SZQUM v Minister for Immigration & Border Protection
[2014] FCCA 325
•25 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQUM v MINISTER FOR IMMIGRATION & BORDER PROTECTION | [2014] FCCA 325 |
| Catchwords: MIGRATION – Review of decision by a delegate of the Minister for Immigration and Border Protection – whether a decision of the delegate that a protection visa application is invalid pursuant to s.48A of the Migration Act 1958 is affected by jurisdictional error – whether a subsequent decision of the delegate that the protection visa application was invalid pursuant to s.91P of the Migration Act 1958 because the applicant was a dual national pursuant to s.91N of the Migration Act1958 affected any jurisdictional error in the earlier decision – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 47, 48A, 65, 91M, 91N, 91P, 91Q, 91R Migration Regulations 1994 (Cth), reg.2.01 |
| Cases Cited: SZQUM v Minister for Immigration and Citizenship [2012] FMCA 79 SZQUM v Minister for Immigration and Citizenship [2012] FCA 493 SZQUM v Minister for Immigration and Citizenship [2012] HCASL 151 SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215 SZGIZ v Minister for Immigration and Citizenship (2013) FCR 235 Minister for Immigration and Citizenship v SZGIS [2014] HCATrans 315 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 SZQYM v Minister for Immigration [2012] FMCA 1116 SZOAU v Minister for Immigration (2012) 199 FCR 448 |
| Applicant: | SZQUM |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2963 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 25 February 2014 |
| Date of Last Submission: | 25 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an Igbo interpreter. |
| Solicitor for the Respondents: | Richard Baird (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2963 of 2012
| SZQUM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the respondent dated 6 December 2012. The Minister accepts that this Court has jurisdiction to hear and determine the applicant’s application for review of that decision. The decision is a migration decision within the meaning of s.5 of the Act and, accordingly, this Court has jurisdiction under s.476(1) of the Act to decide whether Constitutional writ relief in the nature of Certiorari and Mandamus should be issued.
The applicant claims to be a citizen of the Federal Republic of Nigeria and of the Republic of South Africa.
The issue in this matter is whether a protection visa application lodged by the applicant on 6 December 2012 was invalid pursuant to s.91P of the Act.
Prior to considering the proceeding before this Court, these Reasons provide a summary of the relevant legislation and the relevant procedural background.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Relevantly, section 91N of the Act provides that subdivision AK of the Act (which comprises of ss.91M-91Y) applies:
“(1) … to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.”
Section 91M of the Act gives an explanation as to the purpose of subdivision AK of the Act, as follows:
“This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa.”
Section 91P of the Act provides:
“(2) Despite any other provision of this Act but subject to section 91Q, if:
(a) this Subdivision applies to a non-citizen at a particular time; and
(b) at that time, the non-citizen applies, or purports to apply, for a protection visa; and
(c) the non-citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.”
“Migration zone” is defined is defined at s.5 of the Act as:
““migration zone" means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.”
Section 91Q of the Act allows the Minister to exercise his power to allow an applicant, who would ordinarily be barred from making a protection application by operation of s.91P, to do so. The provision states:
“(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2) For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.
(3) The power under subsection (1) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.”
Background
On 28 November 2010, the applicant arrived in Australia having departed from South Africa.
On 17 December 2010, the applicant applied for a protection visa. The applicant attended interviews with a delegate of the respondent on 21 January 2011 and 4 March 2011.
On 17 April 2011, the applicant’s migration agent provided a submission to the Department of Immigration and Citizenship (“the Department”) confirming that the applicant was a dual national of both Nigeria and South Africa and stating that the applicant held fears of persecution in both countries.
On 29 April 2011, the delegate notified the applicant that his application for protection, lodged on 17 December 2010, was invalid by reason of the applicant being a dual national, pursuant to ss.91N and 91P of the Act. The notification informed the applicant that his application would be treated as a request for the Minister to exercise his power pursuant to s.91Q of the Act, so that the applicant may make a valid application for a visa.
On 10 May 2011, the Minister exercised his power pursuant to s.91Q of the Act, allowing the applicant to file a fresh application for protection, which the applicant did on 19 May 2011.
On 11 July 2011, the applicant’s application for protection was refused by a delegate of the respondent on the basis that the applicant was not a person to whom Australia owed protection for a Convention-related reason. The applicant subsequently unsuccessfully sought review of the delegate’s decision in the Refugee Review Tribunal. An application for judicial review of the decision of the Refugee Review Tribunal was subsequently dismissed by this Court (see SZQUM v Minister for Immigration and Citizenship [2012] FMCA 79). An appeal to the Federal Court of Australia was dismissed (see SZQUM v Minister for Immigration and Citizenship [2012] FCA 493), and special leave to the High Court of Australia was refused (see SZQUM v Minister for Immigration and Citizenship [2012] HCASL 151).
On 24 March 2012, s.36 of the Act was amended, introducing the complementary protection criterion contained in s.36(2)(aa) of the Act.
On 6 December 2012, the applicant lodged another application for protection, seeking to rely on the complementary protection criterion.
On 6 December 2012, a delegate of the respondent wrote to the applicant informing him that his application was assessed as being invalid by reason of the operation of s.48A of the Act, which prevents an applicant from making further application for protection while still in the migration zone. That is the migration decision which is the subject of the present application before this Court.
The proceeding before this Court
On 15 March 2013, by consent the matter was stood over pending the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215, which concerned the proper construction of s.48A of the Act, and whether the provisions of that section applied to protection visa applications under the new complementary protection criterion contained in s.36(2)(aa). On 28 May 2013, the matter was again stood over pending the result of an appeal to the Federal Court of Australia.
On 3 July 2013, the Full Court of the Federal Court of Australia handed down its decision in SZGIZ v Minister for Immigration and Citizenship (2013) FCR 235 (“SZGIZ”). The Minister was unsuccessful before the Full Court of the Federal Court of Australia and was refused special leave to appeal to the High Court of Australia (see Minister for Immigration and Citizenship v SZGIS [2014] HCATrans 315).
Complementary protection came into force on 24 March 2012 in s.36(2)(aa) of the Act. SZGIZ had the effect that protection visa applications that had not considered complementary protection were not invalid by reason of s.48(A) of the Act.
The matter was listed for directions on 4 February 2014 before me in relation to the application for judicial review of the decision of the delegate dated 6 December 2012. On that occasion, the applicant was given leave to file and serve by way of affidavit any additional evidence to be relied upon, together with any submissions in support of the application on the issue of jurisdiction, by 11 February 2014. No documents have been filed by the applicant in accordance with those orders, or otherwise.
The applicant was unrepresented before this Court, although had the assistance of an Igbo interpreter.
The applicant confirmed that he relied on the grounds of his application filed on 13 December 2012, as follows:
“1. The DIAC committed jurisdictional error in failing to comply with the Migration Act.
2. The DIAC deprived me of natural justice.
3. The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in the Commonwealth Constitution.”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
None of the grounds were supported by particulars, evidence or relevant submissions. On their face, the grounds make bare assertions that do not disclose an error capable of review by this Court. I asked the applicant in what way did the delegate fail to comply with the Act, and in what way was he deprived of natural justice. The applicant responded that the delegate had decided that his application was invalid and he did not agree with that decision. The applicant said that he had explained in detail to the Department the risks he faced at home and yet the Department still refused him a protection visa. The applicant made the same submissions in respect of each of his grounds for review.
The respondent’s solicitor, Mr Richard Baird, conceded that, in the light of the decision in SZGIZ, the decision reflected in the delegate’s letter dated 6 December 2012 is affected by jurisdictional error in that it found that it was a jurisdictional fact that the applicant was prevented from seeking protection under s.48A of the Act.
However, on 5 August 2013 a delegate of the respondent notified the applicant that his protection visa application lodged on 6 December 2012 was invalid pursuant to ss.91N and 91P of the Act. Those sections prevent persons at the time of visa application, who are nationals of more than one country, from making a valid protection visa application while they remain in the migration zone.
The letter, dated 5 August 2013, informed the applicant that the Minister has power, under s.91Q of the Act, to determine if s.91P of the Act does not apply if the Minister decides that it is in the public interest to do so. The Minister is under no obligation to exercise the power. The letter informed the applicant that his protection visa application lodged on 6 December 2012 would be considered as a request for the Minister to exercise his public interest power under s.91Q of the Act. The letter also informed the applicant that, according to the Department’s records, he was a citizen of both Nigeria and South Africa. The applicant was invited to give any further information relevant to the assessment of his application for referral to the Minister for consideration under s.91Q of the Act.
On 2 December 2013, the Department notified the applicant that his request had not been referred to the Minister.
Section 47 of the Act requires the Minister to consider a valid application for a visa and prevents the Minister from considering an application that is not a valid application. Further, s.47(4) of the Act provides that a decision by the Minister that an application is not valid cannot be considered and is not a decision to refuse to grant the visa.
Provisions of the Act, such as ss.48A and 91P of the Act, prevent visa applications from being valid applications in certain circumstances. As stated above, the respondent accepts that the applicant’s protection visa application, lodged on 6 December 2012, was not made invalid by s.48A of the Act in light of SZGIZ.
At all relevant times, the applicant has maintained that he has dual citizenship in both Nigeria and South Africa. The evidence before the Court in relation to the jurisdictional fact of whether the applicant is a dual national for the purpose of ss.91N and 91P of the Act, is the same as the evidence that was before the delegate. That evidence included an Immigration Inspector’s report of an interview with the applicant held on 28 November 2010 in which the applicant said that he is a Nigerian national and has been naturalised as a citizen of South Africa; a record of interview with the applicant held on 29 November 2010 in which the applicant identified Nigeria as his country of birth and confirmed his citizenship in South Africa; and, a submission from the applicant’s migration agent, dated 17 April 2011, confirming that the applicant was born in Nigeria and has been granted citizenship in South Africa.
This evidence is contained in the bundle of document, identified as Court Book, filed on 18 February 2014, and marked as “Exhibit 1R.” Exhibit 1R also contains a file note in which a Department officer confirmed that the applicant did not lose his Nigerian citizenship upon becoming a citizen of South Africa.
There is no evidence put forward by the applicant to this Court to contradict those records. In the circumstances, I am satisfied that there is no error in the delegate’s finding of the jurisdictional fact that the applicant is a dual nation of both Nigeria and South Africa for the purposes of s.91N of the Act. Further, a holder of dual or multiple nationality cannot apply for a protection visa regardless of any claims to fear persecution even in each country of nationality (see SZOAU v Minister for Immigration (2012) 199 FCR 448 at 449 per Buchanan J).
A non-citizen who is a national of two or more countries pursuant to s.91N(1) of the Act is unable to lodge a valid application for a protection visa by reason of s.91P of the Act, regardless of whether the non-citizen has been Immigration cleared.
As stated above, s.91Q of the Act confers on the Minister a power to determine that s.91P of the Act does not apply to an application for a visa made by a non-citizen within seven days of notification where the Minister thinks it is in the public interest to do so. Such a decision is not amenable to judicial review (see: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636).
As is referred to above, the Minister exercised his power under s.91Q of the Act in favour of the applicant’s protection visa application lodged on 19 May 2011. However, that power did not extended to the applicant’s visa application lodged on 6 December 2012, because the applicant was notified on 2 December 2013 that a decision had been made not to refer to the Minister for exercise of his power of s.91Q of the Act. There is no merits review of the assessment that the request for a referral does not meet the relevant guidelines for referral to the Minister. Pursuant to s.91Q(7) of the Act, the Minister does not have a duty to consider whether to exercise the power in s.91Q(1) of the Act in respect of any non-citizen despite any request to do so.
In the light of this Court’s finding that there is no error in the delegate’s decision dated 5 August 2013, I accept the respondent’s submission that this Court does not have jurisdiction to issue the writs of Certiorari and Mandamus in relation to the delegate’s decision dated 6 December 2012. The applicant has failed to present any evidence or challenge to the delegate’s decision dated 5 August 2013 that the protection visa application lodged on 6 December 2012 is invalid by reason of ss.91N and 91P of the Act.
I accept the submission of Mr Baird that, in the circumstances, although this Court has jurisdiction to entertain the application for relief in the form of writs of Certiorari and Mandamus, in considering judicial review of the delegate’s decision dated 6 December 2012, it has no power to grant the relief sought in the absence of a proper legal basis for the grant of that relief. In the light of the delegate’s decision, dated 8 August 2013, that decision being without error, the applicant has failed to demonstrate a proper legal basis for the grant of relief (see: SZQYM v Minister for Immigration [2012] FMCA 1116 per Smith FM at [11] - [18]).
Accordingly, the proceeding before this Court, commenced by way of application dated 13 December 2012, should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 25 February 2014
0
8
0