SZSGC v Minister for Immigration
[2017] FCCA 1083
•23 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSGC v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1083 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Cases cited: BVJ16 v Minister for Immigration & Anor [2017] FCCA 178 CNP16 v Minister for Immigration & Anor [2017] FCCA 704 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 SZUGL v Minister for Immigration [2017] FCCA 419 SZUTU v Minister for Immigration [2017] FCCA 593 |
| Applicant: | SZSGC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1872 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1872 of 2016
| SZSGC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application lodged on 18 July 2016 and filed the following day seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 April 2016. The Tribunal affirmed a decision of a delegate of the Minister (the delegate) not to grant the applicant a protection visa. The Tribunal’s decision was limited to a consideration of the complementary protection criterion, bearing in mind that an earlier application under the Refugees Convention criterion had already been dealt with.
It is common ground that the applicant requires an extension of time for his present application to the Court, given that it was filed some 70 days outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act).
The application is supported by an affidavit by Mr Sam Issa (the applicant’s solicitor) filed with it, which I received. I also have before me as evidence the affidavit of Andras Markus made on 20 September 2016.
The background facts and circumstances to this matter are otherwise set out in the Minister’s submissions filed on 2 May 2017.
The applicant is a Lebanese national who arrived in Australia on 20 October 2008 on a Short Stay Sponsored (Visitor) (Class UL) visa[1].
[1] affidavit of A Markus affirmed 20 September 2016 (Markus affidavit) at [3]
On or about 2 February 2009, the applicant lodged an application for a Protection (Class XA) visa with the Minister’s Department[2].
[2] Annexure “AM-1” to the Markus affidavit
By a decision dated 17 June 2009, a delegate of the Minister refused the applicant’s protection visa application[3].
[3] Markus affidavit at [5]
On 3 July 2009, the applicant applied for review of that decision by the Refugee Review Tribunal, which made a decision affirming the decision of the delegate not to grant the applicant a protection visa, on 13 November 2009[4].
[4] Annexure “AM-2” to the Markus affidavit
On 5 November 2012, the applicant lodged a further application for a Protection (Class XA) visa with the Minister’s Department[5].
[5] Annexure “AM-3” to the Markus affidavit
By a decision dated 2 October 2014, the delegate refused the applicant’s protection visa application[6].
[6] Annexure “AM-4” to the Markus affidavit
On 8 October 2014, the applicant applied for review of that decision by the former Refugee Review Tribunal. The Tribunal made its decision affirming the decision of the delegate not to grant the applicant a protection visa, on 4 April 2016[7].
[7] Annexure “AM-5” to the Markus affidavit
As noted above, the present application seeking judicial review of that decision was commenced on 18 July 2016, some 10 weeks out of time.
There is no dispute as to the principles to apply in considering the extension of time application. Relevant guidance was provided by the Federal Court in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] and [48]:
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s.477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
The delay in coming to court is not insignificant but not particularly lengthy. The applicant’s explanation for the delay is set out in the affidavit of Mr Sam Issa and amounts to an assertion that the applicant was in need of advice and funds to pay for it. That is, regrettably, a common circumstance in this jurisdiction. It is not a persuasive reason for the Court to grant an extension of time in the interests of the administration of justice.
However, in a case like the present it is necessary to consider the weight of the argument that would be advanced before the Court, should an extension of time be granted. The grounds of review are:
1. The Second Respondent made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no such jurisdiction.
Particulars
a. At the time of the application for a protection visa, dated 10 October 2013, the version of Form 866 used by the Applicant has been approved by the Minister under regl. 18(1) of the Migration Regulations after item 1401 of Sch l to the Migration Regulations took effect on 20 October 1999;
b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather, by virtue of those provisions and notwithstanding s14(4) of the Legislation Act and s504(2) of the Migration Act, item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; and
c. As a result, by virtue of s 46 of the Migration Act read with reg 2.07 of the Migration Regulations and notwithstanding s 25C of the Interpretation Act when read with s13(1) of the Legislation Act, the earlier application was invalid.
d. Given there was no valid application for the … protection visa, there was no statutory foundation for the Tribunal to make a decision on the review.
The second ground was withdrawn.
The applicant’s difficulty is that there are several decisions of this Court which have previously dealt with the argument sought to be advanced. Those include BVJ16 v Minister for Immigration & Anor[8] and SZUGL v Minister for Immigration & Anor[9]. I was told by counsel for the Minister that the former is subject to an appeal in the Federal Court. To date, no decision of this Court has accepted the argument now sought to be advanced by the applicant.
[8] [2017] FCCA 178
[9] [2017] FCCA 419
In order to grant an extension of time, I would need to be persuaded that there was a real argument that the decisions of this Court which have already dealt with the issue are clearly wrong. That is because, were an extension of time granted and the matter proceed to a final hearing, judicial comity would direct me to follow the earlier decisions unless I was satisfied that those decisions are plainly wrong.
The applicant’s argument is a technical one and is dealt with by the Minister in his submissions as follows:
The applicant’s argument under this ground is that, by virtue of the relevant provisions of the Act and the Migration Regulations 1994 (Cth) (the Regulations), the forms used by him to make his two previous applications for Protection visas were not available to lodge valid Protection visa applications.
It is to be noted that, apart from the two judgments referred to in the applicant’s submissions, there are a number of other judgments that dealt with this argument: see e.g. SZUGL v Minister for Immigration and Border Protection [2017] FCCA 419 (SZUGL), SZUTU v Minister for Immigration and Border Protection [2017] FCCA 593 and CNP16 v Minister for Immigration & Anor [2017] FCCA 704. In all of those matters, the Federal Circuit Court rejected the contention that the relevant legislative provisions should be read as incorporating by reference Form 866 as at 20 October 1999.
As Judge Street held in BVJ16, the construction contended for by the applicant is inconsistent with the manifest intention of the statutory scheme provided for by the Act and Regulations (at [36]). Judge Dowdy held to relevantly identical effect in SZUGL, rejecting the applicant’s construction as strained and artificial (at [28]).
However, even if that were wrong, that does not necessarily mean that the applications lodged by the applicant in 2009 and 2014 were invalid. Rejecting the respective applicant’s submissions in the proceedings referred to above, the Court in each matter held that substantial compliance is not immaterial to the issue of whether a person lodged a valid application for a visa: see eg CFA16 at [12]-[13] and SZUGL at [41]-[50] and [59](d).
In view of the fact that the applicant’s submissions do not allege that these judgments are clearly wrong, the Minister submits that there is no prospect of this ground succeeding.
It is not necessary for me to reach any concluded view about the detail of those submissions. It is sufficient for me to conclude that I accept the Minister’s contention that the prior decisions of this Court, if not correct, are at least not clearly wrong and, in that regard, I am not persuaded that paragraph (1) of item 1401 of schedule 1 to the Migration Amendment Regulations 1999 (No.12) does any more than prescribe a form number, as opposed to a complete form.
It follows that I am not persuaded that the argument sought to be advanced raises an issue sufficient to require the Court to grant an extension of time in the interests of the administration of justice. Accordingly, I reject that application with the consequence that the proposed judicial review application is incompetent.
I will order that, pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,200.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 May 2017
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