigration and Border Protection – Protection (Class XA) visa – whether the visa application was invalid by reason of the terms of s.48A – no obligation to consider exercising powers under s.48B – no jurisdictional error identified – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 48B, 476.

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174

Applicant: CCV16

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 2057 of 2016

Judgment of: Judge Street

Hearing date: 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2057 of 2016

CCV16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Department of Immigration and Border Protection (“the Department”) made on 22 July 2016 holding that an application for a Protection (Class XA) visa lodged by the applicant on 22 July 2016 on the grounds of complementary protection was invalid.

2. I am satisfied that the decision dated 22 July 2016 is not an excluded decision under s.476(2) of the Act and that this Court has jurisdiction in respect of that decision.

3. The applicant is a citizen of Indonesia who arrived in Australia on 14 October 1997. On 2 March 2000, the applicant lodged a protection visa application with the Department. On 17 March 2000, the delegate of the Department refused to grant the applicant a protection visa. On 24 September 2010, the applicant was renotified of the refusal decision and of his review rights. 

4. On 14 October 2010, the applicant sought a review of that decision by a formerly constituted Tribunal which affirmed the Department’s decision on 9 December 2010. The applicant did not thereafter seek any further judicial review. At the time of the lodgement of the application for protection on 22 July 2016, the applicant was in detention.

Before this Court

1. The applicant said from the bar table that he had been in Australia for 19 years. The applicant acknowledged that he had broken Australian law and for what appears to be a substantial period of that time, the applicant must have been an unlawful person in Australia. 

2. The application in the present case identifies the following grounds:-

   1. The Department of Immigration failed to consider my application under complementary protection.

   2. I accept that my application was refused on 17 March 2000 but at the time I was not assessed under complementary protection visa.

   3. Based on the application grounds lodged on 22 July 2016 the Department ignored the submission and denied me fairness as I am now in Villawood Detention Centre and need my application under complementary protection to be properly considered.

3. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether the decision made on 22 July 2016 was made in excess of statutory power. The Court explained that this meant the Court was going to consider whether or not the decision of the respondent was lawful.

4. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood what was said as to the nature of the hearing as explained by the Court. 

5. From the bar table, the applicant maintained that his mother had told him that he should not go back to Indonesia and that that was the reason why he had stayed in Australia. Nothing said by the applicant from the bar table identified any basis upon which it could be said that the decision of the respondent was unlawful.

Consideration

1. It is apparent from the letter in support of the application for a protection visa on the grounds of complementary protection by the applicant’s migration agent dated 18 July 2016, that the applicant was seeking to rely upon the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. That decision was the subject of legislative amendment to s.48A of the Act to overcome the consequences of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

2. The Full Court of the Federal Court of Australia has held that the amendment was effective to overcome the effect of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. See AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174 at [25] to [27]. The decision in AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174 is binding on this Court.

3. In the present case, it is apparent that the applicant had made an earlier application for protection. By reason of s.48A of the Act, the application lodged for protection on the grounds of complementary protection on 22 July 2016 was invalid and of no effect. The respondent in the reasons dated 22 July 2016 was correct in identifying that by reason of the fact that the earlier protection visa application had been refused and by reason of the terms of s.48A of the Act, the visa application was invalid. The respondent had no obligation to consider exercising powers under s.48B of the Act.

Conclusion

1. The decision correctly identified that the application for protection lodged on 22 July 2016 was invalid. Nothing in the grounds of the application identified any arguable basis upon which it could be said that there was any excess of statutory power by the respondent in the decision made on 22 July 2016. The decision was clearly correct. No ground has been made out to support any jurisdictional error in the decision made on 22 July 2016.

2. The application is, accordingly, dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 December 2016