FNY18 v Minister for Home Affairs

[2019] FCCA 809

FEDERAL CIRCUIT COURT OF AUSTRALIA

FNY18 v MINISTER FOR HOME AFFAIRS [2019] FCCA 809

Catchwords:
MIGRATION – Visa – invalid application – no matter of principle.

Legislation:

Migration Act 1958, ss.48A, 48B

Federal Circuit Court Rules 2001, r.13.10

Cases cited:

Przybylowski v Australian Human Rights Commission (No.2) [2018] FCA 473

Applicant: FNY18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 2954 of 2018

Judgment of: Judge Cameron

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Sydney

Delivered on: 25 February 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms C. Saunders of DLA Piper

ORDERS

1. Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $2,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2954 of 2018

FNY18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. On 18 October 2018 the applicant filed an application seeking review of a decision by the Department of Home Affairs (“Department”) to treat as invalid an application for a protection visa which he had filed on 4 October 2018. In his supporting affidavit the applicant annexed a letter from the Department dated 5 October 2018 advising him that his protection visa application filed the previous day was invalid under s.48A of the Migration Act 1958 (“Act”). 

2. The respondent to the present application is identified as the Minister for Home Affairs (“Minister”). On 17 January 2019 the Minister filed an application in a case seeking summary dismissal of the proceeding on the basis that it had no reasonable prospects of success. He relied in that regard on r.13.10(a) of the Federal Circuit Court Rules 2001 (“Rules”).

3. Various authorities have elucidated the meaning of “no reasonable prospect” where that expression appears in the Rules and in the rules of the Federal Court of Australia. With respect, a useful summary is provided by Perry J in Przybylowskiv Australian Human Rights Commission (No.2) [2018] FCA 473 at [6] and [7].

4. The history of the applicant’s pursuit of a protection visa in Australia is set out in the affidavit of Charlotte Elizabeth Saunders affirmed 17 January 2019, filed in support of the Minister’s application in a case.  The chronology revealed in Ms Saunders’s affidavit, which I accept, is as follows:

   a)on 30 December 2010 the applicant applied for a protection visa;

   b)on 2 March 2011 a ministerial delegate refused to grant the application a protection visa;

   c)on 10 June 2011 the Refugee Review Tribunal (“RRT”) affirmed the delegate’s decision to refuse the applicant a protection visa;

   d)the applicant was unsuccessful in a subsequent judicial review application, his proceeding for review of the RRT decision being dismissed by Judge Street on 19 September 2018;

   e)on 4 October 2018 the applicant lodged a second protection visa application, the one the subject of the present proceeding;  and

   f)on 5 October 2018 the delegate found that the second protection visa application was invalid for having been made contrary to s.48A of the Act.

5. Section 48A of the Act relevantly provides

   48A  No further applications for protection visa after refusal or cancellation

   (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 …; or

   (b)  …

   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.

   …

   (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.

   …

   (2)  In this section:

   application for a protection visa means:

   (aa)  an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; …

6. It might be noted that it has not been suggested that s.48B of the Act has any work to do in this case. It should further be noted that the applicant confirmed to the Court that he had not left Australia since 2009.

7. The applicant raised the following matters in his application commencing this proceeding:

   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 visa application and allow me to stay in Australia for protection.

   …

   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.

8. However, none of those matters, with the possible exceptions of the first and last paragraphs, have any substantive relevance to the matter before the Court, which is the asserted invalidity of the second protection visa application.

9. In circumstances where the applicant last arrived in Australia in 2009 and since then has made an unsuccessful protection visa application, there can be no real doubt that the second protection visa application was invalid. I note in this connection Ms Saunders’s reliance on s.48A(1C)(b) and observe its relevance to claims for protection pursuant to Australia’s complementary protection obligations.

10. In the circumstances, there can also really be no doubt that were the matter to proceed to a hearing, the applicant would be unsuccessful by reason that his second protection visa application was invalid. 

11. That being so, the Minister’s application for summary dismissal at this point must be granted.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:  

Date:  1 April 2019