SZFRG v Minister for Immigration

[2016] FCCA 2677

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZFRG & ANOR v MINISTER FOR IMMIGRATION [2016] FCCA 2677

Catchwords:
MIGRATION – Protection (Class XA) visas – s.48A of the Migration Act 1958 (Cth) – whether there was a duty for the Minister to inform the applicants of legislative amendments – application of s.48A of the Migration Act 1958 (Cth) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 48B, 476.

Acts Interpretation Act 1901 (Cth), s.13(2)(d).

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
AZABF & Minister for Immigration and Border Protection [2015] FCFCA 174.

First Applicant: SZFRG

Second Applicant: SZFRH

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1526 of 2016

Judgment of: Judge Street

Hearing date: 17 October 2016

Date of Last Submission: 17 October 2016

Delivered at: Sydney

Delivered on: 17 October 2016

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondent:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the Respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1526 of 2016

SZFRG

First Applicant

SZFRH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Minister for Immigration and Border Protection made on 26 May 2016 refusing to accept Protection (Class XA) visa applications on the grounds of complementary protection lodged by the applicants on 3 March 2016. I am satisfied that the decision dated 26 May 2016 is not a decision excluded under s.476(2) of the Act from this Court’s jurisdiction.

2. The applicants are citizens of Indonesia. The applicants arrived in Australia on 1 June 1998, having previously visited from 15 June to 7 July 1997. On 9 June 1998, the applicants lodged a combined application for protection visas.

The Delegate’s Decision: 26 June 1998

1. On 26 June 1998, the delegate refused to grant the protection visas.  On 24 July 1998, the applicants sought a review of that decision.

The Tribunal’s Decision: 25 October 1999

1. On 25 October 1999, the Refugee Review Tribunal (“the Tribunal”) found that it was not satisfied that the level of harm which the applicants faced amounts to a well-founded fear of persecution. The Tribunal found that the applicants did not fall within the criteria of the Refugee Convention and that they did not satisfy the criteria under s.36(2) of the Act.

2. The applicants challenged that decision of the Tribunal in late 2005 by commencing judicial review proceedings, which were dismissed on 26 July 2006. Apart from the period which was the subject of the judicial review proceedings and the periods in which respect of which the applicants made application for ministerial intervention, it appears that the applicants have been unlawful persons in Australia, relevantly, for almost 10 years. 

Proceedings before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to hear the application for relief in relation to the decision made by the Minister on 26 May 2016. The Court explained that, the Court has to be satisfied that the Minister’s decision was wrong in law. 

2. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The ground of the application is as follows:-

   1. The Department of Immigration failed to take into consideration my right to apply for a protection visa under complementary as it was decided by the Court that any applicant for refugee is entitled to reapply if the issue of complementary protection was not considered. This should not apply to me as I was refused a protection visa on 26 June 1998 and section 48A should not apply to me.

4. The applicants seek to rely upon the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 to contend that they are entitled to pursue a further application for a protection visa on the grounds of complementary protection under s.36(2)(aa) of the Act.

Application of s.48A of the Migration Act 1958 (Cth)

1. The applicants contend that the language of s.48A of the Act involves a discretion by reason of the use of the words “may not make a further application”. On the evidence before the Court, the applicants had remained in the migration zone since 1 June 1999. Section 48A of the Act provides as follows:-

   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 (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.

   (1AA)  Subject to section 48B, if:

   (a)  an application for a protection visa is made on a non-citizen's behalf while the non-citizen is in the migration zone; and

   (b)  the grant of the visa has been refused, whether or not:

   (i)  the application has been finally determined; or

   (ii)  the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

   (iii)  the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

   the non-citizen 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.

   (1A)  For the purposes of this section, a non-citizen who:

   (a)  has been removed from the migration zone under section 198; and

   (b)  is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

   is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

   Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

   (1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while 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.

   (1D)  In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation.

   (1E)  In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.

   (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; or

   Note:       Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 , which also inserted section 35A and this paragraph.

   (aaa)  an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or

   (a)  an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (b)  an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or

   (c)  an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992 .

2. On 24 March 2012, the Act was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth), which introduced the complementary protection regime into the Act by amendments, relevantly, to s.36 of the Act. On 28 May 2014, s.48A of the Act was amended by the Migration Amendment Act2014 (Cth). That amendment relevantly introduced subsection (1C) into s.48A.

Explanatory Memorandum to the Migration Amendment Bill 2013

1. Relevantly, the Explanatory Memorandum to the Migration Amendment Bill 2013 identified the amendment made in Schedule 2 to clarify that s.48A of the Act prevents a non-citizen who has been refused a protection visa or, has had a protection visa cancelled from applying for a further protection visa while in the migration zone.

2. The Explanatory Memorandum expressly referred to SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The Explanatory Memorandum explained that the decision was contrary to the policy or intention of s.48A, which is that a non-citizen should not be able to make a further protection visa application in the migration zone after a previous protection visa application has been refused or, a protection visa held by the person has been cancelled is irrespective of the grounds on which their earlier protection visa application was refused or grounds on which the cancelled visa was originally granted and whether or not the grounds or criteria existed earlier.

AZABF & Minister for Immigration and Border Protection [2015] FCFCA 174

1. The decision of the Full Court of the Federal Court of Australia in AZABF & Minister for Immigration and Border Protection [2015] FCFCA 174 has expressly considered the effect of the amendment and concluded that s.48A prevents a further application for a protection visa under circumstances of the present case where an earlier application for protection has been refused. Relevantly, the Full Court in that case said at paragraphs [25] – [27]:-

   25. The terms of ss 48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) of the Act read together act as a bar to the lodgement by the appellant of his second application for a protection visa. In particular, we note:

   osection 48A(1C)(b), which provides that s 48A(1) applies such that a non-citizen who has made a previously unsuccessful application for a protection visa may not make a further application for a protection visa, whether the grounds on which an application would have been made or the criteria which the non-citizen would claim to satisfy existed earlier;

   osection 48A(2)(aa), which defines “application for a protection visa” as including an application for a visa that, under the Act or the regulations in force at any time, is or was a visa of the class known as protection visas; and

   osection 36, which is headed “Protection visas – criteria provided for by this Act”, and in particular s 36(2)(aa) which provides that a criterion for a protection visa is that the applicant for the visa satisfy the Minister of (in effect) Australia’s complementary protection obligations to that applicant.

   26. It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the “criterion for a protection visa”. And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa “regardless of ... the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier”. Even though the “criterion” now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made “regardless of ... whether” the criterion now relied upon “existed earlier”. We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.

   27. In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa.

2. The Court notes that a special leave application was refused by the High Court of Australia in respect of the decision of the Full Court of the Federal Court of Australia on 9 June 2016.               

Interpretation of s.48A of the Migration Act 1958 (Cth)

1. The applicants are both intelligent people who candidly acknowledged that they have remained unlawfully in Australia. The argument in respect of the use of the word “may not” as creating a discretion, was an argument of some ingenuity. However, the use of the term “may not” in the present case, clearly proscribed a further application for a protection visa in the circumstances identified in s.48A of the Act.

2. The first applicant is correct to say that the language might have been clearer. However, the intent not to permit further application is manifest from the language used and is supported by a reading of the section as a whole.

3. Further, this Court is bound by the decision of the Full Court of the Federal Court in AZABF & Minister for Immigration and Border Protection [2015] FCFCA 174 which has held that a further protection visa application on the grounds of complementary protection cannot be made after the commencement of the Migration Amendment Act 2014 (Cth) on 28 May 2014.

4. With similar ingenuity, the applicants also contended that there was a duty upon the Minister to inform them of the legislative change so that they could advance a further application for complementary protection.  The applicants contended they had an identified address and could have been located. There was no duty on the Minister to take steps to notify persons unlawfully in Australia of steps that they may or may not be able to take concerning protection visas.

5. It is not necessary for this Court to consider whether any obligation of procedural fairness arises in the context of an ongoing application. There was no ongoing application by the applicants in the present case at the time of the amendments introducing the complementary protection criteria or at the time of the potential amendments to s.48A of the Act.

6. I note the applicants’ deep wish to advance their personal circumstances to the Court in support of the application for relief.  The Court accepted that the applicants appear to have been constructive members of the community, albeit unlawful persons, and that there may be considerable merit in the applicants’ desire to continue to remain in Australia and to contribute to the Australian community. However, this Court does not have the power to grant relief based on compassionate grounds and cannot make any finding in relation to the merits of the decision of the Minister. 

7. The Minister provided reasons in support of the decision made on 26 May 2016 refusing to accept the application for protection made at 3 March 2016 on the grounds that it was invalid. That decision was correct in law. The Minister gave proper reasons in support of that decision and there is no basis in law upon which any relief of the kind sought by the applicant in the application can be granted. In the decision, the Minister also took into account the discretionary powers under s.48B of the Act to permit ministerial intervention.

Refusal to Grant Ministerial Intervention

1. On 10 June 2016, the applicants were informed that the Minister did not propose to have the matter heard for consideration under s.48B of the Act. The refusal to grant ministerial intervention or, to consider the same is not a matter within this Court’s jurisdiction. Whether the applicants seek to provide further information in relation to these particular circumstances, asking for further ministerial intervention is a matter for the applicants.

2. No jurisdictional error has been made by the decision made on 26 May 2016. 

3. Accordingly, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2016