BRJ18 v Minister for Home Affairs
[2018] FCCA 2858
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRJ18 v MINISTER FOR HOME AFFAIRS | [2018] FCCA 2858 |
| Catchwords: MIGRATION – 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: BNE18 & Anor v The Minister for Immigration and Border Protection [2018] FCCA 2857 |
| Applicant: | BRJ18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 915 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 Rules2001 (Cth) the application filed on 4 April 2018 is dismissed.
The applicant pay the respondent’s costs set in the amount of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 915 of 2018
| BRJ18 |
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 applicant has no reasonable prospect of successfully prosecuting the proceeding 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 of the lodgement on behalf of the applicant on 23 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 in a case together with an application in a case filed in the matter of BNE18 & Anor v Minister for Home Affairs[1]because both applications raised the same issues.
[1] [2018] FCCA 2858
Returning to the departmental officer’s letter of 6 March 2018, the officer stated that the application was not a valid application for a protection visa because a decision had previously been made to refuse the applicant a protection visa, and in those circumstances s.48A of the Migration Act 1958 (Cth) (Act) prevents the applicant 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 applicant did make an application for a protection visa on a previous occasion, and that was on 20 August 2003. That application was refused by a delegate of the relevant minister on 28 August 2003; and on 1 March 2004 the Refugee Review Tribunal affirmed the delegate’s decision.
The application for judicial review contains the following grounds:
1. The decision dated 06th March 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 applicant on 23 February 2018 because the form the applicant used for his previous protection visa application was not able to be the basis for a valid protection visa application.
It will be apparent that the application states that it raises “relevantly identical issues” to those considered by Burley J in BVJ16 v The Minister for Immigration and Border Protection[2], and it in effect acknowledges that that issue was decided by his Honour in a way which necessarily means that the application for judicial review is bound to fail.
[2] [2017] FCA 1205
Mr Markus who appears on behalf of the respondent, the Minister, submitted that on the face of the application it is bound to fail because it in effect acknowledges that the judgment of his Honour, Burley J, in BVJ16 requires that result. Mr Markus referred me to other authorities including the judgment of the Full Federal Court in SZMOX v The Minister for Immigration and Border Protection[3] and also to the judgment of Reeves J in SZLZS v The Minister for Immigration and Border Protection[4]. Mr Markus took me particularly to paragraphs 5 and 8 of his Honour’s reasons for judgment but it is not necessary for me to repeat in these reasons for judgment what his Honour said in those paragraphs.
[3] [2018] FCAFC 121
[4] [2018] FCA 748
Mr Markus also directed my attention to the fact that the applicant in SZLZS applied to the High Court for special leave. That application was disposed of by the High Court pursuant to r.41.08.1 of the High Court Rules 2004 (Cth). A record of the reasons for the dismissal records a number of reasons why the application was dismissed, one of which is that an “appeal to this court would enjoy no prospect of success”[5].
[5] [2018] HCASL 270
The applicant who was not legally represented perhaps understandably made no submissions to me.
In my opinion, given the decision of Burley J in BVJ16 and other cases and in particular the judgment of the Full Federal Court in SZMOX the applicant has no reasonable prospect of successfully prosecuting the proceeding, and it should be dismissed. I propose to make an order accordingly in the matter.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 4 October 2018
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