SZWAO v Minister for Immigration

[2015] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 453

Catchwords:
MIGRATION – Whether the applicant made a valid Protection visa application – whether the applicant was precluded from applying within the Migration Zone as a result of s.48A of the Migration Act.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001

Migration Act 1958

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

Applicant: SZWAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 198 of 2015

Judgment of: Judge Street

Hearing date: 27 February 2015

Date of Last Submission: 27 February 2015

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Applicant: Adrian Joel & Co Solicitors

Counsel for the Respondent: Ms Blake

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The proceedings are summarily dismissed. 

2. The applicant pay the respondent’s costs fixed in the sum of $2500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 198 of 2015

SZWAO

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 which the applicant seeks to contend that s.48A of the Migration Act 1958 does not render invalid the Protection visa application that has been lodged by the applicant and that the respondent is not precluded by s.48A from entertaining what is an endeavour by the applicant to have advanced a complementary protection application.

2. On the return of the matter before the Court which relevantly identifies that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings, the Court raised with the solicitor for the applicant the concern that the proceedings and grounds as identified appeared doomed to failure and that the Court was inclined to hear argument as to why the application should not summarily be dismissed.

3. The Court heard some argument from the solicitor who advanced the proposition that there were detailed written submissions in other cases that explained why these grounds were arguable.  It was on that basis that the matter was stood over to today. 

4. At the commencement of the hearing today, I identified for counsel for the applicant that the concern that had arisen on the last occasion was that the application appeared to identify grounds that were doomed to failure and had no prospects of success.

5. In this regard, the application identified that the substance of the applicant’s claim was that, in essence, the original application for a protection visa was invalid and, therefore, on the applicant’s argument did not fall within s.48A.

6. I identified that the above proposition appeared to me to be one that lacked substance, and asked for any authority for that proposition. 

7. I was taken to authorities that did not support the proposition that the protection visa application that was heard by the Tribunal in respect of the protection visa sought by the applicant without addressing complementary protection was somehow invalid. 

8. In response to the direct requests for the Court to be taken to that authority, the Court was handed a large bundle of authorities which did not contain the relevant authorities.  Counsel further handed up  submissions occupying 15 pages. Counsel advanced that this was a most complex case and a test case and one in respect of which it was necessary to go through the history of the matter in detail. 

9. Counsel for the applicant accepted that his client is currently in the migration zone. It is crystal clear that the applicant is a person who has made an application for a protection visa which has been refused and falls squarely within s.48A(1)(a) and in those circumstances may not make a further application for a protection visa while in the migration zone.

10. The provisions of s.48A were amended to make clear by subs.(1C) that the grounds of the earlier application such as in this case which did not address complementary protection, would not be a ground that would take the protection visa application outside the scope of s.48A. It was clear that s 48A(1B) also expanded the scope of s.48A.

11. The substance of the applicant’s argument is that the protection visa application form was invalid which was the subject of the hearing before  the delegate.  The application that was lodged by the applicant for a protection visa on 8 March 2012 which the delegate refused on 29 June 2012 and which was the subject of a review on 11 July 2012.  The Tribunal affirmed the decision of the delegate on 27 June 2013.  The Tribunal did not address the complementary protection claims even though on 24 March 2012 the complementary protection criteria was as a matter of law introduced and of effect. The Tribunal is only required to address the claims advanced and here the applicant did not advance a claim for complementary protection.  Accordingly, the law as to complementary protection was capable of application at the time of the determination both of the delegate and of the Tribunal. 

12. I put to counsel for the applicant that it would have been open for the applicant to raise before the Refugee Tribunal the complementary protection claim at that stage.  I am satisfied that it would clearly have been open to the applicant to raise the complementary protection claim if it had wished before the Refugee Review Tribunal and prior to its decision on 27 June 2013. 

13. As I pointed out to counsel for the applicant, the consequence of that would be that if the applicant wished to raise that complementary protection issue it was a matter that could have been raised in a Constitutional challenge under s.476 within the timeframe of s.477. I pointed out a belated application would clearly face the requisites of s.477 as a hurdle that the applicant would need to get over in such a delayed application for a writ.

14. In this case it is clear that the applicant at the time made a valid application to the Minister and that the delegate entertained that valid application. The argument developed by counsel for the applicant was that s.46 together with s.47 and the provisions in the Schedules meant that because there was no reference to the complementary protection criteria the protection visa application was therefore invalid. Accordingly it was contented that the determination of the protection application was one which was invalid and there had never been a valid application for a protection visa within the language of s.48A. Neither Clause 866.211 of Schedule 2, nor Schedule 1 Item 1401 required inclusion of complementary protection to be a valid form. The want of reference to complementary protection on the approved form did not give rise to any non-compliance with Regulation 2.07(3). The omission of reference to complementary protection on the approved form did not render the non-compliant with s.46. Those propositions are, in my opinion, patently without substance and doomed to failure.

15. At the commencement of the hearing today I granted leave for there to be filed electronically in Court an amended application:

    Ground 1: Procedures requires by law to be observed – the original jurisdiction was not in the ‘approved’ form

    1. The Respondent was required to observe procedures by law and those procedures were not observed.

    a) On 13 September 2011, the applicant arrived in Australia on a Student (Class TU) (subclass 573) visa and on 8 March 2012, first applied to the respondent for a protection visa under the Refugee Criterion, before the introduction of the Complementary Protection Criterion.

    b) On 24 March 2012, the Complementary Protection Criterion was introduced by way of s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth).

    c) The design date of the original Application Form 866C was dated 11/11 and was a defunct form, which excluded the complementary criterion. As a result, the original application lodged with the respondent had not been completed in accordance with the approved Form 866 and the applicant made no complementary claims in the original application.

    d) On 3 July 2013, the Full Court of the Federal Court of Australia gave judgment in the matter of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, determining that section 48A of the Act did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in section 36(2)(a) of the Act from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) of the Act or the family membership criteria in s.36(2)(b) or (c) of the Act.

    e) On 28 May 2014, section 48A of the Act was amended by the Migration Amendment Act 2014 (Cth). The relevant provisions of the Migration Amendment Act 2014 (No.30 of 2014) were designed to overcome the effect of the judgment in SZGIZ v MIAC (2013) 212 FCR 235.

    f) For further applications made before 28 May 2014, section 48A applies as it was before amendment by the Migration Amendment Act 2014 (Cth).

    g) For further applications made after 28 May 2014, subsection 48A(1C) prohibits a further application regardless of the grounds or criteria for applying (or for the visa grant, in the case of a cancelled visa), or whether the grounds or criteria existed earlier.

    h) On 8 December 2014, the applicant lodged a further application for a Protection visa, expressly relying on the complimentary protection criterion under section 36(2)(aa) of the Act.

    i) On 24 December 2014, a Departmental officer notified the applicant that the application for a visa was invalid by virtue of s 48A of the Act.

    j) The original application was not completed in accordance with the approved Form 866, as per schedule 1, Item 1401 and Schedule 2, Clause 866.211.

    k) The respondent did not comply with regulation 2.07(3) and the application, as originally submitted, was not a valid application: s 46(1)(b) of the Act.

    l) The respondent was therefore prohibited from considering the application for a protection visa under s 47(3) of the Act.

    Ground 2: Error of Law – Section 48A of the Migration Act was no bar to lodging a further application

    2. The decision by the Respondent involved an error of law, whether or not the error appears on the record of the decision.

    a) The applicant was not barred by section 48A of the Act from lodging a further protection visa application.

    b) One 8 December 2014, the applicant lodged a further application for a Protection visa, expressly relying on the complimentary protection criterion under section 36(2)(aa) of the Act.

    c) On 24 December 2014, a Departmental officer notified the applicant that the application for a visa was invalid by virtue of s 48A of the Act.

    d) Section 48A was amended by the Migration Amendment Act 2014 and applies differently depending on when the further application for a protection visa was made

    e) For further applications made after 28 May 2014, subsection 48A(1C) prohibits a further application regardless of the grounds or criteria for applying (or for the visa grant, in the case of a cancelled visa), or whether the grounds or criteria existed earlier.

    f) Nowhere in section 48A(1C) is an ‘invalid application’ listed as a category for refusal. The basis of refusal is strictly limited to ‘grounds’ or ‘criteria’, but not to whether the application was ‘valid’ or ‘invalid.’

    g) Given that the first application was invalid and void ab initio with no legal effect, the secondary application must be treated as an original application and as such, is not barred by section 48A.

    Ground 3: Natural Justice

    3. The respondent breached the rules of natural justice in connection with the making of the decision.

    a) the respondent deprived the applicant of a fair hearing and the ability to give evidence and present arguments in violation of s414 and 425 of the Migration Act 1958 (Cth) and his common law rights of natural justice and procedural fairness.

    b) the applicant was denied the right to be heard by the section 48A prohibition on making a secondary application for the reasons particularized at [1] (a)-(l) and [2] (a)-(i).

    c) The applicant was denied natural justice and procedural fairness by the retrospective application of section 48A of the Migration Act 1958 (Cth).

    d) Section 48A of the Migration Act 1958 (Cth) is an unreasonable and unlawful fetter on the jurisdiction and the inherent powers of the Court.

16. In relation to ground 1, it is clear that s.48A(1) applies to the applicant in the present case and it was entirely correct for the Minister, according to law, to reject what was an invalid application by the applicant by reason of s.48A.

17. The applicant wished to subpoena the respondent in relation to the design of the form at the time of the original application for a protection visa and to pursue inquiries in relation to the amendments to introduce reference to complementary protection.  None of those matters would assist this Court to determine the present application, given that it is clear it is doomed to failure.

18. It is not the position that ss.46 and s.47 rendered invalid the protection visa application that was heard by the delegate and then reviewed and determined by the Tribunal on 27 June 2013.  I take into account in respect of the summary dismissal power in s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles identified in and the caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at[24]-[25] and [59]-[60]. I have taken into account written submissions and oral submissions of the applicant’s counsel.

19. The argument of counsel started to develop a course that was not assisting the Court in the context of seeking to address ground 2. The Court put to counsel that it appeared to be dependent on ground 1.  Ground 1 is, for the reasons I have given above, doomed to failure.  Ground 2 is clearly dependent upon the same arguments and substance as raised in ground 1 and it too is doomed to failure.  The application for a protection visa considered by the delegate and the Tribunal was clearly not invalid or void ab initio with no legal effect because of the omission on the approved form of reference to complementary protection.

20. When I invited counsel to address ground 3, I drew attention to the fact that if s.48A had application, it could not be the case that one would be entitled to a hearing. Given that the application in the present case squarely falls within s.48A(1), there is no substance in the proposition that there was some denial of procedural fairness or want of natural justice to the applicant in connection with the determination that the application was invalid. I am satisfied that ground 3 is doomed to failure.

21. The applicant’s counsel then sought to develop arguments of no assistance as to what was the meaning of an arguable case.  It was at that point that it became clear to the Court that the arguments being advanced by counsel were of no assistance to the Court. Counsel for the applicant was directed to sit down and did so on being told to comply with the Court’s order. 

22. It is most important that this Court can rely upon counsel to be candid and frank in response to questions from the Court relating to matters of law or fact.  A deliberate erroneous response would fall below the standard.  I also note it is not the role of counsel to obfuscate or protract proceedings by unresponsive argument.

23. Whilst I have identified the standard of conduct expected of counsel it is not a matter that I have taken into account in determining whether the grounds are arguable. Each of the three grounds advanced in the amended application are without substance and I am clearly satisfied the proceedings have no reasonable prospects of success. 

24. It is in those circumstances that the proceedings are summarily dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 March 2015