FEDERAL COURT OF AUSTRALIA

SZRWA v Minister for Immigration and Border Protection [2015] FCA 293

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (“FCC”) delivered on 5 December 2014: SZUTE v Minister for Immigration and Border Protection [2014] FCCA 2924. In that decision, the FCC judge dismissed an application for judicial review of a decision of the delegate of the Minister for Immigration and Border Protection. The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and was, therefore, interlocutory in nature: see r 44.12(2) of the FCC Rules. Accordingly, leave to appeal from the decision is required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The applicant is a male citizen of India. He arrived in Australia holding a tourist visa (short stay) on 29 November 2011.

3    The applicant applied for a Protection (Class XA) visa on 13 January 2012.

4    The application was refused by a delegate of the first respondent (“Minister”) on 18 May 2012.

5    On 12 June 2012, the applicant applied to the Refugee Review Tribunal (“RRT”) for review of the delegate's decision. On 5 September 2012, the RRT affirmed the decision not to grant the applicant a Protection (Class XA) visa.

6    On 23 October 2012, the applicant applied for judicial review of the RRT’s decision. That application, as amended on 3 December 2012, was dismissed by a judge of the FCC on 6 May 2013: SZRWA v Minister for Immigration and Citizenship [2013] FCCA 138.

7    The applicant appealed from the judgment of the FCC to this Court. That appeal was dismissed on 16 August 2013: SZRWA v Minister for Immigration, Multicultral Affairs and Citizenship [2013] FCA 834; (2013) 137 ALD 517.

8    In the meantime, on 3 July 2013, the Full Federal Court handed its decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth), in that judgment:

… the Court held that there were effectively different sets of criteria by which a protection visa can be applied for and granted.  The Court concluded that section 48A of the Migration Act does not prevent a non-citizen making a further protection visa application based on a criterion which did not form the basis of a previous unsuccessful protection visa application.  This outcome is contrary to the policy intention of section 48A, which is that a non-citizen should not be able to make a further protection visa application in the migration zone after a previous protection visa application has been refused or a protection visa held by the person has been cancelled, irrespective of the grounds on which their earlier protection visa application was refused or the grounds on which the cancelled visa was originally granted, and whether or not the grounds or criteria existed earlier. 

9    The Migration Amendment Bill 2013 (Cth) proposed amendments to s 48A of the Migration Act 1958 (Cth) (“Migration Act”) which were intended to address issues arising from the decision in SZGIZ.

10    On 12 February 2014, the applicant’s application for special leave to appeal to the High Court of Australia from the decision of this Court was dismissed: SZRWA v Minister for Immigration and Citizenship [2014] HCASL 14.

11    With effect from 28 May 2014, s 48A of the Migration Act 1958 (Cth) (“Migration Act”) was amended by the Migration Amendment Act 2014 (Cth). As amended, s 48A provides:

48A No further applications for protection visa after refusal or cancellation

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)    applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

…

(2)    In this section:

“application for a protection visa” includes:

(aa)    an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and

(a)    an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a noncitizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(b)    an application for a decision that a noncitizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(c)    an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

12    On 27 June 2014, the applicant purported to file a new protection visa application (“second protection visa application”).

13    By letter dated 2 July 2014, the Department of Immigration and Border Protection (“Department”) informed the applicant that his application was not a valid application. The 2 July 2014 letter also said:

On 18 May 2012 you were refused a Protection (class XA) visa. Under s 48A of the [Migration Act] a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application. However, the Minister has the power under section 48B of the Act to allow a person to apply against for a Protection (class XA) visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.

FCC

14    By application dated 14 July 2014 and filed 15 July 2014, the applicant sought judicial review of the decision identified in the 2 July 2014 letter. The stated ground of the application was:

The Department of Immigration Border Protection failed to accept my application and failed to see the changes of circumstances.

15    On 19 November 2014 the applicant filed an amended application which contained the following grounds:

1.    The Department ignored my statement which was attached to my application which was refused by the Delegate of the Minister on 2/7/2014.

2.    The fresh application lodged with the Department should be treated as valid application as the Federal Court of Australia made a decision that people who were previously refused are not restricted from lodging a fresh application.

3.    In my previous application SYG2165 of 2012 the Tribunal indicated that I have not provided sufficient basis in support of serious harm from political leaders and also the Tribunal misunderstood my evidence and my role as a reporter as well as the harm I fear from Hindu political leaders as well as from other fanatic Muslims such as Qaidani or Ahmadiyya.

4.    The Tribunal found significant gaps about central aspects of my claim to fear harm in India but the Tribunal did not put adverse information to me and prevented me from responding to any information or material which at the time would be a reason for refusing my application.

5.    I ask the Honourable Court and the Minister for Immigration and Border Protection to give me the opportunity to go ahead with this Court as I have an arguable case and I wish that the Court will have copy of all my documents and I will be given an opportunity to respond to any information and to prove that the Tribunal as well as the Department failed to take into consideration important information such as my role as a reporter. I suffered as well as my wife and children were beaten and my subjective fear of persecution is strong and genuine. I do not think that the Tribunal considered the information before it properly and failed to clarify any issue and made decision on assumption rather than on fact.

16    The applicant appeared in person at the FCC hearing with the assistance of an interpreter. Following the completion of the submissions of Mr Markus (who appeared for the Minister before the FCC and before this Court), the applicant was invited to say whatever he wished in response. However, the applicant did not make any further submission.

17    The matter was listed for a hearing pursuant to r 44.12 of the FCC Rules, which required the FCC judge to consider whether she was satisfied that the applicant had raised an arguable case for the relief claimed.

FCC judge’s reasons

18    The FCC judge’s reasons refer to a directions hearing on 4 November 2014 at which she explained various matters to the applicant. According to her Honour’s reasons, her explanation referred to a decision of the RRT. However, the application did not seek judicial review of a decision of the RRT. The reasons also record that the applicant confirmed that he wished to continue with an application for judicial review of the RRT’s decision. The applicant did not raise this anomaly before this Court.

19    The FCC judge set out the applicant’s amended grounds of review in full. After setting out the relevant history, her Honour stated that the only issue before the FCC was “whether or not the decision of the Delegate, made on 2 July 2014, that the applicant’s second protection visa application …was an invalid application [was affected by jurisdictional error]”.

20    The FCC judge said that s 48A of the Migration Act required that a non-citizen who has been refused a protection visa may not make another application for a protection visa while remaining in the migration zone.

21    The FCC judge found that ground 1 of the amended application was misconceived because it complained that the Department had ignored the applicant’s statement in support of his claims for protection. Her Honour found that the statement was not relevant to the issue of whether or not the protection visa was valid in circumstances where the applicant lodged that second protection visa application whilst still in the migration zone.

22    As to ground 2, her Honour accepted the submission on behalf of the Minister that the case to which the applicant was referring was SZGIZ. She explained that in that case, the Full Federal Court held that applications made for a protection visa in reliance on s 36(2)(aa) of the Act were not barred by s 48A of the Act by reason only of an earlier application made and determined prior to the commencement of the Migration Amendment (Complementary Protection) Act 2011 (Cth). However, her Honour continued:

The insurmountable hurdle faced by the applicant today is that, subsequent to that decision, amendments were made to section 48A of the Act to address the issue raised in SZGIZ. The consequence was that the Migration Act was amended by the Migration Amendment Act 2014 (Cth), with effect on 28 May 2014.

As stated above, the applicant’s second protection visa application was lodged after s.48A of the Act came into effect and is, therefore, caught by the current effect of s.48A of the Act. That section prevents the applicant from lodging a second protection visa application where the earlier application for protection has been refused and the applicant remains in the migration zone.

23    Concerning grounds 3 and 4 of the amended application, her Honour noted that they referred to various findings made by the RRT in its 2012 decision, which decision had been the subject of an application for judicial review, an appeal and an application for special leave to appeal to the High Court. In those circumstances, her Honour concluded that grounds 3 and 4 were not relevant to the issue before the Court today and were not capable of demonstrating jurisdictional error in the 2 July 2014 decision.

24    As to ground 5 of the amended application, her Honour said:

Ground 5 does not identify any error and is more in the nature of a submission and the reasons why the applicant makes the application today that he does. The applicant said that the reason he made his application was because conditions have changed in his country and, therefore, he and his family required asylum in Australia. Again, such an assertion cannot overcome the statutory impediment that the applicant faces where he makes a second protection visa application whilst remaining in the migration zone. Ground 5 is, therefore, not capable of demonstrating any error in the decision of the RRT with any prospect of success.

25    The FCC judge concluded that, for the reasons she had identified, no jurisdictional error was apparent on the face of the 2 July 2014 letter and none had otherwise been identified by the applicant. Accordingly, her Honour was not satisfied that the applicant’s application, either in its original form or as amended, raised an arguable case for the relief claimed. Nor was she satisfied that the applicant had orally identified any other ground that raised an arguable case for the relief claimed.

Principles governing leave to appeal

26    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

(a)    that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 at [2]; (1991) 33 FCR 397 at 398–400 (“Décor Corporation”); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (“Johnson Tiles”) at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]–[30].

27    Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 at [12], citing Décor Corporation at 400 and Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1988) 32 FCR 195 at 202.

28    In Johnson Tiles, French J (as he then was) said at [43]:

If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However, leave will usually be granted in such a case if there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

Is the FCC decision attended by sufficient doubt to warrant reconsideration?

29    The FCC judge dismissed the application because she was not satisfied that the application had raised an arguable case for the relief sought.

30    In other contexts, an appeal against a finding of satisfaction as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27].

31    Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the FCC judge:

a.    Acted upon a wrong principle;

b.    Allowed extraneous or irrelevant matters to guide or affect him;

c.    Mistook the facts;

d.    Did not take into account some material consideration; or

e.    Reached a result that is plainly unreasonable or unjust: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

Grounds of application for leave to appeal

32    The stated ground for the application for leave to appeal is:

[The FCC judge] failed to give me a judgment in order to argue the grounds but I rely in this application on the grounds listed in my Draft Notice of Appeal.

33    There is a draft notice of appeal, received by the Court on 18 December 2014, which specifies the following grounds of appeal:

(1)    [The FCC judge] dismissed my case yet I have not received reasons for the judgment. I will provide detailed grounds when I receive written reasons for the judgment of 5 December 2014.

(2)    The Department and [the FCC judge] dealt with my application lodged on 27 June 2014 as not a valid application such is an error as I submitted changes of circumstances were which were overlooked by [the Department] as well as by [the FCC judge].

(3)    I ask the Federal Court of Australia to consider my statement of claims lodged with the Department and attached to my application on 27 June 2014 which appears in my file at page 102-125.

Applicant’s submissions

34    At the hearing of the application, the applicant appeared unrepresented but was assisted by an Urdu interpreter.

35    The applicant did not file written submissions but made the following oral submissions:

(1)    The FCC judge failed to see that the RRT had made an error of law (T3.38);

(2)     The RRT member misunderstood the applicant’s claim and his fear of persecution (T4.2)

(3)    The RRT did not apply the law properly and failed to consider complementary protection (T4.15). The applicant gave the RRT strong evidence about the harm he will face if he goes back, and the RRT did not consider it (T4.32).

(4)    The FCC judge failed to consider the applicant’s submission (T4.31).

Consideration

36    The only issue on this application for leave to appeal is whether there is a reasonably arguable case to suggest that the second protection visa application was, in fact, valid.

37    The question of whether the applicant’s circumstances had changed is not relevant to that question. Nor are the matters raised by the applicant in his oral submissions concerning the decision of the RRT.

38    The only question before the FCC was whether it was arguable that the applicant was not a person to whom s 48A applied. The applicant did not identify to the FCC any reason why that provision did not apply to him. As a non-citizen who, while in the migration zone, had made an application for a protection visa, where the grant of the visa had been refused and the application had been finally determined following an RRT review and an unsuccessful application for judicial review of the RRT’s decision, the applicant was precluded by s 48A from making a further application for a protection visa while in the migration zone.

39    The FCC judge made no error in reaching her conclusion that the applicant had no arguable case for relief.

Conclusion

40    The application for leave to appeal must be dismissed. The applicant should pay the respondent’s costs.

Associate:

Dated:    31 March 2015