SZQTJ v MIBP

[2015] FCCA 3226

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQTJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3226

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – whether the Tribunal improperly confined itself in deciding the application – whether the statutory regime bars consideration of an application on terms already decided – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A, 412, 414, 415(1), 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35
SZVCH v Minister for Immigration and Border Protection [2015] FCCA 2950
AOM15 v Minister for Immigration and Border Protection [2015] FCA 1285

Applicant: SZQTJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2225 of 2015

Judgment of: Judge Street

Hearing date: 3 December 2015

Date of Last Submission: 3 December 2015

Delivered at: Sydney

Delivered on: 3 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2225 of 2015

SZQTJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 14 July 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Nepal, and his second application on the grounds of complementary protection was made on 15 April 2013 and was refused by the delegate on 10 June 2014.

2. On 17 September 2008, the applicant was granted a student visa TU 572 and arrived in Australia on 2 October 2008 and departed on 2 May 2009. On 22 May 2009, the applicant re‑entered Australia and departed on 13 January 2010. On 16 February 2010, the applicant re‑entered Australia and applied for protection on 14 January 2011. That application for protection was dealt with under s.36(2)(a) of the Migration Act 1958 and not under s.36(2)(aa) of the Migration Act 1958.

3. In a decision dated 13 April 2011, the delegate, in respect of the first application for protection as a refugee, found the applicant had a particular sexual orientation but found that the applicant was not entitled to protection. The Tribunal’s decision dated 14 September 2011 on the first application also accepted that the applicant had a particular sexual orientation but found that the applicant was not entitled to protection and did not satisfy the criteria under s.36(2)(a) of the Migration Act 1958 for a protection visa. 

4. The applicant’s claims were that he had to conceal his sexual orientation in Nepal and feared that he would face harassment and discrimination by reason of his sexual orientation. 

5. The Tribunal dealt with the second application for protection on the basis of the provisions identified in s.36(2)(aa) of the Migration Act 1958, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35. The Tribunal raised with the applicant a live issue in respect of the applicant’s sexual orientation and came to a different finding in relation to the applicant’s sexuality for reasons that cannot be said to lack an evident and intelligible justification. The Tribunal also addressed whether there was a risk of the applicant suffering serious harm if, in fact, the applicant’s claims as to his sexual orientation were true. The Tribunal found that the applicant did not face a real risk of significant harm on return to Nepal in relation to his claims.

6. The delegate, in relation to the second application, in fact addressed the claims both under ss.36(2)(a) and 36(2)(aa) Migration Act 1958 in the decision dated 14 June 2014, and found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) was not made out.

7. The ground of the application is as follows:

   1. The Tribunal erred by failing to consider whether Australia had protection obligations under the Refugees Convention and Protocol in respect of the Applicant.

   Particulars

   The Applicant had previously been refused a protection visa under s36(2)(a) of the Migration Act 1958. The Applicant then lodged a new application for a protection visa relying on s36(2)(aa). The Tribunal held that it was precluded from considering the grounds in s36(2)(a), and did not do so in relation to application for a Protection Visa. The Tribunal misinterpreted s48A, which operates only to determine whether an application for a protection visa is valid, not what the Tribunal may and may not consider when making its determination.

8. At the time of the second protection application, s.48A provided, relevantly, as follows:

   Section 48A

   (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); ... 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 mentioned in paragraph 36(2)(a), (aa), (b) or (c); and

9. It is also appropriate to take into account the scheme of the Act under Pt.7 which identifies the obligation of the Tribunal to conduct a review under s.414 where a valid application has been made under s.412. For the reasons given in SZGIZ at para.49, the second application was a valid application as follows:

   49. In our view, that passage simply begs the question whether the earlier making of an unsuccessful application based on a particular criterion prevents the making of a subsequent application for a protection visa relying on a different criterion.

10. Consistent with SZGIZ, the Tribunal was required to review the complementary protection application that had not been referenced and had powers relevantly under s.415(1):

    For the purpose of the review the Tribunal may exercise all the powers and discretions that are conferred by the Act on the delegate. 

11. The decision in SZGIZ, in substance, permits the applicant to make a second application for protection “relying on different criterion”. Those words quoted above from the judgment of the single judgment of the Full Court of the Federal Court of Australia are of significance in relation to the nature of the review that the Tribunal is entitled to conduct under Pt.7. The language of s.48A, on its terms, imposed a bar upon consideration of another application under s.36(2)(a) that had already been refused.

12. The mere fact that the delegate may have made a jurisdictional error or misunderstood the scope of the entitlement of the applicant to make a second application under the principles identified in SZGIZ does not, in any way, impact upon the scope of the jurisdiction of the Tribunal or its obligations under the statutory regime.

13. The Court was taken to a decision of this Court in SZVCH v Minister for Immigration and Border Protection [2015] FCCA 2950, particularly at [24] to [26], in which a reasoning was adopted to the effect that if the delegate engaged in an analysis of protection, under s.36(2)(a), the Tribunal was required to do likewise. There is no statutory foundation for that approach. That construction is inconsistent with the clear words of the statutory mandate in s.48A.

14. Further, the approach in SZVCH is, in my opinion, inconsistent with the binding decision of the Full Court in SZGIZ, which makes clear that a second application can only be one relying on a different criterion.  I note that the reasoning in the decision in SZVCH was made without express reference to the critical ratio of the decision in SZGIZ at para.49.

15. In AOM15 v Minister for Immigration and Border Protection [2015] FCA 1285, Perram J said at [9] as follows:

    9. The appellant then sought a review before the Tribunal. At the hearing before the Tribunal it correctly identified that the only issue was complementary protection and that SZGIZ did not justify any further examination of the issue of whether a protection visa should be issued for Refugee Convention reasons.

16. In my opinion, what was said by the learned Perram J in AOM15 is inconsistent with the reasoning adopted in SZVCH v Minister for Immigration and Border Protection [2015] FCCA 2950. The decision of Perram J was delivered after the decision of SZVCH. This Court is bound by the decision in SZGIZ and the decision in SZVCH cannot be reconciled with the binding authority of the Full Court. Nor can SZVCH be reconciled with AOM15.  I am satisfied that the decision in SZVCH is plainly wrong.

17. For these reasons, I am satisfied that there is no jurisdictional error of the kind identified in ground 1 of the application. 

18. I note, for the record, that a formal submission was made on behalf of the first respondent challenging SZGIZ on the basis of a construction of s.48A that the first respondent contends in its form, as it then stood, excluded a second application, even be it of different criterion. That is not an issue that was advanced beyond the formal submission in this Court and the decision of the Full Court is binding upon this Court. I note, however, that the formal submission is not one that, if correct, would have assisted the applicant on the present case.

19. From the bar table, the applicant identified that he was not able to bring lawyers and that he wanted justice.  Nothing said by the applicant identified any jurisdictional error.  The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 7 December 2015