SZTNQ v Department of Home Affairs

[2018] FCCA 3409

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNQ v DEPARTMENT OF HOME AFFAIRS [2018] FCCA 3409

Catchwords:
MIGRATION – Invalidity under s.48A(1) of the Migration Act 1958 of second protection visa application.  

Legislation:  

Migration Act 1958, ss.48A, 48B

Federal Circuit Court Rules 2001, r.16.05

Minister for Immigration & Border Protection v SZSSJ (2016) 259 CLR 180

Applicant: SZTNQ

Respondent: DEPARTMENT OF HOME AFFAIRS

File Number: SYG 2504 of 2018

Judgment of: Judge Cameron

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:  Ms K. Morris of Clayton Utz

ORDERS            

1. Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $3,737.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2504 of 2018

SZTNQ

Applicant

And

DEPARTMENT OF HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application for judicial review filed on 6 September 2018.  The application, according to its terms, seeks review of a decision made by the Immigration Assessment Authority on 5 September 2018.  However, for reasons which will become apparent, the matter actually concerns a refusal by Department of Home Affairs (“Department”) to treat a protection visa application as valid, a decision which was communicated to the applicant by a letter from the Department dated 5 September 2018.

Background

1. The Minister for Home Affairs (“Minister”) conducted the defence of the case brought by the applicant against the Department and acted as if he was the respondent, a feature of the conduct of this matter which was not noted until these reasons came to be settled.

2. On 8 October 2018 the Minister filed an application in a case seeking dismissal of the proceeding on the basis that it had no reasonable prospects of success.  In support of that application the Minister relied on two affidavits.  First, the affidavit of Kathleen Anne Morris sworn 5 October 2018 and, secondly, the affidavit of Elodie Jane Cheesman affirmed 25 October 2018. 

3. Annexed to Ms Morris’s affidavit is a copy of an application which the applicant made to this Court in November 2013 seeking judicial review of a 24 October 2013 decision of the Refugee Review Tribunal (“RRT”) affirming a ministerial delegate’s decision to refuse to grant him a protection visa. The RRT decision records that the applicant applied for such a visa on 3 September 2012 and that his application was refused on 20 December 2012. Also annexed to Ms Morris’s affidavit is a copy of the reasons for judgment of Judge Emmett of 26 March 2014 where her Honour dismissed an application filed by the applicant for judicial review of that RRT decision. I was informed by Ms Morris, who appeared for the Minister at the hearing of this application, that the Minister was unaware of any appeal from her Honour’s decision or of any application to set aside her Honour’s decision pursuant to r.16.05 of the Federal Circuit Court Rules 2001.

4. Ms Cheesman’s affidavit annexed a second protection visa application, which annexure EC2 to the affidavit discloses was made by the applicant on 31 August 2018. Annexure EC2 further records that on 5 September 2018 the Department decided to treat the second protection visa application as invalid pursuant to s.48A of the Migration Act 1958 (“Act”).  Also annexed to Ms Cheesman’s affidavit were copy documents reproducing information contained in a database maintained by the Department.  Relevantly, those documents record that the applicant arrived in Australia on 26 May 2007 and that there is no record of him having left Australia after that date. 

The present application

1. In his application commencing this proceeding, the applicant alleged:

   Final orders sought by applicant/s …

   …

   1.      This is my protection visa application to Department of Home Affairs and they treated as invalid application which is not fair to me.

   2.      Department of Home Affairs has mistakenly published my personal information and many other people like me in the public which made me feeling strong fears of return to my home town.

   3.      Department of Home Affairs should accept my protection application and allow me to stay in Australia for protection.

   Grounds of application …

   1.      Being a convert of Christian. I will be persecuted if I am forced to return to China.

   2.      Department of Home Affairs made mistake to release my personal information which is totally not acceptable.

   3.      my protection visa application should not be treated as invalid application and I wish the court could give me a fair decision.

Legislation

1. At the time the applicant lodged his second protection visa application on 31 August 2018, ss.48A and 48B of the Act relevantly provided:

   48A 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.

   …

   48B  Minister may determine that section 48A does not apply to non‑citizen

   (1)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

   (2)     The power under subsection (1) may only be exercised by the Minister personally.

   …

Section 48A

1. Section 48A(1) provides that if a person is in the migration zone and makes a protection visa application which is refused, and then makes a subsequent protection visa application while in the migration zone not having left Australia in the intervening period, the second protection visa application is not valid. The terms of the sub-section are clear and strict and their operation cannot be altered except as provided by s.48B.

2. Consequently, the allegations made in the application to this Court concerning the merits of the applicant’s claim to deserve protection in Australia, and his allegations related to the well-known data breach committed by the Department, are not relevant to whether the second protection visa application was valid. The only way the applicant could have made a valid second protection visa application was if the Minister had raised the bar on him doing so in accordance with the powers provided by s.48B of the Act. It was not suggested that the Minister had done so and the Department’s letter of 5 September 2018 implies that he had not.

3. The operation of s.48B has been discussed by the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 259 CLR 180. Relevantly, their Honours said:

   Common features of those sections are that they confer “non-compellable” powers on the Minister to grant a visa in the cases of ss 195A and 417 or to lift a statutory bar to the making of an application for a visa in the case of s 48B. Each is a power: which the Minister “may” exercise if “the Minister thinks that it is in the public interest to do so”; which can only be exercised by the Minister personally; and of which the Minister has no duty to consider the exercise. (at 189-190 [12])

   Their Honours continued:

   First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

   … If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. (at 200 [53] and [54])

4. There is no evidence before the Court in the present proceeding, notwithstanding the interlocutory application made by the Minister and the notice given to the applicant in connection therewith, that the Minister made a procedural decision to consider whether to make a substantive decision under s.48B. In the absence of such evidence, there is no reasonable prospect that the applicant will be able to demonstrate that some error associated with s.48B might attach to the Department’s conduct in connection with this matter.

Conclusion

1. For these reasons, I conclude that the applicant’s application does not have reasonable prospects of success and so should be dismissed as the Minister seeks.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 29 November 2018