Coe19 v Minister for Home Affairs
[2021] FCCA 2016
•12 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
COE19 v Minister for Home Affairs [2021] FCCA 2016
File number: MLG 2053 of 2019 Judgment of: JUDGE YOUNG Date of judgment: 12 August 2021 Catchwords: MIGRATION – application for judicial review of a decision of the delegate of the Minister for Home Affairs which found the application for a Protection (Class XA) visa as invalid – where the application for judicial review had no reasonable prospects of success – no jurisdictional error made out – application dismissed Legislation: Migration Act 1958 (Cth), ss 48A, 48B
Migration Regulations1994 (Cth)
Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205
SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121
Number of paragraphs: 12 Date of hearing: 12 August 2021 Place: Darwin The Applicant: Appearing on his own behalf Solicitor for the Respondent: Mr Orchard of Sparke Helmore ORDERS
MLG 2053 of 2019 BETWEEN: COE19
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
12 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application filed on 28 June 2019 is dismissed.
2.The Applicant is to pay the Respondent’s costs in the fixed sum of $2,242.00.
3.Where the name of the Applicant was mentioned during the course of the proceedings on 12 August 2021 the pseudonym “COE19” is to be substituted on the transcript and the Applicant is otherwise to be referred to as “COE19”.
REASONS FOR JUDGMENT
Ex Tempore
JUDGE YOUNG:
This is an application brought by the applicant to review a decision of the Minister’s delegate (the delegate) made on 30 May 2019 to assess his application for a Protection (Class XA) visa as invalid pursuant to section 48A of the Migration Act 1958 (Cth). In summary terms, section 48A states that, if an application for a protection visa has been previously refused, the person may not make a further application for a protection visa while the applicant remains in the migration zone – that is, in Australia. Section 48A of the Act is, of course, subject to the Minister exercising discretion pursuant to section 48B to waive that requirement. There is no evidence of any waiver of that requirement.
The timeline is that the applicant, after coming to Australia lawfully, made an application for a protection visa on 14 September 2012. Mr Orchard, for the Minister, tells me that that application was treated as an invalid application for reasons that I do not need to discuss.
However, on 7 December 2012 a further application for a protection visa was made by the applicant and that was treated as a valid application. It should be noted that the form used by the applicant to make that application was Form 866, pursuant to the Migration Regulations1994 (Cth) (the Regulations). The Delegate refused the application on 10 July 2013.
On 19 July 2017 the Administrative Appeals Tribunal affirmed the Delegate’s decision to reject the application for a protection visa.
On 29 May 2019 the applicant made a further application for a protection visa. The delegate found that the application was a further application for a protection visa in circumstances where one had previously been refused. Therefore the delegate was satisfied that section 48A of the Act applied and the Minister advised the applicant accordingly on 30 May 2019.
On 28 June 2019 the applicant applied to this Court seeking judicial review of the Minister’s decision. The argument set out in the applicant’s application relies on what purports to be four grounds of review.
The first is that the decision of the Minister made on 30 May 2019 is “challenged”. That is not a valid ground and I do not propose to address it further.
In relation to ground 2, and I do not purpose to outline the argument in detail, however, I will refer to the decision of BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16), which was a decision of Burley J. That decision was approved by the Full Court of the Federal Court of Australia in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121. Those two cases outline the argument that was advanced in BVJ16 by an applicant unsuccessfully. As I understand it, the identical argument is advanced by the applicant in this matter. This argument encompasses grounds 2 and 3, and to some extent ground 4, which simply says that BVJ16 is binding on this Court, a proposition which, in broad terms, is correct.
Ground 2 appears to advance exactly the same argument that was advanced in BVJ16. In summary, it is that the Form 866 – the form used by the applicant in his application on 7 December 2012 – is an invalid form and has not been incorporated by reference in the Regulations. In BVJ16, Burley J rejected that argument and said the effect of the Regulations are simply to require the use of the type of form which has been called Form 866. The precise format of the form may be varied from time to time by the Minister but as the Minister identifies, that form is the form to be used. As Form 866 was used in this case, it follows that the application was validly made. I did not understand the applicant to be saying anything else.
It follows that I am satisfied that the application made on 7 December 2012 for a protection visa was a valid one. It follows that the delegate and Tribunal’s consideration of a valid application was correct. Therefore, section 48A of the Act inexorably applies in respect of the application made on 29 May 2019. There is no evidence of waiver by the Minister. It follows, then, that the application to review the decision of the Minister made on 30 May 2019 to reject the application as invalid would appear beyond argument to be correct.
In all the circumstances, I am satisfied the application of the applicant to this Court is doomed to fail and that constitutes an abuse of process. Alternatively, if there is no reasonable prospect of success of the application, which I am satisfied is the case, then it is amenable to summary dismissal. This is the Minister’s application and I am satisfied that it must succeed.
The application will be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 26 August 2021
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