Akl21 v Minister for Immigration
[2019] FCCA 3952
•29 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKL21 & ANOR v MINISTER FOR IMMIGRATION | [2019] FCCA 3952 |
| Catchwords: MIGRATION – Migration Act1958 (Cth) – Protection visa application – s.48A of the Migration Act1958 (Cth) 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 – identical argument raised in this Court and in Federal Court of Australia unsuccessfully on numerous occasions – no jurisdictional error – argument rejected and earlier protection visa application not invalid – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46, 48A, 474, 476, 495 |
| Cases cited: AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150 SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 SZMOX v Minister for Immigration & Border Protection [2018] FCAFC 121 |
| First Applicant: | AKL21 |
| Second Applicant: | AKM21 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 236 of 2021 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 15 June 2018 & 3 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2019 |
REPRESENTATION
| Both Applicants appeared in person at the hearing on 15 June 2018 and the First Applicant appeared in person at the hearing on 3 August 2018. |
| Counsel for the Respondent: | Ms C. Saunders |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 24 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 236 of 2021
| AKL21 |
First Applicant
AKM21
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant is a female citizen of China aged 49 years, having been born on xx xxx 1969.
The Second Applicant is a male citizen of China aged 51 years, having been born on xx xxx 1967 and is the husband of the First Applicant.
By Application filed in this Court on 24 November 2017, they seek to quash and have re‑determined the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 25 October 2017 which found that their application for Protection (Class XA) (Subclass 866) visas (Protection visa(s)) lodged on 11 October 2017 (present Protection visa application) was invalid by force of s.48A of the Migration Act 1958 (Cth) (the Act), because the Applicants had not left Australia since a decision had been made to refuse to grant them Protection visas.
I am satisfied that that this Court has jurisdiction under s.476(1) of the Act to review the Delegate’s invalidity assessment, which is a privative clause decision under s.474(2) and s.474(3)(g).
Background
The evidence establishes and I find as a fact that:
a)the First Applicant arrived in Australia on 13 September 2007 on a Student Guardian (Class TU) (Subclass 580) visa. The Second Applicant arrived in Australia on 2 March 2002 on a Temporary Business Entry (Class UC) visa;
b)on 20 April 2009 the First Applicant lodged an application for a Protection visa. A Delegate of the Minister refused that Protection visa on 15 July 2009. She then lodged a review of that decision with the Refugee Review Tribunal (RRT) and on 3 November 2009 it affirmed the decision of the Delegate not to grant to the First Applicant a Protection visa;
c)on 30 November 2009 the First Applicant commenced judicial review proceedings in this Court. Those proceedings were dismissed by Federal Magistrate Raphael on 11 March 2010. The First Applicant unsuccessfully appealed this decision to the Federal Court of Australia, which appeal was dismissed by Tracey J on 6 August 2010: SZOAZ v Minister for Immigration & Citizenship [2010] FCA 816;
d)on 20 June 2002 the Second Applicant lodged an application for a Protection visa. A Delegate of the Minister refused that Protection visa on application 5 July 2002. The Second Applicant then lodged a review of that decision with the RRT and on 3 September 2003 it affirmed the decision of the Delegate not to grant the Second Applicant a Protection visa;
e)on 28 October 2003 the Second Applicant commenced judicial review proceedings in this Court. Those proceedings were dismissed by Federal Magistrate Driver on 2 September 2005;
f)on 24 February 2014 the Applicants lodged an application for Protection visas, following the introduction on 24 March 2012 of the complementary protection criterion under s.36(2)(aa) of the Act (complementary Protection visa application). The decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) had found that s.48A as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, as was the case here. I note that in this complementary Protection visa application the First Applicant applied as a secondary applicant member of the Second Applicant’s family unit and did not make her own claims to protection;
g)on 20 June 2014 a Delegate of the Minister refused the complementary Protection visa application. The Applicants then lodged a review of that decision with the RRT which on 23 September 2014 affirmed the decision of the Delegate not to grant them Protection visas under the complementary protection criterion;
h)on 29 October 2014 the Applicants commenced judicial review proceedings in this Court of the RRT decision. Those proceedings were dismissed by Judge Barnes on xx xxx 2016. The Applicants unsuccessfully appealed this decision to the Federal Court, which dismissed it on xx xxx 2017 and the High Court of Australia refused special leave to appeal that decision on xx xxx 2017; and
i)on 11 October 2017 the Applicants lodged their present Protection visa application whilst they were in Australia.
Claims for Protection
In their present Protection visa application form no claims to protection were advanced. Instead the Applicants stated that they would provide extensive additional submissions in support of their application once the question of validity had been determined and that they would rely primarily upon events that had occurred subsequent to their arrival in Australia.
Conditions for a Valid Protection Visa Application
Pursuant to s.46(1)(d)(ii) of the Act an application for a visa is only valid if it is not prevented, inter alia, by s.48A. As at 11 October 2017 s.48A relevantly provided as follows:
48A No further applications for protection visa after refusal or cancellation
(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.
…
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.
(2) In this section:
application for a protection visa means:
(aa) an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.
(aaa) an application for a visa, a criterion for which is that the applicant is a non‑citizen who is a refugee; or
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
(emphasis added)
I note that s.48A(1C) of the Act came into effect from 28 May 2014 in order to respond to and supersede the decision in SZGIZ. The genesis, meaning and effect of s.48A(1C) are set out in the decision of the Full Court of the Federal Court of Australia in AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150 (AZABF) comprised of North ACJ and Collier and Flick JJ.
Decision of Delegate
By letter dated 25 October 2017 the Delegate notified the Applicants that their present Protection visa application was invalid by force of s.48A of the Act (refusal decision).
The refusal decision stated as follows:
A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.
Accordingly, because the present Protection visa application was deemed invalid by force of s.48A of the Act the Applicants were not invited to an interview with the Delegate.
Grounds of Attack on Refusal Decision in this Court
The Applicants rely on the following Grounds:
1. The decision dated 25th October 2017 of the Respondent, asserting the invalidity of the protection visa application filed, is challenged.
2. The Delegate of the Respondent made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier protection visa application the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Schedule 1 to the Regulations took effect on 20 October 1999;
b. Item 1401 of Schedule to the Regulations, by virtue of Section 49A(l)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or Section 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.
By virtue of those provisions and notwithstanding Section 14(4) of the Legislation Act and Section 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent it existed when item 1401 took effect on 20 October 1999.
c. As a result, by virtue of Section 46 of the Act when read with ref 2.07 of the Regulations and notwithstanding Section 25C of the Interpretation Act when read with Section 13(1) of the Legislation Act, the earlier application was invalid and the later application was not barred by Section 48A of the Act.
3. Burley J. of the Federal Court of Australia dismissed a decision of this Court raising relevantly identical issues – namely at BVJ16 v. MIBP 2017.
4. This judgement is binding upon this Court and the Federal Court. An Application to the Full Bench of the Federal Court is to be made.
Adjournment Application
At the hearing date in this Court on 15 June 2018 the First Applicant, who spoke on behalf of the Second Applicant, made an application for an adjournment. The Applicants’ stated intention was to seek out a lawyer, namely Mr Joel who had previously advised them. Ms Saunders, who appeared for the Minister, opposed this application.
This matter was first returnable before me on 23 February 2018 when I made procedural orders to get the matter ready for hearing and the First Applicant, who appeared in person, was put on notice of the hearing date of 15 June 2018. The Applicants had some four months to retain the services of a lawyer for their case. I did not consider it to be in the interests of justice to allow an adjournment and therefore it was refused.
Consideration
The Grounds relied upon are grounds which have been submitted by Mr Joel and Mr Oliver Jones of Counsel in a series of cases over the last few years, and in each case they have been unsuccessful. The core argument is that the reference to Form 866 in Item 1401 of Sch.1 to the Migration Regulations 1994 (Cth) (Regulations) is to be construed as incorporating the whole of Form 866 into the Regulations as at the date that Item 1401 came into effect on 18 October 1999, and that therefore subsequent versions of Form 866, as approved by the Minister from time to time pursuant to s.495 of the Act, are not incorporated and are therefore invalid forms on which a valid application for a Protection visa cannot be made.
This argument has been rejected on many occasions in this Court and then by Burley J in the Federal Court of Australia in BVJ16 v Minister for Immigration & Border Protection [2017] FCA 1205 (BVJ16) which was approved by the Full Court of the Federal Court of Australia in SZMOX v Minister for Immigration & Border Protection [2018] FCAFC 121 (SZMOX).
In SZMOX the grounds of attack on the Delegate’s rejection of the appellant’s Protection visa application as a result of s.48A of the Act were identical with the Grounds relied upon by the Applicants in the present proceeding. It was submitted that the Delegate was wrong to reject the Protection visa application because the application for a Protection visa which had previously been lodged by the appellant and rejected was itself not a valid application for a Protection visa, because it was not made on a valid Form 866.
In SZMOX the Full Court comprised of Collier, Barker and Davies JJ endorsed the analysis of Burley J in BVJ16 and held at [28] – [32] as follows:
[28]Section 14(1) of the Legislation Act is not engaged in these appeals. We do not consider that “Form: 866” constitutes “any matter contained in any other instrument or writing as in force or existing at the time when the first mentioned legislative instrument takes effect” within the meaning of s 14(1)(b), such that it could be applied, adopted or incorporated into item 1401 in Sch 1 to the Regulations. As the Minister correctly submitted, item 1401 refers to Form 866, and leaves the form to be ascertained by identifying what is “Form 866” approved by the Minister at the relevant time.
[29]It is not in dispute that different, approved versions of Form 866 have existed concurrently, both before and after 20 October 1999. The reference to the form number simply provides the necessary certainty about which form an applicant should use when making the relevant visa application.
[30]Further, even if Form 866 was such “writing as in force at the relevant time” to attract s 14(1)(b) as submitted by the appellants, we endorse the reasoning of Burley J in BVJ16 to the effect that the Act manifests an intention contrary to the application, adoption or incorporation of Form 866 as it existed on 20 October 1999. The Minister has power under s 495 of the Act to approve a form for the purposes of a provision of the Act. As pointed out by the Full Court in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27; (2012) 201 FCR 1 at [23], the Minister’s power under s 495 to approve a form is not confined, and the Minister can approve more than one form for the purposes of a specific provision of the Act. Provided the approval for a relevant form has not been revoked, a form approved pursuant to s 495 could be used in an application: MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; (2016) 237 FCR 156 at [51]. This unconfined power and the possibility of multiple versions of an approved Form co-existing under the Regulations, strongly suggests that Form 866 as at 20 October 1999 was not incorporated into the statutory regime.
[31]Further, as Mr Markus for the Minister submitted, the inconvenience of having a form set in time while the visas and criteria in the Act and Regulations constantly change is indicative of a contrary intention within the meaning of s 14(1).
[32]We can identify no flaw in the analysis of Burley J in BVJ16, or the primary Judge in this case in applying BVJ16.
Accordingly, in my view the Grounds relied on by the Applicants fail.
A Final Matter
At the hearing on 15 June 2018 the First Applicant raised a further argument in oral address, namely that as she was only included as a secondary dependant family member under s.36(2)(c) of the Act to the complementary protection application, rather than an applicant who made her own personal claims for protection, s.48A did not bar her from making a valid protection visa application.
However, that argument must fail because s.48A(1C) of the Act makes clear that since 28 May 2014 the First Applicant was prevented from making a further Protection visa application on any basis under s.36(2), regardless of which criterion she had previously claimed, or failed to claim, to satisfy.
As the Full Court said in AZABF at [26]:
[26]… The decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.
The simple fact of the matter is that each of the Applicants are precluded by s.48A(1) of the Act from making the present Protection visa application in circumstances where they have twice previously been refused Protection visas.
Conclusion
In my view, the refusal decision of the Delegate is not affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 29 July 2019
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