CCH18 v Minister for Home Affairs

[2018] FCCA 2283

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCH18 v MINISTER FOR HOME AFFAIRS [2018] FCCA 2283

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 – 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

Applicant: CCH18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1169 of 2018

Judgment of: Judge Baird

Hearing date: 7 August 2018

Date of Last Submission: 7 August 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitors

ORDERS

1. The application be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1169 of 2018

CCH18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application made under s.476 of the Migration Act 1958 (Cth) for judicial review of a decision by an officer of the Respondent, the Minister for Home Affairs, made on 17 April 2018.  That decision found that the Protection (subclass 866) Visa application lodged by the Applicant on 16 April 2018 was invalid by operation of s.48A of the Act.

2. In this proceeding, the Applicant seeks writs of certiorari and mandamus that the Minister’s decision made on 17 April 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.

3. I should note that, before me today, Ms Watson appeared for the Minister, and I accepted her evidence by affidavit that the Applicant had left Australia.  He departed the migration zone on about 14 June 2018.

Background

1. The Applicant is a citizen of China from Fuqing City, Fujian province, born in 1991.  He arrived in Australia on 7 March 2008 on a Student (Subclass 571) visa which was valid until 29 March 2011.

2. On 19 December 2011, police caught him driving with an expired driver’s licence and incidentally discovered that his student visa had ceased.  As a result, he was detained in Villawood Immigration Detention Centre.

3. By way of history, on 5 January 2012, the Applicant lodged an application for a protection (Class XA) visa. As part of his application, he lodged completed forms 866C and 866B.  On 11 July 2012, a Delegate of the Minister refused to grant the Applicant the visa on the ground that he did not satisfy the refugee criterion in s.36(2) of the Act.

4. The Applicant applied for review of the Delegate’s decision in the Refugee Review Tribunal.  On 11 December 2012, the Tribunal affirmed the Delegate’s decision.  

5. The Applicant subsequently sought judicial review of the Tribunal’s decision in the Federal Magistrate Court. On 13 May 2013, the Applicant failed to appear at the final hearing and a Judge of this Court dismissed the application pursuant to r.13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

6. As I have noted, on 16 April 2018 the Applicant lodged the present application for a Protection (Subclass 866) Visa. This was his second such application. On 17 April 2018, the Department, by letter, notified the Applicant that his Visa application was not valid by virtue of s.48A of the Act. The letter noted that “a decision had previously been made to refuse to grant [the Applicant] a protection visa.” Section 48A of the Act prevents any person who has not left Australia since their first protection visa application was refused or cancelled 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.

7. I note that the Department inferred, by the making of the second application for Visa, that the Applicant was also seeking ministerial intervention under s.48B of the Act. In any event, the Applicant’s documentation was not referred to the Minister for consideration, since an officer of the Department determined that it did not meet the Minister’s guidelines for s.48B ministerial intervention. By letter dated 19 April 2018, the Department informed him that the ministerial intervention was unsuccessful.

Grounds of review

1. The Applicant’s grounds of review as articulated in his application are as follows (without alterations):

   1. The decision dated 17^th April 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.

2. The Applicant’s argument, in summary, appears to be that the Form 866 as approved by the Minister under reg.1.18(1) of the MigrationRegulations 1994 (Cth) was incorporated by reference into the Act such that an application is only valid under s.46 of the Act if the approved form was used. The Form 866 he lodged on 5 January 2012 was not the correct form as approved by the Minister. As a result, the grounds of review argue that his 2012 visa application was not valid, and therefore, he is not barred by s.48A from lodging a second protection visa application in 2018.

Consideration

1. 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 relied upon by the applicants in a number of cases in this Court and in the Federal Court.  I refer in particular to the decision of Burley J in the Federal Court in BVJ16 v Minister for Immigration and Border Protection[2017] FCA 1205, on appeal from a decision of this Court.

2. 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.

3. In BVJ16, Burley J found, at [21], that the reference in Schedule 1 Item 1401 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. Burley J also held, at [30], that a relevant contrary intention, in accordance with s.14(3) of the Legislation Act 2003, would be apparent in any event.

4. As I have noted in discussion with the Minister’s solicitor today, Burley J’s decision has been followed by other Judges of this Court as well as by Judges of the Federal Court.  Bromwich J in CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 has referred to Burley J’s decision as “a decision that seems unassailably correct”.  In any event, it is binding on this Court.

5. In the present case, the Applicant made a first protection visa application on 5 January 2012.  That application was refused by the Delegate and on review by the Tribunal, and an application for judicial review was dismissed by the then Federal Magistrates Court in 2013.  The application for Visa to which this proceeding relates is the second application for a protection visa. 

6. I note that the evidence of the movement record maintained by the Department of Home Affairs concerning the Applicant records that he arrived in Australia on 7 March 2008 and left Australia on 14 June 2018 and that there is no other record of any movement outside Australia or other re-entry.  In these circumstances, I find that the Applicant remained in Australia during the whole time, from March 2008 until June 2018. 

7. I am bound by Burley J’s decision and by the plain words of s.48A to dismiss that application.

8. Further, as the Applicant has now left the migration zone, the application for review is futile. The Applicant cannot be granted a protection Visa pursuant to this application whilst he is outside the migration zone. Lastly, if the Applicant did re-enter Australia, he would not then be prevented by s.48A from making a separate application for a visa, at least on protection visa grounds. That, however, is not a matter that is before the court today.

Conclusion

1. For the reasons set out above, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 16 August 2018