BLR15 v Minister for Immigration

[2017] FCCA 1068

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLR15 v MINISTER FOR IMMIGRATION [2017] FCCA 1068

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the application was a valid application for protection – whether the application was made on an approved form – Form 866 – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 476

Cases cited:

BVJ16 v Minister for Immigration and Anor [2017] FCCA 178

Applicant: BLR15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1997 of 2016

Judgment of: Judge Street

Hearing date: 22 May 2017

Date of Last Submission: 22 May 2017

Delivered at: Sydney

Delivered on: 22 May 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone &Associates

Solicitors for the Respondent: Mr A Markus
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the Respondent’s costs fixed in the amount of $3,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1997 of 2016

BLR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for relief within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of which the applicant seeks relief in respect of a decision of a delegate of the Minister made on 26 July 2016.

2. In summary, the applicant alleges that the delegate had no jurisdiction because the Form 866 used by the applicant was not an approved form.  Accordingly, it is alleged that the delegate’s decision was made in excess of jurisdiction and that this Court has jurisdiction to grant appropriate relief.

3. The substance of the argument has been raised in this Court in earlier decisions in which this court has found that the Form 866 was a valid form and in which this Court has held that Item 1401 of Schedule 1 to the Migration Regulations 1994 (“the Regulations”) should not be construed as incorporating the form as a mandatory requirement.   

4. The applicant is a Lebanese national who last entered Australia on 24 April 2013 on a subclass 679 Sponsored visa. On 13 June 2013 the applicant lodged an application for a Protection (Class XA) visa with the Department. By a decision made on 18 December 2013, the delegate of the Minister refused the applicant’s protection visa application.

5. On 17 January 2014 the applicant applied for review of that decision by the Tribunal which made a decision affirming the earlier decision not to grant the applicant protection on 4 August 2014.

6. On 23 June 2016, the applicant purported to lodge a further application for a protection visa with the department. The further application was based on the proposition that the earlier application for protection was made on the incorrect form and was not valid and that accordingly, the applicant was entitled to make a fresh application for protection.

7. The applicant accepts that there is no new basis upon which the applicant seeks to argue that the decision of this Court in BVJ16 v Minister for Immigration and Anor [2017] FCCA 178 is clearly wrong. In these circumstances, Mr Jones of counsel for the applicant, accepts the Court would apply the reasoning in the earlier decisions of this Court. This was a proper course for Mr Jones of counsel to take and preserves his client’s rights in respect of the issue raised by ground 2.

8. I am satisfied that the principles of construction were correctly identified in the earlier decision of this Court in BVJ16 v Minister for Immigration and Anor [2017] FCCA 178. On the evidence before the Court, I find that the application that was originally made for protection was a valid application on an approved form and accordingly, the applicant is not entitled to the relief sought in the current application because of s.48A of the Act. No other ground of error was advanced.

9. Accordingly, the application is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 July 2017