AAG17 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal from orders made by the Federal Circuit Court of Australia on 29 June 2018 dismissing an application for judicial review of a decision of the delegate of the Minister made on 15 December 2016 concerning the appellant's application for a Protection (Class XA) (Subclass 866) visa dated 24 November 2016. The decision assessed the application as invalid pursuant to s 48A of the Migration Act 1958 (Cth) (the Act). Procedural history 2 The procedural history of this matter was set out in the findings of fact made by the primary judge at [5]-[14] of the reasons, as follows: 5 The Applicant applied for a Tourist (Class TR) (Subclass 676) visa (Tourist visa) offshore in Fiji which was granted on 29 April 2011 and arrived in Australia on 16 May 2011 with SZRSX, who travelled with him also on a Tourist visa, and from whom he had already been divorced a short time before on 21 April 2011, prior to their arrival in Australia. 6 The Applicant applied for a Protection visa on 12 July 2011 (first Protection visa application). 7 By her Decision Record dated 9 March 2012, a delegate found that she was not satisfied that the Applicant was owed protection obligations pursuant to the Refugees Convention criterion under s.36 of the Act and cl.866.221 and she accordingly refused to grant a Protection visa to the Applicant. 8 The Applicant applied to the Tribunal (then the Refugee Review Tribunal) for merits review of the decision of the delegate. In conducting its review the Tribunal considered the Applicant's claims to protection under both the Refugees Convention criterion, and also the complementary protection criterion under s.36(2)(aa) of the Act which had been introduced o 24 March 2012. However, by its Decision Record of 25 September 2013 the Tribunal affirmed the decision of the delegate not to grant a Protection visa to the Applicant. 9 The Applicant then on 19 December 2013 applied for judicial review of the decision of the Tribunal in this Court, which application was ultimately dismissed by his Honour Judge Nicholls on 16 July 2014. 10 The Applicant on 24 October 2014 again applied for judicial review of the decision of the Tribunal in this Court, which application was dismissed by his Honour Judge Manousaridis on 3 February 2015. 11 Then on 9 October 2015 the Applicant made a request to the Minister to waive Condition 8503, known as the "no further stay" condition, to which his Tourist visa had been made subject. On 20 October 2015 a delegate of the Minister refused waiver of Condition 8503 and on 9 November 2015 the Applicant sought judicial review in this Court from the refusal of waiver. The Applicant's application in that regard by his Honour Judge Nicholls on 11 May 2016. The Applicant applied to the Federal Court of Australia for an extension of time and leave to appeal from this decision of Judge Nicholls but his application in the Federal Court of Australia was dismissed by her Honour Justice Jagot on 11 November 2016. 12 On 24 November 2016 the Applicant, together with SZRSX, lodged another application for a Protection visa the subject of the present proceeding (second Protection visa application). By decision dated 15 December 2016 this application was assessed to be invalid by the Delegate under s.48A of the Act (the Delegate's invalidity assessment). It is this decision from which the Applicant seeks relief in this proceeding. 13 Finally, also on 15 December 2015 the Department of the Minister commenced consideration of the Applicant's request under s.48B of the Act (to which s.48A is subject) for Ministerial intervention seeking that the Minister determine that s.48A did not apply to prevent the making of the second Protection visa application. However, this request was effectively denied on 16 February 2017 when it was finalised by the Department without referral to the Minister. 14 I further note that the evidence establishes, and the Applicant agreed at the hearing in this Court, that his second Protection visa application was made by him whilst he was in Australia. 3 The primary judge concluded that the delegate's assessment of the appellant's second protection visa application as invalid was not affected by jurisdictional error and dismissed the application. This is the subject of the appeal now before the Court. 4 In the notification of invalidity to the appellant dated 15 December 2016, the delegate explained the outcome as follows: A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia. The Minister has the power under section 48B of the Migration Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power. 5 The letter dated 16 February 2017 advising the outcome of the appellant's request for Ministerial Intervention under s 48B stated as follows: Your case was assessed against the Minister's Guidelines - s48A cases and requests for s48B Ministerial intervention, however, it did not meet the Guidelines. This request has therefore been finalised by the department without referral. 6 In his application to quash the delegate's assessment of invalidity in the Federal Circuit Ground, the appellant enunciated three grounds of attack, quoted without alteration: 1. The Department should not take our application as invalid because our circumstances changed and we provided evidence of religious grounds. 2. The application should be treated as valid because we have a fear of harm and our previous application was never considered under complimentary protection. 3. The Minister failed to exercise his power under s.48B which is contrary to the natural justice and fairness because we have new grounds since our previous application was refused. 7 The primary judge considered these grounds in turn at [19]-[24] of the reasons and concluded that none illustrated any jurisdictional error. 8 The first ground did not, in the primary judge's view, establish jurisdictional error because the consideration as to whether the second protection visa application was validly or not validly made did not entitle the delegate to take into account exceptional circumstances or other matters of a discretionary character. 9 The primary judge characterised the second ground as factually incorrect since the decision record of the Refugee Review Tribunal dated 25 September 2013 demonstrated that the complementary protection criterion was, in fact, considered. 10 The third ground also failed since s 48B was construed to confer upon the Minister a personal non-compellable power to determine that s 48A did not apply. It therefore followed that the appellant could not complain of the Minister's failure to exercise the power under s 48B by invoking natural justice or procedural fairness. The appeal to this Court 11 On 12 July 2018, the appellant filed a notice of appeal against the orders of the Federal Circuit Court made on 29 June 2018. The notice contained the two following grounds of appeal: 1. His Honour Judge Dowdy dismissed my application which was lodged on 24 November 2016. I continue to believe that my application should not be treated as invalid because I have a genuine fear to return back to Fiji and also I have changes of circumstances as I mentioned in my application as I provided evidence of religious grounds. 2. I hope that the Federal Court of Australia will consider my request and allow me to continue with this application. 12 In the decision of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, 212 FCR 235, there was a consideration by the Full Court of the operation of s 48A without sub-s 48A(1C) in it. In that decision, it was held that, when s 48A(2) of the Act was taken into account, the proper effect to be given to s 48A(1) is that it did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa. 13 At the time, s 48A(1) and (2) were in the following terms: 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 applicants 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, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ab) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ii) who holds a protection visa; 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 non-citizen 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 non-citizen 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. 14 After the decision in SZGIZ, sub-s 48A(1C) was inserted into the Act: Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following: (a) the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy; (b) whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier; (c) the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy; (d) the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa. 15 The appellant has filed some submissions today which refer to a decision of Derrington J of 15 May 2018 in which his Honour set aside orders of the Federal Circuit Court concerned with the waiver of a "no further stay" under condition 8503 made by the appellant's former partner. The appellant, himself, has challenged the same condition being applied to him in litigation that has been resolved in this Court. It does not bear directly upon the operation of ss 48A and 48B of the Act. 16 As to s 48B of the Act, it is convenient to deal with this first. This is the subject of submissions by the appellant that he and his former partner, but more particularly he, have and has been denied procedural fairness in the Department dealing with the matter according to the guidelines and not referring the matter to the Minister for the Minister personally to deal with the matter under s 48B. 17 The same issue has come before the High Court in an application in the constitutional jurisdiction. On 11 October 2018, Nettle J faced with this argument in the matter of Plaintiff S122/2018 v Minister for Home Affairs [2018] HCATrans 209 said the following at pages 4 and 5 of his Honour's reasons dealing with s 48B and references under the guidelines: …As was decided in Minister for Immigration and Border Protection v SZSSJ, drawing on the judgments in Plaintiff S10/2011 v Minister for Immigration and Citizenship, each of ss 48B and 417 confer on the Minister a non-compellable power exercisable only by the Minister. Each power involves making two decisions: a procedural decision to consider whether to make a substantive decision and, if the Minister makes a procedural decision in favour of proceeding to a substantive decision, a substantive decision whether to grant a visa (in the case of the power under s 417) or lift the bar imposed by s 48A (in the case of the power under s 48B). The Minister, however, is under no obligation to make either decision, and so, before the Minister makes a procedural decision whether to proceed, there is nothing that prevents Departmental officers undertaking processes on the Minister's instructions to assist the Minister making the procedural decision. Such processes have no statutory basis. They are undertaken in exercise of non-statutory executive power and they attract no requirement to afford procedural fairness. There is, therefore, nothing to prevent Departmental officers on the Minister's instructions determining in accordance with Ministerial guidelines whether an application under s 48B or s 417 is or is not of a kind that should be referred to the Minister for decision… (Citations omitted.) 18 Justice Nettle was sitting as a first instance judge of the High Court. I respectfully agree with his Honour's analysis. The claim as to lack of procedural fairness by reason of how the s 48B decision was dealt with has no grounds for success. That application is strictly not before the Court, but it has a relationship to the application under s 48A. 19 As to the conclusions of the primary judge as to s 48A, they were, with respect, correct for the following reasons. 20 First, under the Act, a visa application is valid only if it is not invalid under s 48A, and, subject to s 48B, s 48A acts as a bar to any further protection visa applications for so long as an applicant remains in a migration zone. 21 Secondly, the appellant had whilst in the migration zone made a previous application for a protection visa, the grant of which was refused, and subsequently made a second application for a protection visa whilst in the migration zone, not having departed. 22 Thirdly, s 48A does not confer any discretion to look at surrounding circumstances. 23 Fourthly, it may have been that, prior to the insertion of sub-s 48A(1C), changed circumstances could be characterised as a different criterion upon which protection was claimed to that which was the subject of earlier rejection. It is now the case by reason of the insertion of sub-s 48A(1)(c) that such different criteria could make no difference. I refer to the terms of sub-s 48A(1)(c) set out above at [14] and the analysis of that subsection by the Full Court of this Court in AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; 235 FCR 150 at 157 [25]-[27]. Thus, the primary judge was correct to hold that, as at 2016, the second visa application could not fall within the exception in SZGIZ and was barred by s 48A. 24 I have already dealt with the ground of complaint of failure to accord procedural fairness arising out of how the question of the operation of s 48B was dealt with, and in those circumstances, the primary judge was correct to conclude that s 48A barred a second protection visa application and was also correct to conclude that there was no error or a lack of procedural fairness in how s 48B was dealt with by the Department. 25 In those circumstances, the Court orders that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.