Dib19 v Minister for Immigration

[2020] FCCA 480

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIB19 v MINISTER FOR IMMIGRATION [2020] FCCA 480

Catchwords:
MIGRATION – Application for Bridging Visa dismissed –no denial of procedural fairness – invalid visa application – Temporary Safe Haven visa – no jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss 91H, 91J, 91K, 91L

Cases cited:

Minister for Immigration Border Protection v Kim (2014) FCAFC 47

Applicant: DIB19

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: MLG2853 of 2019

Judgment of: Judge McNab

Hearing date: 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Melbourne

Delivered on: 19 February 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondent: Ms Wickramaarachchi

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed 2 September 2019 is dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs in the sum of $3,737.00.

3. The time for filing any Notice of Appeal under Rule 36.03 of the Federal Court Rules 2011 (Cth) be extended to the date 28 days after publication of the settled written reasons for judgment, which were delivered orally.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG2853 of 2019

DIB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(AS CORRECTED)

(REVISED FROM TRANSCRIPT – DELIVERED EX-TEMPORE)

1. This application involves a consideration of Subdivision AJ of the Migration Act 1958 (Cth) (‘the Act’). By an application filed on 2 September 2019, the Applicant seeks judicial review of a decision of a delegate (‘the delegate) of the First Respondent (‘the Minister’) dated 1 August 2019, which found that the Applicant’s application for a Bridging E (Class WE) Visa was invalid by reason of the operation of section 91K of the Act.

2. This matter comes before the Court by way of an application to show cause filed by the Applicant on 2 September 2019.

Grounds of review:

1. The grounds of review raised by the Applicant are as follows:

   Ground One:

   The respondent failed to apply the correct test pursuant to Section 91K of the Migration Act 1958 (Cth).

   Particulars:

   In dealing with the Applicant’s claims under section 91K of the Migration Act 1958 (Cth), the delegate of the minister explicitly failed to disaggregate the statutory formulae under regulation.

   Ground Two:

   The respondent denied procedural fairness to the applicant.

Relevant law

1. Sections 91H, 91J and 91K of the Act are found in Subdivision AJ of the Act. Section 91H of the Act provides:

   Reasons for this Subdivision

   This Subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.

2. Section 91J of the Act provides:

   Non-citizens to whom this Subdivision applies

   (1) This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:

   (a) holds a temporary safe haven visa; or

(b) has not left Australia since ceasing to hold a temporary safe haven visa.

(2) his Subdivision does not apply to an unauthorised maritime arrival or a transitory person.

1. Section 91K of the Act states:

   Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

   Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

Background

1. The Applicant arrived in Australia on 28 February 2013, and has been subject to a number of Humanitarian Stay Temporary visas, with the last such visa being a Bridging E (class WE) General (subclass 050) visa, which commenced on 12 October 2018 and ceased shortly thereafter.

2. On 29 July 2019, the Applicant applied for a Bridging E Visa. At the time that the Applicant made the application, he did not hold a Temporary Safe Haven visa, and had not left Australia since ceasing to hold a Temporary Safe Haven visa.

3. Because the Applicant applied for a Bridging E (class WE) General (subclass 050) visa, which was a visa other than a Temporary Safe Haven visa, that application was not a valid application by reason of the operation of section 91K of the Act.

4. On 1 August 2019, the Department of Home Affairs notified the Applicant that the application for the visa was invalid because of the operation of section 91K of the Act. The notification letter provided that as the Applicant currently held, or had held, a Humanitarian Stay (Temporary) visa (subclass 449) since last entering Australia, the Applicant was prevented from making a valid visa application while in Australia, other than for a Temporary Safe Haven visa.

Consideration

1. There has be no Ministerial determination made pursuant to section 91L of the Act and section 91K of the Act does not apply to this Applicant.

2. In those circumstances, there is no error disclosed in the delegate’s decision. There has been no misapplication of the statutory regime.

3. In relation to the second ground, which asserts there has been a denial of procedural fairness, the Court was helpfully referred to the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Kim (2014) FCAFC 47 per Yates, Robertson and Wigney JJ where, in considering the task of determining whether or not there was a valid visa application, the Court said at [26]:

   The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister‘s or an officer‘s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the court and we so find.

4. Similarly in this case, the question of the validity of the application falls to the delegate, and it is not a matter to which procedural fairness applies.

5. In these circumstances, the Court finds that no jurisdictional error is demonstrated, and the Court orders that the application filed on 2 September 2019 be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 5 March 2020

Corrections

The following changes have been made:

1. Order 1 was removed and replaced with “The application filed 2 September 2019 is dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth)”.

2. Order 3 was removed and replaced with: “The time for filing any Notice of Appeal under Rule 36.03 of the Federal Court Rules 2011 (Cth) be extended to the date 28 days after publication of the settled written reasons for judgment, which were delivered orally”.