SZUTU v Minister for Immigration - [2017] FCCA 593

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTU v MINISTER FOR IMMIGRATION

[2017] FCCA 593

Catchwords:

MIGRATION – Whether the delegate’s decision was made without jurisdiction – whether the delegate incorrectly found the visa application to be invalid – whether subsequent visa application was barred by s.48A – Form 866 – whether substantial compliance of the form took place – whether the proceedings are an abuse of process – whether the application is subject to estoppel – no jurisdictional error identified – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.25C, 49A.
Legislation Act 2003 (Cth), s.14.

Migration Act 1958 (Cth), ss.46, 48A, 476, 495, 504.

Migration Regulations 1994 (Cth), regs.1.18, 2.07, sch.1, Item 1401.

Cases cited:

BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178

CFA16 v Minister for Immigration & Anor [2017] FCCA 278

Applicant:

SZUTU

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2606 of 2016

Judgment of:

Judge Street

Hearing date:

27 March 2017

Date of Last Submission:

27 March 2017

Delivered at:

Sydney

Delivered on:

27 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Adrien Joel & Co

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2606 of 2016

SZUTU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Department made on 25 August 2016.

Applicant’s Submissions

The applicant seeks to contend that the decision of the Department made on 25 August 2016 was made without jurisdiction. The foundation for that argument is that the delegate made a jurisdictional error in the exercise of the delegate’s jurisdiction. The applicant contends that at the time of the earlier protection visa application on 26 July 2011, the version of the Form 866 used by the applicant had been approved by the Minister under reg.1.18(1) of the Migration Regulations 1994 (Cth) (“the Regulations”) after Item 1401 of Schedule 1 to the Regulations took effect on 20 October 1999.
The applicant contends that Item 1401 of Schedule 1 to the Regulations, by virtue of s.49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 or s.14(1)(b) of the Legislation Act 2003 (Cth), was prohibited from incorporating Form 866 as it existed after Item 1401 took effect. The applicant further contends that by virtue of those provisions and notwithstanding s.14(4) of the Legislation Act 2003 (Cth) and s.504(2) of the Act, Item 1401 was restricted to incorporating Form 866 to the extent it existed, and that, accordingly, Item 1401 took effect on 20 October 1999 at the time of the applicant’s initial application for protection.
The applicant further contends that, as a result, by virtue…

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: [2017] FCCA 593
Decision Date: 27 March 2017

CaseChat Overview and Summary

The applicant, SZUTU, sought judicial review of a decision made by a delegate of the Minister for Immigration. The dispute concerned the validity of a visa application and whether a subsequent application was barred by section 48A of the Migration Act 1958 (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the delegate erred in finding the visa application invalid, whether section 48A of the Migration Act barred the subsequent application, and whether the applicant had substantially complied with the requirements of Form 866. The Court also considered whether the proceedings constituted an abuse of process or were subject to estoppel.

Judge Street found that no jurisdictional error had been identified in the delegate's decision. The Court determined that the visa application was not validly made, and consequently, section 48A applied to bar the subsequent application. The Court also concluded that there was no substantial compliance with the requirements of Form 866, and that the proceedings were not an abuse of process nor subject to estoppel.

The application was dismissed.

Orders