Dti16 v Minister for Immigration - [2018] FCCA 1593

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTI16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1593

Catchwords:

MIGRATION – Migration Act1958 (Cth) – protection visa application – s.48A of the Act – s.48A argued not to preclude a subsequent protection visa application because an earlier protection visa application was not made on the correct version of Form 866 in force in 1999 but rather on a later Form 866 and hence earlier protection visa application invalid – identical argument raised in this Court and in Federal Court of Australia unsuccessfully on numerous occasions – no jurisdictional error – argument rejected and earlier protection visa application not invalid – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A

Migration Regulations 1994 (Cth)
Federal Circuit Rules 2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

AJB15 v Minister for Immigration [2017] FCCA 1592

AJB15 v Minister for Immigration [2018] FCA 57

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZLZS v Minister for Immigration [2017] FCCA 2578
SZLZS v Minister for Immigration [2018] FCA 748
SZMOV v Minister for Immigration [2017] FCCA 1584
SZMOV v Minister for Immigration [2018] FCA 66
SZUGL v Minister for Immigration (2017) 320 FLR 1

Applicant:

DTI16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3475 of 2016

Judgment of:

Judge Dowdy

Hearing date:

2 March 2018

Delivered at:

Sydney

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr O. Jones of Counsel

Solicitors for the Applicant:

Firmstone & Associates

Counsel for the Respondents:

Mr A. Markus

Solicitors for the Respondents:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS

Pursuant to r.13.10(a) of the Federal Circuit Rules 2001 (Cth) the Application filed in this Court on 7 December 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3475 of 2016

DTI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(REVISED FROM TRANSCRIPT)

By an Application filed in this Court on 7 December 2016, the Applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1593
Decision Date: 2 March 2018

CaseChat Overview and Summary

The applicant, Dti16, sought judicial review of a decision by the Minister for Immigration concerning a protection visa application. The central dispute revolved around the application of section 48A of the *Migration Act 1958* (Cth), which imposes limitations on further visa applications in certain circumstances. The matter was heard by Dowdy J in the Federal Court of Australia.

The primary legal issue before the Court was whether section 48A of the *Migration Act* precluded Dti16 from making a subsequent protection visa application. This question hinged on whether Dti16's earlier protection visa application, lodged in 1999, was valid. Dti16 contended that the earlier application was invalid because it was not made on the correct version of Form 866 in force at that time, but rather on a later version. If the earlier application was invalid, it was argued, then section 48A would not be triggered, allowing for a new application.

Dowdy J rejected Dti16's argument, noting that this identical contention had been raised and dismissed unsuccessfully on numerous prior occasions in the Federal Court. The Court found no jurisdictional error in the assessment of the earlier application and concluded that the use of a later version of Form 866 did not render the 1999 protection visa application invalid. Consequently, section 48A was applicable, and Dti16 was precluded from making a further protection visa application. The application was therefore dismissed.

Orders