SZTSZ v Minister for Immigration & Border Protection
[2014] FCCA 299
•24 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTSZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION | [2014] FCCA 299 |
| Catchwords: MIGRATION – Practice & Procedure – whether applicant was prevented from lodging a further protection visa application whilst inside the migration zone pursuant to section 48A of the Migration Act 1958 – whether applicant was denied procedural fairness – no arguable case raised – application dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 48B Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: SZTSZ v Minister for Immigration & Border Protection& Anor [2014] FCCA 298 |
| Applicant: | SZTSZ |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 74 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 6 February 2014 |
| Date of Last Submission: | 6 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2014 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondents: | Ms Dale Watson (Australian Government Solicitors) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 74 of 2014
| SZTSZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 13 January 2014, the applicant filed an application seeking judicial review of a decision of a Detention Coordinator from Offshore Protection NSW, Department of Immigration and Border Protection, refusing the applicant a protection visa on the basis that the applicant has not left Australia since he was refused an earlier protection visa application, lodged on 30 July 2013.
Pursuant to s.48A of the Migration Act 1958 (“the Act”), a non-citizen who has been refused a protection visa may not make a further application for a protection visa while in the ‘migration zone.’ However, pursuant to s.48B of the Act, if the Minister thinks that it is in the public interest to do so, the Minister may determine that s.48A of the Act does not apply to prevent the applicant from lodging a further protection visa application.
The applicant annexed to an affidavit sworn by him on 12 January 2014, and filed by him 13 January 2014, a letter dated 8 January 2014 from the Detention Coordinator (“the Department’s Letter”) informing the applicant that his protection visa application purported to be lodged on 7 January 2014 was not a valid application. The Department’s Letter made clear to the applicant that he had been refused a protection visa on 30 July 2013 and was prevented from making a subsequent protection visa application in circumstances where he has not since left Australia pursuant to s.48A of the Act.
The applicant’s grounds of application are as follows:
“The application for Protection Class XA visa that I applied for on the 7 January 2014 is a valid application under section 36 (2A0(aa) [sic] of the Migration Act 1958. The conclusion by the respondent that my application was invalid is a denial of procedural fairness.
ParticularsThe protection visa that I made on the 7 January 2014 was made relaying [sic] and on the grounds pursuant to section 36(2A)(aa)(b) and (c) of the Migration Act 1958. I made the application on the complementary protection legislation based on the grounds of my wife and children who are Australian citizens. I have never before been assessed under the complementary basis of my family members.”
To the extent that the applicant asserts that he was denied procedural fairness because the Department’s Letter informed him that his application was invalid, the applicant advanced no submissions in support of that contention. The Department’s Letter clearly states that the applicant’s protection visa application would be considered as a request for the Minister to exercise his public interest power under s.48B of the Act. The Department’s Letter informed the applicant that he would be notified of the outcome of the assessment and that there is no right of merits review of the assessment that an application is invalid
There is no evidence of any determination by the Minister before this Court to exercise his discretion pursuant to s.48B of the Act.
Moreover, the applicant has made a previous application for a protection visa on 20 May 2013, which was finally determined against the applicant by the Refugee Review Tribunal on 16 September 2013. That decision considered whether the applicant met the complementary protection criterion pursuant to s.36(2)(aa) of the Act and determined that he did not.
To the extent that the applicant complains that the Refugee Review Tribunal did not consider whether his wife and children met the complementary protection criteria, such a complaint is misconceived. He was the only applicant before the Refugee Review Tribunal and it was his application only that was being reviewed by the Refugee Review Tribunal.
On 6 February 2014, an application for judicial review of a decision of the Refugee Review Tribunal was refused by me pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (see: SZTSZ v Minister for Immigration and Border Protection [2014] FCCA 298).
In the circumstances, the purported application for a protection visa lodged by the applicant on 7 January 2014 is not a valid application by reason of s.48A of the Act.
In the circumstances, the applicant’s proceeding before this Court commenced by way of application filed on 13 January 2014 does not raise an arguable case and should be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 February 2014
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