BZB15 v Minister for Home Affairs
[2018] FCCA 2590
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZB15 v MINISTER FOR HOME AFFAIRS | [2018] FCCA 2590 |
| Catchwords: MIGRATION – Application for Protection (Class 866) visa where earlier protection visa application had been refused – second application found to be invalid by operation of s.48A of the Migration Act 1958 (Cth) – whether approved Form 866 was incorporated by reference into the Act – no appearance by or on behalf of the Applicant – application dismissed. |
| Legislation: Acts Interpretation Acts 1901 (Cth), ss.49A, 25C Legislation Act 2003 (Cth), ss.13, 14 Migration Act 1958 (Cth), ss.36, 46, 48A, 48B, 476, 504 Migration Regulations 1994 (Cth), regs.1.18, 2.07, Schedule 1 cl.1401 |
| Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 |
| Applicant: | BZB15 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 579 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondent: | Mr A Marcus, Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $3,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
No. SYG 579 of 2018
| BZB15 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
This is an application made under s.476 of the Migration Act 1958 (Cth) for judicial review of a decision made on 20 February 2018 by an officer of the Department of Home Affairs, the Department of the Minister for Home Affairs, who is the Respondent. That decision found that the Protection (Subclass 866) Visa application lodged by the Applicant on 16 February 2018 (according to the decision record) was not a valid application by virtue of s.48A of the Act.
In this proceeding, the Applicant seeks writs of certiorari and mandamus that the Department’s decision, made on 20 February 2018, be quashed and re-determined according to law. For the reasons that follow, I propose to order that the application be dismissed with costs.
I note that before me today, the Applicant did not appear and that the matter was called 3 times outside the Court at approximately 10.30am on the matter being listed at 10.15am.
Background
By way of background, the Applicant is a citizen of China from Lishui County in Hebei province. He first arrived in Australia on 1 August 2013 on a visitor subclass 600 visa for a short stay of 7 days. He was granted a further visitor visa and returned to Australia on 21 February 2014. On 24 February 2014, he lodged an application for a protection (subclass XA) visa. On 22 August 2014, a Delegate of the then Minister for Immigration and Border Protection refused to grant the Applicant the protection visa. On 24 September 2014, the Applicant applied for review of the Delegate’s decision. On 23 July 2015, the Applicant appeared before the Administrative Appeals Tribunal to give evidence and present arguments. On 31 August 2015, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa.
On 16 February 2018, the Applicant lodged a second protection Visa application with the Department, the subject of the present application. By letter dated 20 February 2018, an officer of the Department notified the Applicant that his Visa application was not valid by virtue of s.48A of the Act. The Department noted in the letter that:
A decision had previously been made to refuse to grant [the Applicant] a protection visa.
Legislative framework
Section 48A(1) of the Act, provides:
(1)Subject to section 48B, a non citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non citizen is in the migration zone.
Section 48A(1) of the Act prevents any person who has not left Australia since their first protection visa application was refused from making a subsequent protection visa application while they remain in the migration zone, that is, Australia, unless the Minister personally exercises his discretion under s.48B to dispense with the requirements of s.48A. There is no evidence that the Applicant has sought, or that the Minister has ever considered his case for, s.48B Ministerial intervention.
Grounds of review
The Applicant’s grounds of review as articulated in his application are as follows (without alteration):
1. The decision dated 20th February 2018 of the Respondent, asserting the invalidity of the protection visa application 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(l)(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 extent 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 ref2.07 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.
They are in a familiar form, and the substantive arguments apparently sought to be relied upon by the Applicant are relevantly identical to those raised in a number of proceedings in this Court, all of which have been determined adversely to the relevant applicants. I note that on 7 August 2018 I heard and determined the matter of CCH18 v Minister for Home Affairs (2018) FCCA 2283, a matter with the same grounds.
The Applicant’s argument, in summary, appears to be that the Form 866 as approved by the Minister under reg.1.18 of the Migration Regulations1994 (Cth) was incorporated by reference into the Act such that an application is only valid under s.46 of the Act if the correct approved form was used. The grounds of review argue that the version of Form 866 he lodged on 24 February 2014 was not the correct form as approved by the Minister so that his previous visa application was not validly made, with the result that he is not barred by s.48A of the Act from lodging a second protection visa application in 2018, namely, the Visa application presently the subject of these proceedings.
Proceedings before the Court
The Applicant appeared at the first return date of this proceeding before the Registrar on 29 March 2018. Orders and directions were then made for the preparation of the matter to hearing, and for the Applicant to file further material, including any amended application, affidavit and submissions if he so chose. He has failed to avail himself of that opportunity. I am instructed by Mr Marcus for the Minster that the Applicant was aided by an interpreter on that day. And I note that an interpreter has been present in Court today to provide assistance to the Applicant, should he have turned up.
I have received in evidence a copy of a letter dated 23 August 2018 from the solicitors for the Minister to the Applicant, which, by express post, enclosed by way of service sealed copies of the Respondent’s submissions and the list of authorities, reminded the Applicant that his application was listed for hearing, and provided details of the present time, date, Court building and Court where I am conducting this hearing. That letter also informed the Applicant that, “should [he], or a lawyer acting on [his] behalf, fail to appear on the above date, orders may be sought that your application [that is, his] application be dismissed with costs, without further notice”. The letter concluded by inviting the Applicant to contact the writer should he wish to discuss the matter.
I am satisfied that the address to which that letter was sent is the last notified address of the Applicant that is recorded on the Court file, and it is also the address for service in Australia that he gave in writing on his application at the time of filing.
I have considered the movement record that the Applicant has attested to as part of his application for the Visa, which forms part of the Court book tendered in evidence which application, at items [67] and [68] respectively, set out any travel that the Applicant has undertaken since his first arrival in Australia, and overseas travel undertaken before arriving to Australia, and his previous addresses. It is apparent from the Applicant’s answers that he last left Australia on the one week holiday in the first week of August 2013, as I have already stated. It is also apparent that from 2016, his address has been the address that he has notified this Court on his application. I am not aware of any other record of any movement outside Australia or other re-entry. In the circumstances, I find that the Applicant has remained in Australia during the whole time from 8 August 2013 until the present, and thus one of the conditions of s.48A(1), that the Applicant remains in the migration zone since his first protection visa application was refused, is met.
Consideration
I turn now to the grounds. I note that ground 1 is not a proper ground but merely a background statement of challenge. Ground 2, in particular paragraphs (a) through to (c), are the same grounds, as I have said, relied upon by applicants in a number of cases in this Court and also in the Federal Court. Burley J in the Federal Court of Australia in BVJ16 v The Minister for Immigration and Border Protection [2017] FCA 1205, on appeal from a decision of this Court, has dismissed an appeal based on the same grounds.
In BVJ16, Burley J found at [21] that the reference to Schedule 1 item 14.0.1 to Form 866 simply identifies a type of form that must be completed by an applicant for a protection (class XA) visa and that the particular form is not incorporated into the regulations. As the Minister’s solicitor, Mr Marcus, has submitted, the judgment of Burley J has been followed by his Honour in other proceedings in the Federal Court as well as by Judges in this Court. It was referred to by Bromwich J in CHY16 v The Minister for Immigration and Border Protection [2017] FCA 1390 as, “a decision that seems unassailably correct”. In any event, it is binding on this Court.
The Full Bench of the Federal Court has also considered this issue in the context of two related appeals from this Court, and has dismissed those appeals, essentially for the same reasons given by Burley J in BVJ16, in the matter of SZMOX v The Minister for Immigration and Border Protection [2018] FCAFC 121, noting that “there is little we can usefully add to the analysis of Burley J in BVJ16”: SZMOX at [27].
Indeed, the Applicant has referred to Burley J’s decision in ground 3 of his application and acknowledges that “the Federal Court of Australia dismissed a decision of this Court, raising, relevantly, identical [grounds]”. In ground 4, he asserts correctly that Burley J’s judgment is binding on this Court, but indicates an intention to apply “to the Full Bench of the Federal Court”. I trust that my reference to the Full Court’s decision in SZMOX, should he read this decision, will dissuade him from that course. It is bound to fail, in my opinion.
The Applicant’s concession that his present application is bound to fail in this Court is correctly made. As I have said, the Full Bench of the Federal Court in SZMOX has considered the same issues raised by the Applicant and dismissed the appeal for the same reasons given by Burley J in BVJ16.
In the present case, the Applicant made a first protection visa application on 24 February 2014. That application was refused by the Delegate, and affirmed on review by the Tribunal. The application for Visa to which this proceeding relates is a second application for a protection visa. As I have found, the Applicant has remained in Australia during the whole time from his first application until June 2018. It follows that the criteria of s.48A apply. I am bound by Burley J’s decision in BVJ16, and by the plain words of s.48A of the Act, to dismiss this application.
For the reasons I have set out, the application is dismissed, and it follows that the Minister, the Respondent, is entitled to his costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 12 September 2018
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