FNY18 v Minister for Home Affairs
[2019] FCA 1254
•9 August 2019
FEDERAL COURT OF AUSTRALIA
FNY18 v Minister for Home Affairs [2019] FCA 1254
Appeal from: Application for an extension of time and leave to appeal: FNY18 v Minister for Home Affairs [2019] FCCA 809 File number: NSD 402 of 2019 Judge: ALLSOP CJ Date of judgment: 9 August 2019 Catchwords: MIGRATION – application for extension of time and leave to appeal – where previous protection visa application by applicant refused – where second application for protection visa treated as invalid pursuant to s 48A of the Migration Act 1958 (Cth) – no error by primary judge identified – application dismissed with costs Legislation: Migration Act 1958 (Cth), s 48A
Federal Circuit Court Rules 2001 (Cth), r 13.10
Date of hearing: 9 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondent: Ms C Saunders of DLA Piper ORDERS
NSD 402 of 2019 BETWEEN: FNY18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
9 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an application for an extension of time and leave to appeal against orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of an officer of the Department made in October 2018 which treated as invalid an application for a protection visa which the applicant had lodged in October. I will refer to this as the present visa application.
The letter of the Department to the applicant stated that, pursuant to s 48A of the Migration Act 1958 (Cth) (the Act), a person who has not left Australia following the refusal or cancellation of a protection visa is prevented from making a subsequent protection visa application while that person remains in Australia.
The learned primary judge accepted that proposition and dismissed the application on a show cause basis under r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth). Thus leave to appeal was required, such leave having to be applied for within 14 days. The applicant was four days out of time and therefore requires an extension of time.
The respondent Minister opposes the application on the ground that there would be no merit in any substantive appeal.
It is necessary to set out briefly the procedural history of the applicant’s matters. He is a citizen of the People’s Republic of China and has been in Australia since 2009. In December 2010, he applied for a Protection visa. In March 2011, a ministerial delegate refused that application. In June 2011, the Refugee Review Tribunal affirmed the delegate’s decision. And as late apparently as September 2018, the judicial review from that decision was dismissed by a Federal Circuit Court judge. Shortly thereafter, the second application was made.
There has been no engagement of s 48B of the Act.
The Federal Circuit Court proceedings
In the learned primary judge’s reasons, the applicant raised a number of matters, in particular, he referred to the mistaken publication of personal information and being a Falun Gong practitioner, he will be persecuted if forced to return to China. And he seeks his visa application not to be treated as invalid.
The primary judge, at [8] of his reasons, said that none of those matters were of any relevance other than the question of the invalidity of the second application. The primary judge concluded at [9] of his reasons that on the evidence before him, that there was no doubt that the present visa application was invalid as being a second application after the disposal of the first. He thus concluded that there was no doubt that the applicant would be unsuccessful for that reason if the matter proceeded to a full hearing and were to be finally disposed of in such a hearing.
The application for an extension of time and leave to appeal raised the three following grounds:
1.I am a Chinese citizen and Falungong practitioner who will be facing persecution by Chinese government due to my believes
2.I cannot go back to China since I am very scared to be sentenced and discriminated.
3.Department of Home Affair and the Federal court did not well consider of my fears and persecution if return to my home country.
My appeal application for Federal Circuit Court has been dismissed and I disagree with its decision since I did explained to the court and I believe it was not well considered
The draft notice of appeal annexed to the applicant’s affidavit dated 14 March 2019, which I will take as read, contains two grounds of appeal, a request that the court fee be waived, which is irrelevant for present purposes, and three further paragraphs underneath the heading “Orders sought”, as follows:
I AM A CHINSE CITIZEN AND APPLIED FOR SUBCLASS 866. DUE TO DIBP’S MISTAKE AND THEY EXPOSED MY PERSONAL INFORMATION TO THE PUBLIC AND THEY TREATED AS APPLICATION AS INVALID.
FEDERAL COURT FAILED TO CONSIDER MY EXPLAINATION AND SUPPORTING DOCUMENTS TO SUPPORT MY APPEAL WHICH I BELIEVE IT IS A LEGAL ERROR
DUE TO MY FINANCIAL HARDSHIP, I COULD NOT AFFORD TO PAY FOR THE COURT APPLICATION FEE, I APPRECIATE IF I COULD NOT WAIVED FOR THIS FEE.
Orders sought
1.I WISH THE COURT CAN RE-CONSIDER MY SUBCALSS 866 APPLICATION AND ACCEPT MY APPEAL
2.THERE IS A LEGAL ERROR FROM DIBP AND FEDERAL COURT FOR NOT CONSIDERING THE FACT THAT I WILL BE IN DANGER IF I AM FORCED TO LEAVE AUSTRALIA, EXPECIALLY UNDER MY PERSONAL INFORMATION FOR PV APPLICATION HAS BEEN EXPOSED TO THE PUBLIC BY DIBP.
3.I WISH THE COURT COULD GIVE ME A SPECIAL CONSIDERATION DUE TO MY FINANCIAL HARDSHIP FOR DELAYING FOR THIS APPEAL
The applicant has not filed any written submissions in support of the application. He appeared at his application and did not wish to put any matter orally to me.
The Minister submits that the explanation for the delay in the affidavit refers to circumstances which are common to many applicants and which are inadequate. I propose to deal with the question of an extension of time not on the question of delay, which was short, but on the question of whether there is any ground to consider that the primary judge committed error.
The grounds put forward by the applicant in the application for an extension of time and leave to appeal set out substantive reasons that seek to justify the applicant’s underlying claims for protection. However, the merits of any such claims are not the directly subject of these proceedings no matter how valid they may be in truth if examined.
The question to be considered is whether there is any error that has been exposed in how the primary judge approached the assessment of the Department’s decision. If there were any release of applicant’s personal information, that does not bear on that legal question. The claim that the Federal Circuit Court failed to consider the applicant’s explanation and supporting documents is not substantiated by any further evidence.
The material before the primary judge indicated with some clarity that this was a second application that fell within the terms of s 48A. As with the learned Circuit Court judge, I see no other conclusion that is available other than the consequences provided for by s 48A which are as follows:
(1)…[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…
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.
On a clear reading of the statute, and looking at the facts that were before the primary judge, there was no valid application before the Department. Thus I see no error in the approach of the learned primary judge in disposing of the matter on a show cause basis. For that reason, I would refuse the application for an extension of time.
The orders of the Court are that the application for an extension of time be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 9 August 2019
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