SZSIJ v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 802
Federal Circuit and Family Court of Australia
(DIVISION 2)
SZSIJ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 802
File number(s): SYG 1780 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 4 October 2022 Catchwords: PRACTICE AND PROCEDURE – Migration – application for summary dismissal of a proceeding in which applicant claims remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision that because of s 48A of that Act the applicants application for a protection visa was not valid – proceeding summarily dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Migration Act 1958 (Cth) ss 48A, 48B, 476
Cases cited: Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 Division: General Number of paragraphs: 21 Date of hearing: 27 September 2022 Place: Sydney The Applicants: First applicant in person, and as litigation guardian for the second applicant, assisted by an interpreter Solicitor for the Respondent: Mr S Kovacs of Clayton Utz ORDERS
SYG 1780 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZSIJ
First Applicant
SZSIL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
4 OCTOBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the proceeding is dismissed.
2.The first applicant pay the respondent’s costs set in the amount of $3,667.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
The respondent (Minister) applies for an order under r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), and s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) that this proceeding be dismissed. In this proceeding the applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by an officer of the Department of Home Affairs (Department) to reject what he considered to be an invalid application for protection visas the applicants purportedly made on 26 June 2018.
background
The first applicant and her son, the second applicant, are citizens of the People’s Republic of China.
The first applicant arrived in Australia in March 2008 holding a student visa which was valid until 15 March 2012. The second applicant was born in Australia in April 2011.
On 26 September 2011 the first and second applicants, and the first applicant’s husband (Husband), each applied for a Protection (Class XA) visa. The second applicant and the Husband applied for a protection visa as members of the first applicant’s family unit. In January 2012 a delegate of the Minister refused the application for protection visas. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision in November 2012, and, on 15 May 2013, this Court dismissed an application for judicial review of the RRT’s decision.
In May 2014 the first applicant applied for a protection visa on behalf of the second applicant. A delegate of the Minister rejected that application in February 2015, and in October 2016 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. An application for judicial review of the Tribunal’s decision was dismissed by this Court on 22 June 2018.
On 26 June 2018 the applicants applied for Protection visas. By letter dated 26 June 2018 an officer of the Department informed the applicants that their application is not valid. The letter stated:
A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.
The Minister has the power under section 48B of the Migration Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.
appLication
The applicants rely on two sets of grounds. The first appear before the words “Grounds of application”, and are as follows (first set of grounds):
1Department of Home Affairs treated my application as invalid application which is not fair to me.
2Department of Home Affairs has mistakenly published my personal information and many other people in the public which made me feeling strong fears of return to my home town. I will definitely be persecuted by Chinese government if I return.
3Department of Home Affairs should accept my protection application and protect me to stay in Australia permanently since it is their big mistake and they should be responsible for it.
The second set of grounds appears under the words “Grounds of application”, and are as follows (second set of grounds):
1Being a convert of Jehovah witness, I will be persecuted if I am forced to return
2Department of Home Affairs made mistake to release my personal information.
3[M]y second protection visa application should not be treated as invalid application and I wish the court to give me fair decision.
At the hearing I explained to the first applicant, who is not legally represented, but who was assisted by an interpreter, the purpose of the hearing, and the procedure that will be followed. When I asked the first applicant whether she wished to rely on any evidence, the first applicant began to make statements which could only have been relevant to her claim for protection. I explained to the first applicant that this Court does not have jurisdiction to consider her application for protection.
The applicant then asked whether the Department had found the application for a visa was not valid because of the evidence the first applicant had given. I said that the Minister’s submission is that s 48A of the Act prevented the applicants from making another application for a protection visa because they had each previously applied for the grant of a protection visa that had been refused; and, although s 48B conferred on the Minister a discretion to allow an applicant who had been previously refused the grant of a protection visa to apply again, the Minister submits he was under no duty to consider whether to exercise his discretion. The first applicant made no further submissions.
determination
The determination of this application turn on s 48A(1) of the Act, which provides:
Subject to s 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, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.
Also relevant is s 48A(1AA) of the Act:
Subject to section48B, if:
(a) an application for a protection visa is made on a non‑citizen’s behalf while the non‑citizen is in the migration zone; and
(b) the grant of the visa has been refused, whether or not:
(i) the application has been finally determined; or
(ii) the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;
the non‑citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.
Subsection 48B(1) of the Act provides:
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
In Minister for Immigration and Border Protection v SZSSJ, the High Court said the following in relation to the power conferred by s 48B(1) of the Act:[1]
[Section 48B] confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[1] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, at [53]
There is no question that, while in the migration zone, the first applicant applied for, but was refused, the grant of a protection visa; and there is no question that the first applicant applied on behalf of the second applicant, while he was in the migration zone, for a protection visa, and that application was also refused. There is also no question that as at 26 June 2018 the applicants were in the migration zone. It follows, therefore, that s 48A(1) of the Act applied to the first applicant, and s 48A(1AA) applied to the second applicant. That means that the first applicant could not have made the application for a protection visa on her own behalf or on behalf of the second applicant as at 26 June 2018 when the applicants purported to lodge their application for Protection visas. That, in turn, means that the application for Protection visas the applicants made to the Department on 26 June 2018 is invalid.
First set of grounds
The applicants do not have any reasonable prospects of successfully prosecuting the proceeding to the extent they rely on ground 1 of the first set of grounds. The application of s 48A of the Act does not depend on the exercise of any discretion by the Minister. Whether s 48A applies depends on whether the circumstances of the case engage the terms of s 48A; and I have found that s 48A(1) and s 48A(1AA) of the Act applied to the applicants when, on 26 June 2018, the first applicant purported to lodge the application for Protection visas. The consequence is that the first applicant could not then have applied for a Protection visa, either on her own behalf, or on behalf of the second respondent. It is true that s 48B confers on the Minister a discretion to waive the application of s 48A; but, as I have already noted, that discretion is a non-compellable power, and the Minister’s not considering whether to exercise the power s 48B confers on him cannot be the subject of any legal remedy.
The applicants also do not have any reasonable prospects of successfully prosecuting the proceeding to the extent they rely on ground 2 of the first set of grounds. Even if the facts alleged in the ground were true, s 48A of the Act would still apply because the matters claimed in ground 2 of the first set of grounds are not relevant to the application of s 48A. In any event, there is no evidence the Department had mistakenly published any personal information concerning the applicants.
Finally, the applicants do not have any reasonable prospects of successfully prosecuting the proceeding to the extent they rely on ground 3 of the first set of grounds. I have found that s 48A of the Act applied to prevent the applicants from making the application for the Protection visas they purported to make on 26 June 2018 and, for that reason, the Department made no error in deciding that the application for Protection visas the applicants made on 26 June 2018 is invalid.
Second set of grounds
The applicants do not have any reasonable prospects of successfully prosecuting the proceeding to the extent they rely on any of the second set of grounds. Ground 1 does not disclose any arguable case of jurisdictional error, because it is an appeal to the merits of the first applicant’s claim for protection. Ground 2 repeats the substance of ground 2 of the first set of grounds and, for the reasons I have already given in relation to that ground, discloses no arguable case of jurisdictional error. Ground 3 of the second set of grounds asserts without any reasons that the application for a Protections visa the applicants lodged with the Department on 26 June 2018 should not be treated as invalid. For reasons I have already given, the applicants do not have any reasonable prospects of succeeding on a claim that their application for a Protection visa was not invalid.
disposition and costs
I propose to make an order under s 143(2) of the FCFC Act and r 13.13 of the GFL Rules that the proceeding be dismissed.
The Minister applied for an order that the first respondent pay the Minister’s costs, and that those costs be set in the amount of $3,667. After I explained to the first applicant that the usual order in relation to costs is that a successful party is entitled to his or her costs, the first applicant made no submission against my making the order that she pay the Minister’s costs set in the amount of $3,667. I am satisfied that the first applicant should pay the Minister’s costs, and that $3,667 is a fair indemnity for the costs the Minister incurred in applying for summary dismissal of the proceeding.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 4 October 2022
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