CVA18 v Minister for Home Affairs
[2019] FCA 261
•28 February 2019
FEDERAL COURT OF AUSTRALIA
CVA18 v Minister for Home Affairs [2019] FCA 261
Appeal from: Application for extension of time: CVA18 v Minister for Home Affairs [2018] FCCA 2512 File number: NSD 1942 of 2018 Judge: ALLSOP CJ Date of judgment: 28 February 2019 Catchwords: MIGRATION – where application for second protection visa made after previous protection visa application refused – where both Refugee Convention and complementary protection criteria previously considered in merits review – whether application for protection visa invalid by reason of s 48A of the Migration Act 1958 (Cth) – no error in approach of primary judge – application dismissed Legislation: Migration Act 1958 (Cth) s 48A
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 Date of hearing: 28 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant did not appear Solicitor for the Respondent: A Nanson of Australian Government Solicitor ORDERS
NSD 1942 of 2018 BETWEEN: CVA18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
28 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve a notice of appeal filed on 15 October 2018 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This is an application for an extension of time in which to file a notice of appeal against orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Department of Home dated 30 May 2018, which determined that the applicant’s application for a Protection (Class XA) (Subclass 866) visa lodged on 24 May 2018 (the present visa application) was an invalid application by reason of s 48A of the Migration Act 1958 (Cth) (the Act).
The applicant is not present in court today. I am satisfied, from material provided to me by Ms Nanson, who appears on behalf of the respondent Minister, that the applicant was told, in January this year, of the hearing date. There is also, from the court records, notification of that fact. Before I came onto the bench, the interpreter who had appeared to translate and interpret, Ms Bing Han, rang, with the assistance of my Associate, the number given by the applicant on the application form. The applicant spoke with Ms Han and he indicated that he was sick today and was not coming to the hearing. There was no apparent surprise as to the date or time of the application. So I am satisfied that the applicant has been given notice of the hearing time and date of the application.
A notice of appeal must be filed within 21 days after the date on which the orders being challenged were made: Federal Court Rules 2011 (Cth) r 36.03. The order dismissing the present visa application was made on 31 August 2018. The applicant, therefore had until 21 September 2018 to file a notice of appeal. However, the Federal Circuit Court made consent orders on 24 September 2018, granting the applicant an extension of time to 12 October 2018 to file any notice of appeal.
The applicant filed an application for an extension of time, and an affidavit in support, on 15 October 2018. That is 3 days out of time. The affidavit of the applicant prayed financial hardship for the delay. The Minister opposes the application.
Procedural history
The procedural history of the matter is as follows. The applicant, who is a Chinese citizen, arrived in Australia on 24 June 2007 on a student visa. He was issued a further student visa, which expired on 15 March 2010. The applicant then remained in Australia as an unlawful non-citizen, until applying for a protection visa on 26 June 2013. A delegate of the then Minister for Immigration and Border Protection refused that application on 7 March 2014, which decision was affirmed by the Refugee Review Tribunal (RRT) on 7 November 2014. The judicial review of the RRT’s decision was refused by the Federal Circuit Court on 1 June 2015: see SZVTK v Minister for Immigration & Border Protection & Anor [2015] FCCA 1462.
On 21 July 2015, the applicant then applied for a Medical Treatment (Visitor) (Class UV) visa (the medical treatment visa) on the basis that he wanted treatment for gastritis between 23 July 2015 and 23 January 2016. A delegate of the Minister refused this application on 23 July 2015, which decision was affirmed by the Administrative Appeals Tribunal (AAT) on 29 October 2015. Judicial review of the AAT’s decision was refused by the Federal Circuit Court on 13 October 2016: see Wang v Minister for Immigration & Anor [2016] FCCA 3510.
On 17 May 2018, a judge of this Court made orders dismissing, for want of the applicant’s appearance, an application for an extension of time made by the applicant, who was seeking to appeal the 13 October 2016 Federal Circuit Court decision concerning his medical treatment visa.
At [8]–[10] of the primary judge’s reasons, the following preliminary observations were made:
8 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.
9And 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.
...
10I 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 AZABF v Minister for Immigration (2015) 235 FCR 150.
In those reasons, it is recognised that the present visa application is the second protection visa application made by the applicant.
The Federal Circuit Court proceedings
The applicant relied on the following three grounds in the Federal Circuit Court, which 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.
The primary judge considered each of these grounds at [12]–[17] of his reasons and determined that the applicant could not succeed on any of them.
The first ground was considered at [12] not to establish jurisdictional error because the delegate, in undertaking the assessment of validity, was entitled only to take into account the statutory requirements in relation to the present visa application, and, specifically, s 48A of the Act. The primary judge also observed at [13] that the issue of the applicant’s Catholicism and religious beliefs had been the subject of his earlier protection visa application and the judicial review decision in SZVTK, being the 2015 Federal Circuit Court decision referred to above in [5].
The second ground concerned the data breach that occurred in February 2014, when the identities of over 9,000 applicants for protection visas, who were then in immigration detention, were included in statistics published online, and which remained online until 24 February 2014. The primary judge considered at [15] that the data breach was irrelevant to the present visa application, again on the basis that the delegate was entitled to consider only the application’s statutory validity.
In relation to the third ground, the primary judge noted the applicant’s concession at the hearing that he was aware that Australian law did not permit a second protection visa application when an earlier protection visa application had been considered and rejected. As no argument was advanced as to why the delegate’s decision should be found to be invalid, the primary judge considered that matters of fairness could not be taken into account and accordingly no jurisdictional error was established.
The primary judge concluded by observing at [18]–[19] that the decision record of 7 November 2014 demonstrated that both the Refugee Convention and complementary protection criteria were considered by the RRT as part of its merits review of the 7 March 2014 decision; the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 was therefore of no avail to the applicant, with the preclusion and bar to his lodgement of the present application reinforced by s 48A(1C) of the Act.
Draft Notice of Appeal
The grounds of appeal in the draft notice of appeal are set out as follows:
Grounds of appeal
I AM A CHINSE CITIZEN AND APPLIED FOR SUBCLASS 866. DUE TO DIBP’S MISTAKE AND THEY EXPOSED MY PERSONAL INFORMATION TO THE PUBLIC AND THEY TREATED MY APPLICATION AS INVALID.
FEDERAL COURT FAILED TO CONSIDER MY EXPLAINATION AND SUPPORTING DOCUMENTS TO SUPPORT MY APPEAL WHICH I BELIEVE IT IS A LEGAL ERROR
DUE TO MY FINANCIAL HARDSHIP, I COULD NOT AFFORD TO PAY FOR THE COURT APPLICATION FEE, I APPRECIATE IF I COULD NOT WAIVED FOR THIS FEE.
Orders sought
1.I WISH THE COURT CAN RE-CONSIDER MY SUBCALSS 866 APPLICATION AND ACCEPT MY APPEAL.
2.THERE IS A LEGAL ERROR FROM DIBP AND FEDERAL COURT FOR NOT CONSIDERING THE FACT THAT I WILL BE IN DANGER IF I AM FORCED TO LEAVE AUSTRALIA, EXPECIALLY UNDER MY PERSONAL INFORMATION FOR PV APPLICATION HAS BEEN EXPOSED TO THE PUBLIC BY DIBP.
3.I WISH THE COURT COULD GIVE ME A SPECIAL CONSIDERATION DUE TO MY FINANCIAL HARDSHIP FOR DELAYING FOR THIS APPEAL
The applicant has not put any written submissions in support of his application; nor has he appeared today.
The Minister made two submissions in writing: first, that the applicant has not provided an adequate or satisfactory explanation for the delay in filing the present application; and secondly, that the proposed grounds of appeal have no merit. The Minister accepted that the delay was not extensive and that there was no prejudice.
On the merits of the proposed appeal, the Minister submitted that the two grounds raised by the applicant are unlikely to succeed. The Department’s data breach had been considered by the primary judge at [15] and it was submitted that no legal error is disclosed in the finding made on this issue. Regarding the applicant’s reference to the primary judge’s failure to consider the applicant’s explanation and supporting documents, the Minister submitted that no particulars or further submissions were provided to substantiate the assertion. With the only documents filed in the Federal Circuit Court proceedings being the application and a supporting affidavit, the Minister argued that the ground is misconceived.
The applicant has not appeared today. Given the state and the nature of the application, I consider it appropriate to express my views unassisted by any submissions by the applicant.
Consideration
In my view, the application should be refused. The essential basis for the primary judge’s decision was his reasons at [18], which reasons were as follows:
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.
I do not perceive any error in that approach. The application was invalid and the AAT and the primary judge were correct to treat it as such.
Should the applicant make an application to set aside the orders that I am about to make, it will be necessary for him to engage in a positive way with what, if anything, can be said in relation to the operation of s 48A of the Act.
For the above reasons, the application for an extension of time in which to file and serve a notice of appeal filed on 15 October 2018 should be dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 1 March 2019
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