SZTVU v Minister for Home Affairs
[2018] FCCA 1962
•19 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVU v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1962 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Temporary Protection visa – whether instrument IMMI17/015 is invalid in its application to the applicant – whether the Tribunal failed to consider whether the delegate’s decision was valid – whether the Tribunal failed to consider the applicant’s claims – no jurisdictional error made out – amended application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 r. 44.12. Migration Act 1958 (Cth), ss. 4, 5, 48B, 411, 476. |
| Applicant: | SZTVU |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 708 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 19 July 2018 |
| Date of Last Submission: | 19 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Prince |
| Solicitors for the Applicant: | Westside legal |
| Counsel for the Respondents: | Mr L Dennis |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
Grant leave to the applicant to rely upon the amended application filed 16 July 2018.
The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 708 of 2018
| SZTVU |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application under r 44.12 of the Federal Circuit Court Rules2001 (“the Rules”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 February 2018 finding that the Tribunal did not have jurisdiction in the matter. The proceedings fall within this Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”).
The circumstance of the present case is a one where the applicant arrived in Australia on 23 March 2013, by air on a genuine passport. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.
On 29 April 2013, the applicant made an application for protection for a Protection (class XA) visa which was refused on 23 September 2013. That decision was affirmed by the Refugee Review Tribunal on 8 January 2014. The applicant unsuccessfully sought review in the Federal Court of Australia. Correspondence has been tendered identifying that the applicant sought Ministerial intervention and on 5 September 2017, the applicant was informed that he had been specified as a fast track applicant in a legislative instrument made under s 5(1AA)(b) of the Act.
On 6 September 2017, the applicant applied for a Temporary Protection visa. On 30 November 2017, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa.
The Tribunal
On 21 December 2017, the applicant lodged an application for review. The Tribunal found that it did not have jurisdiction to review the decision. The Tribunal found that it does not have jurisdiction to review a fast track decision, which were expressly excluded by s 411(2)(c) of the Act. Section 5 of the Act defines a “fast track decision” relevantly as follows:
"fast track decision " means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:
(a) because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or
(b) relying on:
(i) subsection 5H(2); or
(ii) subsection 36(1B) or (1C); or
(iii) paragraph 36(2C)(a) or (b).
Note: Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.
Section 5 of the Act also defines “fast track applicant” relevantly as follows:
"fast track applicant " means:
(a) a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
Note: Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track
The instrument-making power in s 5(1AA) of the Act provides relevantly as follows:
(1AA) The Minister may make a legislative instrument for the purposes of the following provisions:
(a) paragraph (b) of the definition of excluded fast track review applicant in subsection (1);
(b) paragraph (b) of the definition of fast track applicant in subsection (1).
By letter dated 18 January 2018, the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review in circumstances where, under the instrument, he was a fast track applicant. The applicant provided a response on 7 February 2018. The Tribunal found that the applicant was a fast track applicant and it did not have jurisdiction. The Tribunal found it was not required to determine whether the delegate’s decision was reviewable by the Immigration Assessment Authority or whether the delegate erred because the Tribunal had no jurisdiction.
Before this Court
The grounds in the amended application are as follows.
1. IMMI17/015 is invalid in so far as it purports to apply to the applicant.
Particulars
a. IMMI17/015 was purportedly made on 26 July 2017 under s 5(1AA)(b) of the Migration Act;
b. The extent of the power to make a Regulation under s 5(1AA)(b) of the Act is relevantly limited to the purpose of identifying a person who is a "Fast Track
Applicant" for the purposes of sub paragraph (b) of the definition of that term in s5(1) of the Act.
c. Mr. SZTVU learnt for the first time on 5 September 2017 that the Minister had exercised his power under s48B of the Act to allow him to make an application for a protection visa under the Act and lodged that application on 6 September 2017.
d. At the time that IMMI17/015 was made, the Mr SZTVU had no made no extant application for a protection visa under the Act and could not be a person that could be identified as a "Fast Track Applicant" (emphasis added) for the purposes of the Migration Act at that time;
e. Accordingly, IMMI17/015 in so far as it purported to identify Mr. SZTVU as a Fast Track Applicant was made beyond power and was not authorised by the Act and is invalid.
2. The Tribunal failed to consider whether the DIBP decision is a valid decision.
Particulars
The Tribunal failed to consider that the Delegate's decision incorrectly applied the Fast Track Applicant procedure to the applicant when he was not a "Fast Track Applicant".
3. The First Respondent failed to exercise its jurisdiction to consider the applicant's claim as a result of that the decision to refuse to exercise jurisdiction should be declared invalid.
Particulars
a. The Tribunal incorrectly found the applicant to be a person who was a Fast Track Review Applicant.
Mr Prince of counsel on behalf of the applicant submitted that the definition in “fast track applicant” (b) of the Act is one that does mean a person who is the subject of a current application for protection. Mr Prince submitted that the provision otherwise could apply to any person in Australia and that that would be, as a matter of construction, beyond the scope of the power in s 5(1)(aa) of the Act. Mr Prince contended that the reference to “person” cannot be at large and that there could be no power to specify an Australian citizen to be a fast track applicant. Mr Prince referred to there being no power to designate an applicant for a tourist visa as a fast track applicant because it could not be said to be necessary for the limited statutory purpose of facilitating specification of the special process to make decisions in relation to certain protection visa applicants.
Mr Prince submitted that the statutory scheme, which s 5(1)(aa) and part (b) of the Act of the definition of “fast track applicant” operate, requires that the person must be a protection visa applicant in order to receive specification or classification pursuant to the power under s 5(1AA) of the Act. Mr Prince also sought to place weight on the reference to the meaning of “applicant” within the definition itself.
I do not accept that the reference to “applicant” in the definition gives rise to an arguable case that the reference to “person”, as defined in the Acts Interpretation Act 1901 (Cth), should be read down as referring to a person who is the subject of a current protection visa application. The regulation-making power is one that is to be construed by reference to the context of the provisions of the Act, including the Object in s 4 of the Act and the ordinary meaning as to the text of the instrument-making power.
The scheme of the Act, including provision s 48B of the Act, means the instrument-making power is not dependent upon there being a current application for protection. The instrument in the present case was put into evidence and relevantly provides as follows:
Part 1 – Preliminary
1 Name
This instrument is the Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017. This instrument may also be cited as IMMI 17/015.
2 Commencement
This instrument commences on the day after registration on the Federal Register of Legislation.
3 Authority
This instrument is made under paragraph 5(1AA)(b) of the Migration Act 1958.
4 Definitions
In this instrument:
Act means the Migration Act 1958.
5 Purpose
(1) This instrument is made for the purpose of paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act.
(2) This instrument specifies a person who is a fast track applicant.
Part 2 – Fast track applicants
6 Person who is a fast track applicant
A person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant.
The instrument then set out in schedule 1 refers to particular persons by an anonymised particular reference number for each person. It is apparent on the face of the schedule that those are persons who have all sought protection, whether successfully or unsuccessfully. It is apparent that all the persons are non-citizens. The language of the instrument reflects a valid exercise of the instrument-making power in s 5(1AA) of the Act.
I do not accept that there is any arguable case that the instrument is invalid or in excess of the instrument-making power. I do not accept that the regulation-making power is the subject of a reasonable argument as to the validity. Accordingly, I do not accept that there is any reasonable prospect that the instrument is invalid insofar as it purports to apply to the applicant.
Further, it is patent in the present case that the applicant had been an applicant for a protection visa. Even if words of limitation were to be read in, they would not be words that required the applicant to be subject of a current protection visa application. It is apparent that the scope of the instrument-making power relates to a person who had unsuccessfully sought protection, which would include the applicant in the present case. No arguable case of jurisdictional error is made out by ground 1.
In relation to ground 2, the Tribunal correctly identified that the applicant was a person specified by an anonymised particular reference in the instrument and correctly found the applicant to be a fast track applicant. No arguable case of jurisdictional error is made out by ground 2.
In relation to ground 3, the Tribunal was correct in holding it had no jurisdiction. The Tribunal was correct to find the applicant was a fast track applicant and that it had no jurisdiction. No arguable case of jurisdictional error is made out by ground 3.
Mr Prince submitted that the issues in the present case were sufficiently arguable to mean that they should not be the subject of a show cause application. For the reasons given I do not accept that submission. Whilst the argument presented reflects considerable ingenuity and was succinctly and skilfully presented, it is nonetheless one I find to have no reasonable prospect of success.
Conclusion
As the amended application has no reasonable prospect of success, I am satisfied that it is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, as the amended application fails to make out any jurisdictional error, the amended application is dismissed under r 44.12 of the Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 26 July 2018
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