FEDERAL COURT OF AUSTRALIA

SZTSZ v Minister for Immigration and Border Protection [2014] FCA 299

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The Applicant pay the Respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia (Judge Emmett) on 6 February 2014.

2    At first sight, it is not clear from the court record that her Honour made an order on that date. However, the explanation appears from the fact that on 6 February 2014 her Honour heard two applications.

3    The first application is the subject of her Honour’s reasons for judgment in SZTSZ v Minister for Immigration and Border Protection [2014] FCCA 298 (SZTSZ No 1). That judgment was an ex tempore judgment delivered on 6 February 2014.

4    The second application was the subject of reasons in SZTSZ v Minister for Immigration and Border Protection [2014] FCCA 299 (SZTSZ No 2). The hearing date of that application was 6 February 2014, although judgment was not delivered until 24 February 2014. It appears from what occurred on 6 February that her Honour made orders in SZTSZ No 2 on 6 February but that those orders were not entered until 24 February 2014. Nevertheless, it is those orders which are the subject of the present application for leave to appeal.

5    The relevant order in respect of which the applicant seeks leave to appeal is Order 1. That order provides that the proceeding before the Federal Circuit Court, commenced by way of an application filed on 13 January 2014, be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). It is plain that leave to appeal from that order is required, and that the application for leave was filed within the time limited by the Federal Court Rules 2011 (Cth). These conclusions follow from the effect of r 44.12(1)(a) and r 44.12(2) of the Federal Circuit Court Rules, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 35.13 of the Federal Court Rules 2011 (Cth).

6    The background to the present application sufficiently appears in the judgments of Judge Emmett in SZTSZ No 1 and SZTSZ No 2. In SZTSZ No 1 the applicant sought an extension of time to file an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 16 September 2013. Her Honour sets out the details of the relevant parts of the Tribunal’s decision record at [8].

7    Importantly, the applicant is a citizen of Fiji. He emigrated from Fiji to Australia in 1996 and married a woman of Aboriginal descent in 2005, with whom he has two children. The significance of this is that there is no dispute that his family unit comprises persons who are Australian citizens. I should interpolate here that the applicant told me this morning that he has another child that is a stepchild but there was no suggestion that the stepchild is not an Australian citizen.

8    On 20 May 2013 the applicant applied to the Department of Immigration for a protection visa. A delegate of the Minister refused to grant the visa on 30 July 2013. On 1 August 2013 the applicant applied to the Tribunal to review the decision of the Delegate.

9    Her Honour set out at [12] of her reasons in SZTSZ No 1 the applicant’s claims in relation to his fear of harm in Fiji. It is unnecessary to repeat what her Honour said at that paragraph of her reasons for judgment.

10    Her Honour observed at [13] in SZTSZ No 1 that the Tribunal found that the applicant did not have a well-founded fear of persecution should he return to Fiji, either now or in the foreseeable future. Her Honour went on to observe at [14] that:

The RRT concluded that the applicant’s case raised compassionate circumstances and asked that it be referred directly to the first respondent pursuant to s 417 of the Act, but otherwise affirmed the Delegate’s decision not to grant a protection visa.

11    It appears that a favourable exercise of the discretion was sought in accordance with s 417 of the Migration Act 1958 (Cth) (the Act) but the application did not result in an exercise of the power in the applicant’s favour.

12    Her Honour dealt, relevantly, with the grounds upon which the applicant sought judicial review of the decision of the Tribunal. One of the grounds on which the applicant sought review was that he claimed that the Tribunal misconstrued s 36(2)(aa) of the Act. That subsection addresses the complementary protection criteria which are contained in s 36 of that Act. Her Honour stated, at [26] of her reasons in SZTSZ No 1 that in relation to this ground:

In relation to Ground 2, the RRT also considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act, but found that he did not. In particular, the RRT considered the applicant’s claim that being removed from his family would constitute serious harm. The RRT applied the Federal Court decision in SZRNS v Minister for Immigration and Citizenship [2013] FCA 751 and concluded that it would not. No error has been identified by the applicant as to the manner in which or the result of which the RRT considered complementary protection and none is apparent on the face of the RRT’s decision record.

13    The Tribunal considered whether the applicant met the complementary protection criterion stated in s 36(2)(aa) of the Act but the Tribunal found that he did not. That is clear from [26] of the decision record of the Tribunal. The decision record is dated 16 September 2013. I will not reproduce that paragraph. It is sufficient to say that the Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).

14    The Tribunal member went on to say at [27] that there was no suggestion that the applicant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. This is important in the present application because it is clear enough, from this paragraph, that the Tribunal member noted that there was no suggestion that the applicant relied upon the provisions of paras (b) and (c) of s 36(2) of the Act. The importance of this is that, as will be seen from my reasons for judgment, the applicant sought to invoke those provisions in his subsequent application for a protection visa.

15    The relevant application for a protection visa was lodged on 7 January 2014. A copy of the application was not in evidence but it is referred to in a letter from the Detention Coordinator of the Department of Immigration and Border Protection dated 8 January 2014. In that letter the Department Coordinator informed the applicant that the application which was lodged on 7 January 2014 was not a valid application by reason of the provisions of s 48A of the Act. This is because, as is pointed out in the letter on 30 July 2013, the applicant was refused a protection visa and s 48A of the Act provides that a person who has not left Australia since the person was refused a protection visa is prevented from making a further protection visa application.

16    The letter of 8 January 2014 went on to say that the application would be treated as a request to the Minister to exercise his public interest power under s 48B of the Act. It appears that an exercise of the power has not been obtained.

17    As Judge Emmett observed in [1] of her reasons for judgment in SZTSZ No 2, the applicant filed an application on 13 January 2014 seeking judicial review of the decision of the Detention Coordinator. The decision is, of course, the decision set out in the letter of 8 January to which I have referred. Judge Emmett set out at [3] of her reasons the applicant’s grounds of application in SZTSZ No 2. It is clear enough from the particulars of the ground that the applicant claimed that the application which he made on 7 January 2014 was a valid application under s 36(2), relying in particular upon the criteria stated in paras (aa), (b) and (c) of the Act.

18    The applicant therefore relies upon the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The Full Court held in that case that the proper construction of s 48A(1) of the Act is that it does not prevent a person from making an application based upon a criterion which did not form the basis of a previous unsuccessful application for a protection visa.

19    The short answer to the ground which relies upon para (aa) of s 36(2) of the Act is that this ground was addressed by the Tribunal, as is plain from [26] of the Tribunal’s reasons. However, as I have said, the applicant now seeks to invoke the provisions of paras (b) and (c). The effect of what he says is that the Tribunal erred in failing to give proper effect to the decision of the Full Court in SZGIZ because he is not prevented from making an application based upon paras (b) and (c), since they did not form the basis of his previously unsuccessful application for a protection visa.

20    Difficulty arises because, as I have said, I do not have a copy of the application dated 7 January 2014 in evidence. Nevertheless, it is plain from the material before me that the applicant’s claim considered at its highest, is an application which seeks to rely upon his membership of a family unit comprised of his wife and children. The insurmountable difficulty which then arises is that the provisions of paras (b) and (c) of s 36(2) are only enlivened if the person is a member of a family unit of a non-citizen who holds a protection visa, either on a Convention ground or on the complementary protection provision contained in s 36(2) of the Act.

21    Here, as I have endeavoured to emphasise, any claim that the applicant had or has is based upon his membership of a family unit comprised of persons who are plainly citizens of Australia.

22    A question may arise as to whether the protection visa application lodged on 7 January was a valid application insofar as it may have sought to rely upon paras (b) and (c). However, it follows from what I have said that, even if such an application was validly made, there can be no substantial injustice resulting from leave to appeal being refused because an application based upon those paragraphs of the Act would be bound to fail.

23    It therefore follows, in my view, that even considering the applicant’s case at its highest, leave to appeal must be refused on the ground that it fails to meet the substantial injustice test stated in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

24    The applicant sought this morning to rely upon the failure on the part of the Detention Coordinator to give consideration to the best interests of the children. It is true, as Judge Emmett observed at [14] in SZTSZ No 1, that the Tribunal has concluded that the applicant’s case raises compassionate circumstances and I accept that there may be compassionate considerations in the present case. However, the best interests of the children is not a mandatory consideration which arises in the present case. This is because a decision whether to grant or refuse a protection visa is not a discretionary power: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127]-[130].

25    It is clear enough in the present case that the effect of s 47(3) of the Act is that the Minister was bound not to consider the application because, even if it sought to rely upon s 36(2)(b) and (c), it would have been bound to fail for the reasons that I have referred to above.

26    The only other submission made by the applicant was his fear of persecution if he returns to Fiji. That submission seeks to raise the merits of the application which is not a ground of error in the decision of the Federal Circuit Court Judge. It follows that, for the reasons given above, I propose to order that the application for leave to appeal be dismissed.

27    I will order the applicant to pay the costs of the Minister.

Associate:

Dated:    27 March 2014