SZUBS v Minister for Immigration & Border Protection

[2014] FCCA 1504

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBS v MINISTER FOR IMMIGRATION & BORDER PROTECTION [2014] FCCA 1504

Catchwords:
MIGRATION – Application to review decision by respondent not to exercise power under s.91Q of the Migration Act 1958 (Cth) to allow applicant to make a valid Protection visa application – whether decision is a privative clause decision – whether Federal Circuit Court of Australia has jurisdiction – no jurisdiction – application incompetent.

Legislation:

Migration Act 1958 (Cth), ss.91P, 91Q, 474(7), 476(2)(d)

Applicant: SZUBS

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 720 of 2014

Judgment of: Judge Emmett

Hearing date: 8 July 2014

Date of Last Submission: 8 July 2014

Delivered at: Sydney

Delivered on: 8 July 2014

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 720 of 2014

SZUBS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By way of application, filed on 20 March 2014, the applicant seeks review of a decision of the respondent, dated 24 February 2014, not to exercise the respondent’s power under s.91Q of the Migration Act 1958 (Cth) (“the Act”) to enable the applicant to make a valid protection visa application.  The grounds of the application are as follows:

   “1. The Delegate of the Minister erred in law by considering that my application is not valid because I am considered a national of two or more countries. I am indeed a national of Syria and holder of a Syrian passport and I have never had any other passport. I lived in Syria as well as Kuwait but I never had permanent residence in Kuwait.

   2. I cannot return to Syria where recently my daughter, Nahla, who resides in Homs, Syria, who is a mother of six children, was killed recently in Syria. I have lived with my daughter for approximately seven years in Syria but I have never lived in Lebanon.

   3. The Department ignored my explanation which was put to them.

   4. I attach a copy of my Syrian passport and ask that the Honourable Court remit my case to the Department to be considered according to the law.

   5. I ask the Honourable Court to treat my application which was lodged on 10 April 2013 as a valid application. Section 91P of the Migration Act 1958 (Cth) does not apply to me.”

2. The applicant filed an affidavit in support of her application in which she attached a letter from the Department of Immigration and Border Protection (“the Department”), dated 24 February 2014, informing her that the respondent had considered her request to exercise his power under s.91Q of the Act to grant her a protection visa on the basis of whether it is in the public interest to do so.

3. The Department’s letter stated that the applicant had been advised on 23 September 2013 that, in accordance with s.91P of the Act, her protection visa application was not a valid application because she is a national of two or more countries. Section 36(3) of the Act makes clear that Australia does not have protection obligations to a non-citizen who has not taken all possible steps to avail herself of a right to enter and reside in a country apart from Australia, including countries of which the non-citizen is a national.

4. The applicant annexed a copy of her passport to her affidavit. Her passport disclosed that her birthplace was Tripoli, although her passport was issued in Syria. In the grounds of her application, the applicant stated that she had never had permanent residence in Kuwait and had never lived in Lebanon.

5. As stated above, the Department’s letter was sent to the applicant pursuant to her protection visa application, lodged on 10 April 2013. The letter informed the applicant that the respondent has the power to allow her to make a valid protection visa application, pursuant to s.91Q of the Act.

6. The Department’s letter informed the applicant that her protection visa application had been taken to be a request for the respondent to exercise his non-compellable power under s.91Q of the Act to allow her to make a valid protection visa application.

7. The letter informed the applicant that the Department had referred her request for the respondent to exercise his power under s.91Q of the Act. However, the letter went on to state, the respondent had considered the request and decided not to exercise his power under s.91Q of the Act and, therefore, the applicant is not eligible to lodge a valid protection visa application.

8. Section 474(7) of the Act states that a decision of the respondent not to exercise, or not to consider the exercise of, his power under, inter alia, s.91Q of the Act is a privative clause decision.

9. Section 474(1)(a) of the Act states that a privative clause is final and conclusive.

10. Section 476(2)(d) of the Act states that this Court has no jurisdiction in relation to a privative clause decision, or a purported privative clause decision mentioned in s.474(7) of the Act.

11. In the circumstances, this Court has no jurisdiction to consider the applicant’s application further.

12. Accordingly, the proceeding before this Court, commenced by way of application filed on 20 March 2014, should be dismissed with costs, on the basis that the applicant’s application is incompetent.

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

Associate:

Date:   17 July 2014