DUY18 v Minister for Home Affairs
[2019] FCCA 1228
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUY18 v MINISTER FOR HOME AFFAIRS | [2019] FCCA 1228 |
| Catchwords: MIGRATION – Application for summary dismissal of application seeking review of decision of the Minister where Minister determined that third protection visa application was not valid. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2) Migration Act 1958 (Cth), s.48A Federal Circuit Court Rules 2001 (Cth), r.13.10 |
| Cases cited: BRJ18 v Minister for Home Affairs [2018] FCCA 2858 BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 |
| Applicant: | DUY18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 2045 of 2018 |
| Judgment of: | Judge Barnes |
| Hearing date: | 30 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The application be summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
The Applicant pay the Respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2045 of 2018
| DUY18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 24 July 2018 the Applicant filed an application in this court seeking judicial review of a decision of a delegate of the Respondent. The delegate had notified the Applicant by letter of 23 July 2018 that his protection visa application was invalid.
Before the court is an application in a case filed by the Respondent seeking that the Applicant’s judicial review application be dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) or r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the ground that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
The delegate’s notification advised the Applicant that the application for a protection visa filed on 18 July 2018 was invalid because a decision had previously been made to refuse to grant him a protection visa or he had had a protection visa cancelled. The letter pointed out that under s.48A of the Migration Act 1958 (Cth) (the Act) a person who had not left Australia since such refusal or cancellation was prevented from making a subsequent protection visa application while he or she remained in Australia, unless the ministerial power under a.48B to allow a further protection visa application had been exercised.
The background to these proceedings is lengthy. The Applicant, a citizen of China, arrived in Australia in April 1997 on a visitor visa. Before that expired, he lodged an application for a protection visa (PVA 1). It was refused by a delegate in June 1997. That refusal was affirmed by the then Refugee Review Tribunal in December 1998.
Following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the Applicant lodged a further application for a protection visa on 2 December 2013 (PVA 2). That application was refused in June 2014. The Applicant sought review by the Administrative Appeals Tribunal. It affirmed the decision in December 2015. In January 2016 the Applicant applied to this court for review of the decision of the Tribunal. That application was dismissed in November 2016 with costs.
Then, relevantly, on 18 July 2018 the Applicant attempted to lodge a third protection visa application (PVA 3). It is that third protection visa application that was notified as invalid in the letter of 23 July 2018.
As indicated, on 24 July 2018 the Applicant filed an application in this court seeking judicial review. The application contains four “grounds”. The first ground simply states that the decision of 23 July 2018 “asserting the invalidity” of the protection visa application is “challenged”. Ground 2 contains the essence of the Applicant’s complaint. It is as follows (errors in original):
The Delegate of the Respondent made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier protection visa application the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Schedule 1 to the Regulations took effect on 20 October 1999;
b. Item 1401 of Schedule to the Regulations, by virtue of Section 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or Section 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.
By virtue of those provisions and notwithstanding Section 14(4) of the Legislation Act and Section 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent it existed when item 1401 took effect on 20 October 1999;
c. As a result, by virtue of Section 46 of the Act when read with ref 2.07 of the Regulations and notwithstanding Section 25C of the Interpretation Act when read with Section 13(1) of the Legislation Act, the earlier application was invalid and the later application was not barred by Section 48A of the Act.
The third ground states that:
3. Burley J. of the Federal Court of Australia dismissed a decision of this Court raising relevantly identical issues - namely at BVJ16 v. MIBP 2017.
The fourth ground is as follows:
4. This judgement is binding upon this Court and the Federal Court. An Application to the Full Bench of the Federal Court is to be made.
I observe that every aspect of these grounds (except for the date of the delegate’s decision), including typographical errors and grammatical infelicities is identical to the grounds of review considered by Judge Manousaridis in BRJ18 v Minister for Home Affairs [2018] FCCA 2858 and is also identical in essential respects to the grounds in a number of other applications considered in this court and in the Federal Court.
The Respondent filed an application in a case seeking summary dismissal on 11 December 2018. It is supported by an affidavit sworn by David Baddeley, solicitor, on 11 December 2018. The matter was listed for directions to give the Applicant an opportunity to file and serve an amended application, affidavit evidence and submissions. He did not do so.
The Applicant told the court that he had asked a friend to provide some documents to the court. There is no record on the electronic court file of any such documents being received and the solicitor for the Minister has no record of having received any such documents. When asked about those documents and their relevance to the proceedings, the Applicant indicated that these documents related to his depression and other medical conditions, that the case had caused him health problems and that he asked a friend to send them, because the friend knew how to work a computer. He agreed that there was no problem with the hearing proceeding today. I indicated to him that he could have a break during the hearing.
Insofar as the Applicant was seeking an adjournment of the hearing, I am not satisfied that his generally expressed medical concerns or, indeed, the concern he raised about the fact he had been in Australia for 22 years and has, in effect, become part of the mainstream community, are a basis on which the hearing should be adjourned. Such an adjournment is not in the interests of justice or of the parties. I questioned the Applicant on more than one occasion about the relevance of his documentation about his medical conditions and on each occasion he agreed that the hearing could go ahead. It was appropriate to proceed.
The Minister filed written submissions and made oral submissions. Apart from raising his personal circumstances, the Applicant had nothing to say in response and did not address the basis on which it is contended by the Minister that this application has no reasonable prospect of success.
Section 17A(2) of the FCCA Act, which is in identical terms to s.31A of the Federal Court of Australia Act 1976 (Cth), provides that:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or part of a proceeding if:
…
(b) the Court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
There is a similar provision in r.13.10(a) of the FCC Rules.
Section 17A(2) was, like its Federal Court equivalent, introduced to lower the bar, as it were, for the dismissal of applications lacking in merit and in that sense has been considered as involving a lower threshold. Nonetheless, I have had regard to the caution to be exercised in summarily dismissing proceedings.
The relevant principles were usefully summarised by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118. The moving party, in this case the Minister, bears the onus of persuading the court that the application has no reasonable prospect of success. As I have said, the intention behind the enactment of a provision such as s.17A is to lower the bar for obtaining summary judgment, including summary dismissal. The assessment required in relation to an application for summary dismissal necessitates the making of value judgments in the absence of a full and complete factual matrix and argument. Further, despite lowering the bar, the discretion must still be exercised with caution, albeit that the determination does not require a mini trial based on incomplete evidence but, rather, a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.
The application is as set out above. The accompanying affidavit simply identifies the Applicant and attaches a copy of the decision of the delegate and also of earlier decisions in relation to PVA 2. These matters do not meaningfully advance the Applicant’s case.
The first ground in the application for review simply states that the decision of the delegate is challenged. This is merely a statement of intention.
Ground 2 is the essence of the Applicant’s contention. In substance, it is a challenge to the validity of the version of Form 866 prescribed by the Migration Regulations1994 (Cth) (the Regulations) as the form to be used by an applicant to apply for a protection visa. This ground involves a contention that the Applicant’s prior protection visa application (PVA 2) was invalid because it was made using a version of Form 866 which, while validly approved, was not incorporated into the Regulations and, therefore, could not be used for that purpose. On this basis it is contended that s.48A does not apply to prevent PVA 3.
This argument has been considered in many cases. The grounds themselves go on to acknowledge that in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205, Burley J of the Federal Court dismissed an appeal in circumstances where what amounted to identical issues to those raised in this case were raised. It is also correctly acknowledged in the final ground that this judgment is binding on this court and so the Applicant’s application cannot succeed. However he maintains an intention to proceed to the Federal Court.
Relevantly, in BVJ16 Burley J considered a ground that was the same in essential respects as ground 2. His Honour described this ground (at [20]) as an “ingenious but unattractive argument”. It was rejected. First his Honour held (at [21]) that s.14 of the Legislation Act 2003 (Cth) was not engaged in the circumstances and that the reference to Schedule 1 Item 1401 to Form 866 simply identified a type of form that must be completed by an applicant for a protection visa. It was pointed out that the particular form was not incorporated into the Regulations. Rather, the Regulations identified a type or genre of documents that must be completed, broadly identified as Form 866.
Secondly, in BVJ16 Burley J held that in any event a contrary intention in accordance with s.14(3) of the Legislation Act2003 (Cth) was apparent. His Honour suggested that such a contrary intent need not be found in a single express provision, but may be ascertained from legislative content. Burley J found that the choice of the defined term “approved form” in reg.2.07(1)(a) signified that a particular form was not nominated, but rather referred to such form as the Minister may approve exercising powers pursuant to s.495 of the Act and reg.1.18 and that the language of Schedule 1 Item 1401 (in referring to a generic form number) supported that view.
Relevantly, the Full Court of the Federal Court in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 approved this approach. It had been contended that the approach taken in BVJ16 was incorrect. However, after setting out at some length the reasoning of Burley J, the Full Court found that this reasoning had been followed in a number of cases in the Federal Court (which were listed) and rejected the submission that his Honour was wrong. Their Honours also observed (at [27]) that there was little they could usefully add to the analysis of Burley J in BVJ16.
As well as the decision of the Full Court of the Federal Court in SZMOX, there are a considerable number of other decisions of single judges of the Federal Court that are contrary to the argument that the Applicant seeks to run.
I also note that in SZLZS v Minister for Immigration and Border Protection & Anor [2018] HCASL 270 Nettle and Gordon JJ refused an application for special leave to appeal from a decision of the Federal Court to the High Court in relation to proceedings which considered a ground that was relevantly the same as is now sought to be relied on by the Applicant. Their Honours stated that an appeal to the High Court “would enjoy no prospect of success”, that no question of principle of general importance sufficient to warrant a grant of special leave to appeal and no arguable ground of appeal had been advanced.
Nor did the Applicant in this case identify any basis on which he would intend to submit that the decisions which he concedes this court is bound to follow were wrong or should not be followed. Insofar as the application was drafted on the basis that the most relevant recent authority was BVJ16, since that time SZMOX has considered and endorsed the reasoning of Burley J in BVJ16. In so doing the Full Court has effectively rejected the argument that the Applicant now seeks to run. There is no suggestion that the reasoning in SZMOX can be distinguished in any way or that this authority is not binding on this court.
In these circumstances, the Applicant’s judicial review application does not identify any ground of review that gives rise to an arguable cause of action. It does not go beyond raising arguments that have been repeatedly considered and rejected by the Federal Court, considered and rejected by the Full Court of the Federal Court and in relation to which special leave was not granted by the High Court of Australia.
Nonetheless, I have had regard to the particular circumstances of this case. The Minister addressed the fact that whether a visa application is valid is an objective question for the court to determine, referred to the terms of s.48A(1) of the Act, pointed out that movement records confirmed that the Applicant did not depart the migration zone after PVA 2 was refused and noted the absence of any evidence that the Minister had determined pursuant to s.48B of the Act that s.48A did not apply to the Applicant. Further, while this was a case in which the Applicant was affected by SZGIZ, in PVA 2 his protection claims were assessed under the complementary protection criterion.
In these circumstances, given the operation of s.48A, there is nothing to suggest any arguable case that the Applicant’s PVA 3 was a valid protection visa application. The Minister can only consider valid visa applications (see s.47(3) of the Act).
In my opinion, in particular in light of the decision of Burley J in BVJ16 and of the Full Court of the Federal Court in SZMOX, the Applicant has no reasonable prospect of successfully prosecuting the proceeding. It should be summarily dismissed pursuant to s.17A(2) of the FCCA Act with an order that the Applicant pay the Respondent’s costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 10 May 2019
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