Cfa16 v Minister for Immigration

[2017] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 278

Catchwords:

MIGRATION – Protection (Class XA) visa – whether an adjournment application is warranted in the interests of the administration of justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994, Item 1401 of Sch.1.

Cases cited:

BVJ16v Minister for Immigration & Anor [2017] FCCA 178.

Applicant: CFA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2145 of 2016

Judgment of: Judge Street

Hearing date: 20 February 2017

Date of Last Submission: 20 February 2017

Delivered at: Sydney

Delivered on: 20 February 2017

REPRESENTATION

Counsel for the Applicant: Mr D Robertson of Counsel

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2145 of 2016

CFA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 July 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant is a national of Lebanon who entered Australia last on 2 March 2012 on a student visa. That student visa expired on 23 June 2013. On 20 June 2014 the applicant lodged an application for protection. That application was refused by the delegate on 21 March 2014. The applicant applied for review on 28 November 2014.

Before this Court

1. A single ground of review is as follows:-

   1. The Second Respondent made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no such jurisdiction.

   Particulars

   a. At the time of the application for the protection visa dated 23 June 2014, the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October I 999;

   b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(J )(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) ors 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, item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; and

   c. As a result, by vi11ue of s 46 of the Migration Act when read with reg 2.07 of the Migration Regulations and notwithstanding s 25C of the Interpretation Act when read with s 13(1) of the Legislation Act, the application for the protection visa dated 13 January 2014 was invalid.

   d. Given there was no valid application for the protection visa, there was no statutory foundation for the Tribunal to make a decision on the review application.

2. This matter was the subject of orders on 26 October 2016 fixing the matter for hearing on 20 February 2016. An application in a case was filed on 14 February 2017 seeking an adjournment of today’s hearing. That application is pursued.

Consideration of adjournment application

1. Mr Robertson, the solicitor on behalf of the applicant submitted that this was an appropriate matter to adjourn because of other proceedings in which the identical issue was potentially going to be the subject of an application for leave to appeal or an appeal. Mr Robertson submitted that as the issue in the present case overlapped entirely with the issue in that case it would be more efficient for the Court to stand the matter over pending determination of whether or not an appeal was pursued, and then to have it stood over if an appeal was pursued, pending the outcome of that appeal. The application for an adjournment was opposed. 

2. The pursuit of appellate process is not ordinarily a reason why the Court would not hear a matter that had been fixed for hearing. The overlap in other issues on appeal is also not ordinarily a reason why the Court would not hear a matter that is listed in front of it for determination. The Court has a significant case load and when matters are fixed for hearing, the Court is allocating time which it is difficult to reallocate in relation to Court resources when an adjournment is granted.

3. Mr Robertson, the solicitor on behalf of the applicant in support of the adjournment, properly conceded that the ground which was raised is one in which the applicant would inevitably fail before this Court. No reasons were advanced before this Court as to why the principles in the decision in BVJ16v Minister for Immigration & Anor [2017] FCCA 178 should not be followed.

4. In the absence of any reasons being developed as to why that decision should not be followed, I am of the view that the principles of construction in that case in respect of the argument concerning Form 866 remain correct. I am of the view that for the same reasoning as identified on the construction issues in BVJ16 v Minister for Immigration & Anor [2017] FCCA 17 that no jurisdictional error as alleged in Ground 1 of the application is likely to succeed.

5. I was not satisfied that an adjournment was warranted in the interests of the administration of justice. It is for these reasons the adjournment was refused.

Consideration

1. It would have been open to the applicant to advance an argument as to why the decision in the other case should not be followed or should be distinguished if there was a fresh argument or that the Court had not addressed. This Court has on occasions, been persuaded that an earlier decision made by the Court is wrong.

2. In the present case, Mr Robertson properly acknowledges that it is the same grounds that he wishes to have re-agitated as were dealt with in BVJ16v Minister for Immigration & Anor [2017] FCCA 178 and that there was no basis to distinguish the principle in this case. Mr Robertson properly conceded that this Court would in those circumstances, be likely to follow the reasoning identified in that decision. I am satisfied that the principles and reasoning in respect of the identified ground in that decision is applicable in the present case. I find that the Form 866B on which the applicant applied for a protection visa was an approved form under the Act. I find that the application for the protection visa was a valid application. I find that the Tribunal had jurisdiction to determine the review. I find that there was no jurisdictional error as alleged in Ground 1 is made out.

3. Further, I find that there was no substantive difference in the content of the application as it was completed by the applicant, the subject of the application for review to the Tribunal and the information sought in the Form 866 allegedly as it took effect and frozen on 20 October 1999.

4. In these circumstances, for the same reasons as identified in the decision of BVJ16v Minister for Immigration & Anor [2017] FCCA 178, I also find that there was substantial compliance with the requirements of Item 1401 of Schedule 1 to the Migration Regulations1994 and that the Form 866 completed by the applicant was not invalid.

Conclusion

1. For these reasons, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 March 2017