AIU17 v Minister for Immigration and Border Protection

1. The application for an extension of time in which to file and serve a notice of appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to file a notice of appeal from a decision of the Federal Circuit Court dated 8 August 2018 dismissing an application for judicial review of a determination of a delegate of the Minister made on 30 December 2016 that the applicant's protection visa application was invalid under s 48A of the Migration Act 1958 (Cth). 2 The applicant is a citizen of Sri Lanka and came to Australia in 2006. 3 On 19 April 2013, the appellant applied to the then Department of Immigration and Border Protection for a Protection (Class XA) visa. On 10 December 2013, a delegate for the Minister refused the application. 4 On 22 May 2014, the then Refugee Review Tribunal affirmed the decision of the delegate. 5 On 20 June 2014, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 20 August 2015, the Federal Circuit Court dismissed the application for want of appearance under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 6 On 8 September 2015, the applicant applied to the Federal Circuit Court to set aside the order made on 20 August 2015. On 11 December 2015, the Federal Circuit Court heard and dismissed this application. The judge in that case expressed that the applicant's failure to appear was "difficult to understand." 7 On 22 December 2015, the applicant applied to this Court for leave to appeal from the interlocutory orders made on 11 December 2015. This application was heard and dismissed on 31 May 2016. 8 On 23 June 2016, the applicant filed an application for an order to show cause and an extension of time in the High Court of Australia. On 6 September 2016, the High Court heard and dismissed the application. 9 On 12 December 2016, the applicant purported to make a further application for a protection visa. 10 On 30 December 2016, an officer of the first respondent informed the applicant by letter that the application was invalid under s48A of the Act because the applicant had previously applied for a protection visa and the Minister had not made a determination under s 48B. At that time s 48A(1) of the Act provided that: Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. 11 It is not in dispute that the Minister had not made a determination under s 48B in respect of the applicant. Section 48(B) of the Act was in the following terms: If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. 12 On 6 January 2017, the applicant applied to the Federal Circuit Court for judicial review of the officer's determination on the grounds that since Form 866 used to apply for the first visa was a legislative instrument not tabled in Parliament, the application was invalid and the decision to refuse the application was 'defunct'. Therefore, it was argued, s 48A did not apply to the second application. The applicant's legal representatives conceded that these legal issues had been considered and decided by the Federal Circuit Court and this Court. The applicant, however, did not consent to a dismissal of the application and wished to reserve his right to appeal. The applicant also sought that no costs order be awarded against him as the issue before the Court, he submitted, was one of statutory construction decided by courts subsequent to the applicant filing his application. 13 On 8 August 2018, a judge of the Federal Circuit Court dismissed the application with costs on the basis that it was an abuse of process and without merit. The Court considered that since the applicant had pursued the first protection visa application through the judicial appeal process to the High Court of Australia, with considerable delay, and had not raised an argument as to the validity of the form at any stage, the application was an abuse of process. After considering the relevant statutory framework, the Court found, concurring with the reasoning in AGL17 v Minister for Immigration [2017] FCCA 3214, that the relevant form was not a "legislative instrument" within the meaning of s 8(1) of the Legislation Act 2003 (Cth) and need not have been tabled in Parliament and therefore the grounds of appeal were without merit. 14 At [16] the Court also noted that: As of 18 July 2018, the Applicant was represented by Hugh Ford, solicitor. On 18 June 2018, the council of the Australian Capital Territory Law Society cancelled Hugh Ford's 2017/18 practicing certificate pursuant to s.56 of the Legal Profession Act 2006 (ACT). He was then represented by other solicitors.