SZVCQ v Minister for Immigration

[2015] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 738

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (Class XA) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958, ss.48A, 476, 477
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZVCQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 481 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Solicitors for the Applicant: There being no appearance by or on behalf of the Applicant

Solicitors for the Respondent:

Ms B. Griffen

Australian Government Solicitor

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 481 of 2015

SZVCQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a Constitutional writ against the Minister in respect of a decision dated 13 January 2015. This is a matter in respect of which an extension of time is required under s.477.

2. The grounds of the application are as follows:

   1. Second Protection visa application lodged on 8/1/2015, should be accepted as valid.
   2. Case of SZGIZ v MIAC: The applicant believes that this case does have relevance to his case, as the complementary protection visa claims were not properly assessed as he did not receive the letter to present his claims at interview. Also, he did not receive the refusal letter which meant that time frame allowed to apply for Merits review had elapsed (sic).

   3. Case of SZRNJ v MIAC: The case does show that an applicant had a second protection visa application deemed as INVALID. The Federal Circuit Court did have jurisdiction to consider the case although it was later dismissed.

3. The first Court date on the face of the application relevantly provides:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. This matter was listed at 9.30am and the applicant presented communication to the Court at 9.36am. The applicant made a communication with the Registry at about 9.36 am in which he identified that he was unable to attend Court today due to an illness and would provide a copy of a medical certificate.  There is a medical certificate that has been signed by a Dr Christopher An, dated 25 March 2015, which, relevantly, says:

   I certify that in my opinion [X] will be unfit for work from 26/03/2015 to 26/03/2015 inclusive due to gastroenteritis.

5. It is not acceptable for an applicant to simply contact the Registry and forward a medical certificate relating to fitness for work when required to attend Court.  The Court contacted the applicant to indicate that the matter would be stood down until 3pm today to permit the applicant to attend.  In response to that, the applicant forwarded to the Registry an email that relevantly provided as follows:

   Dear Honourable Judge,

   
   
   

   I have asked my friend to write to you on my behalf requesting that today's hearing be adjourned to another day as I am unwell and a medical certificate was obtained late last night and sent by email to the court this morning.

   
   
   

   I was advised by my brother that at 1245 he was advised by an officer of the Court that the hearing from this morning has been stood over to 3pm.

   
   
   

   I write to respectfully state that I am sick and I am unable to attend. If the case has to be decided today and cant be adjourned to another day, then I ask that you kindly consider the following:

   
   
   

   1. I have never had my protection visa claims properly assessed by DIBP or the RRT because I never recieved the letter for the interview or refusal of the original decision until I found out almost 8 months later.

   
   

   2. I have lodged the second protection visa application and it was deemed invalid. This is the main reason for this appeal.

   
   

   3. I understand that the Law has changed as a result of the SGIZ case but, believe I should still have rights to have my claims assessed. I am of the opinion that the Court should have the power to allow the second protection visa application to proceed.

   
   
   

   Please look into my case as the above points are the issues I was going to raise with the Court today. If an adjournment can be granted I would be greatful.

   
   
   

   Thank you for your time.

   
   
   

   Yours sincerely,

   
   
   

   [X]

6. The Court endeavoured to contact the applicant on the telephone number provided and was informed the applicant was not there.

7. There is no utility in granting any adjournment of these proceedings as the proceedings are clearly doomed to failure and an adjournment will only unnecessarily add to the costs of the parties and utilise further Court time.  It is clear that the grounds identified fail to identify any jurisdictional error in the Minister’s decision.

8. In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

9. The applicant has no rights of a merit review in respect of the invalid application lodged by the applicant on 8 January 2015. The applicant was refused a Protection (Class XA) visa on 9 July 2013. It is clear under s.48A that the applicant is a person who is in the migration zone and has made an application for a protection visa where the grant of that visa has been refused, and, in those circumstances, he is not entitled to make a further application for a protection visa while in the migration zone.

10. I am satisfied that there is no jurisdictional error in the approach adopted by the Minister in the decision dated 13 January 2015 identifying that the application for a protection visa was invalid.  In these circumstances, the proceedings are clearly deemed a failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 March 2015