SZTTI v Minister for IMMIGRATON
[2015] FCCA 236
•6 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTI & ORS v MINISTER FOR IMMIGRATON | [2015] FCCA 236 |
| Catchwords: MIGRATION – Application for review of the decision of the Minister’s delegate – whether the delegate correctly applied s.48A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 46, 47, 48A, 48B, 476 |
| SZGIZ v Minister For Immigration & Citizenship [2013] FCAFC 71 SZRSN v Minister for Immigration and Border Protection [2014] FCA 527 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 |
| First Applicant: Second Applicant Third Applicant Fourth Applicant | SZTTI SZTTJ SZTTK SZTTL |
| Respondent: | MINISTER FOR IMMIGRATON & BORDER PROTECTION |
| File Number: | SYG 37 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 August 2014 |
| Date of Last Submission: | 7 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Savu of Savu Esq, Lawyer & Mediator |
| Counsel for the Respondent: | Mr D Hughes |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The application made on 8 January 2014 and amended on 6 May 2014 is dismissed.
The first and second applicants pay the respondent’s costs set in the amount of $ 6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 37 of 2014
| SZTTI |
First Applicant
SZTTJ
Second Applicant
SZTTK
Third Applicant
SZTTL
Fourth Applicant
And
| MINISTER FOR IMMIGRATON & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application made on 8 January 2014 and amended on 6 May 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision made by the delegate of the respondent Minister on 3 January 2014 that applications made by the applicants now before the Court for protection visas were not valid.
Background
In making the application to the Court, the applicants were represented by “Silva Solicitors”, who also assisted the applicants with the application for the protection visas made on 3 January 2014 (CB 156 to CB 303), and which ultimately resulted in the decision which is the subject of the review in these proceedings.
On 25 February 2014, I made orders for the conduct of this matter before the Court. These orders included that an agreed statement of facts was to be filed, and provided for the filing of any amended application. The matter was set down for final hearing on 7 August 2014.
An agreed statement of facts was filed on 6 March 2014. It was signed by solicitors acting for the respective parties at the time, and is in the following terms ([1] – [10] of the Agreed Statement of Facts):
“1. The applicants are Fijian nationals.
2. The second named applicant last arrived in Australia on 20 December 2011 on a Tourist (Subclass 676) visa. The first, third and fourth named applicants arrived in Australia on 19 March 2012 on Tourist (Subclass 676) visas.
3. The applicants applied for Protection (Class XA) visas on 20 March 2012.
4. With effect of 24 March 2012, s 36 of the Migration Act 1958 (Cth) (the Act) was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
5. The applicants’ Protection (Class XA) visa applications were refused by a delegate of the respondent on 11 July 2012.
6. The applicants sought review by the Refugee Review Tribunal (RRT) of the delegate’s decision on 25 July 2012.
7. The RRT affirmed the decision of the delegate on 2 April 2013.
8. Under cover of a letter from their solicitors, dated 3 January 2014 and received by the Department of Immigration and Border Protection (the Department) on the same date, the applicants sought to lodge further applications for a Protection (Class XA) visas, expressly relying on s 36(2)(aa) of the Act.
9. By letter dated 3 January 2014, a Departmental officer notified the applicants to the effect that their applications for Protection (Class XA) visas were not valid by virtue of s 48A of the Act.
10. On 8 January 2014, the present proceeding was commenced by way of an application under s.476 of the Act.”
On 24 March 2014 the Minister filed a bundle of relevant documents (the “Court Book” – “CB”) which, amongst other documents, contained copies of the application for protection visas (“the first protection visa application”) made on 20 March 2012 (CB 1), the delegate’s decision record of 11 July 2012 refusing the application for the protection visas (CB 78), the application for review to the Refugee Review Tribunal (“the Tribunal”) on 25 July 2012 (CB 93), the Tribunal’s decision record of 2 April 2013 affirming the first delegate’s decision (CB 121), and the notification of the delegate’s decision of 3 January 2014, currently the subject of these proceedings (CB 306 to CB 309).
On 6 May 2014 the applicants filed an amended application. It contains one ground and is in the following terms:
“1. That the Delegate of the Respondent made a jurisdictional error in holding that the Protection Visa Application filed by the applicants on 3/01/2014 is invalid.
Particulars
This protection visa application is valid because s48A does not prevent further valid protection visa being filed because the first protection visa application was filed by the applicants before the Complementary Protection provisions came into being on 24/03/2012. The first application was filed on 20/03/2012.
The authority for this position is the Full Court decision in
SZGIZ V MINISTER FOR IMMIGRATION & CITIZENSHIP [2012] FCAFC 71”
[Emphasis in the original.]
On 9 May 2014 Silva Solicitors filed a Notice withdrawing as lawyers for the applicants. There is nothing before the Court to suggest that the Notice did not comply with the relevant rules of this Court (Federal Circuit Court Rules 2001 (Cth)).
Nothing further was filed by, or on behalf of, the applicants. On 28 July 2014, the Court’s Registry received a communication from a solicitor, Mr Tui Savu, from Broome, Western Australia,. The letter confirmed that he had received instructions from the first applicant to act for him in this matter. The letter was silent as to the other three applicants, beyond reference to their pseudonyms. The letter asked for an adjournment of the final hearing to enable the solicitor to ensure that he had all the relevant documents in this matter.
Before the Court
Before the Court, Mr Savu appeared by telephone from Broome, Western Australia. Mr D Hughes of counsel appeared for the respondent. Written submissions have been filed by the respondent.
Mr Savu confirmed that he was appearing on behalf of all of the applicants. He did not press the request for the adjournment. He explained that since sending the letter containing the request he had had the opportunity to review the relevant material, and was ready to proceed.
The issue in this matter is whether the application of 3 January 2014 (“the second protection visa application”) for the protection visas, lodged by the applicants, was a valid application for the purposes of the Act.
Section 47 of the Act provides that the Minister cannot consider an application for a visa unless it is a valid application (see in particular s.47(3) of the Act). Section 46 of the Act sets out the requirements for a valid application. Relevantly, s.46(1)(d) provides that an application is not a valid application, where the making of such an application is prevented by s.48A of the Act.
Section 48A of the Act relevantly provides, except where s.48B of the Act applies, that a non-citizen who, while in the migration zone, has made an application for a protection visa, and where the grant of the visa has been refused, may not make a further application for a protection visa while in the migration zone. There is no evidence before the Court, nor do the applicants assert, that s.48B of the Act applies in this case.
The applicants’ argument before the Court is that the second protection visa application is a valid application, because s.48A of the Act does not apply in the applicants’ circumstances. This is said to be because the first protection visa application was made before the introduction of s.36(2)(aa) into the Act. The applicants rely on SZGIZ v Minister For Immigration & Citizenship [2013] FCAFC 71(“SZGIZ”).
The relevant circumstances in SZGIZ were that the applicant had made an application for a protection visa, which was refused by the delegate, and whose decision was affirmed by the Tribunal, and this all occurred before the introduction of s.36(2)(aa) to the Act (see SZGIZ at [2] to [7]). Noting that s.36(2)(aa) of the Act is one of two relevant criteria set out at s.36(2) of the Act for the grant of a protection visa.
The Minister’s Submissions
In the current case, the Minister submits that the full Court in SZGIZ held that the effect of s.48A of the Act was, that a person could not make another application for a protection visa relying on the same criteria as in an earlier application. At [32] of SZGIZ the Full Court said:
“[32] When the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term “further” is that it refers to an application relying upon the same criterion as an earlier application.”
[Emphasis in the original.]
In SZRSN v Minister for Immigration and Border Protection [2014] FCA 527 (“SZRSN”), Rares J explained that, relevantly ([21] of SZRSN):
“[21] The decision of the Full Court in SZGIZ [2013] FCAFC 71; (2012) 212 FCR 235 dealt with a different factual context. There, the Refugee Review Tribunal had given a decision in 2005, when the complementary protection criterion in s 36(2)(aa) was not part of the Act. The Full Court held that SZGIZ was entitled to make a fresh application without being barred under s 48A because he had never had a claim considered within the complementary protection criterion subsequently delineated in s 36(2)(aa). As I have said, Driver FM found, and the applicant is not in a position to challenge in these proceedings, that he had made such a claim and it had been considered by the Tribunal in 2012. The Tribunal’s decision was that Australia did not owe complementary protection obligations to the applicant by reason of the forced separation he had his children would experience were he to be removed to New Zealand. In those circumstances, there is no basis on which an appeal to this Court could have any prospect of success.”
Consideration
I agree with the Minister’s submission that, on the facts of this case (as agreed by the parties), the delegate who considered the first protection visa application made his decision after the introduction of the complementary protection criterion. For that matter, as was the time of the Tribunal decision.
Drawing on what Rares J said in SZRSN, the applicants in the current case have had a claim to protection considered with reference to the complementary protection criterion, set out at s.36(2)(aa) of the Act. I respectfully understand the emphasis in SZRSN to be on the consideration of the claim, rather than the narrower temporal focus of the date of the application for the protection visa.
In SZGIZ, as referred to above, the Full Court found that s.48A of the Act is engaged where a further application is made relying upon the same criterion as an earlier application.
In the current case, it would appear that the applicants’ complaint is based on the proposition that s.48A of the Act is not a “bar” to a further application from them, because, at the time of making the first protection visa application, s.36(2)(aa) of the Act was not available as a criterion for the grant of the protection visa. Therefore, the second protection visa application could not be said to rely on the same criterion as an earlier application.
The applicants explained the sole ground of the amended application as follows. At the time of making the application for the protection visas on 20 March 2012 the complementary protection criterion was not in existence. It was in existence at the time of the delegate’s decision (that is the “first” delegate, whose decision is not challenged by the application to the Court, made on 11 July 2012) and that delegate considered the application as against that criterion, after finding that the applicants did not meet the Refugee Convention criterion.
However, it was “not fair” for that “first” delegate to proceed to consider the application in these circumstances, because the applicants had not been able to address that criterion in their application for the visa, given that the complementary protection criterion did not exist at the time of lodging their application for the protection visas.
In these circumstances, s.48A of the Act did not bar the making of the second protection visa application on 3 January 2014, because that first application was not made in contemplation of the complementary protection criterion.
Given the focus of the applicants’ argument before the Court, the Minister, properly, reminded the Court that the decision for review, by this Court, was the “second” delegate’s decision on 3 January 2014, which found that the application made for protection visas on 3 January 2014 was not a valid application.
Section 48A of the Act provides that an applicant for a protection visa in the migration zone, who has applied for a protection visa and the grant of a protection visa has been refused, may not make a further application for a protection visa, while remaining in the migration zone.
The “second” delegate found that the “second” application for protection visas made on 3 January 2014 was not valid. It is not disputed that the Minister can only consider a valid application (s.47 of the Act). Validity of such applications is determined with reference to s.46 of the Act. One of the requirements of s.46 of the Act is, relevantly, that the application is not prevented by s.48A(1) of the Act.
The “second” delegate’s decision of 3 January 2014 was to the effect that s.48A of the Act operated to render the application for the protection visa made on 3 January 2014 as being not valid.
In SZGIZ, the Full Court was asked to consider whether the prohibition on making a “second” application for a protection visa, applied to an applicant who had applied for a protection visa before the introduction of the complementary protection criterion (s.36(2)(aa) of the Act). The facts before the Full Court in that case were that the delegate’s decision on the application, and for that matter, a subsequent Tribunal decision on review, were made before the introduction of s.36(2)(aa) to the Act.
In SZGIZ, the Full Court held that s.48(1) of the Act must be read in light of s.48A(2) of the Act. The Full Court found ([32] of SZGIZ):
“[32] When the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term “further” is that it refers to an application relying upon the same criterion as an earlier application.”
[Emphasis in the original.]
The factual situation in the current case is different in a material particular to that in SZGIZ. While the “first” application for protection visas, made by the applicants in the current case, was lodged before the introduction of s.36(2)(aa) of the Act (as in SZGIZ), unlike as in SZGIZ, the first delegate’s decision (and a relevant Tribunal decision) was made after the introduction of s.36(2)(aa) of the Act, and was considered by the delegate.
I understood the applicants before the Court to argue that, notwithstanding that the complementary protection criterion came into effect before the making of the “first” delegate’s decision, the relevant date is the actual date of the making of the application. Therefore, it is immaterial that the “first” delegate’s decision was made after the introduction of s.36(2)(aa) of the Act.
It must be noted that there were four applicants for protection visas both in the “first” application and the “second”. In relation to the “first” application made on 20 March 2012, the first named applicant made claims to fear harm on return to Fiji. Of course, as at 20 March 2012, those claims were expressed to be as against the Refugee Convention criterion (s.36(2)(a) of the Act – CB 11 to CB 26).
Her husband and two children made no claims to fear harm in their own right, they applied as members of her family unit (CB 28 to CB 49). That is, they did not rely on the criterion at s.36(2)(a) of the Act (as it was at 20 March 2012), but on s.36(2)(b) of the Act.
The first applicant’s claims to protection were based on what she said was the abuse of her human rights in Fiji, concerning her employment. The applicant claimed to have been dismissed from her employment with the Fijian Native Land Trust Board, and then, subsequently, dismissed from the Fijian Lands Department on instruction from the Fijian Prime Minister’s office. She was unable to find subsequent employment (CB 17).
She complained to the police and an anti-corruption body, but did not receive any response. She wanted to stay in Australia to “give” a better future to her children (CB 17). She feared that if she returned to Fiji she would be detained by the military, who were acting for the government, interrogated and physically abused (CB 19).
The Minister submitted that the treatment the applicant claimed would be meted out to her, was capable of being understood. at best, in relevant part, as a fear of torture. The Minister’s submission was that once the complementary protection criterion came into effect (four days after the making of the application for the protection visa), the question for the “first” delegate, relevantly, and in addition to the question concerning the Refugees Convention, was whether the facts, as claimed by the applicant, could satisfy the “new” criterion.
The Minister’s argument was that once the new criterion was introduced, the delegate was obliged to consider the material before him, to determine whether a relevant claim arises on that material, and to consider that claim. That is, to the situation contemplated by various authorities concerning the obligation to consider “claims” clearly arising from the material presented (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).
The Minister referred to SZRSN, a matter on appeal from this Court, to argue (as set out above) that the relevant time, in light of what was said in SZGIZ, was the time of the “first” delegate’s decision and whether, at that time, the applicant had a claim considered as against the complementary protection criterion. That is, as set out at s.36(2)(aa) of the Act (see above at [16] – [17]).
Beyond mere assertion, the applicants have not sought to rely on any authority to support the contention that the relevant time is the time of the making of the application for the visa.
As set out above, in SZGIZ, the Full Court held that the bar in s.48A of the Act only operates where the “second” application for the protection visa is the same application considered by a delegate previously.
I agree with the Minister that, in the current case, once s.36(2)(aa) came in to force, the delegate was obliged to consider the applicants’ claims also under that criterion. In that sense, the first protection visa application needed to be understood, as at the date of the introduction of the complementary protection criterion, as including an application for the protection visa based also on that criterion.
In the current case, there was no material change in the applicant’s claims between the making of those claims, and the making of the delegate’s decision. I note that it was available to the applicants to have made submissions on these matters to the “first delegate” if they had wished to do so.
Those matters asserted by the applicant, in part, were capable of supporting a claim that on return to Fiji the applicant feared being tortured by the Fijian authorities. The delegate considered the applicant’s claimed fear in this light, and as against the criterion at s.36(2)(aa) of the Act.
The delegate specifically turned his mind to the complementary protection criterion, the delegate reasoned, and found, as follows (delegate’s decision record of 11 July 2012 at CB 115):
“The applicant’s claims relate to her being dismissed from employment, being unable to find further employment to support her family, and being unable to seek justice in relation to her treatment. I am not satisfied that the applicant fears being arbitrarily deprived of her life, fears having the death penalty carried out on her, fears being subjected to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly, I am not satisfied that the harm claimed by the applicant in relation to her employment, economic hardship and injustice is significant harm for the purposes of subsection 36(2A) of the Migration Act.”
The “second” application for protection, while containing considerable detail, in an attached Statutory Declaration (CB 256 to CB 265), in essence, does not alter the nature or character of the applicant’s claims, as initially advanced. The applicant initially claimed to, relevantly, fear torture, physical harm and degrading treatment on return. That remained unchanged in the Statutory Declaration accompanying the “second” application. Nor, importantly, did the applicant make claims beyond the nature of the initial claim.
I agree with the Minister that the application for the protection visa made by the applicant on 20 March 2012 advanced claims that gave rise, as at 24 March 2012, to the possibility that s.36(2)(aa) of the Act might be satisfied. That possibility was explored by the “first” delegate and rejected.
The applicant, therefore, was not, because of s.48A of the Act, able to make another application for a protection visa, given that she had previously been refused a protection visa after consideration of the likelihood of harm as against both of the criteria at s.36(2) of the Act. The applications made by her family members relied initially, and subsequently, on their relationship with her, and the claims she advanced. That had already been considered. They also were therefore unable to make a valid “second” application.
Conclusion
In these circumstances, there is no error in the “second” delegate’s finding that the application made on 3 January 2014 was not valid. The sole ground of the application to the Court as amended is not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 February 2015
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