BPW16 v Minister for Immigration
[2020] FCCA 1422
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPW16 v MINISTER FOR IMMIGRATION | [2020] FCCA 1422 |
| Catchwords: MIGRATION – Judicial review – whether Safe Haven Enterprise visa application valid – Safe Haven Enterprise visa application invalid – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.35A(1), 35A(3A), 46A(1)(e)(v), 46(1), 48A, 48B, 91K, 91J(2), 476(1), 476(4), 500 |
| Cases cited: BPW16 v Minister for Immigration [2017] FCCA 1395 BPW16 v Minister for Immigration [2018] FCA 414 Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 |
| Applicant: | BPW16 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | BRG 967 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 29 May 2020 |
| Date of Last Submission: | 29 May 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application filed on 5 November, 2019 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 967 of 2019
| BPW16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of a delegate of the respondent that determined that the applicant’s application for a Safe Haven Enterprise (Subsequent) (Class XE) (subclass 790) visa made on 15 October, 2019 was invalid.
As the respondent submits, the issue for this Court to determine is whether the application for the Safe Haven Enterprise visa was a valid application. The respondent submits that the delegate was correct to find that it was not and the application should be dismissed with costs.
The applicant is a citizen of Bangladesh who arrived in Australia on 6 May, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.
The evidence establishes that the applicant applied for a Protection (Class XA) visa which was refused on 24 October, 2014. That decision was subject to unsuccessful administrative review. The applicant sought judicial review of that decision in this Court and failed: BPW16 v Minister for Immigration [2017] FCCA 1395. The applicant appealed to the Federal Court of Australia.
On 14 February, 2018 the applicant was granted a Temporary Safe Haven – Humanitarian Stay (Temporary) (Class UJ) (subclass 449) visa. That visa ceased on 21 February, 2018.
His appeal to the Federal Court from this Court’s decision on his judicial review application was dismissed on 28 March, 2018: BPW16 v Minister for Immigration [2018] FCA 414 and his application for special leave to appeal from that decision was refused by the High Court of Australia on 14 June, 2018: BPW16 v Minister for Immigration [2018] HCASL 170.
On 22 October, 2018 the applicant made application for a Medical Treatment (subclass 602) visa. Despite not having filed any written submissions for the purposes of the application before me, nor any affidavit material notwithstanding undertaking to do so in his grounds of review, very late in the hearing of this application before me the applicant sought to rely upon a letter received from the respondent’s department concerning this visa. He argued that a statement within that letter was relevant to these proceedings. The hearing before me was conducted by telephone and so I arranged for the applicant to send that document to my associate to be admitted as evidence in this application. I have received the letter and it is marked as exhibit 1.
The letter dated 26 October, 2018 notified the applicant that his application for a medical treatment visa was invalid because s.46A(1)(e)(v) of the Act was engaged. The reference n the letter to s.46A(1)(e)(v) appears to be an error and should be a reference to s.46(1)(e)(v) of the Act. Relevantly, that subsection provides:
46 Valid visa application
Validity—general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi) section 501E (earlier refusal or cancellation on character grounds); and
(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 46AA (visa applications, and the grant of visas, for some Act‑based visas);
(ii) section 46A (visa applications by unauthorised maritime arrivals);
(iii) section 46B (visa applications by transitory persons);
(iv) section 91E or 91G (CPA and safe third countries);
(v) section 91K (temporary safe haven visas);
(vi) section 91P (non‑citizens with access to protection from third countries).
The applicant does not suggest that the decision concerning the medical treatment visa is incorrect but he relies upon a sentence in that letter to argue that his present application is valid. It is necessary to set out the sentence in context. It appears after a less extensive extract from s.46 than that which I have set out above:
Section 91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary Safe Haven Enterprise (Class XE) (Subclass 790) visa), then that application is not a valid application.
As you are an unauthorised maritime arrival and have previously been the holder of a Temporary Safe Haven – Humanitarian Stay (Temporary) (subclass 449) visa, your application is invalid as the Medical Treatment (subclass 602) visa is not an application for a temporary Safe Haven Enterprise (Class XE) (Subclass 790) visa.
I will return to this argument later in these reasons.
Section 48A of the Migration provides, in effect for present purposes, that a non‑citizen who, while in Australia, has made an application for a protection visa that has been refused may not make a further application for a protection visa while that person remains in Australia. Section 48B provides some exceptions to that rule. The exceptions are dependent upon the respondent personally determining that it is in the public interest to permit a particular person to make an application for a protection visa notwithstanding that s.48A might otherwise preclude them from doing so. The applicant sought that the respondent exercise his power under s.48B to permit him to make another protection visa application but that seems to have been refused on 19 February, 2019.
On 15 October, 2019 the applicant made the application for a Safe Haven Enterprise visa which is the subject of this application. That was refused on 18 October, 2019 on the basis that the applicant was precluded from making that application by s.48A of the Act. A Safe Haven Enterprise visa is a type of protection visa: s.35A(1) and 35A(3A) of the Act. The letter records:
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.
The evidence before me demonstrates that the applicant has not left Australia and hence the migration zone since his arrival on 6 May, 2013.
On 5 November 2019, the applicant filed the present application for judicial review. The Court has jurisdiction to review the delegate’s decision. This Court has the same original jurisdiction in relation to migration decisions as the High Court of Australia under paragraph 75(v) of the Constitution: s.476(1) of the Act. The delegate’s decision was a migration decision for the purposes of s.476(1) of the Act and it did not constitute a primary decision as defined by s.476(4) of the Act. It was not reviewable under Part 5, Part 7, Part 7AA or s.500 of the Act, nor was it capable of review under those Parts: s.476(4) of the Act.
The respondent refers me to the comments of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [25]–[27]:
In our opinion, the first issue to be decided is whether or not the validity of an application for a visa is an objective question. The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.
The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister’s submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. …
Thus, it is for this Court to decide whether the applicant’s Safe Haven Enterprise visa application made on 15 October, 2019 was valid.
The grounds of review relied upon by the applicant are as follows: (faithfully reproduced):
Grounds of application:
My Safe Haven Enterprise visa application determined as an invalid application. My Humanitarian Stay Temporary Visa (Safe Haven Enterprise Visa) was approved dated February 14 2018. I will provide more details in my amended application.
As a truthful witness I will provide with the affidavit.
The Department of Home Affairs made a jurisdictional error when it discarded my application for further Safe Haven Enterprise Visa.
Particular:
In the decision the Department of Home Affair found that there was section 48A of the Migration Act 1958 a person who has not left Australia since their Protection Visa was refused. He cannot apply further application for visa. My application was not a valid application. My application was not refused in this situation my circumstance is different because the immigration was grant visa and there after my visa was ceased dated February 21 2018. I will provide more details in my submission.
In an effort to further clarify the applicant’s case, orders were made on 29 January, 2020 for the applicant to file and to serve any amended application upon which he intended to rely, giving complete particulars of each ground of review, by 4:00pm on 1 April, 2020. He was also directed to file and to serve any affidavit containing any additional evidence upon which he proposed to rely by 4:00pm on 1 April, 2020. Finally, he was directed to file and to serve written submissions in support of the application for review by 4:00pm, 28 days prior to the hearing (that is, by 1 May, 2020). As I have indicated above, he has done none of those things.
To be a valid application, his Safe Haven Enterprise visa application needed to comply with s.46(1) of the Act as I have set out above. The application was prevented by s.48A of the Act because his previous application for a protection visa had been refused and he had remained in Australia. He had applied for dispensation from the effect of s.48A pursuant to s.48B of the Act, but that dispensation had been refused.
The subparagraphs of s.46(1) are cumulative. That is to say a visa applicant must satisfy each of the subparagraphs (a) – (e). Failure to satisfy one of those subparagraphs will be fatal to the validity of the visa application. The applicant could not satisfy s.46(1)(b)(ii). That was fatal to his application.
In any event, the reference in the letter notifying him of the refusal of his medical treatment visa to s.91K does not assist his argument. Section 91K appears in Subdivision AJ, Division 3, Part 2 of the Act. It deals with temporary safe haven visas. The subdivision does not have universal application. It applies only to a non-citizen in Australia at a particular time if, at that time the non-citizen either holds a temporary Safe Haven Enterprise visa or has not left Australia since ceasing to hold temporary Safe Haven Enterprise visa. The subdivision does not apply to an unauthorised maritime arrival or a transitory person: s.91J(2). As I have noted above, the applicant is an unauthorised maritime arrival for the purposes of the Act. The subdivision has no application to him and so anything which appears in s.91K does not assist him. Its provisions only apply to a person to which the subdivision applies.
The delegate was correct to find that the applicant’s Safe Haven Enterprise visa application was invalid. The applicant’s ground of review and his argument do not disclose any error on the part of the respondent’s delegate.
The application must be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 June, 2020.
Associate:
Date: 3 June, 2020
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