Eea18 v Minister for Home Affairs

[2019] FCCA 713

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEA18 & ORS v MINISTER FOR HOME AFFAIRS [2019] FCCA 713

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Application to dismiss application for judicial review of decision not to accept lodgement of application for protection visa on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding commenced by the application – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 48A

Cases cited:

Minister for Immigration and Border Protection v Kim (2014) FCAFC 47

First Applicant: EEA18

Second Applicant: EEB18

Third Applicant: EEC18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 2237 of 2018

Judgment of: Judge Manousaridis

Hearing date: 12 March 2019

Date of Last Submission: 12 March 2019

Delivered at: Sydney

Delivered on: 12 March 2019

REPRESENTATION

First applicant in person, on behalf of the second applicant, as litigation guardian of the third applicant, assisted by an interpreter.

Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS

1. Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed on 10 August 2018 is dismissed.

2. The first and second applicants pay the respondent’s costs of the proceeding set in the amount of $3,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2237 of 2018

EEA18

First Applicant

EEB18

Second Applicant

EEC18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before the Court is an application in a case filed pursuant to r.13.10(2) of the Federal Circuit Court Rules 2001 (Cth) for an order that the applicants’ application filed on 10 August 2018 commencing the proceeding in this Court be dismissed on the basis that the applicants had no reasonable prospect of successfully prosecuting the proceeding.

2. The application in a case is brought by the respondent (Minister) and is made in relation to the application commencing this proceeding filed with the Court on 10 August 2018. By that application the applicants seek judicial review of a decision made by an officer of the Department of Home Affairs (Department), rejecting the lodgement by the applicants on 9 August 2018 of an application for a protection visa.

3. The Departmental officer rejected that application, by letter dated 9 August 2018. In that letter the Departmental officer stated that the application for protection had been assessed as invalid.  The officer stated that:[1] 

   A decision has previously been made to refuse to grant [the applicants] a protection visa or the applicants had a protection visa cancelled. 

   The officer further stated that:

   Under s.48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.

   [1] CB182

4. The letter also noted that the Minister has the power, under s.48B of the Migration Act 1958 (Cth) (Act), to allow a person to apply again for a protection visa, if the Minister decides it is in the public interest to do so.  The letter also noted, however, that the Minister is under no obligation to consider exercising the power.

5. Whether or not s.48A of the Act applies in any given circumstances is a matter of objective fact open to be conclusively determined by a Court exercising appropriate jurisdiction. That point was made by the Full Federal Court, in Minister for Immigration and Border Protection v Kim:[2]

   The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

   [2] (2014) FCAFC 47, [27]

6. The question that arises on the Minister’s application, therefore, is whether the applicants have no reasonable prospects of succeeding on a claim that the Departmental officer was incorrect in deciding to reject the application for a protection visa the applicants lodged on 9 August 2018 on the grounds that s.48A of the Act prevented the applicants from making such application. I will begin with the relevant facts as disclosed by the evidence on which the Minister relies.

7. The applicants are citizens of the People’s Republic of China.  The first and second applicants are married – or, at least, are a couple – and the third applicant is their child.  On 22 February 2012 the applicants lodged an application for a Protection (Class XA) Visa with the Department (which was then known as the Department of Immigration and Citizenship). A delegate of the Minister refused their application on 1 June 2012 and, on a review made by the applicants of that decision, the Refugee Review Tribunal confirmed the delegate’s decision on 15 October 2012. As I have already noted, on 9 August 2018 the applicants lodged with the Department an application for a protection visa and on the same day an officer of the Department sent the letter, to which I have already referred, stating that the application is not a valid application. According to the records of the Department that are in evidence before me, the first and second applicants have not departed Australia after the first application for a protection visa was refused.  There are no records of movements of the third applicant because the third applicant was born in Australia.

8. I then turn to describe very briefly the course of proceedings before me on this application.  Only the first of the three applicants appeared.  She was not legally represented but she was, of course, assisted by an interpreter.  The first applicant said she was authorised to speak on behalf of the second applicant and she is the litigation guardian of the third applicant.  I explained to the first applicant the nature of the application that was before me and that the question I have to determine was whether there are no reasonable prospects of the applicants succeeding on the claims they make in the application which they filed with this Court.

9. After the Minister made his submissions, I invited the first applicant to make submissions.  She made two broad submissions.  The first is that, because of the Department’s wrongdoing, she will face the risk of harm if she were to return to China.  The wrongdoing to which the first applicant referred is what she alleged to be the release by the Department of personal information.  I asked the first applicant what that personal information was, and she said it was information to the effect that the applicants had applied for a protection visa.  The first applicant told me that it was her friend who informed her of the release of this personal information, and that she had been so informed “last year”. 

10. When one looks at the form of application that was lodged with the Department on 9 August 2018 it will be seen – and here I’m referring to page 139 of the Court Book – that the information to which the first applicant probably intends to refer is what at that page of the Court Book has asserted to be the publication on 10 February 2014 by the Department of a detention report on its website, in error, containing personal information of persons who, as at 31 January 2014, were in immigration detention facilities or in the community, under residence determination, or alternative places of detention.  That, as is expressly stated at page 139, is a reference to the “data breach”, an expression that is well understood amongst the community of lawyers involved in the practice of migration law. The first applicant also claimed she would be persecuted if she returns to China because she is a Christian.

11. I asked the applicant whether she believed the Departmental officer was incorrect in stating in the letter dated 9 August 2018 that the application for a protection visa the applicants lodged on 9 August 2018 was not a valid application, given that the applicants had previously applied for a visa and that that application had been refused.  Understandably, given that the first applicant is not a lawyer, she was unable to give any reason.

12. In determining the Minister’s application now that I have considered the facts, one must start with the text of s.48A(1) of the Act, which is as follows:

    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.

13. It is also appropriate that I set out s.48B(1) of the Act:

    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

14. The application of s.48A requires the presence of a number of things. One is that the person making the application for a protection visa had previously made an application for a protection visa. The second, is that such application was made while the person was in the “migration zone”. That expression is defined in s.5(1) of the Act to mean as follows:

    “migration zone” means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

    a)land that is part of a State or Territory at mean low water; and

    b)sea within the limits of both a State or a Territory and a port; and

    c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;

    but does not include sea within the limits of a State or Territory but not in a port

15. Third, the grant of a protection visa sought by the applicants has been refused whether or not such application has been finally determined.  And, finally, the person who had applied for and had been refused an application for a protection visa had not, or has not, departed the migration zone. 

16. On the evidence before me each of these matters is present.  The applicants made an application for a protection visa on 22 February 2012 and the application was refused.  Secondly, the applicants were present in the migration zone at that time.  Third, a delegate of the Minister refused to grant the application, which decision was affirmed.  And, fourth, the applicants have not departed Australia after the first application for a protection visa had been refused.

17. I turn to the grounds set out in the application which the applicants filed.  These are set out on page 3 of the application under the heading “Grounds of Application”. 

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

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

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

18. These should be read with the three paragraphs that appear above the heading “Grounds of Application” and these are as follows (errors in original):

    1.Department of Home Affairs treated my application as invalid application which is not fair to me.

    2.Department of Home Affairs has mistakenly published my personal information and many other people in the public which made me feeling strong fears of return to my home town. I will definitely be persecuted by Chinese government if I return.

    3.Department of Home Affairs should accept my protection application and protect me to stay in Australia permanently since it is their big mistake and they should be responsible for it.

19. Ground 1 of the grounds of application does not address the Departmental officer’s decision or assertion that the second application is not a valid application.  Ground 1, therefore, does not give rise to any arguable case that the Departmental officer was incorrect in so stating, or that the second application for a protection visa was a valid application.

20. Ground 2 of the grounds of review, which should be read with paragraph 2 appearing above the heading “Grounds of Application” also does not address the question whether the second application is a valid application for protection visa.  For that reason, it raises no arguable case that the Departmental officer was incorrect in stating the second application for a protection visa was not a valid application. Further, there is no evidentiary foundation or any particularisation to support the claim that information personal to the applicants had been released.  In any event, even if there were such evidence or particularisation, and that such evidence or particularisation could give rise to a claim for protection, that would not be a matter in respect of which this Court would have jurisdiction to determine.

21. Ground 3, which should be read with paragraph 3 appearing above the heading “Grounds of Application”, does nothing more than assert that the Departmental officer’s statement that the application was an invalid application was incorrect.  The ground does not identify or articulate any reasons why it is said the Departmental officer was incorrect in stating that the application lodged on 9 August 2018 is not a valid application.  And, as I have already noted, the first applicant was unable to tell me from the bar table why she believed that statement was incorrect. 

22. Ground 3 also asserts that the decision to treat the application for a protection visa to be an invalid application is unfair.  Whether or not that decision might be unfair is not relevant to the question I am required to determine, that question being whether there is no arguable case that the Departmental officer was incorrect in stating that the lodgement of the application for a protection visa on 9 August 2018 is not a valid application. As I have already noted, it is clear on the evidence that is before me that the application the applicants lodged on 9 August 2018 is not a valid application.

23. In these circumstances, therefore, I am satisfied that the applicants have no reasonable prospect of successfully prosecuting this proceeding and that it should, therefore, be dismissed.  I propose to make such an order, in a moment.

24. After I indicated that I would be dismissing the application pursuant to the application in a case filed by the Minister, I invited submissions as to costs.  The Minister applied for an order that the first and second respondents pay the Minister’s costs, set in the amount of $3,300. 

25. After I explained to the first applicant that the Minister was applying for an order for costs set in that amount and that the usual consequence of a party who fails in litigation is to pay the successful party’s costs, I asked the first applicant whether she had any submissions to make against my making an order for costs sought by the Minister.  The first applicant said she had nothing to say in relation to costs. 

26. In my opinion there is no reason why the ordinary rule as to costs should not apply, that is to say, costs should follow the event, and there is no reason in my opinion why those costs should not be assessed in the amount of $3,300, being an amount that is within the amount provided for by the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 March 2019