SZRNJ v Minister for Immigration
[2014] FCCA 782
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRNJ v MINISTER FOR IMMIGRATION | [2014] FCCA 782 |
| Catchwords: MIGRATION – Protection visa application subsequent to earlier and unsuccessful protection visa application – whether second application a valid application. |
| Legislation: Migration Act 1958, ss.36, 48A, 48B, 415 |
| Cases Cited: SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235 SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 SZOVB v Minister for Immigration & Citizenship (2011) 125 ALD 38 |
| Applicant: | SZRNJ |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2378 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 11 April 2014 |
| Date of Last Submission: | 11 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| The Applicant appeared person |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | DLA Piper Australia |
DECLARATION
The applicant’s application for a protection visa lodged on 18 September 2013 was not invalid under s.48A of the Migration Act 1958.
ORDER
A writ of mandamus issue directed to the respondent requiring him to consider and determine the applicant’s application for a protection visa lodged on 18 September 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2378 of 2013
| SZRNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Tonga who arrived in Australia in 1990 as the holder of a visitor’s visa when he was five years old. On 21 December 2011 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 13 February 2012. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision and on 8 May 2012 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. The applicant was unsuccessful in an application for judicial review of the Tribunal’s decision.
The applicant lodged a second protection visa application on 18 September 2013. By letter dated 19 September 2013, an officer in the Minister’s department notified the applicant that because he had not left Australia since his first protection visa application had been refused, by virtue of s.48A of the Migration Act 1958 (“Act”) his second application was not a valid application.
For the reasons which follow, a declaration will be made that the applicant’s application for a protection visa lodged on 18 September 2013 was not invalid under s.48A of the Act and the Minister will be ordered to consider and determine that application according to law.
Relevant legislation
This case concerns the significance and the timing of the Act’s complementary protection provisions.
Section 36
At the time the applicant lodged his first protection visa application on 21 December 2011, and also at the time the delegate made his or her decision on it on 13 February 2012, the Act’s complementary protection provisions had not been introduced. At that time the only criterion for the grant of a protection visa mentioned in s.36(2) of the Act which was relevant to the applicant concerned whether he was:
a non‑citizen in Australia to whom the Minister [was] satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The complementary protection provisions commenced on 24 March 2012, following passage of the Migration Amendment (Complementary Protection) Act 2011. At the time the Tribunal made its decision on the applicant’s first protection visa application on 8 May 2012, s.36(2) relevantly provided:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) to 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; or
…
Section 48A
Section 48A of the Act prevents repetitious applications for a protection visa. It was amended in 2012 to reflect the introduction of the complementary protection provisions.
At the time the applicant made his first protection visa application, s.48A relevantly provided:
48A Non‑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
…
Since 24 March 2012, that section has relevantly provided:
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 mentioned in paragraph 36(2)(a), (aa), (b) or (c); and
…
It was the latter version of s.48A which applied at the time the applicant lodged his second protection visa application on 18 September 2013.
Section 48B of the Act has no present relevance to the applicant.
Section 415
Section 415 of the Act relevantly provides:
415 Powers of Refugee Review Tribunal
(1)The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d)set the decision aside and substitute a new decision.
…
Background facts
First protection visa application
In his first protection visa application the applicant claimed that he did not want to return to Tonga because:
a)he had left that country when he was five years old and knew nothing about it;
b)he did not have any close family or friends there;
c)he would not know how to obtain a job or accommodation and it would be next to impossible for him to survive there; and
d)he would be looked down upon as an outsider because he would have been “kicked out of” Australia and would be an easy target.
In response to a question put to him during his interview with the delegate on 19 January 2012, the applicant said that his claims did not fall under any of the grounds in the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
As noted earlier, on 13 February 2012 the delegate refused the applicant’s first application for a protection visa following which the applicant sought a review of that decision with the Tribunal. The applicant was invited to attend a hearing before the Tribunal but did not attend. In reaching its 8 May 2012 decision to affirm the delegate’s decision, the Tribunal found that the applicant’s claims were not sufficiently detailed for it to be able to establish the relevant facts, with the result that it was unable to be satisfied that any of his claims were true. The Tribunal was not satisfied that the applicant faced a real chance of persecution if he returned to Tonga or that he had a well-founded fear of persecution for a Convention reason. As it could not be satisfied that the applicant’s claims were true, the Tribunal was also not satisfied that there were substantial grounds for believing that there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of him being removed to Tonga.
Second protection visa application
In his second protection visa application the applicant claimed that:
a)his mother had left Tonga with him and his older brother to escape his violent, abusive and alcoholic father;
b)he feared reprisal attacks from his father’s family. They were violent and hated his mother, his brother and him for leaving Tonga and for telling people about his father’s violence. His mother, his brother and he had also told people that his father’s family were cowards for not intervening with his father on their behalf which had brought great shame upon his father’s family. In Tongan culture, the punishment for bringing shame upon a family was a violent beating which often resulted in death; and
c)his wife’s father had promised her hand in marriage to another man but his wife had chosen to marry him instead. He feared that that man’s family would seek revenge because they would think he had shamed them by marrying his wife.
Proceedings in this Court
In his application commencing this proceeding the application alleged:
1.The Minister erred by finding pursuant to s. 36(2)(A)(aa) [sic] of the Migration Act that My application for Protection Visa is invalided [sic]. Because My application is a valid application for Protection Visa under the Complementary Protection legislation.
2. Particulars
My application for Protection visa on the grounds and basis of my wife and family member is the first time I have applied under this provision of Section 36(2)(aa) of the Migration Act. Mt [sic] application is a valid application.
Consideration
In SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235 the Full Court of the Federal Court considered the proper construction of s.48A and whether, in the circumstances of that case, it applied to protection visa applications under the complementary protection criterion contained in s.36(2)(aa). The Full Court held that if an applicant’s initial protection visa application has not been considered by reference to the complementary protection provisions of the Act because they were not in force at the time of application and decision, the applicant is not prevented by s.48A from bringing a further protection visa application which relies on those complementary protection obligations. In that case, the applicant’s first application and its refusal, including a review by the Tribunal, occurred before the introduction of the complementary protection criterion on 24 March 2012 while his second application was not lodged until after that date.
In concluding that s.48A did not preclude SZGIZ from making a further protection visa application if it relied on a criterion which had not been considered in the context of his first application, the Full Court said:
… the use of the adjective “further” in s 48A(1) in the context of the phrase “further application for a protection visa” strongly indicates that the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa. …
A construction of s 48A which confines its operation to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) also accords with common sense. … (at [36] and [38]) (emphasis in original)
In this case, the protection visa application of 21 December 2011 was made by the applicant and refused by the delegate before 24 March 2011 and although the terms of the delegate’s decision and the reasons given for it were not in evidence, I infer that they were limited to determining whether the applicant had a well-founded fear of persecution for a Convention reason and did not include any reference to the complementary protection criterion. As SZGIZ had done, the applicant sought review of the delegate’s decision but, whereas in SZGIZ the Tribunal’s review predated 24 March 2012 and thus proceeded by reference only to the Convention criterion, in this case the Tribunal’s review occurred after 24 March 2012 and thus by reference to both the Convention criterion and the complementary protection criterion.
Noting this difference between the facts of this case and those of SZGIZ, the Minister observed that a person who makes an application for a protection visa under one criterion in s.36 may, before the application’s final determination, change the basis of that application: SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 and SZOVB v Minister for Immigration & Citizenship (2011) 125 ALD 38. He submitted in this connection that, given that the first application raised matters which arguably satisfied the test of “significant harm” for the purposes of s.36(2)(aa) and that the Tribunal had in fact considered the first application by reference to the complementary protection criterion, the applicant should be taken to have changed the basis of his application to include a claim based on that criterion.
However, the evidence does not support a conclusion that the applicant did change the nature of his first application. Also, the Tribunal considered whether the applicant satisfied the complementary protection criterion, not because the applicant was making such a claim, but because it was obliged to consider that issue in the proper exercise of its jurisdiction. I am therefore not persuaded that the applicant’s first application for a protection visa was made by reference to the complementary protection criterion or that his first and second protection visa applications were based on the same criterion. The first was based on s.36(2)(a) and the second was based on s.36(2)(aa). For these reasons, I find that the second application was not a “further application for a protection visa” of the sort referred to in s.48A(1) and further find that it was a valid application for a protection visa.
In any event, I am also not persuaded that, in this case, the Tribunal’s involvement in the first application was a matter of any significance for the purposes of s.48A. Section 48A(1) talks of applications for protection visas which have been refused, whether or not they have been finally determined, the latter words presumably being a reference to the possibility that a refusal by a ministerial delegate may be reviewed by the Tribunal. It therefore appears to be that, from the point that an application for a protection visa is refused, the applicant in question is barred from making another such application while he or she remains in the migration zone. Consequently, in the context of a refusal made by a ministerial delegate, it is irrelevant for the purposes of s.48A that the Tribunal subsequently affirms the refusal because the s.48A bar will already be in place by virtue of the delegate’s decision. In such circumstances, the claim which is material to the engagement of s.48A is the one made in the application refused by the delegate, not whatever claims may have been considered by the Tribunal. In any event, a Tribunal affirmation of a delegate’s decision to refuse a visa is not itself a refusal but only a confirmation or ratification of the original decision, which is left undisturbed.
For those reasons, a Tribunal affirmation of a delegate’s refusal of an application for a protection visa is not material for the purposes of s.48A.
In the context of this case that finding leads to the conclusion that, even if the applicant had changed the nature of his application when he went before the Tribunal, that would be of no relevant significance because the claim on which the s.48A bar was operative was the one considered by the delegate, namely the one which relied only on the Convention-based criterion in s.36(2)(a) of the Act. As noted earlier, because the applicant’s second application did not engage that provision, but relied instead on the complementary protection criterion in s.36(2)(aa), it was not subject to the s.48A bar on repetitious protection visa applications and was a valid application.
Conclusion
For these reasons, a declaration will be made that the applicant’s application for a protection visa lodged on 18 September 2013 was not invalid under s.48A of the Act. Additionally, the Minister will be ordered to consider and determine that application according to law.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 April 2014
7
2
2