SZSSZ v Minister for Immigration (No.2)
[2018] FCCA 2803
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSZ & ANOR v MINISTER FOR IMMIGRATION (No.2) | [2018] FCCA 2803 |
| Catchwords: MIGRATION – Review of departmental decision rejecting a protection visa application as invalid because of repeated visa applications – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48A, 48B, 417, 474, 476 |
| Cases cited: AAG15 v Minister for Immigration [2016] HCATrans 131 AOA16 v Minister for Immigration [2017] FCA 697 BYE15 v Minister for Immigration [2016] FCA 263 Maxwell v Minister for Immigration (2016) 149 ALD 604 Minister for Immigration v SZSSJ (2016) 333 ALR 363 SZFDZ v Minister for Immigration [2006] FCA 974 SZGIZ v Minister for Immigration [2013] FCAFC 71 SZMOV v Minister for Immigration [2018] FCA 66 SZRAG v Minister for Immigration [2016] FCA 189 SZSSZ & Anor v Minister for Immigration & Anor [2017] FCCA 1845 |
| First Applicant: | SZSSZ |
| Second Applicant: | SZSTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3557 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2018 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondent: | Ms E Cheesman of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3557 of 2017
| SZSSZ |
First Applicant
SZSTA
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicants seek judicial review of a decision of an Officer of the Minister’s Department communicated on 8 November 2017. The Officer informed the applicants that a protection visa application they had made was invalid because they had made two previous such applications. Background facts relating to this matter are set out in the Minister’s outline of submissions.
The applicants are citizens of Indonesia. On 23 October 1995, the first applicant lodged a protection visa application including his wife (the second applicant) as a member of his family unit. On 16 January 1996, a delegate of the Minister refused to grant the applicants protection visas. On 23 October 1997, the then Refugee Review Tribunal (Tribunal) affirmed the delegate's decision.[1]
[1] Court Book (CB) 5 [2].
On 27 March 2013, the first applicant lodged a second protection visa application, including the second applicant as a member of his family unit. Following SZGIZ v Minister for Immigration,[2] that application was deemed valid. On 28 April 2014, a delegate of the Minister refused to grant the visa application,[3] which decision was affirmed by the Tribunal (differently constituted) on 25 March 2015 (second Tribunal decision).[4] On 7 August 2017, this Court dismissed the applicants' application for judicial review of the second Tribunal decision.[5]
[2] [2013] FCAFC 71.
[3] CB 5 [4].
[4] CB 4 - 26.
[5] SZSSZ & Anor v Minister for Immigration & Anor [2017] FCCA 1845.
On 25 March 2015, the Tribunal referred the applicants' case to the Ministerial Intervention Unit for consideration in relation to the Minister's discretionary power under s.417 of the Migration Act 1958 (Cth) (Migration Act), noting that the first applicant had requested that his case be referred to the Minister for personal intervention (first s.417 Ministerial Intervention request).[6] On 19 September 2016, the Minister’s Department wrote to the applicants advising that the Assistant Minister had personally considered their case and decided not to exercise his power under s.417 of the Migration Act.[7]
[6] CB 1 - 3.
[7] CB 33 - 34.
On 5 September 2017, the applicants wrote to the Minister stating that the Ministerial Intervention Unit wrongly did not refer their case to him, and requesting consideration of their case (second s.417 Ministerial Intervention request).[8] On 8 September 2017, the Minister’s Department wrote to the applicants advising that the second s.417 Ministerial Intervention request did not meet the guidelines for referral to the Minister, and the request had therefore been finalised without referral.[9]
[8] CB 39.
[9] CB 40 - 42.
On 14 September 2017, the first applicant lodged a third protection visa application.[10] The second applicant was included as a member of the family unit. On 8 November 2017, the Officer deemed the protection visa application invalid due to the bar in s.48A of the Migration Act (Officer's determination).[11]
[10] CB 43 - 70.
[11] CB 71 - 73.
On 20 November 2017, the applicants commenced the current proceedings.
On 24 November 2017, the Minister’s Department wrote to the applicants advising them a request they had made for Ministerial Intervention under s.48B of the Migration Act (s.48B Ministerial Intervention request) did not meet the guidelines for referral to the Minister, and had therefore been finalised without referral.[12]
[12] CB 74 - 75.
The present proceedings
These proceedings began with a show cause application filed on 20 November 2017. The applicants continue to rely upon that application. The grounds in it are:
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.
The application is supported by a short affidavit, which I received.
I also have before me as evidence the court book filed on 10 January 2018.
Only the Minister had filed written submissions in advance of today’s hearing. I invited oral submissions from the applicants this morning. The second applicant handed up a document which is in the nature of written submissions. I discussed those submissions with her.
It is apparent that the applicants, who have lived in this country since 1994 and 1995 respectively, have, for practical purposes, made their homes here. They came to Australia to work and their intention has always been to live in this country permanently. They have attempted various visa applications. Two previous protection visa applications were unsuccessful. Their current, and third, application was plainly invalid in the absence of the exercise of ministerial discretion under s.48B of the Migration Act. There is no arguable case of jurisdictional error in the Officer’s Determination. The s.48B Ministerial Intervention Request is beyond the scope of this proceeding.
The Tribunal which dealt with the second protection visa application, limited to the complementary protection criterion, referred the applicants’ case to the Minister. The Assistant Minister considered the applicants’ circumstances, but declined to intervene. I discussed with the applicants what remaining options may be available to them. Those options are beyond the scope of this proceeding. I agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
By Ground 1, the applicants complain that the Officer's determination that their third protection visa application was invalid was incorrect.
This Court has jurisdiction under s.476(1) of the Migration Act in respect of the Officer's determination, being a refusal to make a decision within the meaning of s.474(3) of the Migration Act.[13]
[13] SZMOV v Minister for Immigration [2018] FCA 66 at [4].
The Officer's determination was correct. A visa application is valid if, and only if, it is (amongst other things) not invalid under s.48A of the Migration Act.[14] Subject to s.48B, s.48A(1) acts as a bar to any further protection visa applications for as long as the applicants remain in the migration zone.[15] The applicants made two previous protection visa applications (the second deemed valid pursuant to SZGIZ) which were refused, and the Minister did not act pursuant to s.48B to lift the bar imposed by s.48A. Accordingly, the Officer had no jurisdiction to consider the applicants' claims for protection, and properly deemed the third protection visa application to be invalid.
[14] section 46(1)(d) of the Migration Act.
[15] see eg. SZRAG v Minister for Immigration [2016] FCA 189 at [23]; BYE15 v Minister for Immigration [2016] FCA 263 at [29].
By Ground 1, the applicants also complain that their case was “wrongly” not referred to the Minister despite their first s.417 Ministerial Intervention request.
That assertion is factually incorrect. The letter from the Minister’s Department dated 19 September 2016[16] records that the Assistant Minister personally considered the applicants' case but determined not to exercise his power under s.417 of the Migration Act. The Assistant Minister is “the Minister” for the purposes of the Migration Act.[17] The Minister's decision not to exercise his power under s.417 of the Migration Act, being a privative clause decision specified in s.474(7)(a), is not justiciable by this Court, pursuant to s.476(2)(d) of the Migration Act. Moreover, s.417(7) makes clear that the Minister's power under s.417 is non-compellable, such that even if there were jurisdiction, this Court could not grant relief in respect of the Minister's decision not to exercise his power.[18]
[16] at CB 33 – 34.
[17] Maxwell v Minister for Immigration (2016) 149 ALD 604 at [22].
[18] SZFDZ v Minister for Immigration [2006] FCA 974 at [7].
Ground 2
By Ground 2, the applicants complain that their second s.417 Ministerial Intervention request was not referred to the Minister. The decision by the Minister’s Department not to refer the applicants' case for Ministerial Intervention is recorded in the letter from the Minister’s Department dated 8 September 2017.[19]
[19] CB 41 – 42.
This Court does not have jurisdiction in relation to the Minister’s Department's procedural decision not to refer the applicants' case for Ministerial Intervention because, the Minister's statutory power under s.417 not having been engaged, there is no “migration decision” reviewable under s.476(1) of the Migration Act.[20] Moreover, where the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Minister’s Department to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.[21]
[20] AOA16 v Minister for Immigration [2017] FCA 697.
[21] Minister for Immigration v SZSSJ (2016) 333 ALR 363 at [54]; AAG15 v Minister for Immigration [2016] HCATrans 131 (3 June 2016).
Ground 3
By Ground 3, the applicants complain that the Minister failed to exercise his discretion under s.48B of the Migration Act. The decision by the Minister’s Department not to refer the applicants' case for Ministerial Intervention is recorded in the letter from the Minister’s Department dated 24 November 2017.[22]
[22] CB 75.
For the same reasons given in relation to Ground 2 at [21], this Court does not have jurisdiction in relation to the Minister’s Department's procedural decision not to refer the applicants' case for Ministerial Intervention.
I conclude that the applicants are unable to advance an arguable case of jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicants did not wish to be heard on costs.
I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 October 2018
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