AAG17 v Minister for Immigration and Border Protection [2018] FCA 1862

AAG17 v Minister for Immigration and Border Protection [2018] FCA 1862

The appellant had previously applied for a protection visa in the migration zone and been refused, then made a second protection visa application while still in Australia. Section 48A barred that second application, and s 48A(1C) meant that changed circumstances or new religious grounds could not alter that result. The Minister's s 48B power was personal and non-compellable, and Departmental assessment of the request under Ministerial guidelines without referral to the Minister did not deny procedural fairness. The Federal Circuit Court was correct to find no jurisdictional error.

Jurisdiction
Australia
Judgment Date
26 November 2018
Procedural Posture
Appeal From Dismissal of Application for Judicial Review of Migration Decision / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'invalid Visa Application' 'section 48 a Bar' 'ministerial Intervention Under S 48 B' 'procedural Fairness']
['migration' 'administrative and Constitutional Law and Human Rights'] ['protection Visa' 'invalid Visa Application' 'section 48 a Bar' 'ministerial Intervention Under S 48 B' 'procedural Fairness']

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Procedural Posture

Appeal From Dismissal of Application for Judicial Review of Migration Decision / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether the appellant's second protection visa application was invalid under s 48A of the Migration Act 1958 (Cth) because he had not left Australia since refusal of his earlier protection visa application." 'Whether changed circumstances or new religious grounds could prevent s 48A from barring the second protection visa application.' 'Whether the appellant was denied procedural fairness because his s 48B request was assessed under Ministerial guidelines and finalised by the Department without referral to the Minister personally.']

Ratio Decidendi

The appellant had previously applied for a protection visa in the migration zone and been refused, then made a second protection visa application while still in Australia. Section 48A barred that second application, and s 48A(1C) meant that changed circumstances or new religious grounds could not alter that result. The Minister's s 48B power was personal and non-compellable, and Departmental assessment of the request under Ministerial guidelines without referral to the Minister did not deny procedural fairness. The Federal Circuit Court was correct to find no jurisdictional error.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']