FEDERAL COURT OF AUSTRALIA

SZANA v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 203

Migration Act 1958 (Cth) s 46(1)(d), 47(1), 47(3), 48A, 49B, 414(1), 415, 415(2)(d)

Applicant SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1407 applied

NAQQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 607 cited

SZANA v Minister for Immigration & Multicultural Affairs [2003] FMCA 460 cited

SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 60 applied

SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 350 discussed

SZANA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 18 OF 2004

HELY J

12 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a national of Turkey of Kurdish ethnicity.  He arrived in Australia on 20 October 1987, travelling on a Turkish passport.  On arrival in Australia he was issued with a temporary entry permit allowing a ten day stay.  I do not know whether the applicant was subsequently given further permission to remain in Australia.  However, he has remained in Australia ever since – a period of about 17 years.

2                     In June 1997 the applicant was detained by Department of Immigration & Multicultural Affairs (‘DIMA’) officers.  On 1 July 1997 he lodged a protection visa application.  The form of application required the applicant to state his reasons for claiming to be a refugee and his fears as to what might happen to him if returned to his country of nationality.  Those sections of the form were endorsed: ‘please see attached’, but there was no relevant attachment.

3                     On 10 July 1997 the Minister’s delegate refused the application on the grounds that no claims had been advanced which would enable a finding to be made that the applicant was a refugee.  The delegate noted that it would ‘be naïve not to have doubts about the applicant’ as he has been in Australia for almost ten years, and did not claim to be a refugee until he came to DIMA’s attention in association with ‘compliance activities’.  On 10 July 1997 DIMA received a document from the applicant in Turkish containing his claims for protection under the Convention.

4                     On 11 August 1997 the applicant sought review of the delegate’s decision.  The Refugee Review Tribunal (‘the RRT’) invited the applicant to attend a hearing on 20 October 1998, and although he had advised the RRT that he wanted to give oral evidence, he neither attended the hearing nor contacted the RRT to explain his failure to attend.  On 22 October 1998 the RRT affirmed the delegate’s decision not to grant a protection visa to the applicant.

5                     On 7 April 1999 Mathews J dismissed an application for review of the RRT’s decision: [1999] FCA 429.  On 20 May 2003 application was made for an extension of time within which to appeal from the decision of Mathews J.  That application was refused by Jacobson J on 10 June 2003: NAQQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 607.

6                     On 28 February 2003 the applicant was detained, and held at the Immigration Detention Centre, Villawood, where he remains.

7                     In March 2003 the applicant lodged a further application for a protection visa which is undated.  Section 48A of the Migration Act 1958 (Cth) (‘the Act’) provides that, subject to s 49B, a non-citizen who, while in the migration zone, has made an application for a protection visa and the grant of the visa has been refused, may not make a further application for a protection visa while in the migration zone.  Section 48B allows the Minister, by written notice given to a particular non-citizen, to determine that s 48A does not apply to prevent a second application.  This determination is conditional on the Minister thinking that it is in the public interest to do so.  DIMA treated the second application for a protection visa as a request under s 48B, and on 21 March 2003 notified the applicant that it refused to refer the ‘request’ for permission to make a second protection visa application to the Minister as it did not fall within the Minister’s guidelines.

8                     On 26 March 2003 and 31 March 2003 the applicant lodged applications for review forms with the RRT.  On 14 April 2003 the RRT found that these applications were not valid and that the RRT had no power to consider them.  The RRT’s decision was that it does not have jurisdiction to consider the applications.

9                     On 2 May 2003 the applicant commenced proceedings in the Federal Magistrates Court.  On 4 July 2003 Driver FM granted an adjournment of the proceedings to enable an amendment to be made challenging the validity of the original application for a protection visa made on 1 July 1997.  An amended application was filed on 11 July 2003.  One of the contentions which the applicant put before the Federal Magistrate was that his original application for a protection visa was incomplete because of the absence of claims in that application.  The application was thus invalid, and he had been incorrectly barred by s 48A of the Act from making a second application for a protection visa.  On 18 August 2003 Driver FM dismissed the application on the basis that a valid protection visa application had been made by 22 October 1998, when the 1997 protection visa application was considered by the RRT: see SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 350.  His Honour accepted that the original application was incomplete, and was for that reason not a valid protection visa application.  But at [18] his Honour went on to hold that if, before a decision is made, the application completed, the application becomes a valid application. 

10                  On 27 August 2003 the applicant appealed from the decision of Driver FM.  That appeal was dismissed by Allsop J in a decision given on 9 December 2003: Applicant SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1407.  In dismissing the appeal, Allsop J specifically found that the appellant’s original protection visa application was valid at the time it was dealt with by the RRT.  At [25] Allsop J said:

‘Here, the application, fleshed out by the claims made in the two page handwritten document received on 10 July 1997, substantially complied with the requirements of Reg 866.21.  A clear Convention reason based on ethnicity or race or nationality was enunciated.  This was sufficient when read with the balance of the papers submitted to constitute an application: Bal v Minister for Immigration & Multicultural Affairs (2002) 198 ALR 566, esp 573-574 [35] – [42].’

A further application for a protection visa

11                  Meanwhile, a further protection visa application dated 25 June 2003 was lodged with DIMA (which, in the interim, had become DIMIA) on 30 June 2003.  On 30 June 2003 DIMA advised the applicant that it would not accept a fee in connection with the purported application because, having regard to the refusal of the original application, the applicant was not entitled to make a further application for a protection visa.  On 10 July 2003 DIMA advised the applicant that his ‘request’ to lodge a further protection visa application did not meet the applicable guidelines, and consequently he could not apply again for a protection visa.  However, on 31 July 2003 DIMA accepted the second protection visa application as valid.  This decision was made on the basis of recent legal advice that the original protection visa application was invalid for want of claims, an invalidity which was not cured by the subsequent lodgement of claims with the RRT.

12                  On 5 August 2003 the Minister’s delegate refused the protection visa application.

13                  On 8 August 2003 application was made to the RRT for a review of that decision.  On 11 December 2003 the RRT affirmed the decision not to grant a protection visa and gave detailed reasons for that decision.  Very briefly, the RRT found:

-                     the Turkish authorities did not have a serious adverse interest in the applicant because of his Kurdish ethnicity or his socialist/democratic political opinion when he left Turkey 16 years ago;

-                     that subsequent significant political changes in Turkey strengthened the conclusion that the applicant would not face a real chance of being persecuted by the authorities in Turkey; and

-                     that the delay of almost 10 years in applying for the protection visa was not consistent with the applicant’s claims that he left Turkey in fear of persecution for a Convention reason.

14                  A note to file signed by the RRT Member is as follows:

‘I did not have the attached Federal Court decision of 9 December 2003 before me when I made my decision on this application on 11 December 2003.  Nor was I aware that the issue of validity of the application and therefore our jurisdiction was being directly challenged.

I accepted that I had jurisdiction, and proceeded to decide the matter on the merits of the case.’

It is apparent that the Minister, for some unexplained reason, failed to draw the attention of the RRT to the decision of Driver FM given on 18 August 2003, or the decision of Allsop J given on 9 December 2003, although the latter was given only two days prior to the date on which the RRT made its decision.

The bridging visa application

15                  The application for a protection visa which was accepted by DIMA on 31 July 2003 also constituted the making of an application for a Bridging Visa E (Class WE).  Both the delegate and (later) the Migration Review Tribunal (‘the MRT’) approached the application for a bridging visa on the assumption that the July 2003 protection visa application was valid.  Each would have required a bond of $10,000 before granting a bridging visa.  The bond was never met.

16                  The applicant sought review of the MRT’s decision in the Federal Magistrates Court.  On 9 October 2003 Raphael FM dismissed the application: SZANA v Minister for Immigration & Multicultural Affairs [2003] FMCA 460.

17                  The applicant appealed from that decision to the this Court.  On 30 January 2004 Allsop J dismissed the appeal: SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 60.  It was necessary for Allsop J to determine whether the further protection visa application was a valid application, because the application for a bridging visa was only valid if accompanied by a valid application for a substantive visa.  For the reasons given in his decision on 9 December 2003, Allsop J held that the further protection visa application was invalid, and on this basis both the Minister’s delegate and the MRT had exceeded their jurisdiction in dealing with the application for a bridging visa.  This gave his Honour grounds for dismissing the appeal, since any remittal to the MRT or Federal Magistrate would have been futile.

The present proceedings

18                  On 5 January 2004 the applicant filed an application for judicial review of the decision given by the RRT on 11 December 2003.  That application was divided into three parts: part 1 contains 30 ‘grounds’, part 2 contains six ‘grounds’, and part 3 contains eleven ‘grounds’.  The applicant appeared in person on the hearing of the application without the benefit of legal assistance but with the aid of an interpreter.  The applicant was able to address me in the English language, and generally speaking he indicated a preference for doing so, despite the occasional suggestion on my part that he might be more comfortable speaking in his native tongue.

19                  Prior to the hearing, the respondent lodged with the Court and served upon the applicant a document styled ‘Respondent’s Outline of Submissions’, in which it was contended that the application should be dismissed because there is an issue estoppel arising out of the decision of Allsop J made on 9 December 2003 to the effect that the 1997 protection visa application was valid. The outline also contended that there is a res judicata or issue estoppel arising from his Honour’s judgment on 30 January 2004 that the application before the RRT in the present matter, the July 2003 protection visa application, was not valid.  At the hearing the applicant confirmed that he had received and read this document prior to the hearing, and he declined an offer to have it translated for him by the interpreter present at the hearing.

20                  The applicant told me that his submissions were embodied in two documents which I have had marked MFI 1 and MFI 2 and which have been placed with the papers.  The applicant’s constant theme was that his original application for a protection visa was invalid for incompleteness, hence he was entitled to make a further application for a protection visa.  He also complains that the RRT’s decision is flawed, and he attributes to the RRT a legal error in treating his further protection visa application as invalid.  Included in MFI 1 is a document styled ‘Application for an Order of Review’.  This document purports to have been prepared by a firm of solicitors but it invokes in pars 2 and 3 sections of the Act which have been repealed.  Paragraph 4 includes the following:

‘RRT rejected valid protection Application without Human right Freedom rule of regulation legal right ground.  The RRT has given incorrect decision to valid application on 11 December 2003.’

The applicant confirmed that whilst this document was part of his submission, he was not seeking to substitute it for the application for review filed on 5 January 2004.

21                  In the Minister’s submission I should deal first with the Minister’s contention that the further application for a protection visa accepted by DIMA on 31 July 2003 was invalid, and that therefore the Minister’s delegate and the RRT acted in excess of jurisdiction in purporting to deal with that application.  In the Minister’s submission, the individual complaints of the applicant against the RRT’s decision need only be dealt with if I am against the respondent in relation to this first contention.

22                  This is a sensible way of proceeding because if the Minister’s first submission is upheld then there is no point in considering the detailed complaints made about the RRT’s decision.  In any event, many of these complaints are difficult to understand, others are expressed in terms of extreme generality and most, if not all, of the complaints do not on their face raise any identifiable or recognisable ground of judicial review.

Decision

23                  An issue arises in the present proceedings as to whether the original protection visa application was validly and effectively refused by reason of the decision of the RRT given on 22 October 1998.  The issue arises in these proceedings by reason of the Minister’s contention that the Minister’s delegate, and the RRT, acted in excess of jurisdiction in considering the further protection visa application which was accepted by DIMA on 31 July 2003.

24                  The same issue was determined, and necessarily determined, by the final judgment given by Allsop J on 9 December 2003 in proceedings between the same parties.  Accordingly, it is not open to the applicant to re-agitate the same issue in the present proceedings.  Even if, for some reason, an issue estoppel does not arise, I would agree, with respect, with the conclusion reached by Allsop J for the reasons given by his Honour.  The original protection visa application was validly and effectively refused.

25                  An issue also arises in the present proceedings as to whether the further protection visa application accepted by DIMA on 31 July 2003 was a valid application.  Again, that issue was determined and necessarily determined by the final judgment given by Allsop J on 30 January 2004 in proceedings between the same parties.  Accordingly, it is not open to the applicant to re-agitate the same issue in the present proceedings.  Again, even if, for some reason, an issue estoppel does not arise, I would agree with the conclusion of Allsop J that the application accepted by DIMA on 31 July 2003 was not a valid application.  Section 46(1)(d) of the Act provides, relevantly, that an application for a visa is valid if, and only if, it is not prevented by s 48A.  Under s 47(1) and (3) neither the Minister nor his delegate is able to consider an application that is not a valid application.  Under s 415 of the Act the RRT has no greater powers than the original decision-maker.

26                  Thus the Minister’s delegate ought to have declined to deal with the protection visa application which was accepted on 31 July 2003.  The RRT was probably obliged to review the decision (s 414(1)) but I accept the Minister’s submission that the RRT erred in affirming the decision, as the Minister’s delegate should have declined to entertain the application for a protection visa, rather than refusing to grant the application.  The RRT should have set the decision aside under s 415(2)(d) of the Act and substituted a decision that the protection visa application was not valid and should for that reason not have been considered. 

27                  There would, however, be no utility in my setting aside the decision actually made by the RRT and remitting the matter to the RRT to be dealt with according to law.  The same practical result will be achieved if I simply dismiss the application for review and this is the course which I propose to follow.

Costs

28                  The Minister seeks an order for costs.  I was informed by counsel for the Minister that on 28 January 2004 the Minister’s solicitors wrote to the applicant inviting him to consent to an order setting aside the decision upon the basis that no order as to costs would be made against him, but that an order for costs would be sought if he persisted with the application thereafter.  The applicant told me that he had no recollection of receiving any such letter, and the respondent was not in a position to prove service.

29                  Whether or not such a letter was sent, in the exercise of my discretion I would not be prepared to make an order for costs of the application in favour of the Minister.  My reason for that refusal is that the Minister effectively encouraged this litigation by proceeding on the basis that the protection visa application accepted on 31 July 2003 was a valid application, and by failing to alert the RRT to the decisions of Driver FM or Allsop J to the contrary effect.

Conclusion

30                  The application is dismissed.  I make no order as to costs.

Associate:

Dated:              12 March 2004