SZSSZ v Minister for Immigration and Border Protection
[2019] FCA 260
•28 February 2019
FEDERAL COURT OF AUSTRALIA
SZSSZ v Minister for Immigration and Border Protection [2019] FCA 260
Appeal from: Application for extension of time: SZSSZ & Anor v Minister for Immigration (No. 2) [2018] FCCA 2803 File number: NSD 1945 of 2018 Judge: ALLSOP CJ Date of judgment: 28 February 2019 Catchwords: MIGRATION – where applicants lodged third protection visa application having already been refused on two prior occasions – where request for ministerial intervention refused by Assistant Minister – where second request for ministerial intervention finalised without referral – whether primary judge erred in finding that Federal Circuit Court lacked jurisdiction over the decision not to refer – no error – application refused Legislation: Migration Act 1958 (Cth) ss 48A, 48B, 417
Federal Court Rules 2011 (Cth) r 44.12
Cases cited: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Date of hearing: 28 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicants: The applicants appeared in person with the assistance of an interpreter Solicitor for the Respondent: A Moss of Clayton Utz ORDERS
NSD 1945 of 2018 BETWEEN: SZSSZ
First Applicant
SZSTA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
28 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve an application for leave to appeal is refused with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This is an application for an extension of time and leave to appeal against orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of an officer of the Department of Immigration and Border Protection dated 8 November 2017, which determined that the applicants’ protection visa application was invalid because they had previously made two such applications.
Leave to appeal is required because the dismissal was pursuant to r 44.12(1)(a) of the Federal Court Rules 2011 (Cth), which was interlocutory in nature.
The application was 8 days out of time and, therefore, an extension of time for leave to appeal is required. The respondent opposes the grant of an extension of time and leave to appeal for two reasons: a lack of adequate explanation and a failure to demonstrate that the primary judgment was attended by sufficient error.
Procedural history
The procedural history goes back a long way. The applicants are both Indonesian citizens. The first applicant lodged a protection visa application in October 1995, which included his wife, the second applicant, as a member of his family unit. The applicants were refused protection visas by a delegate of the Minister in January 1996. The then Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 23 October 1997.
The first applicant lodged a second protection visa application some years later, in March 2013. The second applicant was again included as a member of the first applicant’s family. This application was deemed to be valid in the light of the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, but was refused by a delegate of the Minister on 28 April 2014, which decision was affirmed by the RRT, differently constituted, in March 2015. On 7 August 2017, a judge of the Federal Circuit Court of Australia dismissed an application for judicial review of the RRT’s 25 March 2015 decision: see SZSSZ & Anor v Minister for Immigration & Anor [2017] FCCA 1845.
The RRT, however, on 25 March 2015, referred the applicants’ case to the Ministerial Intervention Unit, with the first applicant having requested that his case be referred to the Minister for personal intervention by exercising a discretionary power under s 417 of the Migration Act 1958 (Cth) (the Act). The applicants were informed on 19 September 2016 that the Assistant Minister had personally considered their case and decided not to exercise the power under s 417.
A second request was made by the applicants to the Minister on 5 September 2017, stating that the Ministerial Intervention Unit was wrong not to refer their case to him, and requesting personal consideration of their case. The applicants were advised by the Department on 8 September 2017 that their second request had been finalised without referral, having been assessed against the Minister’s guidelines on ministerial powers (s351, s 417, s501J) and found not to meet the guidelines for referral.
This led to the lodgement, by the first applicant, of a third protection visa application on 14 September 2017, with the second applicant included as a member of the family unit, as before. This application was deemed to be invalid by reason of the statutory bar in s 48A of the Act.
On 24 November 2017, the applicants were advised by the Department that a request for ministerial intervention under s 48B of the Act had been finalised without referral, having been assessed against the Minister’s Guidelines – s48A cases and requests for s48B Ministerial intervention and found not to meet the Guidelines.
The Federal Circuit Court proceedings
The applicants then applied to the Federal Circuit Court on 20 November 2017. They raised three matters in that application, as follows:
1.The Department of Immigration should not treat our application as invalid because we have a strong fear to return to Indonesia and the Refugee Review Tribunal now known as Administrative Appeals Tribunal recommended ministerial intervention on 25 March 2015 and the matter wrongly was not referred to the Minister.
2.We have been in Australia since 11/12/1994 and 20 August 1995 and have suffered in Indonesia and our letter of 5 September 2017 a copy of which we attach was not even referred to the Minister.
3.The Minister failed to exercise his discretion under s48B to allow us to lodge a refugee application again as we both have a fear of harm to return back to Indonesia.
At [15]–[24] of the primary judge’s reasons, each of these three grounds was addressed in turn, with none considered a case for jurisdictional error.
As to the first ground, the primary judge, at [15]–[17], expressed the view that the Department officer’s determination of invalidity was correct because, subject to s 48B, s 48A(1) acted as a bar to any further protection visa applications for as long as the applicants remained in the migration zone. The Minister had not acted pursuant to s 48B to lift the bar imposed by s 48A and the Department officer accordingly had no authority to consider the applicants’ claim for protection.
The statement that the applicants’ case was wrongly not referred to the Minister after the 25 March 2015 request for ministerial intervention was rejected at [18]–[19], on three bases: first, the Assistant Minister was “the Minister” for the purposes of the Act; secondly, the Assistant Minister, pursuant to s 476(2)(d), the non-exercise of the s 417 power was not a privative clause decision pursuant to s 474(7)(a) of the Act; and thirdly, the power under s 417 is non-compellable such that, in any event, the Federal Circuit Court could not grant relief in respect of the decision not to exercise the power.
On the second ground, that the applicants arrived in Australia in 1994–1995 and have suffered in Indonesia, and that the letter of September 2017 was not referred to the Minister, the primary judge concluded at [20]–[21] that the Federal Circuit Court did not have jurisdiction in relation to the Department’s procedural decision not to refer the applicants’ case for ministerial intervention because the statute was never engaged.
The primary judge also found that, since the Minister had not made a personal procedural decision to consider whether to make a substantive decision, the process undertaken by the Department to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness: see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [54].
The third ground also involved the finalisation of the applicants’ request without referral. At [22]–[23], the primary judge determined that the Federal Circuit Court did not have jurisdiction in relation to that decision either, for the same reasons as those provided in relation to the second ground.
Draft Notice of Appeal
The applicants raised two grounds of appeal in their draft notice of appeal, as follows:
1.His Honour was very sympathetic and did not publish his judgment yet.
2.His Honour failed to consider that the Minister’s intervention under section 48B of the Migration Act is a failure from the part of the Minster and a denial of fairness and natural justice because the Minister’s Office ignored the recommendation of the then Refugee Review Tribunal Member and ignored that the second application for refugee lodged with the Department on 15 September 2017 should be a valid application and not treated as invalid application.
The applicants have submitted written submissions in support of their application. I reproduce those reasons in full here below:
1.His Honour Judge Driver was sympathetic with our situation but dismissed our application on 27 September 2018…
2.The Department treated our application as invalid even though the Tribunal previously referred our case for Ministerial Intervention Unit…
3.…the Minister’s representative refused to intervene which is a matter to be considered as unfair and unreasonable.
4.We did not seek judicial review of the refusal of our refugee application because we strongly believe and accepted that the honourable Minister would intervene in our case as recommended by the Tribunal.
5.We do believe that the honourable Minister’s staff/representative, acted against the ministerial intervention guidelines. And we also believe that the Department failed to consider to intervene under s48B which means to exercise the right to lodge fresh application which should be treated as valid.
6.We ask this honourable Court to consider our fear of harm in Indonesia and exercise discretion and allow our matter to be returned to the Department to lift the bar and consider the fresh application which was lodged on 15 September 2017…
7.The Member of the Tribunal accepted our evidence of the harassment we have experienced in Indonesia to be credible and referred the matter to the Minister and the Minister’s failure to intervene is a breach of natural justice and fairness and it is an error of law when ministerial intervention ignore the referral by the Tribunal and we were not aware that judicial review of the Tribunal’s decision was available to us and we had been strongly induced to believe that the Tribunal regarded the matter to be referred under s417 as genuine and justifiable.
8.We finally ask the honourable Court to protect our dignity and quash the decision of the Department because we are genuine refugees and the Department to accept our application as valid.
9.If the honourable Court does not have sufficient legal grounds we ask that the Court again refer our matter to Minister’s intervention.
(Court book references omitted.)
The Minister made three main submissions: first, there was no adequate explanation for the delay; secondly, the applicants have failed to identify any arguable error; and thirdly, any prospective appeal does not have any reasonable prospects of success.
In accordance with the justice of the case, given the short period of delay, the submissions on delay need not be repeated. If there be a sufficient ground to identify error and to identify a likely or possible success on appeal, I would not consider the delay so long as to require further explanation.
In relation to the failure to identify any arguable error, the Minister submitted that the draft grounds of appeal are deficient because they are bare assertions of error without any particularity, and are at such a high degree of generality as to be meaningless. The first proposed ground merely refers to the non-publication of the judgment and asserts that the primary judge was very sympathetic. The second proposed ground fails to address the primary judge’s findings that the Federal Circuit Court lacked jurisdiction to entertain the applicants’ complaints about the non-exercise of the Minister’ discretion and that, in any event, the Department had referred the matter to the Minister, who had personally considered their case and decided not to intervene.
The Minister submitted that, notwithstanding the two previous arguments, the applications should also be refused on the basis that the primary judge correctly concluded that the applicants’ third protection visa application was barred by s 48A. As the first applicant’s previous two applications each included the second applicant, and had both been refused, ss 48A(1) and 48A(1AA) applied to them both.
Whilst not raised by the grounds of appeal, the Minister also submitted that the primary judge was correct to conclude that the Federal Circuit Court lacked jurisdiction to address the grounds regarding the Department’s decision not to refer the applicants’ requests for ministerial intervention.
Consideration
The later decision of the Department not to refer can be contrasted with the earlier decision of the Assistant Minister. The decision of the Department not to refer was not a decision under an enactment and, pursuant to the High Court’s decision in SZSSJ, was not a matter which the Federal Circuit Court had jurisdiction upon. Whatever may be the merits of the underlying complaints of the applicants as to their twice refusal of protection by delegates and the RRT, there has been no basis revealed to identify any error in the primary judge as to the conclusive effect of s 48A of the Act unless the Minister decides to raise the bar to allow a third application. This has not occurred.
On the authority of the High Court’s decision in SZSSJ, the refusal of the Departmental officer to refer the request to the Minister is not a matter over which the Federal Circuit Court had jurisdiction. And the conclusion by the Federal Circuit Court that the application should be dismissed has not been shown to be in any way doubtful.
For these reasons, the application for an extension of time in which to file and serve an application for leave to appeal is refused with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 1 March 2019
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