AGL17 v Minister for Immigration
[2017] FCCA 3214
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGL17 v MINISTER FOR IMMIGRATION | [2021] FCCA 3214 |
| Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – application for extension of time for application to review refusal of application by delegate of the Minister for Immigration and Border Protection – delegate finding application invalid because previous application made – applicant arguing previous application invalid because Form 866 was a legislative instrument that was not tabled in the Parliament – Form 866 not a legislative instrument – Anshun estoppel. |
| Legislation: Migration Act 1958, ss.46, 48A, 476(3), 477, 500, Pts.5, 7 Legislation Act 2003, ss.8, 15H, 38 Migration Regulations 1994, Sch.1, pt.4, reg.2.07 |
| Cases cited: BVJ16 v Minister for Immigration & Anor [2017] FCCA 178 |
| Applicant: | AGL17 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File number: | MLG 111 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 30 October 2017 |
| Date of last submission: | 11 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Advocate for the applicant: | Hugh Ford |
| Solicitors for the applicant: | Hugh Ford & Associates |
| Advocate for the respondent: | Adam Cunynghame |
| Solicitors for the respondent: | Sparke Helmore Lawyers |
ORDERS
The application for an extension of time filed on 6 November 2017, and the application for review filed on 17 January 2017, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 111 of 2017
| AGL17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time to review of a decision made by a delegate of the Minister for Immigration and Border Protection (“the Minister”). The delegate decided on 14 October 2016 that an application for a protection visa filed by the applicant on 9 August 2016 was invalid pursuant to s.48A of the Migration Act 1958 (“the Act”) because the applicant was in Australia on 9 August 2016, he had previously applied for a protection visa on 13 March 2012 and that application had been refused. The decision under consideration in the current proceeding is the delegate’s decision made on 14 October 2016.
The parties agreed that, in this case, the decision of the delegate was reviewable in this court. That is because the decision of the delegate was not a primary decision as defined in s.476(3) of the Act. The delegate’s decision was not a primary decision because it was not reviewable by the Administrative Appeals Tribunal (“the Tribunal”) under Parts 5 or 7 or s.500 of the Act. The decision was not reviewable by the Tribunal because the Tribunal can only review decisions to grant or refuse a visa. The delegate’s decision in this case was to the effect that the protection visa application filed on 9 August 2016 was not valid.
Extension of time application
The decision of the delegate of the Minister to refuse the applicant’s application for a protection (Class XA) (subclass 866) visa was made on 14 October 2016. Under s.477(1) of the Act, any migration application to this court is to be filed within 35 days of the date of the decision. The application to this court was not filed until 17 January 2017. Consequently, the application was about two months late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
The applicant did not seek an extension of time in his initial application to this court. However, at the hearing on 30 October 2017, he was given leave to file an amended application seeking an extension of time and an affidavit in support. He did file an amended application on 6 November 2017, but did not state in that application the grounds of the substantive application. I assume that he continues to rely on the grounds of the substantive application as initially set out.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the parties of the grant or refusal of an extension of time;
d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and
e)the merits of the substantive application.
As stated, the delay was about two months.
The applicant was ordered to file and serve an affidavit addressing the extension of time issue by 13 November 2017. He did not do so. However, he set out some reasons for his delay in filing the application in his amended application filed on 6 November 2017. The applicant explained the reasons for the delay as follows:
a)he was suffering from a great deal of stress and could not focus on the matter at hand;
b)he was separating from his wife;
c)he had intended to apply for a partner visa, but as his relationship had broken down, he had no option but to apply for a protection visa; and
d)he could not afford to apply for a protection visa and pay the costs associated with a court application.
The applicant would obviously suffer substantial prejudice if an extension of time were not granted.
The respondent did not point to any prejudice from the grant of an extension of time.
I now turn to a consideration of the prospects of success of the substantive application
Applicant’s argument
The grounds of review contained in the application filed on 17 January 2017 are:
1.The application form which was used by the applicant in his first application was a legislative instrument and therefore must be tabled in the parliament and is subject to disallowance.
2.The application form was not tabled in the parliament and therefore the form is an unlawful form. The form which was used has no legal authority, and the form was an invalid form. The application was an invalid application.
3.As the first application for the protection visa was an invalid application the applicant is free to make another application for a protection visa.
The applicant argued that his first protection visa application, which was filed on 13 March 2012, was invalid, and therefore was not a bar to him filing his second protection visa application on 9 August 2016. The applicant argued that his first protection visa application was invalid because Form 866, which he was required to complete and file to make his first protection visa application, was a legislative instrument that had not been tabled in the Parliament. The applicant argued that, as Form 866 had not been tabled in the Parliament, his first protection visa application was invalid.
The applicant conceded that, on his argument, his current protection visa application filed on 9 August 2016 would also be invalid because the same form was used in both his application filed on 13 March 2012 and his application filed on 9 August 2016. Indeed, the applicant argued that all visa applications lodged by everyone in the last many years were invalid because all of the relevant forms were legislative instruments but none of them were tabled in the Parliament.
The court put to the applicant that, if his argument was correct, there would be no point in remitting the matter to the delegate for redetermination, because, on the applicant’s own case, his current protection visa application was invalid. The applicant then submitted that the court should not determine the matter, but adjourn the proceedings to enable the Parliament to take corrective action.
The applicant’s argument hinged on s.8 of the Legislation Act 2003. It was common ground that s.8(2), (3) and (5) of the Legislation Act 2003 were not relevant. Section 8 of the Legislation Act 2003 relevantly provided that:
(1)A legislative instrument is an instrument to which subsection (2), (3), (4) or (5) applies.
…
(4)An instrument is a legislative instrument if:
(a)the instrument is made under a power delegated by the Parliament; and
(b)any provision of the instrument:
(i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and
(ii) has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. (emphasis added)
The applicant argued that Form 866 was an instrument made under a power delegated by the Parliament and a provision of Form 866 determined the law or altered the content of the law, and affected a privilege, being the privilege of having one’s protection visa application considered by the Minister.
The Minister’s argument
The Minister submitted that Form 866 was not a legal instrument because it did not determine the law or alter the content of the law.
Consideration
The applicant was unable to specify any respect in which Form 866 determined the law or altered the content of the law, or how Form 866 itself affected a privilege.
The applicant’s argument fails to recognise that, at most, the instrument that would have to be tabled in the Parliament is a blank Form 866. It could not be seriously suggested that a completed Form 866 would need to be tabled in the Parliament. The applicant was unable to explain how a blank Form 866 in any way determines the law or alters the content of the law. The completed Form 866 is contained in the court book. It patently does nothing more than enable certain information to be collected for the purpose of assisting in the assessment of protection visa applications.
I accept that, by completing the Form 866, the applicant acquired the privilege of having his visa application determined. However, that does not mean that the Form 866 itself affected a privilege. The completion of a Form 866 has considerable legal significance. Without a completed Form 866, there cannot be a valid application for a visa. That follows from s.46 of the Act which relevantly provides:
(1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
…
(b)it satisfies the criteria and requirements prescribed under this section; and
…
(2)Subject to subsection (2A), an application for a visa is valid if:
(a)it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b)under the regulations, the application is taken to have been validly made.
…
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4)Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application …
…
Regulation 2.07 of the Migration Regulations 1994 (“the regulations”) relevantly provided at the time of the first visa application that:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
…
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a)in the form; or
(b)in a separate document that accompanies the application.
…
The relevant form for protection visas is set out in Part 4 of Schedule 1 to the regulations which relevantly provides that:
14.01Protection (Class XA)
(1) Form: 866.
…
Section 38 of the Legislation Act 2003 requires that legislative instruments be laid before each house of Parliament to be registered. It provides that:
(1)The Office of Parliamentary Counsel must arrange for a copy of each registered legislative instrument to be delivered to each House of the Parliament to be laid before each House within 6 sitting days of that House after the registration of the instrument.
(3)If a copy of a legislative instrument is not laid before each House of the Parliament in accordance with this section, the legislative instrument ceases to have effect immediately after the last day for it to be so laid.
In relation to the registration of legislative instruments, s.15H of the Legislation Act 2003 provides that:
(1)If an instrument is lodged for registration as a legislative instrument or notifiable instrument in accordance with section 15G and the rules, the First Parliamentary Counsel must register the instrument:
(a)if the instrument is lodged for registration as a legislative instrument—as a legislative instrument; or
(b)if the instrument is lodged for registration as a notifiable instrument—as a notifiable instrument.
(2)If an instrument or document is lodged for registration otherwise than as a legislative instrument or notifiable instrument, in accordance with section 15G and the rules, the First Parliamentary Counsel must register the instrument or document accordingly.
(3)However, the First Parliamentary Counsel must not register an instrument or document if:
(a)for a document lodged for registration otherwise than as a legislative instrument or notifiable instrument—the First Parliamentary Counsel considers that:
(i) the document is not likely to be useful to users of the Register; or
(ii) it would otherwise be inappropriate to register the document; or
(b)before the instrument or document is registered, the person lodging the instrument or document (or another person acting on behalf of the responsible person for the instrument, or for the instrument to which the document relates) withdraws the lodgement.
(4)If the First Parliamentary Counsel does not register an instrument or document because of paragraph (3)(a), he or she must give written notice to the person lodging the instrument or document.
Having said all that, in my view, the applicant falls at the first hurdle. That is because, as discussed above, a blank Form 866 is not a legislative instrument as defined.
That conclusion is consistent with the first instance decision in BVJ16 v Minister for Immigration & Anor [2017] FCCA 178 at paragraph 20, where Judge Street of this court said:
Regulation 1.18 of the Regulations facilitates the approval of forms consistent with s.495 of the Act for the efficient and expeditious implementation of the legislative scheme behind the visas that may be granted under the Act. Materially, the power to approve forms for use in making an application facilitates the Minister or the Minister’s delegate being able to approve forms that from time to time need change because of changes in technology or other reasons. That process for approval of forms under reg.1.18 of the Regulations does not require the same steps as would be required for delegated legislation. The forms approved under s.495 of the Act and reg.1.18 of the Regulations are not delegated legislation or more accurately, not a disallowable instrument.
My conclusion is also consistent with the decision on appeal in BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 1205 at paragraph 28, where Burley J said:
Taken together, reg 2.07(1) and Item 1401 identify that an applicant must complete a Form 866 in order to make a valid application, but the form itself is not incorporated into the legislation. Rather, the Regulation has the effect of indicating that such Form 866 as the Minister may from time to time approve, should be completed.
In other words, it is simply not arguable that Form 866 is a legislative instrument.
In addition, there is an abuse of process issue in the present case. It emerged during the hearing that the applicant had pursued his first protection visa application as far as the High Court. The applicant now alleges that his first protection visa application was invalid, but he did not run that argument before this court or in the High Court. It seems to me that the applicant would be prevented by the principles of Anshun[1] estoppel from now seeking to argue that his first protection visa application was invalid, when he has run two court cases that proceeded on the basis that the first protection visa application was valid.
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; (1981) 36 ALR 3; (1981) 55 ALJR 621; [1981] HCA 45.
The Minister also submitted that the current proceeding is an abuse of process for the reasons discussed in CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132. However, that case concerned a different issue, which was a second judicial review application, rather than a second visa application, as is the case in the present proceeding.
Conclusion
In my view, the applicant has no reasonable prospect of success in the present application. His reasons for delay were not explained with admissible evidence. However, even accepting his assertions in the amended application, the reasons are poor. It is not persuasive that the applicant had to file a protection visa application because he was no longer able to seek a partner visa application. Stress and lack of money are common barriers for migration applicants, but many of them manage to overcome them.
Leaving aside the reasons for the delay, the fact that the applicant has no reasonable prospect of success means that the application for an extension of time must be dismissed. That conclusion is reinforced by the Anshun point. I will hear the parties on the question of costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 20 December 2017
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