SZRSN v Minister for Immigration and Border Protection

[2014] FCA 527

FEDERAL COURT OF AUSTRALIA

SZRSN v Minister for Immigration and Border Protection

[2014] FCA 527

Citation:	SZRSN v Minister for Immigration and Border Protection [2014] FCA 527
Appeal from:	SZRSN v Minister for Immigration [2014] FCCA 557
Parties:	SZRSN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number:	NSD 337 of 2014
Judge:	RARES J
Date of judgment:	5 May 2014
Legislation:	Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth)
Cases cited:	Bienstein v Bienstein (2003) 195 ALR 225 applied Re Luck (2003) 203 ALR 1 applied SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 distinguished SZRSN v Minister for Immigration [2013] FMCA 78 referred to SZRSN v Minister for Immigration [2014] FCCA 557 referred to
Date of hearing:	5 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	23
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 337 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	SZRSN Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	RARES J
DATE OF ORDER:	5 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 337 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	SZRSN Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	RARES J
DATE:	5 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of the Federal Circuit Court dismissing an application to that Court for review of a decision made by a delegate of the Minister on 15 January 2014 (the delegate’s decision) that the applicant’s application for a protection visa lodged on that day was not a valid application by reason of s 48A of the Migration Act 1958 (Cth): SZRSN v Minister for Immigration [2014] FCCA 557.

   Background

2. The matter came before the Federal Circuit Court on the first court date of 18 March 2014. Judge Manousaridis decided to hear the Minister’s application that the proceedings be summarily dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provided that, at the hearing of an application for an order to show cause, the Court could dismiss the proceedings if it were not satisfied that the applicant’s application raised an arguable case for relief. His Honour decided that the application did not raise an arguable case for relief because the applicant’s claim for complementary protection within the meaning of s 36(2)(aa) of the Act, the subject of the delegate’s decision, had been already refused by the decision of the Refugee Review Tribunal given on 30 June 2012.

3. In earlier proceedings brought by the applicant challenging the Tribunal’s decision, Driver FM had held that the Tribunal had considered and decided, in the course of rejecting his claims that Australia had protection obligations to him under the Refugees Convention as amended by the Refugees Protocol within the meaning of s 36(2)(a), that Australia did not have protection obligations in respect of him on the complementary protection ground in s 36(2)(aa): SZRSN v Minister for Immigration [2013] FMCA 78 at [67].

   Background

4. The applicant is a citizen of New Zealand.  He came here with his mother and siblings when aged 11 in 1995, and he became entitled to a special category visa entitling him to residency.  The applicant subsequently engaged in criminal activities that ultimately resulted in his visa being cancelled on character grounds under s 501 of the Act.  He unsuccessfully applied to, first, the Administrative Appeals Tribunal, and then this Court, for review of those decisions, following which he made his initial application for a protection visa in 2012.

5. In the course of dealing with the applicant’s personal circumstances, the Refugee Review Tribunal found that the applicant and his then partner were working on their relationship, and that she needed him to help her with the care of his three children, two twins born in 2004 and a daughter born in 2006.  The applicant also had two stepchildren who, in 2012, were under three years of age.  The applicant had been in prison for some time prior to the proceedings in the Tribunal, and then was held in immigration detention on becoming eligible for parole.  He claimed not to have been in contact with his father since he came to Australia.

6. However, the Tribunal was not satisfied about his evidence about his relationship with his father.  It accepted the applicant’s evidence that one of his twin children had been diagnosed with AD-HD and his youngest daughter with cerebral palsy.  It also found there was no real chance of serious harm to the applicant from his father or his family were he to be returned to New Zealand. 

7. The Tribunal noted that, although he claimed that he did not have any friends in New Zealand, that was not a Convention related claim.  It found that there was no real chance of him suffering any discrimination in respect of his employment because he did not have a criminal record in New Zealand, albeit he had one here, and that, also, he would be able to find appropriate accommodation there.  It found that any other harm which the applicant had claimed might befall him in New Zealand was simply harm of a kind that would affect citizens in New Zealand generally, and that he was not exposed to any such harm in a way that would amount to found any Convention or other claim that Australia owed him protection obligations under s 36(2)(a) or (aa).  It found that he did not genuinely fear that he would suffer serious harm in New Zealand or face any real chance of serious harm there.  The Tribunal did refer the applicant’s case to the Department for consideration under s 417 of the Act as to whether the Minister should exercise his power to substitute a more favourable decision than that at which the Tribunal had arrived.

8. The Tribunal said that it had considered whether the applicant might meet the alternative criterion for complementary protection and, having done so, was not satisfied that the information before it was sufficient to establish that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there was a risk that he would suffer significant harm within the meaning of s 36(2A) of the Act. In the end, the Tribunal found that it was not satisfied that the applicant was a person to whom Australia had protection obligations under s 36(2)(aa).

9. When the matter came before Driver FM, his Honour, of his own motion, raised the issue as to whether the Tribunal’s findings in relation to Australia’s complementary protection obligations under s 36(2)(aa) had sufficiently addressed the issue concerning the consequence of the separation of the applicant from his children. His Honour reserved his decision and gave both parties leave to make further submissions, but the applicant did not take that opportunity up: see SZSRN [2013] FMCA 78 at [21].

10. Driver FM considered whether the forced separation of the applicant from his children, were he removed from Australia, required express consideration by the Tribunal under the complementary protection criterion.  He noted that the Tribunal’s consideration of that ground had been brief.  He also noted that the issue of separation had previously been considered by the Minister and the Administrative Appeals Tribunal when dealing with the decision to cancel the applicant’s residency visa under s 501 of the Act, and that this Court had found no reviewable legal error by the Tribunal in its decision to refuse that application.  However, his Honour accepted that that did not conclude this question on the applicant’s subsequent protection visa application.  He dealt at length with whether forced separation from children residing in Australia, or the ongoing effect of that separation, could constitute “significant harm” and, in particular, “degrading treatment” within the meaning of s 36(2A).  His Honour held that it did not, and accordingly decided that the application for review should be rejected.

    The proceedings in the Court below

11. The delegate’s decision referred to the earlier rejection of the applicant’s protection visa application and the preclusion, brought about by s 48A, from any further application being made by a person who had earlier been refused a protection visa and had not left Australia since.

12. The applicant’s application in the Court below relied on ss 36(2)(aa), (b) and (c) for complementary protection. The applicant based that claim on the allegedly significant harm that he would suffer were he to be removed from Australia because his partner, children, mother, brothers, and entire family, were Australian permanent residents and citizens. He claimed he had never been assessed under the complementary protection ground in respect of his family members.

13. Judge Manousaridis held that the applicant had no arguable case for relief on the basis that the application rejected by the delegate on 15 January 2014 was not materially different from his previous application for a protection visa. His Honour found that there was no arguable case for contending that the Tribunal had failed to consider, or had not considered, any claim for complementary protection based on the applicant being separated from his family. His Honour referred to Driver FM’s earlier decision, and his finding that such a separation did not constitute significant harm within the meaning of s 36(2A). For those reasons, his Honour held that the applicant could not demonstrate an arguable case that his application for a protection visa lodged on 15 January 2014 was different, or materially different, from his previous application, and therefore he had no basis to argue that s 48A could not prevent him lodging the most recent application.

    This application for leave to appeal

14. In his draft notice of appeal, the applicant argued that the latter finding was in error, and that his Honour should have upheld the contentions made in his application to the Court below.  He also argued that his Honour erred in dismissing the application by reason of the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

15. The applicant argued his case today on the basis that there was a material difference between the application for a visa that he had made on 15 January 2014 and the earlier one, on the basis that I have outlined.  He said that he had not been able fully to explain himself to his Honour because of his lack of legal knowledge and the difficulties which a person in his position would have in grappling with the complexities of the legislation and legal criteria.  He said that he would suffer significant harm because, if he was returned to New Zealand, he would not be here for his children and that he had changed his life since his imprisonment.  He said that the children’s mother was no longer with them, and that they were under the care of his brother, that his whole family was here, and that he had nothing in New Zealand, and that he did not get on with his father.  He wanted now to be with his children. 

    Consideration

16. All of those matters may be understandable from a human point of view.  Unfortunately for the applicant, they are not matters of a kind that would suggest that Judge Manousaridis or the delegate made any jurisdictional error that would authorise the court to find that the application made on 15 January 2014 for a protection visa was, in any way, materially different from the earlier application for a protection visa that had been refused by the Tribunal in 2012. 

17. Judge Manousaridis’ decision was interlocutory, and the applicant requires leave to appeal:  Re Luck (2003) 203 ALR 1 at 3-4 [7]-[10] per McHugh ACJ, Gummow and Heydon JJ. The criteria for leave to appeal are well established. First, an applicant must establish the decision in question is attended with sufficient doubt to warrant the grant of leave to appeal and, secondly, the applicant must also show that substantial injustice will result from a refusal of that leave:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

18. I have given serious consideration to all the things that the applicant has said to me today as to why Judge Manousaridis’ decision was in error, but I am not able to ascertain any such error. The only basis on which the applicant could claim complementary protection could have been under s 36(2)(aa). Neither of ss 36(2)(b) or (c) could apply to him because none of his family members held a protection visa, and therefore the criteria in subparagraphs 36(2)(b)(ii) and (c)(ii) could not possibly be met.

19. Moreover, the decision of Driver FM determined that, as between the applicant and the Minister, his claim for a protection visa rejected by the Tribunal on 30 June 2012 did deal with whether Australia’s complementary protection obligations under s 36(2)(aa) applied in respect of the applicant. Driver FM found that the forced separation of the applicant from his children, were he to be returned to New Zealand, did not constitute significant harm for the purposes of s 36(2A).

20. In my opinion, that is in substance the basis of the application for a protection visa made and rejected on 15 January 2014 and considered by Judge Manousaridis.  In those circumstances, his Honour was correct to find that there was no arguable basis on which the application to review the delegate’s decision could be successful.

21. The decision of the Full Court in SZGIZ (2012) 212 FCR 235 dealt with a different factual context. There, the Refugee Review Tribunal had given a decision in 2005, when the complementary protection criterion in s 36(2)(aa) was not part of the Act. The Full Court held that SZGIZ was entitled to make a fresh application without being barred under s 48A because he had never had a claim considered within the complementary protection criterion subsequently delineated in s 36(2)(aa). As I have said, Driver FM found, and the applicant is not in a position to challenge in these proceedings, that he had made such a claim and it had been considered by the Tribunal in 2012. The Tribunal’s decision was that Australia did not owe complementary protection obligations to the applicant by reason of the forced separation he had his children would experience were he to be removed to New Zealand. In those circumstances, there is no basis on which an appeal to this Court could have any prospect of success.

22. In my opinion, there is no reason to doubt the correctness of the decision of Judge Manousaridis.  Indeed, it is plainly correct.  Accordingly, the applicant could not succeed in obtaining a grant of leave to appeal.

    Conclusion

23. I will order that the application for leave to appeal be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated: 21 May 2014