CNP16 v Minister for Immigration

[2017] FCCA 704

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 704

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the visa application was made validly – whether the Tribunal had jurisdiction to review the application – Form 866 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994 (Cth), Item 1401 of Schedule 1

Cases cited:

BVJ16 v Minister for Immigration & Anor [2017] FCCA 178
CFA16 v Minister for Immigration & Anor [2017] FCCA 278

Applicant: CNP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2431 of 2016

Judgment of: Judge Street

Hearing date: 10 April 2017

Date of Last Submission: 10 April 2017

Delivered at: Sydney

Delivered on: 10 April 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

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 to pay the costs of the First Respondent fixed in the amount of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2431 of 2016

CNP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review 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 24 August 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant is a Lebanese national. He arrived in Australia on 13 February 2008 on a student visa. On 3 September 2014, the applicant lodged an application for protection. On 7 January 2015, a delegate refused the applicant’s protection application. On 22 January 2015, the applicant applied for a review of that decision by the Tribunal, and the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 24 August 2016.

Proceedings before this Court

1. The application for relief in this Court was filed on 8 September 2016, within the time permitted under s.477(1) of the Act. The application contains one ground of review, which alleges that the Tribunal made a jurisdictional error by purporting to exercise jurisdiction it did not have.

Ground of the application

1. There is a single ground of review 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 1999;

   b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(1)(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, 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 virtue 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.

Applicant’s submissions

1. Mr Jones, of counsel, properly conceded that the issue that he sought to raise had already been the subject of an adverse determination by this Court in BVJ16 v Minister for Immigration & Anor [2017] FCCA 178. Mr Jones did not seek to argue that there was any issue or authority that had been overlooked in that decision, but submitted that the Court’s decision was wrong, so as to preserve his client’s rights for review. That was a proper course for Mr Jones to take. Mr Jones did not seek to suggest that there was any reason why this Court should, itself, depart from what the Court found in BVJ16. Mr Jones drew attention to the fact that the same argument was again rejected in this Court, but in CFA16 v Minister for Immigration & Anor [2017] FCCA 278.

2. Mr Jones formally submitted that BVJ16 and CFA16 were wrongly decided and has thereby preserved his client’s rights to seek to challenge the principles identified in those cases, should his client seek to pursue appellant review.

Consideration

1. I am satisfied on the evidence before the Court that the visa application, in the present case, was made on an approved application, in accordance with the provisions of the Act. I am satisfied that the Tribunal had jurisdiction to determine the application.

2. Consistent with the principles of construction identified in BVJ16, I find that item 1401 of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”) should not be construed as intending to incorporate the whole Form 866. I find the construction advanced by the applicant is inconsistent with the manifest intention of the statutory scheme provided for by the Act and the Regulations.

3. Further, in the present case, I find that there was, in any event, a substantial compliance with the Form 866, and that strict compliance in that regard was not required.

Conclusion

1. I find that there is no jurisdictional error of the kind alleged in ground 1. Accordingly, the application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 April 2017