SZVEB v Minister for Immigration and Border Protection [2016] FCA 1039

FEDERAL COURT OF AUSTRALIA

SZVEB v Minister for Immigration and Border Protection [2016] FCA 1039 Appeal from: Application for an extension of time to appeal from SZVEB v Minister for Immigration [2016] FCCA 1300

File number: NSD 787 of 2016

Judge: GLEESON J

Date of judgment: 1 September 2016

Catchwords: MIGRATION – application for extension of time to appeal decision of Federal Circuit Court of Australia – no merit in proposed appeal grounds – application dismissed

Legislation: Migration Act 1958 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011

Cases cited: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399

Date of hearing: 9 August 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Ms N Maddocks of DLA Piper Australia

ORDERS NSD 787 of 2016

BETWEEN: SZVEB Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: GLEESON J DATE OF ORDER: 1 September 2016

THE COURT ORDERS THAT:

1. The application for an extension of time to appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J: 1 This is an application for an extension of time to appeal from a decision of a judge of the Federal Circuit Court of Australia ("FCCA"), made on 3 May 2016, dismissing the applicant's application to the FCCA: SZVEB v Minister for Immigration [2016] FCCA 1300. 2 The application to the FCCA sought judicial review of a decision of a delegate of the respondent ("Minister"), made on 28 January 2016, that the applicant's application for a Protection (Class XA) visa lodged on 27 January 2016, was invalid pursuant to s 48A of the Migration Act 1958 (Cth) ("Act"). 3 Section 48A(1) of the Act 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. 4 The stated ground for seeking an extension of time is that the applicant had not received the "court Judgment or order dated 3 Mary [sic] 2016" as at 24 May 2016. 5 The proposed grounds of appeal are: 1. I was not represented by the lawyer the Learned Judge erred to determine the issue out of jurisdiction in relation to my protection visa application which I filed on 28 January 2016, was not reviewed and appeal to the Federal circuit Court. 2. The issue at the appeal was in relation to my application for injunction order I sought to prevent Minister and department to deport me as they did to me on 24 January 2016 until my Judicial review are completed. 6 The applicant did not make written submissions in support of his application. He appeared at the hearing of the application with the assistance of an Urdu interpreter.

Adjournment application 7 At the outset, the Minister's lawyer, Ms Maddocks, drew attention to a letter from the Australian Multicultural Charity to the Federal Court Registrar dated 9 August 2016 which submitted that the application should be adjourned to enable the applicant to obtain legal representation. The stated basis of the adjournment application was as follows: 1.1 That the applicant made application seeking for injunction order to prevent Minister by himself or by his department officer, delegates from making decision to deport him as he has been sent to Pakistan on 22 January 2016 while he applied for Ministerial intervention. 1.2 The full fact of the sudden deportation stated in applicant affidavit. 1.3 The applicant refused entre in Pakistan returned back to Australia on 24 January 2016, applied for second time protection visa based on new evidence which is under Ministerial consideration. 1.4 The AMC charity applied for legal aid lawyer to represent … the applicant on 3 May 2016, but AMC did not hear from Legal Aid. 8 The Minister opposed the adjournment application. In particular, Ms Maddocks noted that the legal aid application mentioned in the letter was made in connection with the FCCA proceeding and not with the application before this Court. 9 I was not satisfied that the matters raised in support of the adjournment application were relevant to the proposed appeal or extension of time application and, accordingly, I was not satisfied that there would be any utility in granting an adjournment. Consequently, I refused the adjournment application.

Background 10 The applicant is a male citizen of Pakistan born on 7 July 1976. He first arrived in Australia on 29 May 2012 as the holder of a Student (Subclass 573) visa. 11 The applicant applied for a Protection (Class XA) visa on 30 September 2013. According to written submissions filed on behalf of the Minister, the applicant claimed to fear persecution in Pakistan by Sunni Muslims and the Pakistani Government because of his Shia Muslim faith and membership of the Muttahida Qaumi Movement ("MQM") political group. He claimed that he had experienced harm in the past whereby he was held in police custody for six months and tortured, and had been framed for a false murder case. 12 On 26 February 2014, a delegate of the Minister refused the application. On 3 September 2014, the Refugee Review Tribunal ("Tribunal") affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa. 13 The applicant sought judicial review of the Tribunal's decision in the FCCA. That application was dismissed due to the applicant's non-attendance at a call-over on 29 January 2015: SZVEB v Minister for Immigration & Anor (No.2) [2015] FCCA 1145, and the applicant's application for reinstatement was dismissed on 27 March 2015: SZVEB v Minister for Immigration & Anor [2015] FCCA 956. 14 The applicant then sought leave to appeal from the 27 March 2015 decision. This application was dismissed due to the applicant's non-attendance at the leave to appeal hearing on 13 August 2015: SZVEB v Minister for Immigration and Border Protection [2015] FCA 847. The applicant's application for reinstatement of the application for leave to appeal was dismissed on 15 October 2015: SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106. 15 The applicant was removed from Australia on 22 January 2016 but was refused entry into Pakistan. According to the Minister's submissions, entry was refused due to issues relating to the new Pakistan travel document procedure. The applicant returned to Australia on 24 January 2016 and seems to have been residing at Villawood Detention Centre since then. 16 On 27 January 2016, the applicant made his further application for a protection visa. By letter dated 28 January 2016 from the Department of Immigration and Border Protection, the applicant was informed that the application was not a valid application. The letter stated, relevantly: Under s 48A of the Act a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.

FCCA proceeding 17 The application for judicial review of the 28 January 2016 decision was filed on 25 February 2016. Under the heading "Grounds of application", the applicant stated: I was deported to Pakistan on 22/01/2016. Pakistan Immigration refused me entry at Lahore Airport in Pakistan. I returned back to Australia on 24/01/2016. I was refused entry at Sydney Airport on 24/01/2016 therefore I have been detain [sic] in Villawood detention centre from 24/01/2016. I applied for Protection visa on 27/01/2016 under section 48A of the Migration Act. On 28/01/2016 I received letter from Department that my application is invalid because I have not left Australia. The department was advised on 02/02/16 that I did leave Australia on 22/01/2016 therefore my application is valid application. I have been implicated in false case by police which subsequently police withdrew the case on 15/01/2016. There is great danger to my life in Pakistan and I am concern that Department would send me again to Pakistan as they did on 22/01/2016 whereas my protection visa application I lodged on 27/01/2016 is a valid application to be determined. 18 The application was heard on 3 May 2016. According to the Minister's written submissions, the applicant submitted to the FCCA that his life was in danger, that his family members were after him, and that he feared persecution. The applicant also submitted that the Minister should have considered his visa application lodged on 27 January 2016, but did not advance any explanation as to why the respondent should have done so. 19 The FCCA judge dismissed the application with costs. 20 The FCCA judge found that on 22 January 2016, the applicant was removed from Australia pursuant to s 198 of the Act. 21 His Honour referred to s 46 of the Act, which specifies conditions for the validity of a visa application. In particular, his Honour noted that by s 46(1)(d), one requirement for validity is that the application is not prevented by s 48A. 22 His Honour then referred to s 48A(1A) which provides: (1A) For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). and s 42(2A)(d) which provides: (2A) Subsection (1) does not apply to a non-citizen in relation to travel to Australia: … (d) if: (i) the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and (ii) the non-citizen travels to Australia as a direct result of that refusal; and (iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or … 23 Each of criteria (i) to (iii) applied to the applicant and accordingly, the FCCA judge concluded that the applicant is a person who is in the migration zone as a result of travel to Australia that is covered by para 42(2A)(d). 24 Finally, his Honour found that, having been refused a protection visa and not otherwise having any visa that would permit him to remain lawfully in Australia and not being a citizen of Australia, the applicant was an unlawful non-citizen. 25 Accordingly, the FCCA judge found that s 42(2A)(d) applied to the applicant and that, pursuant to s 48A(1A), the applicant was taken to have been continuously in the migration zone despite his removal under s 198. His Honour found that the immediate consequence was that, under s 48A, the applicant was prevented from making a protection visa application because he had previously made an application which had been refused. 26 The corollary was that, pursuant to s 46, the application lodged on 26 January 2016 was not a valid application. Finally, because it was not a valid application, his Honour found that the Minister was required not to consider the application. The FCCA judge accordingly found that there could be no order of mandamus ordering the Minister to consider the application.

Principles governing extension of time 27 The application for an extension of time to file a notice of appeal was filed on 26 May 2016. 28 The last date for filing a notice of appeal was 24 May 2016: Federal Court Rules 2011, rr 1.61, 36.03(a)(i). The applicant therefore requires an extension of two days. 29 The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] ("DZAAD"). The relevant considerations are: (1) the reasons for and length of the delay. The Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored; (2) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; (3) the merits of the appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD at [28].

Consideration

Merits of the proposed appeal 30 The right to appeal from a decision of the FCCA is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). To succeed on an appeal, the applicant would have to demonstrate that the FCCA judge fell into error. In turn, the Court below could only disturb the decision under review (being the decision of the Minister's delegate) if that decision was affected by jurisdictional error. The Minister submitted that the FCCA judge correctly considered whether the decision of the Minister's delegate was affected by jurisdictional error, and found that it was not. 31 As to ground 1 of the proposed notice of appeal, the applicant did not identify any relevant error by the FCCA judge and I cannot identify any error. The FCCA judge appears to have considered correctly whether the delegate's decision was affected by jurisdictional error and to have found correctly that it was not so affected. 32 As to ground 2 of the proposed notice of appeal, Ms Maddocks noted that, in the applicant's application to the FCCA filed on 25 February 2016, the applicant sought an "injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings". Under those words was written "Minister by himself or by his Department officers, delegates from making decision to deport me to Pakistan". 33 Ms Maddocks submitted that, at the time that the application to the FCCA was filed, there was no plan to remove the applicant from Australia and there is still no current removal plan. 34 The applicant submitted that he needed the injunction order because his life is in danger in his home country and he does not wish to return to his home country. 35 At a very general level, the purpose of an injunction is to protect a legal right. An injunction may be granted to protect a person from the prospect of a breach of his or her rights, if there is a sufficient risk of future injury to justify the immediate grant of an injunction. The difficulty for the applicant is that the only possible legal basis that he put forward for the existence of a right to be protected from removal was the protection visa application which the FCCA judge found to be invalid. This appears from the following statement in the application to the FCCA: I am concern [sic] that department would send me again to Pakistan as they did on 22/01/16 whereas my protection visa application I lodged on 27/01/2016 is a valid application to be determined. 36 The applicant's claims that his life is in danger in his home country and he does not wish to return to his home country are not relevant to whether the FCCA could have granted an injunction of the kind sought by the applicant, in the absence of any identifiable right to protection. In the circumstances of this case, the FCCA had no legal basis to make such an order. 37 Accordingly, neither proposed ground of appeal has any merit.

Delay and prejudice 38 I accept that the delay in this case is minimal. 39 There is no suggestion of any prejudice to the Minister if an extension of time were granted.

Conclusion 40 Where the appeal has no prospect of succeeding, it would be futile to grant the extension of time to appeal. 41 Accordingly, the application for an extension of time to appeal must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate: Dated: 1 September 2016