SZSXA v Minister for Immigration
[2018] FCCA 1594
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXA v MINISTER FOR IMMIGRATION | [2018] FCCA 1594 |
| 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) |
| 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 APU17 v Minister for Immigration [2017] FCCA 1591 SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 SZLZS v Minister for Immigration [2017] FCCA 2578 |
| Applicant: | SZSXA |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 554 of 2017 |
| 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 23 February 2017 is dismissed.
The Applicant is to pay the Respondent’s costs of the proceeding in the sum of $4,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 554 of 2017
| SZSXA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(REVISED FROM TRANSCRIPT)
By an Application filed in this Court on 23 February 2017 the Applicant seeks to quash and have redetermined the decision of the Delegate (the Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister), dated 2 February 2017 which found that the Applicant’s application for a Protection (Subclass 866) visa (Protection visa) lodged on 31 January 2017 was not a valid one by force of s.48A of the Migration Act 1958 (Cth) (the Act), because the Applicant had previously made a Protection visa application which had been refused.
The Applicant is a male citizen of Egypt aged 26 years, having been born on 22 April 1982, who arrived in Australia on 7 July 2008 on a Student (Subclass 572) visa.
He applied for a Protection visa firstly on 24 April 2009. A Delegate of the Minister refused to grant the Protection visa to him on 1 July 2009. On 29 July 2009 he applied for merits review of the Delegate’s decision to the then Refugee Review Tribunal, which affirmed the decision of the Delegate not to grant to the Applicant a Protection visa on 29 September 2009.
Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Act on 24 March 2012 the Applicant lodged a further application for a Protection visa on 6 May 2013 (second Protection visa application). The decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.
By a decision dated 9 April 2014 a Delegate of the Minister refused the second Protection visa application. The Applicant again sought review but in the result on 11 December 2015 the Administrative Appeals Tribunal (Tribunal) affirmed the Delegate’s decision not to grant a Protection visa to the Applicant pursuant to his second Protection visa application.
On 31 January 2017 the Applicant lodged a further Protection visa application (present Protection visa application) which the Delegate of the Minister decided was not a valid application, as referred to in [1] above.
Ground of Attack on Decision of Delegate in this Court
I note that Mr Jones of Counsel, who appears for the Applicant, has indicated to the Court that Ground 1 in the Application is not pressed.
The only Ground relied upon by the Applicant is to the effect that the second Protection visa application was invalid because the Applicant used a wrong and unauthorised Form 866 when he made his second Protection visa application, such that it was an invalid application without statutory foundation, and therefore the adverse decisions of the Delegate on 9 April 2014 and the Tribunal on 11 December 2015 were nullities. The reference to Form 866 in Item 1401 of Sch.1 to the Migration Regulations 1994 (Cth) (Regulations) was to be construed as incorporating the whole of Form 866 into the Regulations at the time when Item 1401 first came into effect on 20 October 1999. Later versions of Form 866 were not incorporated and therefore not valid forms of Form 866, and so the second Protection visa application which was made on an invalid Form 866 was also not valid. Accordingly, it followed that the Delegate’s decision to reject the present Protection visa application was based on the wrong premise that the second Protection visa application had been validly made and refused for the purposes of s.48A of the Act.
By an Application in a Case filed on 4 December 2017, the Minister seeks summary dismissal of the Application on the basis that the Applicant has no reasonable prospect of successfully prosecuting the proceeding. Mr Markus appears on behalf of the Minister in support of the Application in a Case for summary dismissal. He has read two affidavits, one which formally sets out the claim for dismissal and the other which goes to factual matters.
The Ground in this proceeding has been argued many times in both this Court and the Federal Court of Australia, often by Mr Jones. On all occasions it has been rejected in this Court and further rejected on appeal to the Federal Court of Australia. Below is a table which identifies these cases, which are asterisked when Mr Jones appeared.
| Name of Decision | Federal Circuit Court Citation | Federal Court of Australia Citation |
| BJV16 v Minister for Immigration | [2017] FCCA 178; Street J.* | [2017] FCA 1205 (BJV16); Burley J. |
| SZUGL v Minister for Immigration | (2017) 320 FLR 1; Dowdy J.* | No appeal. |
| APU17 v Minister for Immigration | [2017] FCCA 1591; Dowdy J.* | [2018] FCA 56; Burley J.* |
| AJB15 v Minister for Immigration | [2017] FCCA 1592; Dowdy J.* | [2018] FCA 57; Burley J.* |
| CDI15 v Minister for Immigration | [2017] FCCA 1603; Street J.* | [2018] FCA 58 Burley J. |
| CNP16 v Minister for Immigration | [2017] FCCA 704; Street J.* | [2018] FCA 65; Burley J.* |
| SZMOV v Minister for Immigration | [2017] FCCA 1584; Dowdy J.* | [2018] FCA 66; Burley J. |
| BLR15 v Minister for Immigration | [2017] FCCA 1068; Street J.* | [2018] FCA 67; Burley J.* |
| AUM17 v Minister for Immigration | [2017] FCCA 2070; Street J. | [2018] FCA 306; Banks-Smith J. |
| SZLZS v Minister for Immigration | [2017] FCCA 2578; Street J. | [2018] FCA 748; Reeves J. |
Enough judicial time has been spent considering this argument and it is sufficient for present purposes to set out the reasoning of Burley J in connection with the use of Form 866 in BJV16 at [19] – [30].
[19] The Minster has since October 1999 prescribed different versions of Form 866 from time to time. The appellant’s application for the Visa was made using the Completed Form 866 which is a later and different (although I note that the two forms, which are in evidence, are not materially different to each other) to the 1999 Form. The appellant contends that as the Completed Form 866 is not the application form required by the Regulations, it cannot be valid, and the primary judge erred by holding that either the Tribunal or the Delegate had jurisdiction in relation to the appellant’s application for review.
[20] This ingenious but unattractive argument should be rejected for two reasons.
[21] First, in my view s 14 of the Legislation Act 2003 (Cth) is not engaged in the present circumstances. The reference in Schedule 1 Item 1401 to Form 866 simply identifies a type of form that must be completed by an applicant for a Protection (Class XA) Visa. The particular form is not incorporated into the Regulations. Rather, a type or genre of document that must be completed is identified, namely a document identified broadly as Form 866.
[22] Subsection 46(1) relevantly provides that an application for a visa is valid if and only if it is for a visa for a class specified in the application and the requirements of s 46 are satisfied. Subsection 46(2) relevantly provides that an application for a visa is valid if it is an application for a visa for the class prescribed for the purposes of that subsection and, under the Regulations, the application is taken to have been validly made. Subsection 46(3) provides that the Regulations may prescribe criteria that must be satisfied for an application of a specified class to be valid.
[23] Section 495 of the Act provides:
Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
[24] That definition is significant and will apply not only to the Act, but also to the Regulations; Legislative Instruments Act 2003 (Cth) s 13(1).
[25] The Regulations also address approved forms. Regulation 1.18 provides:
Approved forms
(1) The Minister may, in writing, approve forms for:
(a) use in making an application for a visa; or
(b) any other purpose authorised or required by these Regulations.
…
[26] Regulation 2.07(1)(a) provides that the “approved form” must be completed by an applicant. That is to be understood to mean such form that the Minister from time to time approves pursuant to s 495 and reg 1.18.
[27] Schedule 1, Item 1401 identifies the code number or name to be ascribed to such form, namely the Form 866.
[28] Taken together, reg 2.07(1) and Item 1401 identify that an applicant must complete a Form 866 in order to make a valid application, but the form itself is not incorporated into the legislation. Rather, the Regulation has the effect of indicating that such Form 866 as the Minister may from time to time approve, should be completed.
[29] Accordingly, the terms of s 14 of the Legislation Act 2003 (Cth) are not engaged. Regulation 2.07(1) read with Schedule 1 item 1401 does not provide for the incorporation by reference of a particular form.
[30] Secondly, in my view a relevant contrary intention in accordance with s 14(3) of the Legislation Act would be apparent in any event. For the purposes of s 14(2), a ‘contrary intention’ need not be found in a single express provision but may be ascertained from the legislative context; Comcare v Broadhurst [2011] FCAFC 39; 192 FCR 497 at 67 (Tracey and Flick JJ). The choice of the defined term “approved form” in reg 2.07(1)(a) signifies that a particular form is not nominated, but rather such form as the Minister may approve, exercising powers pursuant to s 495 and reg 1.18. The language of Schedule 1 Item 1401, in referring to a generic form number supports that view.
Mr Jones recognises and accepts that, on the basis of the above authorities which have considered his argument, the Applicant in this proceeding has no reasonable prospects of successfully prosecuting the present proceeding.
In considering the Application in a Case brought by the Minister I have taken into account and had regard to the principles and the high hurdle established by such well-known cases as Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Fancourt v Mercantile Credits (1983) 48 ALR 1; Spencer v Commonwealth (2010) 241 CLR 118 and Agar v Hyde (2000) 201 CLR 552. In my view, on the basis of the authorities which have considered Mr Jones’ argument the present Application is hopeless and must fail.
Conclusion
Accordingly, in these circumstances, I propose in the first instance to order that pursuant to r.13.10(a) of the Federal Circuit Rules 2001 (Cth) the Application filed in this Court on 23 February 2017 is dismissed on the basis that it has no reasonable prospects of successfully being prosecuted in this proceeding.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 June 2018
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