SZJHT v Minister for Immigration
[2010] FMCA 1005
•17 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHT v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 1005 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – second protection visa application – previous application made as member of family unit – applicant prevented from lodging second protection visa application – ministerial delegate concluded application was not a valid visa application – delegate’s decision not an “RRT-reviewable decision” – Tribunal can only review “RRT-reviewable decisions” – decision that application was not a valid visa application could be made by a departmental officer and did not need to be made by the Minister. |
| Migration Act 1958, ss.36, 47, 48A, 48B, 411, 412, 414, 474, 496 Public Service Act 1999, ss.7, 22, 57 Migration Regulations 1994, item 1401 of sch.1 Administrative Arrangement Order, 6 May 2010 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZJHT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1966 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1966 of 2010
| SZJHT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia on 29 January 2006. On 3 June 2010 he lodged an application for a protection visa with the Department of Immigration and Citizenship. By letter of the same date, an administrative officer of that department advised the applicant that his application for a protection visa was not a valid application as he had previously applied for and been refused a protection visa in 2006. The applicant subsequently applied to the Refugee Review Tribunal (“Tribunal”) for a review of the departmental decision. However, on 25 August 2010 the Tribunal found that it did not have jurisdiction to review his application. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The applicant, his parents and his sister arrived in Australia on 29 January 2006. On 7 February 2006 the applicant’s father lodged an application for a protection visa. That application included as members of the family unit, as that concept is now understood under the Act, the applicant, his mother and his sister. On 23 March 2006 a delegate of the first respondent (“Minister”) refused their applications for protection visas and on 7 August 2006 that decision was affirmed by the Tribunal.
On 8 August 2008, following a series of unsuccessful judicial review applications in this Court, the Federal Court, and the High Court by way of a special leave application, the applicant and his family lodged a second application for review of the delegate’s decision. However, on 29 August 2008 the Tribunal found that it did not have jurisdiction as the delegate’s decision had already been the subject of a valid Tribunal review and, as such, was no longer an RRT-reviewable decision under s.411 of the Act.
As noted earlier in these reasons, on 3 June 2010 the applicant lodged an application for a protection visa. His parents and his sister were included in that application as members of his family unit. By letter of the same date the applicant was advised by the Minister’s department that his application was not a valid application because, having previously made an unsuccessful application for a protection visa in 2006, he was prevented by s.48A of the Act from making a further one. Section 48A relevantly provides:
48ANon‑citizen refused a protection visa may not make further application for protection visa
(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 while in the migration zone.
…
(2)In this section:
application for a protection visa includes:
(aa)an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ab)an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non‑citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa; …
On 29 June 2010 the applicant applied to the Tribunal for review of the department’s decision. On 25 August 2010 the Tribunal found that, as at the time that the review application was lodged, no additional decision had been made to refuse the applicant a protection visa. It further found that the department’s letter of 3 June 2010 did not amount to a decision to refuse the applicant a protection visa; it simply notified him that the application was not a valid one. On the basis that it found that the department’s letter of 3 June 2010 was not an RRT-reviewable decision and that the applicant’s application for review was not a valid application, the Tribunal concluded that it did not have jurisdiction in the matter.
Proceedings in this Court
The grounds of the amended application in these proceedings were pleaded as follows:
1.The Tribunal made a jurisdictional error that the Tribunal did not understand the explanation of section 48A of the Migration Act (the Act) that s.48A(ab) does not apply for the applicant because the applicant is not a member of the same family unit any more.
2.The Tribunal made a jurisdictional error that the Tribunal made a wrong observation regarding its jurisdiction and it formed a wrong view about its jurisdiction because it did not want to review the applicant’s review application. There is nothing in s.412 1, 2, 3, 4 of the Act that support the Tribunal’s preliminary view that the application for review does not relate to an RRT-reviewable decision (CB-196-paragraph-6, 7).
3.The Tribunal made a jurisdictional error that the Tribunal did not comply with the part 7 of the Migration Act 1958. The Tribunal did not understand the definition of the ‘decision’ under the Act. The Tribunal also did not consider the scope of ss.411, 412 & 414 of the Act. The review application is not application from further protection application. The protection application was not given to the Immigration Minister to look at the circumstances.
4.The Tribunal made a mistake that it accepted the Department’s observation which was made by the Department’s office and there is no indication that the circumstances of the applicant were considered by the Immigration Minister. The application was not prevented to consider under the Act.
5.The Tribunal did not consider the applicant’s submissions of 28 June 2010 (CB-158) and 23 July 2010 (CB-191). The Tribunal did not make any comment on these submissions and did not give any references why it did not accept my submissions.
Ground 1
In the first ground of the amended application the applicant alleges that s.48A(2)(ab) of the Act does not apply to his case because he is no longer a member of the same family unit which made the protection visa application in 2006. Whether the applicant is a member of the same family unit which made that application is not relevant to the operation of s.48A(2)(ab). The applicant appears to believe that the original application was some form of corporate application rather than the aggregation of four separate applications in the one process, which is what is, and was at the relevant time, provided for by s.36(2) of the Act and item 1401 of sch.1 of the Migration Regulations 1994 (“Regulations”).
The applicant submitted that the Tribunal erred by stating that the visa application filed on 3 June 2010 was his second application arguing that in fact it was his first. The Tribunal decision signed on 8 August 2006, which is reproduced in the Court Book which is exhibit A, discloses that the applicant, as a child of his father, made a protection visa application in 2006 which was refused by the Ministerial delegate whose decision was affirmed in that Tribunal decision of 8 August 2006. That is to say, the applicant sought a protection visa in 2006 and was unsuccessful. The fact that he now makes his own application, apparently on grounds individual to himself, does not alter the fact that he made a protection visa application in 2006 as a dependent of his father. Nor does it affect the operation of s.48A(2)(ab) which prevents him from making a further application unless the Minister determines pursuant to s.48B that s.48A does not apply to him.
There is no evidence of a s.48B determination having been made in relation to the applicant. In the absence of such a determination, s.48A prevents him from making a further protection visa application. This has the consequence that the department did not err when it stated in its letter of 3 June 2010 that the visa application made that day was not a valid application and also that the Tribunal did not err on 25 August 2010 in concurring with that view.
As a result, the first ground of the amended application does not disclose jurisdictional error on the Tribunal’s part.
Ground 2
In the second ground of the amended application the applicant alleges that the Tribunal erred by forming an incorrect view of its jurisdiction and that it did so because it did not wish to review his review application. He alleges that s.412 of the Act did not support the Tribunal’s view that the application for review which he lodged with it did not relate to an RRT-reviewable decision.
First, for the reasons given in relation to the first ground of the amended application, the Tribunal was not mistaken in its conclusion that it did not have jurisdiction in relation to the review application which the applicant filed on 29 June 2010; as the applicant was not entitled to make a further protection visa application, the one he did lodge was not a valid application.
Secondly, as the application which the applicant had filed was not a valid application, the department’s letter of 3 June 2010 did not amount to a decision in respect of a protection visa application and was therefore not an RRT-reviewable decision. In this regard s.411 of the Act relevantly provides:
411 Decisions reviewable by Refugee Review Tribunal
(1) Subject to subsection (2), the following decisions are RRT-reviewable decisions:
(a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
(c) a decision to refuse to grant a protection visa;
(d) a decision to cancel a protection visa.
As the department’s letter did not reflect a decision to refuse to grant a protection visa or any other of the decisions referred to s.411(1), it was not an RRT-reviewable decision.
Section 412 of the Act provides:
412 Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
Section 414 of the Act provides:
414 Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
The combined effect of ss.412 and 414 is that the Tribunal has jurisdiction only to review RRT-reviewable decisions. As the Tribunal was correct to conclude that the applicant had not sought the review of an RRT-reviewable decision, it was also correct to conclude that it had no jurisdiction to deal with the matter which the applicant brought to it.
Further, the applicant led no evidence to suggest that the Tribunal’s decision was actuated by a desire on its part to not review his review application. This allegation implies a want of good faith but the applicant has adduced no evidence in support of this assertion and there is nothing in the Tribunal’s decision which would support it. In any event, no matter how much the Tribunal might have wished to consider whether the applicant met the criteria for the grant of a protection visa, the absence of an RRT-reviewable decision meant that it was unable to do anything other than what it did.
Ground 3
In the third ground of the amended application the applicant alleges that the Tribunal failed to comply with pt.7 of the Act, failed to consider the scope of ss.411, 412 and 414 of the Act and did not understand the definition of “decision” under the Act. He also alleged that the application was not given to the Minister to consider.
Part 7 of the Act is concerned with the Tribunal’s reviews of protection visa decisions. As the applicant had not brought a protection visa decision to the Tribunal for review, pt.7 had no application to him on this occasion.
As for ss.411, 412 and 414, the Tribunal’s decision record not only discloses that it expressly did consider all of those sections and but also that it made no error in that consideration. It recognised, relevantly, that there had been no decision to which s.411 related, that no application for a review of an RRT-reviewable decision had been made in the application lodged on 29 June 2010, and that s.414 required there to be such a decision before the Tribunal could conduct a review.
Further, the Tribunal correctly recognised that the department’s letter of 3 June 2010 did not amount to a decision of the relevant sort. The Tribunal is not empowered to review “decisions” made by the Minister’s department or the Minister’s delegates. It is only empowered to review “RRT-reviewable” decisions. The Tribunal’s appreciation of this fact is reflected in its decision record and this aspect of the applicant’s allegation discloses no error on the Tribunal’s part.
In the final element of this ground, the applicant has submitted that a department officer
… cannot make a decision that an application is valid or not according to the law, only the Minister can make a decision whether an application is valid or not.
In this regard, I have not been taken to any provision of the Act or the Regulations which requires that such a decision be made by the Minister or one of his delegates.
It was the Minister’s case that, in any event, the departmental officer who decided that the application was not a valid application had delegated authority to make such a decision pursuant to s.496 of the Act. At this point it might be noted that there is no evidence as to who actually made the decision, although it appears that the parties have both proceeded on the assumption that the person who signed the letter of 3 June 2010 was that person. But the exact identity of the individual is of no particular significance. If, as the Minister submits, the person who made the decision that the application was not a valid application was a Ministerial delegate, then the officer in question was empowered by the Act to make the decision and the applicant’s point has no substance. However, no evidence of the purported delegation was led so it cannot be assumed that there was the delegation to which the Minister adverts. Consequently, it is necessary to consider the alternative possibility, namely, that the decision was made as a matter of departmental administration of the Act, being an Act administered by the Minister’s department pursuant, at the time, to the Commonwealth’s Administrative Arrangements Order of 6 May 2010.
Regardless of who performs it, the determination of whether an application made to the Minister’s department is a valid application is an essential administrative pre-condition to any consideration by the Minister of that application because s.47(3) of the Act provides that the Minister may not consider an application which is not a valid application. The Commonwealth’s Administrative Arrangements Order of 6 May 2010 provided that the matters dealt with by the Minister’s department were to include matters arising under the Act. Clearly, administrative action associated with matters arising under the Act was one of those matters. Further, the Public Service Act 1999, in particular ss.57, 22 and 7, has the effect that an administrative act of the sort which the letter of 3 June 2010 represented could properly be performed by a departmental officer. That being so, the decision that the visa application was not a valid application did not have to be made by the Minister as the applicant contends.
Ground 4
In the fourth ground of the amended application, the applicant alleges that the Tribunal erred in that it accepted the department’s conclusion expressed in its letter of 3 June 2010 and failed to consider the applicant’s circumstances.
First, the Tribunal’s decision cannot be characterised as a simple acceptance of the conclusion reached by the Minister’s department. The decision record demonstrates that the Tribunal considered the facts independently but arrived at the same conclusion as the department. The fact that its conclusion was the same as that expressed by the department in its letter does not amount to a simple acceptance of the department’s position. Secondly, although it is correct that the Tribunal did not consider the applicant’s personal circumstances, it had no power or obligation to do so because it had no jurisdiction in the matter. Contrary to the applicant’s allegation, the Tribunal was effectively prevented from considering those circumstances because of its lack of jurisdiction.
The fourth ground discloses no basis upon which the Tribunal’s decision should be set aside.
Ground 5
In the fifth ground of the amended application the applicant alleges that the Tribunal failed to consider the submission that he lodged on 29 June 2010 with his application for review or the submission which he lodged with the Tribunal subsequently. It is apparent from the Tribunal’s reasons at paras.14 and 15 that this is not correct. The circumstances of the matter did not require a detailed review of those submissions in the Tribunal’s reasons and the Tribunal’s express statement that it had considered them, in the circumstances of a review application presenting narrow issues, was sufficient to demonstrate that it had discharged its duty to consider the evidence and the arguments which the applicant put to it in the submissions in question.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 13 January 2011
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