SZTFX v Minister for Immigration and Anor

[2014] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 361

Catchwords:
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Reviewer failed to consider claims made by the applicant.

Legislation:

Migration Act 1958, ss.36, 46A, 91R, 195A

Cases Cited:

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319

SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191

Applicant: SZTFX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2069 of 2013

Judgment of: Judge Cameron

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

Counsel for the Applicant: Mr J. Gormly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount $6,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2069 of 2013

SZTFX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was formerly a resident of Iran who arrived at Christmas Island by boat on 31 January 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 3 April 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).

2. By letter dated 15 May 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by an independent merits reviewer who, on 30 September 2010, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant was the subject of a second independent merits review and on 23 March 2011 a second independent merits reviewer, who is the second respondent (“Reviewer”), also recommended that he not be recognised as a person to whom Australia has protection obligations under the Convention. 

3. It can be presumed that the applicant was in detention at the time of the RSA and subsequent reviews.

4. The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.