Ett18 v Minister for Home Affairs

[2019] FCCA 252

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETT18 v MINISTER FOR HOME AFFAIRS [2019] FCCA 252

Catchwords:
MIGRATION – Invalid application for a Protection (subclass 866) visa – whether the delegate complied with its statutory obligations – invitation to this Court to engage in merits review – no arguable grounds for relief – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12

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

Applicant: ETT18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 2597 of 2018

Judgment of: Judge Street

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Sydney

Delivered on: 6 February 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms A Zinn
Mills Oakley

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 6 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2597 of 2018

ETT18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ in respect of a decision of the delegate made on 6 September 2018, holding that the application for a Protection (subclass 866) visa that had been lodged was invalid because the applicant had already previously made a valid application for a Protection (Class XA) visa and the applicant had not left Australia since arriving in Australia on 4 March 2010.

2. The applicant originally arrived in Australia on 9 May 2009, on a Student (TU-570) visa. The applicant departed Australia on 4 February 2010 and then returned to Australia on 4 March 2010. The applicant’s Student visa was cancelled on 28 May 2010.

3. The applicant applied for a Protection (Class XA) visa on 1 July 2013. On 11 December 2013, the delegate found the applicant failed to meet the criteria for the grant of the visa. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review on 7 January 2014. On 23 June 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.

4. On 18 July 2014, the applicant applied to the Federal Circuit Court of Australia for review of the decision of the Tribunal and on 2 November 2015, that application was dismissed with costs. The applicant then applied to the Federal Court of Australia for an extension of time for leave to appeal, which was dismissed on 21 August 2018.

5. On 4 September 2018, the applicant has attempted to lodge a second protection visa application, which claimed to fear harm on the basis of the data breach. On 6 September 2018, the delegate wrote to the applicant explaining that the application for a protection visa was invalid because a decision had previously made to refuse to grant the applicant a protection visa and the applicant had not left Australia since the protection visa was refused.

6. On 6 September 2018, the applicant made a request under s 48B of the Migration Act 1958 (Cth) to determine that s 48A of the Act did not apply. On 18 December 2018, a decision was made that the request did not meet the guidelines and the request was finalised without referral to the Minister.

Before this Court

1. These proceedings were commenced on 14 September 2018. On 11 October 2018, a Registrar of the Court made orders fixing the matter for a show cause hearing today, under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

2. At the commencement of the hearing the Court explained to the applicant the nature of a show cause hearing and the applicant conformed that he understood the explanation as given by the Court.

3. The grounds in the application are as follows:

   1. This is my 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 protection application and allow me to stay in Australia for protection.

   Grounds of application

   1. Being a Falungong practitioner, 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.

Paragraphs 1 to 3

1. In relation to paragraph 1 of the grounds of application, the applicant asserts that the second application being treated as invalid was not fair to him. This does not identify any relevant error of the delegate and does not identify any basis upon which the delegate’s decision could be said to be made in excess of jurisdiction. The finding by the delegate of invalidity of the application was correct given the previous application. No arguable jurisdictional error is made out by paragraph 1.

2. In relation to paragraph 2, the applicant refers to a data breach disclosure. The data breach disclosure does not engage any relevant basis upon which it could be said that the delegate’s decision that the application was invalid was wrong. No arguable jurisdictional error is made out by paragraph 2.

3. In relation to paragraph 3, the applicant’s assertion that his application should be accepted is, in substance, an invitation to this Court to engage in merits review and does not identify any relevant error. No arguable jurisdictional error is made out by paragraph 3.

Grounds 1 to 3

1. Ground 1 asserts that the applicant will be persecuted if returned to China. That paragraph does not identify any relevant error by the delegate in holding that the application was invalid. No arguable jurisdictional error is made out by ground 1.

2. Ground 2 asserts that there was a mistake in relation to a release of personal information, which is a further reference to the data breach and this again does not give rise to there being identified any arguable case of relevant error by the delegate. No arguable jurisdictional error is made out by ground 2.

3. Ground 3 again reflects a disagreement with the finding of invalidity which was correct and does not identify any arguable case of jurisdictional error.

4. On the face of the application no arguable case of jurisdictional error is disclosed. No submissions were put by the applicant from the bar table in support of the application.

Conclusion

1. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules2001.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019