SZANA v MIMIA

Case [2004] FCA 203

FEDERAL COURT OF AUSTRALIA

SZANA v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 203

Migration Act1958 (Cth) s 46(1)(d), 47(1), 47(3), 48A, 49B, 414(1), 415, 415(2)(d)

Applicant SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1407 applied
NAQQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 607 cited
SZANA v Minister for Immigration & Multicultural Affairs [2003] FMCA 460 cited
SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 60 applied
SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 350 discussed

SZANA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 18 OF 2004

HELY J
12 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 18 OF 2004

BETWEEN:

SZANA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

12 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 18 OF 2004

BETWEEN:

SZANA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE:

12 MARCH 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant is a national of Turkey of Kurdish ethnicity.  He arrived in Australia on 20 October 1987, travelling on a Turkish passport.  On arrival in Australia he was issued with a temporary entry permit allowing a ten day stay.  I do not know whether the applicant was subsequently given further permission to remain in Australia.  However, he has remained in Australia ever since – a period of about 17 years.

  2. In June 1997 the applicant was detained by Department of Immigration & Multicultural Affairs (‘DIMA’) officers.  On 1 July 1997 he lodged a protection visa application.  The form of application required the applicant to state his reasons for claiming to be a refugee and his fears as to what might happen to him if returned to his country of nationality.  Those sections of the form were endorsed: ‘please see attached’, but there was no relevant attachment.

  3. On 10 July 1997 the Minister’s delegate refused the application on the grounds that no claims had been advanced which would enable a finding to be made that the applicant was a refugee.  The delegate noted that it would ‘be naïve not to have doubts about the applicant’ as he has been in Australia for almost ten years, and did not claim to be a refugee until he came to DIMA’s attention in association with ‘compliance activities’.  On 10 July 1997 DIMA received a document from the applicant in Turkish containing his claims for protection under the Convention.

  4. On 11 August 1997 the applicant sought review of the delegate’s decision.  The Refugee Review Tribunal (‘the RRT’) invited the applicant to attend a hearing on 20 October 1998, and…

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Details
AGLC
SZANA v MIMIA [2004] FCA 203
Case
[2004] FCA 203
Decision Date

CaseChat Overview and Summary

In the matter of SZANA v MIMIA, the court was called to determine whether the Minister's delegate and the Refugee Review Tribunal (RRT) acted beyond their jurisdiction by considering a further protection visa application. The applicant argued that the original protection visa application had been validly refused and that the subsequent application was valid. The court needed to determine whether the RRT's decision in affirming the Minister's delegate's decision was lawful and if the original application was indeed validly refused. Furthermore, the court had to consider whether the further protection visa application was valid under the Migration Act.

The court examined the jurisdictional constraints on the Minister, the delegate, and the RRT in handling the visa applications. It was established that the original protection visa application had been validly and effectively refused, as determined by Allsop J in previous proceedings between the same parties. The court found that it was not permissible for the applicant to re-litigate this issue in the current proceedings. Additionally, the court agreed with Allsop J's conclusion that the further protection visa application was not valid. The court reasoned that under the Act, neither the Minister nor his delegate could consider an application that was not a valid application, and the RRT had no greater powers than the original decision-maker. Therefore, the Minister's delegate should have declined to deal with the further application.

ORDERS:
1. The application be dismissed.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HELY J
This is a sensible way of proceeding because if the Minister’s first submission is upheld then there is no point in considering the detailed complaints made about the RRT’s decision. In any event, many of these complaints are difficult to understand, others are expressed in terms of extreme generality and most, if not all, of the complaints do not on their face raise any identifiable or recognisable ground of judicial review.Decision An issue arises in the present proceedings as to whether the original protection visa application was validly and effectively refused by reason of the decision of the RRT given on 22 October 1998. The issue arises in these proceedings by reason of the Minister’s contention that the Minister’s delegate, and the RRT, acted in excess of jurisdiction in considering the further protection visa application which was accepted by DIMA on 31 July 2003. The same issue was determined, and necessarily determined, by the final judgment given by Allsop J on 9 December 2003 in proceedings between the same parties. Accordingly, it is not open to the applicant to re-agitate the same issue in the present proceedings. Even if, for some reason, an issue estoppel does not arise, I would agree, with respect, with the conclusion reached by Allsop J for the reasons given by his Honour. The original protection visa application was validly and effectively refused. An issue also arises in the present proceedings as to whether the further protection visa application accepted by DIMA on 31 July 2003 was a valid application. Again, that issue was determined and necessarily determined by the final judgment given by Allsop J on 30 January 2004 in proceedings between the same parties. Accordingly, it is not open to the applicant to re-agitate the same issue in the present proceedings. Again, even if, for some reason, an issue estoppel does not arise, I would agree with the conclusion of Allsop J that the application accepted by DIMA on 31 July 2003 was not a valid application. Section 46(1)(d) of the Act provides, relevantly, that an application for a visa is valid if, and only if, it is not prevented by s 48A. Under s 47(1) and (3) neither the Minister nor his delegate is able to consider an application that is not a valid application. Under s 415 of the Act the RRT has no greater powers than the original decision-maker. Thus the Minister’s delegate ought to have declined to deal with the protection visa application which was accepted on 31 July 2003. The RRT was probably obliged to review the decision (s 414(1)) but I accept the Minister’s submission that the RRT erred in affirming the decision, as the Minister’s delegate should have declined to entertain the application for a protection visa, rather than refusing to grant the application. The RRT should have set the decision aside under s 415(2)(d) of the Act and substituted a decision that the protection visa application was not valid and should for that reason not have been considered.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

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