DLX18 v Minister for Home Affairs

[2019] FCCA 1911

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLX18 v MINISTER FOR HOME AFFAIRS [2019] FCCA 1911

Catchwords:
MIGRATION – Application for summary dismissal of application seeking review where delegate determined that a third protection visa application was invalid because of s.48A of the Migration Act 1958 (Cth).

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

SZGIZ v Minister [2013] FCAFC 71; (2013) 212 FCR 235

SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121

Applicant: DLX18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1861 of 2018

Judgment of: Judge Barnes

Hearing date: 2 July 2019

Delivered at: Sydney

Delivered on: 2 July 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the Applicant’s application filed on 4 July 2018 be summarily dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1861 of 2018

DLX18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application in a case filed on 29 April 2019 on behalf of the Respondent Minister seeking orders pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) that the Applicant’s application filed on 4 July 2018 be dismissed with costs on the basis that he has no reasonable prospect of successfully prosecuting the proceeding.

2. Rule 13.10(a) reflects the provisions of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth), and the Minister acknowledged that the principles considered by the High Court in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 were relevant.

3. The Minister bears the onus of establishing that the application has no reasonable prospects of success.  I bear in mind the caution required in exercising the discretion to dismiss proceedings summarily.  What is required is a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial (and see Spencer per Hayne, Crennan, Kiefel and Bell JJ at [58] – [60]).

4. The background to these proceedings is that the Applicant, a citizen of People’s Republic of China, entered Australia in October 2006.  He applied for protection in September 2007.  The application was refused in December 2007.  That decision was affirmed by the then Refugee Review Tribunal (the Tribunal) in March 2008. 

5. Following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the Applicant lodged another application for a protection visa on 28 October 2013. The second protection visa application raised complementary protection grounds. That application was refused by a delegate of the Minister and that decision was subsequently affirmed by the Tribunal in January 2015.

6. Relevantly, on 2 July 2018 the Applicant purported to lodge a third protection visa application.  By letter of 3 July 2018 an officer of the Department informed the Applicant that the purported protection visa application of 2 July 2018 was not a valid application.

7. The letter explained that a decision had previously been made to refuse to grant the Applicant a protection visa or to cancel his protection visa and that under s.48A of the Migration Act 1958 (Cth) (the Act), a person who had not left Australia since their protection visa was refused or cancelled was prevented from making a subsequent protection visa application while in Australia. The letter also referred to the fact that the Minister has power under s.48B of the Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. There is no suggestion or evidence that the Minister has exercised his power under s.48B of the Act in this case.

8. The Applicant then lodged the substantive review application.  I am satisfied on all the material before me that this application challenges the contention that the third protection visa application is not valid as asserted in the notification of 3 July 2018.  The only respondent named on the application form is the Department of Home Affairs.  While the box for the Immigration Assessment Authority (the IAA) is ticked in the part of the form referring to migration decision details, the date of the decision is given as 3 July 2018.  There is no evidence of any relevant IAA decision.  Moreover, annexed to the Applicant’s affidavit supporting the application is a copy of the delegate’s notification of the invalidity of the protection visa application dated 3 July 2018.

9. Further, in addition to seeking an order that the decision be quashed, the Applicant contends that the Department treated his application as invalid which was not fair to him.  This puts it beyond doubt that this is an application for review in relation to the validity of his third protection visa application.

10. It is also asserted that the Department mistakenly published the Applicant’s personal information and that of many other people which made him fear returning to China as he would be persecuted.  He contended that the Department should accept his protection visa application and permit him to stay “since it is their big mistake and they should be responsible for it”.

11. Under the heading “Grounds of application”, the Applicant contended he was actively involved in Falun Gong practice in Australia and would be persecuted if forced to return; that the Department made a mistake in releasing his personal information which was “totally not acceptable” (as he put it); and that what he described as his second protection visa application (but clearly must be intended to be a reference to his third protection visa application) should not be treated as invalid and that he wanted the court to give him a fair decision.

12. The Minister submitted that, putting aside the invitation to the court to itself determine the merits of the Applicant’s protection claim, the significant difficulty that faced him in raising these issues was that his third application for a protection visa was never considered on its merits because it was held to be an invalid application. The parts of the application for review addressing the basis for the Applicant’s claimed fears were said to be entirely misconceived.

13. It was also contended that insofar as the Applicant claimed that the Department had been unfair in treating his application as invalid, there was no explanation as to why that may be so such as to indicate even an arguable contention that the Applicant had a ground of review that was arguable. It was pointed out that under s.47(3) of the Act, if the protection visa application was invalid it could not be treated as valid and could not be considered on its merits.

14. The Respondent also pointed out in submissions that there was no evidence before the court that the Department did in fact release the Applicant’s personal information or disclose it in some way, but contended that even if that had been so, it was of no relevance to the question of whether the third protection visa application was invalid. It was submitted that the only issue for present purposes was whether s.48A of the Act did not apply to the application to render it invalid and that the Applicant had no reasonable prospect of success in that respect.

15. As the Minister submitted, the Applicant raised no arguments as to the validity of his third protection visa application (and did not make any oral submissions despite being given the opportunity to do so).

16. There is nothing in the material put before the court to suggest any reason why s.48A may not apply in the circumstances of the Applicant. In particular, there is no suggestion of any issue in relation to the question of whether s.48A of the Act applied to the Applicant because a decision had previously been made to refuse to grant him a protection visa. In fact he had made two separate protection visa applications, the second of which was permissible in light of SZGIZ.  Each of those applications was considered by the delegate.  On two occasions the Tribunal affirmed those decisions on review.

17. I note that there is no evidence before the court as to whether the Applicant made any judicial review application in relation to either of the Tribunal decisions.  However that is not of relevance in the present case.  Rather, the issue is whether the Minister has satisfied me that the Applicant has no reasonable prospects of success in establishing that the Department erred because his protection visa application was not invalid.

18. I note for the sake of completeness that, as pointed out in the written submissions for the Minister, there is nothing in the Applicant’s grounds of review that raises any contention of the nature considered by the Federal Court in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 or SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121. In any event, BVJ16 is binding on this court such that such an argument would not have any reasonable prospects of success. Moreover, the Full Court of the Federal Court has taken the same approach.

19. The issue of validity of an application is an objective question for the court.  There is nothing in the material before the court to support any contention that, even on an arguable basis, the third protection visa application was valid.  In the particular circumstances of this case, I am satisfied that the Minister has established that the Applicant has no reasonable prospect of successfully prosecuting this proceeding and that it should be summarily dismissed.

20. The Applicant has been unsuccessful.  The Minister seeks costs in the applicable scale amount at the time the substantive application was filed.  The Applicant raised the fact that he had no work permit or permission to work.  I take this as being intended to raise his lack of funds.  That may be a matter to be taken into account by the Minister in determining when and how to seek to recover costs.  I am not satisfied in the circumstances of this case that it is a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the respondent.  Nor am I satisfied that it is such as to warrant a reduction in the amount sought, which I consider reasonable and appropriate in light of the nature of this and other similar matters.

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

Date:     11 July 2019