FVH18 v Minister for Immigration and Anor

[2020] FCCA 1632

FEDERAL CIRCUIT COURT OF AUSTRALIA

FVH18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1632

Catchwords:
MIGRATION – Visa – protection visa – multiple applications for protection visas denied – application for review of decision by Administrative Appeals Tribunal – no reviewable error – no reasonable prospects of successfully prosecuting the proceeding.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Migration Act 1958 (Cth), ss.48A, 476,

Migration Regulations 1994 (Cth), rr.1.18, 2.07, 4.31

Cases cited:

BVJ16 v Minister for Immigration and Border Protection (2017) FCA 1205

SZMOX v Minister for Immigration and Border Protection (2018) FCAFC 121

Applicant: FVH18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3374 of 2018

Judgment of: Judge McNab

Hearing date: 15 June 2020

Date of Last Submission: 15 June 2020

Delivered at: Melbourne

Delivered on: 15 June 2020

REPRESENTATION

The Applicant in person

Counsel for the First Respondent: Ms Roberts

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application filed on 22 February 2018 be dismissed pursuant to rule 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) or rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application has no reasonable prospects of success.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,737.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3374 of 2018

FVH18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

1. This is an application in a case filed by the first respondent on 24 February 2020, seeking, amongst other things, orders that the applicant’s application filed 22 October 2018 be dismissed pursuant to section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘FCCA Act’) or, alternatively, rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The application is made on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The application was supported by an affidavit sworn by Ms Felicidade Lay, sworn 21 January 2020, which affidavit evidenced the applicant’s history of applications and movement history.

2. For the reasons which follow I have concluded that the application in the case filed 22 January 2020 should be allowed and the Court will make orders that the application filed on 22 October 2018 be dismissed pursuant to section 17A(2) of the FCCA Act or rule 13.10(a) of the Rules, on the basis that the application has no reasonable prospects of success.

Background

1. By way of background, the applicant is a citizen of Malaysia who arrived in Australia on 16 June 2015.

2. On 9 September 2015, the applicant applied for a Protection (Class XA) visa (‘the protection visa’).

3. On 24 February 2016, a delegate (‘delegate’) of the first respondent (‘the Minister’) refused to grant the protection visa.

4. On 19 January 2018, the applicant lodged a review application with the Administrative Appeals Tribunal (‘the Tribunal’).

5. On 8 February 2018, the Tribunal affirmed the delegate’s decision not to grant the protection visa and dismissed the application brought by the applicant.

6. On 30 May 2018, the applicant applied to this Court for an extension of time to seek judicial review of the Tribunal’s decision. On 23 July 2018 that application was dismissed by her Honour Judge Emmett.

7. On 28 September 2018, the applicant lodged a further Protection (Class XA) application (‘the second protection visa application’).

8. On 19 October 2018, the delegate sent a letter to the applicant notifying him that the second protection visa application was not a valid application by reason of the operation of section 48 of the Migration Act 1958 (Cth) (‘the Act’). That letter stated relevantly:

   Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.

9. On 22 October 2018, the applicant filed an application in this Court pursuant to section 476(1) of the Act, seeking judicial review of the delegate’s decision dated 19 October 2018.

10. On 22 January 2020, the Minister filed an Application in a Case seeking orders that the applicant’s application filed 22 October 2018 be dismissed on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

11. The applicant raises four grounds of review in his application:

    1. The decision dated 19 October 2018 of the Respondent, asserting the validity of the protection visa application filed, is challenged.

    2. 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.

    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.

    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.

    (errors in original)

Consideration

1. Ground 1 does not raise a proper ground of review as it is simply a statement of the fact that a review is being made of the decision of the respondent dated 19 October 2018.

2. The grounds set out in ground 2, including the particulars, were raised specifically as grounds of review in a matter of BVJ16 v Minister for Immigration and Border Protection (2017) FCA 1205 per Burley J (‘BVJ16’’). The grounds as raised in the present application for review were expressly rejected by the Court in that decision.

3. The same grounds of review were considered by the Full Court of the Federal Court in SZMOX v Minister for Immigration and Border Protection (2018) FCAFC 121 (‘SZMOX’). The Full Court expressly upheld the decision of Burley J in BVJ16 and noted that the reasoning in BVJ16 has been followed subsequently in a considerable number of Federal Court decisions. See [25] of SZMOX.  For those reasons, ground 2 must fail.

4. Ground 3 is not a ground of review.

5. Ground 4 noted that the decision of BVJ16 is binding on this Court and an application to the Full Court of the Federal Court is to be made. In fact, that application has been made and the Full Court has approved the reasoning of Burley J in BVJ16.

6. For these reasons the Court is of the view that the application has no reasonable prospects of success and therefore dismisses the application and will make orders in the terms set out in paragraph 1 of the Application in a Case filed on 24 February 2020.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 18 June 2020