ENQ17 v Minister for Immigration

[2017] FCCA 3327

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENQ17 v MINISTER FOR IMMIGRATION [2017] FCCA 3327

Catchwords:
MIGRATION – Application for review of decision of a departmental officer – the application for protection was deemed invalid – the applicant had previously applied for protection before the complementary protection criterion was introduced – the Act was amended following SZGIZ – application was invalid – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 411, 412, 476, 477

Migration Reform Act 1992 (Cth), s.39
Migration Legislation Amendment Act 1994 (Cth)

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366

Applicant: ENQ17

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3127 of 2017

Judgment of: Judge Nicholls

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore Lawyers

ORDERS

1. The application made on 6 October 2017 is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $4,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3127 of 2017

ENQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 6 October 2017, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of an officer of the Minister’s department on 19 September 2017, that an application made by the applicant for a protection visa on 19 September 2017, was an invalid application.

2. The evidence before the Court is the applicant’s affidavit of 5 October 2017, and two affidavits by Andrew Keevers, solicitor, one made on 27 November 2017 and filed on 27 November 2017, and the other on 1 December 2017 which was filed on 4 December 2017. There were no objections to any of the affidavit evidence.

3. The relevant background is as follows.  The applicant is a citizen of Fiji.  He arrived in Australia on 14 August 1988.  He applied to remain permanently in Australia on 10 September 1990.  That application was for a Protection (Permanent) Entry Permit.

4. There appeared to have been some difficulties, and delays, in resolving this application. In any event, the applicant was ultimately notified of the decision in relation to that application many years later on 27 March 2008. The decision was that the application was unsuccessful. 

5. I am satisfied on the evidence that at that time, reasonable steps were taken to notify the applicant of his relevant review rights. I also note that in relation to that decision, the Minister’s delegate found that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention. 

6. It is clear that the applicant knew that he had been notified of that decision because he applied for review of that decision to the then Refugee Review Tribunal on 22 April 2008. That Tribunal decision is in evidence before the Court (see annexure “AK2” to the affidavit of Andrew Keevers made on 1 December 2017). From that decision, it is clear that the Tribunal found, given s.411(1)(c) of the Act, that the applicant had made a valid application for review pursuant to s.412 of the Act.

7. I note s.411(1)(c) of the Act at the relevant time was as follows:

   “Section 411

   Decisions reviewable by Refugee Review Tribunal

(1)  Subject to subsection (2), the following decisions are RRT-reviewable decisions:

…

(c) a decision to refuse to grant a protection visa…”

1. I note s.36(1) and (2) of the Act at the relevant time were in the following terms:

   “Section 36

   Protection visas

(1)  There is a class of visas to be known as protection visas.

(2)  A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa.”

1. In all, the applicant applied for protection in Australia in 1990. The visa, now known as a protection visa, was not introduced into the Act until 1 September 1994 by virtue of the Migration Reform Act 1992 (Cth) (No 184 of 1992) (“Migration Reform Act”) (as amended by Schedule 2 of the Migration Legislation Amendment Act 1994 (Cth) (No 60 of 1994)). That amendment replaced the previous visa and entry permit regime in relation to persons who sought protection in Australia. When a decision was made on the applicant’s application in 2008, the criterion for the visa was whether the Minister was satisfied that the applicant met the definition of “Refugee” as set out in s.36 of the Act (as it was at the relevant time).

2. The Tribunal found that the applicant had applied for protection by applying for the entry permit. The Tribunal found that, for a variety of reasons, that application was not determined until March 2008. The Tribunal also found that, pursuant to s.39 of the Migration Reform Act which relevantly amended the Act as mentioned above, the applicant’s application for a protection permit, which was made in 1990, was determined in accordance with the law dealing with protection visas. That is as that law stood in 2008.

3. In short, the Tribunal proceeded on the basis that the appropriate way to proceed was by virtue of operation of the amending provisions, to treat the application for the entry permit for protection as an application for a protection visa as that visa existed as at the relevant time before the Tribunal. 

4. The Tribunal had regard to s.36(2) of the Act as it then was, and noted the criterion for a protection visa was whether Australia had protection obligations to the applicant, pursuant to the Refugees Convention. I note again from the evidence before the Court that the applicant attended a hearing before the Tribunal (see [23] of the Tribunal’s decision at annexure “AK2” to the affidavit of Andrew Keevers made on 1 December 2017). The Tribunal found it was not satisfied that the applicant would suffer harm in Fiji for the reasons he had identified. The Tribunal gave reasons for this conclusion and it affirmed the decision not to grant the applicant protection by way of a protection visa.

5. At the hearing today, the applicant appeared in person and was able to participate in, and conduct his case at the hearing with a demonstrably very good level of English. The applicant submitted that he had been involved in applying for, and pursuing, a spouse visa application, and that, he suffered from a medical condition. The applicant also submitted that he had been held in immigration detention now for some length of time. 

6. It is of note that the applicant, who, as mentioned above, is in detention, was not presented to the Court until well over 15 minutes after the scheduled time. I have asked the Minister’s solicitor who appeared today to seek an explanation as to the delay in bringing the applicant to the Court. As correctly reminded by the applicant today, on a previous occasion when he appeared before the Court, he was brought to Court some time after the scheduled starting time.

7. As a general observation, this is not the first applicant before the Court who was in immigration detention, where the Minister’s relevant agents, or officers, seem to be unable to bring people to Court at the scheduled time.  I have asked the Minister’s solicitor to obtain some explanation as to why this occurred again in relation to this applicant.

8. In any event, the issue now before the Court arises from the ground that the applicant has sought to put before the Court. The ground states: 

   “I am still in Villawood Immigration Detention Centre and am seriously ill and need medical treatment.  When I applied for medical treatment visa I was told that I am not allowed to apply but I could lodge refugee application.  I did apply for refugee application now and my application was taken as invalid.  I do believe that I have changes of circumstances as per medical letter submitted and the current health assessment and I ask the honourable Court to allow me to go ahead with this refugee application because I was never considered under complimentary protection before.” 

   [Errors in the original.]

9. The issue raised by the application now is whether the determination made by the departmental officer, identified only as “Ed”, is affected by some legal error.  The reasons for that determination are said to be as follows (as set out in a letter to the applicant from “Ed” annexed to the applicant’s affidavit of 5 October 2017).

   “A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 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.”

10. In short, it appears, although not expressly stated, that the departmental officer was of the view that the applicant had applied for, and previously been refused, a protection visa. The operation of s.48A of the Act, as it was on 19 September 2017, meant that a person such as the applicant who remained in Australia, that is, in the migration zone, since the refusal of that protection visa application which was ultimately determined in 2008, is prevented from making a subsequent protection visa application while they remain in Australia.

11. Although the departmental officer (“Ed”) had not made reference to any relevant provision, s.48A(1C) of the Act is relevant to the current consideration, which is in the following terms:

    “Section 48A

    No further applications for protection visa after refusal or cancellation

    …

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

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

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

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

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

    [This became operational on 28 May 2014.]

12. Some background to the relevant statutory context is required. Section 36(2) of the Act (as set out above at [8]) was amended. That amendment became operational on 24 March 2012. Relevantly, at that time, an additional criterion for the grant of a protection visa, was added to the existing criterion, being the Refugees Convention criterion.

13. That additional criterion, as expressed in s.36(2)(aa) of the Act, can be described in a short way as the complementary protection criterion. It sought to provide for the purposes of the Act a statutory basis for certain of Australia’s international treaty obligations to which Australia was a signatory.

14. On 3 July 2013, the Full Federal Court handed down judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). Relevantly, the Full Court held that a person who had applied for, and been refused a protection visa, prior to 24 March 2012, was entitled to apply for a protection visa a second time, notwithstanding the provision of s.48A of the Act which, on its face, prevented the lodging of a second application for a protection visa. I respectfully understand the Full Court’s reasoning to be that an applicant, in those circumstances, was permitted to make a second application on the basis of the complementary protection criterion, even though they had previously applied for a protection visa under the Refugees Convention criterion (see also Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366).

15. I should note that had the applicant made his application prior to a subsequent amendment to the Act, he would have, on the authority of SZGIZ, been able to have had his circumstances considered for a second time under the complementary protection criterion. However, as set out above, by 6 October 2017 when the applicant lodged the application which is the subject of the current consideration, the Act had been amended.

16. In the current case, I find as follows.

    1.The applicant applied for protection in 1990. This is not in dispute.

    2.Given the operation of certain amendments to the Act since that time, and as at July 2008, the applicant was taken to have applied for a protection visa on the basis of the Refugees Convention.

    3.On 11 July 2008, the Tribunal affirmed the decision not to grant the applicant, in effect, a protection visa.

    4.There is no application before the Court now to review the Tribunal’s decision. Nor, given the length of time that has passed, to extend time for that purpose. The Tribunal’s decision was made on 11 July 2008. While s.477(1) of the Act, was enacted after that date, nonetheless, for current purposes, it requires that any application to review the Tribunal’s decision pursuant to s.476 of the Act must be made within 35 days of the date of that decision.

    5.The Tribunal’s decision was an affirmation of the decision to refuse the applicant a protection visa.

    6.On 19 September 2017, the applicant sought to make a second application for a protection visa, presumably on the basis of the complementary protection criterion. This post-dates the amendment to the Act which became operational on 28 May 2014.

17. Therefore, as I sought to explain to the applicant today, the current law and the current state of the law since 28 May 2014, has been that the applicant cannot apply for a second time for a protection visa. Section 48A of the Act is clear when seen in the relevant statutory context. There is no legal error in the departmental officer’s determination that the application for the protection visa, that was made on 19 September 2017 was not a valid application. The applicant’s submissions today, are, with respect to the applicant, not relevant to the issue to be determined by the Court today.

18. Even if the applicant’s circumstances had changed since 2008, there was no discretion vested in the departmental officer, the Minister or, for that matter, the Court, to accept, or to make valid, the application made in 2017 on the basis of any change in circumstances. 

19. Nor is there any such discretion on the basis of any medical condition the applicant may have. Nor indeed, on the basis of any other outstanding visa applications that the applicant may have made. I refer here to his submission concerning a spouse visa matter.  As I explained to the applicant, there is no discretion vested in the departmental officer by law, or the Minister, to set aside or to take into account these other factors and to set aside what is, in effect, the operation of the law.

20. In short, therefore, there was no obligation on the departmental officer, and there was no capacity vested in the departmental officer, to take into account the applicant’s changes in circumstances, and the other matters to which I have just referred. 

21. There is no legal error that can be discerned in the departmental officer’s determination.  Absent legal error, there is no basis on which this Court can grant the relief that the applicant seeks.  It is appropriate in the circumstances that the application to the Court be dismissed. I will make that order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  17 January 2018