GID18 v Minister for Home Affairs

[2019] FCCA 362

FEDERAL CIRCUIT COURT OF AUSTRALIA

GID18 v MINISTER FOR HOME AFFAIRS [2019] FCCA 362

Catchwords:
MIGRATION – PRACTICE & PPROCEDURE – 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:

Federal Circuit Court Rules 2001 (Cth), r.13.10(2)

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

Migration Regulations 1994 (Cth), ss.866.21(3), 866.22(3)

Cases cited:

Minister for Immigration and Border Protection v Kim [2014] FCAFC 47

SZSSJ v Minister for Immigration [2016] HCA 29

Applicant: GID18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 3385 of 2018

Judgment of: Judge Manousaridis

Hearing date: 5 February 2019

Date of Last Submission: 5 February 2019

Delivered at: Sydney

Delivered on: 5 February 2019

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms K Morris

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed on 7 December 2018 is dismissed.

2. The applicant pay the respondent’s costs of the proceeding set in the amount of $3,737. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3385 of 2018

GID18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore, 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) (FCC Rules) for an order that the application be dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding commenced by the application.

2. The application is brought by the respondent (Minister) and is made in relation to the application filed on 3 December 2012. By that application the applicant seeks judicial review of a decision made by an officer of the Department of Home Affairs (Department) rejecting the lodgement by the applicant on 28 November 2018 of an application for a protection visa. The Departmental officer rejected the application by letter dated 3 December 2018.

3. In that letter the officer stated that the application was not a valid application for a protection visa because a decision had previously been made to refuse the applicant a protection visa, and in those circumstances c of the Migration Act 1958 (Cth) (Act) prevents the applicant from making a further application for a protection visa unless, acting under ss.48B of the Act, the Minister determines that s.48A does not apply. The Departmental officer further stated in the letter that the Minister is under no obligation to consider exercising the power conferred by s.48B.

4. 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:[1]

   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.

   [1] [2014] FCAFC 47, [27]

5. The question, therefore, that arises on the Minister’s application is whether the applicant has 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 applicant lodged on 28 November 2018 on the ground that ss48A of the Act prevented the applicant from making such application. I will begin with the relevant facts as disclosed by the evidence on which the Minster relies.

6. The applicant is a national of the People’s Republic of China. He last entered Australia on 12 January 2010. On 30 August 2012 the applicant applied for a protection visa. He did so as a member of the family unit of his wife, as he was entitled to do under clause 866.21(3) and clause 866.22(3) of Schedule 2 to the Migration Regulations 1994 (Cth) as they applied at the time the applicant and his wife applied for a protection visa.

7. On 21 December 2012 a delegate of the Minister refused to grant the applicant a protection visa, and on 17 December 2013 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant and his wife applied to this Court for judicial review of the decision of the RRT, and as a consequence of a judgment delivered on 27 August 2014 this Court dismissed that application.[2]

   [2] SZTTU v Minister for Immigration and Border Protection [2014] FCCA 1953

8. On 28 November 2018, as I have already noted, the Department received a form of application for a protection visa by the applicant.  In that application the applicant stated he had previously made an application for a protection visa in Australia, and that the last day on which he arrived in Australia was 12 January 2010. The applicant also completed item 67 of his application such as to represent that he had not travelled to any country in the last 30 years. That indicates the applicant had not left Australia since he last entered Australia on 12 January 2010. That the applicant has not done so was confirmed by a screenshot of the Department’s internal database system that is in evidence before me. As I have already noted, by letter 3 December 2018 the Department officer informed the applicant that his application for a protection visa was not a valid application. 

9. I then turn to describe very briefly the course of proceedings before me on this application. The applicant is not legally represented, although he has appeared with the assistance of an interpreter. I explained to the applicant the nature of the application that was before me, and that the question I have to determine is whether there are no reasonable prospects of the applicant succeeding on the claims he makes in the application which he filed. 

10. After the Minister made his submissions I invited the applicant to make submissions. The only submission the applicant initially made was a request that I consider his case from a humanitarian perspective. I explained to the applicant that my role as a judge of this Court was to consider the legal question of whether s.48A of the Act applied to his circumstances, and that I had no power to find that the Act ought not apply to the applicant if it otherwise does apply. I also took the applicant to the three grounds set out in the application. He said he did not wish to say anything in relation to those grounds, but I did ask him a question about the second ground. I will turn to those grounds and what the applicant said in relation to the second ground in a moment. What I propose in the meantime to do is to consider the question whether s.48A applies to the circumstances of this case.

11. The starting point, of course, is the text of s.48A(1) 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.

12. 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.

13. The application of s.48A(1) requires the presence of three things. One is that the person making the application for a protection visa had previously made an application for a protection visa. Second, 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.

14. Third, the grant of a protection visa sought by the applicant has been refused whether or not such application has been finally determined. 

15. On the evidence before me, each of these matters is present. The applicant made an application for a protection visa, being the application he made on 30 August 2012. Second, the applicant was present in the migration zone at that time. As I have already noted, the evidence shows the applicant last arrived in Australia on 12 January 2010, and he has not left Australia since that time. Third, a delegate of the Minister refused to grant the applicant a protection visa in response to the application filed on 30 August 2012, and that application was on any view finally determined by 27 August 2017 when this Court dismissed the application for judicial review of the RRT’s decision affirming the delegate’s decision not to grant the applicant a protection visa.

16. I then turn to the grounds set out in the application which the applicant filed.  The first ground is:

    Being a Falun Gong practitioner, I will be persecuted if I am forced to return to China. 

17. That claim whether true or not is irrelevant to whether s.48A of the Act applies.

18. The second ground is:

    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]

    [3] Ground 2, in fact states: “Department of Home Affairs made mistake to release my personal information which is totally not acceptable.” What I read out when delivering judgment is paragraph 2 of what the applicant had included in the section of the application under the heading “Final orders sought by applicant/s”.

19. In relation to this ground I asked the applicant what personal information he says was released by the Department. The applicant initially said his name and address. When I asked him what the basis of that belief was the applicant said that the Department had released the names and addresses of persons whose applications for protection visa had been refused. When I asked the applicant the basis of that belief, the applicant said that it had had happened to somebody that he knew. The applicant confirmed to me that he did not know whether his name and address had, in fact, been released. On that basis, there is nothing to suggest that the applicant’s name and address had been released by the Department.

20. It might be that ground 2 is directed to what I think quite notoriously for those working in the area of migration law refer to the as the data breach, being the release of information considered by the High Court SZSSJ v Minister for Immigration.[4] On material before me, however, it is clear that the applicant has never been in detention and, certainly, was not in detention during the period covered by the data breach. In any event, whether factually ground 2 is correct or not does not matter because whether it is or not accurate is not relevant to whether s.48A applies. Therefore ground really 2 cannot be made out and is not arguable.

    [4] [2016] HCA 29

21. The third ground stated in the application is:

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

22. This ground does not articulate any grounds on which it is said the application for a protection visa lodged on 28 November 2018 is not an invalid application. In particular, the ground does not refer to s.48A of the Act and does not attempt to set out any grounds on the basis of which it could reasonably be said that s.48A does not apply to the application for protection visa that was lodged by the applicant on 28 November 2018.

23. For all these reasons I am satisfied that the applicant has no reasonable prospect of successfully prosecuting this proceeding, and that it should be dismissed.  I propose to make such order in a moment.

24. After I indicated that I would be dismissing the application pursuant to the applicant made by the Minister, I invited submissions as to costs. The Minister submitted that costs should follow the event, and that I should fixed those costs provided for by the rules, that amount being $3,737. The applicant made no submission against my making an order for costs, or against my assessing costs for that amount. 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 provided for by the FCC Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 February 2019