BNG15 v Minister for Immigration
[2020] FCCA 276
•4 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNG15 v MINISTER FOR IMMIGRATION | [2020] FCCA 276 |
| Catchwords: MIGRATION – Application to review decision of a delegate of the Respondent that the Applicant’s application for a Visitor (Class FA) (Subclass 600) visa was invalid. |
| Legislation: Migration Act 1958 (Cth), ss.46, 47, 48 |
| Cases cited: Atta v Minister for Immigration and Border Protection [2018] FCA 145 BNG15 v Minister for Immigration [2016] FCCA 2600 Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 |
| Applicant: | BNG15 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3038 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 4 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The name of the Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
The Applicant pay the costs of the Respondent fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3038 of 2016
| BNG15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of a delegate of the Respondent. The delegate determined on 27 October 2016 that the application for a Visitor (Tourist) (Subclass 600) visa made by the Applicant was invalid because it did not meet s.48 of the Migration Act1958 (Cth) (the Act).
The Applicant, a citizen of Nepal, sought review by application filed in this court on 4 November 2016. In support of his application he provided a copy of the delegate’s decision.
The Applicant did not file written submissions within the time provided for in directions, but today he tendered a letter to the court (in the absence of objection from the Respondent) in which he referred to his personal circumstances, including the fact that he had previously unsuccessfully applied for a Protection visa and the impact of the 2015 earthquake in Nepal. He asked that the matter be forwarded to the Minister.
I have treated this letter as a submission but, as I advised the Applicant, if he wishes to raise his personal circumstances with the Minister, then that is a matter for him to raise directly with the Minister, not through the court.
The application contains three grounds of review. The first ground asked the court to accept the application for review because the application for a Visitor visa had “exceptional grounds”, and as a result of the earthquake in Nepal continued to suffer and the Applicant has been personally affected by great loss and that he needed extra time to stay in Australia until the situation improved in Nepal.
The second ground is that the Department found that the visa application was invalid “without taking into account the compelling and exceptional circumstances”.
The third ground complains that while the Department found the visa application was invalid because it did not meet s.48 of the Act, it failed to give the Applicant a copy of s.48 to “see how it does or does not apply to [him]”.
The primary issue in these proceedings, as recognised in the Respondent’s submissions and as I explained for the benefit of the Applicant today, is the validity of the visa application. The delegate did not proceed to consider the substance of the Applicant’s Visitor visa application, but rather found that it was not a valid application.
The validity of an application for a visa is an objective question that is to be determined by the court when dealing with an application for judicial review, such as the present application. In Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 at [25] to [27] the Full Court of the Federal Court considered whether or not the validity of the application for a visa was an objective question. The Court referred to the fact that the factors or criteria by reference to which an application for a visa is valid were stated objectively in s.46 of the Act and did not rest in the Minister or an officer’s discretion or opinion, and to the fact that s.47 imposes obligations on the Minister, as opposed to conferring a discretion on the Minister. The Court found that these considerations pointed in favour of validity being an objective question for the Court, and so found.
What that means (as the Full Court pointed out in Kim at [27]) is that this court should decide the question of the validity of the Applicant’s visa application. In so far as the validity of the visa application depends upon the existence of particular facts, it is for the court to determine whether or not those facts exist (see Atta v Minister for Immigration and Border Protection [2018] FCA 145 at [16]).
Accordingly, I have considered the validity of the Applicant’s application for a Visitor visa, which he lodged in 2016.
I note, before turning to the facts, that s.46(1)(d) of the Act provides that an application for a visa is valid if, and only if, it is not prevented by any provision of the Act, including, without limitation, s.48 of the Act and that the Minister can only consider valid visa applications (s.47(3) of the Act).
Section 48 relevantly provides (and provided at the applicable time) that “a non-citizen in the migration zone who: does not hold a substantive visa; and after last entering Australia … was refused a visa…” (other than certain refusals that are not in issue in the present proceedings) “may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section … but not for a visa of any other class”.
The relevant regulation is reg.2.12 in the Migration Regulations 1994 (Cth) (the Regulations). It prescribes various classes of visas for the purposes of s.48 of the Act. A Subclass 600 visa is a Visitor (Class FA) visa. This class of visa is not one of the classes prescribed under reg.2.12 of the Regulations.
The Applicant acknowledged in the hearing today that he did not hold a substantive visa when he made his Visitor visa application on 25 October 2016 and that after last entering Australia he was refused a protection visa application.
The Respondent’s submissions also pointed out that the Applicant was refused a protection visa in December 2011. That decision was affirmed by the Tribunal. The Applicant unsuccessfully sought judicial review in this court (see SZRNE v Minister for Immigration and Citizenship [2013] FMCA 127) and he was unsuccessful on appeal to the Federal Court (see SZRNE v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 817). He was refused special leave to appeal by the High Court (see SZRNE v Minister for Immigration, Multicultural Affairs and Citizenship [2014] HCASL 48).
Subsequently, the Applicant applied for a Medical Treatment (Visitor) (Class UB) visa. This was one of the classes of visa provided for in reg.2.12 of the Regulations. That application was refused. The Applicant’s application for judicial review was dismissed by this court in May 2015. The reported judgment refers to the Applicant by name.
The Applicant attempted to lodge a further protection visa application in 2015. He was informed that the application was invalid under s.48A of the Act. He unsuccessfully sought judicial review of that decision (see BNG15 v Minister for Immigration [2016] FCCA 2600).
It was in those circumstances that the Applicant lodged his application for a Visitor (Tourist) (Subclass 600) visa on 25 October 2016.
However, while the Applicant met the requirements in s.48(1)(a) and (b)(i) of the Act, the difficulty that faces him is that that class of the Visitor visa for which he applied in 2016 (Class FA) is not a class of a visa prescribed for the purposes of s.48. Under that section, while a person may apply for a visa of a class prescribed for the purposes of the section, they may not apply for a visa of any other class.
In these circumstances, I am satisfied on the material before the court that the Applicant’s Visitor visa application was not a valid visa application.
Accordingly, in so far as the Applicant’s grounds of review and the submission he made today take issue with the Minister’s failure to consider a valid application for a visa under s.47 of the Act, no jurisdictional error is established on that basis.
To the extent that the grounds of review relate to the Applicant’s circumstances and conditions in Nepal, including changed circumstances, the difficulty that faces the Applicant (as the Minister’s lawyer pointed out) is that because his Visitor visa application was invalid, the question of considering that application did not arise. The Minister had no power to consider the Applicant’s claims, including about changed circumstances in Nepal, in the context of the application for a Visitor visa which was an invalid application.
It was not open to the Minister to take into account exceptional circumstances in considering the validity of the Visitor visa application.
Grounds 1 and 2 are not made out.
Nor did the Department fall into jurisdictional error in failing to provide the Applicant with a copy of s.48 of the Act. As the Full Court of the Federal Court pointed out in Kim, whether or not a visa application is valid is an objective question.
The Applicant said today that the Department had told him that he could apply for a Visitor visa. This was the first occasion which he raised such a claim in these proceedings. However, even if he was given some incorrect advice or perhaps misunderstood advice referring to a Medical Treatment (Visitor visa), which was one of the classes provided for in reg.2.12 of the Regulations, that does not establish jurisdictional error on the part of the delegate.
Jurisdictional error has not been established. The application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 12 February 2020
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