SZUIJ v Minister for Home Affairs
[2019] FCCA 1910
•2 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIJ v MINISTER FOR HOME AFFAIRS | [2019] FCCA 1910 |
| Catchwords: MIGRATION – application for summary dismissal of application seeking review where delegate determined that a second protection visa application was invalid because of s.48A of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.47, 48A Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), r.13.10(a) |
| Cases cited: AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; (2015) 235 FCR 150 |
| Applicant: | SZUIJ |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 2726 of 2018 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the Applicant’s application filed on 25 September 2018 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2826 of 2018
| SZUIJ |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application in a case filed on 29 April 2019 on behalf of the Respondent. The Minister seeks an order pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the Applicant’s application of 25 September 2018 be dismissed on the basis that she has no reasonable prospect of successfully prosecuting the proceeding. It was acknowledged in submissions that the principles that apply in relation to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (and see Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118) are also relevant in relation to an application for summary dismissal under r.13.10(a) of the FCC Rules.
I have borne in mind that the Minister bears the onus of persuading the court that an application has no reasonable prospect of success. The discretion must be exercised with caution. It involves a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at a trial (and see Spencer at [58] – [60]).
The background to these proceedings is that the Applicant, a citizen of China, arrived in Australia in November 2012 as the holder of a tourist visa. In February 2013 she lodged an application for a protection visa. That application was refused in November 2013. In April 2014 the then Refugee Review Tribunal (the Tribunal) affirmed the decision.
The Applicant sought judicial review in respect of the Tribunal decision in this court (see SZUIJ v Minister for Immigration & Anor [2016] FCCA 247) and in the Federal Court on appeal (see [2016] FCA 1574), and made an unsuccessful application for special leave to appeal to the High Court (see [2017] HCASL 92).
On 20 September 2018 the Applicant purported to lodge a further application for a protection visa. It is that purported second application that is the subject of these proceedings.
On 21 September 2018, an officer of the Department informed the Applicant that the application for a protection visa of 20 September 2018 was not valid. The letter explained that a decision had previously been made to refuse to grant her a protection visa or she had a protection visa cancelled, and that under s.48A of the Migration Act 1958 (Cth) (the Act) a person who has not left Australia since their protection visa was refused or cancelled was prevented from making a subsequent protection visa application while they remained in Australia.
The letter also referred to the fact that the Minister has a power under s.48B of the Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. There is no evidence or suggestion in this case that the Minister has exercised such power under s.48B of the Act, although it is also clear that the Applicant has some dissatisfaction with the circumstances and procedures in relation to her case.
On its face, the application of 25 September 2018 is confusing. It names only one respondent, the Minister, but then suggests that the decision-maker was the Immigration Assessment Authority (the IAA). There is no evidence that the IAA has made any decision at all in relation to the Applicant.
The grounds in the substantive application do not address the validity of the second protection visa application. Under the heading “Final orders sought”, the Applicant recites claims to fear harm in China and the basis on which she made such claims in relation to her practice of Falun Gong and claimed publication of her name on the departmental website. She asked the court to give her a fair decision and allow her to stay in Australia permanently. In the grounds of application the Applicant states that she disagrees with the decision of the Department and the Tribunal (sic) on the basis she is a genuine Falun Gong member. She claimed that they did not consider that she would be in danger if she returned. She also contended that the Tribunal decision did not consider that she was still actively practising in Australia, despite evidence she provided, that the Tribunal unreasonably suspected the truthfulness of her claims and that “Immigration” and the Tribunal had treated her unfairly and should have granted her application for protection.
However the date of the decision of which review is sought is identified as 21 September 2018. Importantly, attached to the Applicant’s affidavit relied on in support of the substantive application is a copy of the departmental letter of 21 September 2018 advising her that her second protection visa application was not valid. I am satisfied that the review application relates to the validity of the Applicant’s second protection visa application.
In submissions, the Applicant stated that, as attested to in information attached to her most recent affidavit of 14 June 2019, she was concerned because her identifying information had been published, including by the Federal Court, and also because she feared harm in China. Her concerns were also expressed in a request to the Minister for ministerial intervention under s.417 of the Act dated 19 January 2017 and in subsequent supporting letters to the Minister and to the court, copies of which are attached to her affidavit. The Applicant reiterated these concerns today.
I bear in mind that the Minister bears the onus of satisfying the court that the Applicant has no reasonable prospect of successfully prosecuting the proceeding, but I also note that the Applicant had no submissions to make in relation to her assertion that her second protection visa application was valid, other than her feeling that she was unfairly treated or badly done by, that the government and the courts had made a mistake and that this ought to be remedied.
The issue of the validity of the protection visa application is an objective question to be determined by the court on the basis of the law.
It is in these circumstances that the Minister contended that the application has no reasonable prospects of success. It was pointed out that apart from the fact that the review application invited the court to deal with the merits of the Applicant’s protection claims, the second protection visa application was never considered on its merits by a delegate and was never considered by any Tribunal because it was held to be an invalid application (and see s.47(3) of the Act). On this basis, it was submitted, and I accept, that the grounds in the application are entirely misconceived.
As the Respondent also pointed out, no other basis has been raised by the Applicant for a potential challenge that might be arguable in respect of the issue of whether the purported protection visa application lodged in September 2018 was invalid by reason of s.48A of the Act. Nor is any basis apparent. There was no reliance by the Applicant on the argument rejected in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 and SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121. In any event, those authorities are binding on this court.
The Applicant has not identified any possible argument in relation to s.48A such as to raise an arguable ground of review. There has been no attempt to grapple with the application of s.48A of the Act. There is nothing in the Applicant’s circumstances that is relied on to take her outside the operation of s.48A of the Act. Nor is any issue apparent on the material before the court in relation to the application of s.48A to a person in the position of the Applicant making a second protection visa application (cf AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; (2015) 235 FCR 150).
The matters in the substantive application and addressed in the Applicant’s submissions and the material she relied on do not meaningfully advance any case in relation to the validity of her second protection visa application. As the Minister submitted, the grounds and submissions either seek merits review or appear to take further issue with the decision of the Tribunal that is not in issue in the present proceedings (and has been the subject of past judicial review proceedings).
Insofar as the Applicant seeks merits review, the circumstances are such that the merits were not and could not be considered by the delegate because the delegate was of the view that the second protection visa application was invalid.
The Applicant’s concern that her personal information was published (on what she says were two occasions) is understandable. However this does not assist her in the present proceedings. Nor does her concern that she had been in some way treated unfairly in itself establish any basis on which it could be held that, as a matter of law, there is any arguable case that her second protection visa application is valid.
I am satisfied that the Minister has established that the Applicant has no reasonable prospects of success. I am also satisfied that it is appropriate to dismiss the proceedings summarily in circumstances where there is nothing to suggest any arguable case that the Applicant’s second protection visa application may be a valid protection visa application that should be considered by the Minister.
The Minister seeks costs. The Applicant raised her incapacity to pay. The Applicant’s lack of funds is a matter that may be taken into account by the Minister in determining when and how to seek to recover costs. However I am not persuaded that her impecuniosity is a basis on which it is appropriate in this case to depart from the normal principle that an unsuccessful applicant should meet the costs of the respondent. Nor am I satisfied that it is a basis on which the costs should be reduced in circumstances where the amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 10 July 2019
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