CJR15 v Minister for Immigration

[2016] FCCA 275

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJR15 v MINISTER FOR IMMIGRATION [2016] FCCA 275

Catchwords:
MIGRATION – Protection (class XA) visa – show cause – whether a previously invalid application meant the second application fell outside the exclusion of s.48A of the Migration Act 1958 - no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.36(1A), 48A, 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: CJR15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3072 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner

Turner Coulson Immigration Lawyers

Solicitors for the Respondent:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The amended application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2072 of 2015

CJR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision made on 19 October 2015. The applicant purported to lodge an application for a Protection (Subclass 866) visa on 9 October 2015, and that was found not to be a valid application by the decision dated 19 October 2015. On 17 December 2015, a Registrar of the Court made orders fixing the matter for hearing for today, and an amended application was filed raising the following ground:

   1. The Respondent misapplied the facts to the law as found

   Particulars

   a. The Respondent found

   "A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 (the Act) a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia."

   b. The Applicant in his application of 8 October 2015, raised claims of complimentary protection which were not considered in relation to his earlier application which was not identified in the Respondent's decision.

   c. The Act deals only with situations where there has been a change in the law or the grounds of the application had changed. It does not preclude an application being made in respect of claims which have never been considered by the Respondent.

   d. In those circumstances, the Applicant is not precluded from lodging an application which raises a claim for complimentary protection.

   e. Alternatively, as the previous application raised no claim of protection, it was not therefore a valid application.  The Migration Act 1958 s.48A, therefore, had no application. 

2. The applicant had earlier lodged an application for protection on 8 August 2000 on a form 866 and identified the visa applied for as a Protection (Class XA) visa.  The applicant expressly made protection claims in that application based on his religion.  That application was accepted as a valid application for a Protection (Class XA) visa and was refused by the delegate on the merits on 18 August 2000.  The applicant applied for review, and the Tribunal affirmed the decision of the delegate on 9 September 2002. 

3. Mr Turner, the solicitor on behalf of the applicant, seeks to argue that, notwithstanding the amendment to s.48A by the introduction of subs.(1C) that purports to preclude a second application on other grounds, there was never a valid earlier application and therefore the recent application made on 8 October 2015 by the applicant falls outside the exclusion under s.48A. Mr Turner seeks to argue that the applicant is either entitled to have his claim for protection as a refugee reassessed and/or to have his claim considered under the ground of complementary protection which was not addressed at the time of his earlier application.

4. Mr Turner argued that the effect of s.36(1A) in the reference to subsection (2) meant that the visa application was not a protection application enlivening the work done by s.48A. The language of s.36(1A) refers to an applicant for a protection visa which is inconsistent with the applicant’s argument. Further the consequence of the construction contended for by the applicant would give rise to every unsuccessful applicant for a protection visa, being entitled to make a further application for protection. That is contrary to the clear words of s.48A(1C).

5. I am satisfied that the decision made on 19 October 2015 that the application was not valid is correct. The argument advanced is without substance. The amended application fails to disclose any arguable jurisdictional error. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.  The amended application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 February 2016