SZRSN v Minister for Immigration
[2014] FCCA 557
•18 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRSN v MINISTER FOR IMMIGRATION | [2014] FCCA 557 |
| Catchwords: MIGRATION – Application to show cause – whether applicant has raised an arguable case for relief – no arguable case demonstrated – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.10, 44.12 |
| SZRSN v The Minister for Immigration and Citizenship (2013) FMCA 78 |
| Applicant: | SZRSN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 116 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2014 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs of the proceedings in the amount of $1,331.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 116 of 2014
| SZRSN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 15 January 2014 the applicant lodged with the respondent, the Minister, an application for a protection visa. A delegate of the Minister rejected the application on the ground it was not a valid application. The reason why the delegate claimed it was not a valid application is that the applicant had previously applied for, but had been refused, a protection visa and for that reason s.48A of the Migration Act 1958 (Cth) (Act) prevented the applicant from making another application for a protection visa. Subsection 48A(1) of the Act provides:
1) Subject to section 48B –
which I interpolate is not relevant to this application -
a non-citizen who, while in the migration zone, has made:
a) an application for a protection visa, where the grant of a 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.
There is no question that the applicant, while in the migration zone, applied for a protection visa – and I will refer to that as the “Previous Application” – and that the grant of a visa on that application was refused by a delegate of the minister. The delegate’s refusal was the subject of an application for review by the Refugee Review Tribunal (Tribunal) which affirmed the delegate’s decision on 30 June 2012.
The applicant then applied to this court for judicial review of the Tribunal’s decision but that application was dismissed in SZRSN v The Minister for Immigration and Citizenship (2013) FMCA 78. The applicant now seeks judicial review of the decision of the delegate made on 15 January 2014 rejecting the application for a visa. The ground of the application is that the application for a protection visa the applicant lodged with the Minister on 15 January 2014 is different from the Previous Application. The asserted points of difference are set out in the particulars to the ground of review set out in the application, and they are as follows:
The protection visa that I made on 15 January 2014 was made relying and on the grounds pursuant to section 36(2A)(aa)(b) and (c) of the Migration Act 1958. I made the application on the Complementary protection legislation based on the grounds of my partner and children and my mother and brothers and my entire family who are Australian Permanent Residents and Citizens. I have never before been assessed under the complementary basis of my family members.
The application came before me today as on a first court date. The Minister has applied for an order that the application be summarily dismissed under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Rules) or under rule 44.12(1)(a) of the Rules. I propose to deal with the Minister’s application under rule 44.12(1)(a) of the Rules. That rule provides that at the hearing of an application for an order to show cause, the court may dismiss the application if it is not satisfied that the application has raised an arguable case for relief.
Accordingly, the question that arises on the Minister’s application is whether the applicant has raised an arguable case for the relief he claims; and, in the context of the application that has been filed in this proceeding, the question – or at least the initial question – is whether the applicant has any arguable case that the application for a visa the applicant lodged on 15 January 2014 is materially different from the previous application. I invited the applicant to make submissions in support of the proposition that the application he lodged on 15 January 2014 was not one which he was prevented from making by s.48A of the Act.
The applicant submitted that he wanted to fight. He submitted that the system is corrupt. He also submitted that he wanted to do all he could for his kids and he would face severe difficulties if he were forced to return to New Zealand. None of these submissions address the issue that I am addressing – that is to say, whether there is any material difference between the application for a visa the applicant lodged on 15 January 2014 and the previous application.
As I say above, in the application the asserted difference is said to be that the application lodged on 15 January 2014 is based on the applicant being separated from his partner and children. That implies that the Tribunal, which considered the previous application, did not consider any claim for complementary protection based on the applicant being separated from his family. In my opinion there is no arguable basis for contending that the Tribunal did not consider such a claim.
Whether or not the Tribunal did consider such a claim is considered in some detail by Federal Magistrate Driver, as his Honour then was, in SZRSN v Minister for Immigration and Citizenship. The submission was apparently made before his Honour – or at least his Honour identified as an issue before him – that the Tribunal did not consider the applicant’s claim for complementary protection based on the applicant’s claim that he wished to remain in Australia because his children live in Australia and he needs to help his de facto wife with the care of his children. His Honour carefully examined that issue.
His Honour, after setting out the complementary provision scheme under s.36 of the Act, found that the act of removal of a person from Australia resulting in a forced separation from children residing in Australia or the ongoing effect of that separation in New Zealand does not constitute significant harm and in particular degrading treatment. His Honour concluded at paragraph 67 of his Honour’s reasons:
Accordingly, the Tribunal did not err in determining that the applicant did not meet the criteria of complementary protection. The specific findings of the Tribunal (as outlined above) provide a basis upon which to conclude that the harm claimed by the applicant was not “significant harm” within the meaning of s.36(2A) of the Migration Act for the purposes of s.36(2)(aa). There was otherwise no reason for the Tribunal to specifically address the question of whether the “forced separation” of the applicant from his children constituted such harm.
In my opinion, therefore, the applicant cannot demonstrate an arguable case that the application for a visa he lodged on 15 January 2014 is different or materially different from the previous application. The applicant therefore cannot raise an arguable case that s.48A of the Act did not prevent him from lodging the application he lodged on 15 January 2014 and that the application which he lodged was a valid application for a protection visa. I accordingly propose to dismiss the application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 March 2014
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