SZRUM v Minister for Immigration

[2018] FCCA 534

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 534

Catchwords:
MIGRATION – Judicial review of rejection by decision by Administrative Appeals Tribunal affirming decision of delegate of Minister for Immigration not to grant protection visa – applicant claims the delegate and Tribunal had no jurisdiction to consider his application for protection because he used an invalid form of application – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.69

Applicant: SZRUM

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1865 of 2016

Judgment of: Judge Manousaridis

Hearing date: 22 September 2017

Date of Last Submission: 22 September 2017

Delivered at: Sydney

Delivered on: 9 March 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Adrian Joel & Co.

Solicitors for the First Respondent: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1865 of 2016

SZRUM

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). The sole ground of review is that the Tribunal failed to consider whether the application for a Protection visa that was considered by the delegate was one that had been validly made.

2. The applicant submits that his application for a Protection visa was not validly made because the form the applicant used to make his application was not the form that the relevant legislative provisions required to be used. The consequence of this submission, if correct, is that neither the delegate nor the Tribunal had jurisdiction to determine the applicant’s claims for protection.

3. The submissions in support of this ground are extensive. It is unnecessary, however, for me to set out or consider these submissions. At the time of the hearing before me, a number of judges of this Court had considered and rejected the ground and the submissions that were advanced in support of the ground. Counsel for the applicant accepted that on the basis of these cases the ground fails. Further, after I reserved my decision, Burley J in the Federal Court determined a number of appeals in which he rejected the ground and the submissions on which the ground relied. [1] Given the judgments of Burley J, the ground on which the applicant is bound to fail.

   [1] See, for example, BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205; BLR15 v Minister for Immigration and Border Protection [2018] FCA 67; CNP16 v Minister for Immigration and Border Protection [2018] FCA 65; CDI15 v Minister for Immigration and Border Protection [2018] FCA 58

4. There is one matter that distinguishes this case from the others that have considered the ground; and that is the potential application of s.69(1) of the Migration Act 1958 (Cth) (Act) which provides:

   Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

5. Counsel for the applicant submitted there is a possibility that if the primary ground on which the applicant relies succeeds, s.69 may apply to prevent the delegate’s decision from being invalid if the ground on which the applicant relies were upheld. Counsel referred to the judgment of Gyles J in Yilmaz v Minister for Immigration and Multicultural Affairs.[2] Although recognising this Court is bound by Yilmaz, counsel formally submitted it was incorrectly decided.

   [2] [2000] FCA 906

6. Given counsel for the applicant accepts the principal ground on which he relies must fail given the judgments that have been given against it, it is not necessary for me to consider the application of s.69 of the Act on the assumption that the applicant’s ground were to succeed.

7. I propose to order that the application be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 March 2018