BVJ16 v Minister for Immigration and Border Protection
[2017] FCCA 178
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 178 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the application was a valid application for protection – whether the Tribunal had jurisdiction in respect of the application – whether there was compliance with s.46 and s.47 – Form 866 – an approved form – no jurisdictional error identified – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.49A. Legislation Act 2003 (Cth), s.14. Migration Act 1958 (Cth), ss.36, 46, 47, 476, 495, 504, 505, Migration Regulations 1994, reg.1.18, 2.07, Item 1401 of Schedule 1. |
| Applicant: | BVJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1864 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 2 February 2017 |
| Date of Last Submission: | 2 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Adrian Joel & Co Solicitors |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1864 of 2016
| BVJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 June 2016 affirming a decision of the delegate not to grant the applicant a Protection visa. The applicant is a citizen of Bangladesh and arrived in Australia by boat on 28 March 2013. The applicant applied for a protection visa on 6 June 2013. That application was made on a particular form. The form used by the applicant, being a Form 866, was approved under s.495 of the Act on 27 January 2012. The delegate refused the grant of a protection visa on 22 August 2014.
The Tribunal
The delegate treated the application for the protection visa as valid and the Tribunal treated the application for review as arising from a valid application for protection. The applicant in summary claimed to fear harm because of his imputed political opinion as a person who feared persecution by the Bangladesh Awami League Party, and alleged that he had been harassed by people who had links to the Awami League Party. The applicant alleged that people went to his shop and demanded payment, being people from the Awami League Party, and that he refused to do so and was threatened.
The Tribunal identified the relevant law. The Tribunal identified concerns in relation to the applicant’s credibility and inconsistencies in relation to those credibility concerns. The Tribunal, having considered the applicant’s claims, evidence and the submissions, found that the applicant was not a witness of truth. The Tribunal found the applicant had fabricated his material claims for the purposes of a Protection visa.
The Tribunal did not accept that the applicant was a member or a supporter or associated with the Bangladesh National Party (“BNP”) or any other political group or organisation in Bangladesh. The Tribunal did not accept that the applicant was the target of extortionists who were associated with the Awami League Party or the BNP or any criminal gang. The Tribunal did not accept that the applicant’s younger brother had been targeted. The Tribunal did not accept that the applicant left Bangladesh for the reasons he claimed. The Tribunal found the applicant was not of adverse interest to the Awami League Party, BNP or any other criminal gang and found that the applicant was not of adverse interest to the Bangladesh authorities.
The Tribunal did not accept that there was a real chance the applicant would suffer serious harm if he returns to Bangladesh and seeks to re-establish himself. The Tribunal found there was no real chance that the applicant would suffer persecution on the grounds of his actual or implied political opinion or any other Refugee Convention Reason if the applicant returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution for a Refugee Convention reason. The Tribunal was not satisfied that the criterion under s.36(2)(a) of the Act was met by the applicant.
The Tribunal turned to the issue of complementary protection. The Tribunal found that it was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act. The Tribunal found that the applicant did not satisfy the criterion under s.36(2) of the Act. It is in those circumstances that the Tribunal affirmed the decision of the delegate.
Before this Court
The application before this Court raises the following grounds:-
1. The decision of the Tribunal is challenged by virtue of the invalidity of the Protection Visa Decision made 22nd August 2014 that was considered by the Tribunal.
2. A Tribunal has the power to rectify administrative error that may contaminate a primary decision. However, such power does not encompass the capacity to usurp the necessary procedures to be implemented so as to effect lawful decision making.
3. Thus, the judicial review of the decision of the Second Respondent encompasses the review as to the validity of the decision made by the First Respondent.
4. The Delegate of the First Respondent made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier 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 Sch 1 to the Regulations took effect on 20 October 1999;
b. Item 1401 of Sch 1 to the Regulations, by virtue of s 49A(l)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s 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.
Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999;
c. As a result, by virtue of s 46 of the Act when read with reg 2.07 of the Regulations and notwithstanding s 25C of the Interpretation Act when read with s 13(1) of the Legislation Act, the earlier application was not invalid and the later application was not barred by s 48A of the Act.
There was a fifth ground that was abandoned by counsel for the applicant. The substance of grounds 1 to 4 as advanced by counsel for the applicant, is that Form 866 had been fixed and frozen by the Regulations passed as at 20 October 1999 and that there had been no further regulation amending the frozen Form 866. Counsel submitted that Item 1401 of Schedule 1 when read with s.49A of the Acts Interpretation Act 1901, applicable as at 1999, meant Item 1401 could not perform an ambulatory incorporation by reference of Form 866 so as to include the version of Form 866 used by the applicant. Accordingly, it is submitted that there has been no compliance with the requirements of s.46 and s.47 of the Act and that there had been no valid application for protection. Counsel for the applicant advanced the argument that therefore the delegate’s decision was a nullity and therefore the Tribunal’s decision was equally made without jurisdiction as there was no valid decision of the delegate.
The kernel of the argument developed skilfully by Mr Jones of counsel for the applicant, was that there had been an incorporation by reference into the Regulations which took effect on 20 October 1999 of the approved form at that time, and taking into account s.49A of the Act, it was only that approved form as at 20 October 1991 that could thereafter be used unless and until a further regulation was passed amending the relevant form.
Counsel for the applicant accepted that the form that was completed by the applicant, was an approved form under s.495 of the Act. Counsel for the applicant submitted however, that the approved form used was not the form that met the requirements of Schedule 1 of the Regulations. It was submitted that this fixed and entrenched Form 866 as at 20 October 1999.
Consideration
There are construction difficulties with the argument advanced by the applicant in support of the proposition that there was a fixed and frozen Form 866 entrenched by Schedule 1 to the Regulations as at 20 October 1999. It is necessary to understand the statutory scheme under the Act for the making of a valid visa application. That scheme is identified in s.46 of the Act that relevantly provides as follows:-
S. 46(1)
(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).
…
s. 46(2)
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
…
S. 46(3)
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
…
Consideration of whether the application was a valid visa application - s.46
It was common ground that for the purpose of the applicant’s argument, there has been no relevant material amendment to s.46 of the Act since the time of passing Schedule 1 with the reference to Form 866. Section 46 of the Act does identify an intention that an application is only valid if certain specified matters are met. The first specified matter under s.46(1)(a) of the Act is the requirement to be a valid application, that it is for a visa of a class specified in the application. Section 46(2) of the Act, subject to s.46(2A) of the Act provides that the application for a visa is valid if relevantly, it is an application for a visa of a class prescribed for the purposes of that subsection and under the Regulations the application is taken to have been validly made. Section 46(3) of the Act is important in providing a power under which the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
Consideration of the further regulation making power – s.504 and S.49A
There is also a further regulation making power found in s.504 of the Act which relevantly includes under s.504(1)(e) of the Act provision for and in relation to (i) the giving of documents to; (ii) the lodging of documents with or; (iii) the service of documents on the Minister. Section 504(2) of the Act has been amended and now provides that s.14 of the Legislation Act2003 does not prevent and has not prevented regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing taking effect under the Regulations. Section 502 of the Act was inserted by s.9 of the Migration Amendment Act (No.2) 1991 (Cth) (“the 1991 Act”) which commenced on 15 January 1991 and was to the same effect but referred to s.49A of the Acts Interpretation Act 1901 (Cth). The explanatory memorandum to the 1991 Act stated:-
This clause amends [s 504 of the Act] to ensure that section 49A of the Acts Interpretation Act 1901 does not apply. In short, the Regulations may prescribe matters to be specified by the Minister in a notice published in the Gazette.
Section 49A of the Acts Interpretation Act 1901 (Cth) relevantly provided as follows:-
(1) Where an Act authorizes or requires provision to be made for or in relation to any matter by regulations, the regulations may, unless the contrary intention appears, make provision for or in relation to that matter by applying, adopting or incorporating, with or without modification:
(a) the provisions of any Act, or of any regulations, as in force at a particular time or as in force from time to time; or
(b) any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned regulations take effect;
but, unless the contrary intention appears, regulations shall not, except as provided by this subsection, make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
At the time the applicant lodged his application on 6 June 2013, s.14 of the Legislation Act 2003 (Cth) which commenced on 1 January 2005 was substantially in the same form as s.49A of the Acts Interpretation Act 1901 (Cth).
Section 505 of the Act expands on the regulation making power for the purpose of prescribing a criterion for visas of a class. The other relevant provision is s.47 of the Act that confines the Minister to considering a valid application for a visa.
The Minister’s ability to “approve a form” – s.495
Of material significance in relation to the construction of Schedule 1, is s.495 of the Act. This provision in the scheme of the Act relevantly provides as follows:-
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
That provision provides the important power whereby the Minister may from time to time approve a form for the purposes of a provision in the Act which is to be used. That is an important provision to facilitate the processing of visa applications and amendments that may be required from time to time, whether as a result of changes in technology or for other reasons. Subject to the applicant’s argument about the work done by Schedule 1 to the Regulations, it is clear that the applicant completed an approved form under s.495 of the Act, which was the latest s.495 approved form of the Act at the time of the application. It is only if the Regulations properly construed, specify that the Form 866 as at 20 October 1999 is a criterion for a valid application, that it could be found that there was not a valid application under s.46 of the Act.
There are two other relevant provisions in the Regulations in understanding the proper construction of Schedule 1 to the Regulations. The first relevant provision is reg.1.18 of the Regulations which provides as follows:-
(1) The Minister may, in writing, approve forms for:
(a) use in making an application for a visa; or
(b) any other purpose authorised or required by these Regulations.
(2) Each of the following is an approved form for use in making an application for a visa:
(a) a paper form;
(b) a set of questions in an interactive computer program that is:
(i) approved by the Minister for use in making an application for the visa; and
(ii) made available at an Internet site operated under the authority of the Minister;
(c) a set of questions in a form that:
(i) is stored in an electronic format; and
(ii) is approved by the Minister for use in making an application for the visa.
Regulation 1.18 of the Regulations facilitates the approval of forms consistent with s.495 of the Act for the efficient and expeditious implementation of the legislative scheme behind the visas that may be granted under the Act. Materially, the power to approve forms for use in making an application facilitates the Minister or the Minister’s delegate being able to approve forms that from time to time need change because of changes in technology or other reasons. That process for approval of forms under reg.1.18 of the Regulations does not require the same steps as would be required for delegated legislation. The forms approved under s.495 of the Act and reg.1.18 of the Regulations are not delegated legislation or more accurately, not a disallowable instrument.
The other relevant provision in the Regulations is reg.2.07 of the Regulations that relevantly provides as follows:-
(1) For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out other matters relating to the application.
Note: An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).
(3) An applicant must complete an approved form in accordance with any directions on it.
(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
(5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
(b) the way in which an application for a visa of a specified class must be made;
(c) the place at which an application for a visa of a specified class must be made;
(d) any other matter.
Note 1: For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2: Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.
(6) The legislative instrument may specify different matters for:
(a) different kinds of visa (however described); and
(b) different classes of applicant.
Schedule 1 as at 20 October 1999, relevantly provided as follows:-
Part 4 Protection visas
1401 Protection (Class XA)
(1)Form: 866
Schedule 1 item 1401 to the Regulations relevantly amended on 18 April 2015 by the Migration Amendment (2015) Measures (No.1) Regulation 2015 (SLI – No – 34 of 2015) in Schedule 6 provided as follows:-
(1) Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
Mr Jones of counsel, contends that the work done by reg.2.07(1)(a) of the Regulations, when read with Schedule 1 to the Regulations incorporates by reference a form that was then in existence as an essential criterion for validity under s.46 of the Act. The Regulation is to be read with the Act and in context for the purpose of understanding the work done by the text of the Regulation. It is of material significance that reg.2.07(1) of the Regulations refers to “the approved form (if any)” and that reg.2.07(3) of the Regulations refers to “an approved form” and that reg.2.07(4) of the Regulations refers to “an approved form”. There can be little doubt that the approved form referred to is a form approved under s.495 of the Act.
Mr Jones of counsel sought to argue that the language used in reg.2.07(1)(a) of the Regulations meant the approved form in its terms was incorporated into Schedule 1 to the Regulations and that this meant that the only form that could validly be completed, unless the relevant item of Schedule 1 was amended, was the alleged approved form as at 1999. In my opinion, reg.2.07(1)(a) of the Regulations should not be read as itself specifying criteria that must be satisfied for an application for a visa of the specified class to be a valid application.
Rather, reg.2.07(1)(a) of the Regulations is to be read with reg.2.07(3) and reg.2.07(4) of the Regulations and the requirement to be a valid application is found in reg.2.07(3) and reg.2.07(4) of the Regulations. It is not in dispute that the applicant completed an approved form and to the extent that there was criteria specified for validity under s.46 of the Act, that criteria was satisfied. For this reason alone, grounds 1 to 4 make out no jurisdictional error.
Further, when item 1401 of Schedule 1 to the Regulations is read in context with the Regulations and in the context with the statutory scheme, it is apparent that the reference to Form 866 did not incorporate by reference a fixed form as in existence in 1999. To so construe item 1401 of Schedule 1 to the Regulations would in my opinion, be contrary to the statutory scheme and contrary to the intention manifested under s.495 of the Act including the power in relation to the making of approved forms by the Minister in reg.1.18 of the Regulations, as well as reg.2.07 of the Regulations. The regulation making power in s.46 of the Act does not exclude s.49A of the Acts Interpretation Act 1901 (Cth). Item 1401 of Schedule 1 is a regulation made within the scope of the power conferred by s.46 of the Act. In my opinion, these provisions manifest a contrary intention under s.49A of the Acts Interpretation Act 1901 (Cth) if Item 1401 of Schedule 1 was construed as incorporating any matter by reference to Form 866.
It is of considerable importance in reg.2.07(3) of the Regulations that the reference there, is to “an approved form”. There is no intention manifest from the statutory scheme, context, or language that supports a construction that there must be a singular form or a fixed and frozen form. Moreover, the reference in reg.2.07(1) to “the approved form”, expressly incorporates and assumes the capacity to exercise the powers under s.495 of the Act and reg.1.18 of the Regulations.
In those circumstances, it is contrary to the statutory intention to construe reg.2.07 of the Regulations, in its reference to the relevant item of Schedule 1 as specifying or prescribing criteria that must be satisfied for an application for a visa of a specified class to be a valid application, by reference to the form in existence in 1999.
Nor does the work done by reg.2.07(1)(a) of the Regulations, identify a matter in relation to a criteria by reason of which the visa is taken to be valid. On its proper construction, reg.2.07(1)(a) of the Regulations when read together with item 1401 of Schedule 1, should be construed as referring to the approved Form 866 from time to time.
In addition to the argument under s.49A of the Acts Interpretation Act 1901 (Cth), Mr Jones of Counsel sought to place weight upon the amendments to s.14 of the Legislation Act2003 (Cth). Section 14(4) of the Act now relevantly provides as follows:-
If a legislative instrument or notifiable instrument provides for a form to be used, this section does not apply in relation to the form.
Mr Jones of Counsel submitted that there was no contrary intention manifested and that the reference to the Form 866 should be construed as Form 866 from time to time. The problem with Mr Jones’ construction is that the relevant language used in reg.2.07 of the Regulations is a reference to the “approved form (if any)”. The relevant criteria for compliance, even if Mr Jones was right in relation to reg.2.07(1)(a) of the Regulations specifying criteria, is criteria in respect of the approved form.
The approved form is clearly a reference to the approved form from time to time, consistent with s.495 of the Act and reg.1.18 of the Regulations. Further, the construction advanced by Mr Jones gives rise to a potential inconsistency, given the reference in reg.2.07(3) of the Regulations to the requirement to complete an approved form in accordance with any directions on it. The reference to the Form 866 in item 1401 of schedule 1 to the Regulations was not a reference to the approved form, but rather a bare reference to Form 866. That Form 866 was not capable of becoming a mandatory fixed criteria unless and until the subject of the exercise of the power under s.495 of the Act, so as to be an approved form. The regulations and Item 1401 of Schedule 1 should be read in harmony and should not be construed as specifying the Form 866 as at 20 October 1999 as a criterion for validity.
Mr Jones relied upon the work done by s.49A of the Acts Interpretation Act 1901 (Cth) that was in a similar form and the predecessor to that of s.14 of the Legislation Act 2003 (Cth). For the reasons given, a contrary intention appears so far as there is a matter within s.49A of the Acts Interpretation Act 1901 (Cth).
I reject the applicant’s submissions that the legislation should be read as entrenching and incorporating by reference of the Form 899 as at 20 October 1999. I reject the submission that the legislation should be read as freezing the Form 866 to the approved form in 1999. Item 1401 does not refer to the approved form and the legislative scheme manifests an intention not to limit Item 1401 of Schedule 1 to a single form as approved in 1999.
Mr Jones did not submit that the regulation making power in s.504(2) of the Act should not be construed as supporting reg.1.18 of the Regulations. I do not regard s.504(2) of the Act as the source of the regulation making power to specify forms or approved forms when read with s. 46 and s.195 of the Act. Item 1401 of Schedule 1 was within the regulation making powers conferred by the Act as was reg.1.18(1) of the Regulations. I reject the submission that Item 1401 of Schedule 1 should be read as a reference to the form as existed when Item 1401 took effect. Even if the regulation making power is to be construed by reference to s.504 of the Act, I do not regard s.504(2) of the Act as overcoming the intention manifested by the legislative scheme.
In my opinion, the applicant by using the approved form authorised by the Minister on 27 January 2012 completed a valid application for a Protection visa.
The Tribunal accordingly had jurisdiction, as did the delegate, in respect of a valid application that had been made to the delegate for a Protection visa. It is not necessary in the present case to deal with the issue of substantial compliance. It is however, the case that the substance of the form completed by the applicant was in a practical sense, identical to the form said by the applicant to be the mandatory required form as frozen in 1999.
Whilst it is the case that s.46 and s.47 of the Act do identify criteria for a valid application as there was used in the present case, consistent with the requirements of reg.2.07 of the Regulations, “an approved form”, there is a real issue as to whether or not the reference to “the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant” under reg.207(1)(a) of the Regulations should be read as a provision requiring strict compliance as to exclude a form that is an approved form. Because of the reference to “approved form”, in reg.2.07 of the Regulations and the particular mandatory criteria identified by s.46, strict compliance with Item 1401 of Schedule 1 to the Regulations is not necessary even if Item 1401 incorporated Form 866 by reference.
Conclusion
No jurisdictional error is established by the application and the application is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 6 February 2017
CORRECTIONS:
Reasons for Judgment: Page 12, Paragraph 32 second line delete “should” and insert “should not”.
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