CSB16 v Minister for Immigration

[2016] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSB16 v MINISTER FOR IMMIGRATION [2016] FCCA 2657

Catchwords:
MIGRATION – Refugee Review Tribunal – where complementary protection was not considered – no prima facie case – application for interim injunction dismissed.

Legislation:

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

Migration Amendment Act 2014 (Cth), sch.2, cl.2

Cases cited:

Australia Broadcasting Corporation v O’Neill (2006) 227 CLR 57
AZABF v The Minister (2015) 235 FCR 150
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: CSB16

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2563 of 2016

Judgment of: Judge Street

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Sydney

Delivered on: 13 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Ms B Rayment

Mills Oakley Lawyers

ORDERS

1. The application in a case for injunctive relief is dismissed.

2. The Applicant to pay the Respondent’s costs fixed in the amount of $1500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2563 of 2016

CSB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

1. This is an application in a case for injunctive relief, pending the final determination of the proceedings commenced by the applicant in this Court. The applicant filed an application on 22 September 2016, seeking a Constitutional writ in respect of the respondent’s decision made on 13 September 2016. 

2. That was a decision in which the respondent found that the applicant had not made a valid application for protection in respect of the document lodged on 13 September 2016. The matter is within this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The decision made on 13 September 2016 is not a decision excluded from this Court’s jurisdiction under s.476(2) of the Act.

3. The applicant was refused a protection visa on 5 December 2005. 

4. The applicant is a citizen of Egypt and arrived in Australia on 15 October 2005, on a special purpose visa and a seaman’s passport.  That visa ceased on 17 October 2005, as the applicant had deserted his ship.  The application lodged a protection visa on 11 November 2005. 

5. The applicant claimed to fear harm by reason of his political opposition to the government and by reason of his having become part of a group of people led by a particular person who opposed the government’s treatment of people and its policies when it controlled the votes. 

6. The applicant alleged that he was detained on a number of occasions. And on the last occasion, he was badly treated. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36 of the Act. The delegate was not satisfied the applicant had a well-founded fear of persecution.

7. The applicant applied for review to the Refugee Review Tribunal (“the Tribunal”). On 21 February 2006 the Tribunal found that it was not satisfied the applicant was a person to whom Australia had protection obligations and found that the applicant did not satisfy the criteria under s.36(2) of the Act for a protection visa.

8. Following that decision, apart from short periods whilst the subject of a bridging visa in respect of a ministerial review request, the applicant remained an unlawful person in Australia until his detention in May of 2016.  The applicant has not left Australia since his arrival on 14 October 2005. 

9. The applicant purported to lodge an application for protection on the grounds of complementary protection on 12 September 2016 seeking to rely upon the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. The applicant relied upon the fact that the decision made on 5 December 2005 was not based upon s.36(2)(aa) of the Act and that this was a criterion that had not been the subject of determination in the decision by the delegate or the Tribunal.

10. The applicant provided submissions asserting that there was a prima facie case that the applicant was entitled to pursue the complementary protection application, and that the decision of the Minister, dated 13 September 2016, the subject of the substantive proceedings, was wrong in law. The application sought an order that the decision dated 13 September 2016 be quashed, as well as a writ of mandamus, declaratory and injunctive relief. 

11. By act number 30 of 2014, the Migration Amendment Act 2014 (Cth), sched.2, cl.2, a material amendment in relation to the present case was made to s.48A. That amendment inserted subs.(1C) relevantly as follows:

    (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.

12. The further application for a protection visa, on the grounds of complementary protection in the present case, was made well after the commencement of the amendment to s.48A of the Act. The explanatory memorandum explains that this amendment to s.48A was made to overcome the Full Court’s decision in SZGIZ.  There is a binding decision on this Court by the Full Court of the Federal Court in AZABF v The Minister (2015) 235 FCR 150 that s.48A prevents a further valid application in circumstances of the earlier protection visa application present case by reason of the amendment. In AZABF relevantly the Full Court said:

    25. The terms of ss 48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) of the Act read together act as a bar to the lodgement by the appellant of his second application for a protection visa. In particular, we note:

    · section 48A(1C)(b), which provides that s 48A(1) applies such that a non-citizen who has made a previously unsuccessful application for a protection visa may not make a further application for a protection visa, whether the grounds on which an application would have been made or the criteria which the non-citizen would claim to satisfy existed earlier;

    · section 48A(2)(aa), which defines “application for a protection visa” as including an application for a visa that, under the Act or the regulations in force at any time, is or was a visa of the class known as protection visas; and

    · section 36, which is headed “Protection visas – criteria provided for by this Act”, and in particular s 36(2)(aa) which provides that a criterion for a protection visa is that the applicant for the visa satisfy the Minister of (in effect) Australia’s complementary protection obligations to that applicant.

    26. It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the “criterion for a protection visa”. And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa “regardless of … the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier”. Even though the “criterion” now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made “regardless of … whether” the criterion now relied upon “existed earlier”. We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). 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.

    27. In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa.

13. The applicant’s submissions in substance asserted a prima facie case based on the decision in SZGIZ and ignored the amendments made by act number 30 of 2014.  Reliance was also sought to be placed on the decision of the Full Court in the Minister for Immigration and Border Protection v SZVCH (2016) FCAFC 127.

14. However, it is apparent that the decision in SZVCH was one that was not affected by the relevant amendment.  In considering whether to grant an interlocutory injunction the principles have been identified in Australia Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 65.

15. The Court must first consider whether the applicant has a prima facie case in the sense that if the evidence remains as it is there is a probability at the time of trial that the applicant would be entitled to relief.   Secondly, the Court should consider the balance of convenience and in particular the harm that the applicant may suffer if the interlocutory injunction is refused.

16. On the material before the Court, there is no prima facie case for that the decision dated 13 September 2016 by the respondent was wrong in law. The reasoning in the decision that the protection application lodged on 13 September 2016 on the grounds of complementary protection, was by reason of s.48A of the Act not a valid application for a visa was correct. The respondent’s reasons were properly identified in the letter dated 13 September 2016. It was open to the respondent to treat the lodgement of the purported visa application as an application for the Minister to exercise the Minister’s powers under s.48B of the Act. There is before the Court a letter dated 28 September 2016 indicating that the Minister declined to intervene under s.48B of the Act.

17. This Court is bound by the decision in AZABF and special leave to appeal from that decision has been refused. There is no sufficiently arguable case of legal error to warrant any injunction to preserve the subject matter of the proceedings in the present case.  The applicant has been served with a notice of intention to remove from Australia to take place on Tuesday 18 October 2016.  The substantive matter has been fixed for hearing on 1 December 2016.

18. On the material before the Court the substantive proceedings appear doomed to failure. There is no reasonably arguable case of jurisdictional error in the decision dated 13 September 2016 to support interlocutory injunctive relief. The Court is clearly satisfied that there is no utility in preserving the subject-matter of the proceedings in the present case. 

19. The Court is not satisfied that there is a prima facie case that the decision dated 13 September 2016 was in law wrong.  If the Court had found there to be a prima facie case, which it has not, the Court would have been required to consider the balance of convenience which ordinarily would weigh in favour of the applicant asserting a protection obligation owed by Australia.  It is not, however, necessary to consider in the present case the impact in that balancing exercise of the very substantial period during which the applicant has been a non-lawful person in Australia.

20. The application in a case for an interlocutory injunction is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 October 2016