CXN18 v Minister for Home Affairs

[2018] FCCA 3305

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXN18 & ANOR v MINISTER FOR HOME AFFAIRS [2018] FCCA 3305

Catchwords:
MIGRATION – Migration Act1958 (Cth) – second application for a protection visa by applicants – effect of s.48A of the Migration Act1958 (Cth) – consideration of the ‘data breach’ – 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.48A, 474, 476

Cases cited:

Edward v Santos Ltd (2001) 242 CLR 421

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

Minister for Immigration v SZSSJ (2016) 259 CLR 180

First Applicant: CXN18

Second Applicant: CXO18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1579 of 2018

Judgment of: Judge Dowdy

Hearing date: 9 November 2018

Delivered at: Sydney

Delivered on: 9 November 2018

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second Applicant.

Counsel for the Respondent: Ms C. Saunders

Solicitors for the Respondent: DLA Piper Australia

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 6 June 2018 is dismissed.

2. The Applicants are to pay the Respondent’s costs of the proceeding in the sum of $3,000.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1579 of 2018

CXN18

First Applicant

CXO18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicants are husband and wife and citizens of China.  The First Applicant husband is aged 49 years, having been born on 12 August 1969 and the Second Applicant wife is aged 50 years, having been born on 6 June 1968 (collectively the Applicants).

2. By Application filed in this Court on 6 June 2018, they seek 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 that their applications for a Protection (Class XA) (Subclass 866) visa (present Protection visa) were invalid by force of s.48A of the Migration Act 1958 (Cth) (the Act).

3. I note that at the hearing this morning the Second Applicant wife did not appear, but I was assured by the First Applicant husband that she was sick, and that he appeared and made submissions on her behalf. 

4. I note that a mistaken denial of jurisdiction by a Court is a jurisdictional error attracting a writ of certiorari:  Edward v Santos Ltd (2001) 242 CLR 421 at 439 [46] per Heydon J.

5. In my view, in the present circumstances the officer of the Department was in an analogous position to a Court for present purposes.  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. Accordingly, SZGIZ would support the nature of the relief sought by the Applicants in this Court. 

Relevant Background

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

   (a)The Applicants arrived in Australia on 31 July 2013 on Tourist (Class FA) (Subclass 600) visas and have remained in and been residents of Australia ever since.  On 28 October 2013 they each applied for Protection visas (previous Protection visa applications) which were refused by a Delegate of the Minister in a Decision Record dated 27 February 2014.  This adverse decision was affirmed by the then Refugee Review Tribunal (RRT) by Decision Record dated 27 August 2014.  An application for judicial review of the RRT decision was made to this Court, but on 10 September 2015 his Honour Judge Driver dismissed the application for judicial review. 

   (b)Nevertheless, on 28 May 2018 while in Australia, and hence within the migration zone for the purposes of s.48A of the Act, the Applicants sought to lodge the present Protection visa application, but the officer of the Department in his decision letter of 30 May 2018 found that by force of s.48A, their present Protection visa applications were invalid because they were barred from making such applications while in Australia.

2. I note that I am satisfied that this Court has jurisdiction under s.476(1) of the Act to review the officer of the Department’s invalidity assessment of the present Protection visa applications, which decision of the Delegate is a privative clause decision under s.474(2) and s.474(3)(g).

Relevant Statutory Provisions

1. Section 48A of the Act relevantly provided as follows:

   (1)  Subject to section 48B, a non‑citizen who, while in the migration zone, has made:

   (a)  an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)  applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.

   …

   (1C) Subsections (1) and (1B) apply in relation to a noncitizen regardless of any of the following:

   (a) the grounds on which an application would be made or the criteria which the noncitizen would claim to satisfy;

   (b) whether the grounds on which an application would be made or the criteria which the noncitizen would claim to satisfy existed earlier;

   (c) the grounds on which an earlier application was made or the criteria which the noncitizen earlier claimed to satisfy;

   (d) the grounds on which a cancelled protection visa was granted or the criteria the noncitizen satisfied for the grant of that visa.

   
   
   (2)  In this section:

   application for a protection visa means:

   (aa)  an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or

   Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.

   (aaa)  an application for a visa, a criterion for which is that the applicant is a non‑citizen who is a refugee; or

   (a)  an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (b)   an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

   (emphasis added)

The Grounds of Attack on the Officer of the Department’s Decision

1. The Grounds in the Application filed in this Court are as follows:

   1. I have been actively involved in Falun Gong practice in Australia.  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 appears to invite a merits review of the earlier decision of the Refugee Review Tribunal (RRT) which affirmed the decision of the Delegate to refuse the previous Protection visa applications.  This is not a matter which is before me in the present proceeding.  There has already been an application for judicial review of that RRT decision which was unsuccessful.

2. In my view, Ground 1 is not made out and does not establish jurisdictional error.

Ground 2

1. Ground 2 appears to refer to what is generally referred to as the ‘Data Breach’, and that occurred on 10 February 2014. In Minister for Immigration v SZSSJ (2016) 259 CLR 180, the High Court summarised the ‘Data Breach’ at 187 – 188 [3] – [4] 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.

   [4] On any view, the Data Breach was very serious. The information disclosing the identities of the applicants for protection visas embedded in the document published by the Department was information protected from unauthorised access and disclosure by criminal prohibitions in Pt 4A of the Migration Act 1958 (Cth).

2. It does appear to be the case from my reading of the decisions made by the Delegate, Tribunal and Judge Driver in relation to the previous Protection visa applications that the data breach was not considered. The reasons for that may be that no claim was never made in relation to the data breach by the Applicants during the course of the processing of the previous Protection visa applications. However, be that as it may, the force and effect of s.48A(1C) of the Act means that whether or not the data breach was considered previously is irrelevant, and is not now to be taken into account or considered.

3. In my view, Ground 2 does not establish that the decision of the officer of the Department suffers from jurisdictional error.

Ground 3

1. Ground 3 does not in its terms actually comprise a meaningful assertion of jurisdictional error but rather, in effect, a plea to the Court. As such the Ground is not made out and fails to establish jurisdictional error.

Conclusion

1. Accordingly, in my view, the decision of the officer of the Department is clearly correct, and the present Protection visa applications are invalid by force of s.48A of the Act and the Application filed in this Court is to be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018