SZRWA v Minister for Immigration & Border Protection
[2014] FCCA 2924
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRWA v MINISTER FOR IMMIGRATION & BORDER PROTECTION | [2014] FCCA 2924 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.5, 36, 48A Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Cases Cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 |
| Applicant: | SZRWA |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1970 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 December 2014 |
| Date of Last Submission: | 5 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an Urdu interpreter. |
| Solicitor for the Respondent: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1970 of 2014
| SZRWA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 15 July 2014. The application otherwise seeks judicial review of a decision of the Refugee Review Tribunal dated 5 September 2014 (“the RRT”).
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 of the Rules provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
This is an application made by the applicant for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 15 July 2014.
On 4 November 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the ground of his application made a bare assertion that was unsupported by particulars and did not by itself disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the ground of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 21 November 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 21 November 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.
On 19 November 2014, the applicant filed an Amended Application. Those grounds of review are as follows:
“1. The Department ignored my statement which was attached to my application which was refused by the Delegate of the Minister on 2/7/2014.
2. The fresh application lodged with the Department should be treated as valid application as the Federal Court of Australia made a decision that people who were previously refused are not restricted from lodging a fresh application.
3. In my previous application SYG2165 of 2012 the Tribunal indicated that I have not provided sufficient basis in support of serious harm from political leaders and also the Tribunal misunderstood my evidence and my role as a reporter as well as the harm I fear from Hindu political leaders as well as from other fanatic Muslims such as Qaidani or Ahmadiyya.
4. The Tribunal found significant gaps about central aspects of my claim to fear harm in India but the Tribunal did not put adverse information to me and prevented me from responding to any information or material which at the time would be a reason for refusing my application.
5. I ask the Honourable Court and the Minister for Immigration and Border Protection to give me the opportunity to go ahead with this Court as I have an arguable case and I wish that the Court will have copy of all my documents and I will be given an opportunity to respond to any information and to prove that the Tribunal as well as the Department failed to take into consideration important information such as my role as a reporter. I suffered as well as my wife and children were beaten and my subjective fear of persecution is strong and genuine. I do not think that the Tribunal considered the information before it properly and failed to clarify any issue and made decision on assumption rather than on fact.”
As stated above, the application seeks judicial review of a decision of a delegate of the first respondent (“the Delegate”), dated 2 July 2014. The Delegate found that an application lodged by the applicant for a protection visa on 27 June 2014 was invalid in light of the relevant history of the applicant’s application for protection visas whilst he remained in Australia.
The applicant lodged his first protection visa application on 30 January 2012. That application was refused by a different delegate of the first respondent on 18 May 2012 and that decision was affirmed by the Refugee Review Tribunal on 5 September 2012 (“the RRT”).
On 6 May 2013, the Federal Circuit Court of Australia dismissed an application by the applicant seeking judicial review of that Tribunal’s decision. An appeal in respect of that decision was dismissed by the Federal Court on 16 August 2013. Subsequently, on 12 February 2014, special leave to appeal the Federal Court’s decision was refused by the High Court of Australia.
The applicant then lodged a second protection visa application on 27 June 2014 in circumstances where he had not departed Australia since he had made his first protection visa application.
The first respondent read the affidavit of Andras Markus, affirmed 26 November 2014 and filed on 26 November 2014. Mr Markus’ affidavit annexed the decision of the Delegate made on 18 May 2012, the decision of the RRT made on 5 September 2012, the Explanatory Memorandum in relation to the amendment of s.48A of the Migration Act 1958 (Cth) (which came into effect on 28 May 2014), a copy of the applicant’s second protection visa application lodged on 27 June 2014 and a copy of the Delegate’s decision dated 2 July 2014.
The Delegate’s decision informed the applicant that he had he had already been refused a protection visa on 18 May 2012 in respect of the protection visa application lodged by him on 30 January 2012. The Delegate informed the applicant that under s.48A of the Act, a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application, therefore, the applicant’s second protection visa application, lodged on 27 June 2014, was not a valid application.
The applicant was unrepresented before me this morning, although had the assistance of an interpreter. The applicant confirmed that he relied on the grounds of his Amended Application.
With the consent of the applicant, because of the technical nature of the case, I invited the solicitor for the first respondent to make submissions as to why it was that the first respondent opposed the applicant’s application for judicial review of the decision, dated 2 July 2014.
Mr Markus filed an outline of submissions on 26 November 2014, in which he addressed the background of the matter and the present application for review.
The only issue before this Court is whether or not the decision of the Delegate, made on 2 July 2014, that the applicant’s second protection visa application, lodged on 27 June 2014, was an invalid application and whether there was any error going to the Delegate’s jurisdiction in finding that it was not a valid application. Relevantly, s.48A of the Act requires that a non-citizen who has been refused a protection visa may not make another application for a protection visa while remaining in the migration zone. in the following terms:
“48A No further applications for protection visa after refusal or cancellation
(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 that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.”
Following the completion by Mr Markus of his submissions, the applicant was invited to say whatever he wished in response. However, the applicant declined to make any further submission.
Ground 1 of the Amended Application asserts that the Department ignored a statement made by the applicant and attached to his second protection visa application, lodged on 27 June 2014. A copy of that statement was also annexed to Mr Markus’ affidavit. It is a statement that largely restates the applicant’s claims and is not relevant to the issue of whether or not the protection visa was valid in circumstances where the applicant lodged that second protection visa application whilst still in the migration zone. For that reason, Ground 1 of the Amended Application is misconceived.
Grounds 3 and 4 of the Amended Application refer to various findings made by the RRT in its decision dated 5 September 2012. As stated above, that decision was the subject of judicial review and appealed at the Federal Court and special leave was refused by the High Court. In those circumstances, Grounds 3 and 4 are not relevant to the issue before the Court today and are not capable of demonstrating jurisdictional error in the decision of the Delegate dated 2 July 2014.
Ground 5 does not identify any error and is more in the nature of a submission and the reasons why the applicant makes the application today that he does. The applicant said that the reason he made his application was because conditions have changed in his country and, therefore, he and his family required asylum in Australia. Again, such an assertion cannot overcome the statutory impediment that the applicant faces where he makes a second protection visa application whilst remaining in the migration zone. Ground 5 is, therefore, not capable of demonstrating any error in the decision of the RRT with any prospect of success.
Ground 2 of the Amended Application asserts that the applicant’s second protection visa application, lodged on 27 June 2014, should be treated as a valid application because of a decision made by the Federal Court of Australia. The decision was not specified by the applicant either in the grounds of his application before this Court, nor did the applicant identify to this Court what that decision was.
I accept the submission of the first respondent that the case to which the applicant was referring was SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”). Relevantly, the Full Federal Court held that applications made for a protection visa in reliance on s.36(2)(a)(a) of the Act were not barred by s.48A of the Act by reference only to an earlier application made and determined prior to the commencement of the Migration Amendment (Complementary Protection) Act 2011 (Cth).
The insurmountable hurdle faced by the applicant today is that, subsequent to that decision, amendments were made to section 48A of the Act to address the issue raised in SZGIZ. The consequence was that the Migration Act was amended by the Migration Amendment Act 2014 (Cth), with effect on 28 May 2014.
As stated above, the applicant’s second protection visa application was lodged after s.48A of the Act came into effect and is, therefore, caught by the current effect of s.48A of the Act. That section prevents the applicant from lodging a second protection visa application where the earlier application for protection has been refused and the applicant remains in the migration zone.
Because this matter was set down for hearing pursuant to r.44.12 of the Rules, I make no final finding or final determination as to whether the decision of the Delegate is affected by jurisdictional error. However, for the reasons referred to above, none is apparent on the face of the Delegate’s letter notifying the applicant that his protection visa application, lodged on 27 June 2014, is invalid, and none has otherwise been identified by the applicant.
In the circumstances, I am not satisfied that the applicant’s application, lodged on 15 July 2014, or the Amended Application, filed on 19 July 2014, raise an arguable case for the relief claimed and the applicant has not today identified any other ground that raises an arguable case for the relief claimed.
In the circumstances, the proceeding before this Court commenced by way of application filed on 15 July 2014 should be dismissed pursuant to r.44.12 of the Rules with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 December 2014
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