SZWAP v Minister for Immigration (No.2)

[2015] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAP v MINISTER FOR IMMIGRATION (No.2) [2015] FCCA 541

Catchwords:
MIGRATION – Review of decision of the delegate – partner (temporary)(class UK) (subclass 802) – partner (residence)(class BS)(subclass 801) visa – whether the application made was valid – application dismissed.

Legislation:
Migration Act 1958, ss.5, 46, 14, 109, 476

Berenguel v the Minister for Immigration and Citizenship (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8

Applicant: SZWAP

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 287 of 2015

Judgment of: Judge Street

Hearing date: 4 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 4 March 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: D’Ambra Murphy Lawyers

Counsel for the Respondent: Mr M. J. Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Amended Application be dismissed

2. Applicant to pay the Respondent’s costs fixed in the sum of $3800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 287 of 2015

SZWAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 a decision by the respondent made on 16 January 2015 under s.46A of the Migration Act 1958. The Court raised the question of whether the grounds identified an arguable ground and was stood over for argument on 27 February 2015.

2. As a result of the interconnection between these proceedings and other proceedings, number SYG199/2015, it was pointed out by Mr Karp on 27 February 2015 that a successful application in those proceedings would impact on the application of s.46A. I was satisfied that Mr Karp was correct, and that if he succeeded in matter number SYG199/2015 there would be force in these proceedings.

3. It was in those circumstances that the matter was fixed for final hearing before the court today. The applicant has not succeeded in the proceedings number SYG199/2015, and therefore the provisions of s.46A do have application to the applicant in the present case.

4. Section 46A is as follows:

   s. 46A Visa applications by unauthorised maritime arrivals

   (1)  An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

   (a)  is in Australia; and

   (b)  is an unlawful non-citizen.

   (2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

   (3)  The power under subsection (2) may only be exercised by the Minister personally.

   (4)  If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

   (a)  sets out the determination; and

   (b)  sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.

   (5)  A statement under subsection (4) must not include:

   (a)  the name of the unauthorised maritime arrival; or

   (b)  any information that may identify the unauthorised maritime arrival; or

   (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.

   (6)  A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

   (a)  if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or

   (b)  if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.

   (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

5. In this case the Minister on 16 January 2015 informed the applicant, relevantly in relation to an application for a  partner (temporary)(class UK) (subclass 802)/partner (residence)(class BS)(subclass 801) visa:

   Your application for a visa is invalid because it did not meet section 46A of the Migration Act 1958 (The Act). The provision provides that, because you are an unauthorised maritime arrival, your application for a visa is invalid because you in Australia and you are an unlawful non-citizen.

   Invalid applications cannot be considered.  Your application has not been accepted and will not be assessed against the visa criteria for a grant or refusal.

6. In the present case there is no issue but that the applicant is an unauthorised maritime arrival, and the applicant is in Australia, and the applicant is an unlawful non-citizen within the meaning of s.46A. The grounds sought to be advanced by the applicant in the Amended Application were as follows:

   1. The Minister committed jurisdictional error in finding that the applicant’s application for a Partner Visa, sought to be lodged on 15 January 2015, was invalid.

   Particulars

   (a) Error in finding that s.46A(1) of the Migration Act applied to the applicant as a result of the cancellation of her Protection visa in December 2014,

   (b) On its true construction, s. 46A(1) has ceased to apply to the applicant, at the latest, upon the grant of her Protection Visa.

   2. The Minister lacked jurisdiction to make a finding that the applicant’s application for a Partner Visa, sought to be lodged on 15 January 2015, was invalid.

   Particulars

   (a) The applicant’s Protection Visa had not been lawfully cancelled.

7. The applicant sought to argue that there was error by the Minister by reason of s.5AA. The applicant submitted that s.5AA and s.46A should be read together so as to discourage people from coming to Australia by boat. The applicant sought to argue that the status of coming to Australia within s.5AA does not continue after the grant of a substantive visa, even though that visa might subsequently be cancelled. That argument has no substance as to the provisions of s.46A are of continuing force of law.

8. The applicant accepted that upon cancellation of the applicant’s visa she was an unlawful non-citizen pursuant to s.14. The applicant contends that it cannot be the case upon cancellation of a protection visa under s.109 that the person then becomes an unauthorised maritime arrival. It was put that such a construction would be contrary to the principles identified in Berenguel v the Minister for Immigration and Citizenship (2010) 264 ALR 417; (2010) 84 ALJR 251 at [26].

9. I am satisfied that s.46A applies at the time of the determination of whether or not a valid application has been made, and as at that time it is clear that the applicant is a person who is an unauthorised maritime arrival, and is in Australia, and is an unlawful non-citizen. In those circumstances there is no substance, in the alleged error under s.46A. In relation to the first ground there is no substance in the proposition that s.46A ceased to apply to the applicant by reason of the grant of a protection visa, notwithstanding that that visa was subsequently cancelled. Accordingly, ground 1 is without substance.

10. In relation to ground 2, it was clearly open to the Minister to find that the proposed application for a partner visa was not a valid application by reason of s.46A. There was no jurisdictional error by the respondent in so holding. In these circumstances the Amended Application is dismissed.

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

Associate: 

Date: 11 March 2015