AIU17 v Minister for Immigration
[2018] FCCA 2281
•8 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIU17 v MINISTER FOR IMMIGRATION | [2018] FCCA 2281 |
| Catchwords: MIGRATION – Application for review of a decision of an officer of the Department of Immigration – application for protection visa invalid under s.48A of the Migration Act 1958 (Cth) – Applicant’s submissions appear to concede the application is invalid – abuse of Court process – application is dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.13.03C Legal Profession Act 2006 (ACT), s.56 Legislation Act 2003 (Cth), s.8 Migration Act 1958 (Cth), ss.47. 48A, 48B Migration Regulations 1994 (Cth), regs. 2.01, 2.07, Schedule 1, subitems 1401, 1404 |
| Cases cited: AGL17 v the Minister for Immigration and Border Protection [2017] FCCA 3214 |
| Applicant: | AIU17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 24 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2018 |
REPRESENTATION
| Solicitor acting as Counsel for the Applicant: | Mr Abbas |
| Solicitors for the Applicant: | R & J Lawyers Pty Ltd |
| Solicitor acting as Counsel for the First Respondent: | Mr Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 24 of 2017
| AIU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
By application filed 6 January 2017, the Applicant seeks judicial review of a decision made by an officer of the Department of Immigration and Border Protection (‘the officer’) dated 30 December 2016. The officer rejected the Applicant’s second application for a protection visa on the basis it was invalid under s.48A of the Migration Act 1958 (Cth) (‘the Act’) because the Applicant had previously made an application for a protection visa and the Respondent had not lifted the bar under s.48B of the Act.
The grounds of application are as follows:-
“1. That the applicant made his first application for a protection visa which was refused by the department.
2. This application was an invalid application because the application form was a legislative instrument which was not tabled in the parliament.
3. That the alleged form used by the applicant to apply for the visa was not tabled in the house for approval, in this context it was not a valid form so there was not a valid application hence rendering the decision defunct and as there was not a decision in the eyes of the law.
4. Since the first application was invalid the second application lodged by the applicant on 12 December 2016 was valid, as section 48 of the Act did not apply to the second application lodged by the applicant.
5. That the decision made by the Minister suffers jurisdictional error.
6. That the Minister made an error of law while reaching the decision.
7. The applicant reserves the right to add, amend, or withdraw any other ground to support his claim.”
The Applicant’s legal representative concedes, that the legal issues raised by the Applicant before the Court have already been considered and decided in earlier cases of both this Court and on appeal, the Federal Court of Australia, and that on the basis of those legal authorities,[1] the application should be dismissed. The Applicant, however, does not consent to a dismissal of the application and expressly wishes to reserve his right to appeal any dismissal of his application by the Court.
[1] AGL17 v Minister for Immigration [2017] FCCA 3214; BVJ16 v Minister for Immigration & Anor [2017] FCCA 178; BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 1205.
The Applicant also sought that no costs be awarded against him as the issue before the Court he claimed to be one of statutory construction which was decided by the courts subsequent to the Applicant’s filing of his application.
Background
On 19 April 2013, the Applicant applied for a protection (subclass 866) visa (‘the first application’). He claimed to be a citizen of Sri Lanka who was born in Colombo in the Western Province of Sri Lanka on 9 January 1985. He came to Australia on a valid Sri Lankan passport in March 2006. He studied, as set out in a statement made by him attached to the first application, hospitality and obtained a diploma in hospitality, and a Certificate III in culinary. He visited Sri Lanka in 2011. Upon his return to Australia, and on 19 April 2013, he made the first application. He attended a departmental interview on 9 December 2013 and a delegate of the Minister for Immigration and Border Protection refused his application for a protection (subclass 866) visa on 10 December 2013. He applied to the Refugee Review Tribunal (as it then was) for a review of the delegate’s decision on 18 December 2013.
On 22 May 2014, the Refugee Review Tribunal affirmed the delegate’s decision not to grant the Applicant a protection (subclass 866) visa.
On 20 June 2014, the Applicant applied to the Federal Circuit Court for judicial review of the Refugee Review Tribunal’s decision. The matter was listed for final hearing on 20 August 2015 before Judge Riley. The Applicant did not attend the hearing and Judge Riley ordered that the application be dismissed for want of appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
On 8 September 2015, the Applicant applied to the Court to set aside the order made by Judge Riley on 20 August 2015. That application was heard and dismissed by Judge Riley on 11 December 2015. In Her Honour’s reasons for judgment delivered on 11 December 2015, Her Honour found that the Applicant’s explanation for his failure to appear at the earlier hearing was “difficult to understand”. Judge Riley was otherwise not satisfied that any of the Applicant’s arguments about the asserted invalidity of the Tribunal’s decision had any reasonable prospects of success to justify the application being reinstated.
On 22 December 2015, the Applicant applied to the Federal Court of Australia for leave to appeal from the interlocutory order made by Judge Riley on 11 December 2015. On 31 May 2016, Jessup J heard and determined the application for leave to appeal. Jessup J found that the primary judge’s conclusion that no ground of review had any reasonable prospect of success was correct and ordered that the application for leave to appeal be dismissed with costs.
On 23 June 2016, the Applicant filed an application for an order to show cause and extension of time in the original jurisdiction of the High Court of Australia. On 6 September 2016, Gordon J heard and determined the application for an extension of time and application for an order to show cause. Gordon J found that the Applicant’s grounds for review were sufficiently considered by this Court and the Federal Court of Australia and that both Courts had found that none of the grounds of the Applicant herein had any reasonable prospects of success. Gordon J. stated:-
“I have reviewed the plaintiff’s application, the Tribunal’s decision and the decisions of both the FCC and the Federal Court. There is no identifiable error in any of those decisions. The application does not disclose any arguable ground and the argument sought to be advanced by the plaintiff lacks merit. No less importantly, the plaintiff’s challenges to the decision of the Tribunal do not support the relief claimed.”[2]
[2] Transcript of proceedings dated 6 September 2016 at page 12.
On 12 December 2016, despite all that had gone before (as described above) the Applicant attempted to make a further application for a protection visa.
On 30 December 2016, an officer of the Department wrote to the Applicant and informed the Applicant that a decision had been previously made to refuse him the visa, and that under s.48A of the Act the Applicant was prevented from making a subsequent application for the visa whilst he remained in Australia. This did not deter the Applicant who has now lived, for the most part, in Australia since March 2006.
Upon arrival in Australia in March 2006, the Applicant was the holder of a subclass 573 (student) (higher education sector) visa. He was granted further student visas on 23 March 2006 and 24 March 2010. He travelled offshore from 1 April to 1 May 2010, 17 to 20 June 2010 and again from 3 June to 2 August 2011. He applied for a fourth student visa on 11 July 2012 but withdrew that application on 8 August 2012 due to financial constraints. He applied for a skilled (provisional) (Class VC) visa on 7 August 2012. That application was refused on 7 January 2013 and affirmed by the Migration Review Tribunal (as it then was) on 15 May 2013. He then applied for a protection (Class XA) visa on 19 April 2013 and was granted an associated bridging C visa.
Proceedings in this Court
The Applicant lodged his application for judicial review on 6 January 2017. He sought judicial review of the delegate’s decision of 30 December 2016. In the grounds of review set out in his application, only grounds 2, 3 and 4 are relevant grounds of review. As submitted by the First Respondent, and accepted by the Court, the other grounds note historical matters or contain bare assertions of error.
On 4 July 2017, Registrar Allaway made orders permitting the Applicant to file and serve any amended application and written submissions 28 days before the final hearing date. The Applicant did not file and serve any amended application but filed written submissions dated 2 August 2018 to which the Court granted the Applicant leave to rely upon this day. There was no objection by the First Respondent. Those submissions appeared to concede that the application should be dismissed but that was not a matter, as stated earlier in these reasons, which the Applicant was prepared, by consent order, to concede.
As of 18 July 2018, the Applicant was represented by Hugh Ford, solicitor. On 18 June 2018, the council of the Australian Capital Territory Law Society cancelled Hugh Ford’s 2017/18 practicing certificate pursuant to s.56 of the Legal Profession Act 2006 (ACT). He was then represented by other solicitors.
Consideration
The First Respondent submits that the Applicant’s previous conduct is inconsistent with the relief he now seeks and that this application before the Court amounts to an abuse of the Court’s process.
The First Respondent submits that not only did the Applicant submit a form of application seeking a protection visa and seeking to engage the administrative processes of the Department, but that once he received an adverse decision from the delegate, he sought to have it reviewed by the then Refugee Review Tribunal on the merits, an act consistent with an acceptance of the validity of the application for the protection visa.
Further, after the Tribunal had determined his application for review, and adversely to him, the Applicant sought judicial review of that decision. After his application was dismissed, he lodged an appeal from that judgment, again unsuccessfully. In neither of those proceedings did the Applicant allege that his application for a protection visa was not valid, and that therefore neither the delegate nor the Tribunal had jurisdiction to deal with his application on the merits. Clearly, he could have made those submissions and, to the extent that he now wishes to raise an argument that is entirely inconsistent with his previous conduct, the First Respondent submits such conduct amounts to an abuse of process.
In Walton v Gardiner (1993) 177 CLR 378 at [393], Mason CJ, Dean and Dawson JJ stated:-
“…proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
The history of this matter is such that the Applicant pursued the first application through the judicial appeal process, and with considerable delay, to the High Court of Australia. He now wishes to agitate that the first application was invalid. That was not an argument he ran before this Court, the Federal Court of Australia and/or the High Court of Australia and nor was it an argument he ran before the Tribunal.
The First Respondent notes that the Applicant’s grounds of review are similar to those agitated in AGL17 v Minister for Immigration [2017] FCCA 3214 (‘AGL17’). In that case, Judge Riley found at [30] that:-
“…It seems to me that the applicant would be prevented by the principles of Anshun[3] 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.”
[3] Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589.
On this basis alone, the First Respondent submits the application should be dismissed.
The Court finds that the Applicant’s filing of the application, that is now before the Court, to be an abuse of process and on that basis, the application will be dismissed.
For completeness sake, I shall turn to the grounds of judicial review of the application which the Court finds are without merit and thus also, on that basis, the application must be dismissed.
Relevant Legislation
Section 47 of the Act requires the Minister to consider a valid application and not to consider an application that is not valid. It provides:-
“47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, 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.”
The approved forms for applying for classes of visa are set out in Schedule 1 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Regulation 2.07 of the Regulations provides that the approved form (if any) to be completed by the Applicant is set out in the relevant part of Schedule 1 to the Regulations. Regulation 2.07(1) of the Regulations provides:-
“2.07 Application for visa—general
(1) For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out other matters relating to the application.
Note: An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).”
Subitem 1401(1) of Schedule 1 Pt. 4 to the Regulations provides that the relevant form for a protection visa is the approved form specified by the Minister in a legislative instrument made for this item under reg. 2.07(5), which provides that:-
“(5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
(b) the way in which an application for a visa of a specified class must be made;
(c) the place at which an application for a visa of a specified class must be made;
(d) any other matter.
Note 1: For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2: Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.”
The relevant instrument in this matter is the “arrangement for protection, humanitarian and refugee visas 2016/024” (Instrument F2016L00577) (’the instrument’) made on 22 April 2016, registered 27 April 2016 and which commenced on 1 July 2016. Subclass (2) of the instrument specifies for subitem 1401(1) of Schedule 1 to the Regulations, the required approved forms for a protection (Class XA) (subclass 866) visa are as listed in the schedule to the instrument. The schedule provides that a protection (Class XA) visa must be made by form 866 and that the application must be made at an office of Immigration in Australia.
The application form (Form 866) is not a legislative instrument.[4] The meaning of legislative instrument is set out in s.8 of the Legislation Act 2003 (Cth) (‘the Legislation Act’). Section 8(1) of the Legislation Act provides that a legislative instrument is an instrument to which sub-ss.(2), (3), (4), (5) applies. None of the examples of a legislative instrument set out in ss.8(2) to 8(5) of the Legislation Act are applicable to Form 866. That is, primary law does not provide for the application form to be done by legislative instrument;[5] the application form is not an instrument registered on the Federal Register of Legislation;[6] the application form is not an instrument that determines or alters the law;[7] and the application form is not declared as a legislative instrument.[8]
[4] AGL17 v Minister for Immigration [2017] FCCA 3214.
[5] Legislation Act 2003 (Cth) s.8(2).
[6] Ibid s.8(3).
[7] Ibid s.8(4).
[8] Ibid s.8(5).
Further, reg.2.01(1) and item 1404(1) of Schedule 1 to the Regulations require that an Applicant must complete a Form 866 in order to make a valid application. The Regulations have the effect of indicating that the Form 866 should be completed when making an application for a protection visa.[9]
[9] BVJ16 v the Minister for Immigration and Border Protection [2017] FCA 1205.
In paragraph 20 of AGL17, Judge Riley made findings against grounds raised by the Applicant, similar to the present proceeding, and found that:-
“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 enables certain information to be collected for the purposes of assisting in the assessment of protection visa applications.”
The Court concurs with the reasoning and findings of Judge Riley.
The application is dismissed and costs shall follow.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 August 2018
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