SZRTN v Minister for Immigration
[2014] FCCA 835
•24 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRTN v MINISTER FOR IMMIGRATION | [2014] FCCA 835 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| SZGIZ v Minister for Immigration [2013] FCAFC 71 SZRTN v Minister for Immigration & Anor [2013] FCCA 583 SZRTN v Minister for Immigration [2013] FCA 1156 |
| Applicant: | SZRTN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3270 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms M Stone DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3270 of 2013
| SZRTN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 31 December 2013, seeking, relevantly, a declaration that a protection visa application made by the applicant on 23 December 2013, is not invalid and is not barred by s.48A of the Migration Act 1958 (Cth) (Migration Act). The application also seeks an injunction restraining the Minister from removing the applicant from Australia. The applicant is currently in immigration detention. He has lived in Australia for most of his life. He has previously made a protection visa application which was refused both by the Minister’s delegate and on review, by the Refugee Review Tribunal. That decision was made on 10 August 2012.
The applicant sought review of that decision in this Court and was unsuccessful[1]. He was also unsuccessful on appeal in the Federal Court[2].
[1] SZRTN v Minister for Immigration & Anor [2013] FCCA 583
[2] SZRTN v Minister for Immigration [2013] FCA 1156
The applicant relies upon affidavits made by him filed on 26 March 2014 and 31 December 2013. I received those affidavits in part as assertions of fact and in part as submissions. I also gave leave for the applicant to file in court a written outline of submissions to which he addressed orally. The Minister relies upon the affidavit of Michelle Elizabeth Stone made on 20 February 2014. I received as an exhibit the previous Tribunal decision.
The applicant, in his submissions, sought to take advantage of the decision of the Full Federal Court in SZGIZ v Minister for Immigration[3]. The Court in that case was dealing with circumstances in which an applicant made a protection visa application, which was determined prior to the introduction of the complementary protection criterion in March 2012. The Court found that the applicant was not barred in those circumstances by s.48A from making a second protection visa application limited to the complementary protection criterion.
[3] [2013] FCAFC 71
Very recently, this court in SZRNJ v Minister for Immigration & Anor[4] extended that reasoning somewhat to a circumstance in which the applicant applied for protection visa and obtained the decision of the Minister’s delegate prior to the introduction of the complementary protection criterion and made no complementary protection claim before the Tribunal on review. It appears that in that case, the applicant in fact did not actively participate in the review.
[4] [2014] FCCA 782
This applicant’s circumstances are quite different. It was apparent from his first protection visa application that there was no serious issue of him requiring protection as a refugee. He sought protection in particular by reliance upon the complementary protection criterion and the decisions made reflected that. He can, therefore, take no comfort either from the decision of the Full Federal Court or this Court.
The applicant explained to me that his circumstances had changed because he has now married an Australian citizen and has a daughter who apparently is also an Australian citizen. He considers that both he and his family will suffer harm if he is removed to his home country of Samoa.
It may well be traumatic for the applicant to be separated from his family. That consideration alone, however, cannot support the proposition that the applicant can avoid the operation of s.48A of the Migration Act. The appropriate course is for him to seek the exercise of the Minister’s discretion to permit a second application pursuant to s.48B.
Correspondence sent to the applicant by the Minister’s Department on 23 December 2013 evidencing the decision subject to review indicates that the applicant requested that the Department not deal with the matter pursuant to s.48B, presumably because he wanted to test the legal issue concerning the operation of s.48A.
A further option for the applicant would be to invite ministerial consideration of the humanitarian considerations in this case. That is, of course, something over which the Court has no influence.
The applicant has no arguable case of error on the part of the Minister’s department in acting pursuant to s.48A. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,400. That is slightly below the scale amount. The applicant did not wish to be heard on the question of costs.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 April 2014
63
3
3