DGC18 v Minister for Home Affairs

[2018] FCCA 2821

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGC18 v MINISTER FOR HOME AFFAIRS [2018] FCCA 2821

Catchwords:
MIGRATION – Whether the protection visa application is invalid under Form 866 of the Regulations – whether the Act prevents a further protection visa application being made – Court bound by the decision of the Federal Court – no jurisdictional error made out – application dismissed under r 44.12 of the Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.48A

Cases cited:

BVJ16 v Minister of Immigration and Border Protection [2017] FCA 1205

Applicant: DGC18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1748 of 2018

Judgment of: Judge Street

Hearing date: 20 July 2018

Date of Last Submission: 20 July 2018

Delivered at: Sydney

Delivered on: 20 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr A Joel
Adrian Joel & Co

Solicitors for the Respondent: Ms C Saunders
DLA Piper

ORDERS

1. The interlocutory application be heard concurrently with the other interlocutory applications listed for hearing today before this Court at 9:30am.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the first respondent’s costs fixed in the amount of $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1748 of 2018

DGC18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The Court is hearing, concurrently, eight matters that were listed before the Court at 9:30am. The Court made an order for the concurrent hearing of each interlocutory application with the other interlocutory applications from the 9:30am list before the Court. No objection was taken to that course. Each matter is the subject of an interlocutory application for consideration as to whether the application should be dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (“the Rules”). 

2. In each matter the grounds raised in the initiating application raise an issue in respect of the validity of the alleged Form 866 and an argument to the effect that s 48A of the Migration Act 1958 (Cth) (“the Act”) does not prevent a further protection visa application because the earlier invalid form.

3. Mr Joel the solicitor on behalf of the applicant, does not contest that there is a decision by the Federal Court, being that of Burley J in BVJ16 v Minister of Immigration and Border Protection [2017] FCA 1205, by reason of which the grounds in each matter must fail. I find, in each matter that the form on which the first application for protection was lodged was a valid form. I find in each matter the application filed in this Court has no reasonable prospect of success. I find that in each matter it is appropriate for the Court to exercise its powers under r 44.12 of the Rules. 

4. Accordingly, in each matter the application is dismissed under r 44.12 of the Rules.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2018