SZVVI v Minister for Immigration - [2017] FCCA 546

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 546

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of first respondent to cancel Protection visa – whether the Tribunal had jurisdiction to review delegate’s decision given the Protection visa that was cancelled had been granted in response to an application that was not a valid application for a visa – whether Court has jurisdiction in relation to the delegate’s decision to cancel Protection visa – whether Tribunal acted on certificate purportedly issued pursuant to s.438 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 29, 29(1), 36(2)(aa), 46(1), 46(1A), 46(2),

46(2A), 47, 47(3), 48A, 48B, 65, 65(1), 69, 69(1), 101, 107, 107(1), 107(1)(b),

108, 109, 109(1), 375A, 411(1), 414(1), 414(2), 415(1), 438, 438(1)(b), 476,

476(2)(a), 476(4)

Cases cited:

BIE15 v Minister for Immigration & Anor [2016] FCCA 2978

CKG15 v Minister for Immigration & Anor [2017] FCCA 938
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906

First Applicant:

SZVVI

Second Applicant:

SZVVJ

Third Applicant:

SZVVK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3473 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

11 February 2016

Date of Last Submission:

11 July 2017

Delivered at:

Sydney

Delivered on:

28 July 2017

REPRESENTATION

Counsel for the Applicants:

Ms A Poljak

Solicitors for the Applicants:

Christopher Levingston & Associates

Solicitors for the First Respondent:

Ms L Buchanan of

Australian Government Solicitors

ORDERS

The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The applicants’ application for leave to rely on the further amended application filed on 8 June 2017 is dismissed.
The second and third applicants are removed as parties.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3473 of 2014

SZVVI

First Applicant

SZVVJ

Second Applicant

SZVVK

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application for judicial review raises two issues. The first is whether the second respondent (Tribunal) had jurisdiction to consider an application for review of a decision of a delegate made under s.109 of the Migration Act 1958 (Cth) (Act) to cancel the first applicant’s Protection (Class XA) visa (Protection visa). The second issue, which arose after the matter had been listed for judgment, is whether the Tribunal’s decision is affected by the Tribunal’s not having disclosed to the applicants certificates that had been issued purportedly pursuant to s.438 of the Act. I will separately deal with each issue.

The first issue

The first issue arises out of the following circumstances. On 11 September 2006 the first applicant (applicant),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 546
Decision Date: 28 July 2017

CaseChat Overview and Summary

This matter came before Judge Manousaridis in the Federal Circuit Court of Australia. The applicant sought an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of a delegate of the Minister for Immigration to cancel the applicant's Subclass 866 (Protection) visa, and the subsequent decision of the Administrative Appeals Tribunal affirming that cancellation. The basis for this challenge was the applicant's assertion that the original visa application, made on 17 September 2009, was invalid by operation of sections 48A and 48B of the *Migration Act 1958* (Cth), meaning neither the delegate nor the Tribunal had jurisdiction to determine the matter.

The core legal issues before the Court were whether the Tribunal had jurisdiction to review the cancellation of a Protection visa granted on the basis of an allegedly invalid application, and whether the Tribunal committed a jurisdictional error by failing to have genuine regard to section 48A of the Act. The applicant also argued that quashing the Tribunal's decision would render both the delegate's and the Tribunal's decisions invalid and without legal effect. Conversely, the Minister contended that the Court lacked jurisdiction to declare invalid the delegate's decision to grant the visa, as it was a "primary decision" under section 476 of the Act. The Minister further argued that even if the visa application was invalid, the applicant was still a "holder of a visa" for the purposes of section 107, and the Tribunal retained jurisdiction over the delegate's cancellation decision, even if the delegate had erred. Finally, the Minister submitted that relief should be withheld on discretionary grounds due to the applicant's alleged acquiescence in the invalidity.

The Court considered the applicant's submissions that the Tribunal lacked jurisdiction due to the invalidity of the initial visa application and that the Tribunal made a jurisdictional error by not properly considering section 48A. The applicant's argument for utility in quashing the decisions was also noted. The Minister's counterarguments focused on the Court's jurisdiction regarding primary decisions, the applicant's status as a visa holder despite an invalid application, the Tribunal's jurisdiction over the delegate's decision, and discretionary grounds for withholding relief. The Court's reasoning and final orders are not detailed in the provided text.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Pursuant to the leave I granted, the applicant filed an amended application, together with written submissions. The amended application does not amend the ground contained in the original application; but it did amend the relief the applicant seeks, which is as follows:An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decisions of the delegate of the first respondent, dated 30 May 2014, to cancel the first applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (“the Act”) (“delegate’s decision”) and the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), the second respondent, dated 24 November 2014 (“the decision”), as the delegate and Tribunal had no jurisdiction to determine the matter by reason that the first applicant’s visa application made on 17 September 2009 for a Protection (Class XA) visa (“visa application”) was invalid by operation of sections 48A and 48B of the Migration Act 1958 (Cth) (“the Act”). The applicant makes three submissions. First, he submits the Tribunal did not have jurisdiction to entertain the application for review because the Protection visa the delegate had cancelled had been granted on the basis of an invalid application.[6] Second, the Tribunal made a jurisdictional error because it purported to entertain an application for review of the delegate’s decision to cancel the applicant’s Protection visa, even though the Tribunal failed to have genuine regard to s.48A of the Act.[7] Third, there would be utility in quashing the Tribunal’s decision or declaring that the Tribunal’s decision and the delegate’s decision to grant the Protection visa was invalid because the “effect of such a declaration or order would render the decisions of both the delegate and the Tribunal invalid and they would have no legal effect from then onwards”.[8][6] First Applicant’s Outline of Submissions, [15] [7] First Applicant’s Outline of Submissions, [18] [8] First Applicant’s Supplementary Submissions, [6] The Minister, on the other hand, makes the following submissions. First, the Court does not have jurisdiction to declare invalid the delegate’s decision to grant the applicant a Protection visa because that decision is a “primary decision” within the meaning of s.476 of the Act.[9] Second, despite the second Protection visa application being an invalid application, the applicant was granted a visa, and was thus the “holder of a visa” for the purposes of s.107 of the Act; and there is nothing in the Act which prevented the Tribunal from treating the applicant as being the holder of a visa, even where the visa was granted in response to an invalid application.[10] Third, the Tribunal had jurisdiction over the delegate’s decision, even though the delegate himself may have made a jurisdictional error.[11] Fourth, even if the Tribunal made a jurisdictional error, relief should be withheld on discretionary grounds because the applicant acquiesced in the invalidity of the decision.[12]