SZTMI v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3267

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMI & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2019] FCCA 3267

Catchwords:
MIGRATION – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicants protection visa applications were invalid under s.48A(1) of the Migration Act 1958 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 48B

Federal Circuit Court Rules 2001 (Cth), r.44.12

First Applicant: SZTMI

Second Applicant: SZTMJ

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 1850 of 2019

Judgment of: Judge Emmett

Hearing date: 13 November 2019

Date of Last Submission: 13 November 2019

Delivered at: Sydney

Delivered on: 13 November 2019

REPRESENTATION

Counsel for the Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Siva Valliappan
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1850 of 2019

SZTMI

First Applicant

SZTMJ

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 23 July 2019, the applicants seek judicial review of a decision of a delegate of the respondent dated 15 July 2019 (“the Delegate”), that the protection visa application lodged on 12 July 2019 by the first applicant is an invalid application pursuant to s.48A of the Migration Act 1958 (Cth) (“the Act”).

2. The first applicant is the primary applicant and the second applicant’s claims are wholly dependent on those of the first applicant. The applicants were unrepresented before this Court, although had the assistance of an interpreter.

3. Section 48A of the Act is as follows:

   “No further applications for protection visa after refusal or cancellation

   (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, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

   …

   (1C)  Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:

   (a)  the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;

   (b)  whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;

   (c)  the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;

   (d)  the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.”

4. The first applicant confirmed that he attended a directions hearing before a Registrar of this Court on 15 August 2019 with the assistance of an interpreter. On that occasion, the applicants were given leave to file and serve an amended application, any further evidence and submissions in support of their application. The applicants were also provided with the contact details of legal services providers and translating and interpreting services in documents headed in their own language. At the request of the first respondent the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the grounds of the application do not disclose an arguable case for the relief sought.

5. The first applicant confirmed that the applicants had not filed any documents in accordance with the directions and had no documents to provide to the Court this morning.

6. I explained to the applicants that the only issue before this Court is whether the decision by the Delegate that the protection visa applications filed on 11 July 2019 are invalid, was made according to law. I further explained that this Court has no power to interfere with the decision of the Delegate, unless the Court is satisfied that the Delegate’s decision is affected by a mistake going to its jurisdiction. I further explained to the applicants that, under the Rules of this Court, where the application does not disclose an arguable case for the relief sought, the application may be dismissed forthwith.

7. The grounds of the application are as follows:

   “1. Being a convert of Christian. We will be persecuted if we are forced to return.

   2. Department made mistake to release our personal information which is totally not acceptable.

   3. Our protection visa application should not be treated as invalid and we wish the court could give our a fair decision.”

   (Errors in original)

8. In the applicants’ application under the heading “Final orders sought by applicant/s” the Applicant also stated:

   “1. Department treated our application as invalid which we believe is a judicial error.

   2. Department ignored the fact that they have mistakenly published our personal information in the public. They ignored the fact that we have been strongly affected by their incident

   3. Department should accept our protection application and get it assessed.”

   (Errors in original)

9. The grounds of the application were interpreted to the applicants and the first applicant was invited to say whatever he wished in support.

10. The first applicant then made the following oral submissions: 

    a)that a lot of things had been unfairly found; 

    b)that the department had made a lot of mistakes; 

    c)that the embassy kept contacting the first applicant and asking him questions about his status and visa application which caused the applicants some anxiety; 

    d)that the circumstances of their family had changed in relation to a family member, being their child, who the first applicant said is now an Australian citizen; and,

    e)that the department should know that information.

11. The first applicant then said that when he made his first protection visa application the Department said that it could be considered according to international law and that they would consider the rights of their child. The first applicant said that was why, when he made his second protection visa application, he now asks to have his child’s rights considered. The first applicant said that his son has no income of his own and his livelihood would be affected in China. He does not speak English and if forced to go to China he has no future and would have no right to education. The first applicant said that the Department is aware of his son and failed to consider his situation.

12. The respondent read the affidavit of John Tsaousidis, affirmed 4 October 2019. That affidavit annexed copies of the original protection visa applications, lodged on 3 July 2012 in the names of the first and second applicants and in the name of their son.

13. On 4 October 2012, a delegate of the Minister of Immigration and Border Protection refused the applicants’ protection visas, including the applicants’ son. On 31 October 2012, the applicants lodged an application for review of the delegate’s decision by the Refugee Review Tribunal. On 16 October 2013, the Tribunal affirmed the decision of the delegate not to grant the applicants protection visas. That review application was also in the names of the first and second applicants and their son.

14. On 6 February 2015, Judge Nicholls of this Court dismissed an application for judicial review of the Tribunal’s decision, which affirmed the delegate’s decision, and that order was in the name of the first applicant, the second applicant and the applicants’ son.

15. Mr Tsaousidis’ affidavit also annexed the movement history of the first and second applicants. I am satisfied that, on the evidence before me, the first applicant arrived in Australia on 26 November 2001 and has not departed Australia since that date. I am also satisfied that the second applicant arrived in Australia on 2 August 1997 and has not departed Australia since that date.

16. The first applicant then lodged the second application for a protection visa in the names of the first and second applicants on 11 July 2019. In support, the first applicant provided a statement referring to his unsuccessful earlier protection visa application lodged in 2012. In that statement, the applicant stated that he had strong fears of persecution if returned to China, essentially, by reason of a data breach. The applicant stated that he had reason to believe that his personal information had been published in a departmental data breach.

17. On 15 July 2019, the Delegate found the applicants’ application for protection, filed on 11 July 2019, to be invalid. The Delegate referred to the earlier decision refusing the applicants protection visas. The Delegate referred to s.48A of the Act, stating that 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.

18. The Delegate noted that the Minister has the power under s.48B of the Act to allow a person to apply again for a protection visa if the Minister decides it is in the public interest to do so. However, the power under s.48B(1) of the Act may only be exercised by the Minister personally. Moreover, and in any event, the Delegate noted correctly that pursuant to s.48B(6) of the Act, the Minister does not have a duty to consider whether to exercise the power under s.48B(1) of the Act.

19. The Delegate then noted that the applicants had been granted bridging visas and that the applicants would be required to depart Australia when those bridging visas cease.

20. As the applicants have remained in the migration zone, being Australia, since their first protection visa application, lodged on 3 July 2012, was refused, the Delegate’s decision that the applicants were prevented by s.48A of the Act from making a valid application for a protection visa is without error.

21. Section 48A(1C)(a) of the Act provides that s.48A(1) of the Act applies regardless of the grounds on which a protection visa application would be made or the criteria which the non-citizen would claim to satisfy. The grounds relied upon by the applicants in the protection visa application lodged on 12 July 2019 as supporting their protection visa claims (and identified in paragraphs 7 and 8 above) are therefore not relevant to the Delegate’s determination that the visa applications, lodged by the first and second applicants on 12 July 2019, are invalid under s.48A of the Act.

22. Section 48A of the Act is clear in its terms that an applicant may not make a further application for a protection visa while the applicant is in the migration zone. In the circumstances, the Delegate’s decision that the protection visa applications lodged on 12 July 2019 are invalid would appear to be without error.

23. While I make no final decision as to whether or not the Delegate’s notification of an invalid application is affected by jurisdictional error, the applicants have not identified any error on the part of the Delegate that is capable of establishing jurisdictional error and none is apparent on the face of the notification letter of the invalid applications.

24. In the circumstances, I am not satisfied that the applicants have raised an arguable case for the relief claimed.

25. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules, and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application, filed 23 July 2019, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 14 November 2019