AJB15 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 The applicant is a citizen of Egypt who was born in January 1986. He arrived in Australia on 9 May 2013 on a Subclass 420 Temporary Work (Entertainment) visa. On 6 June 2013 he lodged an application for a protection visa (first visa application). On 16 December 2013 a delegate of the Minister for Immigration and Border Protection (Minister) refused the first visa application and on 9 January 2014 the applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for a review of the delegate's decision. The Tribunal considered the applicant's claims under the Refugee Convention criterion based on s 36(2) of the Migration Act 1958 (Cth) (Act) and the complimentary protection criterion pursuant to s 36(2)(aa) of the Act and upheld the decision of the delegate. 2 On 29 August 2014 the applicant applied for ministerial intervention by the Minister under s 417 of the Act, but the application was unsuccessful. On 2 April 2015 the applicant sought judicial review of the decision of the Tribunal by the Federal Circuit Court of Australia (FCCA), but the application was brought outside the 35 day time period prescribed by s 477(2) of the Act, and the Court refused to exercise its jurisdiction under s 477(2) of the Act to extend the time limitation. On 20 May 2016 the applicant applied to this Court for judicial review of the decision of the FCCA, but that application was dismissed with costs on 9 September 2016. 3 On 23 September 2016 the applicant lodged a further application for a protection visa (second visa application). On 17 October 2016 an officer of the Department of Immigration and Border Protection (Department) informed the applicant by letter that the second visa application was invalid pursuant to s 48A of the Act. In summary, s 48A of the Act provides that, subject to s 48B, a non-citizen who has had his or her application for a protection visa refused, 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. Section 48B provides that the Minister has discretion to determine that s 48A does not apply. 4 The decision of the officer of the Department represents a refusal to make a decision on the second visa application within s 474(3) of the Act. The applicant then applied to the FCCA for an order that the decision set out in the 17 October 2016 letter be set aside. On 13 July 2017 the primary judge ordered that the application be dismissed. It was not in dispute that the FCCA had jurisdiction to consider the application. 5 On 14 August 2017 the applicant lodged an application for an extension of time within which to file a Notice of Appeal from the decision of the primary judge. The application was supported by an affidavit sworn by the applicant's solicitor which records that the Notice of Appeal was filed 7 days out of time and that the reason for the delay is because the applicant miscalculated the prescribed appeal period, believing it to be 28 days as opposed to 21 days. 6 The draft Notice of Appeal contains the following ground, which in substance is that the trial judge erred in holding that the departmental officer was correct in forming the view that the second visa application was not a valid application. It provides: Grounds of appeal 1. The primary judge erred by holding that the Second Respondent had jurisdiction in relation to the Appellant's application for review on the basis that the Appellant's application for a protection visa dated 14 February 2017 was valid. Particulars a. At the time of the Appellant's application for the protection visa, the version of Form 866 used by the Appellant had been approved by the Minister under reg 1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Sch 1 to the Regulations took effect on 20 October 1999; b. Item 1401 of Sch 1 to the Regulations, by virtue of s 49A(l)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as ii existed after item 1401 took effect. c. Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; d. 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 Interpretation Act when read with s 13(1) of the Legislation Act, the Appellant's application for the protection visa was not valid and the Second Respondent had no jurisdiction to review the Delegate's refusal of the protection visa. 7 The Minister is represented by Mr Andras Markus, a solicitor from the office of the Australian Government Solicitor who contends that the extension of time should be refused because there has been no adequate explanation for the delay in filing the Notice of Appeal and because the proposed appeal has no real prospects of success. 8 Counsel for the applicant, Mr Oliver Jones, filed a written submission on 13 November 2017. In it, he provides a chronology of the relevant events and contends that the critical question applicable to the grant of the extension of time in the present case is the strength of the proposed appeal. His submission states that the present case is "on all fours" with the decision of the Court in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16). In that decision I rejected an equivalent argument to that proposed to be advanced on appeal in the present case, namely that the first visa application is to be regarded as a nullity on the basis that it was not made using the same version Form 866 that was in force at the time when the Migration Regulations 1994 (Cth)(Regulations) were enacted. 9 In that decision, after summarising the arguments and the legislation, I said: [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)[of the Act] 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) 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. 10 In his written submission, counsel for the applicant states that he accepts that, whilst he formally submits that BVJ16 is plainly wrong, for practical purposes it is unlikely that I would reach a conclusion contrary to that which I have expressed above. Accordingly, he accepts that an extension of time should be refused, subject only to the Court recording the formal submission that BVJ16 is plainly wrong. 11 In CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, Perry J helpfully summarised the principles relevant to the exercise of discretion to grant an extension of time for an appeal as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349) 12 Counsel for the applicant was correct in to make the concession that the Court, in considering the prospects of success of any appeal, would consider the decision in BVJ16 to be an insurmountable hurdle for the applicant. In my view the combined effect of the inadequacy of the explanation for the delay in filing the Notice of Appeal out of time, coupled (more significantly) with the poor prospect that the applicant would succeed on appeal are such that in my view it is not fair and equitable in all of the circumstances to grant leave for the extension of time to appeal. 13 Accordingly, the application for an extension of time must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.