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

1. The application is dismissed.

2. 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

1. 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

1. 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.

2. 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.

3. The applicant further contends that, as a result, by virtue of s.46 of the Act when read with reg.2.07 of the Regulations and notwithstanding s.25C of the Acts Interpretation Act 1901 (Cth) when read with s.13(1) of the Legislation Act 2003 (Cth), the earlier application was not valid and the later application was not barred by s.48A of the Act.

Respondent’s Submissions

1. Evidence was adduced on behalf of the respondent from a solicitor, Mr Andrew Lyall Keevers, identifying that the version of the application form used by the applicant was the most recently approved form and identified the form as it was as at 20 October 1999.

2. Counsel for the first respondent submitted that the proceedings were an abuse of process based on the principle of issue estoppel and also submitted that the proceedings should, in any event, be dismissed as misconceived.

Background

1. The applicant arrived in Australia on 11 May 2011 on a visitor’s visa. On 26 July 2011, the applicant lodged his first application for a protection visa. By letter dated 6 January 2012, the application was rejected by the delegate. On 18 September 2012, the then Refugee Review Tribunal (“the Tribunal”) affirmed that decision. The applicant sought judicial review of the Tribunal’s decision on 13 May 2013 and then then Federal Magistrates Court quashed the decision and remitted the matter to the Tribunal for further consideration.

2. On 19 June 2014, the Tribunal again affirmed the delegate’s decision. The second Tribunal also considered the applicant’s claims under the complementary protection criterion. On 21 July 2014, the applicant applied to the Federal Circuit Court for judicial review of the second Tribunal decision. On 23 November 2015, this Court dismissed that application.

3. By letter dated 14 August 2016, the applicant attempted to lodge another application for a protection visa. The applicant’s solicitor asserted that the first application for protection was invalid because the application form used was invalid, given the wording of Item 1401 of Schedule 1 to the Regulations inserted in 1999.

Consideration

Whether the proceedings are an abuse of process

1. An application for relief based on jurisdictional error is not subject to the doctrine of estoppel. Proceedings in this Court that are multiple proceedings can give rise to an abuse of process. The argument identified by counsel for the applicant in the present case is not, on its face, an abuse of process, and advances a construction argument in support of an argument as to a want of jurisdiction. That argument is sufficiently arguable but for decisions of this Court, so as not to constitute an abuse of process. The same argument has been advanced in this Court in the matter of BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178 and CFA16 v Minister for Immigration & Anor [2017] FCCA 278.

Whether the original application was valid

1. This Court, in the above two cases, has held that Item 1401 of Schedule 1 to the Regulations should not be construed as fixing a specific form at the time that it was made because to do so would be contrary to the statutory scheme and contrary to the intention manifested under s.495 of the Act, including the power in relation to the making of approved forms by the Minister in reg.1.18 as well as reg.2.07 of the Regulations. This Court explained its reasoning in relation to the statutory scheme in that regard in BVJ16, particularly at [28] to [33].

2. The Court also held in both those cases that the version of the form completed by the respective applicant substantially complied with the form and content of the version of the Form 866 contended to be the only valid form. The same position applies in the present case. No argument has been developed as to why this Court should depart from its earlier reasons. Mr Jones of counsel did not contend that there was a fresh authority or other argument that would warrant this Court reconsidering the construction adopted in BVJ16. Mr Jones wished to preserve his client’s position in respect of the construction argument.

3. That was a perfectly proper course for Mr Jones to take in respect of the application. This Court would be willing to reconsider a decision delivered by this Court in circumstances where it was suggested there were relevant matters that were overlooked or authorities that had not been taken into account. That is not the current position. Mr Jones properly concedes that this Court, in those circumstances, would follow and apply the reasoning in BVJ16 in respect of the construction issues.

Whether substantial compliance occurred

1. Mr Jones also seeks to take issue with the principle as to whether substantial compliance with the form is permitted under the statutory regime.

2. I accept the first respondent’s submission that substantial compliance of the relevant form occurred in the present case and that the specific Form 866 was not a mandatory requirement. The short reasons preserve the applicant’s rights to pursue the construction issue insofar as the applicant seeks to do so on the issue of substantial compliance. The reasons also preserve the Minister’s position in relation to estoppel and abuse of process.

Conclusion

1. For these reasons, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 April 2017