SZVEB v Minister for Immigration
[2016] FCCA 1300
•3 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVEB v MINISTER FOR IMMIGRATION | [2016] FCCA 1300 |
| Catchwords: MIGRATION – Application for protection visa (class XA) – review of decision of Refugee Review Tribunal – whether the Minister’s finding that the application was not valid was correct – applicant removed from Australia and refused entry into Pakistan – whether applicant taken to have been continuously in Australia - Minister under a duty not to consider the application made as applicant was not offshore – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 7, 42, 45, 46, 47, 48A, 198, 422, 476 |
| Applicant: | SZVEB |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 410 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 May 2016 |
| Date of Last Submission: | 3 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2016 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms N Maddocks, DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 410 of 2016
| SZVEB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The applicant is a citizen of Pakistan who arrived in Australia on 29 May 2012 on a student visa. On 30 September 2013, he made an application for a protection visa. On 26 February 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. The applicant did not appear at the hearing conducted by the Tribunal and did not explain his failure to appear. The Tribunal made its decision on 3 September 2014, affirming the decision to refuse to grant the applicant the protection visa.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The applicant then applied to this Court for judicial review of the Tribunal’s decision. That application was dismissed when the applicant failed to appear at a callover on 29 January 2015 and his application for reinstatement of his application was dismissed on 27 March 2015. The applicant then sought leave to appeal from the decision to refuse the reinstatement, but once again, he failed to appear at the hearing. That application for leave was then dismissed and the subsequent application to Farrell J for reinstatement of the application for leave was refused. The final decision by Farrell J was made on 15 October 2015.
It appears then that arrangements were made to remove the applicant from Australia pursuant to s.198 of the Migration Act 1958 (Cth); in particular, s.198(6). On 22 January 2016, the applicant flew with some immigration officers to Pakistan via Bangkok. When he arrived in Pakistan, he was refused entry and returned to Australia via Bangkok. Upon arrival back in Australia, he was taken once again to immigration detention. On 27 January 2016, the applicant made a further application for a protection visa. On 28 January 2016, the applicant was notified that the application for the visa was not a valid application and the following explanation was given:
On 26/02/2014 you were refused a Protection (class XA) visa. Under section 48A of the Act a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application. However, the Minister has the power under section 48B of the Act to allow a person to apply again for a Protection (class XA) visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.
In response to that notification, a number of submissions were made to the Department on behalf of the applicant. Amongst other things, those submissions pointed out that the applicant had, in fact, left Australia since his last protection visa application. The final response to this correspondence was made on 15 February 2016, confirming that the application was invalid. The applicant now seeks the exercise of this Court’s jurisdiction under s.476 of the Act.
Jurisdiction of the Federal Circuit Court
This Court has the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution. Migration decisions are broadly defined and include a decision that a visa application is invalid. However, this Court does not have jurisdiction in respect of a primary decision, which includes a decision that is reviewable under pts.5 or 7 of the Act.
Part 7 of the Act deals with reviews of decisions concerning an application for a protection visa. A decision reviewable under s.422 of pt.7 includes a decision to refuse to grant a protection visa. However, s.47(4) provides, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. The decision in this case fell within that description and I am satisfied that the court has jurisdiction to determine the application.
Consideration
The system for the grant of visas in the Act is primarily contained in pt.2. Importantly, s.45 provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 47(1) provides that the Minister is to consider a valid application for a visa. However, under s.47(3), the Minister is not to consider an application that is not a valid application. In this case, it is clear that the Minister did not consider the applicant’s application. Thus, the question is whether the application was valid or not. That is a question for determination by the court.
Section 46 of the Act provides for the validity of applications for visas. There are a number of complex provisions in that section. Relevantly, sub-s.46(1)(d) provides that an application for a visa is valid if, and only if it is not prevented by any provision of this Act, including s.48A. At the relevant time, 27 January 2016, being the date of the application, s.48A provided:
(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
…
may not make a further application for a protection visa … while the non-citizen is in the migration zone.
Subsection (1A) provides:
(1A) For the purposes of this section, a non-citizen who:
(a)has been removed from the migration zone under section 198; and
(b)is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
This section, if it applied to the applicant, was sufficient to meet the argument made on behalf of the applicant that he was entitled to apply for a visa because he had left Australia for Pakistan.
Sub-section 42(2A)(d), referred to in that section, provides as follows:
Subsection (1) does not apply to a non-citizen in relation to travel to Australia:
…
(d)if:
(i) the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and
(ii) the non-citizen travels to Australia as a direct result of that refusal; and
(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or
…
As I mentioned earlier, it is clear that the applicant, on 22 January 2016, was removed from Australia under s.198. It is also clear from the evidence before the Court that he was refused entry to Pakistan. An email from an officer of the department dated 23 January 2016 explains just that. That email also explains that as a direct result of that refusal, the applicant travelled back to Australia.
Finally, having been refused a protection visa, and not otherwise having any visa that would permit him to remain lawfully in Australia, and not being a citizen of this country, the applicant was an unlawful non-citizen.
In those circumstances, sub-s.42(2A)(d) applied to the applicant, and so, pursuant to sub-s.48A(1A), is taken to have been continuously in the migration zone, despite his removal under s.198. The immediate consequence of that is that the applicant was prevented by s.48A from making an application for a protection visa, because he had previously made an application which had been refused.
The corollary of that, is that pursuant to s.46 of the Act, the application lodged by the applicant on 26 January 2016 was not a valid application. Lastly, because it was not a valid application the Minister was required not to consider it. As the Minister was under no duty to consider the application, and indeed, was under a duty not to consider it, there could be no order of mandamus requiring the Minister to consider the application.
Conclusion
For those reasons, the application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 1 June 2016
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