Cva18 v Minister for Home Affairs

[2018] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVA18 v MINISTER FOR HOME AFFAIRS [2018] FCCA 2512

Catchwords:

MIGRATION – Migration Act1958 (Cth) – second application for a Protection visa by Applicant – effect of s.48A of the Migration Act1958 (Cth) – none of the grounds of asserted jurisdictional error affected validity of the decision of the Delegate of the Minister for Home Affairs that the second application for a Protection visa was invalid by force of s.48A of the Migration Act1958 (Cth) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 474, 476

Cases cited:

AZABFv Minister for Immigration (2015) 235 FCR 150

Edward v Santos Ltd (2011) 242 CLR 421

Minister for Immigration vSZSSJ (2016) 259 CLR 180

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

SZVTK v Minister for Immigration [2015] FCCA 1416

Wang v Minister for Immigration [2016] FCCA 3510

Applicant: CVA18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1513 of 2018

Judgment of: Judge Dowdy

Hearing date: 31 August 2018

Delivered at: Sydney

Delivered on: 31 August 2018

REPRESENTATION

The Applicant appeared
in person

Counsel for the Respondent: Ms A. Nanson

Solicitors for the Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 1 June 2018 is dismissed.

2. The Applicant pay the Respondent’s costs of the proceeding in the sum of $4,000.   

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1513 of 2018

CVA18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant is a male citizen of China aged 29 years, having been born on 18 October 1988. 

2. By Application filed in this Court on 1 June 2018 he seeks to quash and impliedly have re-determined in accordance with law a decision of an officer of the Department of Home Affairs (Department) dated 30 May 2018, to the effect that the application for a Protection (Class XA) (Subclass 866) visa (Protection visa) which was lodged by the Applicant on 24 May 2018 (present Protection visa application) was an invalid application by force of s.48A of the Migration Act 1958 (Cth) (the Act).

3. I note that a mistaken denial of jurisdiction by a Court is a jurisdictional error attracting a writ of certiorari: Edward v Santos Ltd (2011) 242 CLR 421 at 439 [46] per Heydon J. In my view, in the present circumstances the officer of the Department was in an analogous position to a Court. Further and in any event, the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), in the exercise of judicial review, made a declaration that an application for a Protection visa lodged by the appellant in that case was not invalid under s.48A of the Act, so as to rectify the circumstances where an officer of the Department had informed the appellant that his application was invalid.

4. Accordingly, SZGIZ would support the nature of the relief sought by the Applicant in this Court. 

Relevant Background

1. I make on the evidence the following factual findings:

   (a)The Applicant arrived in Australia on 24 June 2007 on a Student visa and was issued a further Student visa which expired on 15 March 2010, and he remained in Australia thereafter as an unlawful non-citizen. 

   (b)On 26 June 2013, he applied for a Protection visa which was refused by a Delegate of the then Minister for Immigration and Border Protection (Minister) on 7 March 2014. This adverse decision of the Delegate was affirmed by decision dated 7 November 2014 of the then Refugee Review Tribunal (RRT) and then judicial review of which decision of the RRT was refused by her Honour Judge Emmett in this Court on 1 June 2015 in SZVTK v Minister for Immigration [2015] FCCA 1416.

   (c)It is clear from the Reasons for Judgment of Judge Emmett that the RRT considered the Applicant’s claims to protection under both the Refugees Convention criterion and also the complementary protection criterion under s.36(2)(aa) of the Act, which latter criterion had been introduced as at 24 March 2012.

2. Undeterred by these setbacks, the Applicant on 21 July 2015 applied for a Medical Treatment (Visitor) (Class UV) visa (Medical Treatment visa) on the basis of wanting treatment for gastritis during the period 23 July 2015 to 23 January 2016.  A Delegate of the Minister refused the Medical Treatment visa and this adverse decision was affirmed by the Administrative Appeals Tribunal (AAT) and, on judicial review of the decision of the AAT, his Honour Judge Smith in this Court dismissed the application for judicial review of the AAT’s decision in Wang v Minister for Immigration [2016] FCCA 3510.

3. Finally, on 17 May 2018 orders were made by Moshinsky J in the Federal Court of Australia, dismissing an application for extension of time made by the Applicant seeking to appeal Judge Smith’s decision.  The extension of time was dismissed by Moshinsky J in the Federal Court for want of the Applicant’s appearance. 

4. I note that in a statement forming part of his present Protection visa application, the Applicant referred to and, effectively, admitted his earlier Protection visa application lodged on 26 June 2013.

5. And so it is common ground in the present proceeding that the present Protection visa application is his second one. Further, the evidence establishes that the Applicant lodged his present Protection visa application while he was within Australia and hence within the migration zone for the purposes of s.48A of the Act. I note that I am satisfied that this Court has jurisdiction under s.476(1) to review the Delegate’s invalidity assessment of the present Protection visa application, which decision of the Delegate is a privative clause decision under s.474(2) and s.474(3)(g) of the Act.

Conditions for a Valid Protection Visa Application

1. I note that s.48A(1C) of the Act came into effect from 28 May 2014 in order to respond to and supersede the decision of the Full Court of the Federal Court of Australia in SZGIZ, which had found that s.48A of the Act, as it then stood, did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugee Convention grounds. The genesis, meaning and effect of s.48A(1C) are set out in the decision of the Full Court of the Federal Court in AZABFv Minister for Immigration (2015) 235 FCR 150.

Grounds of Attack on the Delegate’s Invalidity Assessment in this Court

1. The Grounds relied upon by the Applicant were as follows:

   1. Being a convert of Catholic. I will be persecuted if I am forced to return.

   2. Department of Home Affairs made mistake to release my personal information which is totally not acceptable.

   3. My second protection visa application should not be treated as invalid application and I wish the court could give me a fair decision.

Consideration

Ground 1

1. This Ground fails to establish jurisdictional error. The present Protection visa application was either validly or not validly made. When considering the validity of the present Protection visa application, the Delegate was not entitled to take into account any matters other than the statutory requirements in relation to the present Protection visa application which the Delegate was considering, and in particular s.48A of the Act.

2. Ground 1 fails to establish that the decision of the Delegate suffers from jurisdictional error.  The issue of his Catholicism and religious beliefs was the subject and basis of his earlier Protection visa application which was considered on judicial review by Judge Emmett. 

Ground 2

1. Ground 2 relates to what is called commonly the “data breach”.  It was described by the High Court of Australia in Minister for Immigration vSZSSJ (2016) 259 CLR 180 at 187[3] and 188[5] per French CJ, Kiefel, Bell, Gageler, Nettle and Gordon JJ as follows:

   [3] The Data Breach occurred on 10 February 2014. The Department routinely publishes statistics on its website. This time the particular electronic form of the document in which the statistics were published included embedded information which disclosed the identities of 9,258 applicants for protection visas who were then in immigration detention. The document containing the embedded information remained on the website until 24 February 2014.

   …

   [5] …during the fourteen days in which the document disclosing the identities of the visa applicants had remained on the website, the document had been accessed 123 times and that the access had originated from 104 unique internet protocol (IP) addresses.

2. The data breach was irrelevant to the present Protection visa application because the Delegate was not entitled to consider anything at all about the data breach but was only entitled to consider the statutory validity of the present Protection visa application.

Ground 3

1. Ground 3 also fails to establish that the decision of the Delegate is affected by jurisdictional error.  The Applicant at the hearing has conceded that he is well aware that Australian law does not permit a second Protection visa application when an earlier Protection visa application has been considered and rejected.  He has not advanced any reason why I should find that the Delegate’s decision is invalid and I am not entitled to take into account, nor was the Delegate, matters of fairness such as are invoked in Ground 3. 

2. Accordingly, Ground 3 fails to establish jurisdictional error.

Conclusion

1. Regrettably for the Applicant, the simple fact of the matter is that s.48A(1) of the Act precluded him from making his present Protection visa application in circumstances where the RRT in its decision record of 7 November 2014 had considered his earlier Protection visa application for merits review from the earlier adverse decision of the Delegate under both the Refugee Convention criterion and the complementary protection criterion. In such circumstances, he was never going to be able to avail himself of the decision of the Full Court of the Federal Court in SZGIZ.

2. The effect of sub-s.(1C) of s.48A of the Act was merely to make even more emphatic the preclusion and bar to the Applicant’s lodgement of his present Protection visa application effected by s.48A(1).

3. Accordingly, unfortunately for the Applicant his application to this Court for judicial review must be dismissed.

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

Date:  21 September 2018