BSY15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 This is an appeal from a judgment of the Federal Circuit Court ("the FCC"): see BSY15 v Minister for Immigration and Border Protection [2016] FCCA 3042. The FCC rejected an application, by the appellant, for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal held that it lacked jurisdiction to entertain an application for review of a decision of a delegate of the Minister that BSY15's application for a Protection (Class XA) visa was rendered invalid by s 48A of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a Chinese citizen. He entered Australia on 18 September 2001. He travelled on a Korean passport issued under a false name. He applied for a protection visa, which was refused on 29 November 2001. 3 The appellant made a second application on 10 June 2015. In that application he used his true name and supported his application by reference to details appearing in a Chinese passport. 4 It was this second application that was found by the delegate to be invalid. The delegate notified the appellant of this decision by letter dated 12 June 2015. 5 The statutory basis for the delegate's decision is to be found in s 47(3) of the Act which provides that the Minister (or his or her delegate) "is not to consider an application that is not a valid application". The appellant's application was found not to be a valid application because of the provisions of s 48A(1) of the Act. Relevantly, that sub-section provides: (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, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. 6 The legal effect of that provision is to preclude the making of a second application for a protection visa by a person who had earlier made an unsuccessful application for such a visa. 7 Section 46(1) is also relevant. It sets out criteria for valid visa applications, with the effect that an application covered by s 48A will be invalid. Relevantly, s 46(1)(d)(ii) provides that an application for a visa is valid if, and only if, it is not prevented by s 48A. 8 The Tribunal has power, under the Act, to review what are described as "Part 7-reviewable decisions": see s 414(1). Part 7-reviewable decisions include a decision to refuse a protection visa: see s 411(1)(c). The delegate's decision was not such a decision because s 47(4) provides that a "decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa". 9 The Tribunal, therefore, held that it lacked jurisdiction to deal with the appellant's application. The appellant had not left Australia since his arrival. He had made an earlier application for a protection visa which had been refused and the application under consideration was his second application. 10 The fact that the original application had been made under a false name and a different claimed nationality was of no moment. In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 160, Wilcox J held that s 48A(1) bars consideration of a second application made under a different name: at [17]. Further, a Full Court of this Court has held that s 48A(1) acts as a bar to the lodgement of a second application for a protection visa even if, in the period intervening between the first and second applications, the statutory criteria for the grant of such a visa have changed: see AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150 at 157; [2015] FCAFC 174 at [25]-[27] (North ACJ, Collier and Flick JJ). 11 The FCC held that the Tribunal had not erred in construing and applying the legislation. It also dealt with some other grounds of judicial review but it is not necessary to refer to them for the purposes of this appeal. 12 The appeal to this Court alleged that the FCC had erred as follows: 1. Federal Circuit Court erred as it failed to find [that the] AAT [Administrative Appeals Tribunal] had failed [in] its independent role from [the] DIBP [Department of Immigration and Border Protection] by its not acknowledging that [the] Minister's Decision falling [sic] into jurisdictional error and is not legally valid, therefore I was denied of [sic] natural justice. 2. Federal Circuit Court erred as it failed to consider important relevant information. The file folder (Green book) for my case sent to [the] FCC regarding my application was incomplete without my full application history and the FCC judge simply made a decision on incomplete evidence without taking all the relevant information into account. 3. Federal Circuit Court erred as if [sic] failed to find that both [the] RRT and the DIBP should have considered my case on complementary grounds but neither of them have done so. The reference to the "RRT" at ground 3 appears to be a reference to the Refugee Review Tribunal, which appears to be intended to be a reference to the Administrative Appeals Tribunal. None of these grounds was particularised. 13 The appellant appeared in person at this afternoon's hearing. He had the assistance of an interpreter. 14 He had prepared a written submission which was read to the Court by the interpreter. The appellant complained that the FCC and the Tribunal had failed to have regard to all relevant information, including his original application and the circumstances in which he came to apply for a protection visa in Australia. He had not been given natural justice or a "fair assessment" of his case. The FCC had not assessed his case in a "careful way". This had given rise to a legal mistake. 15 The appellant also contended that another mistake had occurred when the Tribunal and the FCC allegedly ignored the complementary protection criterion when dealing with his case. 16 The appellant made a further complaint that the delegate had erred by addressing him using the name which appeared in the false Korean passport. It may be observed that, although the Department of Immigration and Border Protection used the false name, the Tribunal did not. The Tribunal used the appellant's correct name in correspondence with him and in its reasons for decision. 17 Nowhere in his submissions did the appellant refer to the reasons given by the Tribunal for treating his application for a protection visa as invalid. If the application was not valid there was no occasion for the delegate or the Tribunal to consider the merits of the appellant's application for a protection visa. 18 In my view the Tribunal was correct to hold, as a matter of law, that it lacked jurisdiction to entertain the appellant's application. The FCC found that the Tribunal had not committed any jurisdictional error. The FCC was correct to so hold for the reasons which it gave. 19 The appeal to this Court must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.