AWS18 v Minister for Home Affairs
[2019] FCCA 1922
•2 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWS18 & ANOR v MINISTER FOR HOME AFFAIRS | [2019] FCCA 1922 |
| Catchwords: MIGRATION – Application for summary dismissal of application seeking review where delegate of the Respondent determined that a second protection application was invalid because of s.48A of the Migration Act 1958 (Cth). |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Migration Act 1958 (Cth), s.48A Federal Circuit Court Rules 2001 (Cth), r.13.10 |
| Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 |
| Applicant: | AWS18 |
| Second Applicant: | AXS18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 503 of 2018 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2019 |
REPRESENTATION
| The Applicants: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the Applicants’ application filed on 26 February 2018 be dismissed.
The Applicants pay the Respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 503 of 2018
| AWS18 |
Applicant
AXS18
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application in a case filed by the Respondent Minister on 29 April 2019 seeking an order pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) that the Applicants’ application for judicial review filed on 26 February 2018 be summarily dismissed on the basis that they have no reasonable prospect of successfully prosecuting the proceeding.
The background to this matter is that the Applicants, a mother and her adult son, are citizens of the People’s Republic of China who entered Australia in 2007on a student guardian visa and a student visa. In December 2012 the First Applicant lodged an application for a protection visa, including the Second Applicant as a family member. That application was refused by a delegate of the Respondent. The Applicants sought review by the then Refugee Review Tribunal (the Tribunal). On 29 September 2014 the Tribunal affirmed the decision of the delegate.
On 1 February 2018 the Applicants purported to lodge a further application for a protection visa. By letter dated 5 February 2018, an officer of the Department informed the Applicants that the purported protection visa application had been assessed as invalid. The notification letter explained in relation to each of the Applicants that a decision had previously been made to refuse to grant them a protection visa or they had had a protection visa cancelled, and under s.48A of the Migration Act 1958 (Cth) (the Act) a person who had not left Australia since their protection visa was refused or cancelled was prevented from making a subsequent protection visa application while they remained in Australia. As the letter also explained, the Minister has the power under s.48B of the Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. There is no suggestion that the Minister has exercised such power in this case.
The Applicants sought judicial review by application filed in this court on 26 February 2018. Insofar as the Applicants’ submissions may appear to suggest they seek judicial review of the 2014 Tribunal decision (a copy of which was attached to the supporting affidavit, which also attached a copy of the notification of 5 February 2018), on its face the substantive application makes it clear that it relates to the second protection visa application. The date of the decision is identified as 5 February 2018. The only respondent named is the Minister. The name of the person who signed the notification of decision letter of 5 February 2018 (Eddie) is specified on the application form. The grounds of review expressly challenge the decision of 5 February 2018 in relation to the validity of the protection visa application.
While there is no information before me as to whether there have been prior judicial review proceedings in relation to the 2014 Tribunal decision, I am satisfied that it is not the subject of the present proceedings.
Ground 1 in the application filed on 26 February 2018 states that the decision of which review is sought is as follows:
The decision dated 5th February 2018 of the Respondent, asserting the invalidity of the protection visa application filed, is challenged.
The substance of the grounds of review appears in what is described as ground 2 of the application. It is:
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 of the Regulations, by virtue of Section 49A(1)(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.
This ground, or a ground in relevantly identical terms (in some cases including the same typographical and grammatical errors), has been considered in many cases in this court and the Federal Court. This is recognised in ground 3 of the application, which states that Burley J of the Federal Court of Australia (in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205) “dismissed a decision” of this court raising what the application concedes were “relevantly identical issues”.
Paragraph 4 of the grounds is “This judgment” (which is clearly a reference to BVJ16) “is binding upon this Court” (the Federal Circuit Court). Indeed it is suggested that BVJ16 is also “binding” on the Federal Court and states that “An application to the Full Bench of the Federal Court is to be made”.
In other words, it is acknowledged in grounds 3 and 4 that there is a decision of the Federal Court in point and involving relevantly identical issues that is binding on this court. In effect, this accepts that the Applicants cannot succeed before this court in light of BVJ16, but they foreshadow an intention to test the correctness of BVJ16 before the Full Court of the Federal Court.
The Respondent filed an application in a case seeking summary dismissal on 29 April 2019.
As the Minister submitted, in essence the substance of the Applicants’ argument, insofar as it can be discerned from the review application, is that s.48A of the Act did not apply to their second protection visa application because the version of Form 866 used by them in 2012 for their first protection visa application could not be used for the purpose of lodging a valid application for a protection visa by virtue of relevant provisions of the Act and Regulations. In other words, their argument is that their first protection visa application was not a valid application for the reasons set out in the grounds of review and hence that their second protection visa application was not invalid by reason of the operation of s.48A of the Act. The Minister provided detailed submissions, referring to the existence of contrary Federal Court authority (see BVJ16 and also SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121).
The Applicants also relied on an affidavit of the First Applicant filed on 23 May 2019 which addressed the basis on which she claimed to fear harm in China because of her Christianity. It annexed a letter to the court, which I take to be a submission. The letter described the First Applicant’s personal circumstances, expressed concern about her return to China and sought the leniency of the government. The Applicants did not, however, address the grounds in their application, the validity of their 2018 protection visa application or the Respondent’s submissions.
The Minister seeks that the proceedings be summarily dismissed on the basis that the Applicants have no reasonable prospect of successfully prosecuting the proceeding. It was acknowledged that the principles to be taken into account by the court in considering an application under s.17A(2) of the Federal Circuit Court Act of Australia Act 1999 (Cth) and its Federal Court equivalent as discussed by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 are relevant.
I bear in mind that the Respondent bears the onus of satisfying the court that the Applicants have no reasonable prospect of successfully prosecuting the proceeding and that the power of summary dismissal must be exercised with caution in order to ensure that it is the appropriate decision in a particular case. I have had regard to all of the material before me in determining whether there is a real question of fact or law that should be decided at trial (and see the discussion by Hayne, Crennan, Kiefel and Bell JJ in Spencer at [58] – [60]).
The difficulty that faces the Applicants is that, as the Minister submitted, the grounds sought to be relied on have been considered and have been unsuccessful in many cases, not only in this court but, relevantly, in cases in the Federal Court that are binding on this court. In particular, in BVJ16 Burley J considered a ground that was the same in essential respects as ground 2 in this application. His Honour described the ground before him as an “ingenious but unattractive argument” and rejected it, holding that s.14 of the Legislation Act 2003 (Cth) (Legislation Act) was not engaged and that, in any event, a contrary intention was apparent. It is not necessary for present purposes to further address the basis for his Honour’s detailed reasoning because this Court is bound to follow it in relevantly identical circumstances.
Furthermore, in SZMOX the Full Court of the Federal Court approved this approach. It was contended before the Full Court that while the reasoning BVJ16 had at the time been followed in a number of Federal Court decisions (see APU17 v Minister for Immigration and Border Protection [2018] FCA 56, AJB15 v Minister for Immigration and Border Protection [2018] FCA 57, CDI15 v Minister for Immigration and Border Protection [2018] FCA 58, CNP16 v Minister for Immigration and Border Protection [2018] FCA 65, SZMOV v Minister for Immigration and Border Protection [2018] FCA 66, BLR15 v Minister for Immigration and Border Protection [2018] FCA 67, AUM17 v Minister for Immigration and Border Protection [2018] FCA 306, SZLZS v Minister for Immigration and Border Protection [2018] FCA 748 and CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390), nonetheless the Full Court should not follow BVJ16 because Burley J was wrong in finding that s.14(1) of the Legislation Act was not engaged and because there was no contrary intention manifested by the terms of the Act (see SZMOX at [26]). For present purposes, what is relevant is that the Full Court rejected those submissions. Indeed, the Court observed at [27] that there was little it could usefully add to the analysis of Burley J in BVJ16.
The Applicants have not identified any basis on which they would intend to submit that the decision in BVJ16 (which it is conceded this court was bound to follow) was wrong or should not be followed. Insofar as the application was drafted on the basis that the correctness of BVJ16 was a matter that ought to await a decision of the Full Court of the Federal Court, in SZMOX the Full Court rejected the argument that was unsuccessful in BVJ16. In so doing, the Full Court has effectively rejected the argument that the Applicants now seek to run. There has been no suggestion by the Applicants that the reasoning in SZMOX could be distinguished in any way or that this authority is not also binding on this court.
Instead, in submissions the First Applicant raised her personal circumstances, her concerns about returning to China and issues in relation to her health. She also took issue with the conduct of her former solicitor, apparently in relation to the promptness of earlier proposed or actual proceedings in relation to the 2014 Tribunal decision. However the present application was filed within the time provided for in s.477(1) of the Act and no issue of an extension of time arises. The merits of the Applicants’ claims were not considered by the delegate. Moreover, the issues that the First Applicant raised about her circumstances do not in any way identify or raise any arguable ground of review or suggest that the grounds of review relied upon in relation to the validity of the second protection visa application give rise to an arguable cause of action.
Whether a visa application is valid is an objective question for the court to determine. The Minister conceded that the court had jurisdiction in this case. It was pointed out that under s.47(1) of the Act the Minister is to consider a valid application for a visa, but that under s.47(3) the Minister is not to consider an application that is not a valid application. This was what occurred in the present case and hence there was no consideration of the merits of the Applicant’s claims for protection.
There is no suggestion that s.48A did not apply to the Applicants and no evidence or any suggestion that the Minister had made any decision pursuant to s.48B of the Act.
In light (in particular) of the decision of Burley J in BVJ16 which this court is bound to follow and also bearing in mind the decision of the Full Court in SZMOX, I am satisfied that the Applicants have no reasonable prospect of successfully prosecuting the proceeding and that in these particular circumstances it is appropriate to make the order for summary dismissal sought by the Minister.
The Minister also seeks that the Applicants pay the costs of the application for summary dismissal and of the proceeding generally. The unsuccessful Applicants should meet the costs of the Respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 12 July 2019
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