SZSWA v Minister for Immigration

[2014] FCCA 678

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWA v MINISTER FOR IMMIGRATION [2014] FCCA 678

Catchwords:
MIGRATION – Protection visa application subsequent to earlier and unsuccessful protection visa application – whether second application a valid application.

Legislation:

Migration Act 1958, ss.36, 48A, 48B

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Minister for Immigration and Citizenship v SZGIZ [2014] HCATrans 315

Applicant: SZSWA

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1087 of 2013

Judgment of: Judge Cameron

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Sydney

Delivered on: 14 March 2014

REPRESENTATION

The applicant appeared in person by telephone

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 the application be dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $3,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1087 of 2013

SZSWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The applicant is a Fijian national who arrived in Australia on 14 May 2012 as the holder of a single entry Tourist (subclass TR676) visa.  On 24 May 2012 he lodged an application for a protection visa which was refused by a delegate of the respondent (“Minister”) on 18 September 2012.  The applicant subsequently lodged a second protection visa application on 15 May 2013.

2. By letter dated 15 May 2013, a departmental officer notified the applicant that his second application was not a valid application by virtue of s.48A of the Migration Act 1958 (“Act”).

3. In his application the applicant specified the following grounds:

   (1)The application that I made for Protection Visa on 15 May 2013 was NOT invalid because I was NOT prevented by s.48A of the Migration Act from lodging a Protection Visa application.

   (2)That my previous protection application was not yet finalised in accordance and pursuant to section 5(9)(1) of the Migration Act 1958 and was still open for a review under part 5 and 7 of the Act.

   Particulars:

   I expressly made my application for Protection Visa in reliance on the grounds to be considered under s.36(2)(aa) of the Act (the “complimentary protection grounds”). As my previous protection visa application was not finalised and I applied to be assessed and considered under section 36(2)(a), (aa), (b) of the Migration Act 1958 The Complementary protection visa ground. I was not considered under the Complementary grounds and I was never assessed under section 36(2A)aa when the decision was made in my protection visa application which is not yet finalised.

4. The applicant made additional submissions at the hearing of this application, however, without intending any disrespect to him, none addressed the issue presently before the Court.  Instead, they addressed the applicant’s claimed reasons for seeking a protection visa, and why he should be allowed to remain in Australia.  Consequently, those submissions do not require further consideration. 

Relevant legislation

1. At all material times, s.48A of the Act relevantly provided:

   48ANon‑citizen refused a protection visa may not make further application for protection visa

   (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, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and

   …

2. Section 48B of the Act has no present relevance to the applicant.

3. Section 36(2)(aa) of the Act was introduced with effect from 24 March 2012 after passage of the Migration Amendment (Complementary Protection) Act 2011. At the time of the applicant’s initial application for a protection visa, s.36(2) relevantly provided:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)    a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   …

Arguable case authorities

1. The matter is before the Court today for consideration of the applicant’s application that the Minister should show cause why relief should not be granted to him.

2. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court, if the applicant does not have an arguable case against the respondent.

3. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

Chronology

1. The applicant first applied for a protection visa on 24 May 2012.  In his application, the applicant claimed that he feared persecution by the military for being a supporter of a social group that was against the military government.  He claimed that he had been tortured by military personnel and had been interrogated at a military camp.  He did not believe that the Fijian authorities would protect him if he were to return because the government was a dictatorship and “they” terrorised and interrogated people who spoke or did things against their wishes.

2. The applicant was interviewed by a delegate of the Minister on 23 August 2012.  At that interview, the applicant made the following claims:

   a)he was a supporter of the Soqosoqo Duavata ni Lewenivanua (SDL) and voted for his local SDL candidate in the 2005 elections.  During the campaign he provided some organisational assistance and was involved with putting up a tent;

   b)in December 2006 he was arrested and, along with a group of other people, taken by twenty Fijian military officers to a camp.  He suffered a broken tooth after he was beaten and kicked. He was also forced to “duck walk” and stand in dirty water that could have been sewage;

   c)he had been meeting with village members of the SDL “sometimes” and in secret since 2006.  The most recent meeting had been held just prior to his departure to Australia so the members could say goodbye to him;

   d)neither he nor the group had been involved in any activities since the coup and the subsequent troubles in 2006 and 2007 because they were afraid of being discovered by the military and were waiting for elections to take place in 2014;   

   e)as his village’s chief had been sentenced to life in prison for holding meetings in 2009 he feared that he would be detained by the military and tortured if his attendance was discovered;

   f)neither he nor the members of the group had been targeted by the military since 2007.  He then claimed that the military were still going after him and people who held meetings and that the military had a record of him; and

   g)he confirmed that he had not experienced any difficulty obtaining a Fijian passport or leaving Fiji.

3. The delegate refused the applicant’s first application for a protection visa on 18 September 2012. The delegate was satisfied that the applicant held political opinions which opposed the Fijian government. However, she was not satisfied that those opinions had been made known to the military government in Fiji since 2006 and therefore she could not be satisfied that there was a well-founded fear that the Fijian military would question and assault the applicant again. Referring to country information, she also considered that the ease with which the applicant had obtained his passport and left Fiji did not support his subjective fear of serious harm by the Fijian authorities. The delegate also expressly considered the applicant’s claims against s.36(2)(aa) of the Act and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to a receiving country, that there was a real risk he would suffer significant harm in the foreseeable future.

4. There is no evidence before the Court to suggest that the applicant sought a Refugee Review Tribunal review of the decision made by the delegate on 18 September 2012.

The proceeding before this Court

1. On 17 July 2013 the current proceeding was adjourned pending the outcome of the Minister’s application for special leave to appeal the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (“SZGIZ”).  The Minister’s application was refused by the High Court on 13 December 2013 (see Minister for Immigration and Citizenship v SZGIZ [2014] HCATrans 315).

2. On 3 March 2014 the proceeding was listed for directions. At that directions hearing, the Minister sought the matter’s listing for a show cause hearing pursuant to r.44.12 of the Court’s Rules.

Consideration

1. The Full Court’s decision in SZGIZ concerned the proper construction of s.48A of the Act and whether the provisions of that section applied to protection visa applications under the complementary protection criterion contained in s.36(2)(aa). It was held in SZGIZ that if an applicant’s initial protection visa application had not been considered by reference to the complementary protection provisions of the Act because they were not in force at the time, the applicant was not prevented by s.48A from bringing a further protection visa application which relied on those complementary protection obligations.

2. Because of when it was made, the applicant’s first protection visa application on 24 May 2012 was an application for a visa the criteria for the grant of which included the matters mentioned in ss.36(2)(a) and (aa). That is to say, the criteria arising out of the United Nations Convention Relating to the Status of Refugees 1951 amended by the Protocol Relating to the Status of Refugees 1967 and the complementary protection provisions, respectively.  For that reason, the facts of this case are distinguishable in a critical respect from those considered by the Full Court in SZGIZ where s.48A made no reference to s.36(2)(aa) at the time of that applicant’s first protection visa application.

3. Notwithstanding that difference, [36] and [38] of the Full Court’s decision in SZGIZ are relevant to this matter:

   … the use of the adjective “further” in s 48A(1) in the context of the phrase “further application for a protection visa” strongly indicates that the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa. …

   A construction of s 48A which confines its operation to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) also accords with common sense. …

   (emphasis in original)

4. Because the applicant’s second visa application engaged the same statutory provisions as his first application had engaged, those provisions being in the same terms at the time of both the applications, the applicant’s second application must be characterised as a “further application for a protection visa” of the sort referred to in s.48A(1).

Conclusion

1. For that reason, I am not satisfied that the applicant has an arguable case that his second protection visa application was a valid application. 

2. Consequently, the Minister will not be required to show cause and the applicant’s application to this Court will be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  8 April 2014

CORRECTIONS

1. Cover page, Hearing Date – delete “February” insert “March”

2. Cover page, Date of Last Submission – delete “February” insert “March”

3. Cover page, Delivery Date – delete “February” insert “March”