Dag18 v Minister for Home Affairs

[2018] FCCA 2605

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAG18 & ORS v MINISTER FOR HOME AFFAIRS [2018] FCCA 2605

Catchwords:
MIGRATION – Invalid visa application – previous protection visa – where applicants seek impermissible merits review – allegation that the Department disclosed sensitive information – no evidence that Department disclosed sensitive information – no error established – dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.47, 48A, 476

Migration Regulations 1994 (Cth) reg.2.08

Cases cited:

Minister for Immigration v Kim [2014] FCAFC 47; (2014) 221 FCR 523
Singh v Minister for Immigration [2016] FCAFC 183; (2016) 244 FCR 305

First Applicant: DAG18

Second Applicant: DAH18

Third Applicant: DAI18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1623 of 2018

Judgment of: Judge Baird

Hearing date: 13 September 2018

Date of Last Submission: 13 September 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondent: Ms Davyskib of Minter Ellison

ORDERS

1. The application be dismissed.

2. The First and Second Applicants pay the Respondent’s costs fixed in the sum of $5,600.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1623 of 2018

DAG18

First Applicant

DAH18

Second Applicant

DAI18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth), seeking judicial review a decision of the Delegate of the Minister for Home Affairs made on 7 June 2018.  The Delegate refused to issue the Applicants a Protection (class XA) (subclass 866) Visa, on the basis that the applications lodged on 28 May 2018 were invalid due to the operation of s.48A of the Act. In short, this is because the Applicants had previously applied for and had been refused protection visas.

Background

1. The Applicants are citizens of China from Fujian Province.   The First Applicant is a male born in 1990.  He came to Australia in 2007 as the holder of a subclass 571 student visa.  The Second Applicant, his de facto wife, was born in 1989 and came to Australia separately from the First Applicant, in 2006, also as a holder of a subclass 571 student visa.  The Third Applicant, born in 2013, is their child.  Pursuant to orders made by Registrar Morgan of this Court on 5 July 2018, the First Applicant is appointed as the litigation guardian of the Third Applicant. 

2. Before me today in oral submissions, the Second Applicant informed the Court that she had recently given birth to their second child, a boy.  He is not a party to this proceeding, and having not been born was not a party to the determination of the Delegate on 7 June 2018.

3. On 8 May 2013, the First Applicant applied for a Protection (class XA) (subclass 866) visa with the Second Applicant included as a member of his family unit. The Third Applicant, born in Australia in 2013 after the application was made, was taken to have applied for a protection visa as at the date of her birth by operation of reg.2.08(1) of the Migration Regulations 1994 (Cth):

   (1)     If:

   (a)     a non‑citizen applies for a visa; and

   (b)     after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non‑citizen;

   then:

   (c)         the child is taken to have applied for a visa of the same class at the time he or she was born; and

4. (d)     the child’s application is taken to be combined with the non‑citizen’s application. On 17 July 2014, a delegate of the Minister refused to grant the Applicants a protection visa in respect of their 2013 application for a protection visa.  The Delegate did not believe the Applicants’ claim to be Falun Gong practitioners and for other reasons set out in that decision.  That decision was affirmed by the Administrative Appeals Tribunal on 17 December 2015.  The materials before me indicate that the Tribunal did so as a consequence of the Applicants not appearing at the hearing before the Tribunal.

5. As I have said, on 28 May 2018 the Applicants lodged the application for Visa which is their second application for that visa type.  On 31 May 2018, the Delegate notified the Applicants that he had determined that the First and Second Applicants’ Visa application was invalid.  As the Second Applicant informed the Delegate, the Delegate had incorrectly not included the Third Applicant in that determination. 

6. On 7 June 2018 the Delegate reissued and expanded the determination, this time notifying the Applicants that he had determined that the First, Second, and Third Applicants’ Visa application was invalid because they had previously been refused the grant of a protection visa under s.48A of the Act. The letter stated that:

   You cannot make another valid visa application while in Australia, unless the Minister personally decides that it is in the public interest to allow you to do so.

   It continued:

   There is no right of merits review of the assessment that an application is invalid.

7. The Applicants lodged their application to this Court on the same day. 

Proceeding in this Court

1. By orders of the Court dated 5 July 2018, the Applicants were granted leave to file and serve any additional evidence to be relied upon by 15 August 2018.  No further material has been filed or served by the Applicants and no additional material was handed to me today.

2. The First and Second Applicants appeared before me today with the benefit of a Mandarin-speaking interpreter.  At the outset of the hearing, I explained to the Applicants the costs consequences of proceeding with the application and asked whether they intended to press the application.  They indicated that they did.

3. The application for judicial review pleads three grounds and it additionally sets out three paragraphs under the heading of Final Orders Sought by the Applicants.  I confirmed with the applicants whether they intended to press all paragraphs of the application and they indicated that they did.  Those six paragraphs are set out as follows (without alteration):

   [final orders sought]

   1. This is my second protection visa application to Department of Home Affairs and they treated as invalid application which is not fair to me.

   2. Department of Home Affairs has mistakenly published my personal information and many other people like me in the public which made me feeling strong fears of return to my home town.

   3. Department of Home Affairs should accept my second protection application and allow me to stay in Australia for protection.

   [grounds of application]

   I have been actively involved in Falungong practice in Australia. I will be persecuted if I am forced to return.

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

   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. Ground 1 seeks merits review and does not articulate any jurisdictional error.  I dismiss ground 1.

Ground 2

1. Ground 2 of the application is substantially the same as paragraph 2 under the heading of Final Orders.  From the Bar table, the Second Applicant said that the information referred to was about asylum seekers and was disclosed online.  When pressed, she further said that it related to Falun Gong.  She said that she had been told by a friend that this is what happened and you can get protection on that basis.  She did not provide any details. 

2. There is no evidence before the Court to suggest that the Applicants had any personal information released or that there was any breach of an obligation of non‑disclosure of personal information about the Applicants by the Minister or his department.  The ground is vague and unparticularised, and its relationship to the Delegate’s consideration decision is unexplained.  The Second Applicant’s statements from the Bar table lack any specificity.

3. When I drew the Applicants’ attention to the orders of Registrar Morgan and their obligation to provide evidence, they conceded that they did not bring any evidence to Court.  Separately, they said that Ms Davyskib, solicitor for the Minister, cannot guarantee that the Department did not disclose the information, or that the Applicants will not be persecuted on return.  It is, however, for the Applicants to put forward the material which they ask the Court to consider. 

4. I am not persuaded that there has been any release of the Applicants’ personal information as asserted.  In the absence of any particulars of the event and the information, there is no basis for any claim of jurisdictional error.  Ground 2 does not provide for any basis for invalidity of the determination.  I dismiss ground 2.

Ground 3

1. Ground 3 asserts that although it is the second protection visa application, it should not be treated as an invalid application and that is not fair.  This raises the critical issue to be determined by this Court, namely, whether the Delegate’s determination that Visa application made in May 2018 was invalid.

2. The invalidity determination of the Delegate does not constitute a primary decision as defined by s.476(4) of the Act. This is because the decision is not reviewable, or capable of review, under Parts 5, 7 or 7AA, or s.50 of the Act. The Court thus has jurisdiction to review the invalidity determination as it is a migration decision for the purposes of s.476(1) of the Act. The question of invalidity is a question of law for the Court to determine: see Minister for Immigration v Kim [2014] FCAFC 47; (2014) 221 FCR 523 at [27], and Singh v Minister for Immigration [2016] FCAFC 183; (2016) 244 FCR 305 at [35].

3. Section 46 of the Act provides that an application for a visa is valid if, amongst other things, it is not prevented by s.48A of the Act. Section 48A provides:

   (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.

   (1AA)     Subject to section 48B, if:

   (a)         an application for a protection visa is made on a non‑citizen’s behalf while the non‑citizen is in the migration zone; and

   (b)     the grant of the visa has been refused, whether or not:

   (i)     the application has been finally determined; or

   (ii)     the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or

   (iii)    the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;

   the non‑citizen 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.

4. The movement records relating to the First and Second Applicants are in evidence and they show that since arriving in Australia in 2007 and 2006 respectively, the Applicants have not travelled outside Australia.  I confirmed this with the Applicants today.  Although there is no evidence of the Third Applicant’s movements, I infer that their child has similarly stayed in Australia and has not left the migration zone since her birth.  The Applicants have confirmed that that is correct. 

5. The evidence shows that the Applicants have previously, as I have said, applied for and been refused an application for a protection visa. The elements of s.48A of the Act are satisfied in the case of the First and Second Applicants. In relation to their child, the child’s application falls to be determined on the same basis. It follows that s.48A of the Act bars the Applicants from applying for the second protection Visa application and, in the case of the Third Applicant, the child is barred from having a further application made on her behalf, whether or not she knew about or understood the nature of the first protection visa application.

6. There is no evidence that the Minister has made a determination pursuant to s.48B of the Act that section 48A does not apply to the Applicants. The Delegate cannot consider an application that is not a valid application: see s.47(3) of the Act. Further, an invalid application cannot give rise to an obligation under s.65 of the Act to grant a visa by reason of s.46(2A) of the Act. It follows that the Delegate’s determination on 7 June 2018 that the second protection visa application (the application made 28 May 2018) was invalid is correct.

7. The grounds of the application cannot succeed and, accordingly, the application must be dismissed. The First and Second Applicants should pay the costs of the proceeding.

8. During oral submissions the Second Applicant informed the Court, as I have said (see above at [3]), that she had recently given birth to an additional child.  That child was not part of the application for Visa made in May 2018, and is not part of the determination of the Delegate and not a party to this proceeding.  I have, accordingly, no jurisdiction and make no observations or orders in relation to the newest member of the First and Second Applicants’ family.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 21 September 2018