AJB15 v Minister for Immigration
[2017] FCCA 1592
•13 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJB15 v MINISTER FOR IMMIGRATION | [2017] FCCA 1592 |
| Catchwords: MIGRATION – Migration Act1958 (Cth) – protection visa application – s.48A of the Act – s.48A argued not to preclude a subsequent protection visa application because an earlier protection visa application was not made on the correct version of Form 866 in force in 1999 but rather on a later Form 866 and hence earlier protection visa application invalid – argument rejected and earlier protection visa application not invalid – s.25C of the Acts Interpretation Act 1901 (Cth) applicable in any event – relief should also be refused on discretionary grounds – no jurisdictional error – application dismissed. |
| Legislation: Commonwealth Constitution, s.75(v) Acts Interpretation Act 1901 (Cth), ss.2, 25C, 49A Judiciary Act 1903 (Cth), s.39B Legislation Act 2003 (Cth), ss.13, 14 Migration Act 1958 (Cth), ss.36, 46, 47, 48A, 65, 417, 476, 477, 495 Migration Amendment Regulations 1999 (No. 12) (Cth) |
| Cases cited: AJB15 v Minister for Immigration and Border Protection & Anor [2016] FCA 1102 Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 Edwards v Santos Ltd (2011) 242 CLR 421 MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156 |
| Applicant: | AJB15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2962 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones of Counsel |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed in this Court on 27 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2962 of 2016
| AJB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Egypt aged 31 years, having been born on 8 January 1986.
By Application filed in this Court on 27 October 2016 he seeks that a decision of an officer of the Department of Immigration and Border Protection (Department) of 17 October 2016, to the effect that his application for a Protection (Class XA) (Subclass 866) visa (current Protection visa or alternatively as applicable current Protection visa application) lodged on 23 September 2016 was an invalid application by virtue of s.48A of the Migration Act 1958 (Cth) (the Act), be quashed and redetermined in accordance with law.
I note that a mistaken denial of jurisdiction by a Court is clearly a jurisdictional error attracting a writ of certiorari: Edwards v Santos Ltd (2011) 242 CLR 421 at 439 [46] per Heydon J. In my view, in the present circumstances the Department was in an analogous position to a Court.
Further and in any event, the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), in the exercise of judicial review, made a declaration that an application for a protection visa lodged by the appellant in that case was not invalid under s.48A of the Migration Act, so as to rectify the circumstances where an officer of the Department of Immigration had informed the appellant that his application was invalid. Accordingly, SZGIZ would support the nature of the relief sought by the Applicant in this Court.
Background
The Applicant arrived in Australia on 9 May 2013 on a Subclass 420 Temporary Work (Entertainment) visa.
On 6 June 2013 he lodged an application for a Protection visa which was made in writing on a Form 866 (earlier Protection visa or as applicable earlier Protection visa application).
By a decision dated 16 December 2013 a Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (the Minister) refused the earlier Protection visa application.
On 9 January 2014 the Applicant applied for a review of the Delegate’s decision to the Refugee Review Tribunal (the Tribunal), which by a decision of 6 August 2014 affirmed the Delegate’s refusal to grant to the Applicant the earlier Protection visa application. The Tribunal in coming to its decision considered the Applicant’s claims under the Refugee Convention criterion based on s.36(2) of the Act and the complementary protection criterion pursuant to s.36(2)(aa).
By letter dated 29 August 2014 the Applicant applied, through his migration agent, for ministerial intervention by the Minister under s.417 of the Act. The application was unsuccessful.
The Applicant then sought judicial review of the Tribunal’s decision referred to in [8] above by way of an application dated 2 April 2015 brought under s.476 of the Act in the Federal Circuit Court. The application was brought outside of the 35-day time period prescribed by s.477(1) of the Act, and the Court refused to exercise its jurisdiction under s.477(2) of the Act to extend the time limitation: AJB15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 1005.
On 20 May 2016 the Applicant applied for judicial review, pursuant to s.39B of the Judiciary Act 1903 (Cth), of the decision of the Federal Circuit Court and that application was dismissed with costs on 9 September 2016: AJB15 v Minister for Immigration and Border Protection & Anor [2016] FCA 1102 per Collier J.
Then on 23 September 2016 the Applicant purported to lodge his current Protection visa application which the officer of the Department on 17 October 2016 held to be an invalid application by the operation of s.48A of the Act.
The purpose of s.48A of the Act is to prevent repeated applications for Protection visas.
Grounds of Application in this Court
The Applicant relies in this case on Ground 2 of his Application.
(2) The Delegate otherwise made a jurisdictional error by failing to exercise jurisdiction.
(a)At the time of the earlier application, the version of Form 866 used by the Applicant has been approved by the Minister under reg 1.18(1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October 1999;
(b)Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A (1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s.14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; and
(c)As a result, by virtue of s 46 of the Migration Act read with reg 2.07 of the Migration Regulations and notwithstanding s 25C of the Interpretation Act when reads with s 13(1) of the Legislation Act, the earlier application was not invalid and the later application was not barred by s 48A of the Migration Act.
This Ground is the same as the substantive ground relied upon by the applicant in BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178 (BVJ16) and rejected in the judgment delivered by his Honour Judge Street on 2 February 2017. Mr Jones of Counsel appeared for the applicant in that case, as he also does in the present case.
Ground 2 in this case is also the same as Ground 2 considered by me and rejected in SZUGL v Minister for Immigration [2017] FCCA 419 (SZUGL) where Mr Jones also appeared for the Applicant.
The argument propounded by Mr Jones failed before Judge Street. It failed before me in SZUGL. It also fails in this case for the same reasons as given by Judge Street in BVJ16 and by me in SZUGL.
Mr Jones properly accepts that his argument must fail in this case because of its rejection by two Judges of this Court in BVJ16 and SZUGL, those decisions not being plainly wrong. However he formally submits that those decisions have been wrongfully decided so as to preserve to the Applicant a right of appeal.
Relevant Statutory Provisions
Section 495 of the Act
Section 495 of the Act has provided at all relevant times as follows:
Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
It is common ground that the version of Form 866 used by the Applicant to lodge his earlier Protection visa application on 6 June 2013 had been approved, or so Mr Jones would argue, purportedly approved, by a Delegate of the Minister.
Regulations 1.18 and 2.07
Regulation 1.18 of the Migration Regulations 1994 (Cth) (the Regulations), consistently with s.495 of the Act, has provided at all relevant times as follows:
Approved forms
(1)The Minister may, in writing, approve forms for:
(a)use in making an application for a visa; or
(b)any other purpose authorised or required by these
Regulations.(2) …
Regulation 2.07 of the Regulations provided on 17 October 2016 as follows:
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 that the form, place or manner for making an application is specified by the Minister in a legislative instrument made for the item under subregulation (5).
(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.
(5)If an item in Schedule 1 prescribes any of the following requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify the 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;
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.
(6) The legislative instrument may specify different requirements for:
(a) different kinds of visa (however described); and
(b) different classes of applicant.
(emphasis added to reproduce reg.2.07 as it was at 6 June 2013.)
On their face, s.495 of the Act and reg.1.18 of the Regulations would appear to provide ample authority to the Minister to devise and approve forms for the making of visa applications, including an application for a Protection visa. After all, the forms are meant to provide information for the Minister to consider under s.47 of the Act in determining whether to grant a visa under s.65 of the Act.
Nevertheless, Mr Jones contends that the Form 866 used by the Applicant in making his earlier Protection visa application was invalid. He submits that the only valid and approved form as at 6 June 2013 was the version of Form 866 which existed and was in use at the date Item 1401 of sch.1 to the Regulations took effect on 20 October 1999 (1999 Form 866). On that date the Migration Amendment Regulations 1999 (No. 12) (Cth) came into effect, whereby sch.1 to the Regulations was relevantly amended to provide as follows:
Part 4 – Protection Visas
1401.Protection (Class XA)
(1) Form 866
(2) …
(3) …
(4) Subclasses:
785 (Temporary Protection)
866 (Protection)
At this point I should record that Mr Jones properly concedes that the form of the Form 866 by which the earlier Protection visa application was lodged is substantially similar to and compliant with the 1999 Form 866. There are apparently some minor variations. Neither Mr Jones nor Mr Markus, who appeared for the Minister, considered it necessary that I examine for myself these variations.
It is further conceded by Mr Jones that the success of his argument would have the unattractive consequence that there would be thousands of apparently successful Protection visa applicants in Australia who in truth would never have been validly granted a Protection visa because their applications would have been made on an invalid and unauthorised Form 866.
Mr Jones submits that the invalidity of the Form 866 used to lodge the earlier Protection visa application results because the reference to Form 866 in Item 1401 is to be read as referring and limited to the precise form of the 1999 Form 866, to the extent that it existed on 20 October 1999. He contends that the combined effect of reg.2.07(1)(a) and Item 1401, the latter of which came into effect on 20 October 1999, means that for the purposes of being a valid visa application pursuant to s.46 of the Act only the 1999 Form 866 can be used. He submits that Item 1401 was never validly amended by or under the Regulations before the earlier Protection visa application was lodged and this means that the 1999 Form 866 was the only valid application form for a Protection visa application as at the date of the earlier Protection visa application. The Applicant did not use the 1999 Form 866 when he made his earlier Protection visa application and therefore it was invalid and in truth no visa application at all.
Mr Jones also calls in aid to his argument s.14 of the Legislation Act 2003 (Cth) (Legislation Act) and its predecessor, s.49A of the Acts Interpretation Act 1901 (Cth), which latter provision was in force when Item 1401 was made. The relevance of those sections is put as follows in his Outline of Submissions:
7.The prima facie effect of s 49A of the Interpretation Act on item 1401 at the time it was made, and of s.14 of the Legislation Act subsequently, would be as follows. Item 1401 could not perform an ambulatory incorporation by reference of Form 866 so as to include the version of Form 866 used by the Applicant. Form 866 was not itself a regulation within the meaning of s 49A(1)(a) of the Interpretation Act. Nor is it apparent to the Applicants that Form 866 was a “disallowable legislative instrument” within the meaning of s 14(1)(a) of the Legislation Act.
8. Rather, Form 866 was “any other instrument or writing” within the meaning of s 49A(1)(b) of the Interpretation Act and s 14(1)(b) of the Legislation Act. As such, Form 866 could only be the subject of a fixed incorporation by reference when item 1401 took effect, namely on 20 October 1999. Item 1401 should be should be read down so that it is limited to Form 866 to the extent it existed on that date. As a result, the visa application filed by the Applicant can be taken to be invalid. Subject to the Minister demonstrating the contrary, it is almost inconceivable that the application used Form 866 as it existed on 20 October 1999.
(citation omitted.)
It is common ground that the earlier Protection visa application did not use Form 866 precisely as it existed on 20 October 1999.
Consideration
I reject Mr Jones’ arguments and consider that they are strained and artificial and if accepted, would be likely to result in unintended and absurd results.
First, I do not accept that the combined effect of reg.2.07(1)(a) and the reference to a Form 866 in Item 1401 was to incorporate and set in concrete a fixed version of Form 866 only as it existed in 1999.
In my view, the use of the number 866 within the expression “Form 866” as it appeared in Item 1401 commencing 20 October 1999 was simply for the purposes of identifying the form approved from time to time by the Minister under s.495 of the Act for the making of a Protection visa application and utilising as a matter of convenience and consistency the same number used for the additional criteria for Protection visas appearing in Subclass 866 to sch.2 to the Regulations. Sub-clause 4 of Item 1401 (as extracted at [24] above) specifically referred to Subclass 866.
Item 1401 merely identifies by reference to the Form numbered 866 the form approved by the Minister at the time of the relevant Protection visa application for the purpose of the provision of information to the Minister to enable a decision to be made as to whether the criteria provided for in s.36 of the Act and Subclass 866 were satisfied. Neither reg.2.07(1) nor Item 1401 purport to set out the contents of the relevant form. The contents of the form are a matter for the Minister acting under s.495 and reg.1.18.
In other words, nothing in the combined effect of reg.2.07(1) and Item 1401, or any other provision of the migration legislation has any tendency to lead to a construction which would mean that in the context of this case the Applicant had to make his earlier Protection visa application on the 1999 Form 866, rather than the Form 866 which he did use, in order for his earlier Protection visa application to be valid.
Rather, I consider that the proper construction of reg.2.07(1) when it refers to the “approved form” presupposes an approved form which the Minister has approved and authorised from time to time.
I agree with [28] – [30] of the judgment of Judge Street in BVJ16 where he said as follows:
[28]It is of considerable importance in reg.2.07(3) of the Regulations that the reference there, is to “an approved form”. There is no intention manifest from the statutory scheme, context, or language that supports a construction that there must be a singular form or a fixed and frozen form. Moreover, the reference in reg.2.07(1) to “the approved form”, expressly incorporates and assumes the capacity to exercise the powers under s.495 of the Act and reg.1.18 of the Regulations.
[29]In those circumstances, it is contrary to the statutory intention to construe reg.2.07 of the Regulations, in its reference to the relevant item of Schedule 1 as specifying or prescribing criteria that must be satisfied for an application for a visa of a specified class to be a valid application, by reference to the form in existence in 1999.
[30]Nor does the work done by reg.2.07(1)(a) of the Regulations, identify a matter in relation to a criteria by reason of which the visa is taken to be valid. On its proper construction, reg.2.07(1)(a) of the Regulations when read together with item 1401 of Schedule 1, should be construed as referring to the approved Form 866 from time to time.
I also consider that the following passage from the judgment of Sackville J in Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 395 although in a slightly different context, but still with reference to Australian migration legislation, supports my construction of reg.2.07(1) of the Regulations:
In my opinion, the reference in s 140 to “the regulations” is a reference to the Migration Regulations as amended from time to time. It is true that Acts Interpretation Act 1901 (Cth) does not contain any provision establishing a prima facie rule of construction that a reference in an Act to certain regulations means the regulations as amended from time to time. It is also true that, where a statute adopts by reference “a positive independent enactment” that referential adoption does not convey an intent to incorporate the independent enactment as amended from time to time: Commissioner for Government Transport v Deacon (1957) 97 CLR 535 at 546, per curiam. However, that principle (which has been overturned by legislation in all Australian jurisdictions: D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), pp 162-163) does not apply to a reference in an Act to regulations made under that Act. The Migration Act confers power to make regulations, including a specific power to make regulations about visa criteria (ss 504-505). It must have been understood at the time of enactment of the Migration Reform Act (and at all other material times) that the Migration Regulations would be frequently amended. It would be very surprising indeed if the reference in s 140(1) were intended to be frozen by reference to the Migration Regulations as they stood on 1 September 1994, regardless of changes in the regulatory regime thereafter: see F A R Bennion, Statutory Interpretation: A Code (2nd ed, 1992), pp 617 ff (“Presumption that updating construction to be given”).
In my view, Parliament cannot have intended that the reference to Form 866 in Item 1401 when it came into effect in 1999 was meant to freeze the form as it was in existence and use at or around that date and thereby to circumscribe and qualify the Minister’s express statutory power to approve forms under s.495 of the Act. Item 1401 is rather to be given an updating construction as always referring to the version of Form 866 in current use as approved by the Minister from time to time under s.495 and reg.1.18 of the Regulations: see O Jones, Bennion on Statutory Interpretation: A Code (6th. Ed, 2013), pp 797 ff (“Section 288: Presumption that updating construction be given”).
I note that there is limited evidence before the Court of how many versions there have been of Form 866 since it was first referred to in Item 1126 of Schedule 1 to the Regulations which came into effect on 1 September 1994.
There is evidence that the 1999 Form 866 bears the notation “(Design date 06/98)” which I infer means that the 1999 Form 866 was approved by the Minister or designed in June 1998.
There is also evidence before the Court that the Form 866 used for the earlier Protection visa application bears the notation “(Design date 04/12)” which may indicate that it was approved by the Minister or designed in April 2012.
In any event, there would appear to have been a number of different versions of Form 866 since the first reference to such a form in the Regulations coming into effect on 1 September 1994. To accede to Mr Oliver’s argument would mean that all new versions of Form 866 between 20 October 1999 and 6 June 2013 were invalid. That would be an absurd and incongruous result and would call for the application of the well-known principle of statutory interpretation that constructions leading to absurd results are to avoided if possible: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 80 [17] per Gaudron, Gummow, Hayne and Callinan JJ.
Section 25C of the Acts Interpretation Act 1901 (Cth) and the Common Law of Substantial Compliance
Section 2 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) provides as follows:
Application of Act
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
Section 25C of the Acts Interpretation Act provides as follows:
Compliance with forms
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
Section 13 of the Legislation Act provides that the Acts Interpretation Act applies to the Regulations as if they were an Act.
In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 279 R D Nicholson J (with Jenkinson J agreeing) in the Full Court of the Federal Court accepted that there was room for application of the substantial compliance principle in relation to the manner in which a Form 866 was completed by an applicant.
It is of course the case that the Form 866 used for the earlier Protection visa application (and Form 866 generally) is not prescribed by the Act and therefore s.25C of the Acts Interpretation Act cannot be directly applied in the present case. However, in Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 at 573 [37] the Full Court of the Federal Court of Australia comprised of French, Lindgren and Stone JJ pointed out that although Form 866 is not in fact actually prescribed by the Act or the Regulations, it had previously been accepted in authorities that “a ‘substantial compliance’ requirement is applicable to it”.
More recently, in MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156 (MZAIC) the majority in the Full Court of the Federal Court, comprised of Kenny, Tracey, Robertson and Mortimer JJ, stated at 161 [10] as follows:
As in Bal v Minister for Immigration and Multicultural Affairs (2002)189 ALR 566 at [37], although the form presently under consideration is not prescribed by the Act or the regulations, it is accepted that a “substantial compliance” requirement may be applicable to it: see Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 279 per R D Nicholson J, with whom Jenkinson J agreed; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 per Merkel J at [43]; Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 per Katz J at [16].
MZAIC is authority for the proposition that although not said to be strictly applicable to approved forms, s.25C of the Acts Interpretation Act, subject to a contrary intention, applies both to the arrangement of the material on a form, and also to the content of that material: see MZAIC at 165 [30].
I consider that no provision of the Act or Regulations evinces a contrary intention such as to preclude the application of s.25C or the common law of substantial compliance to the Form 866 used for the earlier Protection visa application in the circumstances of this case.
I also note that there is recent authority in the Federal Court that s.25C of the Acts Interpretation Act merely reflects the common law, and against the proposition that where there is more than one form and the applicant uses the incorrect form, then the applicant fails to make any application at all. In Nicovations Australia Pty Ltd v Secretary, Department of Health (2016) 338 ALR 429 at 447-448 [74]-[75] Robertson J stated as follows:
[74] Furthermore, the recent decision in MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156 ; 329 ALR 707; [2016] FCAFC 25 (MZAIC), especially at [43]–[50] is inconsistent with the apparent reasoning of Gray J in Re Federated Furnishing Trade Society of Australia as to the significance of the word “must” and of the expression “in accordance with”. MZAIC also indicates that s 25C of the Acts Interpretation Act reflects the common law so that it is not necessary, for the principle of substantial compliance to be applied, that an Act prescribes a form. It will be sufficient that, as in the present case, the Secretary approved a form.
[75] MZAIC, particularly at [34], also stands against the correctness of the observation made by Finkelstein J in Onea v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 254, referred to by the respondents, that where there is more than one form and an applicant uses the incorrect form the applicant fails to make an application at all. In my opinion, the aphorism “No other form will do.” used by Finkelstein J in Onea at 261 flows directly from his Honour’s reference, earlier on that page, to the reasoning in Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 ; 135 ALR 583 (under the name Wang) which was disapproved by the Full Court in MZAIC.
Finally, even if it were the case that the Applicant should have used the 1999 Form 866 rather than the Form 866 used for the earlier Protection visa application, that would not as a matter of statutory construction necessarily render invalid and of no effect the earlier Protection visa application made by the Applicant. As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 392 [97] per McHugh, Gummow, Kirby and Hayne JJ:
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
(citation omitted.)
Discretionary Refusal of Constitutional Writs
Mr Markus’ first submission in this case was that the Application is an abuse of process and ought to be dismissed as vexatious and oppressive because it seeks to litigate matters that could and should have been raised by the Applicant previously either before the Tribunal, or in this Court or in the Federal Court in respect of the earlier Protection visa application (see [8]-[11] above). In support of this submission, he referred to Walton v Gardiner (1993) 177 CLR 378 and Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560.
In my view it is more appropriate to consider whether there are discretionary grounds for refusing the Applicant the relief he seeks in this proceeding.
This Court under s.476(1) of the Act has the same original jurisdiction as the High Court under paragraph 75(v) of the Constitution and the same principles apply in this Court as apply in the High Court: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
It is clear law that the issue of such writs is discretionary. As McHugh J stated in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 322 [80]:
The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.
(citations omitted.)
To similar effect Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [56]-[57] stated as follows:
[56]Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”
[57]When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry said:
“He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief.”
…
(citations omitted.)
In my view, the relief sought by the Applicant in this proceeding should in any event be refused on discretionary grounds for the reasons that follow.
First, the argument now raised by Mr Jones on behalf of the Applicant could and, if it were going to be made, indeed should have been raised before the Tribunal or this Court or the Federal Court of Australia in the litigation concerning his earlier Protection visa application. It was not so put but rather raised for the first time when the present Application was filed in this Court on 27 October 2016. The Applicant must be taken as having chosen to regard his earlier Protection visa application as having been both made on the correct form and made validly and to have acquiesced in his use of the Form 866 he did use rather than the 1999 Form 866. The Applicant has been guilty of unwarrantable delay in propounding his argument that the Form 866 he used was invalid. In my view the following passage from Gageler J in Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 at 395 [18], although in a slightly different context, is relevant to this issue:-
In University of Wollongong v Metwally (No 2) , where a new argument of constitutional invalidity was sought to be raised after the hearing of a special case in this Court in which validity had been assumed, this Court unanimously stated:
“Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
(citation omitted.)
Second, the Applicant has not suffered any practical injustice by his use of the Form 866 which he did use in his earlier Protection visa application. The earlier Protection visa application was considered by the Tribunal on its substantive merits according to both the Refugee Convention criterion and the complementary protection criterion. Mr Jones has conceded on the Applicant’s behalf that the Form 866 lodged on 6 June 2013 was in substantially the same form as the 1999 Form 866. The law does not concern itself with trifles of this type. Any relevant breach of the law would be inconsequential and the justice of the case does not require relief.
Conclusion
In the present proceeding I consider that:-
a)On the proper construction of the relevant provisions of the Act and Regulations the Minister may validly approve forms for visa applications from time to time and valid visa applications may be made on such forms as lodged from time to time;
b)During the period from 20 October 1999 to 6 June 2013 it was not a prerequisite to the validity of Protection visa applications that they be made on the 1999 Form 866;
c)The earlier Protection visa application was a valid application for a visa;
d)Additionally, if necessary, both s.25C of the Acts Interpretation Act and the equivalent common law principle of substantial compliance apply to the Form 866 lodged on 6 June 2013. Mr Jones has conceded that this form of Form 866 is substantially the same form as the 1999 Form 866. In other words, in terms of the test in MZAIC, a comparison of the Form 866 used to lodge the earlier Protection visa application with the 1999 Form 866 shows substantial compliance with the 1999 Form 866 and for this reason also the Applicant’s earlier Protection visa application was valid and effective.
e)Further, even if Mr Jones had been correct in his argument that the Form 866 lodged on 6 June 2013 was the wrong form, there is no indication in any part of the Act or Regulations that this would have the effect of rendering the earlier Protection visa application invalid and ineffective; and
f)In any event I would refuse relief to the Applicant on discretionary grounds.
The Department acted in accordance with law in rejecting the current Protection visa application as invalid. There was no jurisdictional error in doing so and the Application filed in this Court on 27 October 2016 is to be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 13 July 2017
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