ALG17 v Minister for Home Affairs

1. The 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 appeal against orders made on 13 May 2019 by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of a delegate of the then Department of Immigration and Border Protection made on 17 December 2017, which determined that the appellants' applications for Protection (subclass 866) visas were invalid applications by reason of the operation of s 48A of the Migration Act 1958 (Cth) (the Act). 2 The notification of that decision to the appellants made clear that, under s 48A of the Act, a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia. The letter went on to state that the Minister has the power under s 48B of the Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so but that the Minister is not obliged to consider exercising that power. In any event, s 48B does not arise for consideration in this case. 3 The appellants are all citizens of Indonesia. The first appellant is the husband of the second appellant and the father of the third and fourth appellants, who were born in Australia. 4 The procedural history of this matter is as follows. On 24 February 2014, the first appellant applied for a Protection (subclass 866) visa, with the second and third appellants listed as part of his family unit. On 5 November 2014, a delegate of the Minister refused to grant protection visas to the first, second and third appellants, which refusal was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 20 January 2016. The first, second and third appellants sought judicial review of the Tribunal's decision before the Federal Circuit Court and that application was dismissed on 6 November 2017: ALG17 v Minister for Immigration and Border Protection [2017] FCCA 2816. 5 The fourth appellant, after he was born on 20 May 2015, made a separate application for a Protection (subclass 866) visa on 5 August 2015. That application was refused by a delegate of the Minister on 23 December 2015. 6 Each of the appellants made a further application for a Protection (subclass 866) visa on 18 December 2017. In a decision dated 19 December 2017, the appellants were all advised that their applications had been refused pursuant to s 48A of the Act. 7 The appellants applied to the Federal Circuit Court for judicial review of the 19 December 2017 decision. That application contained the following four grounds, which are presented without alteration: 1. The decision dated 19th December 2017 of the Respondent, asserting the invalidity of the protection visa application filed, is challenged. 2. The Delegate of the Respondent made a jurisdictional error by failing to exercise jurisdiction. a. At the time of the earlier protection visa application the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Schedule 1 to the Regulations took effect on 20 October 1999; b. Item 1401 of Schedule to the Regulations, by virtue of Section 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or Section 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. By virtue of those provisions and notwithstanding Section 14(4) of the Legislation Act and Section 504(2) of the Migration Act 1958 (Cth) (Act), item 1401 was restricted to incorporating Form 866 to the extent it existed when item 1401 took effect on 20 October 1999; c. As a result, by virtue of Section 46 of the Act when read with ref 2.07 of the Regulations and notwithstanding Section 25C of the Interpretation Act when read with Section 13(1) of the Legislation Act, the earlier application was invalid and the later application was not barred by Section 48A of the Act. 3. Burley J. of the Federal Court of Australia dismissed a decision of this Court raising relevantly identical issues - namely at BVJ16 v. MIBP 2017. 4. This judgement is binding upon this Court and the Federal Court. An Application to the Full Bench of the Federal Court is to be made. 8 The primary judge noted at [8] that the appellants' argument had been the subject of some litigation, including in the decision referred to by the appellants themselves in their application - Burley J's decision in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16) - which was binding on the Federal Circuit Court. 9 The primary judge continued at [10] of the reasons by observing that this issue had also been considered by the Full Court of the Federal Court in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 (SZMOX), which decision was also binding authority on the Federal Circuit Court. 10 Both BVJ16 and SZMOX rejected the very argument the appellants sought to advance before the primary judge. At [11]-[12] of the reasons, the primary judge noted that there was no capacity for the merits of the appellants' application to be considered and that the only relevant issue was whether the decision to refuse their subsequent protection visa application for reason of invalidity was lawful. The primary judge was satisfied that it was lawful and accordingly dismissed the appellants' application. 11 The notice of appeal to this Court filed on 30 May 2019 contains five grounds. The first three are identical to the first three grounds contained in the application before the primary judge, as reproduced above at [7]. The fourth and five grounds are in the following terms, again presented without alteration: 4. The applicant would like to be fairly assessed by the Department of Homeaffairs due to the juridical error occurred in the application form. 5. The applicant has the right to response to the department of invalid application. 12 The appellants have not filed any written submissions in support of the appeal. The appellants were present at the hearing of the matter on 18 September 2019, at which the first appellant put to the Court orally matters of significant importance to him and his family but which did not deal with the legal issues considered by the primary judge. 13 The Minister relies on BVJ16 and SZMOX as binding authority which is directly on point and that is contrary to the propositions now sought to be advanced by the appellants. In addition, a number of other single-judge decisions of the Federal Court on this issue were cited, including CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 per Bromwich J; BLR15 v Minister for Immigration and Border Protection [2018] FCA 67 per Burley J; AUM17 v Minister for Immigration and Border Protection [2018] FCA 306 per Banks-Smith J; and SZLZS v Minister for Immigration and Border Protection [2018] FCA 748 per Reeves J. All of these decisions were said to be plainly correct and the Minister submits that they should therefore be applied in this case. 14 Nothing in the appellants' notice of appeal raises any matter that would point to a different conclusion. There is a long line of authority, some cases in which were considered by the primary judge and raised by the Minister in submissions, which rejects the legal argument now being put forward by the appellants. The appellants' argument - that it was their earlier applications that were invalid which then removes their subsequent applications from the operation of s 48A and the consequence of invalidity that follows - has no legal foundation. As a result, the appellants cannot demonstrate any error in the approach adopted by the primary judge and the appeal must fail. 15 Accordingly, the Court orders that the appeal be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.