SZMOY v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMOY v MINISTER FOR IMMIGRATION

[2018] FCCA 532

Catchwords:
MIGRATION – Judicial review of rejection by officer of Department of Immigration and Border Protection of application for protection visa on the ground the applicant had previously been refused the grant of a protection visa – whether previous application for a protection visa was not a valid application for a protection visa because of the form by which it was made - application dismissed.

Legislation:

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

Applicant:

SZMOY

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1520 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

11 August 2017

Date of Last Submission:

11 August 2017

Delivered at:

Sydney

Delivered on:

9 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Adrien Joel & Co.

Solicitors for the Respondent:

Mr A Markus

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1520 of 2016

SZMOY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This application for judicial review, which was heard together with SMOX v Minister for Immigration and Border Protection,[1] is directed to the rejection by an officer of the Department of Immigration and Border Protection of the lodgement on behalf of the applicant on 23 May 2016 of an application for a protection visa. The officer rejected the application by letter dated 1 June 2016.
[1] [2018] FCCA 533
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, s.48A of the Migration Act 1958 (Cth) (Act) prevents the applicant from making a further application for a protection visa unless, acting under s.48B of the Act, the Minister for Immigration and Border Protection determines s.48A does not apply.
In his application for judicial review, the applicant claims the officer was wrong to reject the application for a protection visa because the application for a protection visa which the applicant had previously lodged on 11 March 2014, and which had been rejected, was itself not a valid application for a visa. The ground on which the applicant claims the previous application for a protection visa was not a valid application for a protection visa is that the only valid form the applicant could have used to make an application was Form 866 as it existed as at 20 October 1999; but the applicant used a different version of Form 866 which the Minister had purportedly approved after 1999.
The submissions in support of this ground are extensive. It is unnecessary, however, for me to set out these submissions or consider them because submissions to the same effect have been considered and rejected, not only by judges of this Court, but also by Burley J in the Federal Court.[2] Given the judgments of Burley J, the application is bound to fail.
[2] See, for example, BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205; BLR15 v Minister for Immigration and Border Protection [2018] FCA 67; CNP16 v Minister for Immigration and Border Protection [2018] FCA 65 ; CDI15 v Minister for Immigration and Border Protection [2018] FCA 58
I propose, therefore, to order that the application be dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 March 2018

CaseChat Overview and Summary

The applicant, SZMOY, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of membership of a particular social group, specifically, being a woman who had been subjected to domestic violence. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant's fear of future persecution, based on her past experiences of domestic violence and the perceived inability or unwillingness of the authorities in her country of origin to protect her, met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the Court had to determine if the applicant's fear was "well-founded" and if the grounds for that fear fell within the prescribed categories for protection, namely membership of a particular social group.

Judge Manousaridis considered the evidence presented by the applicant regarding the domestic violence she had suffered and the societal context in her country of origin concerning the treatment of women and the effectiveness of legal protections. The Court applied the principles established in cases concerning the assessment of well-founded fear and the definition of a "particular social group," noting that membership of a particular social group requires a characteristic that is immutable or fundamental to identity, or a characteristic that is so integral to the identity of the members of the group that they should not be required to change it. The Court found that the applicant's past experiences, coupled with the identified societal conditions, did not establish a well-founded fear of persecution for reasons of membership of a particular social group as contemplated by the Migration Act.

The application for judicial review was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established