BNE18 v Minister for Immigration
[2018] FCCA 2857
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNE18 & ANOR v MINISTER FOR IMMIGRATION | [2018] FCCA 2857 |
| Catchwords: PRACTICE & PPROCEDURE – Application to dismiss application for judicial review of decision not to accept lodgement of application for protection visa on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding commenced by the application – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.48 Federal Circuit Court Rules 2001 (Cth) r.13.10(a) |
| Cases cited: BRJ18 v Minister for Home Affairs [2018] FCCA 2858 |
| First Applicant: | BNE18 |
| Second Applicant: | BNF18 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 821 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 September 2018 |
| Date of Last Submission: | 27 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Solicitors for the Respondent: | Mr A Markus of Australian Government Solicitor |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed on 26 March 2018 is dismissed.
The applicants pay the respondent’s costs set in the amount of $3,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 821 of 2018
| BNE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court is an application in a case filed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) for an order that the application be dismissed on the ground that the applicants have no reasonable prospect of successfully prosecuting the proceeding which was commenced by the application.
The application which is sought to be dismissed is one for judicial review directed to the rejection by an officer of the Department of Home Affairs (Department) of the lodgement by the applicants on 22 February 2018 of an application for a protection visa. The Departmental officer rejected the application by letter dated 6 March 2018. I heard this application together with a similar application filed in the matter of BRJ18 v Minister for Home Affairs[1], because hat application and this application that is before me raise identical issues.
[1] [2018] FCCA 2858
Returning to the letter from the Departmental officer dated 6 March 2016, the officer there stated that the application was not a valid application for a protection visa because a decision had previously been made to refuse the applicants a protection visa and in those circumstances s.48A of the Migration Act 1958 (Cth) (Act) prevents the applicants from making a further application for a protection visa unless, acting under s.48B of the Act, the Minister for Home Affairs determines s.48A does not apply. The applicants had previously made an application for a protection visa. That application was received by the Department of Immigration and Border Protection on 7 June 2013. That application was refused by a delegate of the Minister on 6 December 2013. And an application for review was rejected by the Refugee Review Tribunal on 26 June 2014 affirming the delegate’s decision.
The application for judicial review in the case before me contains the following grounds:
1. The decision dated 20th February 2018 of the Respondent, asserting the invalidity of the protection visa 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(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 extend 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 judgment is binding upon this Court and the Federal Court. An Application to the Full Bench of the Federal Court is to be made.
In short, the grounds are to the effect that s.48A of the Act has no application in relation to the protection-visa application lodged by the applicants on 22 February 2018 because the form the applicants used in the previous protection visa application was not able to form the basis of a valid protection visa application.
It will be seen, that the grounds stated in the application state that the application raises relevantly identical issues to those considered by Burley J in BVJ16 v Minister for Immigration and Border Protection[2]. And the application in effect acknowledges that that issue was decided by his Honour in a way which necessarily means that the application for judicial review the applicants have filed in relation to the Department’s rejection of their application for a protection visa is bound to fail.
[2] [2017] FCA 1205
Mr Markus, who appeared on behalf of the respondent, the Minister, submitted that on the face of the application it is bound to fail because the grounds themselves recognise that the decision of Burley J in BVJ16 mandates that result. Mr Markus referred to other authorities and in particular to the decision of the Full Federal Court in SZMOX v Minister for Immigration and Border Protection[3]. Mr Markus also referred me to the judgment of Reeves J in SZLZS v Minister for Immigration and Border Protection[4], in particular to paragraphs 5 and 8 of that judgment, which will be unnecessary for me to set out in these reasons. Mr Markus also referred me to the outcome of an application for special leave from the orders of Reeve J in that case which was dealt with by the High Court pursuant to r.41.08.1 of the High Court Rules 2004 (Cth). That application was dismissed, and the brief record of the dismissal identified the reasons why it was dismissed, one of which was that an “appeal to this court would enjoy no prospect of success”[5].
[3] [2018] FCAFC 121
[4] [2018] FCA 748
[5][2018] HCASL 270
The applicants are not legally represented. I attempted as best as I could to explain to them the issues that arose on the application, and to explain to them the grounds on which the Minister seeks to summarily dismiss the application. The first applicant made some submissions. He said that he would like some further time. When I asked him what he meant by that, and in particular whether he was seeking an adjournment, he said he was not seeking an adjournment. He said he needed time to consult a lawyer in relation to the appeal process. I informed the first applicant that although appeals is not a matter with which I am concerned, I did say to him what was put by Mr Markus, that the grounds relied upon in this application have been the subject of many decisions by this Court, a number of decisions by the Federal Court, which I explained to the first applicant sits as an appeal court to this Court, and to the special-leave application to the High Court, and informed the first applicant that on each occasion the ground sought to be raised by this application has been rejected.
In any event, given the decision of Burley J in BVJ16 and other cases and in particular the judgment of the Full Federal Court in SZMOX which agreed with and confirmed the approach that Burley J took in BVJ16, the applicants have no reasonable prospect of successfully prosecuting the proceeding with the consequence that I will order that the application be dismissed. And I will make that order now.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 4 October 2018
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