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[2018] FCA 306
Federal Court of Australia
2018-03-20
Smith J
Original judgment source is linked above.
BANKS-SMITH J: 1 The applicant seeks an extension of time to appeal from the judgment of the Federal Circuit Court of Australia dismissing his application for judicial review: AUM17 v Minister for Immigration and Border Protection [2017] FCCA 2070. 2 Pursuant to r 36.03(a) of the Federal Court Rules 2011 (Cth) (Rules), the applicant was required to file his notice of appeal within 21 days. It was filed 26 days out of time.
Application for protection visa 3 The applicant is a citizen of Pakistan. On or about 23 September 2015, the applicant lodged an application for a protection visa, which was refused by a delegate of the respondent on 1 December 2016. The applicant did not seek review of the delegate's decision in the Administrative Appeals Tribunal. 4 On 1 February 2017 the applicant lodged a second application for a protection visa. On 8 February 2018 an officer of the Department of Immigration and Border Protection informed the applicant in writing that the second application was invalid under s 48A of the Migration Act 1958 (Cth) (Act). 5 Section 48A provides (relevantly) that: (1) 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. 6 Under s 48B the Minister may determine that s 48A does not apply. There has been no determination with respect to this applicant. 7 The applicant sought judicial review of the officer's decision of 1 February 2017 before the primary judge.
Proceedings in the Federal Circuit Court 8 Before the primary judge the applicant relied on an argument that the form upon which he made his first protection visa application was not valid, which caused the whole of the first application to be rendered invalid. Accordingly, it was submitted, the delegate's decision at that time was a nullity. 9 The invalidity of the first visa application was said to arise because the reference to Form 866 in item 1401 of Schedule 1 to the Migration Regulations 1994 (Cth) was to be construed as incorporating the whole of Form 866 into the Regulations as at the time that item first came into effect, on 20 October 1999. Accordingly, so the applicant contended, later versions of Form 866 were not incorporated and were (for that reason) not valid forms and it therefore followed that the second protection application (the subject of the present application) was not invalid by operation of s 48A of the Act. 10 The primary judge rejected the applicant's argument. The primary judge referred to two earlier decisions of the Federal Circuit Court: BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178; SZUGL v Minister for Immigration and Border Protection [2017] FCCA 419. In those decisions, a virtually identical argument as to that put by the applicant was rejected.
Application for an extension of time 11 The considerations relevant to the Court's exercise of the discretion to extend time to the applicant include the length of the delay (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 348-349); the explanation for the delay (Baig v Minister for Immigration and Border Protection [2014] FCA 855 [4]); the prejudice to the respondent (Singh v Minister for Immigration and Citizenship [2013] FCA 813 [15]-[18]); and the merits of the proposed appeal (SZNYE v Minister for immigration and Citizenship [2010] FCA 500 [16]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 [16]-[18]). 12 The proposed appeal should have such prospects of success as not to render the extension of time an exercise in futility (WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 [9]). If an appeal has no prospect of success, an extension of time - even for a short period - may be refused (SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 [23]). 13 The explanation given by the applicant for the delay is that he lacked sufficient funds to engage legal representation on the appeal.
Prospects of success of appeal 14 The draft notice of appeal annexed to the applicant's affidavit advances six proposed grounds of review. The proposed grounds relate to an alleged failure by the respondent to consider the applicant's claims to fear harm as advanced in the second protection visa application. The draft notice of appeal does not challenge the primary judge's reasoning on the s 48A issue. 15 The respondent contends that because the applicant had previously lodged an application for a protection visa, he was prevented by s 48A of the Act from lodging a further valid application for a visa in circumstances where the respondent had not determined that s 48A did not apply pursuant to s 48B of the Act. There was no obligation on the part of the respondent to consider the applicant's claims for protection in circumstances where the applicant had not made a valid application. Section s 47(3) of the Act provides that the Minister is not to consider an application that is not a valid application. 16 The decision in BVJ16 v Minister for Immigration and Border Protection was the subject of an appeal to this court: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205. Justice Burley dismissed the appeal and usefully sets out the relevant reasoning as to the use of Form 866: [19] The Minister 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 Migration 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. See also SZMOV v Minister for Immigration and Border Protection [2018] FCA 66 to the same effect. 17 The primary judge in this case applied the first instance decision in BVJ16 v Minister for Immigration and Border Protection, and found 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. The primary judge determined that based on the materials before the Court, the applicant made a valid application for protection in September 2015. Accordingly, the decision of the delegate that the applicant was precluded by s 48A of the Act from making a further application was correct and no jurisdictional error had been established. 18 In my view, the decision of the primary judge was clearly correct. The later decisions of this court in BVJ16 v Minister for Immigration and Border Protection and SZMOV v Minister for Immigration and Border Protection confirm the position. 19 Accordingly, the proposed grounds of appeal have no prospect of success. 20 For completion, I note that at the hearing before me, the applicant informally sought an adjournment to obtain legal advice as to the operation of s 48A. In circumstances where the respondent's reliance on s 48A had been made clear expressly since 8 February 2017 and was the subject of the appeal to the Federal Circuit Court (in which the applicant had legal representation), I declined the request for an adjournment.
Determination 21 Whilst I acknowledge the applicant's delay in seeking to file an application for leave to appeal was not unduly long, the proposed grounds of appeal have no prospect of success. Accordingly, I have determined that the application for an extension of time should be dismissed and the applicant is to pay the respondent's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.
AUM17
Minister for Immigration and Border Protection