SZOZE v Minister for Immigration

[2017] FCCA 2575

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZOZE & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2575

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal that it had no jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.47, 48A, 338, 347, 411, 412, 414, 438

Migration Regulations 1994 (Cth), reg.4.02(4)

Cases cited:

ASZ16 v Minister for Immigration & Anor [2017] FCCA 1617
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013]

FCAFC 71

First Applicant: SZOZE

Second Applicant: AUR16

Third Applicant: AUT16

Fourth Applicant: BGR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 833 of 2016

Judgment of: Judge Barnes

Hearing date: 27 September 2017

Delivered at: Sydney

Delivered on: 27 September 2017

REPRESENTATION

Applicants: In person

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the in sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 833 of 2016

SZOZE

First Applicant

AUR16

Second Applicant

AUT16

Third Applicant

BGR16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 March 2016. The Tribunal found that it did not have jurisdiction to review a determination of a departmental officer that the Applicants’ application for protection visas was prevented by s.48A of the Migration Act 1958 (Cth) (the Act) and were therefore invalid.

2. The Applicants are husband and wife and two children.  They initially applied for protection in 2010.  The application was refused.  The Applicants unsuccessfully sought review by the Tribunal and judicial review. 

3. On or about 24 December 2015, the Applicants made a further application for a protection visa in purported reliance on the complementary protection criterion. 

4. On 5 January 2016 a departmental officer notified the Applicants that the visa application was invalid having regard to the fact that following a legislative amendment that came into effect on 28 May 2014 the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, which allowed applicants to make a second protection visa application, applied only to protection visa applications received by the Department prior to 28 May 2014 (and see Schedule 2 to the Migration Amendment Act 2014 (Cth)). The Department advised that as the visa application was made on 24 December 2015 and as a decision had previously been made to refuse to grant the Applicants protection visas, s.48A of the Act applied to prevent them from making a subsequent protection visa application.

5. Rather than seeking judicial review of the departmental decision, the Applicants sought review by the Tribunal by application lodged on 28 January 2016. 

6. On 29 January 2016 the Tribunal wrote to the Applicants, advising them that it had received their applications for review, that the validity of the application to the Tribunal had not been assessed, and that it could only review a decision if a valid application for review had been made.  The Applicants were given the opportunity to provide material or written arguments to the Tribunal.

7. On 10 February 2016, the Tribunal again wrote to the Applicants, inviting them to comment on the preliminary view that the applications were not valid applications as there were no “reviewable decisions” and the notification by the Department that the visa application was not valid was not a decision that could be reviewed by the Tribunal.  

8. By letter dated 22 February 2016, the First Applicant suggested that on 3 July 2013 this court had found that s.48A of the Migration Act did not prevent him from making another protection visa application on complementary protection grounds. He submitted that his visa application was valid and that the Tribunal should make such a finding.

9. On 4 March 2016 the Tribunal determined that it did not have jurisdiction. In its reasons for decision the Tribunal referred to the fact that it had jurisdiction to review a decision under the Act if an application was properly made under s.347 or s.412 (or in some other limited circumstances not relevant to the matter before it) and that s.338 and s.411 of the Act, and reg.4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that were reviewable by the Migration and Refugee Division of the Administrative Appeals Tribunal, including decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions. However the Tribunal found on the evidence before it that at the time the review application was lodged no such relevant decision had been made in relation to the Applicants.

10. The Tribunal acknowledged the Applicant’s comments in the letter of 22 February 2016, but had regard to the fact that it was clear that the Department had determined that the Applicants’ protection visa application was invalid.  It found that therefore there was no (as the Tribunal put it) “Tribunal reviewable decision pursuant to section 411 of the Act”.

11. The Tribunal concluded that as no reviewable decision had been made at the time of the review application, it followed that the review application was not properly made and that the Tribunal did not have jurisdiction in the matter. 

12. The Applicants sought review of the Tribunal decision by application filed in this court on 8 April 2016.  The ground in the application is as follows (errors in original):

    1. The AAT declined its power by failing to find that s48A of the migration act does ‘not prevent me making another protection visa application on complementary protection grounds where my first

    2. protection visa was made and refused before commencement of complementary protection

    3. provision on 24 th March 2013 I have no lawyer to represent me in this court as I have no income to find a lawyer. 

    I wish to present myself, for my wife and two sons.

13. The Applicants did not file written submissions. In written submissions the First Respondent helpfully summarised some of the relevant statutory provisions. As at the date of the visa application in question, s.47 of the Act required the Minister to consider a valid application for a visa. Subsection 47(4) provided that a decision by the Minister that an application was not valid and could not be considered was “not a decision to refuse to grant the visa”. 

14. Section 414(4) of the Act relevantly provided that if a valid application was made to the Tribunal under s.412 for review of a “Part 7-reviewable decision”, the Tribunal must review the decision.  A “Part 7-reviewable decision” was defined in s.411 of the Act. Subsection (1) provided that, subject to subsection (2) (which is not relevant for present purposes), certain specified decisions were Part 7-reviewable decisions, including, relevantly, (c) “a decision to refuse to grant a protection visa”. Under s.412(1) of the Act, an application for review of a Part 7‑reviewable decision must be made in the approved form, within the prescribed period, accompanied by the prescribed fee.

15. The Applicants relied on the fact that their first protection visa application was made and determined before the commencement of the provisions that introduced the complementary protection criterion. The ground is misconceived insofar as it raises an issue about s.48A of the Act. These proceedings relate only to the Tribunal’s decision that it had no jurisdiction to review the departmental officer’s determination. The ground appears to confuse the bases for the Department’s decision and those of the Tribunal. The Tribunal’s decision was purely a decision that it did not have jurisdiction as there was no Part 7 reviewable decision. As pointed out in submissions for the First Respondent, the only decision of which review was sought in these proceedings is the Tribunal decision. The Applicants have not sought judicial review of the departmental officer’s determination that their protection visa applications were not valid. If that is what they intend, they would have to commence fresh proceedings in this court and seek an extension of time.

16. The Tribunal’s decision has not been shown to be affected by jurisdictional error. The determination by the departmental officer that the protection visa application was not valid is not a Part 7‑reviewable decision. The Tribunal was correct to make this finding and to conclude that the Applicants had not made an application for review in accordance with s.412(1) of the Act, that it could not “review” the Department’s determination under s.414(2) of the Act and hence to conclude that it had no jurisdiction.

17. The ground of review also refers to the fact that the Applicants did not have a lawyer to represent them.  At the hearing today, which I note is some considerable time after the proceedings were commenced, the Applicants sought an adjournment on the basis that they wanted to obtain a lawyer (and to provide additional information). 

18. In oral submissions, the Applicants raised with the Court the fact that their youngest child had turned 10 and had become an Australian citizen.  They asserted on that basis that they wished to put further information before the Court because there had been a change of circumstances which, in particular, affected the Second Applicant as the child’s mother. 

19. However such information would not assist the Court to determine whether or not the Tribunal’s decision in relation to its jurisdiction was affected by jurisdictional error.  If the Applicants’ circumstances have changed, that is a matter they may raise with the Minister for Immigration. 

20. I declined to grant an adjournment in circumstances where I was not satisfied there was any utility in an adjournment to provide such additional information and the Applicants had had ample time to obtain legal advice or assistance, had they wished to do so.  Beyond this, the fact that the Applicants are self-represented does not establish any basis for a favourable decision, insofar as that appears to be intended by the ground in the application.

21. One aspect of the Tribunal’s procedure was drawn to the Court’s attention in the Minister’s submissions. As deposed by Thomas Shaw in an affidavit affirmed on 31 July 2017, in this case the Department had issued a certificate pursuant to s.438 of the Act certifying that s.438(1)(a) applied to specified information on the basis that disclosure of that information would be contrary to the public interest because it contained information relating to an internal working document and business affairs.

22. The certificate and the document to which it relates are before me as exhibits to Mr Shaw’s affidavit.  The document is merely a completed processing checklist in relation to the Applicants’ 2015 protection visa application.  In these circumstances and having regard to the basis for the Tribunal decision, this case does not give rise to the type of concerns or error identified in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 or Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183.

23. If there was a possibility that the document the subject of the certificate may have affected the Tribunal’s decision then there may arguably have been a failure to afford procedural fairness by the Tribunal’s failure to disclose the existence of the certificate (having regard to the principles considered in Singh).  However, this is not such a case.  The issue of whether the Tribunal had jurisdiction was not a matter that turned on or was in any way affected by such material.  The document is of no apparent relevance to the matter before the Tribunal and the issue of its jurisdiction.  Moreover, as the Tribunal had no jurisdiction, it had no power to exercise and none that could be affected by the certificate or the document to which it related (see ASZ16 v Minister for Immigration & Anor [2017] FCCA 1617 at [18]-[20]).

24. Hence, no issue arises from the Tribunal’s failure to disclose the s.438 certificate or, indeed, the document the subject of that certificate. There was no practical injustice or lack of procedural fairness, given the absence of relevance of the document to the Tribunal decision. Indeed, even if there was a “technical” jurisdictional error as a result of the non-disclosure, it would be appropriate to decline relief (see ASZ16 and the discussion in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566).

25. The ground in the application is not made out and the existence of the undisclosed s.438 certificate does not establish a basis for relief.

26. As I indicated to the Applicants, it is open to them to seek legal representation in relation to any other avenues that they might pursue.  Their concerns in that respect do not establish jurisdictional error on the part of the Tribunal or otherwise provide a basis for relief in these proceedings.  Insofar as the Applicants in effect asked the Court to consider their personal circumstances, that is not an approach that is open to the Court in proceedings of this nature.

27. In these circumstances, the application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 October 2017